District Court Rules 1973

Part 1 Preliminary

1 Name of rules

These rules may be cited as the District Court Rules 1973.

2 Commencement

These rules shall commence on the commencement of the Act.

3 (Repealed)

rule 1.3: Am 28.6.1974; 6.9.1974; 24.12.1975; 18.11.1977; 14.6.1985; 5.9.1986; 21.11.1986; 28.8.1987; 23.10.1987; 18.12.1987; 24.12.1987; 22.4.1988; 10.6.1988; 19.8.1988; 21.7.1989; 25.8.1989; 16.2.1990; 6.7.1990; 4.10.1991; 28.2.1992; 16.4.1992; 8.4.1993; 22.10.1993; 6.10.1995. Rep 1.3.1996.

4 Interpretation

(1)  In these rules, unless the context or subject matter otherwise indicates or requires:

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

cross-claim means a claim for relief made:

(a)  by a defendant to an action against the plaintiff in that action, or

(b)  by a defendant to an action or cross-claim against another person in respect of relief relating to or connected with the subject of the action.

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.

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

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 the 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.

folio means 100 words, five figures being counted as one word.

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 is unable to receive communications respecting his property or affairs, or to express his will respecting his property or affairs.

incompetent person means:

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

(i)  incapable of managing his affairs, or

(ii)  incommunicate, or

(b)  a minor who has a curator.

medical practitioner means a person registered under the Medical Practice Act 1992 or under any law of another State or Territory of the Commonwealth for the registration of persons practising the profession of medicine.

minor means person under the age of 18 years.

originating process, in relation to any proceedings, means the document by the lodging of which the proceedings are commenced in the Court in its civil jurisdiction.

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.

plaintiff includes any person making a claim for relief.

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

the Act means the District Court Act 1973.

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

(2)  A reference in these rules to:

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

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

(2A)  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.

(3)  The provisions of the civil procedure rules prescribed for the purposes of section 4 (2) (a) of the Act are Part 13 rule 1 and Part 14 rules 2 and 3.

(4)  Notes in the text of these rules do not form part of these rules.

rule 1.4: Am 14.6.1985; 5.9.1986; 21.11.1986; 24.12.1987; 19.8.1988; 4.11.1988; 23.6.1995; 18.10.1996; 6.12.1996; 24.12.1999; 7.7.2000; 22.12.2000.

5 Adherence to and relief from rules

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

cf DCR r 444.

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

SCR Pt 1, r 12.

(3)  The general practice of the Court prescribed by the rules shall apply to all proceedings authorised by any existing or future Act to be commenced or taken in the Court, except in so far as that practice is inconsistent with any provision of or under any future Act.

DCR r 443.

5A Procedure wanting or in doubt

(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 the civil procedure 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.

rule 1.5A: Ins 14.6.1985.

6 Seal of the Court

(1)  The registrar is to seal or stamp the following documents (or cause the documents to be sealed or stamped) with the seal of the Court:

(a)  any order, notice, warrant, certificate, judgment or process made, given or issued by the registrar (or any copy of such a document),

(b)  any other document issued by the registrar that is required by the rules to be sealed.

(2)  Without limiting subrule (1), a document may be stamped with the seal of the Court by any of the following means:

(a)  affixing the seal on the document by means of a rubber stamp,

(b)  affixing an adhesive label on the document with a representation of the seal printed on it,

(c)  printing a representation of the seal on the document by electronic or mechanical means.

rule 1.6: Subst 21.9.2001.

7 Order on terms

Where, under the rules, the Court or any person may make any order or give any direction or leave or do any other thing, the Court or person may make the order or give the direction or leave, or the Court may do the thing, on such terms and conditions (if any) as the Court or person thinks fit.

rule 1.7: Ins 19.8.1988.

7A Effect of certain orders dismissing proceedings

(1)  In this rule:

preliminary dismissal order means an order made by the Court dismissing proceedings other than an order dismissing proceedings after there has been a trial or hearing on the merits of the case or an application to dismiss the proceedings.

(2)  The Court is not to make a preliminary dismissal order in respect of any proceedings unless it is satisfied that the parties to the proceedings have been appropriately notified that the order may be made.

(3)  A preliminary dismissal order does not have effect:

(a)  if an application is not made under subrule (5)—until a period of 28 days has elapsed after the making of the order, or

(b)  if an application is made under subrule (5)—unless the Court confirms the order under subrule (6) or (7).

(4)  The Court may, at the time it makes a preliminary dismissal order or subsequently, make such other orders as it thinks fit to ensure that any party to the proceedings in respect of which the dismissal order is made is appropriately notified of the making or consequences of the order.

(5)  Any party to proceedings in respect of which a preliminary dismissal order is made may, within the period of 28 days after the making of the order, apply to the Court to set aside the order.

(6)  On any such application, the Court may set aside the preliminary dismissal order or confirm the order as it thinks fit.

(7)  The Court may, if it thinks fit, confirm a preliminary dismissal order if:

(a)  the party who has made an application to have the order set aside does not appear at the hearing of the application, or

(b)  an application to set aside the order is withdrawn or otherwise not proceeded with.

rule 1.7A: Ins 7.7.2000.

Part 2 Administration

1 Sittings of the Court DCR r 2.

The registrar for a proclaimed place shall, one month before the day appointed for the commencement of a sitting of the Court at that proclaimed place, or such lesser time before that day as the circumstances permit, affix in some conspicuous place in his office a notice of the day and hour so appointed, and whenever any such day or hour is altered shall immediately affix notice of the alteration in the same place.

2 Vacation cf SCR Pt 2, r 5 (2).

(1)  The Chief Judge shall appoint in each year periods to be called vacation, and one of those periods shall be called summer vacation.

(2)  During vacation the Court shall sit on such days only, and for the hearing of proceedings of such types only, as the Chief Judge shall direct.

rule 2.2: Am 14.6.1985; 30.8.1985.

3 (Repealed)

rule 2.3: Rep 14.2.1992.

4 Registries DCR r 4.

(1)  The registry for each proclaimed place shall be under the control and direction of the registrar for the place, subject to any direction by the Chief Judge or a Judge.

(2), (3)    (Repealed)

(4)  Except on Saturdays, Sundays and other holidays, and whether in vacation or not:

(a)  the registry for Sydney shall be open to the public for business between 9.30 in the morning and 4.00 in the afternoon, and

(b)  the registry for any other proclaimed place shall be open to the public for business between 9.30 in the morning and 1.00 in the afternoon, and between 2.00 and 4.00 in the afternoon.

cf DCR r 3.

(5)  A registry shall, notwithstanding subrule (4), be kept open to the public for business, or closed for business, at such times on such days as the Chief Judge or a Judge shall direct.

rule 2.4: Am 18.8.1978; 30.8.1985.

Part 2A Venue

pt 2A: Ins 14.6.1985.

1 Where proceedings may be commenced

(1)  Subject to this rule, and to any provision under any Act other than the District Court Act 1973, civil proceedings may be commenced at any proclaimed place.

(2)  Proceedings for possession of land shall be commenced at the nearest proclaimed place to the place in New South Wales where the land or any part of the land is situated.

(3)  Proceedings under section 134 of the Act shall be commenced at the nearest proclaimed place to the place in New South Wales:

(a)  in the case of proceedings pursuant to section 134 (1) (a) or (b):

(i)  where the mortgage, charge or lien is of or over land or the agreement is in respect of the sale, purchase or lease of land—where a defendant is resident or carries on business or where the land or any part of the land is situated, or

(ii)  in any other case—where a defendant is resident or carries on his business,

(b)  in the case of proceedings pursuant to section 134 (1) (c) or (f):

(i)  where the deceased person last resided, or

(ii)  where an executor or administrator is resident or carries on his business, or

(c)  in the case of proceedings pursuant to section 134 (1) (d) or (e)—where a defendant is resident or carries on his business.

(4)  Proceedings under Division 4 of Part 3 of the Frustrated Contracts Act 1978 shall be commenced:

(a)  where the defendant is resident or carries on business at a place in New South Wales—at the nearest proclaimed place to that place, or

(b)  where paragraph (a) does not apply—at Sydney.

(5)  Where proceedings are commenced at a proclaimed place that is not a place at which they ought, under subrule (2), (3) or (4), to have been commenced, the Court may, on the application of a party to the proceedings or without any such application:

(a)  order that the proceedings be continued in the Court notwithstanding that they were commenced at that place,

(b)  order a change of venue of the proceedings, under section 40 of the Act, to such other proclaimed place as the Court thinks proper, or

(c)  dismiss the proceedings.

rule 2A.1: Ins 14.6.1985. Am 7.7.2000.

2 Where proceedings may be heard

(1)  Except where otherwise provided by the Act or the rules, an action or other civil proceedings, and any proceedings ancillary to that action or other civil proceedings, shall be heard and disposed of by the Court sitting at the proper place in relation to that action or other civil proceedings.

(2)  On application by a party to an action or other civil proceedings or of its own motion, the court sitting at any proclaimed place may if it thinks fit order that any or all proceedings ancillary to the action or other civil proceedings be heard and disposed of by the Court sitting at that or some other proclaimed place specified in the order, notwithstanding that the proclaimed place to which the order relates is not the proper place in relation to the action or other civil proceedings.

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

rule 2A.2: Ins 14.6.1985. Am 8.11.1985.

2A Transfer within District

(1)  Without limiting rule 2 (2), the Court may, on the application of a party or of its own motion, direct that any proceedings for hearing at a specified proclaimed place comprised within a District are to be heard at another proclaimed place that is comprised within the same District.

(2)  The powers of the Court under subrule (1) may, in respect of a District, be exercised by the Court or by the registrar in the civil jurisdiction for that District.

rule 2A.2A: Ins 15.12.1995.

3 Objection by defendant

(1)  In this rule:

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

relevant place, in relation to an action, means each of the following places:

(a)  the place where the defendant is resident,

(b)  the place where the defendant was resident at the time the cause of action arose,

(c)  the place where the defendant carries on his business,

(d)  the place where the defendant carried on his business at the time the cause of action arose, and

(e)  the place where the cause of action arose,

but does not include any place outside New South Wales.

(2)  Where the proclaimed place at which an action is commenced is not the nearest proclaimed place to a relevant place, the defendant may, if he files the notice of the grounds of his defence under Part 10 rule 1 within 28 days after service on him of the statement of claim in the action, file within that time an affidavit by the defendant or his solicitor or agent:

(a)  specifying all of the relevant places and the nearest proclaimed place to each of them, and

(b)  specifying one of the proclaimed places specified pursuant to paragraph (a) as the place which he 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 his solicitor.

(4)  Where the defendant files the notice of his grounds of defence and an affidavit in accordance with subrule (2), the plaintiff may, within 28 days after receipt by him from the registrar of a copy of the affidavit, file:

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

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

(i)  the proclaimed place at which the action was commenced is the nearest proclaimed place to a relevant place,

(ii)  at least one of the places specified as relevant places in the defendant’s affidavit is not a relevant place,

(iii)  not all of the relevant places were specified in the defendant’s affidavit, or

(iv)  the place specified in the defendant’s affidavit as being the nearest proclaimed place to a relevant place specified therein is not the nearest proclaimed place,

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

(5)  The filing of a notice in accordance with subrule (4) (a) shall have the same effect as if the Court had ordered a change of venue under section 40 of the Act to the proclaimed place 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 the Court, which shall:

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

(b)  order that such proclaimed place as the Court thinks fit and as is specified in the order (whether or not that place is a relevant place) shall be deemed to be the proper place in relation to the action, or

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

(7)  An order made under subrule (6) (b) shall have the same effect as if it were an order for a change of venue under section 40 of the Act to the proclaimed place specified in the order.

(8)  Where the plaintiff files neither a notice nor an affidavit in accordance with subrule (4), the Court shall be deemed to have, at the expiration of the time prescribed under that subrule, ordered a change of venue under section 40 of the Act to the proclaimed place specified by the defendant pursuant to subrule (2) (b) as the place which he 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 40 of the Act.

rule 2A.3: Ins 14.6.1985. Am 30.10.1998.

4 Change of venue under section 40

(1)  The Court may make an order under section 40 (b) 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 any proceedings is changed under section 40 of the Act, the registrar for the proclaimed place from which the venue is changed shall forthwith forward the whole record of the proceedings to the registrar for the proclaimed place to which the venue is changed.

(3)  As soon as practicable after receipt by him of any record of proceedings forwarded to him under subrule (1) a registrar shall give or send to the parties notice of the receipt.

(4)  Where the venue of any proceedings is changed from a proclaimed place to another proclaimed place, the proceedings shall go to trial according to the procedures prescribed in respect of proceedings of the same class for hearing at the other proclaimed place.

rules 2A.4, 2A.5: Ins 14.6.1985.

5 Adjournment to another proclaimed place

A Judge may if he thinks fit direct that proceedings commenced before him at one proclaimed place be continued before him at another proclaimed place at which he is, under section 33 (2) (b) of the Act, authorised to sit.

rules 2A.4, 2A.5: Ins 14.6.1985.

6 Chambers

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

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

(3)  Any proceedings of the court in relation to an application under section 25 (1) or 26 of the Summary Offences Act 1988 may be dealt with and determined in chambers.

rule 2A.6: Ins 14.6.1985. Am 6.7.1990.

7 Reserved decision

(1)  Where in any proceedings a Judge reserves his judgment or his decision on any question of fact or law, he may:

(a)  give his judgment or decision:

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

(ii)  in court at any other place at which he is authorised by the Act or the rules to hear or dispose of those proceedings, or

(iii)  in chambers in accordance with rule 6, or

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

(2)  Where a registrar receives a judgment or decision forwarded to him under subrule (1) (b), he shall, after giving notice to the parties to the proceedings, read the judgment or decision at the place for which he is registrar at a convenient time specified in the notice, whether or not the Court is sitting at that place at that time.

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

rule 2A.7: Ins 14.6.1985.

8 Adjournment

(1)  The Court may, on terms, adjourn any sittings or the trial of any proceedings in such manner as the Court thinks fit.

(1A)  Notwithstanding subrule (1), where the trial of any proceedings has been adjourned to a subsequent sittings of the Court and at that sittings the proceedings are not ready for trial, the proceedings shall, unless the Court in special circumstances otherwise orders, be dismissed.

(2)  Where a sitting of the Court is directed to be held at a proclaimed place at a time specified under section 32 of the Act, the registrar for the place shall:

(a)  if the Chief Judge so directs, or

(b)  if for any reason it is not practicable to be held at that time,

adjourn the sitting to such time and such proclaimed place as the Chief Judge nominates, or, if the Chief Judge does not nominate a time, to such time as the registrar deems convenient.

rule 2A.8: Ins 14.6.1985. Am 10.6.1988; 24.4.1998; 7.7.2000.

Part 3 Time

1 Reckoning of time SCR Pt 2, r 2.

(1)  Any period of time fixed by the Act or the 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 five days or less, would include a day on which the registry for the proper place 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 place 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 SCR Pt 2, r 3.

(1)  The Court may by order extend or abridge any time fixed by the rules or by any judgment or order.

(2)  The Court may extend time under subrule (1) as well after 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 the rules or by any order to serve, file or amend any pleading or other document may be extended by consent without an order for extension.

(4)  Subrule (3) does not apply to any period fixed by or under Practice Note 33 (or any Practice Note modifying Practice Note 33).

rule 3.2: Am 17.3.1995; 6.12.1996; 24.4.1998.

3 Fixing time SCR Pt 2, r 4.

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

4 (Repealed)

rule 3.4: Rep 26.4.1991.

Part 4 Preliminary discovery

pt 4, Heading: Subst 6.9.1974.

1 Examination and production SCR Pt 3, r 1.

(1)  Where, on application to the Court sitting at any proclaimed place by any applicant, it appears to the Court that:

(a)  the applicant, having made reasonable inquiries is unable to ascertain the identity of a prospective defendant for the purpose of commencing proceedings against that prospective defendant or is unable to ascertain the description of the prospective defendant sufficiently for that purpose, and

(b)  some person has or may have knowledge of facts, or has or may have in his possession, custody or power any document or thing, tending to assist in the ascertainment of the identity or description of the prospective defendant,

the Court may order that person:

(c)  to attend before the Court sitting at such proclaimed place as the Court shall direct, or the registrar for that proclaimed place on a day named in the order and be orally examined on any matter relating to the identity or description of the prospective defendant, and

(d)  to produce any document or thing in his possession, custody or power relating to the identity or description of the prospective defendant.

(2)  Where, on application by any applicant, the matters mentioned in subrule (1) (a) appear to the Court and it further appears to the Court that a corporation has or may have in its possession, custody or power any document or thing tending to assist in ascertainment of the identity or description of the prospective defendant, the Court may order the corporation or any officer of the corporation to produce any document or thing in the possession, custody or power of the corporation relating to the identity or description of the prospective defendant.

(3)  In this rule, description includes the name, place of residence, place of business, occupation and sex of the person concerned.

rule 4.1: Subst 6.9.1974.

2 Procedure cf SCR Pt 3, r 2.

(1)  An applicant may apply for orders under rule 1 by notice of motion supported by affidavit, without making any person a respondent.

(2)  An application under rule 1 before a Registrar shall be referred to the Court on application by any party.

(3)  An order under rule 1 shall be served within a reasonable time on the person ordered to attend or to produce any document or thing.

rule 4.2: Am 21.9.1979.

3 Conduct money SCR Pt 3, r 3.

(1)  An order under rule 1 shall not require a person to attend or to produce any document or thing on any day on which his attendance, or production by him, is required, unless an amount sufficient to meet his reasonable expenses of complying with the order in relation to that day is paid or tendered to him at the time of service of the order or not later than a reasonable time before that day.

(2)  Where an order under rule 1 requires a corporation to produce any document or thing, the amount mentioned in subrule (1) may be paid or tendered to any person apparently in the service of the corporation and apparently of or above the age of sixteen years.

4 Expense and loss SCR Pt 3, r 4.

Where any person incurs expense or loss in complying with an order under rule 1 in an amount exceeding any amount paid under rule 3, the Court or the registrar before whom the person complies with the order may order the applicant for the order to pay to the person an amount sufficient to make good the expense or loss.

5 Default in complying with order

The Court may order that any failure to comply with an order under rule 1 be dealt with as a failure to comply with a subpoena.

Part 5 Commencement of proceedings

Division 1 General

1 Interpretation

In this Part, unless the context or subject matter otherwise indicates or requires:

sues includes applies for an order against, and appeals against a decision in favour of.

rule 5.1: Am 18.10.1996.

2 Name, address etc

(1)  An originating process shall be signed by the plaintiff, or all of the plaintiffs, or, where the plaintiff sues by a solicitor, by or on behalf of the solicitor in accordance with the rules, and shall contain:

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

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

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

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

DCR r 63.

(e)  an address for service at which service of documents in the proceedings will be accepted on behalf of the plaintiff.

cf DCR r 60.

(2)  An originating process shall have subscribed to it:

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

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

(c)  where the process is to be served on any person, a statement as to whether or not an officer of the court is to be required to serve the process.

cf DCR r 62.

(3)  Where it appears from any originating process that the plaintiff sues by a solicitor:

(a)  the solicitor shall, on request in writing by a defendant, declare in writing whether the originating process was lodged by him, and

(b)  if the solicitor declares in writing that the originating process was not lodged by him, the Court may, on application by the defendant, stay the proceedings.

SCR Pt 7, r 2 (2).

rule 5.2: Am 14.6.1985; 19.8.1988.

3 Filing and copies

(1)  Originating process shall be lodged in duplicate with the registrar for the proclaimed place at which it is sought to commence the proceedings to which the process relates, together with as many copies of the process as there are parties to be served.

cf DCR r 55.

(2)  Where the originating process complies with the rules, the original document so lodged 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, handed to the Sheriff’s Officer at or bailiff for the proper place in relation to the proceedings or returned to the plaintiff.

cf SCR Pt 7, r 6 (3).

(3)  Each proceedings commenced at a proclaimed place shall be numbered by the registrar in the order in which the proceedings is commenced, or in an order as near to that order as is reasonably practicable, and the registrar shall endorse the number so allotted to a proceedings:

(a)  on the original and every copy of the originating process in the proceedings filed or sealed by him, or

(b)  where the proceedings consists of an action transferred from a Local Court, or proceedings transferred from the Supreme Court, or proceedings the venue of which is changed from another proclaimed place, on every document lodged with him for the commencement of the proceedings.

cf SCR Pt 1, r 10.

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

rule 5.3: Am 21.11.1986; 19.8.1988.

4 Time of commencement

Subject to section 21E of the Local Courts (Civil Claims) Act 1970, and to rule 13, proceedings shall be commenced when the originating process in relation to the proceedings is filed.

rule 5.4: Am 14.6.1985.

5 Validity for service cf SCR Pt 7, r 7.

(1)  For the purpose of service an originating process shall be valid:

(a)  if it is an application, until the last day for service of the process fixed by the rules,

(b)  if it is the notice of an appeal brought under any existing or future Act, and that Act makes provision for the last day on which it may be served, until that day,

(c)  if it is a statement of liquidated claim, for 1 month from the date on which it is filed or such further period as the Court may direct,

(ci)  if it is an ordinary statement of claim filed on or after 1 January 1996 but before 1 January 2002, for 2 months from the date on which it is filed or such further period as the Court may direct, or

(cii)  if it is an ordinary statement of claim filed on or after 1 January 2002, for 1 month from the date on which it is filed or such further period as the Court may direct.

(d)    (Repealed)

(2), (3)    (Repealed)

(4)  Nothing in this rule prevents a plaintiff from commencing fresh proceedings by lodging another originating process.

rule 5.5: Am 29.2.1980; 23.6.1995; 8.12.1995; 7.7.2000; 26.10.2001.

Division 2 Manner of commencement of actions

pt 5, div 2: Subst 14.6.1985.

6 Statement of claim

(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 the rules, interest, whether under section 83A 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 Compensation Act 1999 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 his 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 his servant or agent in driving or riding a motor vehicle within the meaning of the Motor Accidents Compensation Act 1999 or in controlling a trailer within the meaning of that Act.

rule 5.6: Am 21.9.1979. Subst 14.6.1985. Am 24.12.1987; 29.5.1992; 17.3.2000.

6A Contents

A statement of claim lodged to commence an action 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, or other relief, claimed in respect of each such cause of action,

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

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

(d)  in an action in detinue, a statement of the remedy or remedies sought, a description of the property alleged to be detained, and a statement of its value,

(e)  where the plaintiff claims interest other than under section 83A of the Act, section 73 of the Motor Accidents Act 1988 or section 137 of the Motor Accidents Compensation Act 1999, particulars of the rate or rates at which, the amount or amounts on which and the period or periods for which, interest is claimed, and

(f)  where the plaintiff intends to claim interest under s 83A of the Act, section 73 of the Motor Accidents Act 1988 or section 137 of the Motor Accidents Compensation Act 1999, a statement that that interest will be claimed, and, where the statement of claim is a statement of liquidated claim, 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.

rule 5.6A: Ins 14.6.1985. Am 17.2.1995; 17.3.2000.

6B Personal injury actions

In any proceedings in which a claim is made for damages in respect of personal injuries, the plaintiff shall file with the statement of claim the statement, and a schedule of documents, required under Part 9, rule 27 (2) or (4), as the case may be, to be served on the defendant’s insurer or solicitor.

rule 5.6B: Ins 24.4.1998.

Division 3 Proceedings commenced by application

7 Application of this Division

This Division applies to any proceedings, other than an action or appeal or application for leave to appeal, brought in the Court under any existing or future Act other than the District Court Act 1973, and so applies subject to any provision of or under the Act under which the proceedings are brought.

rule 5.7: Am 23.6.1995.

8 Notice of application

(1)  The originating process for the commencement of any proceedings to which this Division applies shall be an application.

(2)  An application mentioned in subrule (1) shall contain:

(a)  particulars of the order applied for,

(b)  particulars of the grounds on which the applicant claims to be entitled to the order applied for, or a reference to the affidavit in which those particulars are contained,

(c)  where it is not intended to serve the application on any person, a statement to that effect, and

(d)  the date for the hearing of the application, fixed by the registrar when the application is lodged with him.

Division 4 Statutory appeals

9 Application of this Division

(1)  Subject to subrule (2), this Division applies to an appeal to the Court brought under any existing or future Act, and so applies subject to any provision of or under the Act under which the appeal is brought.

(2)  This Division does not apply to an appeal to which Division 5, 7 or 8 of Part 6 applies.

rule 5.9: Am 28.8.1987; 18.12.1987; 21.6.1991. Subst 22.10.1993. Am 23.6.1995.

10 Notice of appeal DCR r 392 (1).

(1)  The originating process for the commencement of an appeal to which this Division applies shall be a notice of appeal.

(2)  A notice of appeal mentioned in subrule (1) shall contain:

(a)  particulars of the decision appealed against,

(b)  particulars of the grounds of appeal on which the appellant intends to rely, or a reference to the affidavit in which those particulars are contained, and

(c)  where it is not intended to serve the notice of appeal on any person, a statement to that effect.

(3)  The appellant at the time of lodging a notice of appeal as mentioned in subrule (1):

(a)  shall lodge a copy of the application or other originating process which was before the authority which made the decision appealed against, and

(b)  shall lodge a copy of the decision or determination the subject of the appeal.

rule 5.10: Am 18.8.1978.

11 Time for appeal DCR r 392 (2).

An appeal to which this Division applies shall be commenced within sixty days after the decision appealed against, or within such further time as may be ordered by the Court.

Division 5 Actions transferred from Local Courts

pt 5, div 5: Subst 14.6.1985.

12 Continuance as District Court action

Where an action is transferred to the Court from a Local Court:

(a)    (Repealed)

(b)  any notice of defence filed in the action before it was transferred shall be deemed to be a notice of grounds of defence filed under Part 10 rule 1.

rule 5.12: Am 24.10.1975. Subst 14.6.1985. Am 5.9.1986.

Division 6 Proceedings transferred from Supreme Court

13 Continuance as District Court action

(1)  Where the Supreme Court makes an order under section 143 of the Act for the transfer of any proceedings to the Court sitting at a proclaimed place:

(a)  a party, or a registrar of the Supreme Court, shall lodge a copy of the order and a copy of the pleadings (if any) in the proceedings with the registrar for that place,

(b)  when the copy or copies, as the case may be, has or have been lodged under paragraph (a), the proceedings shall:

(i)  cease to be proceedings in the Supreme Court, and

(ii)  become proceedings in the Court and be continued in the Court as if originally commenced in the Court at that proclaimed place on the day on which they were commenced in the Supreme Court, and

(c)  any costs payable in respect of the order, copies of the order and pleadings (if any), and work done before the making of the order shall be allowed, subject to any order of the Supreme Court, as though the proceedings had remained in the Supreme Court.

(2)    (Repealed)

rule 5.13: Subst 14.6.1985. Am 17.3.1995; 21.6.1996; 30.10.1998.

Division 7 Transfer of matters arising under Division 1 or 1A of Part V of the Trade Practices Act 1974 (Commonwealth)

pt 5, div 7: Ins 24.12.1987.

14 Interpretation

In this Division, a reference to the transfer of proceedings is a reference to the transfer of proceedings:

(a)  under section 86A of the Trade Practices Act 1974 (Commonwealth),

(b)  after the commencement of section 10 of the Jurisdiction of Courts (Cross-vesting) Act 1987, under that section, or

(c)  after the commencement of section 10 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Commonwealth), under that section.

rule 5.14: Rep 14.6.1985. Ins 24.12.1987.

15 Continuance as District Court action

(1)  Where the Federal Court or another court makes an order transferring proceedings to the Court sitting at a proclaimed place:

(a)  the person who commenced the proceedings in the transferring court shall lodge a copy of the order and a copy of the pleadings (if any) in the proceedings with the registrar for that place and, if that person does not lodge that copy or those copies, as the case may be, within 10 days after the making of the order, any other party to the proceedings may lodge it or them with the registrar,

(b)  when the copy or copies, as the case may be, has or have been lodged under paragraph (a), the proceedings shall become proceedings in the Court and be continued in the Court as if originally commenced in the Court at that proclaimed place on the day on which they were commenced in the transferring court, and

(c)  any costs payable in respect of the order, copies of the order and pleadings (if any), and work done before the making of the order shall be allowed, subject to any order of the Court or of the transferring court, as nearly as practicable as though the proceedings were, before the making of the order, an action in the Court.

(2)  Subject to section 86A (3) (b) of the Trade Practices Act 1974 (Commonwealth) and to any order of the Court, where proceedings are transferred to the Court as referred to in subrule (1) the proceedings shall be continued, and the procedures to be followed in respect of the proceedings shall be determined, as nearly as practicable as though the proceedings were an action in the Court.

rule 5.15: Ins 24.12.1987. Am 17.3.1995.

Part 6 Proceedings commenced by application and statutory appeals

pt 6: Ins 21.8.1998.

pt 6.div 9 (Rules 6.64, 6.65): Ins 21.8.1998.

Division 1 Proceedings commenced by application

1 Application of this Division

This Division applies to proceedings to which Part 5 Division 3 applies, and so applies subject to any provision of or under the Act under which the proceedings are brought.

2 Service

An application mentioned in Part 5 rule 8 shall, unless service is dispensed with by order of the Court made at or before the hearing of the application, be served on every respondent to the application fourteen days before the day fixed by the registrar for the hearing.

3 Affidavits cf DCR r 170 (5).

A party to any proceedings to which this Division applies who intends to rely on any affidavit must serve the affidavit on each other party to the proceedings (except a party on whom service of the application is dispensed with as mentioned in rule 2) in sufficient time before the hearing to enable that other party to reply on affidavit, or within such period as the Court may order.

rules 6.3, 6.4: Am 17.3.2000.

4 Answer by respondent cf DCR r 392 (7).

A respondent to any proceedings to which this Division applies:

(a)  who serves an affidavit in the proceedings shall include in the first affidavit so served an address for service, or

(b)  who does not serve such an affidavit shall, before being heard in the proceedings, file and serve on the applicant a notice of intention to appear.

rules 6.3, 6.4: Am 17.3.2000.

5 Hearing DCR r 170 (6).

The Court upon the hearing or adjourned hearing of any proceedings to which this Division applies may make the order sought absolute in the first instance or to be absolute at any time ordered by the Court unless cause be shown to the contrary, or may make such other order or give such directions as may be just.

6 (Repealed)

rule 6.6: Am 17.3.1995. Rep 18.10.1996.

7 Procedure generally

Except as provided in this Division, the procedures to be observed in respect of proceedings to which this Division applies shall be the procedures prescribed in Part 16, subject to such modifications to those procedures as may be necessary to give effect to this rule.

Division 2 Statutory appeals

8 Application of this Division

(1)  Subject to subrule (2), this Division applies to an appeal to the Court brought under any existing or future Act, and so applies subject to any provision of or under the Act under which the appeal is brought.

(2)  This Division does not apply to an appeal to which Division 5 or 7 applies.

rule 6.8: Am 28.8.1987; 18.12.1987; 21.6.1991. Subst 22.10.1993.

9 Service

A notice of appeal mentioned in Part 5 rule 10 shall, unless service is dispensed with by order of the Court made at or before the hearing of the appeal, be served on every respondent to the appeal.

10 Affidavits cf DCR r 170 (5).

A party to any appeal to which this Division applies who intends to rely on any affidavit must serve the affidavit on each other party to the appeal (except a party on whom service of the notice of the appeal is dispensed with as mentioned in rule 9) in sufficient time before the hearing to enable that other party to reply on affidavit, or within such period as the Court may order.

rules 6.10, 6.11: Am 17.3.2000.

11 Answer by respondent cf DCR r 392 (7).

A respondent to any appeal to which this Division applies:

(a)  who serves an affidavit in the appeal shall include in the first affidavit so served an address for service, or

(b)  who does not serve such an affidavit shall, before being heard in the appeal, file and serve on the appellant a notice of intention to appear.

rules 6.10, 6.11: Am 17.3.2000.

11A Listing of appeals

(1)  Subject to any order of the Court, a call-over of appeals is to be held on such day or days as the registrar directs.

(2)  At the call-over of an appeal, the registrar:

(a)  must, if satisfied that the appeal is ready for hearing, set it down to be heard, and

(b)  may, if not satisfied that the appeal is ready for hearing, on terms adjourn the appeal to another date for call-over, or refer the appeal to the Court for dismissal.

(3)  Unless the Court otherwise orders, if the registrar at a proclaimed place other than Sydney sets an appeal down to be heard he or she must set it down to be heard at the next convenient sittings of the Court at that proclaimed place.

(4)  If an appeal is referred to the Court by a registrar under subrule (2) (b), the Court may dismiss the appeal if it considers it appropriate to do so.

(5)  The provisions of this rule apply subject to the provisions of rule 12.

rule 6.11A: Ins 31.12.1998. Am 7.7.2000.

12 Setting down for trial

(1)  Where in respect of an appeal to which this Division applies:

(a)  the respondent has served an affidavit or filed a notice of intention to appear, the appeal shall go to trial according to the procedures prescribed in respect of defended actions, or

(b)  the respondent has not served an affidavit or filed a notice of intention to appear, and the appellant has filed an affidavit of service of the notice of appeal showing that the notice of appeal was served on the respondent more than fourteen days previously, the appeal shall go to trial according to the procedures prescribed in respect of undefended actions in which an order for judgment has been made.

(2)  The provisions of this rule apply subject to any order of the Court.

rule 6.12: Am 17.3.2000.

13 (Repealed)

rule 6.13: Am 17.3.1995. Rep 18.10.1996.

14 Procedure generally cf DCR r 392 (8).

Except as prescribed in this Division, the procedures to be observed in respect of an appeal to which this Division applies shall be the procedures prescribed in respect of an action, subject to such modifications to those procedures as may be necessary to give effect to this rule.

Division 3 Proceedings under section 18 of the Public Health Act 1991

pt 6, div 3 (Rules 6.15–6.19): Ins 16.5.1986. Subst 24.12.1999.

15 Interpretation

In this Division:

application means an application under section 18 of the Public Health Act 1991.

Director-General means the Director-General, Department of Health.

medical practitioner means the medical practitioner on whom it is sought, by the order applied for in an application, to serve a notice under section 19 of the Public Health Act 1991.

person concerned means the person whose name and address would be required to be supplied if the Court made the order sought in the application.

pt 6, div 3 (Rules 6.15–6.19): Ins 16.5.1986. Subst 24.12.1999.

16 Application

(1)  An application must be commenced:

(a)  at the proclaimed place nearest to the address at which the medical practitioner practises, or

(b)  at some other proclaimed place that in the special circumstances of the case appears to the registrar for that other proclaimed place to be more convenient.

(2)  An application is to be commenced by the Director-General filing in quadruplicate a notice of the application.

(3)  The registrar is to fix the earliest convenient date for the hearing of the application.

(4)  A notice mentioned in subrule (2) must contain the following information:

(a)  the date on which the application is to be heard,

(b)  the name of the medical practitioner and the address at which he or she practises,

(c)  particulars of the order for which that application is being made,

(d)  particulars of the grounds on which the Director-General applies for the order sought, or a reference to the affidavit in which those particulars are contained,

(e)  a notice to the medical practitioner explaining the requirement imposed on him or her by rule 18,

(f)  a notice to the person concerned explaining the person’s right to be heard in reply to the application without being required to disclose the person’s name or address.

pt 6, div 3 (Rules 6.15–6.19): Ins 16.5.1986. Subst 24.12.1999.

17 Service on medical practitioner

The Director-General must as soon as practicable after the application is commenced (and in any case not later than 14 days before the day fixed for the hearing) cause the following to be served on the medical practitioner:

(a)  a sealed copy of the notice of the application,

(b)  a copy of any affidavit filed with the notice.

pt 6, div 3 (Rules 6.15–6.19): Ins 16.5.1986. Subst 24.12.1999.

18 Medical practitioner to advise registrar

(1)  A medical practitioner on whom a copy of the notice of an application is served must as soon as practicable (and in any case not later than 7 days after service of the application) advise the registrar, either by letter, facsimile or email or by telephone, of the name and address of the person concerned, so far as that name and address are known to the medical practitioner.

(2)  After a medical practitioner has complied with the requirements of subrule (1), the medical practitioner need take no further part in the proceedings on the application other than to comply with any notice authorised by the Court to be served on him or her.

(3)  If a medical practitioner fails to comply with the requirements of subrule (1) and the Director-General files an affidavit of service of the notice of the application on the medical practitioner, the Court may proceed to hear and determine the application even though rule 19 has not been complied with if it thinks fit to do so.

pt 6, div 3 (Rules 6.15–6.19): Ins 16.5.1986. Subst 24.12.1999.

19 Registrar to advise person concerned

(1)  The registrar must as soon as practicable after receiving advice under rule 18 (1) send a sealed copy of the notice of the application by post addressed to the name and address advised to the registrar under that subrule.

(2)  The registrar must, when sending a copy under subrule (1), enclose the copy in an envelope endorsed with the return address of the registrar and marked “Confidential”.

pt 6, div 3 (Rules 6.15–6.19): Ins 16.5.1986. Subst 24.12.1999.

Division 4 Proceedings under the Transport Accidents Compensation Act 1987

pt 6, div 4: Ins 28.8.1987.

20–34 (Repealed)

rules 6.20–6.34: Rep 2.6.1989.

Division 5 Appeals under the Children (Care and Protection) Act 1987

pt 6, div 5: Ins 18.12.1987.

35 Interpretation

(1)  This Division applies to appeals to the Court under section 81 of the Care Act.

(2)  In this Division:

appeal means appeal to the Court under section 81 of the Care Act.

Care Act means the Children (Care and Protection) Act 1987.

registrar of the Children’s Court, with relation to an appeal, means the registrar of the Children’s Court at the place where the decision appealed against was made.

(3)  In this Division, each of child, Children’s Court, Director-General and officer has the same meaning as it has when used in the Care Act.

rules 6.35–6.39: Ins 18.12.1987.

36 Time for appeal

(1)  Subject to subrule (2), an appeal shall be made within 21 days after the date of the decision of the Children’s Court appealed against.

(2)  The Court may, for cause shown, give leave to make an appeal after the expiration of the time prescribed in subrule (1).

rules 6.35–6.39: Ins 18.12.1987.

37 Respondents to appeal

The respondents to an appeal against a decision in respect of the care of a child shall be:

(a)  where the Director-General is not the appellant, the Director-General,

(b)  where the child is of or above the age of 10 years and is not the appellant, the child,

(c)  any person, other than an officer of the appellant, who is responsible for the child and can reasonably be located, and

(d)  any person to whom leave was granted under section 65 (2) of the Care Act in respect of the proceedings leading to the decision and who is not the appellant.

rules 6.35–6.39: Ins 18.12.1987.

38 Venue of appeal

(1)  Subject to the rules, an appeal shall be heard and disposed of by the Court sitting at the proper place in relation to the appeal.

(2)  The Chief Judge may, from time to time, by order published in the Gazette, direct that any appeal commenced by the filing of a notice of appeal at a specified proclaimed place shall be heard at another specified proclaimed place, and where any such direction is given any document to be filed in any such appeal, other than the notice of appeal, shall be filed at that other proclaimed place.

rules 6.35–6.39: Ins 18.12.1987.

39 Making of appeal

An appeal against a decision of the Children’s Court shall be made by filing notice of the appeal at the proclaimed place nearest to the place where the decision was given.

rules 6.35–6.39: Ins 18.12.1987.

40 Notice of appeal

(1)  A notice of appeal against a decision of the Children’s Court shall contain the full name and address of the appellant, the full name and address of the child the subject of the decision, and the identifying number of, or other information sufficient to identify, the proceedings in the Children’s Court leading to the decision.

(2)  A notice of appeal shall contain the grounds of the appeal, or a reference to an affidavit, to be served with the notice of appeal, in which those grounds are contained.

(3)  On the filing of a notice of appeal the registrar shall endorse on the notice and on 2 or more copies of the notice a date, which shall be as early as practicable, for the listing of the appeal before a Judge for directions, and the place where that listing is to occur, and shall return the copies so endorsed to the appellant.

(4)  The appellant shall as soon as practicable after filing the notice of appeal serve on every respondent to the appeal, and on the registrar of the Children’s Court, one of the copies returned to him by the registrar.

(5)    (Repealed)

rule 6.40: Ins 18.12.1987. Am 21.6.1996; 17.3.2000.

41 Children’s Court record

The Registrar of the Children’s Court shall, as soon as practicable after being served with a copy of a notice of appeal against a decision of that Court, forward to the registrar of the District Court at the proclaimed place where the listing of the appeal for directions is to occur the record of the proceedings in the Children’s Court leading to the decision.

rule 6.41: Ins 18.12.1987. Am 21.6.1996.

42 Service of affidavits

A party to an appeal who intends to rely on any affidavit shall serve it on each other party in sufficient time before the hearing to enable the other party to reply on affidavit, or to require the attendance for cross-examination of the person making the affidavit, or within such period as the Court may order.

rule 6.42: Ins 18.12.1987. Am 17.3.2000.

43 Notice of fresh evidence

Where a party to an appeal against a decision intends to adduce on the appeal fresh evidence, or evidence in addition to or in substitution for the evidence on which the decision was made, the party shall, as soon as practicable after becoming aware of the fresh, additional, or substituted evidence, file, and serve on every other party, notice of the nature and extent of that evidence.

rules 6.43, 6.44: Ins 18.12.1987.

44 Withdrawal of appeal

(1)  An appellant may, at any time before the hearing of his appeal commences, withdraw the appeal by filing and serving notice of withdrawal.

(2)  Where an appellant withdraws an appeal the Court may, if it thinks fit on the application of any party, order a party to pay to any other party the costs of the appeal incurred by that other party before service of the notice of withdrawal.

(3)  An application mentioned in subrule (2) may be made on notice of motion under Part 16.

(4)  The provisions of Part 18 (Withdrawal and discontinuance) do not apply to the withdrawal of an appeal.

rules 6.43, 6.44: Ins 18.12.1987.

45 (Repealed)

rule 6.45: Ins 18.12.1987. Rep 21.6.1996.

46 Attendance at hearing

(1)  Where an appellant fails to attend on the hearing of his appeal, the Court may, in its discretion:

(a)  dismiss the appeal,

(b)    (Repealed)

(c)  on terms adjourn the appeal,

and in any such case may make such order as to the costs of the appeal as the Court thinks fit.

(2)    (Repealed)

rule 6.46: Ins 18.12.1987. Am 7.7.2000.

Division 6 Proceedings under section 83 of the Building Services Corporation Act 1989

pt 6, div 6 (Rule 6.47): Ins 16.2.1990.

47 Application

(1)  An application for a suspension order under section 83 of the Building Services Corporation Act 1989 shall be made by filing notice of the application, verified by affidavit, at Sydney.

(2)  As soon as practicable after the filing of a notice referred to in subrule (1) the registrar shall submit the notice and any document filed with the notice to a Judge for directions, and the Judge may give directions as to any or all of the following:

(a)  at what proclaimed place and on what day the application is to be heard and determined,

(b)  whether the application is to be heard in open Court or in chambers,

(c)  what notice, if any, of the application is to be given to the holder concerned, and how any such notice is to be given,

(e)  any other matter relevant to the hearing of the application.

(3)  Nothing in subrule (2) prevents a Judge from making or refusing a suspension order immediately the application for the order is submitted to him under that subrule.

pt 6, div 6 (Rule 6.47): Ins 16.2.1990.

Division 7 Appeals under the Victims Compensation Act 1987

pt 6, div 7: Ins 22.10.1993.

48 Interpretation

(1)  This Division applies to appeals instituted on or after 1 December 1993.

(2)  In this Division:

appeal means appeal under section 29 of the Compensation Act.

Compensation Act means the Victims Compensation Act 1987.

Tribunal means the Victims Compensation Tribunal constituted by the Compensation Act.

rules 6.48–6.50: Ins 22.10.1993.

49 Application to extend time for appeal

An application for further time to institute an appeal must be made in accordance with Division 3 of Part 5.

rules 6.48–6.50: Ins 22.10.1993.

50 Respondent to appeal

The respondent to an appeal is the Victims Compensation Fund Corporation constituted under section 65FA of the Compensation Act.

rules 6.48–6.50: Ins 22.10.1993.

51 Venue of appeal

(1)  Unless the Court otherwise orders, an appeal may be heard and determined by the Court sitting only at Sydney, or, if the appellant so chooses, at:

(a)  if the determination appealed from was made after a hearing under Part 4 of the Compensation Act—the nearest proclaimed place to the place where the determination was made, or

(b)  if the determination appealed from was made without such a hearing—the nearest proclaimed place to the appellant’s place of abode.

(2)    (Repealed)

(3)  An appellant may make a choice as referred to in subrule (1) by instituting the appeal at the proclaimed place at which the appeal is to be heard.

rule 6.51: Ins 22.10.1993. Am 11.2.1994; 18.10.1996.

52 Making of appeal

An appeal shall be instituted by filing notice of the appeal at the proclaimed place at which the appeal is to be heard.

rule 6.52: Ins 22.10.1993.

53 Notice of appeal

(1)  A notice of appeal shall contain the full name and address of the appellant, and the identifying number of, or other information sufficient to identify, the proceedings in the Tribunal leading to the determination appealed from.

(2)  A notice of appeal shall contain the grounds of the appeal in full (including any question of law intended to be raised, and any ground on which it is to be claimed that the determination appealed from was in an insufficient amount), or a reference to an affidavit or affidavits, to be served with the notice, in which those grounds are contained in full.

(3)  On the filing of a notice of appeal the registrar shall endorse on the notice and on 2 or more copies of the notice a date for the call-over of the appeal under rule 55 and shall return the copies so endorsed to the appellant.

(4)  The appellant shall, as soon as practicable after filing the notice of appeal, deliver to the Registrar of the Tribunal 2 of the copies returned to the appellant by the registrar, and that delivery shall constitute service of the notice of appeal on the respondent and the Registrar of the Tribunal.

(5)  The date for the call-over of an appeal shall, subject to rule 55, be the earliest date which is convenient to the Court and which will reasonably allow for compliance with rule 54.

rule 6.53: Ins 22.10.1993. Am 17.3.2000.

54 Tribunal record

The Registrar of the Tribunal shall, as soon as practicable after being served with a copy of a notice of appeal as provided in rule 53 (4), forward to the registrar of the District Court at the proclaimed place at which the notice was filed the record of the proceedings in the Tribunal leading to the determination appealed from.

rule 6.54: Ins 22.10.1993.

55 Listing of appeal

(1)  Subject to any order of the Court, a call-over of appeals shall be held on such day or days as the registrar directs.

(2)  At the call-over of an appeal the registrar:

(a)  shall, if satisfied that the appeal is ready for hearing, set it down to be heard, and

(b)  may, if not satisfied that the appeal is ready for hearing, on terms adjourn the appeal to another date for call-over, or refer the appeal to the Court for dismissal.

(3)    (Repealed)

(4)  Unless the Court otherwise orders, where the registrar at a proclaimed place other than Sydney sets an appeal down to be heard he shall set it down to be heard at the next convenient sittings of the Court at that proclaimed place.

(5)  If an appeal is referred to the Court by a registrar under subrule (2) (b), the Court may dismiss the appeal if it considers it appropriate to do so.

(6)  Subject to this rule, the functions of the registrar with respect to, and the procedure at and in respect of, the call-over of an appeal shall be the functions and procedure provided in the case of the call-over of an action.

rule 6.55: Ins 22.10.1993. Am 18.10.1996; 7.7.2000.

56 Evidence

(1)  This rule applies subject to any order of the Court.

(2)  Material which was considered by the Tribunal in reaching the determination appealed from is admissible as evidence on the appeal, unless notice of objection to that admissibility (on which objection the Court shall rule) is given by a party to the other party, and to the registrar, within 28 days after the institution of the appeal.

(3)  Evidence which is available through the operation of subrule (2) shall not be adduced otherwise than through that operation.

(4)  Subject to this rule, evidence on an appeal shall be given by affidavit.

(5)  Medical evidence on an appeal shall be given by report of a medical practitioner.

(6)  A party may require the attendance for cross-examination of the deponent to an affidavit, the maker of a report, or a person who gave evidence in the proceedings before the Tribunal, but only if the party:

(a)  in the case of an affidavit or report tendered, or of a person who gave evidence, in the proceedings before the Tribunal—within 28 days after the institution of the appeal, or

(b)  in any other case—as soon as practicable, but in any event not later than 14 days before the hearing of the appeal,

gives to the other party and to the registrar written notice of the requirement for attendance.

(7)  Where a person required to attend for cross-examination is cross-examined by a party, the other party may re-examine the person.

rule 6.56: Ins 22.10.1993.

57 Service of affidavits and reports

A party to an appeal who intends to rely on an affidavit or report which was not relied on before the Tribunal must serve the affidavit or report on the other party before the call-over of the appeal, or within such other period as may be consented to by the other party or ordered by the Court.

rule 6.57: Ins 22.10.1993. Am 17.3.2000.

58 Withdrawal of appeal

The appellant may, at any time before the hearing of the appeal commences, withdraw the appeal by filing and serving notice of withdrawal.

rule 6.58: Ins 22.10.1993.

59 Attendance at hearing

(1)  Where the appellant fails to attend on the hearing of an appeal, the Court may, in its discretion:

(a)  dismiss the appeal,

(b)    (Repealed)

(c)  on terms adjourn the appeal,

and in any such case may make such order as to the costs of the appeal as the Court thinks fit.

(2)    (Repealed)

rule 6.59: Ins 22.10.1993. Am 7.7.2000.

60 (Repealed)

rule 6.60: Ins 22.10.1993. Am 17.3.1995. Rep 18.10.1996.

Division 7A Appeals under section 39 of the Victims Compensation Act 1996

pt 6, div 7A (Rules 6.60A–6.60E): Ins 27.6.1997.

60A Interpretation

In this Division:

appeal means appeal under section 39 of the Compensation Act.

application for leave means application for the leave of the District Court under section 39 (1) of the Compensation Act to institute an appeal.

Compensation Act means the Victims Compensation Act 1996.

Tribunal means the Victims Compensation Tribunal constituted under section 59 of the Compensation Act.

pt 6, div 7A (Rules 6.60A–6.60E): Ins 27.6.1997.

60B Venue

Subject to any order made under section 40 of the Act, an application for leave and an appeal may be heard and determined at any proclaimed place.

pt 6, div 7A (Rules 6.60A–6.60E): Ins 27.6.1997.

60C Application for leave

(1)  An application for leave must be made by notice of motion under Part 16.

(2)  An application for leave must be filed and served within 2 months of the date on which the relevant notice of the determination sought to be appealed against was served as referred to in section 39 (2) of the Compensation Act.

(3)  An application to extend the time prescribed in subrule (2), or to allow further time to appeal under section 39 (2) of the Compensation Act, must be made by notice of motion under Part 16.

(4)  An application for leave must include or be accompanied by a statement identifying the determination sought to be appealed against, a statement of the question of law on which it is sought to appeal and the grounds of the proposed appeal.

(5)  The respondent to a motion referred to in subrule (1) or (3) is the Victims Compensation Fund Corporation constituted under section 66 of the Compensation Act.

(6)  The applicant shall, as soon as practicable after filing a notice of motion referred to in subrule (1) or (3), deliver a copy of the notice of motion and any document accompanying it as required by subrule (4) to the Registrar of the Tribunal.

pt 6, div 7A (Rules 6.60A–6.60E): Ins 27.6.1997.

60D Tribunal record

The Registrar of the Tribunal shall, as soon as practicable after delivery of a copy of a notice of motion under rule 60C (6), forward to the registrar of the District Court at the proclaimed place at which the appeal is to be heard the record of the proceedings in the Tribunal leading to the determination sought to be appealed against.

pt 6, div 7A (Rules 6.60A–6.60E): Ins 27.6.1997.

60E Appeal

Where the Court grants leave to institute an appeal, it may give directions as to the extent, if any, to which matter which was before it, and decisions made 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.

pt 6, div 7A (Rules 6.60A–6.60E): Ins 27.6.1997.

Division 8 Applications and appeals under section 208M of the Legal Profession Act 1987

pt 6, div 8 (Rules 6.61–6.63): Ins 23.6.1995.

61 Interpretation

In this Division:

appeal means appeal to the Court under section 208M of the subject Act.

application for leave means application under section 208M (2) of the subject Act seeking leave of the Court to appeal to the Court against a determination of a costs assessor.

subject Act means the Legal Profession Act 1987.

pt 6, div 8 (Rules 6.61–6.63): Ins 23.6.1995.

62 Application for leave

(1)  An application for leave may be made by notice of motion under Part 16.

(2)  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.

(3)  The Court may extend the time prescribed in subrule (2) at any time.

(4)  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.

(5)  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.

(6)  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.

(7)  Nothing in this rule prevents the Court from dealing with the application in chambers.

pt 6, div 8 (Rules 6.61–6.63): Ins 23.6.1995.

63 Appeal

(1)  Where the Court grants leave to appeal under section 208M (3) of the subject Act, it may give directions as to the extent, if any, to which matter which was before it, and decisions made 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.

(2)  Unless the Court otherwise orders, an appeal shall be heard and determined in chambers, and not in the presence of the parties or their representatives.

pt 6, div 8 (Rules 6.61–6.63): Ins 23.6.1995.

Division 9 Applications under Contractors Debts Act 1997

64 Application for order issuing debt certificate

(1)  The evidence in support of an application for a certificate under section 7 (1) of the Contractors Debts Act 1997 must include evidence showing the following:

(a)  how much of the judgment debt is for work carried out or for materials supplied (the subject debt),

(b)  whether the subject debt consists of daily, weekly or monthly wages,

(c)  if the subject debt so consists—whether the subject debt exceeds 120 days’ wages,

(d)  if the subject debt so consists and exceeds 120 days’ wages—an amount to be included in the certificate that does not exceed 120 days’ wages,

(e)  whether work resulting in the subject debt was done on something moveable and, if so, whether it would be practicable for the applicant to exercise a lien by retaining the thing in the applicant’s possession.

(2)  The applicant may, unless the Court orders otherwise, proceed without service of notice of the application or other documents on any person.

(3)  The application may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of any person.

65 Application for attachment order

On an application under section 14 (1) of the Contractors Debts Act 1997, the applicant may, unless the Court orders otherwise, proceed without service of notice of the application or other documents on any person.

Part 7 Causes of action and parties

1 Joinder of causes of action SCR Pt 8, 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 of a deceased person or administrator of the estate of a deceased person in respect of one or more of the causes of action, and in his 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 SCR Pt 8, 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 SCR Pt 8, r 3.

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

(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 and applies unless the Court gives leave to the contrary.

4 Leave under rules 1, 2 and 3 SCR Pt 8, r 4.

(1)  The Court may grant leave under rule 1 or rule 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 or rule 2 or rule 3 (2) either before or after lodging his originating process and may apply without serving notice of the motion on any person on whom the originating process has not been served.

rule 7.4: Am 14.6.1985.

5 Common liability SCR Pt 8, 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 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 SCR Pt 8, r 6.

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

7 Misjoinder and non-joinder of parties SCR Pt 8, 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 cf SCR Pt 8, 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 him or by any party or of its own motion, may, on terms, order that he 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 he has consented in writing to be so added.

rule 7.8: Am 6.12.1996.

9 Removal of parties SCR Pt 8, r 9.

Where a party:

(a)  has been improperly or unnecessarily joined, or

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

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

10 Death, transmission etc SCR Pt 8, 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 re-arrangement 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 SCR Pt 8, r 11.

(1)  Without limiting the generality of the powers of the Court under rules 8, 9 and 10, orders under those rules for the further conduct of the 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 rule 10, the date of commencement of the action so far as concerns him shall be the date of filing of the originating process amended so as to add him as a party or, where an amended originating process is not filed, the date of the amendment adding him as a party.

rule 7.11: Am 14.6.1985.

12 Failure to proceed after death of party SCR Pt 8, r 12.

(1)  Where:

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

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

the Court may, 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 thereon, as the case may be, survives on the death.

(2)  On making an order under subrule (1), the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the action.

12A Executors and administrators

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

rule 7.12A: Ins 14.6.1985.

13 Deceased person SCR Pt 8, r 16.

(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 he 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.

14 Conduct SCR Pt 8, r 17.

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

15 Representation: concurrent interests SCR Pt 8, r 13.

(1)  Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.

(2)  At any stage of proceedings pursuant to this rule the Court, on the application of the plaintiff, may, on terms, appoint any one or more of the defendants or other persons (as representing whom the defendants are sued) to represent all, or all except one or more, of those persons in the proceedings.

(3)  Where, under subrule (2), the Court appoints a person who is not a defendant, the Court shall make an order under rule 8 adding him as a defendant.

(4)  A judgment entered or order made in proceedings pursuant to this rule shall be binding on all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.

(5)  An application for leave under subrule (4) shall be made by motion, notice of which shall be served personally on the person against whom it is sought to enforce the judgment or order.

(6)  Notwithstanding that a judgment or order to which an application under subrule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.

(7)  This rule does not apply to proceedings concerning:

(a)  the administration of the estate of a deceased person, or

(b)  property subject to a trust.

rule 7.15: Ins 22.11.1974.

Part 8 Service

1 Interpretation

In this Part, unless the context or subject matter otherwise indicates or requires:

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 the rules or any order of the Court to be served in the conduct of any proceedings.

2 Who may serve process cf DCR r 421.

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

3 Mode of service cf DCR r 438.

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

SCR Pt 9, r 1.

(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 him or by leaving it in his presence and informing him of its nature.

cf SCR Pt 9, r 3 (1).

(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 sixteen years old and apparently residing at that residence or employed at that place of business.

cf DCR r 82.

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

4 When service may not be effected cf DCR r 439.

(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 day on which the registries need not be open under Part 2 rule 4 (4).

rule 8.4: Am 24.8.1984; 19.8.1988.

5 Doubtful service

(1)  Where service of any document has not been personal, and the Court is satisfied on the evidence before it 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 shall not allow any fresh step in the proceedings to be taken against the party, but shall adjourn or dismiss the proceedings, or order fresh process to issue, as to it may seem just.

cf DCR r 83.

(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.

cf SCR Pt 9, r 11.

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

rule 8.5: Am 7.7.2000.

6 Service on solicitor (Originating process) cf SCR Pt 9, r 7 (2).

Where a solicitor makes on a copy of any originating process a note that he accepts service of the process on behalf of any person, the process shall be taken to have been duly served on that person on the date on which a copy of the process was delivered to the solicitor or left at his office.

7 Service on solicitor (Other documents) cf DCR r 419.

(1)  This rule does not apply to or in respect of the service of any originating process, examination summons, summons to show cause why a writ against the person should not issue, or document as to which personal service is required.

(2)  Where a party has on the record of the Court a solicitor acting for him, 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 his office, shall be taken to be good service on the party.

(3)    (Repealed)

rule 8.7: Am 30.7.1976; 14.6.1985; 5.9.1986.

7A Service under Crown Proceedings Act 1988

Personal service of a document on the Crown Solicitor for the purposes of section 6 of the Crown Proceedings Act 1988 may be effected by handing a copy of the document, at the office of the Crown Solicitor, to a person apparently employed in the service of the Crown Solicitor.

rule 8.7A: Ins 17.2.1989.

8 Address for service cf SCR Pt 9, r 6.

(1)  An address for service shall be the address of a place at which documents in the proceedings 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 proceedings may be posted for the person.

(2)  The address for service in any proceedings of a person who has on the record of the Court a solicitor acting for him in the proceedings shall be the office of the solicitor, or of his agent in the place which is the proper place in relation to the proceedings.

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

9 Service at address for service

(1)  This rule does not apply to or in respect of the service of any originating process, examination summons, summons to show cause why a writ against the person should not issue, or document as to which personal service is required.

(2)  Where a person notifies, in any document filed by him, an address for service, leaving a copy at, or sending a copy by post addressed to the person at, that address for service 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 two days after the copy is so left.

(4)  Where the address for service of a person to be served with a document is the office of a solicitor, and the solicitor has added to that address “will accept service to fax number” together with the solicitor’s facsimile transmission number, transmitting to that number the information contained in the document by a means that reproduces, in the hands of the recipient, that information as it appears in the document shall be taken to be good service of the document on the person on a day one day after the information is so transmitted.

rule 8.9: Am 14.6.1985; 5.9.1986; 28.8.1992.

10 Husband and wife cf SCR Pt 9, r 13.

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

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

11 Prisoner DCR r 93.

Where a person confined in a prison is a party, personal service on him may be effected by delivering a copy at the prison to the governor thereof.

12 Corporation cf SCR Pt 9, r 3 (2).

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, clerk, secretary, treasurer or other similar officer of the corporation.

13 Where party “keeps house” cf DCR r 96.

Where a person or party keeps the place of residence or place of business of a party closed, or by any means prevents access being obtained thereto, and remains therein in order to obstruct or hinder the delivering to the person or party 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 of any fence or wall surrounding it, as near as practicable to the principal door or entrance, and

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

rule 8.13: Am 19.8.1988.

14 Where violence threatened cf DCR r 98.

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, he may deliver the copy by leaving it as near as practicable to the person to whom he intended to deliver it.

15 Service under contract SCR Pt 9, r 9.

Where a party has, before or after the commencement of any proceedings, agreed that any document in the proceedings may be served on him or on some other person on his 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 SCR Pt 9, r 10.

(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 SCR Pt 9, r 4A.

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

Part 9 Pleading and particulars

Division 1 Pleading

1 Application and interpretation cf SCR Pt 1, r 8 (1).

(1)  This Part applies to proceedings commenced by statement of claim, but, subject to the rules, not to proceedings commenced otherwise.

SCR Pt 15, r 1.

(2)  In this Part, unless the context or subject matter otherwise indicates or requires:

plead means include in a pleading particulars of.

pleading means statement of claim notice of grounds of defence or notice of crossclaim, as the case may require.

rule 9.1: Am 18.10.1996.

2 Paragraphs SCR Pt 15, r 6.

Where a pleading alleges or otherwise deals with several matters:

(a)  the pleading shall be divided into paragraphs,

(b)  each matter shall, so far as convenient, be put in a separate paragraph, and

(c)  the paragraphs shall be numbered consecutively.

3 Facts, not evidence SCR Pt 15, r 7.

(1)  A pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved.

(2)  Subrule (1) has effect subject to this Part and to Part 5.

4 Brevity SCR Pt 15, r 8.

A pleading shall be as brief as the nature of the case admits.

5 Documents and spoken words SCR Pt 15, r 9.

Where any document is, or spoken words are, referred to in a pleading:

(a)  the effect of the document or of the spoken words shall, so far as material, be stated, and

(b)  the precise terms of the document or spoken words shall not be stated, except so far as those terms are themselves material.

6 Presumed facts SCR Pt 15, r 10.

A party need not plead a fact if:

(a)  the fact is presumed by law to be true, or

(b)  the burden of disproving the fact lies on the other party,

except so far as may be necessary to meet a specific denial of that fact by the other party in his pleading.

7 Conditions precedent SCR Pt 15, r 11.

Where it is a condition precedent necessary for the case of a party in any pleading that:

(a)  a thing has been done,

(b)  an event has happened,

(c)  a state of affairs exists, or existed at some time or times,

(d)  the party is and has been at all material times ready and willing to perform an obligation, or

(e)  the party was at all material times ready and willing to perform an obligation,

a statement that:

(f)  the thing has been done,

(g)  the event has happened,

(h)  the state of affairs exists, or existed at that time or those times,

(i)  the party is and has been at all material times ready and willing to perform the obligation, or

(j)  the party was at all material times ready and willing to perform the obligation,

shall be implied in the pleading.

rule 9.7: Subst 6.10.1995.

8 Money claims SCR Pt 15, r 12.

(1)  This rule applies where the plaintiff claims money payable by the defendant to the plaintiff for:

(a)  goods sold and delivered by the plaintiff to the defendant,

(b)  goods bargained and sold by the plaintiff to the defendant,

(c)  work done and materials provided by the plaintiff for the defendant at his request,

(d)  money lent by the plaintiff to the defendant,

(e)  money paid by the plaintiff for the defendant at his request,

(f)  money had and received by the defendant for the use of the plaintiff,

(g)  interest upon money due from the defendant to the plaintiff and forborne at interest by the plaintiff to the defendant at his request, or

(h)  money found to be due from the defendant to the plaintiff on accounts stated between them.

(2)  Subject to subrules (3) and (4), it shall be sufficient to plead the facts in the manner appearing in subrule (1).

(3)  The defendant may, within 28 days after service of the statement of claim, file and serve on the plaintiff a notice that the defendant requires the plaintiff to plead the facts on which he relies in accordance with this Part other than this rule.

(4)  Where a defendant files and serves a notice pursuant to subrule (3):

(a)  the plaintiff shall, within 28 days after service of the notice upon him, amend his statement of claim so as to plead the facts on which he relies in accordance with this Part other than this rule, and

(b)  the time within which the plaintiff may not have an order for judgment made or default judgment entered up shall not expire before the lapse of 28 days after service on the defendant of the amended statement of claim or of notice of the amendments to the statement of claim.

(5)  Part 17 rules 7, 8 and 9 apply to an amendment under this rule.

(6)  A plaintiff may amend his statement of claim under Part 17 rule 2 notwithstanding that he has amended it under this rule.

(7)  This rule does not affect the provisions of this Part concerning particulars.

rule 9.8: Am 3.12.1976.

9 Matters for specific pleading SCR Pt 15, r 13.

(1)  The plaintiff shall, in his originating process, plead specifically any matter which, if not pleaded specifically, may take the defendant by surprise.

(2)  In a notice of grounds of defence or subsequent pleading the party pleading shall plead specifically any matter—for example, performance, release, any statute of limitation, extinction under Division 1 of Part 4 of the Limitation Act 1969, of a right or title, voluntary assumption of risk, causation of accident by mechanical defect not known to, or discoverable by, the defendant, fraud or any fact showing illegality:

(a)  which he alleges makes any claim, defence or other case of the opposite party not maintainable,

(b)  which, if not pleaded specifically, may take the opposite party by surprise, or

(c)  which raises matters of fact not arising out of the preceding pleading.

rule 9.9: Subst 14.6.1985.

10 Contributory negligence cf SCR Pt 15, r 14.

A party who relies on contributory negligence shall plead the contributory negligence.

rule 9.10: Am 14.6.1985.

11 New matter SCR Pt 15, r 16.

A party may plead any matter notwithstanding that the matter has arisen after the commencement of the proceedings.

12 Departure SCR Pt 15, r 17.

(1)  A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with a previous pleading of his.

(2)  Subrule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative.

13 Points of law SCR Pt 15, r 18.

A party may by his pleading raise any point of law.

14 Admissions and traverse SCR Pt 15, r 20.

(1)  Subject to subrule (3), an allegation of fact made by a party in his pleading shall stand admitted by any opposite party required to plead to that pleading unless it is traversed by that opposite party in his pleading or an implied joinder of issue under rule 15 operates as a denial of it.

(2)  A traverse may be made either by a denial or by a statement of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation.

(3)  Where a pleading makes an allegation of the suffering of damage, or an allegation of an amount of damages, a pleading to that pleading by an opposite party shall be taken to traverse the allegation, unless the allegation is specifically admitted.

15 Joinder of issue cf SCR Pt 15, r 21.

(1)  No express joinder of issue shall be required in any proceedings.

(2)  There shall be an implied joinder of issue on any ground of defence filed.

(3)  An implied joinder of issue operates as a denial of every allegation of fact made in the pleading on which there is an implied joinder of issue except to the extent that any such allegation is stated between the parties to be admitted.

16 Set-off SCR Pt 15, r 25.

Where a claim by a defendant to an amount (whether ascertained or not) is relied on as a defence to the whole or part of a claim made by a plaintiff, it may be included in the notice of grounds of defence and set off against the plaintiff’s claim, whether or not the defendant also pleads a cross-claim for that amount.

17 Embarrassment etc SCR Pt 15, r 26; cf Act No 23, 1912, s 75A.

(1)  Where a pleading:

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

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

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

the Court may, on the application of a party or of its own motion, at any stage of the proceedings, on terms, order that the whole or any part of the pleading 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 to:

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

(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,

as the Court thinks fit.

rule 9.17: Am 28.3.2002.

17A Actions transferred from Supreme Court

(1)  This rule applies to proceedings which were commenced in the Supreme Court by summons and transferred to the Court by order of the Supreme Court made under section 143 of the Act without a statement of claim having been filed.

(2)  In proceedings to which this rule applies the Court may, at any time and if it thinks fit:

(a)  direct, where appropriate, the filing of a statement of agreed issues,

(b)  order that any affidavits or other documents filed in the proceedings stand as pleadings, or

(c)  make orders for the filing of a statement of claim or other pleadings.

(3)  Subject to any order of the Court, where the Court makes an order under subrule (2) (c) for the filing of a statement of claim:

(a)  the plaintiff shall, on the day of filing, serve the statement of claim on the defendant, and

(b)  the defendant shall file and serve notice of the grounds of his defence within 28 days after service of the statement of claim on him.

rule 9.17A: Ins 26.2.1993.

18 General issue abolished SCR Pt 15, r 27.

(1)  A party shall not plead the general issue.

(2)  Subrule (1) has effect notwithstanding anything in any Act enacted before the commencement of the rules.

Division 2 Particulars

19 Particulars cf SCR Pt 16, r 1.

(1)  A party pleading shall give such particulars of any claim, defence or other matter pleaded by him as are necessary to enable the opposite party to identify the case he is required by the pleading to meet.

(2)  Rules 20, 21, 22 and 23 do not affect the generality of subrule (1).

19A “Scott Schedule”

(1)  In building and other technical cases where there are several items in dispute as to liability or amount or both, the party who makes the claim shall, as soon as practicable, serve on the other party or parties a copy of the claim in the approved form (in these rules called a Scott Schedule) and shall forthwith file a notice that such Scott Schedule has been served. The form shall be prepared on brief paper used lengthwise.

(2)  The other party or parties shall, within 21 days after service of the Scott Schedule, complete and file it and at the same time serve a copy on the party making the claim.

(3)    (Repealed)

(4)  The Judge may refuse to hear an action, or the Court may refuse to fix a date for the hearing of the action, in the event of non-compliance with this rule.

rule 9.19A: Ins 30.7.1976. Am 2.6.1989; 24.4.1998.

19B (Repealed)

rule 9.19B: Ins 6.7.1984. Rep 14.6.1985.

20 Fraud etc SCR Pt 16, r 2.

A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies.

21 Condition of mind SCR Pt 16, r 3.

(1)  A party pleading any condition of mind shall give particulars of the facts on which he relies.

(2)  In subrule (1) condition of mind includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge.

22 Negligence; breach of statutory duty SCR Pt 16, r 4.

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

(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 in the pleading.

(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 he relies.

23 Out-of-pocket expenses etc cf SCR Pt 16, r 5; cf DCR r 61.

Where a party pleading claims damages and seeks to include in his claim moneys which he 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, he shall give the best particulars he can give of those moneys.

24 Amounts claimed for property damage cf Act No 15, 1942, s 39.

Where a party pleading claims damages in respect of the death of or bodily injury to any person caused by or arising out of the use of an insured motor vehicle as well as damages in respect of any other matter, he shall give the best particulars he can give, including the amount which he claims for damages, in respect of that other matter.

25 Manner of giving particulars SCR Pt 16, r 6.

(1)  Where any of rules 19 to 24 require particulars of any pleading to be given, the particulars shall be set out in the pleading, or, if that is inconvenient, shall be set out in a separate document referred to in the pleading and that document shall be filed and served with the pleading.

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

(a)  subrule (1) shall 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.

26 Order for particulars cf SCR Pt 16, r 7.

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

(a)  particulars of any claim, defence or other matter stated in his pleading, or

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

(c)  a completed Scott Schedule.

(1A)  The Court may, on terms, order a party to proceedings commenced other than by statement of claim to serve and file on any other party such particulars relating to the proceedings as may be specified in the order.

(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 he alleges knowledge, particulars of the facts on which he relies, and

(b)  where he alleges notice, particulars of the notice.

(3)  Where the Court makes an order under this rule, it may (on the application of a party or of its own motion), if it thinks fit, by the same or subsequent order direct that, if the order made under this rule is not complied with within the period stated by the Court:

(a)  any pleading filed by the party in default is struck out, or

(b)  any proceedings brought by the party in default are stayed until the order made under this rule is complied with, or

(c)  any proceedings brought by the party in default are dismissed.

(4)  The Court shall not make an order under this rule relating to proceedings commenced by statement of claim before the filing of a notice of grounds of defence in any proceedings unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant in the proceedings to plead, or for some other special reason.

rule 9.26: Am 30.7.1976; 7.7.2000; 28.3.2002.

27 Personal injury actions

(1)  This Rule applies to proceedings in which a claim is made for damages in respect of personal injuries other than a claim that is accompanied by a notice of motion seeking a separate trial on the issue of liability or notice of motion to place the action in the not ready list.

(2)  In proceedings to which this rule applies (other than proceedings which are maintainable by virtue of the Compensation to Relatives Act 1897) the plaintiff shall, on serving the statement of claim or as soon as practicable after serving the statement of claim, serve on the defendant’s insurer or solicitor a statement:

(a)  setting out the matters specified in subrule (3), and

(b)  that is accompanied by 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, and

(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 claim for domestic assistance or attendant care, and

(c)  that is accompanied by 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 following matters are to be set out in a statement referred to in subrule (2) (a):

(a)  particulars of injuries received,

(b)  particulars of continuing disabilities,

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

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

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

(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 during each period of employment, and

(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 the plaintiff 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, and

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

(v)  if 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.

(4)  Without limiting the generality of subrule (2), the documents required under that subrule to be served shall, where a claim is made in respect of loss of income, include:

(a)  a letter from the employer or employers (if any) of the plaintiff immediately before the accident the subject of the action, providing particulars of:

(i)  the dates on which the plaintiff was absent from work due to the accident, and

(ii)  the total net remuneration lost by the plaintiff in respect of that absence, including overtime, and

(iii)  if the plaintiff returned to work for that employer, the plaintiff’s classification and duties, and any alteration in the remuneration paid to the plaintiff, after that return, and

(iv)  if that employment has been terminated, the date of and reason for the termination, and

(b)  if the plaintiff was self-employed immediately before the accident—copies of any accountants’ reports or other documents on which the plaintiff intends to rely to establish his or her pre-accident income, and

(c)  copies of the plaintiff’s income tax returns relating to income received during the period of 2 financial years ending immediately before the financial year which included the date of the accident and of any income tax return lodged by the plaintiff since the date of the accident.

(5)  If any, or any part of any, of the statements, documents and reports required to be served by subrule (4) (a), (b) or (c) cannot be served, a statement of the reasons why it cannot be served shall be included in the documents to be served.

(6)  In proceedings in which this rule applies and which are maintainable by virtue of the Compensation to Relatives Act 1897, the plaintiff shall, on serving the statement of claim or as soon as practicable after serving the statement of claim, serve on the defendant’s insurer or solicitor in respect of each person on whose behalf the action is brought:

(a)  a statement as to:

(i)  the person’s name, address, relationship to the deceased person the subject of the action, marital status and any anticipated alteration to that status, and

(ii)  whether the dependency of the person on the deceased person is claimed to have been whole or partial, the circumstances in which the person received support from the deceased person, and the quantum of that support during the 12 month period immediately before the death of the deceased person, and

(b)  a copy or extract of the person’s birth certificate, and, if the person has been married, a copy of the person’s marriage certificate, and

(c)  a letter from the employer (if any) of the deceased person immediately before the accident the subject of the action, providing particulars of the deceased person’s remuneration and prospects of promotion at the date of his or her death, and

(d)  copies of the deceased person’s income tax returns relating to income received during the period of 2 financial years ending immediately before the financial year which included the date of his or her death, and

(e)  copies of bank statements, financial records, and any other documents on which the plaintiff intends to rely to establish the extent of the support and other benefits provided to the person by the deceased person, covering a period of not less than 12 months immediately before the date of the death of the deceased person, and

(f)  copies of all documents, including accounts and receipts, in support of any claim for the cost of a headstone, funeral, monumental mason or other expenses relating to the death of the deceased person, and

(g)  copies of documents evidencing the net value of the estate of the deceased person.

(7)  If any, or any part of any, of the statements, documents and reports required to be served by subrule (6) (a)–(g) cannot be served, a statement of the reasons why it cannot be served shall be included in the documents to be served.

(8)  The statement, documents and reports required under subrule (2) or (6) to be served shall be as final and complete as to the plaintiff’s case as they can, with the exercise of reasonable diligence, be made, and shall contain such information as the plaintiff can then provide as to any medical examination of the plaintiff to be conducted after the date of service.

(9)  If, after service of any statement, document or report mentioned in subrule (2) or (6) and before the hearing of the proceedings, 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 separately pleaded such advice as is necessary to make that information accurate and complete.

(10)  The plaintiff shall, at least one month before the day first scheduled for a status conference in the proceedings, file a schedule of all the documents served as required under subrule (2) or (6) and advice given as required under subrule (9), including the dates of service of the documents or giving of advice.

(11)  If the court or registrar, in conducting a review or status conference or otherwise, is of the opinion that the plaintiff has not sufficiently complied with this rule:

(a)  the Court may dismiss the proceedings, or

(b)  the Court or registrar may make such other order as the Court or registrar thinks fit.

rule 9.27: Ins 24.4.1998. Am 30.10.1998; 31.12.1998; 7.7.2000.

Part 10 Defences and objections

1 Defences

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

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

(3)  A defendant who files notice of the grounds of his defence under this rule shall as soon as practicable serve on the plaintiff a copy of the notice and of any affidavit filed with it.

(4)  A defendant shall not, at the trial 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 him under this rule.

(5)    (Repealed)

rule 10.1: Subst 14.6.1985. Am 11.9.1987; 28.4.1989.

1A Defence of tender

(1)  Where a defence of tender before commencement of the proceedings is pleaded, the defendant shall pay into 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 paid into Court.

(2)  On paying the money into Court the defendant shall file notice of the payment into Court.

(3)  The plaintiff may accept the money by filing a notice of acceptance.

(4)  Where the plaintiff accepts the money, the proceedings shall be stayed in relation to the defence.

(5)  Whether or not accepted, the money shall not be paid out except by order of the Court.

(6)  A party filing a notice under this rule shall, on the day of filing, serve the notice on each other party to the proceedings.

rule 10.1A: Ins 28.4.1989.

2 Verification of defences cf SCR Pt 15, r 23.

(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 him.

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

(a)  by the defendant,

(b)  where the defendant is a disable person—by his guardian ad litem,

(c)  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,

(d)  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,

(e)  where the defendant is the Crown or an officer of the Crown being sued in his official capacity—by an officer of the Crown having knowledge of the facts so far as they are known to the Crown.

(3)  Subject to subrules (5), (6), (7), (8) and (9), 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,

(b)  state:

(i)  as to any allegations of fact which the notice of grounds of defence traverses by a denial—that the deponent believes that the allegations are untrue,

(ii)  as to any allegations of fact which the notice of grounds of defence traverses by statements of non-admission—that, having made reasonable enquiries, the deponent does not know that the allegations are true,

(iii)  as to any allegations of fact in the notice of grounds of defence—that the deponent believes that the allegations are true.

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

(5)  Where a defendant is unable in the affidavit verifying his notice of grounds of defence to comply with subrule (3) (b), the affidavit may comply with so much of that paragraph as can be complied with and state why the defendant is unable to comply with the remainder.

(6)  Subject to any direction under subrule (8), the filing of an affidavit under subrule (5) shall be a sufficient compliance with the requirements of subrule (1).

(7)  A plaintiff may, within 14 days after receipt by him of an affidavit under subrule (5) relating to a notice of grounds of defence, apply to the Court for a direction that the defendant verify or further verify the notice of grounds of defence and for such other directions as may be appropriate.

(8)  Where a plaintiff applies to the Court under subrule (7), the Court may direct the defendant to file and serve such further affidavit (if any), by such deponent and as to such facts as the Court may determine.

(9)  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.

(10)  A defendant may apply for an order under subrule (9) without serving notice of the motion.

(11)  In subrule (2) (e), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.

rule 10.2: Subst 14.6.1985. Am 17.2.1989.

3 Notice of objection to jurisdiction cf DCR r 143.

(1)  A notice of objection to the jurisdiction of the Court to try an action shall be filed by the defendant in duplicate within twenty-eight days after service of the statement of claim in the action.

(1A)  A defendant who files notice of objection to the jurisdiction of the Court under subrule (1) shall as soon as practicable serve on the plaintiff a copy of the notice.

(2)  Judgment shall not be given or entered up in an action in which a notice of objection has been filed as mentioned in subrule (1) unless the Court shall make an order dismissing the objection.

rule 10.3: Am 11.9.1987.

4 Notice of appearance

Where in an action:

(a)  a defendant who has not filed notice of the grounds of his defence, or

(b)  a person who is not a party to the action,

seeks to make any application or objection to the Court, the defendant or other person shall before making the application or objection file, and serve on every other party to the action who has separately pleaded, a notice of appearance.

rule 10.4: Am 29.2.1980. Rep 14.6.1985. Ins 16.4.1992.

5 Proof of payments Workers’ Compensation Act 1926 cf SCR Pt 77, r 37.

A defendant pleading a defence under section 63 (5) or section 64 (1) (c) of the Workers’ Compensation Act 1926:

(a)  need not in his defence state the amount of payments made under the Act,

(b)  may, by affidavit filed and served on the plaintiff but in any event not later than three days before the date for which the action is set down for trial or the date of commencement of the sittings at which the action is set down for trial, adduce evidence of those payments.

rule 10.5: Ins 6.9.1974.

6 Failure to conduct defence with due dispatch

Where a defendant makes default in complying with any order or direction as to the conduct of the defendant’s defence, or does not conduct the defence with due despatch, the Court may, on application by any party or of its own motion, strike out (whether in whole or in part) the defendant’s notice of grounds of defence or make such other order as the Court thinks fit.

rule 10.6: Ins 26.10.2001.

Part 11 Order for judgment

1 Order for judgment

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

(a)  a defendant has not filed a notice of the grounds of his defence under Part 10 rule 1 (1), or has filed such a notice which the Court has ordered to be struck out, and

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

(c)    (Repealed)

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)    (Repealed)

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

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

(b)  the action shall go to trial, in accordance with rule 3 and Part 27 rule 1, only as to the assessment of the amount to be recovered by the plaintiff against that defendant.

rule 11.1: Subst 14.6.1985. Am 30.8.1985; 24.8.1990; 24.4.1998.

2 Setting aside order

(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 10 rule 1 (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 upon 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.

rule 11.2: Subst 14.6.1985.

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 fourteen days before the date so fixed give to the defendant, or send to him by post addressed to him at the best 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.

Part 11A Summary judgment

pt 11A: Ins 14.6.1985.

Division 1 Summary judgment

pt 11A, div 1, hdg: Ins 18.10.1996.

1 Application

This Division applies to all proceedings except proceedings in which there are issues of fact:

(a)  on a charge of fraud against a party, or

(b)  on a claim in respect of defamation, malicious prosecution or false imprisonment.

rule 11A.1: Ins 14.6.1985. Subst 18.10.1996. Am 18.10.1996 (but see erratum 25.10.1996).

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 16 apply to any such application.

rule 11A.2: Ins 14.6.1985. Am 4.3.1988; 18.10.1996.

2A Cross-claim

(1)  A party may apply under this Division notwithstanding that, by rule 1, this Division does not apply to the proceedings in relation to a claim made by some other party.

(2)  Where the Court gives judgment against a party under this Division, and that party claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of the claim by the party against whom the judgment is given.

rule 11A.2A: Ins 18.10.1996.

Division 2 Summary stay or dismissal

pt 11A, div 2, hdg: Ins 18.10.1996.

3 Frivolity etc

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

(a)  no reasonable cause of action is disclosed,

(b)  the proceedings are frivolous or vexatious, or

(c)  the proceedings are an abuse of the process of the Court,

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

(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 16 apply to any such application.

rule 11A.3, headnote: Ins 14.6.1985. Subst 22.4.1988; 18.10.1996.

rule 11A.3: Ins 14.6.1985. Subst 22.4.1988. Am 18.10.1996.

Division 3 General

pt 11A, div 3, hdg: Ins 18.10.1996.

4 Residue of proceedings

Where, in any proceedings:

(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 proceedings are not wholly disposed of by judgment or dismissal or the proceedings are not wholly stayed,

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

rule 11A.4: Ins 22.4.1988. Subst 18.10.1996.

Part 12 Setting down for trial, requiring jury and consolidation

pt 12, Heading: Subst 24.12.1975.

Division 1 Setting down for trial

1–4B (Repealed)

rule 12.1: Am 27.3.1975; 14.6.1985; 5.9.1986; 1.5.1987; 24.8.1990; 8.12.1995. Rep 24.4.1998.

rule 12.2: Am 27.3.1975; 30.7.1976; 21.9.1979; 30.8.1985; 5.9.1986; 4.11.1988; 31.3.1994. Rep 24.4.1998.

rule 12.3: Rep 5.9.1986.

rule 12.4: Subst 27.3.1975; 30.7.1976; 30.8.1985. Am 5.9.1986; 24.8.1990; 18.10.1996. Rep 24.4.1998.

rule 12.4A: Ins 7.1.1983. Am 11.2.1983; 5.9.1986; 4.11.1988; 23.3.1989; 24.8.1990; 11.2.1994. Rep 24.4.1998.

rule 12.4B: Ins 19.8.1983. Am 30.8.1985; 5.9.1986. Rep 24.4.1998.

4C Dismissal of dormant actions commenced before 1.1.96

(1)  This rule applies to actions which were commenced before 1 January 1996:

(a)  by the lodging of an ordinary statement of claim, or

(b)  by the lodging of a statement of liquidated claim and in which notice of grounds of defence has been filed,

which have not been disposed of by judgment or final order.

(2)  If in an action to which this rule applies no praecipe for trial has been filed before 1 January 1998, the action is on that date deemed to be dismissed.

(3)  If:

(a)  an action to which this rule applies has been adjourned,

(b)  the adjournment is not to a specified date or a specified sittings for hearing, directions or other purpose, or to any “Not Ready List” maintained in accordance with Practice Note No 33, and

(c)  the action remains so adjourned on 1 January 1998,

the action is on that date deemed to be dismissed.

(4)  The Court may if it thinks fit by order rescind a dismissal which is deemed to have occurred through the operation of this rule if application for the order is made before 1 July 1998, and where such an order is made the Court shall give directions as to the future conduct of the action.

rule 12.4C: Ins 6.12.1996.

Division 2 Requiring a jury

5 Notice of demand for jury

In any action in which a party is entitled to require a jury to be summoned, a party so requiring shall file and serve on each other party a requisition for jury, and shall pay the fee required by the regulations made under the Act, at least 2 months before the date first scheduled for a status conference in the action.

rule 12.5: Am 16.5.1986; 8.12.1995. Subst 24.4.1998.

6 Order for jury

Where the Court orders that a jury be summoned to try an action, the action shall, subject to any order made by the Court, be placed at the end of the list of jury actions awaiting trial.

rule 12.6: Am 16.5.1986; 24.4.1998.

Division 3 Consolidation

pt 12, div 3: Ins 24.12.1975.

7 Consolidation

Where several proceedings are pending in the Court, then, if it appears to the Court:

(a)  that some common question of law or fact arises in both or all of them,

(b)  that the rights to relief claimed therein are in respect of, or arise out of, the same transaction or series of transactions, or

(c)  that for some other reason it is desirable to make an order under this rule,

the Court may order those proceedings to be consolidated or may order them to be tried at the same time or one immediately after another or may order them to be stayed until after the determination of any of them.

rule 12.7: Ins 24.12.1975. Am 24.4.1998.

Part 12A

1–3   (Repealed)

pt 12A: Ins 7.6.1991. Rep 18.10.1996.

rule 12A.1: Ins 7.6.1991. Rep 18.10.1996.

rule 12A.2: Ins 7.6.1991. Am 4.10.1991. Rep 18.10.1996.

rule 12A.3: Ins 7.6.1991. Am 23.6.1995. Rep 18.10.1996.

Part 13 Default judgment

1 Default judgment

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

(a)  a defendant has not filed a notice of the grounds of his defence under Part 10 rule 1 (2), or has filed such a notice which the Court has ordered to be struck out, and

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

(c)    (Repealed)

the plaintiff may, within 6 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 his 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, for the purposes of this subrule, be prescribed as costs.

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

rule 13.1: Subst 14.6.1985. Am 24.8.1990; 7.7.2000.

2 Where defence as to part of claim DCR r 129.

(1)  Where in an action commenced by 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 his 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 seven 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.

rule 13.2: Am 14.6.1985.

3 (Repealed)

rule 13.3: Rep 14.6.1985.

Part 14 Judgment by confession or agreement

1 Interpretation

In this Part:

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

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

rule 14.1: Am 27.8.1976. Subst 14.6.1985.

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 his solicitor notice of the amount to which the defendant has confessed.

(3)  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)  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 or sent by the registrar under subrule (2), does not:

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

(b)  make application to the Supreme Court for an order under section 145 of the Act removing the action into the Supreme Court and give notice to the registrar that he 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 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 or sent by the registrar under subrule (2), does not file a notice refusing to accept in full satisfaction of his 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.

(6)  A defendant who files a statement under subrule (1) may at the same time file an application, supported by an affidavit as to his 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 his solicitor.

(7)  Where a defendant has filed an application and affidavit under subrule (6), and the registrar enters up judgment for the plaintiff under subrule (3), (4) or (5), the application shall thereupon be deemed to be an application under Part 31A rule 2 (1) (a) in respect of the judgment debt so arising, and the registrar shall forthwith consider and determine the application, and forward notice of his order, accordingly.

(8)  Where the plaintiff makes application, on the ground that he did not receive in sufficient time any notice required to be given or sent to him by the registrar under subrule (2), for the setting aside of any judgment entered up by the registrar under subrule (4) or (5), the Court may, if it thinks fit, on terms, set aside the judgment.

(9)  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.

(10)  Where the plaintiff files a notice of refusal referred to in subrule (5), he 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 his solicitor.

rule 14.2: Subst 14.6.1985. Am 30.8.1985; 11.9.1987; 4.3.1988.

3 Judgment by agreement

(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) upon 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 thereof 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 31A rule 2 (4) pursuant to an agreement referred to in Part 31A 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.

rule 14.3: Subst 14.6.1985.

3A Machinery as to statements of confession and agreements

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

rule 14.3A: Ins 14.6.1985.

4 (Repealed)

rule 14.4: Am 14.6.1985; 17.3.1995. Rep 18.10.1996.

5 Judgment where parties have agreed

Notwithstanding anything in rule 3, 3A or 4, where the Court is satisfied that the parties to an action or to any proceedings under Division 8 of Part 3 of the Act:

(a)  have agreed as to the judgment to be given or entered up in the action or proceedings, and

(b)  have not entered into an agreement under rule 3 (1) as to that judgment,

the Court may if it thinks fit on the application of a party give the judgment as to which the parties have agreed, and where the Court is further satisfied that the parties have agreed as to any terms on which the judgment is to be given or entered up, or enforced, the Court may give the judgment, or make orders, in accordance with those terms.

rule 14.5: Ins 19.8.1988.

Part 14A Interest under section 83A of the Act

pt 14A: Ins 6.7.1984. Subst 14.6.1985.

1 Judgment by default confession or agreement, and payment by defendant

(1)  Where interest has been claimed in an action and judgment is entered up in the action under Part 13 rule 1, Part 14 rule 2 or Part 14 rule 3, the amount of interest deemed in accordance with subrule (3) 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.

(2)  Where the court orders under section 83A (1A) of the Act that interest be paid, that interest shall be calculated at the rate or rates at which it is deemed in accordance with subrule (3) to have been claimed.

(3)  For the purposes of subrules (1) and (2), interest shall be deemed to have been claimed, in respect of any part of a period in respect of which a rate is prescribed for the purposes of section 95 (1) of the Supreme Court Act 1970, at the rate so prescribed, or at the rate or rates specified in the claim in respect of that part, whichever is less.

Table

Column 1	Column 2
the beginning of 1 July, 1972 to the end of 31 December, 1973	5
the beginning of 1 January, 1974 to the end of 31 December, 1980	10
the beginning of 1 January, 1981 to the end of 30 June, 1981	13.5
the beginning of 1 July, 1981 to the end of 30 June, 1982	14.5
the beginning of 1 July, 1982 to the end of 31 December, 1983	15.5
the beginning of 1 January, 1984 to the end of 31 December, 1984	14.5
the beginning of 1 January, 1985 to the end of 16 January, 1986	13.5
the beginning of 17 January, 1986 to the end of 4 September, 1986	18.25
the beginning of 5 September, 1986 to the end of 1 November, 1987	19.5
after 1 November, 1987	18

rule 14A.1: Ins 6.7.1984. Subst 14.6.1985. Am 17.1.1986; 5.9.1986; 23.10.1987; 22.4.1988.

2 Application for order under sec 73 (4) of Motor Accidents Act 1988 or sec 137 (4) of Motor Accidents Compensation Act 1999

Unless the Court otherwise orders, any application to the Court for an order under section 73 (4) of the Motor Accidents Act 1988 or section 137 (4) of the Motor Accidents Compensation Act 1999 for the payment of interest in an action must be made immediately after judgment is given in the action.

rule 14A.2: Ins 6.7.1984. Am 28.12.1984. Rep 14.6.1985. Ins 9.10.1992. Am 17.3.2000.

Part 15 Admissions

1 Voluntary admissions SCR Pt 18, r 1.

(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 under subrule (1).

2 Notice to admit facts SCR Pt 18, r 2.

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

(1A)  Any such notice is not to be served on another party to the proceedings unless at least the period of 28 days has elapsed after the day on which that party was served with the originating or other process by which the party was joined or added as a party to the proceedings.

(2)  If, as to any fact specified in the notice, the party on whom the notice is served does not, within fourteen 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.

(3)  A party may, with the leave of the Court, withdraw an admission under subrule (2).

rule 15.2: Am 24.12.1975; 18.10.1996 (but see erratum 25.10.1996); 20.4.2001.

2A Court may order admissions

(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 the costs of proof occasioned by the refusal or neglect shall be paid by that 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.

rule 15.2A: Ins 14.6.1985. Am 11.9.1987.

3 Judgment on admissions SCR Pt 18, r 3.

(1)  Where admissions are made by a party, whether by his pleading or otherwise, 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.

4 Admission of documents discovered SCR Pt 18, r 4.

(1)  Where a list of documents is served on a party under Part 22 which relates to discovery and inspection of documents, and inspection of any document specified in the list is permitted to that party under that Part, then, subject to subrule (2), the following admissions by that party in favour of the party serving the list shall have effect unless the Court otherwise orders:

(a)  that the document, if described in the list as an original document, is an original document and was printed, written, signed or executed as it purports to have been, or

(b)  that the document, if described in the list as a copy, is a true copy.

(2)  Where a party:

(a)  has by his pleading denied the authenticity of a document, or

(b)  within fourteen days after the time limited under Part 22 for inspection of a document, serves on the party giving inspection a notice that he disputes the authenticity of the document,

subrule (1) does not work an admission by the first-mentioned party as to that document.

(3)  Where a party serves on another party a list of documents pursuant to Part 22, those parties shall be in the position that they would be in if the latter party had, on the date of service of the list, served on the party serving the list a notice requiring production at the trial of such of the documents specified in the list as are in the possession, custody or power of the party serving the list.

(4)  Subrules (1) (2) and (3) apply in relation to an affidavit made in compliance with an order under Part 22 rule 7 as they apply in relation to a list of documents served under that Part.

rule 15.4 (previously Rule 15.5): Renumbered 18.10.1996. Am 18.10.1996 (but see erratum 25.10.1996).

5 Notice to admit documents SCR Pt 18, r 5.

(1)  A party to proceedings may, by notice served on another party, require him to admit, for the purpose of those proceedings only, the authenticity of the documents specified in the notice.

(2)  If, as to any document specified in the notice, the party on whom the notice is served does not, within fourteen 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.

(3)  A party may, with the leave of the Court, withdraw an admission under subrule (2).

rule 15.5 (previously Rule 15.4): Am 24.12.1975. Renumbered 18.10.1996. Am 18.10.1996.

6 Restricted effect of admission SCR Pt 18, 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 Time for serving notices under this Part

A party may serve a notice referred to in rule 2 or 5:

(a)  within 4 months after the day on which the proceedings are commenced, or

(b)  if the period referred to in paragraph (a) has expired—only with the leave of the Court.

rule 15.7: Am 29.5.1992; 17.3.1995. Rep 18.10.1996. Ins 24.4.1998.

Part 16 Motions

1 Application SCR Pt 19, r 1.

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

(2)  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.

rule 16.1: Subst 18.10.1996.

2 Notice SCR Pt 19, r 2.

(1)  Subject to subrule (2), a person shall not move the Court for any order unless before moving he or she has filed notice of the motion and 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 the 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, and

(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.

(4)  Costs need not be specifically claimed.

rule 16.2: Am 18.10.1996.

3 Time for service of notice SCR Pt 19, r 3.

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

4 (Repealed)

rule 16.4: Rep 18.10.1996.

5 Absence of party

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.

rule 16.5: Subst 18.10.1996.

6 Further hearing

(1)  Where notice of a motion for any day has been filed or served, and the motion is not disposed of on that day:

(a)  the Court may hear and dispose of the motion on any later day fixed by the Court, and

(b)  subject to subrule (2), filing or service of further notice of motion shall not be required.

(2)  Subrule (1) (b) shall not have effect:

(a)  where the Court directs the filing or service of a further notice of motion, or

(b)  where service is required on a person on whom notice of the motion has not previously been served.

rule 16.6: Am 17.3.1995. Subst 18.10.1996.

Part 17 Amendment

1 General SCR Pt 20, r 1.

(1)  The Court may, at any stage of any proceedings, on application by any party or of its own motion, order, that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, 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 proceedings, 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 he 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 proceedings, but in such a case the date of commencement of the proceedings, 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.

rule 17.1: Am 1.3.1996; 18.10.1996.

2 Amendment of pleading without leave SCR Pt 20, r 2.

(1)  A party may, without leave, amend any pleading of his once at any time not more than 4 months after the filing of the statement of claim in the proceedings.

(1A)  (Renumbered as subrule (2))

(1B)    (Repealed)

(2)  A party pleading may, subject to subrules (4) and (5), by consent of the parties amend the pleading at any stage of the proceedings.

(3)  Subject to subrules (4) and (5), 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.

(4)  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.

(5)  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.

rule 17.2: Am 20.3.1987; 4.3.1988; 21.6.1996; 18.10.1996 (but see erratum 25.10.1996).

2A Pleading by opposite party

(1)  This rule applies, subject to any order of the Court, where a party amends pursuant to or without leave of the Court.

(2)  Where a plaintiff amends his statement of claim:

(a)  if the defendant has filed his defence, he may amend his defence, and

(b)  the plaintiff shall not be entitled to have default judgement entered up, or an order for judgment made, in the action before the expiry of 28 days after service on the defendant of the statement of claim or 14 days after service on the defendant under rule 9, whichever expires later.

(3)  The right to amend under subrule (2) (a) is in addition to the right to amend under rule 2.

(4)  Where the following is the order of events:

(a)  a party (in this subrule called the first party) files a pleading (in this subrule called the first pleading),

(b)  an opposite party files a pleading (in this subrule called the second pleading) in answer to the first pleading,

(c)  the first party amends the first pleading,

(d)  the opposite party does not amend the second pleading within the time allowed by this rule,

then:

(e)  the second pleading shall have effect as a pleading in answer to the amended first pleading, and

(f)  Part 9 rule 15 (2) shall not apply, but, if no further pleading between those parties is filed, there shall be, at expiration of the time mentioned in paragraph (d), an implied joinder of issue on the second pleading.

rule 17.2A: Ins 18.10.1996.

3 Disallowance of amendment SCR Pt 20, r 3.

(1)  Where a party amends his pleading under rule 2 (1) or rule 2A, 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 fourteen 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.

rule 17.3: Am 18.10.1996.

4 Statutes of limitation SCR Pt 20, 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 he sues in that capacity.

(5)  Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he 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 for relief 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.

rule 17.4: Am 30.7.1976; 14.6.1985; 18.10.1996.

5 Duration of leave or consent SCR Pt 20, r 5.

(1)  Subject to Part 3 rule 2 (which relates to the extension and abridgment of time), 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 fourteen days after the date on which the order is made, the order shall cease to have effect.

(2)  Subject to Part 3 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.

rule 17.5, headnote: Subst 18.10.1996.

rules 17.5, 17.6: Am 18.10.1996.

6 Mode of amendment—directions SCR Pt 20, 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).

rules 17.5, 17.6: Am 18.10.1996.

7 Mode of amendment—simple amendments cf SCR Pt 20, 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)    (Repealed)

rule 17.7: Am 21.6.1996; 18.10.1996.

8 Mode of amendment—fresh document SCR Pt 20, 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).

rules 17.8–17.10: Am 18.10.1996.

9 Service after amendment SCR Pt 20, 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.

rules 17.8–17.10: Am 18.10.1996.

10 Judgment order or certificate cf SCR Pt 20, 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).

rules 17.8–17.10: Am 18.10.1996.

11 (Repealed)

rule 17.11: Rep 18.10.1996.

Part 18 Withdrawal and discontinuance

1 Discontinuance cf SCR Pt 21, r 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 he or his solicitor certifies that he 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.

rule 18.1: Subst 14.6.1985; 21.6.1996.

2 Withdrawal of defence etc SCR Pt 21, r 3.

(1)  A party raising any matter in a defence or subsequent pleading 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.

rule 18.2: Am 18.10.1996.

2A (Repealed)

rule 18.2A: Ins 14.6.1985. Rep 18.10.1996.

3 Want of prosecution

(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)–(4)    (Repealed)

rule 18.3: Am 17.2.1995; 18.10.1996; 24.12.1999; 7.7.2000.

4 Mode of discontinuance or withdrawal SCR Pt 21, r 5.

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

rule 18.4: Am 28.5.1993; 18.10.1996.

5 Service cf SCR Pt 21, r 6.

A party filing a notice under rule 4 shall, as soon as practicable, serve the notice on each other party.

rule 18.5: Am 18.10.1996.

6 (Repealed)

rule 18.6: Am 28.5.1993; 17.3.1995. Rep 18.10.1996.

7 Effect of discontinuance SCR Pt 21, 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.

rules 18.7, 18.8: Am 14.6.1985; 18.10.1996.

8 Stay to secure costs SCR Pt 21, r 8.

Where:

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

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

(c)  before payment of the costs, he brings against that other party 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.

rules 18.7, 18.8: Am 14.6.1985; 18.10.1996.

9 Statement of liquidated claim—dismissal

An action commenced by the filing of a statement of liquidated claim and in which no notice of grounds of defence is filed is, if not otherwise completed, deemed to be dismissed 12 months after the date of commencement.

rule 18.9: Ins 8.12.1995. Subst 7.7.2000.

Part 19 Bringing money into court

1 Bringing into court full amount claimed

(1)  In any action a defendant may at any time before judgment against him bring into court the whole of the amount claimed by the plaintiff.

(2)  A defendant may bring money into court for the purposes of this rule by paying the money to the registrar for the proper place in relation to the action.

(3)  The registrar shall as soon as practicable advise the plaintiff of any money brought into court under subrule (1).

(4)  Where a defendant to an action brings money into court under subrule (1):

(a)  if the plaintiff has not in the action claimed damages in respect of any personal injuries, then as from the date when the money was brought into court, or

(b)  if the plaintiff has in the action claimed damages in respect of any personal injuries, and he does not within fourteen days after the money is brought into court:

(i)  make application for leave to amend his claim by increasing the amount thereof, or

(ii)  apply to the Supreme Court under section 145 of the Act for an order removing the action into that Court and give notice to the registrar that he has so applied,

then as from the expiration of that time,

all proceedings in the action, and in any action brought subsequently on the same cause of action, other than proceedings for an order under section 83A (1A) of the Act, shall be stayed.

(5)  Where, within fourteen days after money is brought into court under subrule (1), the plaintiff makes an application as referred to in subrule (4) (b) (i) or makes an application and gives notice as referred to in subrule (4) (b) (ii), and the application is refused, then as from the time at which the registrar is notified under Part 52 rule 6 (1) of the refusal all proceedings in the action, and in any action brought subsequently on the same cause of action, shall be stayed.

(6)  If a defendant who brings money into court under subrule (1) does not pay to the plaintiff or bring into court the amount of any costs reasonably incurred by the plaintiff before the plaintiff is advised of the bringing of the money into court, the plaintiff may apply to the Court for, and the Court may if it thinks fit make, an order for those costs and the costs of the application.

(7)  Any amounts paid to the registrar in an action under this rule may, as soon as proceedings in the action have been stayed under subrule (4) or (5), be paid by the registrar to the plaintiff without any order of the Court.

rule 19.1: Am 14.6.1985; 5.9.1986.

2–12 (Repealed)

rule 19.2: Am 14.6.1985; 30.8.1985; 16.5.1986; 27.6.1986; 1.5.1987. Rep 28.4.1989.

rule 19.3: Rep 28.4.1989.

rules 19.4, 19.5: Am 21.11.1986. Rep 28.4.1989.

rules 19.6–19.12: Rep 28.4.1989.

Part 19A Offer of compromise

pt 19A: Ins 28.4.1989.

1 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 47 rules 1–5, and

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

(c)  where the offeror has made or been ordered to make an interim payment referred to in Subdivision 4 of Division 3 of the Act to the offeree, state whether or not the offer is in addition to the payment so made or ordered.

rule 19A.1: Ins 28.4.1989. Am 18.10.1996.

2 Application

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

(2)  A plaintiff may not make an offer under subrule (1) unless he 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.

rule 19A.2: Ins 28.4.1989.

2A Offer with further offer as to costs

(1)  A party may make an offer under rule 2 (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 his 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.

(2)  Where a principal offer and a costs offer are made under subrule (1) and the offeree accepts the principal offer, the offeree may accept or fail to accept the costs offer.

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

(4)  Where:

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

(b)  the plaintiff’s costs in the action are taxed, and

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

the taxing officer may, notwithstanding Part 39 rule 25 (1), in his discretion award the costs, or any part of the costs, of the taxation to the defendant.

rule 19A.2A: Ins 13.8.1993.

3 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 it 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 sooner.

(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 39A rule 25 (3) is:

(a)  where the trial is before a jury—after the Judge begins to sum up to the jury,

(b)  where the action has been referred under section 63A of the Act for determination pursuant to the Arbitration (Civil Actions) Act 1983—after the conclusion of the arbitration hearing, or

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

rule 19A.3: Ins 28.4.1989. Am 25.8.1989; 4.10.1991; 6.10.1995; 18.10.1996.

4 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.

rule 19A.4: Ins 28.4.1989. Subst 26.4.1991.

5 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 to do so.

(2)  On withdrawal of an acceptance all steps in the proceedings 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 proceedings.

rule 19A.5: Ins 28.4.1989. Am 25.8.1989; 26.4.1991.

6 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.

rule 19A.6: Ins 28.4.1989.

7 Disclosure of offer to Court

(1)  No statement of the fact that an offer has been made shall be contained in any pleading or affidavit filed in the proceedings.

(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 trial, 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 39A rule 25 (4), (4A) or (6)—after all questions of liability and the relief to be granted have been determined,

(b)  as provided by Part 39A rule 25 (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 83A (3) of the Act or section 73 (4) of the Motor Accidents Act 1988 or section 137 (4) of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987.

rule 19A.7: Ins 28.4.1989. Am 4.10.1991; 18.10.1996; 26.9.1997; 17.3.2000.

8 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 proceedings 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 proceedings has made a cross-claim 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 proceedings on the cross-claim be continued as it thinks fit.

rule 19A.8: Ins 28.4.1989. Am 26.4.1991; 18.10.1996.

9 (Repealed)

rule 19A.9: Ins 28.4.1989. Am 26.4.1991; 9.10.1992; 23.7.1993; 31.3.1994; 17.3.1995. Rep 18.10.1996.

10 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 39A rule 25 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.

rule 19A.10: Ins 28.4.1989. Am 18.10.1996.

11 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 83A of the Act, on the debt, or

(b)  under section 83A of the Act or section 73 of the Motor Accidents Act 1988 or section 137 of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987, on the damages.

rule 19A.11: Ins 28.4.1989. Am 17.2.1995; 23.6.1995. Subst 18.10.1996. Am 17.3.2000.

Part 20 Cross-claims

pt 20: Subst 18.10.1996.

1 Amount

(1)  In any action or cross-claim a defendant who wishes to plead a cross-claim on any cause of action on which the defendant might have brought an action in the Court may plead the cross-claim for an amount not exceeding the amount for which an action may be brought under the Act, whether on balance or after admitted set-off or otherwise, or, if the defendant to the proposed cross-claim consents in writing thereto, for an amount exceeding the amount for which an action may be brought under the Act.

(2)  A cross-claimant who has a cause of action for an amount in excess of the amount for which an action may be brought under the Act may abandon the excess by stating the abandonment in the cross-claim, and where the abandonment is so stated:

(a)  the cross-claimant’s claim shall be reduced by the amount of the excess, and if the claim is proved a verdict shall be found for the cross-claimant for an amount not exceeding the amount for which an action may be brought under the Act,

(b)  judgment, so far as it relates to the cross-claim, shall be in full discharge of all demands in respect of that cause of action, and

(c)  entry of the judgment in the records of the Court shall be made accordingly.

rule 20.1: Am 24.10.1975; 22.4.1983; 11.9.1987. Subst 18.10.1996.

2 Title

(1)  A cross-claim shall be entitled in the action with an addition separate from and below the existing title of the action, headed “CROSS-CLAIM” or “SECOND CROSS-CLAIM”, or as the case may be, showing the names of the parties to the cross-claim.

(2)  Where there are 2 or more cross-claims, the second cross-claim to be filed shall be called the second cross-claim, the third to be filed shall be called the third cross-claim, and so on.

(3)  Part 5 rules 6A and 6B apply to a cross-claim as though the cross-claim were a statement of claim.

rule 20.2: Am 24.10.1975; 22.4.1983. Subst 18.10.1996. Am 24.4.1998.

3 Title of subsequent documents

On a cross-claim being filed, a document afterwards filed or used in the action shall, subject to Part 47 rule 1 (5), be entitled in the manner in which the cross-claim is entitled.

rule 20.3: Am 24.10.1975; 22.4.1983. Subst 18.10.1996.

4 Directions

The Court may, at any stage of an action, on terms:

(a)  order that any cross-claim or any question or issue in or arising on any cross-claim shall be separately tried,

(b)  give to a defendant to the cross-claim leave to defend the claim on the statement of claim or any other cross-claim in the action, either alone or in addition to any other party,

(c)  give to a defendant to the cross-claim leave to appear at the trial or hearing of the claim on the statement of claim or on any other cross-claim in the action and to take such part in the trial or hearing as the Court thinks fit,

(d)  determine the extent to which the cross-claimant and a defendant to the cross-claim shall be bound as between themselves by a judgment (including a judgment by consent or a default judgment) or decision (including a decision by consent) on the claim on the statement of claim or any other cross-claim in the action.

rules 20.4, 20.5: Subst 18.10.1996.

5 Service

A cross-claimant who files a cross-claim in an action under subrule (2) shall as soon as practicable serve the cross-claim on the defendant to the cross-claim, and where that defendant was not a party to the action before the filing of the cross-claim, shall also serve on that defendant as soon as practicable the originating process in the action and all the following documents (if any) which have been filed by the cross-claimant or served on the cross-claimant by any other party:

(a)  other pleadings,

(b)  notices of motions not finally disposed of,

(c)  affidavits, other than affidavits which are not relevant to the issues arising on the cross-claim,

(d)  amendments made to any of the documents required by this subrule to be served.

rules 20.4, 20.5: Subst 18.10.1996.

6 Conduct of proceedings generally

(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 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)  Subject to this Part, the trial or hearing and all other steps in the proceedings on a cross-claim in an action shall as far as practicable be carried on together with the trial or hearing and similar steps in the action.

rules 20.6–20.9: Ins 18.10.1996.

7 Default of defendant to cross-claim

Where a defendant to a cross-claim does not file a defence, if and as required by these rules, or does not file a defence in accordance with an order to do so, a judgment (including a judgment by consent or a default judgment) or decision (including a decision by consent) on any claim, question or issue in the proceedings on the statement of claim or on any other cross-claim in the action shall, unless the Court otherwise orders, be binding as between the cross-claimant and the defendant to the cross-claim so far as the judgment or decision is relevant to any claim, question or issue in the proceedings on the cross-claim.

rules 20.6–20.9: Ins 18.10.1996.

8 Separate prosecution

A cross-claim may proceed notwithstanding that judgment is given or entered up in the action or on any other cross-claim in the action, or that the proceedings in the action or on any other cross-claim in the action are stayed, dismissed or discontinued.

rules 20.6–20.9: Ins 18.10.1996.

9 Contribution or indemnity

(1)  Where a defendant makes a cross-claim for contribution or indemnity in respect of a claim against him in the action:

(a)  judgment for the claimant on the cross-claim shall not be given or entered up except by direction of the Court, and

(b)  judgment for the claimant on the cross-claim shall not, unless the Court otherwise orders, be enforced until satisfaction of any judgment in the action against the cross-claimant.

(2)  Where, in respect of a claim against him in an action, a defendant makes a claim for contribution under section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 against a party in the action, a defence to the cross-claim or subsequent pleading on the cross-claim shall not be filed unless the Court so directs.

rules 20.6–20.9: Ins 18.10.1996.

10 Commencement

(1)  A defendant to an action or cross-claim may plead a cross-claim by filing the cross-claim.

(2)  A cross-claimant may file a cross-claim:

(a)  within 3 months after the day on which the cross-claimant is served with the statement of claim commencing the action, or

(b)  if the period referred to in paragraph (a) has expired—only with the leave of the Court.

rule 20.10: Ins 18.10.1996. Am 24.4.1998.

11 Form

(1)  Where a cross-claimant cross-claims solely against a party who claims in the action against the cross-claimant, the cross-claimant may add the cross-claim to his defence.

(2)  Subject to Part 9 rule 17, a cross-claimant may, in his cross-claim, plead all or any of the facts on which he relies by reference to the prior pleadings in the action.

(3)  A cross-claimant shall, in addition to pleading any other facts on which he relies, plead the facts showing that the claim is a cross-claim as defined in Part 1 rule 4 (1).

rule 20.11: Ins 18.10.1996.

Part 21

1–8   (Repealed)

pt 21: Rep 18.10.1996.

rule 21.1: Am 24.10.1975. Rep 18.10.1996.

rules 21.2–21.7: Rep 18.10.1996.

rule 21.7A: Ins 24.10.1975. Rep 18.10.1996.

rule 21.8: Am 17.3.1995. Rep 18.10.1996.

Part 22 Discovery and inspection of documents

pt 22: Subst 18.10.1996.

pt 22, div 1, hdg: Rep 18.10.1996.

1 Definitions

In this Part:

(a)  document includes any part of a document,

(b)  excluded documents means in relation to an action, subject to any order of the Court to the contrary:

(i)  any document filed in the action and any copy thereof,

(ii)  any document served on party A (as described in rule 3 (1)) after the commencement of the action and any copy thereof,

(iii)  any document which wholly came into existence after the commencement of the action,

(iv)  any additional copy of a document included in a list of documents under rule 3 (5), which contains no mark, deletion or other matter, relevant to a fact in issue, not present in the document so included, and

(v)  any document comprising an original written communication sent by party B prior to the date of commencement of the action of which a copy is included in a list of documents under rule 3 (5),

(c)  privileged document means in relation to an action, unless and until the Court directs that it cease to be a privileged document:

(i)  a document of which evidence could not be adduced in the action over the objection of any person, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, or

(ii)  a document the contents or production of which would disclose a protected confidence or the contents of a document recording a protected confidence or protected identity information, within the meaning of section 126B of the Evidence Act 1995, where:

(A)  consent by the protected confider within the meaning of section 126C of the Evidence Act 1995 has not been given to disclosure of the confidence, contents or information, and

(B)  section 126D of the Evidence Act 1995 would not operate to stop Division 1A of Part 3.10 of the Evidence Act 1995 from preventing the adducing of evidence in respect of the confidence, contents or information, or

(iii)  a document of which evidence could not be adduced in the action by virtue of the operation of section 126H of the Evidence Act 1995, or

(iv)  where Party B is a natural person, a document the contents or production of which may tend to prove that party B:

(A)  has committed an offence against or arising under an Australian law or a law of a foreign country, or

(B)  is liable to pay a civil penalty,

within the meaning of section 128 of the Evidence Act 1995, or

(v)  a document the admission or use of which in a proceeding would be contrary to section 129 of the Evidence Act 1995, or

(vi)  a document that relates to matters of state within the meaning of section 130 of the Evidence Act 1995, or

(vii)  a document to which section 131 of the Evidence Act 1995 applies, or

(viii)  a document:

(A)  the disclosure of the contents of which, or

(B)  the production of which, or

(C)  the admission or use of which,

in the action would be contrary to any Act or Commonwealth Act other than the Evidence Act 1995 or the Evidence Act 1995 of the Commonwealth,

(d)  a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material which could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.

rule 22.1: Am 30.7.1976; 8.11.1985; 28.8.1987; 26.6.1992. Subst 18.10.1996. Am 29.6.2001.

2 Notice to produce for inspection

(1)  A party (party A) may by notice served on another party (party B) require party B to produce for the inspection of party A:

(a)  any document (other than a privileged document) referred to in any pleading, affidavit or witness statement filed or served by party B,

(b)  any other specific document (other than a privileged document) clearly identified in the notice, relevant to a fact in issue.

(1A)  A party may serve a notice referred to in subrule (1):

(a)  within 4 months after the day on which the proceedings are commenced, or

(b)  if the period referred to in paragraph (a) has expired—only with the leave of the Court.

(2)  The maximum number of documents which party A may require party B to produce in reliance on subrule (1) (b), whether by one or more notices, is 50.

(3)  Party B, upon being served with a notice under subrule (1), shall within a reasonable time:

(a)  produce for the inspection of party A such of the documents as are in the possession, custody or power of party B,

(b)  in respect of any document which is not produced, serve on party A a notice stating in whose possession the document is, to the best of the knowledge, information and belief of party B, or that party B has no knowledge, information or belief as to that matter.

(4)  A notice under subrule (1) may specify a time for production of all or any of the documents required to be produced. If the time specified is 14 days or longer after service of the notice it is to be taken to be a reasonable time for the purpose of subrule (3) unless the contrary is shown. If the time specified is less than 14 days after service of the notice it is to be taken to be less than a reasonable time unless the contrary is shown.

rule 22.2: Subst 18.10.1996. Am 24.4.1998.

3 Order for discovery

(1)  The Court may, on the application of a party or of its own motion, order that any party (party B) give discovery to any other party (party A) or parties (each of which is included in the expression “party A”) of:

(a)  documents within a class or classes specified in the order,

(b)  one or more samples (selected in such manner as the Court may specify) of documents within such a class.

(2)  A class of documents shall not be specified in more general terms than the Court considers to be justified in the circumstances.

(3)  Subject to subrule (2), a class of documents may be specified:

(a)  by relevance to one or more facts in issue,

(b)  by description of the nature of the documents and the period within which they were brought into existence,

(c)  in such other manner as the Court considers appropriate in the circumstances.

(4)  The effect of an order for discovery under subrule (1) is that the parties involved are required to comply with the succeeding provisions of this rule.

(5)  Party B must, within 28 days of the order being made (or of notice of the order being received by party B, if party B was not present or represented when the order was made) or such other period as the Court may specify, serve on party A:

(a)  a list, complying with subrule (6), of all the documents or samples specified in the order (other than excluded documents) which:

(i)  are in the possession, custody or power of party B, or

(ii)  are not, but were later than 6 months prior to the commencement of the action, in the possession, custody or power of party B,

(b)  an affidavit made in accordance with subrule (7) stating:

(i)  that the deponent has made reasonable enquiries and

(A)  believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order which are, or were later than 6 months prior to the commencement of the action, in the possession, custody or power of party B other than those referred to in the list of documents,

(B)  believes that the documents in part 1 of the list are within the possession, custody or power of party B,

(C)  believes that the documents in part 2 of the list are within the possession or power of the persons (if any) respectively specified in that part,

(D)  as to any document in part 2 in respect of which no such person is specified, that the deponent has no belief as to whose possession or power the document is in, and

(ii)  in respect of any documents which are claimed to be privileged documents, the facts relied on as establishing the existence of the privilege, and

(c)  where party B is represented by a solicitor, a certificate by that solicitor stating:

(i)  that the solicitor has advised party B as to the obligations arising under an order for discovery (and where party B is a corporation, which officers of party B have been so advised), and

(ii)  that the solicitor is not aware of any documents within any of the classes specified in the order (other than excluded documents) which are, or were later than 6 months prior to the commencement of the action, in the possession, custody or power or party B, other than those referred to in the list of documents.

(6)  The list of documents shall:

(a)  be divided into two parts, of which part 1 relates to documents in the possession, custody or power of party B, and part 2 relates to documents which are not, but were later than 6 months prior to the commencement of the action, in the possession, custody or power of party B,

(b)  include a brief description by reference to nature and date (or period) of each document or group of documents, and in the case of a group, the number of documents in that group,

(c)  specify against the description of each document or group in part 2 of the list the person (if any) in whose possession the document or group of documents is believed to be,

(d)  identify any document or group of documents which is claimed to be privileged, and specify:

(i)  any provision of Part 3.10 of the Evidence Act 1995 under which the privilege is claimed to arise, or

(ii)  the circumstances which it is claimed bring the document or group of documents within rule 1 (c) (ii) or (iii).

(7)  The affidavit shall be made:

(a)  where party B is a natural person and not a disable person—by party B,

(b)  where party B is a disable person—by party B’s tutor,

(c)  where party B is a corporation—by an officer of the corporation having knowledge of the facts so far as they are known to the corporation, or by its liquidator or provisional liquidator,

(d)  where party B is the Crown—by an officer of the Crown having knowledge of the facts so far as they are known to the Crown.

(8)  If at any time after the affidavit is made, and before the end of the trial or hearing, party B becomes aware:

(a)  that any document within the class or classes specified in the order (not being an excluded document) but not included in part 1 of the list of documents is within, or has come into, party B’s possession, custody or power, or

(b)  that any document included in part 1 of the list of documents which was claimed to be a privileged document, was not, or has ceased to be, a privileged document,

party B shall thereupon give written notice to party A of that fact and comply with subrule (10) in respect of the document, as if that document had been in part 1 of the list of documents and the list had been served on the date of the giving of such notice.

(9)  Party B shall ensure that the documents described in part 1 of the list (other than privileged documents) are:

(a)  at the time the list of documents is served on party A and for a reasonable time thereafter, physically kept and arranged in a way that makes the documents readily accessible, and capable of convenient inspection by party A, and

(b)  at the time the list of documents is served on party A and until completion of the trial of the action, identified in a way that enables particular documents to be readily retrieved.

(10)  Within 21 days after service of the list of documents, or within such other period or at such other time as the Court may specify, party B shall, on request by party A:

(a)  produce for inspection by party A the documents described in part 1 of the list (other than privileged documents),

(b)  make available a person who is able to, and does on request by party A, explain the way the documents are arranged and assist in locating and identifying particular documents or classes of documents,

(c)  provide facilities for the inspection and copying of such of the documents (other than privileged documents) as are not capable of being copied by photocopying,

(d)  subject to an undertaking being given by the solicitor for party A to pay the reasonable costs thereof (or if party A has no solicitor, subject to party A providing to party B an amount not less than a reasonable estimate of the reasonable costs of the use thereof), provide photocopies of, or photocopying facilities for the copying of, such of the documents as are capable of being copied by photocopying.

(11)  No copy document, or information from a document, obtained by party A as a result of discovery by party B shall be disclosed or used otherwise than for the purposes of the conduct of the action, without the leave of the Court, unless the document has been received into evidence in open Court.

(12)  Nothing in subrule (11) shall affect the power of the Court to make an order restricting the disclosure or use of any document whether or not received into evidence, or the operation of any such order.

rule 22.3: Subst 18.10.1996.

4 Powers of Court

The Court may, on the application of a party, or of its own motion:

(a)  by order discharge, vary or extend any of the obligations arising under rules 2 and 3,

(b)  determine any question of privilege or other question arising from the operation of this Part,

(c)  where a party does not comply with an obligation arising under rules 2 and 3:

(i)  by order, dismiss or limit any claim made by that party,

(ii)  by order, strike out or amend any pleading filed by that party,

(iii)  strike out, disallow or reject any evidence which that party has adduced or seeks to adduce,

(iv)  require that party to pay the whole or part of the costs of another party of the action, or

(v)  make such other order as the Court considers appropriate in the circumstances, or

(d)  inspect any document in relation to which a question arises under this Part, for the purpose of determining the question, and order that the document be produced to the Court for the purpose of inspection by the Court.

rule 22.4: Subst 18.10.1996. Am 29.6.2001.

5 Personal injury claims

Rule 2 (1) (b) and rule 3 shall not apply to an action on a common law claim for damages arising out of the death of, or bodily injury to, any person or for contribution in respect of damages so arising, unless the Court, for special reasons, otherwise orders.

rules 22.5, 22.6: Subst 18.10.1996.

6 Contempt

Neither the provisions of rule 4 (c) nor any order made thereunder shall affect the liability of a party or any other person for contempt of court in respect of any breach of an order for discovery under rule 3 (1).

rules 22.5, 22.6: Subst 18.10.1996.

rule 22.7: Rep 18.10.1996.

rule 22.8: Am 23.3.1989. Rep 18.10.1996.

rule 22.8A: Ins 30.7.1976. Rep 21.6.1996.

pt 22, div 2 (Rules 22.9–22.13): Rep 18.10.1996.

pt 22, div 3: Rep 18.10.1996.

rules 22.14, 22.15: Rep 18.10.1996.

rule 22.16: Subst 21.6.1996. Rep 18.10.1996.

Part 22A Interrogatories

pt 22A: Ins 18.11.1977.

1 Interrogatories by notice cf SCR Pt 24, r 1.

(1)  Subject to this rule and to any direction given in a particular case, where the pleadings between any parties are closed, any of those parties may serve on any other of those parties a notice requiring the party served to answer not more than 30, or such other number as the Court may by order specify, separate specified interrogatories relating to any matter in question between the interrogating party and the party served.

(1AA)  A party may serve a notice referred to in subrule (1):

(a)  within 4 months after the day on which the proceedings are commenced, or

(b)  if the period referred to in paragraph (a) has expired—only with the leave of the Court.

(1A)  For the purposes of subrule (1), where an interrogatory comprises more than one separate question each such question shall be treated as a separate interrogatory.

(2)  The notice may require that the answers be verified, and may so require notwithstanding that the interrogating party has previously required all or any of the interrogatories to be answered without requiring the answers to be verified.

(3)    (Repealed)

(4)  This rule does not apply to proceedings on a common law claim for damages arising out of the death of, or bodily injury to, any person or for contribution in respect of damages so arising.

(5)  Subject to subrule (2), a party shall not serve more than one notice under subrule (1) on the same party without the leave of the Court.

rule 22A.1: Ins 18.11.1977. Am 8.11.1985; 19.8.1988; 6.12.1996; 24.4.1998.

2 Answers pursuant to notice SCR Pt 24, r 2.

(1)  A party who is required under rule 1 to answer interrogatories shall, subject to rule 3, answer the interrogatories within such time, not being less than 14 days after service on him of the notice under rule 1, as may be specified in the notice.

(2)  A party who is required under rule 1 to answer interrogatories but is not required to verify his answers shall, subject to rule 3, answer the interrogatories by serving on the party requiring the answers a statement in accordance with rule 6.

(3)  A party who is required under rule 1 to answer interrogatories and to verify his answers shall, subject to rule 3, answer the interrogatories by serving on the party requiring the answers:

(a)  an affidavit verifying a statement in accordance with rule 6, and

(b)  the statement so verified, unless the statement has already been filed and served.

rule 22A.2: Ins 18.11.1977. Am 6.12.1996.

3 Limitation of interrogatories by notice SCR Pt 24, r 3.

(1)  The Court may, before or after any party has been required under rule 1 to answer interrogatories, order that answers to interrogatories under rule 2 by any party shall not be required, or shall be limited to such interrogatories or classes of interrogatories, or to such of the matters in question in the proceedings, as may be specified in the order.

(2)  Where any party has been required under rule 1 to answer any interrogatory, the Court may, on application by him, order that an answer to that interrogatory shall not be required or may limit the extent to which an answer shall be required.

(3)  The Court shall, on application, make such orders under subrules (1) and (2) as are necessary to prevent unnecessary interrogatories or unnecessary answers to interrogatories.

rules 22A.3, 22A.4: Ins 18.11.1977.

4 Co-defendant SCR Pt 24, r 4.

Where a plaintiff claims relief against two or more defendants, and requires any defendant to answer interrogatories under rule 2, that defendant shall serve his statement in answer and affidavit if any not only on the plaintiff but also on each other defendant who has filed a defence.

rules 22A.3, 22A.4: Ins 18.11.1977.

5 Order to answer SCR Pt 24, r 5.

(1)  The Court may, at any stage of any proceedings, order any party to serve on any other party (whether the interrogating party or not):

(a)  a statement in accordance with rule 6 in answer to interrogatories specified or referred to in the order relating to any matter in question in the proceedings, or

(b)  a statement as mentioned in paragraph (a) verified by affidavit.

(2)  The Court shall not make an order under subrule (1) unless satisfied that the order is necessary at the time when the order is made.

rule 22A.5: Ins 18.11.1977. Am 6.12.1996.

6 Contents of statement SCR Pt 24, r 6.

(1)  A statement in answer to interrogatories required by or under this Part shall, unless the Court otherwise orders, conform to the requirements of this rule.

(2)  A statement in answer to interrogatories shall deal with each interrogatory specifically either:

(a)  by answering the substance of the interrogatory without evasion, or

(b)  by objecting to answer the interrogatory on one or more of the grounds mentioned in subrule (3) and briefly stating the facts on which the objection is based.

(3)  Subject to subrule (4), a party may object to answer any interrogatory on the following grounds but no other:

(a)  where the answer is not required by an order, that the interrogatory does not relate to any matter in question between him and the party requiring the answer,

(b)  that the interrogatory is vexatious or oppressive, and

(c)  that evidence in answer to a question in terms of the interrogatory could not be adduced in the action over the objection of any person, by virtue of the operation of Part 3.10 (other than sections 128 and 130) of the Evidence Act 1995,

(d)  where the party is a natural person, that an answer to the interrogatory may tend to prove that the party:

(i)  has committed an offence against or arising under an Australian law or a law of a foreign country, or

(ii)  is liable to a civil penalty,

within the meaning of section 128 (1) of the Evidence Act 1995,

(e)  that an answer to the interrogatory would contain information that relates to matters of state within the meaning of section 130 of the Evidence Act 1995, unless and until the Court directs that the information cease to be privileged.

(4)  On an application under rule 3 (2) or rule 5 in respect of any interrogatory, the Court may require the applicant to specify on what grounds he objects to answer that interrogatory and may determine the sufficiency of the objection and, if the Court determines that the objection is not sufficient, the applicant shall not be entitled to object to answer that interrogatory in a statement in answer to interrogatories.

rule 22A.6: Ins 18.11.1977. Am 18.10.1996.

7 Deponent cf SCR Pt 24, r 7.

(1)  Subject to subrule (2), an affidavit verifying a statement of a party in answer to interrogatories may be made as follows:

(a)  by the party,

(b)  where the party is a disable person, by his tutor,

(c)  where the party is a corporation, by a member or officer of the corporation,

(d)  where the party is a body of persons lawfully suing or being sued in the name of the body or in the name of any officer or other person, by a member or officer of the body,

(e)  where the party is the Crown or an officer of the Crown suing or sued in his official capacity, by an officer of the Crown.

(2)  Where the party is a person to whom any of the paragraphs (c), (d) and (e) of subrule (1) applies, and the affidavit is to be filed and served pursuant to an order, the Court may, in relation to any or all of the interrogatories:

(a)  specify by name or otherwise the person to make the affidavit, or

(b)  specify by description or otherwise the persons from whom the party may choose the person to make the affidavit.

(3)  Subject to subrule (2), where the party is a person to whom any of paragraphs (c), (d) and (e) of subrule (1) applies, the party shall, in relation to each interrogatory, choose a person to make the affidavit who is qualified under the relevant paragraph and has knowledge of the facts.

(4)  In subrule (1) (e), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.

rule 22A.7: Ins 18.11.1977. Am 17.2.1989; 6.12.1996.

8 Insufficient answer SCR Pt 24, r 8.

(1)  Where a party fails to answer an interrogatory sufficiently, the Court may:

(a)  if he has made an insufficient answer, order him to make a further answer verified by affidavit in accordance with rule 7, or

(b)  order him or any of the persons mentioned in paragraphs (b) to (d) of rule 7 (1), as the nature of the case requires, to attend to be orally examined.

(2)  Subrule (1) does not limit the powers of the Court under rule 9.

rule 22A.8: Ins 18.11.1977.

9 Default cf SCR Pt 24, r 9.

(1)  Where a party makes default in compliance with an order under rule 5 or rule 8 to serve a statement or affidavit, the Court may give or make such judgment or such order as it thinks fit, including:

(a)  if the party in default is a plaintiff, an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings, or

(b)  if the party in default is a defendant, an order that his defence be struck out and that judgment be entered accordingly.

(2)    (Repealed)

rule 22A.9: Ins 18.11.1977. Am 28.4.1978; 6.12.1996.

10 Answers as evidence SCR Pt 24, r 10.

(1)  A party may tender as evidence:

(a)  one or more answers to interrogatories without tendering the others,

(b)  part of an answer to an interrogatory without tendering the whole of the answer.

(2)  Where the whole or part of an answer to an interrogatory is tendered as evidence, the Court may:

(a)  look at the whole of the answers, and

(b)  if it appears to the Court that any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without that other answer or part, the Court may reject the tender unless that other answer or part is also tendered.

rule 22A.10: Ins 18.11.1977.

11 (Repealed)

rule 22A.11: Ins 18.11.1977. Rep 18.10.1996.

Part 23 Medical examination; inspection of property etc

Division 1 Medical examination

1 Application and interpretation SCR Pt 25, r 1.

(1)  This Division applies to proceedings 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 but does not include tests mentioned in Division 1A.

medical expert includes dentist, medical practitioner, occupational therapist, optometrist, physiotherapist and psychologist.

person concerned means the person mentioned in subrule (1) (a).

rule 23.1: Am 4.7.1973; 21.11.1986; 6.12.1996.

2 Notice for examination SCR Pt 25, 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.

rules 23.2, 23.3: Am 21.11.1986.

3 Expenses SCR Pt 25, 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 him attend his examination pursuant to rule 6.

rules 23.2, 23.3: Am 21.11.1986.

4 Non-compliance with notice SCR Pt 25, 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 the proceedings as to any claim for relief by or for the benefit of the person concerned.

(2)    (Repealed)

rule 23.4: Am 6.12.1996; 24.4.1998.

5 Order for examination SCR Pt 25, 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 him by the medical expert for the purposes of the examination.

rules 23.5, 23.6: Am 21.11.1986.

6 Medical expert for person concerned SCR Pt 25, r 6.

The person concerned may have a medical expert chosen by him attend his examination.

rules 23.5, 23.6: Am 21.11.1986.

6A (Repealed)

rule 23.6A: Ins 30.8.1985. Am 8.11.1985. Rep 21.11.1986.

Division 1A Rehabilitation assessment

pt 23, div 1A: Ins 21.11.1986.

7 Application and interpretation

(1)  This Division applies to proceedings in which the extent of impairment of the earning capacity of a party due to personal injuries to that party is relevant to any matter in question.

(2)  In this Division:

party concerned means the party mentioned in subrule (1).

occupational rehabilitation has the meaning which it has for the purposes of section 59 of the Workers Compensation Act 1987.

rule 23.7 (previously Rule 23.6B): Ins 21.11.1986. Am 11.9.1987; 28.8.1992. Renumbered 6.12.1996.

8 Order for rehabilitation tests

(1)  The Court may make orders for testing the party concerned for the purpose of assessing the extent of impairment of the party’s earning capacity, including an order to submit to tests, pursuant to the direction of a medical practitioner, during a specified period and at a specified place, being:

(a)  a hospital,

(b)  a rehabilitation centre conducted by a hospital, or

(c)  some other suitable place,

at which:

(d)  treatment by way of rehabilitation, or

(e)  an occupational rehabilitation service,

is afforded.

(2)  Where the Court makes an order under subrule (1) that a party concerned submit to tests, the party concerned shall do all things reasonably requested and answer all questions reasonably asked by the medical practitioner or any person conducting a test for the purposes of the test.

(3)  The terms upon which the Court may make orders under subrule (1) include terms for the payment by the party obtaining the order to the party concerned of any expense or loss incurred in complying with the order.

rule 23.8: Rep 6.10.1995.

rule 23.8 (previously Rule 23.6C): Ins 21.11.1986. Am 28.8.1992. Renumbered 6.12.1996. Am 6.12.1996.

Division 2 Inspection of property etc

9 Inspection of property etc SCR Pt 25, r 8.

(1)  The Court may, for the purpose of enabling the proper determination of any matter in question in any proceedings, make orders, on terms, for:

(a)  the inspection of any property,

(b)  the taking of samples of any property,

(c)  the making of any observation of any property,

(d)  the trying of any experiment on or with any property, or

(e)  the observation of any process.

(2)  An order under subrule (1) may authorise any person to enter any land or to do any other thing for the purpose of getting access to the property.

(3)  A party applying for an order under this rule shall, 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.

rule 23.9 (previously Rule 23.7): Am 6.10.1995. Renumbered 6.12.1996. Am 6.12.1996.

Division 3 Default

10 Default cf SCR Pt 25, r 10.

(1)  Where a party makes default in compliance with an order under this Part, or in compliance with rule 5 (2), the Court may make such order as it thinks fit, including:

(a)  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, or

(b)  if the party in default is a defendant, an order that his defence be struck out and that an order for judgment be made or default judgment be entered accordingly.

(2)  Where a person concerned, not being a party, makes default in compliance with an order under this Part, or in compliance with rule 5 (2), the Court may order that the proceedings be stayed or dismissed as to any relief claimed for the benefit of the person concerned.

(3)  This rule does not limit the powers of the Court to punish for contempt.

rule 23.10 (previously Rule 23.9): Renumbered 6.12.1996. Am 6.12.1996.

Part 24

1–8   (Repealed)

pt 24: Rep 24.4.1998.

rule 24.1: Am 14.6.1985; 5.9.1986. Rep 24.4.1998.

rule 24.2: Am 30.8.1985; 5.9.1986; 4.11.1988. Rep 24.4.1998.

rule 24.3: Am 5.9.1986. Rep 24.4.1998.

rule 24.4: Am 14.6.1985; 5.9.1986. Rep 24.4.1998.

rule 24.5: Am 5.9.1986. Rep 24.4.1998.

rule 24.6: Rep 24.4.1998.

rules 24.7, 24.8: Am 5.9.1986. Rep 24.4.1998.

Part 24A Construction List

pt 24A: Ins 1.5.1987.

pt 24A, Heading: Subst 1.3.1996.

1 Interpretation

In this Part:

building or engineering expert includes builder, engineer, architect, designer and quantity surveyor.

building or engineering work includes:

(a)  any intended building or engineering work,

(b)  any building or engineering work in the course of construction or completion or which has been substantially or fully completed, and

(c)  any associated work.

rule 24A.1: Ins 1.5.1987.

2 Construction List

The registrar for Sydney shall keep a Construction List, and shall enter proceedings in that List in accordance with this Part.

rule 24A.2: Ins 1.5.1987. Subst 1.3.1996.

3 Proceedings for entry in list

There may, subject to this Part, be entered in the Construction List any proceedings which:

(a)  are not proceedings for trial by a jury or proceedings on a claim for damages in respect of the death of, or personal injuries to, any person, and

(b)  are:

(i)  an appeal under Part 5 of the Builders Licensing Act 1971,

(ii)  proceedings relating to or arising out of:

(a)  the design, carrying out, supervision or inspection of any building or engineering work,

(b)  the performance by any building or engineering expert of any other services with respect to any building or engineering work, or

(c)  any certificate, advice or information given or withheld with respect to any building or engineering work, or

(iii)  proceedings on a claim for rectification, setting aside or cancellation of any agreement with respect to any matter mentioned in subparagraph (ii).

rule 24A.3: Ins 1.5.1987. Am 1.3.1996.

4 Entry in list on commencement of proceedings

(1)  Where, in proceedings which may under rule 3 be entered in the Construction List, a plaintiff on his statement of claim, or a defendant on the notice of the grounds of his defence, requires the proceedings to be so entered, the proceedings shall be so entered without any order of the Court.

(2)  A requirement under subrule (1) shall be made by a party adding “Construction List” next under the heading and title on his statement of claim or the notice of the grounds of his defence, as the case may require.

rules 24A.4–24A.7: Ins 1.5.1987. Am 24.8.1990; 8.12.1995; 1.3.1996; 24.4.1998.

5 Entry in list by consent

Unless the Court otherwise orders, proceedings which may under rule 3 be entered in the Construction List shall be so entered on the filing, after a notice of grounds of defence has been filed, of a consent order for that entry.

rules 24A.4–24A.7: Ins 1.5.1987. Am 24.8.1990; 8.12.1995; 1.3.1996; 24.4.1998.

6 Motion for entry in list

(1)  A plaintiff, or a defendant who has filed notice of the grounds of his defence in any proceedings, may move under Part 16 for entry of the proceedings in the Construction List at any time after a notice of grounds of defence has been filed.

(2)  A motion mentioned in subrule (1) shall be returnable before a Judge appointed by the Chief Judge for the control of proceedings in the Construction List.

(3)  A party moving on notice for an order for entry of any proceedings in the Construction List shall, as far as practicable, move at the same time for such other directions and orders relating to the conduct of the proceedings as he may require.

rules 24A.4–24A.7: Ins 1.5.1987. Am 24.8.1990; 8.12.1995; 1.3.1996; 24.4.1998.

7 Order for entry in list

The Court may of its own motion direct that any proceedings which may under rule 3 be entered in the Construction List be so entered.

rules 24A.4–24A.7: Ins 1.5.1987. Am 24.8.1990; 8.12.1995; 1.3.1996; 24.4.1998.

8 Directions

(1)  Where a Judge makes an order, on motion, for the entry of any proceedings in the Construction List, the proceedings shall thereupon be before him for directions under this rule.

(2)  Where any proceedings are entered in the Construction List under rule 4 or 5, the registrar shall, as soon as convenient, list the proceedings before a Judge (appointed by the Chief Judge for the control of proceedings in the Construction List) for directions under this rule, and shall advise the parties of the listing.

(3)  Where any proceedings are before a Judge for directions under this rule, the Judge may give such directions as he thinks fit concerning the preparation of the proceedings for trial, the conduct of the trial, and the adducing of evidence at or before the trial.

(4)  Without limiting the generality of subrule (1), directions which may be given under that subrule include directions as to the times within which, and the modes in which, particulars are to be given, lists of documents are to be prepared and exchanged, documents are to be inspected, and Scott Schedules are to be served and completed.

(5)  A direction given under this rule, and an order made in respect of non-compliance with such a direction, shall apply notwithstanding any time, mode, or penalty for non-compliance otherwise fixed by the rules or the practice of the Court.

rule 24A.8: Ins 1.5.1987. Am 24.8.1990; 1.3.1996.

9 Removal from list

(1)  Where any proceedings are entered in the Construction List, the Court, on the application of a party or of its own motion, may, if it is satisfied that it is proper to do so, order, on terms, that the proceedings be removed from that list, and may give such further directions as to the continuance of the proceedings as it thinks fit.

(2)  Notice of motion for an order under subrule (1) shall be filed and served before the proceedings are before a Judge for directions under rule 8.

rule 24A.9: Ins 1.5.1987. Am 1.3.1996.

Part 24B Commercial List

pt 24B: Ins 25.5.1990.

1 Commercial List

The registrar for Sydney shall keep a Commercial List, and shall enter proceedings in that List in accordance with this Part.

rule 24B.1: Ins 25.5.1990. Subst 8.12.1995.

2 Proceedings for entry in List

There may, subject to this Part, be entered in the Commercial List any proceedings which:

(a)  are not proceedings for trial by a jury or proceedings on a claim for damages in respect of the death of, or personal injuries to, any person,

(b)  are not proceedings which may be entered in the Building and Engineering List, and

(c)  are proceedings:

(i)  arising out of commercial transactions, or

(ii)  in which there is an issue that has importance in trade or commerce.

(d)    (Repealed)

rule 24B.2: Ins 25.5.1990. Am 28.8.1992; 8.12.1995.

3 Entry in List on commencement of proceedings

(1)  Where, in proceedings which may under rule 2 be entered in the Commercial List, a plaintiff on his statement of claim, or a defendant on the notice of the grounds of his defence, requires the proceedings to be so entered, the proceedings shall be so entered without any order of the Court.

(2)  A requirement under subrule (1) shall be made by a party adding “Commercial List” next under the heading and title on his statement of claim or the notice of the grounds of his defence, as the case may require.

rules 24B.3–24B.6: Ins 25.5.1990. Am 24.8.1990; 8.12.1995; 24.4.1998.

4 Entry in List by consent

Unless the Court otherwise orders, proceedings which may under rule 2 be entered in the Commercial List shall be so entered on the filing, after a notice of grounds of defence has been filed, of a consent order for that entry.

rules 24B.3–24B.6: Ins 25.5.1990. Am 24.8.1990; 8.12.1995; 24.4.1998.

5 Motion for entry in List

(1)  A plaintiff, or a defendant who has filed notice of the grounds of his defence in any proceedings, may move under Part 16 for entry of the proceedings in the Commercial List at any time after a notice of grounds of defence has been filed.

(2)  A motion mentioned in subrule (1) shall be returnable before a Judge appointed by the Chief Judge for the control of proceedings in the Commercial List.

(3)  A party moving on notice for an order for entry of any proceedings in the Commercial List shall, as far as practicable, move at the same time for such other directions and orders relating to the conduct of the proceedings as he may require.

rules 24B.3–24B.6: Ins 25.5.1990. Am 24.8.1990; 8.12.1995; 24.4.1998.

6 Order for entry in List

The Court may of its own motion direct that any proceedings which may under rule 2 be entered in the Commercial List be so entered.

rules 24B.3–24B.6: Ins 25.5.1990. Am 24.8.1990; 8.12.1995; 24.4.1998.

7 Directions

(1)  Where a Judge makes an order under rule 5 for the entry of any proceedings in the Commercial List, the proceedings shall thereupon be before him for directions under this rule.

(2)  Where any proceedings are entered in the Commercial List under rule 3, 4 or 6, the registrar shall, as soon as convenient, list the proceedings before a Judge (appointed by the Chief Judge for the control of proceedings in the Commercial List) for directions under this rule, and shall advise the parties of the listing.

(3)  Where any proceedings are before a Judge for directions under this rule, the Judge may give such directions as he thinks fit concerning the preparation of the proceedings for trial, the conduct of the trial, and the adducing of evidence at or before the trial.

(4)  Without limiting the generality of subrule (1), directions which may be given under that subrule include directions as to the times within which, and the modes in which, particulars are to be given, lists of documents are to be prepared and exchanged, documents are to be inspected, and interrogatories are to be administered and answered.

(5)  A direction given under this rule, and an order made in respect of non-compliance with such a direction, shall apply notwithstanding any time, mode, or penalty for non-compliance otherwise fixed by the rules or the practice of the Court.

rule 24B.7: Ins 25.5.1990. Am 24.8.1990; 8.12.1995.

8 Removal from List

(1)  Where any proceedings are entered in the Commercial List, the Court on the application of a party or of its own motion, may, if it is satisfied that it is proper to do so, order, on terms, that the proceedings be removed from that List, and may give such further directions as to the continuance of the proceedings as it thinks fit.

(2)  Notice of motion for an order under subrule (1) shall be filed and served before the proceedings are before a Judge for directions under rule 7.

(3)  Without limiting the generality of subrule (1), the Court shall under that subrule order that proceedings be removed from the Commercial List if it is of the opinion that the proceedings are not proceedings which may under rule 2 be entered in that List.

rule 24B.8: Ins 25.5.1990.

Part 24C Motor Accidents List

pt 24C: Ins 28.2.1992. Rep 16.4.1992. Ins 16.4.1992.

Division 1 Actions under the Motor Accidents Act 1988

pt 24C, div 1, hdg: Ins 24.12.1999 (see also 14.1.2000).

1 Interpretation

(1)  In this Division, action under the Act means proceedings commenced on or after 1 July 1992 in respect of a claim within the meaning of Part 5 of the Motor Accidents Act 1988.

(2)  This Division applies to an action under the Act notwithstanding anything in these Rules other than this Division.

rule 24C.1: Ins 28.2.1992. Rep 16.4.1992. Ins 16.4.1992. Am 24.12.1999 (see also 14.1.2000).

2 Motor Accidents List

(1)  The registrar for each proclaimed place shall maintain a Motor Accidents List and shall enter in that List any action under the Act as soon as the action is commenced.

(2)  The statement of claim in an action under the Act shall bear in the heading the words “Motor Accidents List”, and shall have attached to it as a separate document:

(a)  a statement of the date on which the accident the subject of the action occurred,

(b)  a statement that the accident was reported in compliance with section 42 of the Motor Accidents Act 1988, or an indication of what explanation will be offered to the Court for non-compliance,

(c)  a statement that a claim was made in respect of the accident in compliance with section 43 of that Act, or an indication of what explanation will be, or has been, provided under section 43A of that Act, and

(d)  where the action is commenced before the time prescribed by section 52 (1A) of that Act, an indication of the grounds on which the plaintiff relies as referred to in section 52 (2) of that Act, and

(e)  where the action is commenced after the time prescribed by section 52 (4) of that Act, a statement that leave of the Court has been granted as referred to in that subsection.

(3)    (Repealed)

rule 24C.2: Ins 28.2.1992. Rep 16.4.1992. Ins 16.4.1992. Am 9.10.1992; 31.3.1994; 18.10.1996 (but see erratum 25.10.1996).

3 Service of statement of claim (by post or otherwise)

(1)  The statement of claim in an action under the Act shall be served on the defendant and the defendant’s insurer.

(2)  Service of a statement of claim in an action under the Act may be effected as though the statement of claim were a notice or other document referred to in section 133 of the Motor Accidents Act 1988.

(3)  The requirement in subrule (1) for service on the defendant’s insurer is satisfied by service:

(a)  where the defendant is the Nominal Defendant under the Motor Accidents Compensation Act 1999—on the Nominal Defendant,

(b)  where the defendant is an insured person for the purposes of that Act—on the defendant’s third party insurer, or

(c)  where the defendant is insured, in respect of the liability alleged in the action, under a policy issued other than in New South Wales—on the insurer who issued the policy.

rule 24C.3: Ins 28.2.1992. Rep 16.4.1992. Ins 16.4.1992. Am 26.6.1992; 18.11.1994; 23.6.1995; 6.10.1995; 24.12.1999 (see also 14.1.2000).

4–7 (Repealed)

rule 24C.4: Ins 28.2.1992. Rep 16.4.1992. Ins 16.4.1992. Am 17.2.1995; 8.12.1995. Rep 24.4.1998.

rule 24C.5: Ins 28.2.1992. Rep 16.4.1992. Ins 16.4.1992. Am 26.6.1992. Rep 24.4.1998.

rule 24C.6: Ins 28.2.1992. Rep 16.4.1992. Ins 16.4.1992. Am 26.2.1993. Rep 24.4.1998.

rule 24C.7: Ins 28.2.1992. Rep 16.4.1992. Ins 16.4.1992. Am 23.6.1995. Rep 24.4.1998.

8 Non-compliance with Act

A defendant may not move the Court to dismiss an action under the Act on the ground that:

(a)  the accident the subject of the action was not reported in compliance with section 42, or

(b)    (Repealed)

(c)  the action was commenced outside a relevant time period as prescribed by operation of section 52,

of the Motor Accidents Act 1988 unless the defendant so moves within 2 months after service on the defendant’s insurer of the statement of claim in the action.

rule 24C.8: Ins 16.4.1992. Am 31.3.1994; 19.12.1997; 7.7.2000.

Division 2 Actions under the Motor Accidents Compensation Act 1999

pt 24C, div 2 (Rules 24C.9–24C.13): Ins 24.12.1999 (see also 14.1.2000).

9 Interpretation

(1)  In this Division, action under the Act means proceedings in respect of a claim to which Chapter 4 of the Motor Accidents Compensation Act 1999 applies.

(2)  This Division applies to an action under the Act despite anything in these Rules other than this Division.

pt 24C, div 2 (Rules 24C.9–24C.13): Ins 24.12.1999 (see also 14.1.2000).

10 Motor Accidents List

The registrar must enter into the Motor Accidents List maintained under rule 2 any action under the Act as soon as the action is commenced.

pt 24C, div 2 (Rules 24C.9–24C.13): Ins 24.12.1999 (see also 14.1.2000).

11 Statement of claim

The statement of claim in an action under the Act must bear in the heading the words “Motor Accidents Compensation Act 1999” and must have attached to it as a separate document:

(a)  a statement of the date on which the accident the subject of the action occurred, and

(b)  a statement that the accident was reported in compliance with section 70 of the Motor Accidents Compensation Act 1999, and

(c)  a statement that the claim is made in respect of the accident in compliance with section 72 of that Act or an indication of what explanation will be, or has been, provided under section 73 of that Act, and

(d)  a statement that a certificate in respect of the claim has been issued under section 92 or 94 of that Act and as to the provision under which that certificate was issued, and

(e)  where the action is commenced after the time prescribed by section 109 of that Act—a statement that leave of the Court has been granted as referred to in that section.

pt 24C, div 2 (Rules 24C.9–24C.13): Ins 24.12.1999 (see also 14.1.2000).

12 Service of statement of claim

(1)  The statement of claim in an action under the Act must be served on the defendant and, where the defendant’s insurer is a third-party insurer within the meaning of the Motor Accidents Compensation Act 1999, on the defendant’s insurer.

(2)  Service of a statement of claim in an action under the Act may be effected as though the statement of claim were a notice or other document referred to in section 222 of the Motor Accidents Compensation Act 1999.

(3)  The requirement in subrule (1) for service on the defendant’s insurer is satisfied by service:

(a)  where the defendant is the Nominal Defendant under the Motor Accidents Compensation Act 1999—on the Nominal Defendant, or

(b)  where the defendant is insured in respect of the liability alleged in the action under a policy issued other than in New South Wales—on the insurer who issued the policy.

pt 24C, div 2 (Rules 24C.9–24C.13): Ins 24.12.1999 (see also 14.1.2000).

13 Non-compliance with Act

A defendant may not move the Court to dismiss an action under the Act on the ground that the accident the subject of the action was not reported as referred to in section 70 of the Motor Accidents Compensation Act 1999 unless the defendant so moves within 2 months after service of the statement of claim in the action on:

(a)  where the defendant is a third-party insurer—the insurer, or

(b)  where the defendant’s insurer is not a third-party insurer—the defendant.

pt 24C, div 2 (Rules 24C.9–24C.13): Ins 24.12.1999 (see also 14.1.2000).

Part 25 Evidence otherwise than at the trial

pt 25, Heading: Subst 6.12.1996.

1 Order for examination of witness cf Act No 23, 1912, s 83 (1).

The Court may, for the purpose of proceedings in the Court, make orders for the examination of any person before a Judge or other officer of the Court or before such other person as the Court may appoint as examiner at any place:

(a)  in the State or out of the State in Australia, or

(b)  out of Australia.

rule 25.1: Subst 6.12.1996.

2 Evidence admissible Act No 23, 1912, s 83 (2).

The evidence of a witness taken under rule 1 shall be admissible, subject to all just exceptions, at the trial of the proceedings unless it is proved that the witness is, at the time of the trial, within a convenient distance of the place at which the proceedings is being tried and able to attend.

rules 25.2, 25.3: Am 6.12.1996.

3 Expenses DCR r 216.

A witness attending before an examiner to be examined, or to produce a document, as allowed by an order under rule 1 shall be entitled to payment of the like amount for conduct money expenses and loss of time as he would have been entitled to upon his attending to give evidence or to produce a document at the trial of the proceedings before the Court.

rules 25.2, 25.3: Am 6.12.1996.

3A Evidence otherwise than on oath

Unless the Court otherwise orders:

(a)  a person may be examined in another country pursuant to an order under rule 1 (b), or

(b)  evidence of a person may be taken in another country pursuant to an order under sections 7 (1) (c) and 10 of the Foreign Evidence Act 1994 (Commonwealth),

otherwise than on oath or affirmation if the person is examined in accordance with the procedure of the country.

rule 25.3A: Ins 6.12.1996.

4 Documents for examiner SCR Pt 27, r 3.

(1)  The party obtaining an order under rule 1 shall furnish the examiner specified in the order with copies of such of the documents in the proceedings as are necessary to inform the examiner of the questions to which the examination is to relate.

(2)  Where the documents in the proceedings are not sufficient to inform the examiner of the questions to which the examination is to relate the Court shall, in the order under rule 1 or in a later order, state those questions.

(3)  This rule does not apply where a Judge is the examiner.

rules 25.4–25.6: Am 6.12.1996.

5 Appointment for examination cf SCR Pt 27, r 4.

(1)  The examiner shall appoint a place and time for the examination.

(2)  The time appointed shall, having regard to the convenience of the witness to be examined, and to the circumstances, be as soon as practicable after the making of the order.

(3)  The examiner shall give notice of an appointment under this rule to the party obtaining the order and that party shall, not later than the earlier of:

(a)  3 days, or

(b)  a reasonable time,

before the time appointed, give notice of the appointment to each other party.

rules 25.4–25.6: Am 6.12.1996.

6 Conduct of examination cf SCR Pt 27, r 5.

(1)  The examiner shall permit each party, his counsel and solicitor to attend the examination.

(1A)  Subject to this Part, the proceedings before the examiner shall be in accordance with the procedure of the Court.

(2)  A witness examined before an examiner may, unless the Court otherwise orders, be cross-examined and re-examined.

(3)  The examination, cross-examination and re-examination of a witness before an examiner shall, unless the Court otherwise orders, be conducted in like manner as at a trial.

(4)  The examiner may put any question to a witness examined before him as to:

(a)  the meaning of any answer made by the witness, or

(b)  any matter arising in the course of the examination.

(5)  The examiner may adjourn the examination from time to time and from place to place.

rules 25.4–25.6: Am 6.12.1996.

7 Examination of additional persons SCR Pt 27, r 6.

(1)  Where the examiner is a Judge, the examiner may, on application of a party to the proceedings, take the examination of any person not named or provided for in the order for examination.

(2)  Where the examiner is not a Judge, the examiner may, with the consent in writing of each party to the proceedings, take the examination of any person not named or provided for in the order for examination and, if he does so, he shall annex to the written record or transcript of the deposition of that person the consent of each of the parties.

rules 25.7, 25.8: Subst 6.12.1996.

8 Objection SCR Pt 27, r 7.

(1)  Where objection is taken to a question put to a person being examined before an examiner, or a person being so examined takes objection to answering a question put to him or to producing any document or thing:

(a)  the examiner shall state to the parties his opinion on, but shall not decide, the validity of the ground for the objection,

(b)  the question, the ground for the objection, the opinion of the examiner, and the answer (if any) must be set out in the written record or transcript of the deposition of that person or in a statement attached to the written record or transcript,

(c)  the Court may, on motion by any party, decide the validity of the ground for the objection, and

(d)  if the Court decides against the objector, the Court may order him to pay the costs occasioned by the objection.

(2)  This rule does not apply where the examiner is a Judge.

rules 25.7, 25.8: Subst 6.12.1996.

9 Taking of depositions

(1)  The deposition of a person examined before an examiner shall be recorded by means of writing, shorthand, stenotype machine or sound-recording apparatus.

(2)  The deposition must contain as nearly as may be the statement of the person examined.

(3)  The examiner may direct that the words of any question and the answer to the question be recorded.

(4)  Subject to subrules (2) and (3) and subject to rule 8 (b) every question and answer need not be recorded.

rules 25.9, 25.10: Subst 17.2.1995.

10 Videotaping etc the examination

The Court or the examiner may give directions for making, by any audio-visual method, a recording of proceedings on an examination.

rules 25.9, 25.10: Subst 17.2.1995.

10A Authentication and filing

(1)  Where, for the purposes of rule 9 (1), the deposition of a person examined is recorded by means of writing, the written record shall be read over either to or by the person, as the examiner may direct, and be signed by the person examined.

(2)  A transcript shall be prepared of a deposition recorded by one of the means, other than writing, referred to in rule 9 (1) and the person who prepared the transcript shall certify that it is a correct transcript of the deposition so recorded.

(3)  The examiner shall authenticate by his signature the written record or transcript of the deposition and any document which constitutes a recording under rule 10.

(4)  The examiner shall make on, or attach to, the written record or transcript of the deposition a note signed by him of the time occupied in the examination and the fees received by him in respect of the examination.

(5)  The examiner shall send the written record or transcript of the deposition and any document which constitutes a recording under rule 10 to the registrar and the registrar shall file them in the proceedings.

(6)  The examiner shall, unless the Court otherwise orders, send the exhibits to the registrar and the registrar shall deal with the exhibits in such a manner as the Court may direct.

(7)  Subrules (1), (2), (4) and (5) do not apply where the examiner is a Judge.

rule 25.10A: Ins 17.2.1995.

11 Special report SCR Pt 27, r 10.

(1)  The examiner may make to the Court a special report with regard to an examination before him and with regard to the absence of any person from, or the conduct of any person at, the examination.

(2)  The Court may direct such proceedings to be taken, or make such order, on the report as the Court thinks fit.

Part 26 Trial

1A Interpretation

For the purposes of this Part:

(a)  where the burden of proof on any issue lies on the plaintiff, he shall be the beginning party and the defendant shall be the opposite party, and

(b)  where the burden of proof on all the issues lies on the defendant, he shall be the beginning party and the plaintiff shall be the opposite party.

rule 26.1A: Ins 6.12.1996.

1 Information for Sheriff cf DCR rr 238, 239 (1).

Where any action for trial with a jury is set down for trial, and is reasonably expected by the registrar to proceed to trial, at or during a sittings, the registrar shall, 14 days at least before the sittings commences, so inform the Sheriff in writing.

rule 26.1: Subst 6.12.1996.

2 Where action does not proceed cf DCR r 243.

(1)  Where a jury has been summoned for the trial of an action, and the party who paid the jury fee becomes aware that, due to settlement, adjournment or other cause, the action will not proceed to trial on the day for which the jury has been summoned, the party shall as soon as practicable so inform the registrar.

cf DCR r 242.

(2)  Where a party so informs the registrar in sufficient time to enable the cancellation of the jury, the registrar shall, if no other action is for trial by that jury on the day for which the jury has been summoned, advise the persons summoned as jurors, by any means reasonably available to him, that their attendance on that day is not required.

(3)  Where:

(a)  an action is for trial with a jury,

(b)  a sufficient number of jurors attend to try the action on the day on which the action is for trial, and

(c)  the trial of the action is on that day adjourned,

the party who paid the jury fee shall, within fourteen days after the adjournment, pay again to the registrar the amount of the jury fee, and if the fee is not again paid to the registrar by any party the action shall proceed to trial without a jury.

3 Trial after disagreement of jury cf DCR r 244.

Where a jury fails to agree upon its verdict the action shall, unless the Court otherwise orders, be listed for directions on the next day reasonably available to the Court and suitable to the parties, as an action for trial with a jury, without the payment of any fresh jury fee, and the registrar shall as soon as practicable advise the parties of the date or sittings for which the action is so listed.

rule 26.3: Am 5.9.1986; 24.4.1998.

4 Time and place of trial SCR Pt 34, r 4.

(1)  Where proceedings have been set down for trial at a specified sittings or on a specified date, the trial may be held at that or any later sittings or on that or any later date, as the case may be.

(2)  Notwithstanding subrule (1) and notwithstanding the setting down of any proceedings for trial, the Court may make such order as it thinks fit for fixing the time and place of trial.

rule 26.4: Am 24.4.1998.

5 Publication of court lists

(1)  The registrar is to exhibit a list in each court house of all the proceedings that may be called on for hearing in the court house (the court list) on the day on which the proceedings are called on for hearing.

(2)  The court list may contain such information concerning the proceedings as the registrar considers necessary to assist the Court in the exercise of its functions in relation to those proceedings.

(3)  The court list is to be exhibited in some conspicuous place in the precincts of the court house before the proceedings are called on for hearing.

(4)  The court list does not have to be exhibited during the hours on that day when the registry is open to the public for business.

(5)  Proceedings that have not been listed on a court list in accordance with subrules (1)–(3) may not be called on for hearing without the leave of the Court.

(6)  Without limiting subrules (1)–(5), the registrar may also cause the court list to be published:

(a)  in any newspaper or other periodical, or

(b)  by email or facsimile, on the internet or by any other electronic means.

rule 26.5: Subst 21.9.2001.

5A Action called on for trial

(1)  Subject to these rules, where an action that has been set down for trial is called on for trial:

(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 trial 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 trial 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 trial 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, 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)  Subrule (2) does not enable the Court to vary the verdict, finding or assessment of a jury at a trial except with the consent of each interested party present at the trial.

(4)  A motion to set aside a judgment under subrule (2) must be made on notice and the notice must be filed and served not more than 7 days after the giving of the judgment.

rule 26.5A: Ins 14.6.1985. Am 6.12.1996.

5AA Separate decision of question of law

(1)  In this rule, question includes any question or issue in any proceedings, whether raised by pleadings, agreement of parties or otherwise.

(2)  The Court may make orders for the decision of any question of law, or partly of fact and partly of law, separately from any other question of fact or law, or partly of fact and partly of law, whether before, at or after any trial or further trial in the proceedings.

rule 26.5AA: Ins 10.6.1988.

5B (Repealed)

rule 26.5B: Ins 14.6.1985. Rep 24.12.1999.

6 Conduct of the trial SCR Pt 34, rr 1, 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 trial.

(3)  Subject to subrule (2):

(a)  where the only parties 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 his case and may then adduce his 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 his case and then the opposite party may make an address stating his case.

(7)  If, pursuant to subrule (5), the opposite party elects to adduce evidence, the opposite party may make an opening address before adducing his evidence and after adducing his evidence he may make an address closing his case and thereupon the beginning party may make an address closing his case.

rule 26.6: Am 6.12.1996.

6A Dismissal on plaintiff’s application

The Court, on the application of any party making a claim for relief in any proceedings, may, at any time but, in the case of trial with a jury, before verdict, make an order, on terms, for the dismissal of the proceedings so far as concerns any cause of action or the whole or any part of any claim for relief made by him.

rule 26.6A: Ins 6.12.1996.

7 Dismissal cf SCR Pt 34, r 7.

(1)  This rule applies to the trial of an action with or without a jury.

(2)    (Repealed)

(3)  Where the plaintiff is the beginning party, and no verdict has been returned or judgment given, a defendant may, at any time after the conclusion of the evidence for the plaintiff in his case in chief, move for an order of dismissal of the proceedings, or of the proceedings 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 or verdict for the plaintiff could not be supported.

(4)  The plaintiff may decline to argue the question raised by the defendant’s motion under subrule (3).

(5)  Unless the plaintiff declines to argue the question pursuant to subrule (4), the Court shall, if the ground of the motion of the defendant is established, make an order of dismissal of the proceedings, or of the proceedings so far as concerns the cause of action in question, as the nature of the case requires.

(6)  If the plaintiff declines to argue the question, or if the motion of the defendant is refused, the defendant may adduce evidence or further evidence, or make an application under rule 8.

(7)    (Repealed)

(8)  Where fewer than all defendants move the Court under subrule (3), the Court shall not entertain the motion before the conclusion of the evidence given for all parties.

rule 26.7: Am 3.12.1976; 10.6.1988; 18.10.1996; 6.12.1996.

8 Judgment by direction cf SCR Pt 34, r 8.

(1)  This rule applies to a trial.

(2)  An opposite party may, after the conclusion of the evidence in the beginning party’s case in chief or after the conclusion of the evidence given for all parties, move the Court for an order directing the entry of judgment for that opposite party in the proceedings generally or on any claim for relief in the proceedings on the ground that, on the evidence given, an order directing the entry of judgment for the beginning party could not be supported.

(3)  Where the ground of an opposite party’s motion under subrule (2) is established, the Court shall direct the entry of judgment for the opposite party accordingly.

(4)  Where an opposite party moves the Court under subrule (2), he may not adduce evidence or further evidence in the proceedings generally or on the claim for relief in question, as the case may be.

(5)  Where fewer than all opposite parties move the Court under subrule (2), the Court shall not entertain the motion before the conclusion of the evidence given for all parties.

rule 26.8: Subst 3.12.1976.

8A Record

The Associate, or other proper officer present at the trial, shall be clerk at the trial and shall maintain and complete a record of the trial.

rule 26.8A: Ins 6.12.1996.

9 Stay to secure costs cf DCR r 249.

Where:

(a)  the Court makes an order of dismissal of an action,

(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.

rule 26.9: Am 19.8.1988; 7.7.2000.

10 (Repealed)

rule 26.10: Rep 18.10.1996.

Part 27 Assessment

1 Separate claims SCR Pt 35, r 1 (2).

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 trial 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 trial in the action and the action shall be set down for trial accordingly.

2 Damages to time of assessment SCR Pt 35, r 3.

(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 proceedings.

(2)  Subrule (1) applies to the assessment of damages under this Part or otherwise.

rule 27.2: Am 6.12.1996.

Part 28 Evidence: general

1 Interpretation SCR Pt 36, r 1.

In this Part, unless the context or subject matter otherwise indicates or requires:

issue at a trial means an issue of fact at a trial arising on any claim for relief in the proceedings, and includes a question of fact at a trial after an order for judgment has been made.

trial means a trial in an action, and includes an assessment of the amount to be recovered by the plaintiff after an order for judgment has been made.

2 Witnesses at a trial

(1)  Subject to subrules (2), (3) and (4), the evidence of any witness on any issue at a trial shall be given orally before the Court.

(2)  The Court may, on terms, order that evidence of particular facts be given by affidavit.

(3)  Subrule (1) applies subject to:

(a)  the Act,

(b)  the rules,

(c)  any direction of the Court,

(d)  any agreement between the parties, and

(e)  sections 29 (4) and 31 of the Evidence Act 1995.

(4)  Where the only matters in question are:

(a)  on a claim for a liquidated demand and for an order for interest under section 83A of the Act, interest, and

(b)  costs,

evidence of facts at the trial arising on the matter of interest may, unless the Court otherwise orders, be given by affidavit.

(5)  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 may be given by affidavit.

rule 28.2: Am 29.5.1992; 6.10.1995. Subst 6.12.1996.

2A Evidence by telephone, video link etc

The Court may in any proceedings order, on terms, that evidence or submissions may be received by telephone, video link or other form of communication.

rule 28.2A: Ins 8.12.1995.

3 Witness on other occasions SCR Pt 36, r 3.

(1)  Subject to rule 2, the evidence in chief of any witness may, unless the Court otherwise orders, be given by affidavit.

(2)  Where, under subrule (1), the evidence in chief of a witness may be given by affidavit, his evidence in chief shall not, unless the Court otherwise orders, be given orally.

4 (Repealed)

rule 28.4: Am 6.7.1984. Rep 6.12.1996.

4A Informal proof

The Court may at any stage of any proceedings 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 proceedings.

rule 28.4A: Ins 14.6.1985.

5, 5A (Repealed)

rule 28.5: Rep 6.10.1995.

rule 28.5A: Ins 2.6.1989. Rep 6.10.1995.

6 Earlier evidence in the proceedings SCR Pt 36, r 5.

(1)  Subject to subrule (2), evidence taken in proceedings may be used subsequently in the proceedings.

(2)  Subrule (1) does not enable the use, as evidence on any issue at a trial, of evidence taken before the trial, but:

(a)  evidence at a trial may be used on an assessment of the amount to be recovered by a plaintiff after an order for judgment has been made in the same action, and

(b)  evidence taken in proceedings may, with the leave of the Court, be used as evidence on any issue at a trial in the proceedings in relation to the proof of particular facts.

7 Depositions SCR Pt 36, r 6.

(1)  Subject to this Part, a deposition taken in any proceedings is not admissible in evidence in the proceedings unless taken pursuant to Part 25.

(2)  Subject to subrule (3), and subject to rule 4A, a deposition taken in any proceedings (other than a deposition taken pursuant to Part 25) is not admissible in evidence on any issue at a trial in the proceedings unless:

(a)  the party against whom the deposition is tendered consents to the admission, or

(b)  the deponent is dead or cannot be compelled or is unable through sickness or other infirmity to attend the trial.

(3)  The Court may admit a deposition in evidence on any issue at a trial in relation to the proof of particular facts.

(4)  Except as evidence on any issue at a trial, a deposition taken in any proceedings is admissible in evidence in the proceedings, but the Court may direct that the deposition be not admissible unless the party tendering it produces the deponent for cross-examination.

(5)  Evidence that a case falls within subrule (2) (b) may, unless the Court otherwise orders, be given by affidavit on information and belief, but the person making the affidavit must give the source and ground of the information.

rule 28.7: Am 14.6.1985.

7A (Repealed)

rule 28.7A: Ins 14.6.1985. Rep 6.7.1990.

8 Expert evidence and hospital reports cf SCR Pt 36, r 13A.

(1)  This rule applies to any proceedings in the Court.

(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 trial.

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 trial.

(3)  Unless the Court otherwise orders, in proceedings to which this rule applies, each party to the proceedings shall, at least 28 days before the trial, serve experts’ reports and hospital reports on each other party who has an address for service in the proceedings.

(4)    (Repealed)

(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 proceedings to which this rule applies, except with the leave of the Court or by consent of the parties:

(a)  the oral expert 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 purpose of subrule (6), evidence is covered by a report if the report contains the substance of the matters sought to be adduced in evidence.

rule 28.8 (previously Rule 28.9): Am 19.4.1984; 5.9.1986. Subst 21.11.1986. Am 6.10.1995. Renumbered 6.12.1996. Am 24.4.1998; 24.12.1999.

9 Expert’s report admissible

(1)  Subject to rule 9C (2) (b) (ii), where an expert’s report is served in accordance with rule 8 or an order is made under rule 8 (3), the report is admissible as evidence of the expert’s opinion and, where the expert’s direct oral evidence of a fact upon which the opinion was formed would be admissible, as evidence of that fact, without further evidence, oral or otherwise.

(2)  A party may, unless the Court otherwise orders, at least 7 days before the date first scheduled for a status conference or call-over in the action, require the attendance for cross-examination of the expert.

(2A)  A party who requires the attendance of a person under subrule (2) is to procure that attendance, and, whether the party procures the attendance by the issue and service of a subpoena or otherwise, the person does not thereby become the party’s witness except for the purpose of determining any liability for conduct money or witness’ expenses.

(2B)  A party who requires the attendance of a person as mentioned in subrule (2A) must:

(a)  inform all other parties to the proceedings that the party has done so at least 24 hours before the date first scheduled for a status conference or call-over in the action, and

(b)  pay to the person whose attendance is required (whether before or after the attendance) an amount sufficient to meet the person’s reasonable expenses (including any standby fees) in complying with the requirement.

(3)  The parties may not by consent abridge the time fixed by or under subrule (2).

(4)  A requirement under subrule (2) shall be made to the party who served the report.

(5)  Where the attendance of an expert is required under subrule (2), his report shall not be tendered under section 63 or section 64 or section 69 of the Evidence Act 1995 or otherwise used unless the person attends or is dead or the Court grants leave to use it.

(6)  Where an expert attends pursuant to a requirement under subrule (2), the party using the report may re-examine him.

rule 28.9 (previously Rule 28.8): Am 21.9.1984, 5.9.1986; 21.11.1986; 6.10.1995. Renumbered 6.12.1996. Subst 6.12.1996. Am 11.6.1999; 7.7.2000; 26.10.2001.

9A 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 28 days before the hearing.

(1A)  A notice mentioned in this rule shall be signed by the intended witness to whose evidence the notice relates, unless the signature of the intended witness cannot be procured or the Court otherwise orders.

(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.

rule 28.9A: Ins 24.10.1975. Rep 30.7.1976. Ins 6.10.1995. Am 6.12.1996.

9B Service of experts’ reports in professional negligence claims

(1)  A person instituting a professional negligence claim (other than a claim against a barrister or a solicitor) must, unless the Court otherwise orders, file and serve, with the statement of claim or cross-claim instituting the professional negligence claim, an expert’s report or experts’ reports which includes or include an opinion supporting:

(a)  breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence, and

(b)  the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and

(c)  the causal relationship alleged between such breach of duty or obligation and the damage alleged.

(2)  In the case of a professional negligence claim against a barrister or a solicitor, the Court may order the plaintiff or cross-claimant to file and serve an expert’s report or experts’ reports supporting the claim.

(3)  If a party fails to comply with subrule (1) or (2), the Court may by order, on the application of a party or of its own motion dismiss the whole or any part of the proceedings (including a cross-claim), as may be appropriate.

(4)  In this rule:

expert, in relation to any question, means a person who has such knowledge or experience of, or in connection with, that question, or questions of the character of that question, that his or her opinion on that question would be admissible in evidence.

professional negligence means the breach of a duty of care or of a contractual obligation in the performance of professional work or in the provision of professional services by a medical practitioner, an allied health professional (eg dentist, chemist, physiotherapist), a hospital, a solicitor or a barrister.

professional negligence claim means a claim in the Court for damages, indemnity or contribution based on an assertion of professional negligence, whether made by statement of claim or by cross-claim.

rule 28.9B: Ins 11.6.1999.

9C Expert witnesses

(1)  For the purposes of this rule and rule 9D:

expert witness means an expert engaged solely 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 the 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 to 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.

rules 28.9C, 28.9D: Ins 7.7.2000.

9D Conference between experts

(1)  The 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)  An agreement reached during the conference does not bind the parties affected except to the extent that they expressly agree.

rules 28.9C, 28.9D: Ins 7.7.2000.

10 Evidence in other proceedings SCR Pt 36, r 7.

(1)  A party may, with the leave of the Court, but saving all just exceptions, read evidence taken, or an affidavit filed, in other proceedings.

(2)  Subrule (1) does not enable evidence taken, or an affidavit filed, in other proceedings to be read as evidence on any issue at a trial, except in relation to the proof of particular facts.

11 Plans, photographs and models SCR Pt 36, r 8.

(1)  Where a party intends to tender any plan, photograph or model at a trial or hearing, he shall, not less than seven days before the commencement of the trial or hearing, give the other parties an opportunity to inspect it and to agree to its admission without proof.

(2)  Non-compliance with subrule (1) shall not affect the admissibility of a plan, photograph or model.

12 Proof of Court documents SCR Pt 36, r 9.

(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 proceedings 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 is admissible as an office copy of the latter document without further proof.

13 Production of Court documents cf SCR Pt 36, r 10.

Where, for the purpose of any proceedings, a person, by request in writing, requires a registrar to produce to the Court sitting at the proclaimed place for which he is registrar any document in the custody of the registrar, the registrar shall, unless the Court otherwise orders, produce the document in accordance with the request.

13A Unstamped documents: undertaking

(1)  The solicitor’s “usual undertaking as to stamp duty”, if given to the Court by a solicitor in relation to an instrument referred to in section 29 of the Stamp Duties Act 1920, or an unexecuted copy referred to in that section, is an undertaking that the solicitor will cause the instrument or copy to be presented to the Chief Commissioner of Stamp Duties for assessment in accordance with that Act and cause any duty and fine to which the instrument or copy is liable to be paid.

(2)  The “party’s usual undertaking as to stamp duty”, if given to the Court by a party in relation to an instrument referred to in section 29 (4) of the Stamp Duties Act 1920, is an undertaking that the party will within 28 days inform the Chief Commissioner of Stamp Duties of the name of the person primarily liable to duty in respect of the instrument and lodge the instrument or a copy of the instrument with the Chief Commissioner.

rule 28.13A: Ins 6.12.1996.

14 Attendance and production SCR Pt 36, r 12.

(1)  The Court may make orders for:

(a)  the attendance of any person for the purpose of being examined,

(b)  the attendance of any person and production by him of any document or thing described in the order, or

(c)  production by any corporation of any document or thing specified or described in the order.

(2)  An order under subrule (1) may be made for the attendance of any person before, and production by him to, or for the production by any corporation to, the Judge or any officer of the Court, examiner, referee, arbitrator, or other person authorised to take evidence, on any trial hearing or other occasion.

(3)  Subrules (1) and (2) apply whether or not the person required by the order to attend or produce any document or thing has been required to do so by subpoena.

rule 28.14: Subst 6.12.1996.

15 Leading questions to witness SCR Pt 36, r 12A.

Where a person is examined in relation to an investigation, inspection or report made by him in the course of carrying out public or official duties, the party calling the person may, unless the Court otherwise directs, examine that person by asking him leading questions.

15A Examination etc under sec 66A of the Motor Accidents Act 1988 or sec 119 of the Motor Accidents Compensation Act 1999

(1)  The following applications to the Court must be made on notice of motion before the day on which the proceedings commence to be heard unless the Court in special circumstances otherwise orders:

(a)  an application under section 66A (1) of the Motor Accidents Act 1988 or an application for leave of the Court under section 66A (3) or (4) of that Act,

(b)  an application under section 119 (1) of the Motor Accidents Compensation Act 1999 or an application for leave of the Court under section 119 (3) or (4) of that Act.

(2)  A notice of motion referred to in subrule (1) shall be served on all parties to the proceedings (other than the applicant), and, if he is not a party, on the witness sought to be examined or cross-examined.

(3)  The Court may order that, on the hearing of an application referred to in subrule (1), or on the hearing of the proceedings after such an application is granted, any owner or driver who is a party to the proceedings, and any witness who is the subject of leave sought or given under section 66A of the Motor Accidents Act 1988 or section 119 of the Motor Accidents Compensation Act 1999, may be separately represented.

(4)  Where the Court is satisfied that an insurer has not made out his allegation that a claim has not been made in good faith, the Court may if it thinks fit order the insurer to pay the costs of the whole or any specified part of the proceedings incurred by any owner or driver, or any witness whom the insurer has sought leave to examine or cross-examine.

rule 28.15A: Ins 2.6.1989. Am 17.3.2000.

16 Privilege SCR Pt 36, r 13.

(1)  Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel the production of that document or thing except production to the Court for the purpose of ruling on the objection.

(2)  Where a question is put to a person in the course of examination, and any person makes and substantiates sufficient lawful objection on grounds of privilege to the question being answered, the Court shall not compel an answer to the question.

(3)  Subrule (1) applies where an order is made for production to, and subrule (2) applies where a question is put to a person in the course of examination before, the Court or any registrar, examiner, arbitrator or other person authorised to receive evidence whether on a trial or hearing or on any other occasion.

(3A)  Where a party to any proceedings claims privilege from production of any document, the Court may, if it thinks fit:

(a)  permit evidence in relation to the claim to be given by any other party by affidavit or otherwise, and

(b)  permit cross-examination on any affidavit used in support of the claim.

(4)  This rule does not affect any rule of law which authorises or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest.

(5)  Subrules (1), (2) and (3) does not apply to an objection to produce any document or thing or to answer any question on the ground mentioned in subrule (4).

rule 28.16: Am 6.12.1996.

17 Attendance of prisoner cf SCR Pt 36, r 14.

(1)  This rule applies to an application for an order under section 67 of the Act for the purpose of the examination of a person in any proceedings.

(2)  The applicant shall, not less than two days before moving for the order, give to the Crown Solicitor, by letter or otherwise, notice in writing of his intention to apply for the order.

(3)  The applicant may apply for the order by filing at any proclaimed place an affidavit of the facts on which he relies and an order in duplicate.

(4)  The applicant need not, unless the Court otherwise directs, file or serve notice of motion for the order.

18 Production on notice

(1)  Where a party to any proceedings serves on another party notice requiring the party served to produce at any trial or hearing in the proceedings, or before any registrar, examiner or other person having authority to take evidence in the proceedings, any document or thing for the purpose of evidence, and the document or thing is in the possession, custody or power of the party served, the party served shall, unless the Court otherwise orders or the document or thing is a privileged document or thing, produce the document or thing in accordance with the notice, without the need for any subpoena for production.

SCR Pt 36, r 16.

(2)  In this rule:

privileged document or thing, in relation to a notice referred to in subrule (1), means:

(a)  a document or thing of which evidence could not be adduced in an action over the objection of any person, by virtue of the operation of Part 3.10 (other than sections 128 and 130) of the Evidence Act 1995,

(b)  if the party on whom the notice is served is a natural person—a document or thing the contents or production of which may tend to prove that the party:

(i)  has committed an offence against or arising under an Australian law or a law of a foreign country, or

(ii)  is liable to a civil penalty, within the meaning of the Evidence Act 1995,

(c)  a document that relates to matters of state within the meaning of section 130 of the Evidence Act 1995, unless and until the Court directs that it cease to be a privileged document.

rule 28.18: Am 20.3.1998.

Part 28A Court appointed expert and assistance to the Court

pt 28A: Ins 6.7.1990. Subst 7.7.2000.

pt 28A, Heading: Ins 6.7.1990. Subst 7.7.2000.

Division 1 Court appointed expert

pt 28A, div 1, hdg: Ins 7.7.2000.

1 Selection and appointment

(1)  Where a question for an expert witness arises in any proceedings the 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.

rules 28A.1–28A.6: Ins 6.7.1990. Subst 7.7.2000.

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.

rules 28A.1–28A.6: Ins 6.7.1990. Subst 7.7.2000.

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.

rules 28A.1–28A.6: Ins 6.7.1990. Subst 7.7.2000.

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.

rules 28A.1–28A.6: Ins 6.7.1990. Subst 7.7.2000.

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.

rules 28A.1–28A.6: Ins 6.7.1990. Subst 7.7.2000.

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.

rules 28A.1–28A.6: Ins 6.7.1990. Subst 7.7.2000.

Division 2 Assistance to the Court

pt 28A, div 2, hdg: Ins 7.7.2000.

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.

rule 28A.7: Ins 7.7.2000.

Part 28B Reference by the Court to referee

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

1 Interpretation

In this Part, unless the context or subject-matter otherwise indicates or requires, question includes any question or issue arising in any proceedings, whether of fact or law or both and whether raised by pleadings, agreement of parties or otherwise.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

2 Other referring

(1)  The Court may, subject to this rule, at any stage of any proceedings, on application by a party or of its own motion, make orders for reference to a referee appointed by the Court for inquiry and report by the referee on the whole of the proceedings or any question or questions arising in the proceedings.

(2)  The Court shall not make an order under subrule (1) in respect of a question to be tried with a jury.

(3)  In respect of a question which may, under section 78 of the Act, be tried with a jury, the Court shall not, before the expiry of the time prescribed by Part 12 rule 5, make an order under subrule (1) unless the Court also makes an order under section 79A of the Act.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

3 Appointees

The Court may appoint as a referee any person who consents to be so appointed.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

4 Inquiry and report

(1)  Where the Court makes orders under rule 2 the Court may, at any time and from time to time:

(a)  authorise the referee to inquire into and report upon any facts relevant to the inquiry and report on the matter referred,

(b)  direct the referee to make a further or supplemental report or inquiry and report,

(c)  give such instructions as the Court thinks fit relating to the inquiry or report.

(2)  Instructions pursuant to subrule (1) (c) may include provision concerning any experiment or test for the purposes of any inquiry or report of a referee.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

5 Remuneration of referee

(1)  The Court may:

(a)  determine the amount of the fees to be paid to a referee,

(b)  direct how, when and by whom the whole or any part of any such fees are to be payable,

(c)  determine the consequences of failure to comply with a direction under paragraph (b).

(2)  Subrule (1) does not affect the powers of the Court as to costs.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

6 Court rooms etc

The Court may give directions for the provision:

(a)  of services of officers of the Court, and

(b)  of court rooms and other facilities,

for the purpose of any reference under rule 2.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

7 Conduct of proceedings under the reference

(1)  Where the Court makes an order under rule 2, the Court may give directions with respect to the conduct of proceedings under the reference.

(2)  Subject to any direction under subrule (1):

(a)  the referee may conduct the proceedings under the reference in such manner as the referee thinks fit,

(b)  the referee, in conducting proceedings under the reference, is not bound by rules of evidence but may inform himself in relation to any matter in such manner as the referee thinks fit.

(3)  Evidence before the referee:

(a)  may be given orally or in writing, and

(b)  shall, if the referee so requires, be given on oath or affirmation or by affidavit.

(4)  A referee may take the examination of any person.

(5)  Each party shall, within a time fixed by the referee but in any event before the conclusion of evidence on the inquiry, give to the referee and each other party a brief statement of the findings of fact and law for which the party contends.

(6)  The parties shall at all times do all things which the referee requires to enable a just opinion to be reached and no party shall wilfully do or cause to be done any act to delay or prevent an opinion being reached.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

8 Interlocutory directions

The Court may, at any time and from time to time, on motion of the referee or of a party, give directions with respect to any matter arising in proceedings under the reference.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

9 Setting aside or variation of reference

(1)  The Court may, of its own motion or on application by a referee or a party, set aside or vary any order made under rule 2.

(2)  Nothing in this rule affects any other power of the Court to set aside or vary an order made under rule 2.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

10 Report

(1)  The referee shall, unless the Court otherwise orders, make a report to the Court, in writing, on the matter referred to the referee annexing the statements given under rule 7 (5) and stating:

(a)  the referee’s opinion on the matter, and

(b)  the reasons for the opinion.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

11 Service of report

On receipt of the report, the Court shall serve it on the parties.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

12 Proceedings on the report

(1)  Where a report is made, the Court may, of its own motion, after notice to the parties, or on application by any party, on a matter of fact or law or both:

(a)  adopt, vary or reject the report in whole or in part,

(b)  require an explanation by way of report from the referee,

(c)  on any ground, remit for further consideration by the referee the whole or any part of the matter referred for a further report,

(d)  decide any matter on the evidence taken before the referee, with or without additional evidence,

and shall give such judgment or make such order as the Court thinks fit.

(2)  Evidence additional to the evidence taken before the referee may not be adduced before the Court except with the leave of the Court.

pt 28B (Rules 28B.1–28B.12): Ins 6.7.1990.

Part 28C Court appointed referral for legal assistance

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

1 Objectives

(1)  In the interpretation of this Part, preference must be given to a construction that will promote, and be consistent with, the purpose in subrule (2) and the statements in subrules (3) and (4).

(2)  The purpose of this Part is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance.

(3)  The provision of legal assistance under this Part is not intended to be a substitute for legal aid.

(4)  A referral under this Part is not an indication that the Court has formed an opinion on the merits of a litigant’s case.

(5)  Nothing in this Part requires the Court to make a referral, or to consider a litigant’s case for referral, under this Part.

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

2 Interpretation

In this Part:

litigant, in proceedings, means a person who is a party to the proceedings or who has been served with a subpoena in the proceedings or who has applied to be joined in the proceedings.

Pro Bono Panel means a list of barristers and solicitors referred to in rule 3.

registrar, in relation to any proceedings, means the registrar for the proper place in relation to the proceedings.

scheme means the scheme for the provision of legal assistance to litigants under this Part.

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

3 Pro Bono Panel

The registrar for a proclaimed place may maintain a list of persons:

(a)  who are barristers or solicitors, and

(b)  who have agreed to participate in the scheme.

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

4 Referral to a barrister or solicitor

(1)  The Court may, if it is in the interests of the administration of justice, refer a litigant to a registrar for referral to a barrister or solicitor on a Pro Bono Panel for legal assistance.

(2)  For the purposes of subrule (1), the Court may take into account:

(a)  the means of the litigant, and

(b)  the capacity of the litigant to obtain legal assistance outside the scheme, and

(c)  the nature and complexity of the proceedings, and

(d)  any other matter that the Court considers appropriate.

(3)  The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.

(4)  A referral to a registrar is effected by the issue of a Referral Certificate in the approved form in relation to the litigant.

(5)  If a Referral Certificate has been issued, a registrar must attempt to arrange for the legal assistance mentioned in the certificate to be provided to the litigant by a barrister or solicitor on a Pro Bono Panel.

(6)  A registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.

(7)  A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

5 Kind of assistance

A referral may be made for the following kinds of assistance:

(a)  advice in relation to the proceedings,

(b)  representation on directions hearing, interlocutory or final hearing, arbitration or mediation,

(c)  drafting or settling of documents to be filed or used in the proceedings,

(d)  representation generally in the conduct of the proceedings or of part of the proceedings.

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

6 Provision of assistance by barrister or solicitor

Subject to rule 7, if a barrister or solicitor agrees to accept a referral, he or she must provide legal assistance to the litigant in accordance with the referral.

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

7 Cessation of assistance

(1)  A barrister or solicitor who has agreed to accept a referral may cease to provide legal assistance to the litigant only:

(a)  in the circumstances set out in any practice rules governing professional conduct that apply to the barrister or solicitor, or

(b)  with the written agreement of the litigant, or

(c)  with the leave of a registrar.

(2)  If a barrister or solicitor ceases to provide legal assistance to a litigant, the barrister or solicitor must inform a registrar in writing within 7 days of so ceasing.

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

8 Application for leave

(1)  An application by a barrister or solicitor to a registrar for leave to cease to provide legal assistance must be in writing and must briefly state the reasons for the application.

(2)  A copy of the application for leave must be served on the litigant.

(3)  An application for leave may be heard by a registrar in the absence of the public and without any attendance by or on behalf of any person.

(4)  In deciding whether to grant leave under this rule, a registrar must consider:

(a)  whether the barrister or solicitor would be likely to be able to cease to provide legal assistance to the litigant under any practice rules governing professional conduct that apply to the barrister or solicitor, and

(b)  any conflict of interest that the barrister or solicitor may have, and

(c)  whether there is a substantial disagreement between the barrister or solicitor and the litigant in relation to the conduct of the litigation, and

(d)  any view of the barrister or solicitor:

(i)  that the litigant’s case is not well founded in fact or law, or

(ii)  that the litigant’s prosecution of the litigation is an abuse of process, and

(e)  whether the barrister or solicitor lacks the time to provide adequate legal assistance to the litigant because of other professional commitments, and

(f)  whether the litigant has refused or failed to pay any disbursements requested under rule 10, and

(g)  whether it is unfair to the barrister or solicitor to require him or her to continue to provide legal assistance under the scheme, and

(h)  any other matter that the registrar considers relevant.

(5)  An application for leave under this rule and any related correspondence:

(a)  is confidential, and

(b)  is not part of the proceedings in relation to which the referral was made, and

(c)  does not form part of the Court file in relation to those proceedings.

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

9 Costs

(1)  Subject to subrules (2) and (3) and rule 10, a barrister or solicitor who provides legal assistance to a litigant under the scheme must not seek or recover any costs for the legal assistance.

(2)  If an order for costs is made in favour of a litigant who is assisted under the scheme, the barrister or solicitor who has provided the legal assistance is entitled to recover the amount of costs that another person is required to pay under the order.

(3)  A barrister or solicitor must account to the litigant for any money received by the barrister or solicitor in respect of disbursements that were paid by the litigant.

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

10 Disbursements

A barrister or solicitor who provides legal assistance to a litigant under the scheme may request the litigant to pay any disbursements reasonably incurred, or reasonably to be incurred, by the barrister or solicitor on behalf of the litigant in connection with the legal assistance.

pt 28C (Rules 28C.1–28C.10): Ins 25.8.2000.

Part 29 Subpoenas

1 Interpretation SCR Pt 37, r 1.

In this Part, unless the context or subject matter otherwise indicates or requires:

access order, in relation to a subpoena requiring production, means an order of the Court granting access to specified documents or things produced pursuant to the subpoena (whether with or without conditions).

person named means, in relation to a subpoena, the person to whom the subpoena is addressed.

privileged document or thing, in relation to a subpoena, means:

(a)  a document or thing of which evidence could not be adduced in an action over the objection of any person, by virtue of the operation of Part 3.10 (other than sections 128 and 130) of the Evidence Act 1995,

(b)  if the party on whom the subpoena is served is a natural person—a document or thing the contents or production of which may tend to prove that the party:

(i)  has committed an offence against or arising under an Australian law or a law of a foreign country, or

(ii)  is liable to a civil penalty, within the meaning of the Evidence Act 1995,

(c)  a document that relates to matters of state within the meaning of section 130 of the Evidence Act 1995, unless and until the Court directs that it cease to be a privileged document.

requesting party for a subpoena means a person who is requesting, or who has requested, the issue of the subpoena.

return date for a subpoena means the date on which the subpoena is returnable.

rule 29.1: Am 20.3.1998; 22.12.2000.

2 Conduct money SCR Pt 37, r 3.

(1)  A subpoena shall not require the person named to attend or produce any document or thing on any day on which his attendance is required unless an amount sufficient to meet the reasonable expenses of the person named of complying with the subpoena in relation to that day is paid or tendered to him at the time of service of the subpoena or not later than a reasonable time before that day.

(2)  The amount mentioned in section 64 (3) of the Act shall be, in respect of a person duly served with a subpoena in any proceedings, the amount which would be payable in respect of that person if the party issuing the subpoena were entitled to claim witness’ expenses in respect of that person as costs in the proceedings.

rule 29.2: Am 7.1.1983 (but see erratum 18.2.1983); 21.11.1986.

2A Medical expert not called

(1)  Where a subpoena is served on a medical expert who is to give evidence of medical matters and he is not called as a witness, he shall, unless he was given notice, 14 days or more before the date of his attendance, that his attendance would not be required on that date or unless the court otherwise orders, be entitled to be paid $167.00 in addition to any amount paid under Rule 2.

(2)  The amount payable under subrule (1) shall be paid by the party who requested the issue of the subpoena to the expert within 30 days after the date for his attendance.

(3)  Unless the court otherwise orders the amount paid under subrule (2) shall not be recoverable from any other party.

(4)  This rule shall apply only to proceedings on a trial at Sydney, Parramatta and Wollongong or such other proclaimed places which are the subject of a direction given by the Chief Judge for the purposes of this rule.

rule 29.2A: Ins 7.1.1983. Am 17.3.1995.

3 Production by non-party SCR Pt 37, r 4; cf DCR r 209.

(1)  Where the person named in a subpoena for production of any document or thing, being a subpoena requiring attendance before the Court at a proclaimed place, 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 for the proclaimed place not later than the day before the first date on which his 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)  give a receipt to the person producing the document or thing, 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 him.

(3A)  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 6 (6) (b), (c), (d) or (e), the registrar may, if he 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 him.

(4)  Subrules (3) and (3A) 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.

(5)  This rule does not apply to so much of a subpoena as requires the person named to attend to testify in any proceedings.

(6)  Where an action has been referred to the arbitrator in accordance with section 63A of the Act, this rule shall apply so that a reference to the registrar shall be taken to be a reference to the arbitrator.

rule 29.3: Am 19.4.1984; 27.6.1986; 20.3.1987.

4 (Repealed)

rule 29.4: Rep 6.10.1995.

5 Return of exhibits cf DCR r 449.

(1)  Exhibits in any proceedings must be returned to the persons who produced them (whether on subpoena or otherwise) to the Court or registrar:

(a)  if the Court makes no order that the exhibits be retained—immediately after judgment is given or a final order made, or

(b)  if the Court makes an order that the exhibits be retained—at the expiration of the period of 30 days after judgment is given or a final order made or such other period as may be specified in the order.

(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 his keeping for a period only of fourteen days after the first day on which the exhibits may be so returned.

rule 29.5: Am 17.3.2000.

6 Issue SCR Pt 37, r 6.

(1)  On request by a party, a 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.

(2A)  Unless the Court otherwise orders, a subpoena for production which authorises compliance with the subpoena as provided in section 64 (1A) of the Act shall not be issued in proceedings the proper place in relation to which is a place other than Parramatta.

(2B)  Unless the Court otherwise orders, a subpoena for production shall not authorise compliance with the subpoena as provided in section 64 (1A) of the Act except with the approval of the registrar.

(2C)  The approval of the registrar under subrule (2B) shall not be given unless the party requesting the issue of the subpoena advises the registrar in writing that that party has, at least 14 days previously, given notice of the intention to request the issue of the subpoena, and a copy of the subpoena, to:

(a)  each other party, and

(b)  any other person likely to have a claim of privilege in respect of the documents or things the production of which is sought,

or to a legal practitioner acting for that other party or person.

(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, he need produce only one original, but that original must contain the name of each person to whom any of the subpoenas is addressed.

(4A)  The registrar is not required to place a copy of the subpoena on the Court’s file.

(5)  A subpoena for production may be made returnable on the day fixed for the hearing of the proceedings in which it is issued, or, with the leave of the Court or registrar, on any other day.

(6)–(8)    (Repealed)

rule 29.6: Am 7.1.1983; 27.6.1986; 10.6.1988; 6.7.1990; 11.2.1994; 17.6.1994; 8.12.1995; 19.4.1996; 30.10.1998; 22.12.2000.

6A Notice to be given to other parties concerning subpoenas requiring production

(1)  The requesting party for any subpoena requiring production must serve each other party who has an address for service in the proceedings with a copy of the subpoena:

(a)  if the return date of the subpoena is on a day that is 14 days or more after the subpoena is issued—within the period of 7 days after the subpoena is issued, or

(b)  if the return date of the subpoena is on a day that is less that 14 days after the subpoena is issued—within 24 hours after the subpoena is issued.

(2)  The requesting party for a subpoena requiring production who fails to comply with subrule (1) must notify the Court of that failure at the next date on which the subpoena is returnable.

(3)  The requesting party for a subpoena requiring production must notify each other party to the proceedings who has an address for service in the proceedings of any new return date for the subpoena fixed after the subpoena is first issued:

(a)  if the return date of the subpoena is on a day that is 14 days or more after the new date is fixed—within the period of 7 days after the new date is fixed, or

(b)  if the return date of the subpoena is on a day that is less that 14 days after the new date is fixed—within 24 hours after the new date is fixed.

(4)  The Court or the registrar may make an order for costs against a requesting party for a subpoena requiring production if that party fails to comply with subrule (2) or (3), but only in respect of costs incurred by reason of that failure.

(5)  A requesting party for a subpoena requiring production need not comply with a requirement under subrule (1), (2) or (3) if the person named is excused from compliance with the subpoena by the requesting party under rule 10 (2) before the time when the requesting party had to comply with that requirement.

(6)  Nothing in this rule affects the operation of rule 7A.

(7)  Subrules (1)–(5) do not apply to a subpoena requiring production that authorises compliance with it as provided by section 64 (1A) of the Act

Note—

Rule 6 (2C) relates to service on other parties of a proposed subpoena that authorises compliance with the subpoena as provided in section 64 (1A) of the Act before such a subpoena can be issued. Section 64 (1A) of the Act provides that a subpoena for production may authorise compliance with the subpoena by the production of the document or thing to a specified person at a specified place. This rule does not apply to such a subpoena.

rule 29.6A: Ins 22.12.2000. Am 16.2.2001.

6B Access to subpoenaed material

(1)  The Court may make an access order in relation to a subpoena requiring production at the time the subpoena is issued or at any time after it is issued.

(2)  If an access order has effect in relation to a subpoena for production, a party or the party’s barrister or solicitor may (subject to the terms of the order):

(a)  inspect documents or things produced in compliance with the subpoena, and

(b)  take copies of any documents so inspected.

rule 29.6B: Ins 22.12.2000.

6C Proposed access orders

(1)  Unless the Court orders otherwise, the requesting party for a subpoena requiring production must endorse a proposed access order on the subpoena.

(2)  Without limiting rule 6B, the Court may:

(a)  endorse a proposed access order on a subpoena requiring production if the requesting party has not endorsed such a proposed order, or

(b)  endorse a proposed access order on a subpoena requiring production in different terms to a proposed order endorsed by the requesting party.

(3)  Unless the Court orders otherwise, any such proposed access order has effect as an access order immediately after the next return date for the subpoena if:

(a)  documents or things are produced in compliance with the subpoena on or before that date, and

(b)  no person appears before the registrar or Court on the return date in opposition to the proposed order.

(4)  Without limiting subrule (3), the Court may take into account a failure to comply with subrule (5) or (6) or rule 6A (1), (2) or (3) in determining whether a proposed access order should have effect according to its tenor or whether an order is to be made to modify or revoke the proposed access order.

(5)  A party or a person named in a subpoena requiring production who proposes to object to the proposed access order on the return date for the subpoena must notify the requesting party of the objection:

(a)  if the party or person is served with a copy of the subpoena on a day that is 14 days or more before the return date—within the period of 3 days after the party or person is served, or

(b)  if the party or person is served with a copy of the subpoena on a day that is less than 14 days before the return date—within the period of 24 hours after the party or person is served.

(6)  A requesting party who has received notice of an objection to a proposed access order must notify all of the other parties who have an address for service in the proceedings of the objection within 24 hours after receiving that notice.

(7)  Subrules (1)–(6) do not apply to a subpoena requiring production that authorises compliance with it as provided by section 64 (1A) of the Act.

rule 29.6C: Ins 22.12.2000. Am 16.2.2001.

6D Application of rules 6A–6C

(1)  Rules 6A–6C apply only to subpoenas requiring production that are issued on or after 1 May 2001.

(2)  This Part as in force immediately before the commencement of the District Court Amendment (Access to Subpoenaed Material) Rule 2000 continues to apply to subpoenas requiring production issued before 1 May 2001.

(3)  The functions of the Court under rules 6B and 6C may, unless the Court otherwise orders, be exercised by the registrar.

(4)  Rules 6A and 6C do not apply to subpoenas issued out of the registry at Newcastle and such other registries as may be specified by the Chief Judge by direction published in the Gazette.

rule 29.6D: Ins 22.12.2000. Am 16.2.2001; 20.4.2001.

7 Time for service

(1)  A subpoena shall be served on the person named 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.

(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 proceedings 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.

rule 29.7: Am 19.8.1988; 11.2.1994; 22.12.2000.

7A Subpoena to medical expert

(1)  Where a subpoena requires a medical expert to attend in Sydney on a specified date for the purposes of giving evidence on medical matters, the subpoena may not be served on the expert later than 21 days before the date so specified unless the Court otherwise orders.

(2)  The parties may not by consent abridge the time fixed by or under subrule (1).

(3)  A party may request the issue of a subpoena for production in the approved form requiring a medical expert to attend and produce medical records or clear sharp photocopies of them.

(4)  A subpoena requested under subrule (3) shall not require the person named to attend or produce any document on any date specified unless the amount of $28 is paid or tendered to him at the time of service of the subpoena or not later than a reasonable time before that specified date.

(5)  Rule 2 shall not apply to a subpoena requested under subrule (3).

(6)  Rule 3 shall apply to the photocopies as it applies to the records.

rule 29.7A: Ins 18.3.1983. Am 21.9.1984; 30.8.1985; 21.11.1986. Subst 22.12.1989. Am 16.2.1990; 16.4.1992.

8 Setting aside

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.

rule 29.8: Subst 16.4.1992.

8A Expense and loss SCR Pt 37, r 8.

Where a person named is not a party and, in consequence of service of the subpoena, reasonably incurs expense or loss substantially exceeding any sum paid under rule 2, the Court may order that the party who requested the issue of the subpoena pay to the person named an amount in respect of the expense or loss.

rule 29.8A: Ins 16.4.1992. Am 8.12.1995.

9 Order to show cause

Where the Court makes an order against a defaulting person under section 65 (1) (d) of the Act it shall give directions as to how and in what form the person is to be given notice of the order.

rule 29.9: Ins 14.6.1985.

10 Alteration to obligations

(1)  A party who has requested the issue of a subpoena to give evidence may, by written or oral notice to the person named, alter the day specified in the subpoena for attendance to a day which is:

(a)  later than the day specified in the subpoena and the day, if any, at last altered pursuant to this subrule, and

(b)  the day of the hearing of the action.

(2)  Where the person named in any subpoena has not been called to give evidence, or produce documents, before the Court in compliance with the subpoena, the party who requested the issue of the subpoena may, by written or oral notice to the person named, excuse that person from compliance with the subpoena.

rule 29.10: Ins 26.2.1993.

11 Application of Part 3.10 of Evidence Act 1995

Nothing in this Part compels a person on whom a subpoena is served to produce a privileged document or thing.

rule 29.11: Ins 20.3.1998.

Part 30 Affidavits

1 Time for swearing SCR Pt 38, r 1; cf DCR rr 235, 331 (1).

(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 13 rule 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 fourteen days before it is filed.

rule 30.1: Am 14.6.1985.

2 Form SCR Pt 38, 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.

(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 his 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 he 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 cf SCR Pt 38, 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 SCR Pt 38, 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 cf SCR Pt 38, r 5.

(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 not generally required

A affidavit must not be filed unless:

(a)  it is filed in accordance with the requirements of another provision of these Rules, or

(b)  a Judge or a registrar gives leave for it to be filed, or

(c)  it is filed in accordance with a Practice Note.

rule 30.6: Subst 17.3.2000.

6A Return of affidavits

(1)  Subject to any order of the Court or a registrar, affidavits filed in any proceedings must be returned to the person who filed them if they are no longer required for use in the proceedings.

(2)  The Court or a registrar may order that an affidavit filed in any proceedings be retained for a specified period of time or until the happening of a specified event. Any such order may be made on the application of a party or on the Court’s or registrar’s own motion.

rule 30.6A: Ins 17.3.2000.

7 Service SCR Pt 38, 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.

rule 30.7: Subst 26.2.1993.

8 Scandal etc cf SCR Pt 38, r 8.

Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, the Court or registrar may, on the application of a party or of the Court’s or the registrar’s own motion, order that:

(a)  the matter be struck out, or

(b)  the affidavit be taken off the file.

rule 30.8: Am 28.3.2002.

9 Cross-examination SCR Pt 38, r 9.

(1)  A party may require the attendance for cross-examination of a person making an affidavit.

(2)  A requirement under subrule (1) shall be made to the party filing or proposing to use the affidavit.

(3)  Where the attendance of a person is required under subrule (1) and he does not attend, his affidavit shall not be used without the leave of the Court.

(4)  Where a person making an affidavit is cross-examined, the party using the affidavit may re-examine him.

10 Affidavits of service DCR r 234.

(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 sixteen 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.

rule 30.10: Am 17.6.1994.

Part 31 Judgments and orders

Division 1 Executors and administrators

1–7 (Repealed)

rules 31.1–31.5: Rep 6.12.1996.

rule 31.6: Rep 18.10.1996.

rule 31.7: Rep 6.12.1996.

Division 2 General

8 General relief SCR Pt 40, r 1.

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 for relief extending to that judgment or order in any originating process.

9 Written reasons cf SCR Pt 40, r 2.

Where the Court gives any judgment or makes any order and reduces to writing its reasons for the judgment or order, it is sufficient to state orally the judgment or order without stating the reasons, but the written reasons must then be given by delivering them to an Associate, or other officer specified by the Court, for delivery to the parties.

rule 31.9: Subst 28.8.1992. Am 6.12.1996.

10 Decision read by registrar cf DCR r 258.

Where a registrar is required under Part 2A rule 7 (2) to read a judgment or decision the registrar shall give at least twenty-four hours’ notice, in writing or otherwise, to the parties of the time appointed to read the judgment or decision.

rule 31.10: Am 14.6.1985.

11 Judgment in an action relating to the detention of goods

(1)  Where a plaintiff, under section 83 (2) of the Act, chooses between the forms of relief prescribed in section 83 (1) (b) and (c) of the Act, he shall notify his choice to the Court before judgment in the action is given.

(2)  Where the Court gives judgment under section 83 (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 83 (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 make application to the Court:

(a)  in the case of a judgment given under section 83 (1) (a) or an order under section 83 (3), subject to Part 34 rule 12 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 83 (1) (b), for an order that the judgment may be enforced as though it had been given under section 83 (1) (c).

rule 31.11: Subst 14.6.1985.

12 Time for compliance cf SCR Pt 40, r 4.

(1)    (Repealed)

(2)  Where a judgment or order requires a person to do an act within a specified time, the Court may by order require him to do the act within another specified time.

(3)  Where a judgment or order requires a person to do an act forthwith or forthwith upon a specified event or to do an act but does not specify a time within which he is required to do the act, the Court may by order require him to do the act within a specified time.

rule 31.12: Am 6.12.1996.

12A Setting aside of judgment or order

(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.

rule 31.12A: Ins 14.6.1985.

13 Judgment for costs alone cf SCR Pt 17, r 10.

(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 proceedings in which costs may be awarded, a defendant or respondent satisfies, or causes to be satisfied, the claim of the plaintiff, applicant or appellant after the commencement of the proceedings, the Court may, on the proceedings being called on for hearing or on application by the plaintiff, applicant or appellant, give judgment for costs alone against the defendant, or make an order for the payment by the defendant or respondent of the costs of the proceedings.

13A Interest cf SCR Pt 40, r 7.

(1)  Where the Court gives judgment for the payment of money and makes an order under section 83A of the Act or section 73 of the Motor Accidents Act 1988 or section 137 of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987 for the payment of interest, interest shall, unless the order otherwise provides, be payable on so much only of the money as is from time to time unpaid.

(2)  Judgment will take effect on the day on which it is entered or given.

rule 31.13A: Ins 18.11.1977. Am 18.10.1996; 17.3.2000.

14 Judicial notice of order cf SCR Pt 40, r 10.

(1)  In any proceedings, the Court may take judicial notice of any order of, or undertaking given to, the Court in the proceedings.

(2)  In any proceedings, the Court may be informed of an order of, or an undertaking given to, the Court in the proceedings by (amongst other things) reference to a note made:

(a)  by the Judge making the order or accepting the undertaking or by his Associate or by any other proper officer, or

(b)  by the registrar making the order or accepting the undertaking.

rule 31.14: Am 6.12.1996.

15 Form of judgment or order cf DCR r 261.

(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 the 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 certified copy thereof.

rule 31.15: Am 30.10.1998.

16 Copies and certificates cf SCR Pt 41, r 15.

(1)  Subject to subrule (3), the registrar shall, on the filing of a request therefor, furnish to any party to any proceedings a certificate of any judgment, or a certified copy of any judgment or order, a form of which is filed in the proceedings.

(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.

(3A)  The registrar may issue a certified copy of a default judgment to a party in the proceedings at any time after the judgment is entered even if the party has not filed a request for the certified copy under this rule.

(4)  Nothing in this rule requires the maintenance of any record of proceedings for a period of more than twelve years from the date judgment was given or entered up in the proceedings.

rule 31.16: Am 1.7.1983; 21.9.2001.

17 Service SCR Pt 41, r 16.

A form of judgment or order need not be served unless the rules require service or the Court directs service.

18 Notice of judgment

(1)  Where a judgment debt arising from an action has not been satisfied, the judgment creditor may lodge with the registrar, and the registrar may if he thinks fit sign, seal and return to the judgment creditor, a notice in the approved form calling upon the judgment debtor to furnish the judgment creditor with answers to the questions contained in the notice relating to the financial circumstances of the judgment debtor.

(2)  A notice signed under subrule (1) may be served on, or sent by post to, the judgment debtor.

(3)  While enforcement of a judgment is stayed, the registrar shall not sign, and the judgment creditor shall not serve on, or send to, the judgment debtor, a notice mentioned in subrule (1) with respect to the judgment.

19 Payment of part of judgment debt DCR r 270.

(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) he shall, if the judgment creditor so requests in writing, return the amount to the judgment debtor.

20 Notice of payment DCR r 271.

The registrar shall as soon as practicable give or send by post to the judgment creditor notice of every payment into court made in pursuance of a judgment or order.

21 List of default judgments cf DCR r 451A.

The registrar for a proclaimed place may compile a register of default judgments entered at that place, and may supply copies of the register from time to time to the Minister of Justice.

22 Limitation period

The prescribed period for the purposes of section 84A (1) of the Act is a period of 12 years.

rules 31.22, 31.23: Ins 14.6.1985.

23 Setting off of judgments

(1)  Where the judgment debtor in respect of an action (in this rule referred to as the first action) recovers judgment in his favour in another action (in this rule referred to as the second action) against his judgment creditor, the judgment debtor may apply to the Court sitting at the proper place in relation to either of those actions for an order that the judgment against him be set off against the judgment in his favour.

(2)  Where an order is made under subrule (1) and:

(a)  the amount of the judgment debt in the first action is less than or equal to the amount of the judgment debt in the second action, the judgment in the first action shall be deemed to be satisfied, and the amount of the judgment debt in the second action shall be reduced by the amount of the judgment debt in the first action, or

(b)  the amount of the judgment debt in the first action is more than the amount of the judgment debt in the second action, the amount of the judgment debt in the first action shall be reduced by the amount of the judgment debt in the second action and the judgment in the second action shall be deemed to be satisfied.

rules 31.22, 31.23: Ins 14.6.1985.

Part 31A Payment of judgment debt

pt 31A: Ins 14.6.1985.

1 Payment of judgment debt generally

(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), (4)    (Repealed)

(5)  Any payment by or on behalf of a judgment debtor made on account of the 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 the 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.

rule 31A.1: Ins 14.6.1985. Am 21.6.1996.

2 Order for instalments subsequently

(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 (in duplicate) as to his property and means, to the registrar for leave to pay 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 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.

(1A)  An application under subrule (1) (a) may, instead of being made personally by a judgment debtor, be made on his or her behalf by the spouse or de facto partner of the judgment debtor.

(1B)  In subrule (1A), de facto partner has the meaning given to it by section 3 (1) of the De Facto Relationships Act 1984.

(1C)  Where an application under subrule (1) (a) is made on behalf of a judgment debtor under subrule (1A), the person making the application, or the judgment debtor, may swear the affidavit supporting the application.

(2)  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 his solicitor or barrister on his behalf.

(3)  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.

(4)  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 he makes an order under paragraph (a) or (b) the registrar shall, as soon as practicable thereafter, forward 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).

(5)  Where an order is made by a registrar under subrule (4) 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 forwarded to him under subrule (4) by the registrar, file notice of his objection to the payment of the judgment debt by the instalments specified in the order.

(6)  Where under subrule (4) the registrar refuses to make an order, or where the judgment creditor files with the registrar a notice of objection in accordance with subrule (5), 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 by him 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).

(7)  Where an application has been set down for hearing under subrule (6), 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 (5), confirm, vary or rescind the order of the registrar.

(7A)  Where the Court under subrule (7) makes, refuses to make, confirms, varies or rescinds an order, it may, if it is of opinion that a party has acted unreasonably in respect of the application, order that party to pay the costs, or such amount as the Court thinks fit for the expenses, of the other party incurred by reason of the application.

(8)  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 (4) to make an order pursuant to the application,

the application shall, until it is dealt with under subrule (7), 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 98 of the Act applies made before the application was made to the registrar.

(9)  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 98 of the Act applies made before the order under this rule was made.

(10)  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.

(11)  The jurisdiction of the Court under this rule may, at Albury, Broken Hill, Campbelltown, Coffs Harbour, Dubbo, Gosford, Goulburn, Lismore, Liverpool, Newcastle, Orange, Parramatta, Penrith, Queanbeyan, Sydney, Tamworth, Taree, Wagga Wagga and Wollongong, be exercised by the registrar, and any order made by a registrar in the exercise of jurisdiction conferred by this subrule may be rescinded, varied or confirmed by the Court on appeal.

rule 31A.2: Ins 14.6.1985. Am 30.8.1985; 27.6.1986; 10.6.1988; 22.12.1989.

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 opinion that a party has acted unreasonably in respect of the application, may order that party to pay the costs, or such amount as the Court thinks fit for the 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 (4) (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.

rule 31A.3: Ins 14.6.1985. Am 30.8.1985.

Part 32 Examination summonses

1 Procedure

(1)  A judgment creditor who is entitled to apply for the issue of an examination summons may do so by filing the examination summons and lodging with the registrar a copy of the summons, together with a further copy for each judgment debtor to be served and a further copy for any other presiding registrar before whom the summons is returnable.

(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 place at which the judgment debtor is required to attend, the judgment creditor may file with the examination summons a request that the presiding registrar orally examine the judgment debtor as provided in section 91 (3) (b) of the Act, together with a copy of the request for the presiding 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 place at which the judgment debtor is required to attend, the presiding registrar is not required to orally examine the judgment debtor.

(3)  Where an examination summons is issued returnable before a presiding registrar other than the issuing registrar the issuing registrar shall as soon as practicable send to the presiding registrar a copy of the summons and where applicable a copy of the request for oral examination.

rule 32.1: Am 24.10.1975; 14.6.1985; 14.2.1992.

2 (Repealed)

rule 32.2: Rep 21.7.1989.

3 Service

(1)  An examination summons shall be served on a person fourteen days before the day on which the attendance of the person is required by the summons.

cf DCR r 329 (1).

(2)    (Repealed)

rule 32.3: Am 24.6.1983.

4 Affidavit of service

(1)    (Repealed)

(2)  By the affidavit of service, or some other affidavit or affidavits, the judgment creditor shall establish:

(a)    (Repealed)

(b)  the location of the place where the person required to attend is resident, or the facts on the allegation of which the issuing registrar selected the place at which the summons is returnable.

cf DCR r 330.

(3)  The affidavit of service of an examination summons, and any other affidavit mentioned in subrule (2), shall be filed in accordance with the rules with the presiding registrar.

rule 32.4: Am 14.6.1985; 21.7.1989.

5 Examination

(1)  An examination under an examination summons may be conducted in open court or in chambers, as the presiding registrar or registrar directs.

(2)  Where a presiding registrar or registrar examines a person under section 92 (7) or (7A) (c) of the Act the presiding registrar or registrar may, but is not by the rules required to, confine the examination to the matters mentioned in the approved form of the notice of judgment mentioned in Part 31 rule 18 (1).

rule 32.5: Am 14.6.1985; 8.11.1985 (but see erratum 15.11.1985).

5A Instalment order after examination

(1)  Where a person has attended for examination in accordance with Part 3, Division 4, Subdivision 3 of the Act in relation to a judgment debt, the presiding registrar 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.

(1A)  Where the presiding registrar who makes an order under subrule (1) is not the issuing registrar, the presiding registrar shall as soon as practicable notify the issuing registrar in writing of the contents of the order.

(2)  An order made under subrule (1) shall be deemed to be an order made under Part 31A rule 2 (4) pursuant to an application made by the judgment debtor under Part 31A rule 2 (1) (a).

rule 32.5A: Ins 14.6.1985. Am 5.9.1986.

5B Report of certain examinations

Where a person is examined by a presiding registrar or registrar under Part 3, Division 4, Subdivision 3 of the Act in relation to a judgment debt, the results of the examination and any order made shall be reported to the judgment creditor by the presiding registrar or registrar as soon as practicable.

rules 32.5B–32.5D: Ins 14.6.1985.

5C Adjournment of examination

A presiding registrar or registrar may from time to time adjourn any examination being or to be conducted before or by him under Part 3, Division 4, Subdivision 3 of the Act.

rules 32.5B–32.5D: Ins 14.6.1985.

5D Court may exercise registrar’s powers

The Court may, if it thinks fit, exercise or perform any of the powers, authorities, duties or functions of a presiding registrar or registrar under Part 3, Division 4, Subdivision 3 of the Act.

rules 32.5B–32.5D: Ins 14.6.1985.

6 Expiry of warrant

A warrant issued under section 92 of the Act shall expire upon the expiration of three months after the warrant is issued.

7 (Repealed)

rule 32.7: Rep 18.10.1996.

Part 33 Attachment of debts

1 Procedure to issue garnishee order cf DCR r 331 (2).

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 garnishees to be served.

rule 33.1: Am 5.6.1987.

2 (Repealed)

rule 33.2: Rep 5.6.1987.

3 Garnishee order

(1)  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, so far as that place is known to, or reasonably capable of ascertainment by, the judgment creditor.

SCR Pt 46, r 3 (6).

(2), (3)    (Repealed)

rule 33.3: Am 5.6.1987.

4 Garnishee summons cf DCR r 334.

(1)  A judgment creditor may apply for the issue of a garnishee summons under section 102 (1) of the Act by:

(a)  filing an affidavit by the judgment creditor, his solicitor, or his agent as to the non-compliance by the garnishee, and lodging therewith a copy of the affidavit for the registrar of any foreign court at which the summons is to be returnable, and

(b)  lodging with the registrar in duplicate a garnishee summons together with a copy thereof for each garnishee to be served and a further copy for the registrar for any foreign court at which the summons is to be returnable.

(2)  Where a garnishee summons is issued returnable at a foreign court, the registrar for the home court shall as soon as practicable send a copy of the summons and a copy of the affidavit mentioned in subrule (1) to the registrar for the foreign court, and the judgment creditor shall, in accordance with the rules, file the affidavit of service of the summons in the foreign court.

(3)  Where, consequent on the issue of a garnishee summons, returnable at a foreign court, any judgment is given or order made against the garnishee in the foreign court, or any money is paid to the registrar for that court, that registrar shall as soon as practicable forward to the registrar for the home court a certificate as to that judgment, order or payment, and the certificate shall be kept by the registrar for the home court as part of the record of the Court.

5 Notice of payment

The registrar shall as soon as practicable give or send by post to the judgment creditor notice of every payment made to the registrar by a garnishee.

6 (Repealed)

rule 33.6: Rep 18.10.1996.

7 Amount retained by garnishee

The amount prescribed for the purposes of section 97D (a) of the Act is $19.00.

rule 33.7: Ins 5.6.1987. Am 16.4.1992.

Part 34 Writs of execution: general

1 Leave to issue execution

(1)  An application for leave to issue execution under section 107 (2) of the Act shall:

(a)  be made, unless the Court otherwise orders, after notice of the motion is served on any person against whom execution is sought to be issued, and

(b)  be supported by evidence showing:

(i)  the amount due on the date of the motion in respect of the judgment debt,

(ii)  where a period of 12 years has elapsed since the judgment was given or entered up, the reasons for the delay,

(iii)  where section 107 (2) (b) applies, the change which has taken place,

(iv)  where section 107 (2) (c) applies, that a demand to satisfy the judgment has been made on the person liable to satisfy it and that he has not satisfied it as well as the matter necessary to satisfy the requirements of Part 31 rule 5 (2) or (3),

(v)  that the applicant is entitled to proceed to execution on the judgment, and

(vi)  that the person against whom execution is sought to be issued is liable to execution on the judgment.

cf SCR Pt 44, r 2 (3) (4).

(2)    (Repealed)

rule 34.1: Am 5.9.1986; 27.6.1997.

2 Duration cf DCR r 273.

A writ of execution shall bear the date of its issue and shall, for the purpose of execution, be valid:

(a)  where, before the expiration of a period of six months commencing on that date, application is made to the registrar for an office copy of the writ—for a period of twelve months, or

(b)  in any other case—for a period of six months commencing on that date.

rule 34.2: Am 19.8.1983.

3 Separate execution for costs SCR Pt 44, r 6.

Where:

(a)  there is a judgment for the payment of money and for the payment of costs (whether the judgment is for any other matter or not), and

(b)  when the money (other than costs) becomes payable under the judgment the costs have not become payable (because the costs have not been assessed or for any other reason),

a person entitled to enforce the judgment by execution may:

(c)  have execution issued to enforce payment of the money (other than costs), and

(d)  when the costs become payable, have execution issued separately to enforce payment of the costs unless a certificate of determination issues in respect of the costs and the certificate is not filed in the Court.

rule 34.3: Am 17.3.1995; 27.6.1997.

4 Issue cf SCR Pt 44, r 7 (1) (c).

A person requiring the issue of a writ of execution shall file an affidavit containing and verifying a statement of:

(a)  the date of the judgment to enforce which the writ of execution is sought to be issued,

(b)  the amount of money originally payable under the judgment,

(c)  the amount of costs originally payable under the judgment, if that amount has been fixed by taxation of the costs or otherwise,

(d)  the total amount, if any, paid by the judgment debtor in reduction of the judgment debt,

(e)  the total amount of any credits accrued in reduction of the judgment debt otherwise than by payment,

(f)  such other particulars, if any, as are necessary to calculate the amount payable under the judgment,

(g)  the amount payable under the judgment on the date of swearing of the affidavit,

(h)  the interest (if any) payable under section 85 of the Act as at the date of swearing of the affidavit, and

(i)  the address at which it is alleged that goods of the judgment debtor are situated.

rule 34.4: Am 5.6.1987.

5 Form and notice cf DCR r 283.

(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, upon 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.

rule 34.5: Am 19.8.1988; 11.2.1994.

6 Subsequent writs

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, and where execution cannot be issued without leave under section 107 (2) of the Act the Court may, on application made, grant leave to issue a further writ of execution.

7 Deposit to secure costs of execution cf DCR r 277.

(1)  The registrar for 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 him 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 with him 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 he may have entered under the writ and may return the writ of execution,

as the case may require.

rule 34.7: Am 20.3.1987; 19.8.1988.

8 Stay of execution by judgment creditor cf DCR r 279.

(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.

cf DCR r 278.

(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.

cf DCR r 279.

(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.

rules 34.8, 34.9: Am 19.8.1988.

9 Account cf SCR Pt 45, r 8.

The Sheriff’s Officer or bailiff shall give to any party, or any person who claims that his property has been sold by the Sheriff’s Officer or bailiff under the writ, who requests the same a report of any sale under a writ of execution and an account of the proceeds of the sale and any other money received by him under the writ and of his charges and the manner of disposal of the proceeds or other money.

rules 34.8, 34.9: Am 19.8.1988.

10 When writ may not be executed cf DCR r 439.

(1)  A writ of execution may not be executed on Christmas Day or Good Friday.

(2)  A Sheriff’s Officer or bailiff shall not be required to execute a writ of execution on any day on which the registries need not be open under Part 2 rule 4 (4).

rule 34.10: Am 14.6.1985; 19.8.1988.

11 (Repealed)

rule 34.11: Am 5.9.1986; 19.8.1988. Rep 18.10.1996.

12 Judgment for return of goods

(1)  A judgment given under section 83 (1) (a), and an order made under section 83 (2), of the Act may, after the expiration of any time specified under Part 31 rule 11 (2), be enforced by one or more of the following means:

(a)  writ of specific delivery, and

(b)  subject to this rule, committal by order of the Court on the application of the judgment creditor.

(2)  A judgment given under section 83 (1) (b) of the Act may, after the expiration of any time specified under Part 31 rule 11 (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 him before the expiration of any time specified under Part 31 rule 11 (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 31 rule 11 (2) in respect of the judgment.

(6)  A minute of a judgment served under this rule must bear a notice (naming the persons concerned) that the person served 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 3 rule 2 (1) extending or abridging any time specified under Part 31 rule 11 (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.

rule 34.12: Ins 14.6.1985.

13 Issue of writ of delivery or specific delivery

A person requiring the issue of a writ of delivery or a writ of specific delivery shall file an affidavit by the person or his solicitor or agent containing and verifying a statement of:

(a)  the matters mentioned in paragraphs (a) to (i) of rule 4 relative 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.

rule 34.13: Ins 20.3.1987.

Part 35 Writs of execution: personal property

1 Possession fees DCR r 294.

(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 taxing the costs of the execution otherwise orders, be chargeable against the judgment debtor as part of those costs.

rules 35.1–35.3: Am 19.8.1988.

2 Removal of goods cf DCR r 290.

(1)  Where any goods are levied on, the Sheriff’s Officer or bailiff may remove them to a place where, in his 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.

cf DCR r 289.

(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 him by post addressed to him at his last known residence, or leave for him at the place from which the goods are removed, notice of the removal and a sufficient inventory of the goods so removed.

rules 35.1–35.3: Am 19.8.1988.

3 Time of sale DCR r 288.

(1)  Subject to section 109 (6) 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.

rules 35.1–35.3: Am 19.8.1988.

3A Auctioneer

(1)  Where the nature and apparent value of goods to be sold under a writ of execution are such that it is reasonable to do so, the Sheriff’s Officer or bailiff may appoint an auctioneer as referred to in section 111 of the Act to sell the goods.

(2)  An auctioneer appointed to sell any goods under a writ of execution shall, as soon as practicable after the registrar, Sheriff’s Officer or bailiff advises him that his services will not be required in respect of the writ, or otherwise requests an account of his charges, advise the registrar, Sheriff’s Officer or bailiff of the amount of those charges to date.

(3)  An auctioneer appointed by a Sheriff’s Officer or bailiff to sell any goods under a writ of execution shall as soon as practicable after receipt by him of any moneys under the writ pay those moneys 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.

rule 35.3A: Ins 22.4.1988. Am 19.8.1988.

4 Publication

(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 upon 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 public place, four days at least before the date appointed for the sale.

cf DCR r 287.

(2)  Where goods are removed from a place in a city or town under rule 2 (1), the Sheriff’s Officer or bailiff shall cause notice of the intended sale of the goods to be affixed upon or near the door of that place four days at least before the date appointed for the sale.

cf DCR r 289.

(3)  Where the Sheriff’s Officer or bailiff is required to put up for sale under a writ of execution any equity of redemption, or other equitable interest, in any goods, he shall, six days at least before the date appointed for the sale, cause notice of the intended sale and particulars of the interest to be sold to be posted at the court-house and advertised in a newspaper circulating in the district in which the sale is to take place.

DCR r 292.

(4)  The Sheriff’s Officer or bailiff shall give, in addition to any notice of a sale of goods under a writ of execution which he is required under the rules to give, such further notice, by advertisement in a newspaper or otherwise, as appears to him necessary to give due publicity to the sale.

DCR r 293.

(5)  An auctioneer appointed by a Sheriff’s Officer or bailiff under rule 3A (1) 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 him necessary to give due publicity to the sale.

rule 35.4: Am 22.4.1988; 19.8.1988.

5 Sale

Subject to the rules, goods sold under a writ of execution shall be sold by public auction to the highest bidder.

rule 35.5: Subst 22.4.1988.

6 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 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 Part 34 rule 2.

rules 35.6, 35.7: Ins 22.4.1988. Am 19.8.1988.

7 Approximate market value

(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 he 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 he thinks fit require the judgment creditor to furnish to him 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 engage a suitably qualified and experienced valuer to provide him 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 by the Sheriff’s Officer or bailiff under subrule (1).

rules 35.6, 35.7: Ins 22.4.1988. Am 19.8.1988.

8 Sale by private treaty

(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 7 (1), the Sheriff’s Officer, or, where an auctioneer was appointed by the Sheriff’s Officer under rule 3A (1) to sell the goods, the auctioneer, or either of them, 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 7 (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.

rule 35.8: Ins 22.4.1988. Am 19.8.1988; 1.3.1996.

9 Conditions of sale

(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.

rule 35.9: Ins 22.4.1988. Am 19.8.1988. Subst 28.8.1992.

Part 36 Writs of execution: land

1 Renewal cf DCR r 317.

(1)  The registrar may, on the filing of an application by the judgment creditor, 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, signing and dating the memorandum, and affixing the seal of the Court thereto.

(2)  A renewal mentioned in subrule (1) shall not have the effect of continuing the validity of a writ of execution beyond the period mentioned in Part 34 rule 2.

2 Notice to debtor cf DCR r 318.

(1)  A judgment creditor may file an affidavit verifying the registration, or recording of particulars, of a writ of execution at the Registrar-General’s Department and 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 an affidavit mentioned in subrule (1) 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 land of the judgment debtor after the lapse of four weeks,

(c)  the judgment debtor’s right to effect his own disposition of the land and the conditions pertaining thereto, and

(d)  the judgment debtor’s right to make an application under Part 31A rule 2 (1).

(3)  The judgment creditor shall cause any notice sealed under subrule (2) to be served on the judgment debtor, either personally or by compliance with any order made under Part 8 rule 16.

rule 36.2: Am 14.6.1985; 19.8.1988.

3 Disposition by judgment debtor

(1)  An issuing registrar shall, for the purposes of section 112 (2) (d) of the Act, 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 shall as soon as practicable advise that Sheriff’s Officer or bailiff of any certificate endorsed by him under that paragraph.

(2)  The prescribed period for the purposes of section 112 (2) of the Act is the period commencing on the filing of the notice of consent under section 112 (2) (c) and expiring:

(a)  where notice under rule 2 (2) has been served on the judgment debtor before the endorsing of the notice of consent with the registrar’s certificate, on a day two weeks before the expiration, or

(b)  where notice under rule 2 (2) has not been so served, on a day six weeks before the expiration,

of a period of three months after the registration, or recording of particulars, of the writ at the Registrar-General’s Department.

(3)  Where in respect of a writ of execution money is paid to the issuing registrar under section 112 (3) (c) of the Act, the registrar shall:

(a)  retain from that money:

(i)  the amount due under the judgment, including interest,

(ii)  the costs of the execution then known to the registrar, including any fees payable in respect of the execution to an auctioneer, and

(iii)  an amount determined in accordance with the prescribed scale as security for the judgment creditor’s costs of the execution other than those retained under subparagraph (ii),

and shall pay any balance of that 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.

rule 36.3: Am 19.8.1988.

4 Creditor’s application for sale cf DCR r 318.

(1)  Where a judgment creditor:

(a)  files at the proclaimed place the Sheriff’s Officer at which, or the bailiff for which, is required to execute a writ of execution an affidavit of service of a notice under rule 2 (2) in respect of the writ,

(b)  files at that place a notice of sale and lodges with the registrar for that place six copies of the notice, and

(c)  furnishes to that Sheriff’s Officer or bailiff such information as he has in his possession, or can reasonably obtain, which 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 office of the Registrar-General,

the Sheriff’s Officer or bailiff may proceed to sell the land, or, where the nature and apparent value of the interest to be sold are such that it is reasonable to do so, appoint an auctioneer under section 111 (a) of the Act to sell the land.

(2)  The Sheriff’s Officer or bailiff required, or the auctioneer appointed under subrule (1), to sell land under a writ of execution shall:

(a)  fix a date for the sale, which date shall be not less than four weeks after the service on the judgment debtor of the notice mentioned in rule 2 (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 two sealed copies of the notice so completed to the judgment creditor.

rules 36.4, 36.5: Am 22.4.1988; 19.8.1988.

5 Approximate market value DCR r 319 (1) (2).

(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 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 under subrule (1) a Sheriff’s Officer or bailiff may require the judgment creditor to furnish to him, in addition to any information furnished under rule 4 (1) (c), any further information known to, or reasonably capable of ascertainment by, the judgment creditor in respect of the land, and where 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.

(3)  A Sheriff’s Officer or bailiff or an auctioneer shall not under a writ of execution 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 under subrule (1).

rules 36.4, 36.5: Am 22.4.1988; 19.8.1988.

6 Further notice to debtor

The judgment creditor shall endorse on a sealed copy of the notice of sale forwarded to him under rule 4 (2) (b) a memorandum reminding the judgment debtor of his right to make an application under Part 31A rule 2 (1), and shall cause the copy so endorsed to be served on the judgment debtor at least one week before the date fixed for the sale.

rule 36.6: Am 14.6.1985.

7 Satisfaction by debtor cf DCR r 321.

Where a judgment debtor, before or at the time fixed for the sale of his land under a writ of execution, indicates to the Sheriff’s Officer or bailiff required, or the auctioneer appointed, to sell the land his intention of satisfying the writ, he shall pay to the Sheriff’s Officer or bailiff or auctioneer:

(a)  the amount due under the judgment, including interest,

(b)  the costs of the execution then known to the Sheriff’s Officer or bailiff or auctioneer, including any fees payable in respect of the execution to an auctioneer, and

(c)  an amount determined in accordance with the prescribed scale as security for the judgment creditor’s costs of the execution other than those mentioned in paragraph (b),

and the Sheriff’s Officer or bailiff or auctioneer shall on receipt of those moneys cancel the sale and the Sheriff’s Officer or bailiff shall return the writ to the registrar.

rules 36.7–36.10: Am 19.8.1988.

8 Advertisement cf DCR r 318.

(1)  The Sheriff’s Officer or bailiff required to execute a writ of execution, or an auctioneer appointed to sell any land under the writ, shall cause notice of any such sale, including a full description of the property to be sold, to appear by way of advertisement in the Government Gazette, and 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 under a writ of execution may, in addition to being advertised under subrule (1), be further advertised by the Sheriff’s Officer or bailiff required, or the auctioneer appointed, to sell the land if the further advertisement is approved by the Sheriff or the registrar who required the bailiff to execute the writ.

rules 36.7–36.10: Am 19.8.1988.

9 Proof of service and publication cf DCR r 318 (4) (5).

(1)  Before the sale of any land takes place under a writ of execution, the judgment creditor shall lodge with the Sheriff’s Officer or bailiff required to execute the writ an affidavit or affidavits as to the service on the judgment debtor of the notice, duly endorsed, required under rule 6 to be served, and as to the date and particulars of publication of every advertisement of the sale.

(2)  When making his return to a writ of execution a Sheriff’s Officer or bailiff shall attach thereto any affidavit lodged with him under subrule (1) in respect of the writ.

rules 36.7–36.10: Am 19.8.1988.

10 Postponement cf DCR r 322.

(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, any sale of land 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 land 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 Part 34 rule 2.

rules 36.7–36.10: Am 19.8.1988.

11 Sale

Subject to the rules, land sold under a writ of execution shall be sold by public auction to the highest bidder.

rule 36.11: Subst 22.4.1988.

11A Sale by private treaty

(1)  Where 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 5 (1), the Sheriff’s Officer, or, where an auctioneer was appointed by the Sheriff’s Officer under rule 4 (1) to sell the land, the auctioneer, or either of them may, with the approval of the Sheriff, sell the land under the writ of execution 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 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 land fixed by the Sheriff’s Officer under rule 5 (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 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 land at the public auction.

rule 36.11A: Ins 22.4.1988. Am 19.8.1988; 1.3.1996.

11B 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.

rule 36.11B: Ins 22.4.1988. Am 19.8.1988; 28.8.1992.

12 Sheriff’s Officer, bailiff or auctioneer to report cf DCR r 319 (6).

(1)  A Sheriff’s Officer or bailiff required, or an auctioneer appointed, to sell any land under a writ of execution shall, as soon as practicable after the sale has been completed, make a report to the registrar who required the Sheriff’s Officer or bailiff to execute the writ as to:

(a)  the approximate market value of the land fixed by the Sheriff’s Officer or bailiff under rule 5 (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 or 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 or bailiff or auctioneer considers should be reported to the registrar.

(2)  An auctioneer appointed to sell any land under a writ of execution shall, as soon as practicable after the registrar or Sheriff’s Officer or bailiff advises him that his services will not be required in respect of the writ, or otherwise requests an account of his charges, advise the registrar or Sheriff’s Officer or bailiff of the amount of those charges to date.

(3)  An auctioneer appointed by a Sheriff’s Officer or bailiff to sell any land under a writ of execution shall as soon as practicable after receipt by him of any moneys under the writ pay those moneys 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.

rule 36.12: Am 22.4.1988; 19.8.1988.

13 Payment to judgment debtor cf DCR r 321.

(1)  A judgment creditor at whose request a writ of execution has issued shall within two months after the receipt, in respect of the writ, by the issuing registrar of:

(a)  the proceeds of a sale of any land, being an amount greater than the amount necessary to satisfy the judgment debt, including interest,

(b)  any money under section 112 (3) (c) of the Act, or

(c)  any money under rule 7,

or within such later time as may be consented to in writing by the judgment debtor, file evidence of an agreement with the judgment debtor as to the amount of the judgment creditor’s costs of the execution, or a bill of those costs for taxation.

(2)  Where the judgment creditor complies with subrule (1) 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.

(3)  Where the judgment creditor does not comply with subrule (1), and does not within the time for that compliance advise the registrar of any consent by the judgment debtor to extend that time, the registrar may pay to the judgment debtor any moneys mentioned in subrule (1) 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.

(4)  The registrar shall pay to the judgment creditor any moneys referred to in this rule which the registrar is not by this rule required to pay to the judgment debtor.

(5)  Nothing in this rule affects the right of the judgment creditor to recover against the judgment debtor his costs of the execution.

14 Transfer cf DCR r 319 (4) (d).

A transfer or conveyance by a registrar of land sold under a writ of execution shall be prepared by the purchaser.

Part 37 Writ against the person

1 Summons to show cause cf DCR rr 299, 300.

(1)  Where a judgment creditor in respect of a judgment:

(a)  files in duplicate an affidavit by the judgment creditor, his solicitor or agent, setting out and verifying the grounds on which the judgment creditor applies for an order authorising the issue of a writ against the person of the judgment debtor, and

(b)  lodges with the registrar in triplicate a form of summons calling on the judgment debtor to attend before the Court and show cause why the writ should not issue,

the registrar may issue the summons.

cf DCR r 296.

(2)  A summons issued under subrule (1):

(a)  shall summon the judgment debtor to attend the Court sitting at a proclaimed place that, in the opinion of the registrar issuing the summons, is either:

(i)  the nearest proclaimed place to the place where the judgment debtor is resident, as stated by the judgment creditor to that registrar in writing, or

(ii)  the most easily accessible to the judgment debtor,

and that is specified in the summons, and

(b)  shall summon the judgment debtor so to attend on a day and at a time fixed by that registrar and specified in the summons.

(3)  Where a summons is issued under subrule (1) returnable at a foreign court, the judgment creditor shall lodge with the registrar of the home court an additional copy of the summons and of every affidavit filed under subrule (1), and that registrar shall as soon as practicable forward those copies to the registrar of the foreign court.

cf DCR rr 297, 298.

(4)  A summons issued under subrule (1), and a sealed copy of every affidavit filed under that subrule, shall be served on the judgment debtor personally or by compliance with any order made under Part 8 rule 16 at least fourteen days before the day on which the judgment debtor is called upon by the summons to attend the Court, or within such shorter time before that day as may for cause shown be approved, either before or on that day, by the Court.

rule 37.1: Am 14.6.1985.

2 No order without summons cf DCR r 296.

(1)  Subject to subrule (2), no order authorising the issue of a writ against the person of a judgment debtor shall be made unless the judgment debtor has been given the opportunity, on the hearing of an application made by a summons under rule 1 (1), to show cause why the writ should not issue.

(2)  Where it appears to the Court, on the application of the judgment creditor, that the judgment creditor may otherwise lose the benefit of the judgment because of the imminent departure of the judgment debtor from the Commonwealth or because of any other reason the Court may dispense with the issue and service of a summons under rule 1 (1), and may, on being satisfied as to the grounds for such an order, make an order authorising the issue of a writ against the person of the judgment debtor.

(3)  Notice of an application mentioned in subrule (2) need not, unless the Court otherwise orders, be served on any person.

3 Writ of execution to be returned cf DCR r 304.

Where a writ of execution has been issued in respect of a judgment debt, and a summons is issued under rule 1 (1), or any order authorising the issue of a writ against the person of the judgment debtor is made, in respect of the judgment debt, the registrar shall require the Sheriff’s Officer or bailiff to return the writ of execution.

rule 37.3: Am 19.8.1988.

4 Issue of writ cf DCR rr 305, 307.

Where an order is made in an action authorising the issue of a writ against the person the writ may be issued by the registrar for the proper place in relation to the action after:

(a)  the judgment creditor draws up and files the order with the registrar for the proclaimed place at which the order is made,

(b)  the registrar mentioned in paragraph (a) has the order signed by the Judge who made it,

(c)  if the order is made at a place other than the proper place in relation to the action, the registrar for that place forwards the order to the registrar for that proper place, and

(d)  the judgment creditor files with the registrar for that proper place a praecipe for the issue of the writ and gives to that registrar any security required by the Court under section 113 (1A) of the Act.

rule 37.4: Am 14.6.1985.

5 Duration DCR r 308.

(1)  A writ against the person shall, for the purpose of its execution, be valid only during a period of one month commencing on the first date on which the writ may issue (which date shall be endorsed on the writ), or during such longer period as the Court may order on application made by the judgment creditor before the expiration of the firstmentioned period.

(2)  An application mentioned in subrule (1) may, unless the Court otherwise orders, be made without serving notice of the motion on any person.

(3)  The registrar shall endorse on the writ a note of the making of any order mentioned in subrule (1).

(4)  A writ against the person shall expire when it ceases to be valid under this rule.

6 Advice of entitlement to discharge cf DCR r 312.

Where:

(a)  a judgment debtor is in the custody of a Sheriff’s Officer or bailiff or the governor of a prison under a writ against the person issued in respect of an action,

(b)  the amount and costs due under the writ are paid to the registrar for the proper place in relation to the action, or the judgment creditor lodges with that registrar a request mentioned in section 114 (2) of the Act, and

(c)  it appears to that registrar that the judgment debtor may be unduly detained in custody if the registrar communicates the payment or the lodging of the request to the Sheriff’s Officer or bailiff or governor by post or by hand,

the registrar shall communicate the payment or lodging to the Sheriff’s Officer or bailiff or governor by telephone or telegraph, and the Sheriff’s Officer or bailiff or governor, on being satisfied of the authenticity of the communication, shall forthwith release the judgment debtor on the authority thereof.

rule 37.6: Am 19.8.1988.

7 (Repealed)

rule 37.7: Rep 18.10.1996.

Part 38 New trial

1 Stay of proceedings DCR r 365 (2).

An application for a new trial made to the Court shall not, unless the Court otherwise orders, operate as a stay of proceedings.

2 New trial with jury DCR r 367.

Where the Court grants a new trial in an action tried without a jury it may if it thinks fit order that the new trial be had with a jury.

3 Hearing date cf DCR r 368.

Where the Court grants a new trial in any proceedings it shall direct that the proceedings be set down for trial on a date or at a sittings then fixed by it, or for directions on a date then fixed by it.

rules 38.3, 38.4: Am 24.4.1998.

4 New trial ordered by Supreme Court cf DCR r 380.

Where the Supreme Court orders that a new trial be had in the Court, the registrar shall, as soon as practicable after being served with a copy of the order of the Supreme Court, set the new trial down for hearing on a date or at a sittings then fixed by him, or for directions on a date then fixed by him, and notify the parties of the date or sittings so fixed.

rules 38.3, 38.4: Am 24.4.1998.

5 (Repealed)

rule 38.5: Rep 18.10.1996.

Part 39 Costs

1AA Application after commencement of Legal Profession Reform Act 1993

(1)  This Part has no operation after 30 June 1994 except:

(a)  as provided by the Legal Profession Act 1987 or the regulations made under that Act, or

(b)  as provided by subrule (2).

(2)  This rule shall not affect any right, privilege, obligation, liability or disentitlement acquired, accrued or incurred on or before 30 June 1994.

rule 39.1AA: Ins 17.3.1995.

Division 1 Entitlement

1 Time for dealing with costs cf SCR Pt 52, r 5.

(1)  The 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.

(2)  Where the Court makes an order in any proceedings for the payment of costs, it may require that the costs be paid forthwith or within a specified time, notwithstanding that the proceedings are not concluded.

(3)  Where the Court requires under subrule (2) that costs be paid before the proceedings are concluded, it shall direct the scale on which the costs are to be taxed.

1A Costs to follow event of action

Subject to the rules, the costs of any action, including the costs of any proceedings ancillary to the action, shall, except where otherwise ordered by the Court, follow the event of the action.

rule 39.1A: Ins 14.6.1985.

1B Limitations on costs

(1)  If in any action which could have been brought in a Local Court but which is brought in the Court:

(a)  the plaintiff recovers a total amount which does not exceed the prescribed amount by payment by or on behalf of the defendant without judgment, or

(b)  judgment is given or entered up in favour of the plaintiff for an amount which does not exceed the prescribed amount,

the plaintiff shall not be entitled to recover any costs in the action unless the Court certifies that it appears to it that there was a sufficient reason for bringing or trying the action in the Court.

(2)  Subrule (1) does not apply in respect of an action in which judgment is given or entered up for an amount which does not exceed the prescribed amount but which would have exceeded the prescribed amount but for:

(a)  any verdict against the plaintiff on any cross-claim pleaded by the defendant, or

(b)  any reduction of the damages due to the plaintiff under Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965,

or but for both such a verdict and such a reduction.

(3)  In this rule, prescribed amount means:

(a)  in relation to an action commenced before 4 April 1977—$100,

(b)  in relation to an action commenced on or after 4 April 1977 but before 1 April 1983—$750,

(c)  in relation to an action commenced on or after 1 April 1983 but before 1 February 1988—$2,000,

(d)  in relation to an action commenced on or after 1 February 1988 but before 1 November 1991:

(i)  if the action is of the kind mentioned in section 12 (2) of the Local Courts (Civil Claims) Act 1970—$15,000,

(ii)  if the action is not of the kind mentioned in section 12 (2) of the Local Courts (Civil Claims) Act 1970 but is, or could under the rules have been, commenced by the lodging of a statement of liquidated claim—$10,000, or

(iii)  in any other case—$5,000, or

(e)  in relation to an action commenced on or after 1 November 1991:

(i)  if the action is, or could under the rules have been, commenced by the lodging of a statement of liquidated claim—$20,000, or

(ii)  in any other case—$10,000.

rule 39.1B: Ins 14.6.1985. Am 24.12.1987; 4.10.1991.

2 Taxed costs and other provisions cf SCR Pt 52, r 6.

(1)  Subject to this Part, where, by or under the Act or the rules or any order of the Court, costs are to be paid to any person, that person shall be entitled to his costs taxed in accordance with this Part.

(2)  Where because of any judgment or order of the Court costs are to be paid to any person, the Court may order that, as to the whole or any part (specified in the judgment or order) of the costs, instead of his costs taxed in accordance with this Part, that person shall be entitled to:

(a)  his costs taxed on a scale higher than that which would be otherwise applicable,

(b)  a proportion specified in the judgment or order of the taxed costs,

(c)  the taxed costs from or up to a stage of the proceedings specified in the judgment or order,

(d)  a gross sum specified in the judgment or order, or

(e)  a sum in respect of costs to be ascertained in such manner as the Court may direct.

3 Disobedience to rule, judgment or order SCR Pt 52, r 20.

Where any person fails to comply with any provision of the Act or the rules or any judgment or order of the Court, the Court may order him to pay the costs of any other person occasioned by the failure.

4 Discovery before action SCR Pt 52, r 21.

The Court may in any action require any person to pay the costs of a party to the action of proceedings under Part 4 in respect of that action including payments of conduct money and payments on account of expenses and loss under that Part.

5 Costs in action on judgment cf DCR r 482.

(1)  The plaintiff in an action brought upon a judgment of a court shall not recover or be entitled to any costs of the action unless the District Court shall otherwise order.

(2)  Where the Court orders under subrule (1) that the plaintiff be entitled to any costs, it shall direct the scale on which the costs are to be taxed.

6 Liability of solicitor SCR Pt 52, r 66.

(1)  Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a solicitor is responsible (whether personally or through a servant or agent), the Court may, after giving the solicitor a reasonable opportunity to be heard:

(a)  direct the solicitor to repay to his client costs which the client has been ordered to pay to any other party, and

(b)  direct the solicitor to indemnify any party other than his client against costs payable by the party indemnified.

(2)  Without limiting the generality of subrule (1), a solicitor is responsible for default for the purposes of that subrule where any proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the solicitor:

(a)  to attend in person or by a proper representative,

(b)  to file any document which ought to have been filed,

(c)  to deliver any document which ought to have been delivered for the use of the Court,

(d)  to be prepared with any proper evidence or account, or

(e)  otherwise to proceed.

(3)  The Court may, before making an order under subrule (1), refer the matter to a taxing officer for enquiry and report.

(4)  The Court may order that notice of any proceedings or order against a solicitor under this rule shall be given to his client in such manner as may be specified in the order under this subrule.

(5)  Where the Court directs a solicitor under subrule (1) (b) to indemnify a party, it shall further direct the solicitor to refrain from recovering from his client any part of the amount for which he so indemnifies the party, or any other compensation for any part of that amount.

rule 39.6: Am 14.6.1985.

Division 2 Particular items

7 What costs allowed SCR Pt 52, r 23 (2); DCR r 475 (1).

(1)  Subject to subrule (4), on a taxation of costs in respect of any proceedings there shall be allowed all such costs as were, in the opinion of the taxing officer, necessary or proper for the attainment of justice in the proceedings or for enforcing or defending in the proceedings the rights of the party whose costs are being taxed, and there shall be disallowed all such costs as were, in the opinion of the taxing officer, incurred through over-caution, negligence, or mistake, or merely at the desire of the party incurring them.

(2)  Notwithstanding subrule (1), the costs of and incidental to the briefing of counsel for a party on the hearing of an action shall not be disallowed on the ground that the brief was delivered too early if counsel has conferred with the party, or otherwise given substantial assistance, in respect of negotiations which have led to settlement of the action.

(3)  Notwithstanding subrule (1), the costs of and incidental to the briefing of counsel to advise on evidence, or on quantum, in respect of an action shall not be disallowed on the ground that:

(a)  damages for personal injuries are claimed in the action, or

(b)  the personal injuries were sustained in a motor vehicle accident.

(4)  Notwithstanding anything in this Part, on a taxation or assessment on an indemnity basis all costs shall be allowed except insofar as they are of an unreasonable amount or have been unreasonably incurred, and any doubts which a taxing officer may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the receiving party.

rule 39.7: Am 21.6.1991; 31.3.1994.

8 Proceedings previously commenced cf DCR r 454 (2).

In proceedings commenced before the rules commence, any taxation of costs shall be according to the scales of costs in force immediately before the rules commence.

9 Agreement as to costs

(1)  An agreement as to the amount of costs payable by a party shall be evidenced to the registrar for the purposes of section 148C (c) of the Act by the filing of an order for that amount of costs on which is endorsed the consent of the party signed by the party or his solicitor.

(2)  Where a consent mentioned in subrule (1) is signed by a person other than a solicitor, the signature of the person shall be witnessed by any registrar, a solicitor, or a justice of the peace.

(3)  An order mentioned in subrule (1) shall be for signature by the registrar.

rule 39.9: Am 14.6.1985.

10 Scales of costs

(1)  In this rule the party who commenced the proceedings means, where the proceedings are:

(a)  an action, the plaintiff,

(b)  a cross-claim, the defendant,

(c)  third party proceedings, the defendant, or

(d)  fourth or subsequent party proceedings, the party who filed the fourth or subsequent party notice.

(2)  In this rule, subject-matter in respect of any proceedings means:

(a)  subject to rule 1B and to paragraph (c), where judgment in the proceedings is given or entered up, or a verdict is found, for the party who commenced the proceedings, the amount of the judgment or verdict,

(b)  where judgment in the proceedings is given against the party who commenced the proceedings, or that party is otherwise required to pay the costs of the proceedings, the amount for which the proceedings were commenced, or

(c)  where judgment is entered up for an amount less than the amount for which the proceedings were commenced or judgment for costs alone is given or entered up under Part 31 rule 13 for the party who commenced the proceedings, the amount for which the proceedings were commenced reduced by the amount of any payment found to have been made, or credit found to have accrued, in reduction of that amount before the proceedings were commenced.

(3)  In actions commenced after the rules commence, any costs taxed shall be allowed, where the subject matter of the proceedings:

(a)  does not exceed $500, on the lowest scale,

(b)  exceeds $500 and does not exceed $1,000, on the second scale,

(c)  exceeds $1,000 and does not exceed $2,000, on the third scale, or

(d)  exceeds $2,000, on the highest scale.

(4)  Where by the rules or by any order costs in any action commenced after the rules commence are to be taxed on any scale:

(a)  fees properly paid to counsel shall be allowed to the extent of the amounts set out in the Schedule in respect of that scale,

(b)  disbursements, other than fees to counsel, shall be allowed to the extent to which they are properly made, unless the rules otherwise require, or the Court otherwise directs, and

(c)  fees to solicitors shall, where properly incurred, be allowed, where the costs are taxed on:

(i)  the lowest scale, at 33⅓% of,

(ii)  the second scale, at 60% of,

(iii)  the third scale, at 75% of, or

(iv)  the highest scale, at the amount of,

the fees to solicitors set out in the Schedule.

(5)  In actions commenced on or after the day on which this subrule takes effect, any costs taxed shall be allowed, where the subject matter of the proceedings:

(a)  does not exceed $500, on the lowest scale,

(b)  exceeds $500 but does not exceed $1,000, on the second scale,

(c)  exceeds $1,000 and does not exceed $3,000, on the third scale, or

(d)  exceeds $3,000, on the highest scale.

(5A)  In actions commenced on or after the second day of January, 1976, any costs taxed shall be allowed where the subject matter of the proceedings:

(a)  does not exceed $750, on the Provisional Scale,

(b)  exceeds $750 but does not exceed $2,000, on the First Scale,

(c)  exceeds $2,000 but does not exceed $4,000, on the Second Scale,

(d)  exceeds $4,000, on the Highest Scale.

(5B)  In actions commenced on or after the fourth day of April, 1977, any costs taxed shall be allowed where the subject matter of the proceedings:

(a)  does not exceed $2,000, on the First Scale,

(b)  exceeds $2,000 but does not exceed $4,000, on the Second Scale,

(c)  exceeds $4,000, on the Highest Scale.

(5C)  In actions commenced on or after the first day of November, 1980, any costs taxed shall be allowed where the subject matter of the proceedings:

(a)  does not exceed $3,000, on the First Scale,

(b)  exceeds $3,000, but does not exceed $6,000, on the Second Scale,

(c)  exceeds $6,000, on the Highest Scale.

(5D)  In actions commenced on or after the day on which Schedule 1 to the District Court (Amendment) Act 1982 commences, any costs taxed shall be allowed where the subject matter of the proceedings:

(a)  does not exceed $4,000, on the First Scale,

(b)  exceeds $4,000, but does not exceed $8,000, on the Second Scale,

(c)  exceeds $8,000, but does not exceed $20,000, on the Third Scale,

(d)  exceeds $20,000, on the Special Scale.

(6)  Where by the rules or by any order costs in any action commenced on or after the day on which this subrule takes effect are to be taxed on any scale:

(a)  fees properly payable to counsel shall be allowed to the extent of the amounts set out in the Schedule in respect of that scale,

(b)  disbursements other than fees to counsel, shall be allowed to the extent to which they are properly made, unless the rules otherwise require, or the Court otherwise directs, and

(c)  fees to solicitors shall where properly incurred, be allowed, where costs are taxed on:

(i)  the lowest scale, at 33⅓% of,

(ii)  the second scale, at 50% of,

(iii)  the third scale, at 75% of, or

(iv)  the highest scale, at the amount of,

the fees to solicitors set out in the Schedule.

(6A)  Where by the rules or by any order costs in any action commenced on or after the second day of January, 1976 are to be taxed on any scale:

(a)  fees properly payable to Counsel shall be allowed to the extent of the amounts set out in the Schedule in respect of that scale, any reference in the said Schedule to the “Lowest Scale” shall read as the “Provisional Scale”, any reference to the “Second Scale” shall read as the “First Scale”, and any reference to the “Third Scale” shall read as the “Second Scale”,

(b)  disbursements other than fees to Counsel shall be allowed to the extent to which they are properly made, unless the rules otherwise require, or the Court otherwise directs, and

(c)  fees to Solicitors shall where properly incurred be allowed where taxed on:

(i)  the Provisional Scale, at 50% of,

(ii)  the First Scale, at 66⅔% of,

(iii)  the Second Scale, at 85% of,

(iv)  the Highest Scale, at the amount of,

the fees to Solicitors set out in the Schedule.

(6B)  Where by the rules or by any order costs in any action commenced on or after the 4th day of April, 1977, are to be taxed on any scale, any reference to the Provisional Scale in the rules or schedules to the rules shall cease to have any effect.

(6C)  Notwithstanding anything contained in subrule (4) (6) or (6A) where by the rules or by any order costs in any action commenced on or after the day on which Schedule 1 to the District Court (Amendment) Act 1982 commences are to be taxed on any scale, fees to solicitors shall where properly incurred be allowed where taxed on:

(a)  the First Scale, at 50% of,

(b)  the Second Scale, at 85% of,

(c)  the Third Scale, at the amount of,

the fees to solicitors set out in the Schedule, other than in the Special Scale (Solicitors), and

(d)  the Special Scale, at the amount of the fees to solicitors set out in the Schedule as amended by the Special Scale (Solicitors).

(7)  The total in any bill of costs of fees to Solicitors prescribed by the District Court Rules 1973 (as distinct from payments) shall in respect of business done in any action commenced on or after the day on which this subrule takes effect, be increased by thirty-six per centum and such increase shall be allowed in respect of such business. Provided that where a fixed sum for costs is allowed without taxation such increase shall be allowed upon such fixed sum.

(7A)  The total in any bill of costs of fees to Solicitors prescribed by the District Court Rules 1973 (as distinct from payments) shall in respect of business done in any action commenced on or after the second day of January, 1976, be increased by eighty per centum and such increase shall be allowed in respect of such business. Provided that where a fixed sum for costs is allowed without taxation such increase shall be allowed upon such fixed sum.

(7B)  The total in any bill of costs of fees to solicitors prescribed by the District Court Rules 1973 (as distinct from payments), shall in respect of business done on or after the day on which this subrule takes effect, be increased by one hundred and ten per centum and such increase shall be allowed in respect of such business. Provided that where a fixed sum for costs is allowed without taxation such increase shall be allowed on such fixed sum for business done in any action commenced on or after the day on which this subrule takes effect.

(7C)  The total in any bill of costs of fees to solicitors prescribed by the District Court Rules 1973 (as distinct from payments), shall in respect of business done on or after the first day of November, 1980, be increased by one hundred and sixty per centum and such increase shall be allowed in respect of such business. Provided that where a fixed sum for costs is allowed without taxation such increase shall be allowed on such fixed sum for business done in any action commenced on or after the first day of November, 1980.

(7D)  The total in any bill of costs of fees to solicitors prescribed by the District Court Rules 1973 (as distinct from payments), shall in respect of business done on or after the 16th day of April, 1982, be increased by two hundred and twenty-five per centum and such increase shall be allowed in respect of such business. Provided that where a fixed sum for costs is allowed without taxation such increase shall be allowed on such fixed sum for business done in any action commenced on or after the 16th day of April, 1982.

(7E)  The total in any bill of costs of fees to solicitors prescribed by the District Court Rules 1973 (as distinct from payments), shall in respect of business done on or after first day of January, 1984, be increased by two hundred and ninety-four per centum and such increase shall be allowed in respect of such business. Provided that where a fixed sum for costs is allowed without taxation such increase shall be allowed on such fixed sum for business done in any action commenced on or after first day of January, 1984.

(7F)  The total in any bill of costs of fees to solicitors prescribed by the District Court Rules 1973 (as distinct from payments) shall in respect of business done on or after 1 October 1985 be increased by three hundred and thirty-nine per centum and such increase shall be allowed in respect of such business. Provided that where a fixed sum for costs is allowed without taxation such increase shall be allowed on such fixed sum for business done in any action commenced on or after 1 October 1985.

(7G)  The total in any bill of costs of fees to solicitors prescribed by the District Court Rules 1973 (as distinct from payments) shall in respect of business done on or after 1 February 1987 be increased by three hundred and sixty-six per centum and such increase shall be allowed in respect of such business. Provided that where a fixed sum for costs is allowed without taxation such increase shall be allowed on such fixed sum for business done in any action commenced on or after 1 February 1987.

(8)  Where by the rules or by any order costs in any action commenced on or after 1 July, 1973, are taxed on any scale, fees properly payable to counsel shall be allowed to the extent of the amounts set out in the Schedule in respect of that scale in respect of briefs delivered on or after this subrule takes effect.

(9)  Where by the Rules or by any order costs in any action commenced on or after 1 July, 1973, are to be taxed on any scale, fees properly paid to counsel shall be allowed to the extent of the amounts set out in the Schedule in respect of that scale in respect of briefs delivered on or after this subrule takes effect; in respect of actions commenced on or after 2 January, 1976, any reference in the said Schedule to the “Second Scale” shall be read as the “First Scale”, and any reference to the “Third Scale” shall be read as the “Second Scale”, and any reference to the “Lowest Scale” shall be read as the “Provisional Scale”.

(10)  Notwithstanding anything contained in subrule (4), (6), (6A), (8) or (9), where by the rules or by any order costs in any action commenced on or after 1 July, 1973, are to be taxed, then, subject to any order of the Court, in respect of briefs delivered to counsel on or after the day on which Schedule 1 to the District Court (Amendment) Act 1982 commences, fees properly paid to counsel shall be allowed where the subject matter of the proceedings:

(a)  does not exceed $4,000, at 50% of,

(b)  exceeds $4,000 but does not exceed $8,000, at 85% of,

(c)  exceeds $8,000 but does not exceed $20,000, at the amount of,

the fees to counsel set out in the Schedule, other than in the Special Scale (Counsel) and,

(d)  exceeds $20,000, at the amount of the fees to counsel set out in the Special Scale (Counsel) in the Schedule.

rule 39.10: Am 4.7.1973; 31.5.1974; 6.9.1974; 22.11.1974; 24.12.1975; 7.4.1977; 12.8.1977; 14.10.1977; 24.10.1980; 23.4.1982; 31.3.1983; 23.12.1983; 14.6.1985; 20.9.1985; 16.1.1987.

11 Scale where cross-claim cf DCR r 467.

Unless the Court otherwise orders, where a defendant pleads a cross-claim and:

(a)  a verdict is found for the plaintiff (or the plaintiff otherwise succeeds) in both the action and the cross-claim, any costs payable to the plaintiff shall on taxation be allowed:

(i)  as to the costs incurred before service on the plaintiff of notice of the cross-claim, on the scale applicable to the action, and

(ii)  as to the costs incurred after that service, on the scale applicable to the action or the scale applicable to the cross-claim, whichever is the higher,

(b)  a verdict is found for the defendant (or the defendant otherwise succeeds) in both the action and the cross-claim, any costs payable to the defendant shall on taxation be allowed on the scale applicable to the action or the scale applicable to the cross-claim, whichever is the higher,

(c)  a verdict is found for each party (or each party otherwise succeeds) in the proceedings commenced by that party, any costs payable to that party shall on taxation be allowed on the scale applicable to the proceedings commenced by him, or

(d)  a verdict is found against each party (or each party otherwise fails) in the proceedings commenced by that party, any costs payable by that party shall on taxation be allowed on the scale applicable to the proceedings commenced by him.

12 Scale in certain proceedings cf DCR r 463.

Where any costs are payable by a party in proceedings under Division 8 of Part 3 of the Act, or under any Act other than the District Court Act 1973, the Court shall direct the scale on which the costs are to be paid.

13 Scale in enforcement proceedings

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.

14 Where separate judgments cf DCR r 477.

(1)  Where two or more defendants have been joined in one proceedings, and judgment has been given separately against each with costs, unless the Court shall otherwise order the costs shall be taxed once only, against all of the defendants, on the scale applicable to the larger or largest of the judgments so given, and on any such taxation costs properly incurred against any defendant shall be allowed against all.

(2)  Payment of any costs taxed under subrule (1) 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 amounts of each judgment.

15 Solicitor from a distance cf DCR r 475 (2).

Unless the Court otherwise orders, where a party employs a solicitor who does not reside or carry on business in the vicinity of the proclaimed place at which the party becomes entitled to any costs, no costs for conveyance or maintenance of the solicitor shall be allowed on taxation unless the taxing officer is satisfied that there was reasonable cause for employing the solicitor rather than a solicitor who does so reside or carry on business.

16 Retainer

A retaining fee to counsel, or to a solicitor, shall not be allowed on any taxation of costs.

17 More than one counsel

(1)  The costs of briefing more than one counsel shall not be allowed on any taxation of costs unless the Court otherwise orders.

(2)  Where the Court makes an order referred to in subrule (1) it may direct the amount to be allowed in respect of any one or more of the counsel employed, and subject to any such direction:

(a)  where one of those counsel is one of Her Majesty’s counsel (hereinafter referred to as senior counsel), there shall be allowed for that counsel the fees paid to him, not exceeding the fees allowed in the Supreme Court for comparable work by one of Her Majesty’s counsel, and for each other of those counsel the fees paid to him, not exceeding in respect of his brief fee and any refreshers and conferences allowed in respect of both that counsel and senior counsel two-thirds of the amount allowed for senior counsel, or

(b)  where none of those counsel is senior counsel, there shall be allowed for one of those counsel (hereinafter referred to as the first counsel), the fees paid to him, not exceeding the appropriate fees set out in the Schedule, and for each other of those counsel the fees paid to him, not exceeding in respect of his brief fee and any refreshers and conferences allowed in respect of both that counsel and the first counsel two-thirds of the amount allowed for the first counsel.

18 Refreshers cf SCR Pt 52, r 25.

(1)  Where counsel is briefed to appear on the trial of any proceedings, and the trial occupies more than five hours, the taxing officer may allow refresher fees, in such amount as he thinks fit but not exceeding two-thirds of the amount allowed in respect of the brief fee to that counsel, for every five hours occupied by the trial after the first five hours and for the remaining duration of the trial.

(2)  The taxing officer may allow refreshers under subrule (1) whether or not witnesses are examined at the trial or during any part of the trial.

19 Absence of counsel SCR Pt 52, r 26.

(1)  Subject to rule 7 (2), where counsel is briefed to appear on a trial or hearing, counsel’s fee on the brief shall not be allowed unless:

(a)  he is present at the trial or hearing for a substantial part of the relevant period,

(b)  he gives substantial assistance during the relevant period in the conduct of the proceedings, or

(c)  the Court otherwise orders.

(2)  In subrule (1) relevant period means the period of the trial or hearing or, if the trial or hearing lasts more than five hours, the first five hours.

(3)  Where counsel is briefed to appear on the trial of any proceedings, a refresher fee to him shall not be allowed for any period unless:

(a)  he is present at the trial for a substantial part of that period,

(b)  he gives substantial assistance during that period in the conduct of the proceedings, or

(c)  the Court otherwise orders.

rule 39.19: Am 21.6.1991.

20 Five hour periods SCR Pt 52, r 27.

In reckoning the five hour periods mentioned in rules 18 and 19, the mid-day adjournment and any other adjournment shall not be included unless the Court or the taxing officer otherwise orders.

21 Counsel before registrar etc cf SCR Pt 52, r 28.

(1)  No fee paid to counsel for attending on the call-over of any action under Part 24 shall be allowed unless the tribunal before whom the call-over took place, or the taxing officer, otherwise orders.

(2)  No fee paid to counsel for attending on a taxation of costs shall be allowed unless the Court otherwise orders.

22 Witnesses

(1)  Subject to this rule, there may be allowed on a taxation amounts paid to witnesses for their attendance at court or other assistance in the trial or hearing of the proceedings.

DCR r 483.

(2)  Where an amount appropriate to a witness is prescribed in the Schedule, there shall not be allowed in respect of the witness any amount greater than that appropriate amount.

(3)  Where one attendance of a witness relates to several actions, there shall be allowed on a taxation in any of those actions a proportionate part, according to the number of those actions, of the amount otherwise allowable in respect of the witness under subrules (1) and (2).

DCR r 484.

(4)  The amount allowable under subrules (1) and (2) in respect of a witness:

(a)  who gave evidence shall be allowed on taxation unless the Court otherwise orders, or

(b)  who did not give evidence may be allowed on taxation if the taxing officer thinks fit,

whether or not the witness was subpoenaed.

cf DCR r 485.

(5)  Where a witness about to leave the vicinity of the court necessarily remains in that vicinity for the purpose of giving evidence in any proceedings, there may be allowed on taxation such amount in respect of compensation paid to the witness for the delay in his departure as the Court may order, or, in the absence of any order by the Court, as the taxing officer may think fit.

cf DCR r 486.

(6)  The Court may order that a qualifying fee be allowed in respect of anything done by an expert witness in qualifying to give evidence, or may order that any such qualifying fee be disallowed, and where in respect of a witness:

(a)  the Court orders that a qualifying fee be allowed, or

(b)  the Court makes no order regarding the allowance of a qualifying fee and the taxing officer thinks fit to allow a qualifying fee,

there shall be allowed on taxation such amount paid to the witness for so qualifying as the taxing officer thinks fit.

cf DCR r 487.

(6A)  The court may order that the expenses paid to a witness for attendance in conference with a solicitor or counsel be allowed on taxation at such amount as the taxing officer thinks fit.

(7)  The Court may order that the expenses of preparing and proving plans, drawings, models, photographs or the like for the purposes of the proceedings be allowed or disallowed, and where in respect of any such expenses:

(a)  the Court orders that the expenses be allowed, or

(b)  the Court makes no order, and the taxing officer thinks fit to allow the expenses,

there shall be allowed on taxation such amount paid in respect of the expenses as the taxing officer thinks fit.

cf DCR r 488.

(8)  Where a witness or person served with a subpoena necessarily, through himself or his employee, spends substantial time or incurs expense in locating, collating or copying documents or other records so as to enable him to give evidence or produce documents or things for the purpose of any proceedings, there may be allowed on taxation such amount in respect of the time or expense of the witness or person as the Court may order, or, in the absence of any order by the Court, as the taxing officer may think fit.

rule 39.22: Am 7.1.1983; 28.4.1989.

22A Limitation on costs of expert evidence

(1)  This rule applies only to an action in which damages are claimed in respect of the death of a person or in respect of personal injuries.

(2)  This rule applies notwithstanding rule 22.

(3)  In an action to which this rule applies, unless the Court otherwise orders, there shall not be allowed on taxation, in respect of more than one expert witness in any medical specialty, any costs incurred in qualifying the expert witness to give evidence, preparing or obtaining a report from the expert witness, or calling the expert witness to give evidence.

(4)  A medical practitioner who treated a person for injuries which led to the bringing of the action is not for the purposes of subrule (3) an expert witness.

rule 39.22A: Ins 26.6.1992.

Division 3 Taxing officers

23 Who is a taxing officer

(1)  Subject to subrule (2), the taxing officer in respect of proceedings shall be the registrar for the proper place in relation to the proceedings.

(2)  On the application of any party or of its own motion the Court may in any proceedings in which:

(a)  costs are to be taxed on the highest scale, or

(b)  the parties consent to the order,

order that the taxing officer in respect of the proceedings shall be the registrar for Sydney.

rule 39.23: Am 14.6.1985.

24 General powers cf SCR Pt 52, r 37.

A taxing officer may, in the discharge of his functions with respect to the taxation of costs or any other functions under this Part:

(a)  if he is satisfied that service of a copy of a bill of costs or notice of an appointment cannot be effected within a reasonable time dispense with that service,

(b)  enlarge or shorten the time for service of a copy of a bill of costs or notice of an appointment,

cf DCR r 455.

(c)  require any party represented jointly with any other party in any proceedings before him to be separately represented,

(d)  proceed to a taxation in the absence of any party who does not appear at the time appointed for the taxation,

(e)  take evidence by the examination of witnesses or otherwise,

(f)  direct the production of any document,

(g)  generally control any proceedings before him,

(h)  strike out or adjourn any proceedings before him, and

(i)  do such other things as the Court may by order direct.

25 Costs of proceedings before taxing officer

(1)  Costs taxed under a judgment or order shall, unless the judgment or order otherwise provides, include the reasonable costs of the taxation.

(2)  Subject to subrule (1) and subject to any order of the Court, a taxing officer may make orders as to the costs of or incidental to any proceedings before him.

(3)  Where a taxing officer makes an order under subrule (2) allowing costs:

(a)  to a party whose bill of costs is before the taxing officer for taxation, he shall direct that the bill be amended to include the costs so allowed, or

(b)  to a party whose bill of costs is not, but against whom a bill of costs is, before the taxing officer for taxation, he shall direct that the amount of the bill so before him be reduced by the amount of the costs so allowed.

cf SCR Pt 52, r 40.

(4)  After service of a bill of costs for taxation, the party entitled to the costs and the party liable to pay them may serve on one another an offer of compromise under Part 19A in respect of the amount of the costs to be taxed, and Part 19A shall, with any necessary modifications, apply:

(a)    (Repealed)

(b)  as if the decision of the taxing officer were the decision on a judgment.

(5)  Without limiting subrule (4), Part 19A rule 3 is for the purposes of subrule (4) modified to the extent necessary to allow an offer of compromise in respect of costs payable to be served no later than 5 days before the day appointed for the taxation of the costs and accepted at any time before the taxation commences.

rule 39.25: Am 28.4.1989; 25.8.1989; 26.4.1991.

Division 4 Taxation

26 Where order subject to appeal etc SCR Pt 52, r 42.

Costs to be taxed under a judgment or order may, unless the Court otherwise orders or unless proceedings in respect of the judgment or order are stayed, be taxed notwithstanding that the judgment or order is liable to be set aside, varied or discharged on appeal or otherwise.

27 Notice of taxation cf DCR rr 455, 456.

(1)  A party whose costs in respect of any proceedings are to be taxed shall file a bill of those costs, and may, where the costs are to be taxed at the proper place in relation to the proceedings, obtain from the taxing officer in duplicate notice of an appointment stating the day and hour at which the taxation is to commence.

(2)  Where a bill of costs is filed at a proclaimed place for taxation before a taxing officer at another proclaimed place, the registrar for the firstmentioned proclaimed place shall as soon as practicable forward the whole record of the proceedings to the taxing officer, who shall as soon as practicable issue notice of an appointment stating the day and hour at which the taxation is to commence, and forward the notice in duplicate to the party who filed the bill.

(3)  A party whose costs are to be taxed shall serve, in accordance with subrule (4):

(a)  notice of the appointment for the taxation obtained under subrule (1) or (2), and

(b)  where a copy of the bill filed under subrule (1) has not previously been served as required by this rule, a copy of the bill, which need not be sealed with the seal of the court,

on any party liable to pay the costs.

(4)  Service for the purposes of subrule (3) shall be effected:

(a)  in accordance with Part 8, not less than fifteen days before the day appointed for taxation, or

(b)  by sending the documents to be served by post addressed to the party to be served at his address last known to the party serving, so as to reach that address in the ordinary course of post not less than fifteen days before the day appointed for the taxation.

(5)  Notwithstanding rule 24 (d), but subject to rule 24 (a) and (b), a taxing officer shall not proceed with the taxation of any costs in the absence of any party liable to pay the costs unless satisfied that this rule has been complied with.

(6)  Not less than five days before the time fixed for taxation whether fixed originally or upon an adjournment, each party to whom the bill is addressed shall give written notification to each of the other parties and to the taxing officer of his intention to attend and dispute the allowance of any item or items of disbursements contained in the bill of costs. Such notification shall specify the particular item or items disputed and state briefly the grounds of the dispute.

(7)  Where a party has failed to comply with subrule (6) the taxing officer may refuse to consider verbal objections to the item or items or may adjourn the taxation and order the party in default to pay such costs of the taxation as he thinks proper.

(8)  Nothing in subrules (6) and (7) shall limit the duties of the taxing officer under this Part nor permit the allowance of a greater amount than is provided for in the Schedule to these rules.

rule 39.27: Am 24.10.1975; 27.8.1976.

28 Bill of costs cf SCR Pt 52, r 49.

(1)  A bill of costs shall contain, in respect of all the costs which the party filing the bill is then entitled to tax in the proceedings:

(a)  a detailed statement of the work done by the solicitor, his servants and agents, and, separately from that statement, a detailed statement of the disbursements made,

(b)  the date on which each item of work was done,

(c)  the number of the item in the Schedule on which it is intended to rely in claiming each item of costs,

DCR r 457 (1).

(d)  the date on which each disbursement was made, and

(e)  the costs claimed for each item of work done or disbursement made.

(2)  Where it is a clerk who does any work included in a bill of costs and that fact is relevant to the amount of costs allowable for the work, a statement of that fact shall be included in the bill.

(3)  Where a liability to make a disbursement has been incurred or a fee to counsel has been incurred and the disbursement or fee would be properly included in a bill of costs if paid:

(a)  the disbursement or fee may be included in the bill notwithstanding that it has not been paid,

(b)  the bill shall state that the disbursement or fee has not been paid, and

(c)  on taxation, the disbursement or fee shall not be included in the costs allowed unless paid before the taxation is completed.

(4)  Where a bill includes charges for work done by a lawyer practising in a place outside New South Wales:

(a)  the charges shall be shown as a disbursement, and

(b)  so far as practicable, each charge shall, if allowed, be allowed in an amount appropriate to the place where the lawyer practises.

(5)  Where an item of work is done once in respect of several actions, the item shall be included in any bill of costs filed in any of the actions, and in each such bill the item, unless it is an attendance in court by a solicitor or counsel, shall, if allowed, be allowed at such proportion of the appropriate amount in the Schedule as the taxing officer thinks fit.

(6)  A taxing officer may, if he thinks fit, proceed with the taxation of a bill of costs notwithstanding that the bill does not comply with this rule.

(7)  The Court or the taxing officer may give leave, on terms, for the amendment of a bill of costs.

29 Proof of payment cf DCR rr 481, 489.

A disbursement, including any fee to counsel and including any disbursement or fee mentioned in rule 28 (3), shall not be included in the costs allowed unless, before the taxation is completed, the taxing officer is satisfied, by production of receipts, machine ledger cards, other mechanically produced material or otherwise as the taxing officer shall direct, that the disbursement has been paid.

rule 39.29: Am 19.12.1980.

30 Attendance of parties SCR Pt 52, r 51.

(1)  The taxing officer may:

(a)  arrange and direct what parties should attend before him on any taxation, and

(b)  disallow the costs of attendance of any person whose attendance he considers unnecessary.

(2)  Notwithstanding subrule (1), any party interested may attend any taxation.

31 Notice of adjournment SCR Pt 52, r 52.

Where the taxing officer adjourns a taxation he may order any party attending before him to give notice of the adjournment to any absent party.

32 Report and reference cf SCR Pt 52, r 54.

(1)  A taxing officer may report specially to the Court the result of any taxation before him, whether as to the whole of the costs to be taxed or as to any item or items, together with such circumstances in reference thereto as the taxing officer may think proper.

cf DCR r 458.

(2)  A taxing officer may, of his own motion, refer any question arising in a taxation for the direction of the Court and the Court may, after hearing any party or parties or without hearing any party as the Court thinks fit, give its direction on the question, which shall be binding on the taxing officer, or decline to give any direction.

33 Default of party entitled SCR Pt 52, r 55.

(1)  Where a party entitled to tax his costs does not, within a reasonable time after service on him of a request in writing by a party liable for the costs, file and serve a bill of the costs and serve notice of an appointment for the taxation of the costs as required under rule 27, the registrar may fix a time within which the party entitled must file and serve the bill and serve the notice.

(2)  Where a party entitled to tax his costs fails to file and serve a bill and serve a notice within a time fixed by the registrar under subrule (1) for that filing and service, the registrar may certify the failure and may disallow the costs of the party entitled or allow them at such amount as he thinks fit.

(3)  Where a party entitled to tax his costs defaults by failing to proceed with the taxation, the taxing officer may, for the purpose of preventing any other party being adversely affected by the default, certify the default and may:

(a)  disallow the costs of the defaulting party or allow them at such amount as he thinks fit, and

(b)  make such order under rule 25 (2) as he thinks fit as to the costs of any other party.

34 Cross costs cf SCR Pt 52, r 58.

Where under a judgment or order a party entitled to be paid costs by another party is also liable to pay costs to that other party, each of those parties may tax his costs, whether or not the other of those parties has taxed his costs, and:

(a)  where the costs of both parties have been taxed or otherwise determined, the judgment or order may, as regards costs between those parties, be enforced only for the balance obtained by setting off the respective amounts of costs so taxed or determined, or

(b)  where the costs of only one of those parties have been taxed or otherwise determined, the judgment or order may be enforced for the amount of those costs.

35 Certificate cf SCR Pt 52, r 59.

(1)  A taxing officer may make separate and interim certificates.

(2)  A taxing officer shall, after the conclusion of the taxation of a bill of costs, make a final certificate of his disallowance of the costs in the bill or of the amount at which he allows the costs, and the amount so certified shall be the amount of the taxed costs for the purposes of enforcement of the judgment or order for costs under which the bill was taxed.

(3)  Where a taxing officer decides to allow or disallow, wholly or in part, any item in a bill of costs or to allow some amount in respect of any item, he shall not, except with the consent of the parties interested, or unless in the case of a taxation in the absence of any party he thinks fit, make a certificate dealing finally with that item until the expiry of fourteen days after the date of the decision.

(4)  A certificate made by a taxing officer in any proceedings shall, unless made on a filed bill of costs, be filed in the proceedings.

(5)  A taxing officer may at the request of an interested party make a separate or interim certificate in respect of any item in a bill of costs notwithstanding an objection under rule 36 to his decision on any other item in the bill, or any reconsideration or review consequent on any such objection.

(6)  A taxing officer shall not make a final certificate in respect of any item in respect of which a reconsideration or review is pending, and where a certificate has been made in respect of a taxation and notice of motion for a review of the taxation is filed and served, the certificate shall become an interim certificate only.

36 Objection cf SCR Pt 52, r 60.

(1)  Where a taxing officer decides to allow or disallow, wholly or in part, any item in a bill, or to allow some amount in respect of any item, a party to the taxation proceedings who objects to the decision may apply to the taxing officer to reconsider his decision.

(2)  An application under subrule (1) shall be made by motion to the taxing officer on notice, returnable at such time as the taxing officer shall direct.

(3)  Notice of the motion shall be filed within fourteen days after the date of the decision.

(4)  The applicant shall file with or subscribe to the notice a statement of his objections.

(5)  A statement of objections shall specify by a list the items as to which the applicant objects to the decision of the taxing officer and shall state briefly, but specifically, the nature and grounds of each objection.

(6)  An applicant under subrule (1) shall, on the date of filing the notice of motion and statement of objection, serve the notice and statement on each party interested.

37 Reconsideration SCR Pt 52, r 61.

(1)  Upon motion made under rule 36, the taxing officer:

(a)  shall reconsider the decision to which objection is made and shall make his certificate in accordance with his decision on reconsideration, and

(b)  shall, upon request by any party interested, state, in his certificate or some other document, and by reference to the objections to his previous decision, his reasons for his decision on reconsideration.

(2)  On the reconsideration, a party shall not, unless the taxing officer otherwise directs, raise any ground of objection not stated in a statement of objection.

(3)  A request under subrule (1) (b) shall be made before, or within fourteen days after, the date of the decision on reconsideration to which the request relates.

38 Review SCR Pt 52, r 62.

(1)  Where a taxing officer makes a certificate in accordance with his decision on reconsideration under rule 37 and pursuant to that rule a party requests the taxing officer to state his reasons for the decision, the Court shall, on motion by any party interested, review the decision of the taxing officer on reconsideration.

(2)  Where, during the time within which a request may be made under rule 37, it becomes impracticable to make the request by reason of the death or incapacity of, or other matter personal to, the taxing officer, subrule (1) shall apply notwithstanding that a request under rule 37 has not been made.

(3)  Notice of the motion shall be filed within twenty-eight days after the certificate is given, but the Court, or the taxing officer when giving his certificate, may extend the time.

(4)  On the review, unless the Court by order otherwise directs:

(a)  further evidence shall not be received, and

(b)  a party shall not raise any ground of objection not either stated in a statement of objection or raised before the taxing officer.

(5)  Subject to subrule (4), on the review the Court may:

(a)  exercise all the powers and discretions of the taxing officer in relation to the subject matter of the review,

(b)  make orders for the alteration of the certificate,

(c)  make orders for the remission of any item to the same or any other taxing officer for taxation in accordance with the direction of the Court, and

(d)  make such other orders as the nature of the case requires.

39 Costs after commencement of Legal Profession Reform Act 1993

(1)  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)  issuing a writ against the person,

(h)  serving process, and

(i)  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)  Subrule (1) applies subject to any regulation made under section 196 of the Legal Profession Act 1987.

(3)  An order as to costs made in proceedings after 30 June 1994 shall, unless the Court otherwise orders, be taken to confirm expressly all earlier orders as to costs made in the proceedings.

(4)  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.

rule 39.39: Ins 1.7.1994.

Part 39A Costs after 30 June 1994

pt 39A: Ins 17.3.1995.

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 the 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.

rules 39A.1–39A.7: Ins 17.3.1995.

2 Time for dealing with costs

The 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.

rules 39A.1–39A.7: Ins 17.3.1995.

3 Assessed costs and other provisions

(1)  Subject to this Part, where, by or under the rules or any order of the Court, costs are to be paid to any person, that person shall be entitled to assessed costs.

(2)  Where the 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 instead of the assessed costs.

rules 39A.1–39A.7: Ins 17.3.1995.

4 Disobedience to rule, judgment or order

Where any person fails to comply with any provision of the Act or the rules or any judgment or order of the Court, the Court may order the person to pay the costs of any other person occasioned by the failure.

rules 39A.1–39A.7: Ins 17.3.1995.

5 Discovery before action

The Court may in any action require any person to pay the costs of a party to the action of proceedings under Part 4 in respect of that action including payments of conduct money and payments on account of expenses and loss under that Part.

rules 39A.1–39A.7: Ins 17.3.1995.

6 Agreement as to costs

(1)  An agreement as to the amount of costs payable by a party shall be evidenced to the registrar for the purposes of section 148C (c) of the Act by the filing of an order for that amount of costs on which is endorsed the consent of the party signed by the party or his barrister or solicitor.

(2)  Where a consent mentioned in subrule (1) is signed by a person other than a barrister or solicitor, the signature of the person shall be witnessed by any registrar, a barrister, a solicitor, or a justice of the peace.

(3)  An order mentioned in subrule (1) shall be for signature by the registrar.

rules 39A.1–39A.7: Ins 17.3.1995.

7 Limitation on costs of expert evidence

(1)  This rule applies only to an action in which damages are claimed in respect of the death of a person or in respect of personal injuries.

(2)  In an action to which this rule applies, unless the Court otherwise orders, the Court shall be taken to have directed that there shall not be allowed, in respect of more than one expert witness in any medical specialty, any costs incurred in qualifying the expert witness to give evidence, preparing or obtaining a report from the expert witness, or calling the expert witness to give evidence.

(3)  A medical practitioner who treated a person for injuries which led to the bringing of the action is not for the purposes of subrule (2) an expert witness.

rules 39A.1–39A.7: Ins 17.3.1995.

7A Order for payment

Subject to this Part, a party to proceedings in the Court shall not be entitled to recover any costs of or incidental to the proceedings from any other party to the proceedings except under an order of the Court.

rule 39A.7A: Ins 18.10.1996.

8 Order for costs—when payable

(1)  Where, before the conclusion of any proceedings other than proceedings in the Commercial List or the Construction List, the Court makes an order for the payment of costs or a motion is refused with costs, the costs shall not, unless the Court otherwise orders, be payable until after the conclusion of the proceedings.

(2)  Where, in any proceedings, it appears to the registrar, on application, that there is no likelihood of any further order being made in the proceedings, the registrar may order that any costs ordered to be paid shall be payable forthwith.

rule 39A.8: Ins 17.3.1995. Am 21.6.1996.

9 Following the event

If the Court makes an 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.

rules 39A.9–39A.11: Ins 17.3.1995.

10 Party and party basis

Costs payable by or under the rules or any order of the Court shall be payable on a party and party basis unless the rules or an order provide that they are payable on an indemnity basis.

rules 39A.9–39A.11: Ins 17.3.1995.

11 Fixed amounts of costs

(1)  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)  issuing a writ against the person,

(h)  serving process, and

(i)  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)  Subrule (1) applies subject to any regulation made under section 196 of the Legal Profession Act 1987.

rules 39A.9–39A.11: Ins 17.3.1995.

12 Limitations on costs

(1)  If in any action which could have been brought in a Local Court but which is brought in the Court:

(a)  the plaintiff recovers a total amount which does not exceed the prescribed amount by payment by or on behalf of the defendant without judgment, or

(b)  judgment is given or entered up in favour of the plaintiff for an amount which does not exceed the prescribed amount,

the plaintiff shall not be entitled to recover any costs in the action unless the Court certifies that it appears to it that there was a sufficient reason for bringing or trying the action in the Court.

(2)  Subrule (1) does not apply in respect of an action in which judgment is given or entered up for an amount which does not exceed the prescribed amount but which would have exceeded the prescribed amount but for:

(a)  any verdict against the plaintiff on any cross-claim pleaded by the defendant, or

(b)  any reduction of the damages due to the plaintiff under Part 3 of the Law Reform (Miscellaneous Provisions) Act 1965,

or but for both such a verdict and such a reduction.

(3)  In this rule, prescribed amount means:

(a)  in relation to an action commenced before 4 April 1977—$100,

(b)  in relation to an action commenced on or after 4 April 1977 but before 1 April 1983—$750,

(c)  in relation to an action commenced on or after 1 April 1983 but before 1 February 1988—$2,000,

(d)  in relation to an action commenced on or after 1 February 1988 but before 1 November 1991:

(i)  if the action is of the kind mentioned in Part 5 rule 6 (2) (b) or (c)—$15,000,

(ii)  if the action is not of the kind mentioned in Part 5 rule 6 (2) (b) or (c) but is, or could under the rules have been, commenced by the lodging of a statement of liquidated claim—$10,000, or

(iii)  in any other case—$5,000, or

(e)  in relation to an action commenced on or after 1 November 1991:

(i)  if the action is, or could under the rules have been, commenced by the lodging of a statement of liquidated claim—$20,000, or

(ii)  in any other case—$10,000.

(4)  This rule applies to any case in which a plaintiff would, but for the operation of this rule, be entitled to recover any costs, and so applies notwithstanding anything else in these rules.

rule 39A.12: Ins 17.3.1995. Am 26.9.1997.

13 Indemnity basis

On an assessment on the indemnity basis, all costs shall be allowed except is so far as they are of an unreasonable amount or have been unreasonably incurred, and any doubts which the assessor may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the receiving party.

rule 39A.13: Ins 17.3.1995.

14 Liability of solicitor

(1)  Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a solicitor is responsible (whether personally or through a servant or agent), the Court may, after giving the solicitor a reasonable opportunity to be heard:

(a)  direct the solicitor to repay to his client costs which the client has been ordered to pay to any other party, and

(b)  direct the solicitor to indemnify any party other than his client against costs payable by the party indemnified.

(2)  Without limiting the generality of subrule (1), a solicitor is responsible for default for the purposes of that subrule where any proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the solicitor:

(a)  to attend in person or by a proper representative,

(b)  to file any document which ought to have been filed,

(c)  to deliver any document which ought to have been delivered for the use of the Court,

(d)  to be prepared with any proper evidence or account,

(d1)  to comply with any provision of the rules or any judgment or order or direction of the Court, or

(e)  otherwise to proceed.

(3)  The Court may, before making an order under subrule (1), refer the matter to the registrar for enquiry and report.

(4)  The Court may order that notice of any proceedings or order against a solicitor under this rule shall be given to the solicitor’s client in such manner as may be specified in the order under this subrule.

(4A)  The Court may give ancillary directions in order to give full effect to a costs order, including directing a solicitor to provide to the Court or a party to the proceedings a bill of costs in assessable form.

(5)  This rule is in addition to, and is intended to operate independently of, the provisions of section 148E of the Act and does not apply in circumstances where section 148E of the Act applies.

rule 39A.14: Ins 17.3.1995. Am 21.9.2001.

14A Liability of barrister

(1)  Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a barrister is responsible (whether personally or through an employee or agent), the Court may, after giving the barrister a reasonable opportunity to be heard:

(a)  disallow the costs as between the barrister and his or her instructing solicitor or as between the barrister and the client, including disallowing the costs for any step in the proceedings, and

(b)  direct the barrister to repay to the client costs which the client has been ordered to pay to any other party, and

(c)  direct the barrister to indemnify any party other than the client against costs payable by the party indemnified.

(2)  Without limiting the generality of subrule (1), a barrister is responsible for default for the purposes of that subrule where any proceedings cannot conveniently proceed, or can proceed only with the incurring of extra costs or with the inconvenience of the Court or another party to the proceedings, because of the failure of the barrister:

(a)  to attend in person or by a proper representative, or

(b)  to file any document which ought to have been filed, or

(c)  to deliver any document which ought to have been delivered for the use of the Court, or

(d)  to be prepared with any proper evidence or account, or

(e)  to comply with any provision of the rules or any judgment or order or direction of the Court, or

(f)  otherwise to proceed.

(3)  The Court may, before making an order under subrule (1), refer the matter to the registrar for enquiry and report.

(4)  The Court may order that notice of any proceedings or order against a barrister under this rule must be given to the barrister’s instructing solicitor or client in such manner as may be specified in the order.

(5)  The Court may give ancillary directions in order to give full effect to a costs order, including directing a barrister to provide to the Court or a party to the proceedings a bill of costs in assessable form.

(6)  This rule is in addition to, and is intended to operate independently of, the provisions of section 148E of the Act and does not apply in circumstances where section 148E of the Act applies.

rule 39A.14A: Ins 21.9.2001.

15 Opportunity for solicitor to be heard

The Court shall, before making an order under section 148E of the Act in respect of a solicitor, give the solicitor a reasonable opportunity to be heard.

rules 39A.15–39A.17: Ins 17.3.1995.

16 Costs order to confirm earlier costs orders

An order as to costs made in proceedings after 30 June 1994 shall, unless the Court otherwise orders, be taken to expressly confirm all earlier orders as to costs made in the proceedings.

rules 39A.15–39A.17: Ins 17.3.1995.

17 Order confirming rule as to payment of costs

Where a party to proceedings in the Court 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.

rules 39A.15–39A.17: Ins 17.3.1995.

18 Appeals under the Victims Compensation Act 1987

(1)  In this rule, appeal means an appeal to which Division 7 of Part 6 (Appeals under the Victims Compensation Act 1987) applies.

(2)  In exercising its discretion as to the costs of an appeal the Court may take into account the conduct by the parties of the proceedings before the Tribunal and, where fresh evidence is adduced on the appeal, whether the evidence could reasonably have been adduced in those proceedings.

(3)  Where the Court orders the respondent to pay the appellant’s costs of an appeal, those costs shall be $2,600.00 (including any amount claimed for fees paid to counsel) in addition to any necessary disbursements other than counsel’s fees, unless the Court in the special circumstances of the case otherwise orders.

(4)  Unless the Court otherwise orders, necessary disbursements for the purposes of subrule (3) shall, in default of agreement between the parties to the appeal, be assessed.

(5)  Where the Court orders under subrule (3) that the appellant’s costs of an appeal shall not be the amount prescribed by that subrule, the orders that the Court may make include orders that the costs shall be another amount (greater or less than the amount so prescribed) and orders that the costs shall be assessed, or otherwise ascertained, in accordance with any direction of the Court.

(6)  Where the Court grants an application for further time to institute an appeal it shall not order the respondent to pay the appellant’s costs of the application unless it is of opinion that the respondent has unreasonably failed to consent to the extension sought.

(7)  Where the appellant withdraws an appeal the Court may, on the application of the respondent and unless the Court is satisfied that the decision to institute the appeal was reasonable, order the appellant to pay the respondent’s costs of the appeal incurred before the withdrawal.

rules 39A.18–39A.24: Ins 18.10.1996.

19 Judgment by confession or agreement

Where judgment in favour of the plaintiff is entered up under Part 14 rule 2 or 3:

(a)  before the expiration of a period of 28 days after service of the statement of claim in the action, there shall be added to the judgment debt the costs of issuing and serving the statement of claim, or

(b)  after the expiration of that period, there shall be added to the judgment debt the costs of issuing and serving the statement of claim, or the amount of costs incurred by the plaintiff before the judgment and allowed on an assessment, as the plaintiff shall require.

rules 39A.18–39A.24: Ins 18.10.1996.

20 Non-admission of fact

(1)  Where a party to any proceedings (in this rule called the disputing party) serves a notice disputing a fact under Part 15 rule 2 (2) and afterwards that fact 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

(d)  preparation for the purpose of proving the fact,

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 24 and 25.

rules 39A.18–39A.24: Ins 18.10.1996.

21 Non-admission of document

(1)  Where a party to any proceedings (in this rule called the disputing party) serves a notice disputing the authenticity of a document under Part 15 rule 4 (2), and afterwards 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:

(a)  proof of the authenticity of the document, or

(b)  preparation for the purpose of proving 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 24 and 25.

rules 39A.18–39A.24: Ins 18.10.1996.

22 Interlocutory application

Subject to this Part the costs of any application or other step in any proceedings shall, unless the Court otherwise orders, be paid and otherwise dealt with in accordance with the provisions of this Part or the provisions of any order relating to the general costs of the proceedings.

rules 39A.18–39A.24: Ins 18.10.1996.

23 Amendment of pleading without leave

Where a party amends a pleading without leave, unless the Court otherwise orders, he or she shall, after the conclusion of the proceedings, pay the costs of and occasioned by the amendment.

rules 39A.18–39A.24: Ins 18.10.1996.

24 Discontinuance

Where, pursuant to Part 18 rule 1, 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 18 rule 4 (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.

rules 39A.18–39A.24: Ins 18.10.1996.

25 Offer of compromise

(1A)  The objects of this rule are:

(a)  to introduce an added element of risk in order to promote early settlement of actions without hearing or arbitration,

(b)  to compel the parties to an action, under threat of possible penalties in costs, to arrive at an early assessment of the amount of damages, if any, recoverable by the plaintiff,

(c)  to encourage the making and acceptance of reasonable offers of compromise by:

(i)  providing for penalties in costs to be imposed on a party who rejects an offer of compromise and does not at the hearing or arbitration of the action achieve a position better than he would have held if he had accepted the offer of compromise, and

(ii)  providing corresponding costs relief to the party making the offer,

(d)  to impart as much certainty to the imposition of costs penalties referred to in object (c) as may be imparted without substantial injustice, and

(e)  to provide a discretion in the Court to relieve a party from the imposition of a costs penalty, to be exercised only in an exceptional case and for the avoidance of substantial injustice.

(1B)  A decision of the Court to make or refuse to make an order for costs under this rule must be made in pursuance of the objects of this rule.

(1)  Subject to subrule (2), upon the acceptance of an offer of compromise in accordance with Part 19A rule 3 (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 19A or this rule.

(3)  Subrules (4)–(6) apply to an offer which has not been accepted at the time prescribed by Part 19A rule 3 (8).

(4)  Where and offer is made by a plaintiff 28 days or more before the hearing of the action commences, and the offer is 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 in an exceptional case and for the avoidance of substantial injustice otherwise orders, the plaintiff shall be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim assessed on a solicitor and client basis.

(4A)  Where an offer is made by a plaintiff less than 28 days before the hearing of the action commences, and the offer is 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 in an exceptional case and for the avoidance of substantial injustice 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 a solicitor and client basis, in addition to the plaintiff’s costs incurred before that time, assessed on a party and party basis.

(5)  For the purpose of subrules (4) and (4A), 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 a solicitor and client basis, in addition to the plaintiff’s costs incurred before that time, assessed on a party and party basis.

(5A)  An entitlement to costs on a solicitor and client basis under subrule (4), (4A) or (5) does not include an entitlement to the amount of any surcharge on costs provided by a costs agreement, conditional or otherwise.

(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 in an exceptional case and for the avoidance of substantial injustice 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), (4A) 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), subrule (4A) 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), (4A) 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), subrule (4A) 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.

rule 39A.25: Ins 18.10.1996. Am 26.9.1997.

26 Offer to contribute

The Court may take an offer to contribute (or offer of contribution) 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.

rule 39A.26: Ins 18.10.1996. Am 20.4.2001.

27 Examination summons

Unless the Court or registrar otherwise orders, the costs of an examination summons in respect of which the judgment creditor or his solicitor attends for the purpose of examining a person, determined in accordance with the prescribed scale, shall be added to and form part of the judgment debt.

rules 39A.27–39A.31: Ins 18.10.1996.

28 Attachment of debts

The Court may make such order as it thinks fit for the payment by any party to garnishee proceedings of the costs of any other party, and a party shall not be liable to pay any such costs except as required by such an order.

rules 39A.27–39A.31: Ins 18.10.1996.

29 Writ of execution

(1)  The costs of a writ of execution, whether executed or not, and whether productive or not, shall be taxed by the registrar for 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.

rules 39A.27–39A.31: Ins 18.10.1996.

30 Writ against the person

(1)  The judgment creditor’s costs of an order in an action authorising the issue of a writ against the person, and of the writ whether executed or not and whether productive or not, shall, unless the Court or the registrar for the proper place in relation to the action otherwise directs, be allowed according to the prescribed scale and be added to and form part of the judgment debt arising from the action.

(2)  Where, upon the return of a summons issued under Part 37 rule 1 (1), the judgment debtor attends to answer the summons, but the judgment creditor fails to appear, the Court may if it thinks fit order the judgment creditor to pay the costs of the judgment debtor occasioned by the summons.

rules 39A.27–39A.31: Ins 18.10.1996.

31 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 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.

rules 39A.27–39A.31: Ins 18.10.1996.

32 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 and occasioned by the application, or any order made on or in consequence of the application.

rule 39A.32: Ins 6.12.1996.

Part 40 Security

1 Security for costs

(1)  In this rule:

(a)  references to a plaintiff extend to any person who makes a claim for relief in any proceedings, and

(b)  references to a defendant extend to any person against whom a claim for relief is made in any proceedings.

SCR Pt 53, r 1.

(2)  Where, in any proceedings, 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 that 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 proceedings with a view to avoiding the consequences of the proceedings, or

(e)  that there is reason to believe that a plaintiff being a body corporate 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 proceedings and that the proceedings be stayed until the security is given.

cf SCR Pt 53, r 2.

(3)  The Court shall not order a plaintiff to give security by reason only of subrule (1) (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.

cf SCR Pt 53, r 3.

(5)  Where a plaintiff fails to comply with an order under this rule, the Court may (on the application of a party or of its own motion), on terms, order that any claim made by the plaintiff for relief in the proceedings be struck out or that the proceedings be dismissed.

SCR Pt 53, r 4.

rule 40.1: Am 21.9.1979; 12.3.1999; 7.7.2000; 28.3.2002.

2 Deposit of money DCR r 349.

Where security is given by the deposit of money with the registrar, the party giving the security shall forthwith give notice to the opposite party, by post or otherwise, of the making of the deposit.

3 Bond

(1)  Except to the extent that the Court or registrar otherwise orders, security made other than by deposit of money shall be made by two sureties, each in the full amount, neither of whom shall be the party required to give the security, and each of whom shall enter into a bond to which the provisions of this rule shall apply.

(2)  A party proposing to give security by way of bond shall file and serve notice of the proposed sureties and, unless the opposite party agrees to dispense with an affidavit, an affidavit by each of them as to his sufficiency.

cf DCR r 347.

(3)  As soon as practicable after the filing of a notice mentioned in subrule (2) the registrar shall give notice by post, telephone or otherwise to the parties of the day and hour on which he proposes to hold an inquiry into the sufficiency of the sureties.

cf DCR r 346.

(4)  On an inquiry mentioned in subrule (3) a party objecting to the proposed sureties shall make all such objections as he may have, and the registrar shall hold the proposed sureties sufficient or otherwise.

cf DCR r 346.

(5)  Where proposed sureties are held sufficient by the registrar they shall each, within forty-eight hours, enter into a bond to the party requiring the security, which bond shall be for the full amount of the security required.

(6)  A bond mentioned in subrule (5) shall be executed in the presence of a Judge or registrar or of a commissioner for affidavits, and shall be deposited with the registrar.

cf DCR rr 348, 350.

(7)  A registrar, Sheriff’s Officer, bailiff or other officer of the Court shall not be a surety for the purposes of this rule.

DCR r 351.

rule 40.3: Am 19.8.1988.

Part 41 Contempt and enforcement of fines

1 Remission of fine cf DCR rr 402, 403.

(1)  The Court may, if it thinks fit, when imposing a fine on a person under section 199 of the Act, direct that payment of the fine be not enforced for fourteen days and that the registrar give to the person notice of the fine.

(2)  The notice mentioned in subrule (1) shall contain advice that the person on whom the fine is imposed may, within fourteen days after the imposition of the fine, by affidavit forwarded to the registrar, or by attending (by appointment made with the registrar) in person before the Court, show cause why the fine should not be enforced.

(3)  Where the registrar receives an affidavit forwarded under subrule (2), he shall forthwith submit the affidavit to the Court.

(4)  Where a person shows cause as mentioned in subrule (2) the Court may if it thinks fit remit the fine imposed on the person.

rule 41.1: Am 14.6.1985.

2 Where fine not paid cf DCR r 405.

(1)  Where a fine imposed by the Court is not paid in accordance with the order imposing the fine, and is not remitted, the registrar shall forthwith report the matter to the Court, and shall issue such process as the Court may direct for the enforcement of the fine.

(2)  Where the Court directs that a writ of execution be issued for the enforcement of a fine, the time when the direction is received by the registrar shall be deemed, for the purposes of section 108 (1) of the Act, to be the time when an application is made to the registrar for the issue of the writ of execution.

3 (Repealed)

rule 41.3: Am 4.7.1973. Rep 13.6.1980.

4 Warrants SCR Pt 55, r 12; cf DCR r 409.

A warrant for the arrest of a witness shall be addressed to the Sheriff or bailiff, and shall be issued under the hand of the Judge who directs the arrest or detention.

rule 41.4: Am 13.6.1980; 19.8.1988.

5, 6 (Repealed)

rule 41.5: Rep 13.6.1980.

rule 41.6: Rep 14.6.1985.

Part 42 Interpleader

1 Claim on bailiff cf DCR r 337.

(1)  Where a Sheriff’s Officer or bailiff receives a claim to or in respect of any personal property taken or intended to be taken in execution by him under a writ of execution, he shall forthwith send by post or otherwise notice of the claim to the execution creditor, and a notice for the purposes of section 116 (1) (e) of the Act to the claimant.

(2)  If the execution 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 upon receipt of any such admission or request withdraw from possession, and the execution 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.

(3)  An application by a bailiff for relief by way of interpleader shall be made to the registrar for the proclaimed place for which he is bailiff.

(4)  An application by a Sheriff’s Officer for relief by way of interpleader in respect of a writ of execution shall be made to the registrar for the proclaimed place at which the Sheriff’s Officer is Sheriff’s Officer.

rule 42.1: Am 14.6.1985; 19.8.1988.

2 Claim on defendant cf DCR r 339.

(1)  An application to the Court by a person, not being a Sheriff’s Officer or bailiff or a defendant in an action, for relief by way of interpleader in respect of a debt or personal property shall be made to the registrar for the proclaimed place nearest to the place where the debt arose or the property is situated, and this Part applies in respect of any such application as though a reference in this Part to a defendant were a reference to that person, a reference to a plaintiff were a reference to such of the claimants to the debt or property as complies with any summons issued under rule 3 (a), and a reference to a claimant were a reference to the other or others of those claimants.

(1A)  A defendant in an action who has notice of a claim to the subject matter of the action such as is referred to in section 115 (1) (a) of the Act may apply for relief by way of interpleader by filing an affidavit showing:

(a)  that the applicant claims no interest in the subject-matter in dispute other than for charges or costs,

(b)  that the applicant does not collude with the claimant or any of the claimants, and

(c)  that the applicant is willing to pay or transfer the subject-matter in dispute into court or, if the registrar so requires, to give security to the value of the subject-matter to the satisfaction of the registrar.

(2)  An affidavit mentioned in subrule (1A) shall contain, so far as they are known to the defendant, the full name and address of the claimant.

(3)  An affidavit mentioned in subrule (1A) shall when lodged for filing be accompanied by as many copies as there are parties to be served, and the registrar shall as soon as practicable send by post or otherwise a copy of the affidavit to the plaintiff and a copy to each claimant.

rules 42.2, 42.3: Am 18.11.1977; 14.6.1985; 19.8.1988.

3 Where application made cf DCR r 340.

Where application is made to a registrar for relief by way of interpleader:

(a)  the registrar shall as soon as practicable issue a summons for service by the applicant on the claimant, calling upon the claimant to file within fourteen days after service of the summons, a statement of his claim to the subject of the action or execution,

(ai)  where the registrar issues a summons under paragraph (a), and, in the case of an application for relief by a defendant, the applicant pays or transfers the subject-matter in dispute into court or gives security for that subject-matter to the satisfaction of the registrar, all proceedings in respect of the debt or other property in dispute are stayed, whether those proceedings are in the Court, the Supreme Court or a Local Court,

(b)  a statement of claim mentioned in paragraph (a) shall contain the full name, address and description of the claimant and as full particulars of his claim as would be required in a statement of claim for the commencement of an action,

(c)  a statement of claim filed by a claimant shall be accompanied by as many copies as there are parties to be served, and the registrar shall as soon as practicable give or send by post one of those copies to the plaintiff, execution creditor or other claimant or claimants, as the case may require, and, where the application for relief is made by the person referred to in section 115 (1) of the Act, one other of those copies to that person,

(d)  where a claimant complies with a summons issued by a registrar under paragraph (a), the registrar shall record the commencement of an interpleader action in which, except to the extent that the Court otherwise orders:

(i)  the claimant shall be deemed to be the plaintiff,

(ii)  the plaintiff, or execution creditor, in respect of the original action shall be deemed to be the defendant,

(iii)  the statement of claim shall be deemed to be served when it is given to, or would in the ordinary course of post be received by, the plaintiff or execution creditor, and

(iv)  the provisions of the Act and rules with respect to an action commenced by the lodging of an ordinary statement of claim shall apply, so far as they can apply, to the action,

(di)  the registrar shall send notice of any interpleader action commenced as referred to in paragraph (d) to each claimant who has complied with a summons issued in respect of him under paragraph (a), to the defendant or Sheriff’s Officer or bailiff who applied for relief, and, as the case may require, to the plaintiff or judgment creditor in the action in respect of which the application for relief was made,

(e)  where the application for relief is made by the defendant, and the claimant complies with the summons issued under paragraph (a):

(i)  the plaintiff shall, within twenty-four hours after receipt by him of the copy of the statement of claim given or sent to him under paragraph (c), give or send by post to the claimant a copy of the statement of claim lodged for the commencement of the original action, and

(ii)  if a date for the trial of the original action has been set, and proceedings in that action have not been stayed under paragraph (ai), the registrar shall adjourn that trial until the trial of the interpleader action.

rules 42.2, 42.3: Am 18.11.1977; 14.6.1985; 19.8.1988.

4 Interpleader action cf DCR r 342.

(1)  The Court shall adjudicate upon the claims in an interpleader action and:

(a)  shall make such order as to it seems fit between the parties in respect of the claims, the costs of the proceedings and the continuance of the actions in which proceedings have been stayed, and

(b)  where any amount has been paid, or security has been given, to a Sheriff’s Officer or bailiff in respect of property the subject of the claim, or the property has been sold under section 116 (1) (e) (ii) of the Act, or any amount has been paid or property transferred into Court, or security has been given by a defendant, shall make such order as to it seems fit with respect to the payment of the amount or the proceeds of the sale of the property, or the enforcement or discharge of the security, or the disposition of the property in Court.

(2)  An order made under subrule (1) may be enforced in the same manner as a judgment in an action.

rule 42.4: Subst 14.6.1985. Am 19.8.1988.

5 Summons not complied with

Where in respect of an application for relief by way of interpleader the summons issued under rule 3 (a) has not been complied with:

(a)  the stay of proceedings imposed by rule 3 (ai) following the issue of a summons in respect of that application is removed,

(b)  any money paid, or any property transferred, into court as referred to in rule 3 (ai) shall be paid or transferred by the registrar to the plaintiff, and

(c)  the claimant who failed to comply with the summons is forever barred from prosecuting any claim in respect of the subject-matter of the application,

unless the Court otherwise orders upon satisfactory explanation by the claimant for his non-compliance, given on application by him to extend the time for compliance by him made before, or within 14 days after, the expiry of that time, and:

(d)  the Court may make such order as to it seems fit in respect of the payment of any money that was paid into court by the Sheriff’s Officer or bailiff or the discharge or enforcement of any security given to the Sheriff’s Officer or bailiff or registrar in respect of the property the subject of the application.

rule 42.5: Am 18.11.1977. Subst 14.6.1985. Am 19.8.1988.

6 (Repealed)

rule 42.6: Am 17.3.1995. Rep 18.10.1996.

Part 43 Registrars and assistant registrars

1 Filing documents cf DCR r 7.

A registrar shall, subject to Part 30, rule 6 and Part 47, file all documents delivered to him for filing in any proceedings, endorsing each such document with the date on which it is filed and a letter to distinguish it from other documents filed in the proceedings.

rule 43.1: Am 17.3.2000.

2 Books and records

(1)  The registrar for a proclaimed place shall register all records, orders and judgments in, and keep an account of, all proceedings the proper place in relation to which is that proclaimed place, and for these purposes shall keep books in or to the effect of the approved forms, and shall make in the books such entries in respect of those proceedings as shall be required by the forms of the books or directed by the Chief Judge.

cf DCR r 6.

(2)    (Repealed)

(3)  In this rule book includes any system of permanent recording, whether written or otherwise, and whether in bound form or otherwise.

rule 43.2: Am 4.7.1973; 19.8.1983; 20.3.1987; 23.6.1995.

3 Receipt and disbursement of moneys

(1)  The registrar for a proclaimed place shall, in respect of any proceedings the proper place in relation to which is that proclaimed place:

(a)  receive and keep an account of all fees, fines and suitors’ moneys paid into the Court, and give such receipts therefor as shall be required under the Treasury Regulations,

(b)  keep an account of all fees and fines payable to the Court, and

(c)  pay out the money to which suitors are entitled.

cf Act No 23, 1912, s 25 (d); DCR r 17 (1).

(2)  Subject to the Act and rules, moneys in Court shall not be paid out of Court except to the party entitled or, on his written authority or by order of the Court, to his Solicitor.

cf DCR r 17 (2).

(3)  A registrar shall make available for the inspection of an officer appointed by the Auditor-General any book, file or other record kept by the registrar, whether or not it is a book of account, which is required by the officer in the course of his duties.

cf DCR r 20.

rule 43.3: Am 24.10.1975.

4 Receipt on behalf of Sheriff or bailiff

(1)  Where a judgment debtor, or some person on his 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 him 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 he is 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 him and dealt with as though received by him from the Sheriff’s Officer or bailiff in pursuance of the writ of execution.

rule 43.4: Am 19.8.1988.

5 Process issued by assistant registrar cf DCR r 9.

(1)  In this rule, assistant registrar means assistant registrar holding office as such by virtue of his holding office as Clerk of the Local Court at a place which is not a proclaimed place, and the proclaimed place means the proclaimed place for which he is assistant registrar.

(2)  Any originating process issued by an assistant registrar, and any process issued by an assistant registrar in respect of any proceedings the proper place in relation to which is the proclaimed place, and any document filed to obtain the issue of the process, shall be intituled in the proclaimed place and endorsed with the name of the place at which the process is issued.

(3)  Where a document, other than originating process, is filed by an assistant registrar in respect of proceedings the record of which is held at the proclaimed place, the assistant registrar shall as soon as practicable forward the document to the registrar.

(4)  Where originating process for the commencement of any proceedings has been lodged with an assistant registrar and any document is filed by him requiring the proceedings, or any matter ancillary to the proceedings, to be heard before the Court:

(a)  the Court shall be deemed to have made an order under section 40 of the Act changing the venue of the proceedings from the place at which the originating process was lodged to the proclaimed place for which the assistant registrar is assistant registrar, and

(b)  Part 2A rule 4 shall apply to the proceedings as though the place at which the originating process was lodged were the proclaimed place from which the venue of the proceedings was changed, and the assistant registrar were the registrar for that proclaimed place.

(5)    (Repealed)

rule 43.5: Am 8.11.1985 (but see erratum 15.11.1985); 20.3.1987.

6 Proceedings at another proclaimed place

(1)  Where a registrar or assistant registrar issues process in respect of any proceedings the proper place in relation to which is not the proclaimed place for which he is registrar or assistant registrar, the process, and any document filed to obtain the issue of the process, shall be intituled in the proper place in relation to the proceedings and endorsed with the name of the place at which the process is issued.

(2)  A registrar or assistant registrar who files any document mentioned in subrule (1) shall as soon as practicable forward the document to the registrar for the proper place in relation to the proceedings.

(3)  Where the Chief Judge under section 32 (3) of the Act has directed that proceedings the proper place in relation to which is a proclaimed place (in this subrule called the first proclaimed place) shall be heard at another proclaimed place (in this subrule called the second proclaimed place) and any document is filed requiring any such proceedings (other than proceedings before the registrar) to be heard:

(a)  the registrar for the first proclaimed place shall as soon as practicable forward the whole record of the proceedings to the registrar for the second proclaimed place,

(b)  the registrar for the second proclaimed place shall proceed, and the provisions of the rules as to hearing of proceedings shall apply, as if the proceedings were commenced at the second proclaimed place, and

(c)  as soon as practicable after the proceedings are heard at the second proclaimed place, or the Chief Judge appoints a time at which the Court shall sit at the first proclaimed place, the registrar for the second proclaimed place shall forward the whole record of the proceedings to the registrar for the first proclaimed place.

rule 43.6: Am 14.6.1985; 30.8.1985.

7 Service of process cf DCR rr 11, 12.

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

(2)–(4)    (Repealed)

(5)  A person (other than a registrar) requiring any process to be served by an officer of the Court:

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

(b)  shall when requiring service deposit with that registrar unless that registrar shall otherwise direct a sum of money sufficient to meet the probable amount of his liability under the next paragraph,

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

(6)  Where any process referred to in subrule (5) is required to be served by an officer of the Court, the registrar for 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 for a foreign court the Sheriff or the bailiff for the home court shall as soon as practicable forward the process and copies to the bailiff for the foreign court.

rule 43.7: Am 18.8.1978; 20.3.1987; 19.8.1988.

8 Execution cf DCR r 13.

(1)  A writ of execution, a writ against the person, or a warrant shall be executed by the Sheriff or by the bailiff for the nearest proclaimed place to the place of execution, unless the registrar for the home court shall, on the grounds of greater convenience or reduced costs, direct that the writ or warrant be executed by the Sheriff or by another bailiff.

(2)  A person requiring a writ or warrant to be issued shall become liable to the registrar for 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 or warrant, but the liability shall be reduced to the extent of:

(a)  any moneys paid by the person to the registrar for the home court in respect of the liability, and

(b)  any moneys 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 or warrant, the registrar for the home court shall hand the writ or warrant and any notice accompanying it to the Sheriff, or, where there is a bailiff for that court, to that bailiff, and where the writ or warrant is to be executed by the bailiff for a foreign court the Sheriff or the bailiff for the home court shall as soon as practicable forward the writ or warrant and any notice accompanying it to the bailiff for the foreign court.

(4)    (Repealed)

rule 43.8: Am 20.3.1987; 19.8.1988.

9 Chamber business cf DCR r 452.

(1)  An application to a Judge in chambers in respect of any proceedings shall be made by filing with the registrar for the proper place in relation to the proceedings:

(a)  notice of the application, unless such a notice may be dispensed with under the 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 Judge 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 Judge.

10 Supervision of Sheriff’s Officer or bailiff cf DCR r 21.

(1)  A registrar shall immediately report to the Chief Judge any neglect of duty or any other misconduct on the part of a Sheriff’s Officer or bailiff which may become known to the registrar.

(2), (3)    (Repealed)

rule 43.10: Am 4.7.1973; 19.8.1983; 19.8.1988.

10A Powers of registrars generally

(1)  Except where otherwise provided in the rules, the registrar for the proper place in relation to any proceedings may exercise the power of the Court to make any order in the proceedings which the Court may make, being an order consented to:

(a)  by the parties to the application for the order, and

(b)  by any other persons who will be required to comply with the order or to suffer anything to be done under the order.

(2)  Except where a Judge otherwise orders or the rules otherwise provide, the registrar for a proclaimed place specified in subrule (3) may exercise, in or in respect of proceedings in relation to which the proper place is that proclaimed place:

(a)  the powers of the Court under section 63A of the Act,

(b)  the powers conferred on the Court by rules made under section 68 of the Act,

(c)  the powers of the Court to make:

(i)  orders for substituted service of process,

(ii)  orders in respect of the joinder, misjoinder and non-joinder of parties,

(iii)  orders in respect of the amendment of documents,

(iv)  orders that the trial of proceedings be expedited or adjourned,

(v)  orders that proceedings be heard together,

(vi)  orders for extension or abridgment of time,

(vi) (a)    (Repealed)

(vii)  orders staying proceedings, subject to the stay subsisting only pending a hearing by the Court set down for the first available day,

(viii)  orders setting aside a default judgment subject to the filing of grounds of defence, and

(ix)  orders issuing a debt certificate under section 7 (1) of the Contractors Debts Act 1997.

(3)  The proclaimed places specified for the purposes of subrule (2) are Albury, Broken Hill, Campbelltown, Coffs Harbour, Dubbo, Gosford, Goulburn, Lismore, Liverpool, Newcastle, Orange, Parramatta, Penrith, Queanbeyan, Sydney, Tamworth, Taree, Wagga Wagga and Wollongong.

(3A)  The registrar for any proclaimed place may exercise the power conferred on the Court by Section 30 (1) (b) of the Service and Execution of Process Act 1992 (Cth) to shorten the time for service of a subpoena issued at that proclaimed place.

(4)  All of the rules are prescribed rules for the purposes of section 47 (1) of the Act, but a registrar shall exercise any powers under that subsection subject to any provision of or under the Service and Execution of Process Act 1992 of the Commonwealth.

(5)  The registrar has, and may exercise in relation to the District Court in its special civil jurisdiction and to proceedings in that jurisdiction, all of the powers, authorities, duties and functions that the Clerk of the Peace had in relation to Courts of Quarter Sessions when exercising the corresponding jurisdiction and in relation to similar proceedings in those courts before 1 July 1973.

rule 43.10A: Ins 14.6.1985. Am 30.8.1985; 16.5.1986; 23.10.1987; 10.6.1988; 19.8.1988; 28.5.1993; 21.8.1998.

10B Powers of registrar for Sydney

(1)  Except where a Judge otherwise orders or the rules otherwise provide, the registrar for Sydney may exercise, in or in respect of proceedings in relation to which the proper place is any proclaimed place, the powers of the Court mentioned in rule 10A and the powers of the registrar for the proper place to enter up judgment in accordance with Part 14 rule 3 (2).

(2)  The registrar for Sydney shall have, and may exercise concurrently with the registrar for any other proclaimed place, the powers, authorities, duties and functions of that other registrar conferred under Part 12, Part 24 or Part 51A.

(2A)  Except where a Judge otherwise orders or the rules otherwise provide, the registrar for Sydney may exercise the powers of the Court to make an order for costs in respect of any order made or refused by that registrar under these rules and in respect of any call-over or conference presided over, or scheduled to be presided over, by that registrar.

(2B)  Except where a Judge otherwise orders or the rules otherwise provide, the registrar for Sydney may exercise the powers of the Court to make orders:

(a)  changing the venue of proceedings,

(b)  under section 44 (3) of the Act, altering the amount specified in a statement of claim after the monetary limit of the jurisdiction of the Court is increased,

(c)  under section 84A of the Act, granting leave to apply for the issue of process of enforcement of a judgment, and under section 107 (2) of the Act, giving leave to issue a writ of execution,

(d)  under section 102 of the Act, giving or refusing to give judgment against a garnishee,

(e)  under section 18 (5) (c) of the Arbitration (Civil Actions) Act 1983, that an award be reinstated,

(f)  extending the time within which a party may file an application for a rehearing under section 18 (2) of the Arbitration (Civil Actions) Act 1983 after another party has filed and discontinued such an application, and

(g)  granting leave to discontinue proceedings under Part 18 rule 1 (b).

(3)  Any power, authority, duty or function conferred upon the registrar for Sydney by this rule is additional to those otherwise conferred upon him.

rule 43.10B: Ins 14.6.1985. Am 10.6.1988; 4.5.1990; 6.12.1996.

11 Mandatory order

(1)  The Court may by order direct a registrar or any other officer of the Court to do or refrain from doing, in any proceedings, any act relating to the duties of his office.

cf SCR Pt 61, r 2.

(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.

cf DCR r 447.

12 Reference cf SCR Pt 60, r 6.

A registrar may, of his own motion or on application by a party, refer any proceedings before him to the Court.

13 Removal cf SCR Pt 60, r 7.

The Court, before the conclusion of any proceedings before a registrar, may, on application by a party, order that the proceedings be removed into the Court.

14 Disposal cf SCR Pt 60, r 8.

Upon the reference of any proceedings to the Court under rule 12, or the removal of any proceedings into the Court under rule 13, 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.

15 Review SCR Pt 61, r 3.

Where a 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.

16 Registrar not to act as agent cf Act No 23, 1912, s 30 (1).

A registrar, an assistant registrar, and any officer under the control of a registrar or assistant registrar, shall not act as agent for any party in proceedings in the Court.

17 Powers of assistant registrars generally

(1)  An assistant registrar at a place:

(a)  that is a proclaimed place shall have in respect of any proceedings, or

(b)  that is not a proclaimed place shall have in respect of any proceedings the record of which is held by him,

the powers, authorities, duties and functions of the registrar for the proclaimed place for which the assistant registrar is an assistant registrar.

(2)  Subrule (1) extends to authorise an assistant registrar for a proclaimed place to receive and issue originating process for the commencement of proceedings at the proclaimed place.

rule 43.17: Am 4.7.1973.

18 (Repealed)

rule 43.18: Ins 18.11.1977. Rep 14.6.1985.

Part 44 Bailiffs

1 Books and records

(1)  A Sheriff’s Officer or bailiff shall keep books in or to the effect of the approved forms, and shall make in the books such entries in respect of process required to be served or executed by him as shall be required by the forms of the books or directed by the Chief Judge.

cf DCR r 23.

(2)  Without limiting the generality of subrule (1), a Sheriff’s Officer or bailiff shall enter in a book particulars of every writ or warrant which he has been required to execute, and what he has done under each of those writs or warrants, including in respect of any writ or warrant not executed within one month after delivery to the Sheriff’s Officer or bailiff a note of the reasons why it has not been executed.

cf DCR r 33.

(3)  In this rule book includes any system of permanent recording, whether written or otherwise and whether in bound form or otherwise.

rule 44.1: Am 19.8.1988.

2 (Repealed)

rule 44.2: Am 4.7.1973. Rep 19.8.1988.

2A Attendance at Court

The Sheriff’s Officer at, or bailiff for, a proclaimed place shall, if required by the Judge presiding thereat to do so, attend any sitting of the Court at that place.

rule 44.2A: Ins 14.6.1985. Am 19.8.1988.

3 Service and execution of process cf DCR r 26.

(1)  A Sheriff’s Officer or bailiff shall serve or execute process required to be served or executed by him as soon as practicable.

DCR r 25.

(1A)  Where a Sheriff’s Officer required to serve or execute any process ascertains that the person to be served is not, or the goods of the judgment debtor are 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 or execution otherwise directs, arrange for the process to be served or executed at that other address, and inform that party that he has so arranged.

(2)  Where the bailiff required to serve or execute any process ascertains that the person to be served is not, or the goods of the judgment debtor are not, at the address shown in the process but at another address, the bailiff shall, if the proclaimed place for which he is bailiff is the nearest or otherwise most convenient proclaimed place to that other address, serve or execute the process at that other address.

rules 44.3, 44.4: Am 19.8.1988.

4 Notices re service of process cf DCR rr 30, 31, 32.

(1)  Within two days after service by him of any process, the Sheriff’s Officer or bailiff shall forward an affidavit of service thereof to the person (other than a registrar) who required the service.

(2)  Where process delivered to the Sheriff’s Officer or bailiff for service cannot be expeditiously served the Sheriff’s Officer or bailiff shall:

(a)  forthwith after he becomes aware that there is no likelihood of his effecting service of the process,

(b)  forthwith after the last day on which the process may 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.

rules 44.3, 44.4: Am 19.8.1988.

5 Receipt, custody and disbursement of moneys cf DCR r 42.

(1)  A bailiff levying or receiving any moneys by virtue of a writ of execution or a writ against the person shall, where practicable, give an acknowledgement of those moneys to the judgment debtor or person from whom he received them, and shall, except where he is required by statute to retain the moneys, within twenty-four hours after levying or receiving them pay them to the registrar for the home court.

cf DCR r 34.

(1A)  A Sheriff’s Officer levying or receiving any moneys by virtue of a writ of execution or a writ against the person shall, where practicable, give an acknowledgment of those moneys to the judgment debtor or person from whom he received them, and shall, except where he is required by statute to retain the moneys, within 24 hours after levying or receiving them pay them, less the amount of the Sheriff’s Officer’s costs of the writ, to the judgment creditor or his solicitor.

(2)  Where the bailiff is by statute required to retain the proceeds of an execution he shall:

(a)  within twenty-four hours after receiving the money send to the judgment creditor or his solicitor notice of the levy and the amount received thereunder,

(b)  retain also his 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 for the home court.

(2A)  Where a Sheriff’s Officer is by statute required to retain the proceeds of an execution he shall:

(a)  within 24 hours after receiving the money send to the judgment creditor or his solicitor notice of the levy and the amount received thereunder,

(b)  retain also his 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 his solicitor.

(3)    (Repealed)

(4)  The Sheriff’s Officer at, or bailiff for a proclaimed place shall keep a trust account with a bank approved by the Treasury, and shall pay into that account all moneys received by him in respect of any writ and not paid immediately to a registrar, a judgment creditor or a judgment creditor’s solicitor.

cf DCR r 39.

(5)  The Sheriff’s Officer at, or bailiff for a proclaimed place shall make available for the inspection of the registrar, or of an officer appointed by the Auditor-General, all records of his 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 his duties.

rule 44.5: Am 20.3.1987; 19.8.1988.

6 Return to writ or warrant cf DCR rr 40, 345.

A Sheriff’s Officer or bailiff shall in respect of any writ or warrant 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 warrant, or

(c)  when required in writing by the judgment creditor to do so,

make a return to the writ or warrant in the approved form and transmit the writ, or warrant, if still in his possession, and the return to the registrar.

rules 44.6, 44.7: Am 19.8.1988.

7 Notices

(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 his solicitor notice of the withdrawal and the reasons therefor.

cf DCR r 36.

(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 his solicitor notice of the failure to make a levy and the reasons therefor.

cf DCR r 37.

(3)  A Sheriff’s Officer or bailiff shall, at all reasonable times, give to the judgment creditor or his solicitor any information reasonably required as to the execution or non-execution of a writ.

rules 44.6, 44.7: Am 19.8.1988.

8 (Repealed)

rule 44.8: Rep 20.3.1987.

9 Bailiff not to act as agent cf Act No 23, 1912, s 30 (1).

A Sheriff’s Officer or bailiff, and any officer under the control of a Sheriff’s Officer or bailiff, shall not act as agent for any party in proceedings in the Court.

rule 44.9: Am 19.8.1988.

Part 45 Disability

pt 45: Subst 21.11.1986.

1 Reference to tutor

Where it is necessary to refer to the office of a tutor, he shall be described as a tutor unless it is necessary to distinguish between the offices of next friend and guardian ad litem.

rule 45.1: Am 14.6.1985. Subst 21.11.1986.

2 Need for tutor

(1)  Subject to subrule (3) a disable person may not, except by his next friend, bring or make a claim or carry on any proceedings for relief in the Court.

(2)  Subject to subrule (3), a disable person may not, except by his guardian ad litem, defend any proceedings.

(3)  Where, in any proceedings, a disable person has a tutor, the disable person may, by his tutor, commence, carry on or defend any cross-claim or any third or subsequent party proceedings.

rule 45.2: Subst 21.11.1986.

2A 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 applicant were not a minor.

rule 45.2A: Ins 23.6.1995.

3 Conduct of proceedings by tutor

(1)  Subject to the rules, where a disable person is a party to any proceedings, anything which would, if he were not a disable person, be required or authorized by the rules to be done by him shall or may be done by his tutor.

(2)  A tutor must act by a solicitor.

rule 45.3: Subst 21.11.1986.

4 Appointment of tutor generally

(1)  Subject to subrule (5), and subject to rules 5 and 7, 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 proceedings in which he has an interest adverse to the interest of the disable person.

(4)  A person shall not be made a tutor without his consent.

(5)  Where a person has been or is tutor for a disable person in any proceedings, no other person may, except on appointment by the Court, act as tutor for the disable person in those proceedings.

(6)  A person, other than a tutor appointed by the Court, shall not take any step in any proceedings as tutor for a disable person unless beforehand there have been filed:

(a)  his consent to act, and

(b)  a certificate by his solicitor that the tutor has no interest in the proceedings adverse to that of the disable person.

rule 45.4: Am 14.6.1985. Subst 21.11.1986. Am 23.6.1995; 11.1.2002.

5 Appointment of tutor of incompetent person

(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 proceedings 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 he has, under section 5 (5) of the Protected Estates Act 1983, the functions conferred and imposed upon the Protective Commissioner by or under that or any other Act or law.

(3)  Where, after the commencement of proceedings, a party becomes an incompetent person, no step in the proceedings shall be taken by or against the incompetent person until a tutor for him has been appointed by the Court.

(4)  A person shall not take any step in any proceedings as tutor for an incompetent person unless he has been appointed tutor by the Court or unless there has been filed (in addition to the documents mentioned in rule 4 (6)):

(a)  in a case to which subrule (1) applies, a certificate by the tutor that he is curator for the incompetent person and specifying the date on which and the manner by which he became curator, or

(b)  in a case to which subrule (1) does not apply, a certificate by his solicitor that he knows or that he believes that subrule (1) does not apply and giving the grounds of his knowledge or belief.

rule 45.5: Subst 21.11.1986.

6 Non-appearance by disable person

(1)  Subject to subrule (2), where originating process in any proceedings is served on a disable person, the plaintiff or applicant in the proceedings shall not take any further step in the proceedings affecting the disable person until:

(a)  a tutor for the disable person is made to appear on the record of the proceedings or is appointed by the Court under rule 7, 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 defendant or respondent in any proceedings is a minor and does not comply with a notice served under rule 2A, the plaintiff or applicant, and the Court, may take any step in the proceedings as though the defendant or respondent were not a minor.

rules 45.6, 45.7: Subst 21.11.1986. Am 23.6.1995.

7 Appointment by the Court

(1)  The Court may, on motion by a party to proceedings or any other person, appoint a tutor for a disable person for the purposes of the proceedings.

(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)

rules 45.6, 45.7: Subst 21.11.1986. Am 23.6.1995.

8 Removal

(1)  The Court may, on motion by a party to proceedings or by any other person or of its own motion:

(a)  remove a tutor, and

(b)  stay the proceedings 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 he is tutor.

rules 45.8–45.11: Subst 21.11.1986.

9 No imputed admission on pleadings

Part 9 rule 14 (1) does not apply to an opposite party who is a disable person.

rules 45.8–45.11: Subst 21.11.1986.

10 Discovery and interrogatories

Parts 22 and 22A apply to a disable person and to his tutor.

rules 45.8–45.11: Subst 21.11.1986.

11 Compromise etc of matter in suit

(1)  Where proceedings have been commenced, and afterwards an agreement is made by the tutor in the proceedings of a disable person for the compromise or settlement of any matter in dispute in the proceedings, 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 his tutor were his 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.

rules 45.8–45.11: Subst 21.11.1986.

12 (Repealed)

rule 45.12: Subst 21.11.1986. Rep 28.4.1989.

13 Compromise etc before suit

(1)  Where a claim enforceable by proceedings is made by or on behalf of, or against, a disable person and, before proceedings are commenced to enforce the claim, an agreement is made by or on behalf of the disable person for the compromise or settlement of the claim, the Court may approve or disapprove the agreement.

(2)  An agreement approved by the Court under subrule (1) is as binding on the disable person by whom or on whose behalf it is made as if the disable person were not a disable person and, where the agreement is made by another person on behalf of the disable person, as if that other person were his agent to make the agreement.

(3)  An agreement disapproved by the Court under subrule (1) is not binding on a disable person by whom or on whose behalf it is made.

(4)  A person may commence proceedings for approval of an agreement under this rule by application, and may, in the application, seek enforcement of the claim in case the Court does not approve the agreement.

(5)  Where, in proceedings by application under this rule, a claim is made under the Compensation to Relatives Act 1897, the applicant shall file and serve with the notice of application a full particular of the matters specified in section 6 of that Act.

(6)  Where, in proceedings by application under this rule, the Court does not approve an agreement but the applicant seeks to enforce the claim, the Court may give directions for the further conduct of the proceedings.

rules 45.13–45.15: Ins 21.11.1986.

14 Terms of approval

(1)  The Court may give its approval under rule 11 or rule 13 on terms.

(2)  Without affecting the generality of subrule (1), the Court:

(a)  may, as a term of its approval, require that any money or other property payable or applicable to or for the benefit of a 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).

rules 45.13–45.15: Ins 21.11.1986.

15 Service

(1)  This rule applies where, in any proceedings, a document is required to be served on a disable person.

(2)  Service on a disable person shall not be affected otherwise than in accordance with this rule.

(3)  Where the disable person has a tutor or a solicitor in the proceedings, the document may, subject to Part 8 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 proceedings, the document may be served:

(a)  if he is aged 16 years or upwards, on him,

(b)  on a parent of his or a guardian of his person or of his estate, or

(c)  if he has no parent and has no guardian of his person or of his estate, on a person with whom he resides or in whose care he is.

(6)  Where the person to be served is an incompetent person and has no tutor in the proceedings, the document may be served:

(a)  if he has a curator, on the curator, or

(b)  if he has no curator, on a person with whom he resides or in whose care he is.

(7)  A document served pursuant to any of subrules (3) to (6) must be served in the manner required by the rules with respect to the document.

(8)  A judgment or order requiring a disable person to do, or refrain from doing, any act, a notice of motion for the committal of a disable person, and a subpoena addressed to a disable person, must, in addition to any other service required by the rules, and notwithstanding anything in subrules (3) to (6), be served personally on the disable person.

(9)  Subrule (8) does not apply to an order for interrogatories or for discovery or inspection of documents.

(10)  This rule does not extend the jurisdiction of the Court over a disable person absent from the State.

rules 45.13–45.15: Ins 21.11.1986.

Part 46 Business names

1 Interpretation SCR Pt 64, 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 SCR Pt 64, r 3.

(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 originating process or other document in or relating to any proceedings may be served on the person:

(a)  by leaving it 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 sixteen years, or

(b)  by sending it by post addressed to the business name or to the person to be served and addressed to 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 his 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 proceedings, 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.

rule 46.2: Am 22.4.1988.

3 Grounds of defence SCR Pt 64, r 4.

(1)  Where any person is sued in a business name, he shall not file notice of grounds of defence except in his own name.

(2)  Where any person files notice of grounds of defence in proceedings in which he is sued in a business name, he shall file with the notice, and the registrar shall give or send by post to 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, on the application of a party or of its own motion, order that his notice of grounds of defence be struck out.

rule 46.3: Am 28.3.2002.

4 Amendment as to parties SCR Pt 64, r 5.

(1)  Where an action is commenced against any person in a business name, the plaintiff shall, as soon as practicable, take all reasonable steps (whether by way of search, discovery of documents or otherwise) 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 own name and not in his 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 originating process and except for the purpose of compliance with subrule (1), until amendments are made in accordance with subrule (1).

(3)  Where an amendment is made under this rule, the mode of amendment and service after amendment shall be in accordance with Part 17 rules 7, 8 and 9.

(4)  A party may make any amendment pursuant to Part 17 rule 2 notwithstanding that he has made an amendment under this rule.

5 Execution SCR Pt 64, r 6.

(1)  Where an action against a person in a business name is continued by leave given under rule 4, a judgment or order against that person in the business name shall not be enforced by execution except as mentioned in this rule.

(2)  A judgment or order against a person in a business name may be enforced by execution against any property of the business carried on under that name and, where the judgment or order is against partners, against any other property which is property of the partnership.

(3)  In subrule (2), the expression property of the business, in relation to a judgment or order against a person in a business name, means all property and rights and interests in property, originally brought into the business carried on under that name or acquired, whether by purchase or otherwise, on account of the business, or for the purposes and in the course of the business, being property, rights or interests of that person.

6 Variation of judgment or order SCR Pt 64, r 7.

(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 his 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.

7 Discovery in aid of rules 4 and 6 SCR Pt 64, r 8.

(1)  Where it appears to the Court that some person has or may have knowledge of facts, or has or may have in his possession, custody or power any document or thing, tending to assist in the ascertainment of the name or description or other identification of a defendant sued in a business name, the Court may, for the purpose of enabling amendments to be made under rule 4 or a variation of a judgment or order to be made under rule 6:

(a)  order that person to attend before the Court or the registrar on a day named in the order and be orally examined on any matter relating to the name or description or other identification of the defendant,

(b)  order that person to produce any document or thing in his possession, custody or power relating to the name or description or other identification of the defendant, and

(c)  if that person is a corporation, order the corporation or any officer of the corporation to produce before the Court or registrar on a day named in the order any document or thing in the possession, custody or power of the corporation relating to the name or description or other identification of the defendant.

(2)  In subrule (1), description, in relation to a defendant, includes the place of residence, place of business, occupation and sex of the defendant.

(3)  Part 4 rules 2 (3), 3, 4 and 5 apply in relation to an order under this rule as they apply in relation to an order under Part 4 rule 1.

Part 47 Documents

1 First page of a document cf SCR Pt 65, r 1.

(1)  The first page of a document in any proceedings must be headed in the Court at the proper place in relation to the proceedings, and if the document is filed at a place other than the proper place the heading must contain a note that the document was filed at that place.

(2)  The first page of a document in any proceedings must show the number and year allotted to the proceedings under Part 5, rule 3 (3).

(3)  The first page of a document in any proceedings between parties must be entitled between the parties, and not otherwise.

(4)  The first page of a document in any proceedings in which there is no defendant or respondent must be entitled “In the application of” together with the name of the applicant, and not otherwise.

(5)  A document may bear an abbreviation of the title of the proceedings sufficient to identify the proceedings unless the document is:

(a)  an originating process, or

(b)  a cross-claim, or

(c)  a document to be served on a person not a party to the proceedings, or

(d)  a form of judgment or final order.

(6)  At the foot of the left hand side of the first page of a document prepared by a party for use in the Court, the following are to be shown:

(a)  the name, address and telephone number of the solicitor for the party,

(b)  if the solicitor acts in the proceedings by an agent—the name, address and telephone number of the agent,

(c)  if the address for service of the party is the office of a solicitor who has an exchange box in a document exchange of Australian Document Exchange Pty Limited—the solicitor’s exchange box number.

(7)  Subrule (6) does not apply to a document prepared by a party for use in the Court who is not represented by a solicitor. However, any such document must show the name and address for service of the party at the foot of the left hand side of the first page of the document.

rule 47.1: Am 18.10.1996. Subst 20.3.1998.

2 Forms

(1)  It shall be sufficient compliance with any requirement of the Act or the 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.

SCR Pt 1, r 11.

(2)  The Chief Judge may from time to time cause to be published forms approved for use in the Court, 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 any document the document shall be framed to the satisfaction of the registrar.

cf DCR r 442.

3 General requirements cf SCR Pt 65, r 2.

(1)  This rule applies to a document prepared by a party for use in the Court, except to the extent that the nature of the document renders compliance impracticable.

(2)  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 measuring about two hundred and ninety-seven millimetres long and two hundred and ten millimetres wide.

(4)  The writing on a document shall be on one face of the paper only and a margin of not less than twenty-five millimetres shall be kept clear on the left hand side.

(4A)  Notwithstanding subrule (4), where an annexure to a document is a photocopy the annexure may be on both sides of the paper.

(5)  There shall be a space of not less than three 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 the 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.

rule 47.3: Am 7.1.1983; 22.4.1983; 13.8.1993; 24.4.1998.

4 Words and figures SCR Pt 65, r 4.

Dates, amounts and other numbers in any document filed in any proceedings shall be expressed in figures and not in words.

5 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,

(e)  a signatory authorised under subrule (3).

(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)  The registrar may authorise a clerk of a solicitor to be a signatory for the purposes of subrule (1) (e) in all or in any class of proceedings for his or her employer and for any solicitor of whom his or her employer is agent and may revoke any authority given under this rule.

(4)  A signature made pursuant to this rule shall be accompanied by a statement of the capacity in which the signature is made.

rule 47.5: Subst 19.12.1997.

6 (Repealed)

rule 47.6: Am 30.7.1976; 14.6.1985; 26.6.1992; 8.12.1995. Rep 20.3.1998.

7 Scandal etc SCR Pt 65, r 5.

The Court may, on the application of a party or of its own motion, order to be struck out of any document any matter which is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive.

rule 47.7: Am 28.3.2002.

8 Notice of rejection cf DCR r 430.

Where the registrar rejects a document filed or tendered for filing he shall, either orally or in writing, give notice of the rejection and the reasons therefor to the party requiring the document to be filed.

9 Copies of documents cf DCR r 14.

The registrar may, on prepayment of his charges, prepare and certify copies of any documents filed with him for any party entitled to require the copies.

10 Sealing duplicate documents cf DCR r 432.

Where any document under the seal of the Court is lost or destroyed, the registrar may from time to time seal a duplicate of the document upon proof to his satisfaction, by affidavit or otherwise, of the loss or destruction.

Part 48 Solicitors

1 Power to act by solicitor SCR Pt 66, r 1.

(1)  Every matter or thing in relation to any proceedings which under the Act or the rules or otherwise by law is required or allowed to be done by a party may be done by his solicitor on the record of the proceedings.

(2)  Subrule (1) does not apply where the context or subject matter otherwise indicates or requires.

2 Adverse parties SCR Pt 66, r 2.

Where a solicitor or his partner acts as solicitor for any party to any proceedings, or is a party to any proceedings, that solicitor shall not, without leave of the Court, act for any other party to the proceedings not in the same interest.

3 Appointment of solicitor cf SCR Pt 66, r 5.

(1)  Where a solicitor signs, and files on behalf of a party in any proceedings, any originating process, notice of grounds of defence, cross-claim, notice of intention to appear, notice to plead the facts, or third or subsequent party notice, the solicitor shall be the solicitor of the party on the record of the proceedings.

(2)  Where a party acts for himself in any proceedings and afterwards appoints a solicitor to act for him in the proceedings, the party or the solicitor shall sign and file notice of the change and serve the notice on the other parties to the proceedings.

rule 48.3: Am 18.11.1977.

4 Change of solicitor etc

(1)  Where a solicitor acts for a party in any proceedings, the party may change his solicitor.

cf SCR Pt 66, r 3.

(2)  Where a party changes his solicitor, he, or his 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 any proceedings and another solicitor acts as agent for the principal solicitor in the proceedings 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.

cf SCR Pt 66, r 4.

(4)  Where a solicitor acts for a party in any proceedings and afterwards the party, without changing his solicitor, determines the authority of the solicitor to act for him in the proceedings:

(a)  the party shall sign and file notice of the change and serve the notice on the other parties and, where practicable, his former solicitor, or

(b)  the former solicitor may sign and file notice of the change and serve the notice on the parties.

cf SCR Pt 66, r 6.

(5)  Where a solicitor acts for a party to any proceedings and afterwards ceases to act, the solicitor may subject to sub-rule (6) sign and file notice of the change and serve the notice on the parties.

cf SCR Pt 66, r 7.

(6)  A solicitor shall not file or serve a notice of change under sub-rule (5) without leave of the court unless he has, not less than seven days before doing so, served on his former client notice of his intention to file and serve the notice of change.

(7)  A solicitor filing a notice of change under sub-rule (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 sub-rule (6).

(8)  A solicitor may serve a notice under this rule on his former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.

rule 48.4: Am 18.8.1978.

5 When change takes effect

Any change mentioned in rule 3 (2) or in rule 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 rule 4 has been completed.

Part 49 Defamation

Division 1

1–7   (Repealed)

pt 49, div 1, hdg: Ins 28.6.1974. Rep 25.8.1989.

pt 49, div 1: Rep 25.8.1989.

rule 49.1: Subst 28.6.1974. Rep 25.8.1989.

rules 49.2–49.7: Rep 25.8.1989.

Division 2 Publication after Defamation Act 1974

pt 49, div 2: Ins 28.6.1974.

8 Application SCR Pt 67, r 9.

This Division applies to proceedings for defamation in respect of matter published after the commencement of the Defamation Act 1974.

rules 49.8–49.10: Ins 28.6.1974.

9 Interpretation SCR Pt 67, r 10.

(1)  In this Division, unless the context or subject-matter otherwise indicates or requires, defence includes any matter of privilege, protection, justification or excuse.

(2)  In this Division, imputation in question, in relation to any defence, means the imputation as to which the defence is pleaded.

rules 49.8–49.10: Ins 28.6.1974.

10 Statement of claim SCR Pt 67, r 11.

(1)  A statement of claim shall not include any allegation that the matter complained of or its publication was false, malicious or unlawful.

(2)  A statement of claim:

(a)  shall, subject to subrule (3), specify each imputation on which the plaintiff relies, and

(b)  shall allege that the imputation was defamatory of the plaintiff.

(3)  A plaintiff shall not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same report, article, letter, note, picture, speech or thing, unless the imputations differ in substance.

(4)  Subject to rule 11 (c), a statement of claim need not show how the matter complained of bore the sense of any imputation on which the plaintiff relies.

rules 49.8–49.10: Ins 28.6.1974.

11 Particulars: publication and innuendo SCR Pt 67, r 12.

The particulars required by Part 9 rule 19 in relation to a statement of claim shall include:

(a)  particulars of any publication on which the plaintiff relies to establish his cause of action, sufficient to enable the publication to be identified,

(b)  particulars of any publication, circulation or distribution of the matter complained of or copy of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified,

(c)  where the plaintiff alleges that the matter complained of had a defamatory meaning other than its ordinary meaning, particulars of the facts and matters on which he relies to establish that defamatory meaning, and

(d)  where the plaintiff intends to allege that damages are affected by reason of conduct of the defendant or any other thing which occurs after the publication complained of, he shall give particulars of the facts and matters on which he relies to establish that allegation and stating that intention.

rule 49.11: Ins 28.6.1974. Am 4.10.1974.

12 Defence generally SCR Pt 67, r 13.

(1)  Subject to rules 13 to 16, a defendant shall plead any defence specifically.

(2)  Where a plaintiff relies on two or more alleged defamatory imputations, a defence shall specify to what alleged imputation or imputations it is pleaded.

rules 49.12–49.18: Ins 28.6.1974.

13 Truth generally SCR Pt 67, r 14.

Subject to rule 12 (2), a defence under section 15 (2) of the Defamation Act 1974 is sufficiently pleaded if it alleges:

(a)  that the imputation in question was a matter of substantial truth, and

(b)  either:

(i)  that the imputation in question related to a matter of public interest, or

(ii)  that the imputation in question was published under qualified privilege.

rules 49.12–49.18: Ins 28.6.1974.

14 Truth: contextual imputations SCR Pt 67, r 15.

Subject to rule 12 (2), a defence under section 16 of the Defamation Act 1974 is sufficiently pleaded if it:

(a)  alleges either:

(i)  that the imputation in question related to a matter of public interest, or

(ii)  that the imputation in question was published under qualified privilege,

(b)  specifies one or more imputations on which the defendant relies as being contextual to the implication in question,

(c)  as to each imputation on which he so relies:

(i)  alleges either that it related to a matter of public interest or that it was published under qualified privilege, and

(ii)  alleges that it was a matter of substantial truth, and

(d)  alleges that, by reason that the imputations on which he so relies are matters of substantial truth, the imputation in question did not further injure the reputation of the plaintiff.

rules 49.12–49.18: Ins 28.6.1974.

15 Qualified privilege SCR Pt 67, r 16.

(1)  This rule applies:

(a)  to a defence under Division 4 of Part 3 of the Defamation Act 1974, and

(b)  subject to subrule (2), to any other defence of qualified privilege.

(2)  This rule does not apply to a defence under Division 5, 6 or 7 of Part 3 of the Defamation Act 1974.

(3)  Subject to rule 12 (2), a defence is sufficiently pleaded if it alleges that the imputation in question was published under qualified privilege.

rules 49.12–49.18: Ins 28.6.1974.

16 Comment SCR Pt 67, r 17.

(1)  This rule applies to a defence under Division 7 of Part 3 of the Defamation Act 1974.

(2)  Subject to rule 12 (2), a defence is sufficiently pleaded if it:

(a)  either:

(i)  alleges that the imputation in question was comment based on proper material for comment and upon no other material, or

(ii)  alleges that the imputation in question was comment based to some extent on proper material for comment and represented an opinion which might reasonably be based on that material to the extent to which it was proper material for comment,

(b)  alleges that the imputation in question related to a matter of public interest, and

(c)  either:

(i)  alleges that the imputation in question was the comment of the defendant,

(ii)  alleges that the imputation in question was the comment of a servant or agent of the defendant, or

(iii)  alleges that the imputation in question was not, and in its context and in the circumstances of the matter complained of did not purport to be, the comment of the defendant or of any servant or agent of his.

(3)  The particulars required by Part 9 rule 19 shall include:

(a)  particulars identifying the material upon which it is alleged that the imputation in question was comment and identifying to what extent that material is alleged to be proper material for comment, and

(b)  as to material alleged to be proper material for comment, particulars of the facts and matters on which the defendant relies to establish that allegation.

(4)  Subrule (3) (b) does not extend to particulars of the facts and matters on which the defendant relies to establish that any material was true or was a matter of substantial truth.

(5)  Where a defendant relies on a defence under section 33 of the Defamation Act 1974, the particulars required by Part 9 rule 19 shall include particulars identifying the servant or agent of the defendant whose comment the imputation in question is alleged to be.

(6)  Subrules (3), (4) and (5) do not limit the operation of rule 17.

rules 49.12–49.18: Ins 28.6.1974.

17 Particulars of defence SCR Pt 67, r 18.

(1)  The particulars of defence required by Part 9 rule 19 shall include particulars of the facts and matters on which the defendant relies to establish that:

(a)  any imputation or material was or related to a matter of public interest, or

(b)  any imputation was published under qualified privilege.

(2)  Where a defendant intends to make a case in mitigation of damages by reference to:

(a)  the circumstances in which the publication complained of was made,

(b)  the character of the plaintiff,

(c)  any apology for, or explanation or correction or retraction of, any imputation complained of, or

(d)  any recovery, proceedings, receipt or agreement to which section 48 of the Defamation Act 1974 applies,

he shall give particulars of the facts and matters on which he relies to make that case.

(3)  Where a defendant intends to show, in mitigation of damages, that any imputation complained of was true or was a matter of substantial truth, he shall give particulars identifying the imputation and stating that intention.

(4)  The particulars required by subrules (2) and (3) shall be set out in the defence or, if that is inconvenient, shall be set out in a separate document referred to in the defence and that document shall be filed and served with the defence.

(5)  Subject to subrule (6), Part 9 rule 19 shall not include particulars of the facts and matters on which the defendant relies to establish that any imputation or material was true or was a matter of substantial truth.

(6)  The powers of the Court under Part 9 rule 26 shall extend to orders in relation to the particulars mentioned in subrule (5).

rules 49.12–49.18: Ins 28.6.1974.

18 Malice etc: particulars cf SCR Pt 67, r 19.

Where a plaintiff intends to meet any defence:

(a)  by alleging that the defendant was actuated by express malice in the publication of the matter complained of, or

(b)  by relying on any matter which, under the Defamation Act 1974, defeats the defence,

the plaintiff shall, within such reasonable time as the circumstances of the case allow, file and serve a notice of the allegation or matter of defeasance, and include in the notice particulars of the facts and matters on which he relies to establish any such allegation or matter of defeasance.

rules 49.12–49.18: Ins 28.6.1974.

19 Statement in open Court SCR Pt 67, r 21.

Where:

(a)    (Repealed)

(b)  proceedings for defamation are settled,

a party may, with the leave of the Court, make in open Court a statement approved by the Court in private.

rule 49.19: Ins 28.6.1974. Am 28.4.1989.

20 Offer of amends; determination of questions SCR Pt 67, r 22.

The Court may hear an application and determine any question pursuant to section 39 of the Defamation Act 1974 in the absence of the public.

rule 49.20: Ins 28.6.1974.

Part 50 Notices

1 Notices to be in writing DCR r 435.

A notice required by the rules to be given shall be in writing, unless authorised by the rules or by the Court to be given orally.

2 Registrar to record notices

Where the registrar gives or sends in respect of any proceedings a notice required by the rules to be given or sent by him he shall make on an appropriate document filed in the proceedings a notation of the date on which the notice is given or sent.

Part 51 Arbitration under section 63 of the Act

pt 51, Heading: Subst 24.6.1983.

1 Application

This Part relates to an action after an order is made under section 63 of the Act.

2 Notice of hearing SCR Pt 72, r 3.

The arbitrator shall give to the parties not less than seven days’ notice of the time and place of hearing and may, on the application of a party, extend the time for hearing.

rule 51.2: Am 19.4.1984.

3 Hearing in the absence of a party SCR Pt 72, r 4.

If a party does not appear at the hearing after notice has been given to him the arbitrator may proceed in the absence of that party.

4 Examination on oath SCR Pt 72, r 5.

The arbitrator may take the examination on oath of any witness.

5 Deposit SCR Pt 72, r 6.

The Court may make orders for the payment into Court of a deposit for the remuneration of the arbitrator.

6 Time for award SCR Pt 72, r 7.

The arbitrator shall make his award within such time as the Court may order.

7 Proceeding on making award SCR Pt 72, r 8.

The arbitrator shall, within seven days after making his award:

(a)  send it to the registrar in a sealed envelope together with a copy of the award for each party,

(b)  send to the registrar a statement showing the time occupied and the amount expended by him in connection with the hearing of the matter so referred, and

(c)  notify the parties that he has sent the award to the registrar.

8 Remuneration SCR Pt 72, r 9.

(1)  The registrar shall forthwith bring the statement before the Court.

(2)  Where the Court has determined the remuneration to be paid to the arbitrator the registrar shall notify the parties of the amount determined.

9 Ascertaining award SCR Pt 72, r 10.

Upon payment by any party of the remuneration determined by the Court in excess of any sum deposited under rule 5, the envelope containing the award shall be opened by the registrar.

10 Service of award SCR Pt 72, r 11.

The registrar shall serve on the parties by post a copy of the award.

11 Setting aside award SCR Pt 72, r 12.

If a party be dissatisfied with the award he may, within 28 days after service of the copy of the award referred to in rule 10, apply to the Court for orders under section 63 (2) of the Act.

rule 51.11: Am 28.3.1991.

Part 51A Arbitration under the Arbitration (Civil Actions) Act 1983

pt 51A: Ins 24.6.1983. Subst 22.12.1989.

Division 1 Preliminary

pt 51A, div 1: Ins 22.12.1989.

1 Prescribed places

(1)  The proclaimed places prescribed for the purposes of section 63A of the Act are:

Sydney

Gosford

Newcastle

Parramatta

Wollongong

(2)  The Chief Judge may by direction specify proclaimed places, other than those prescribed in subrule (1), to be prescribed places for the purposes of section 63A of the Act, and any place so specified shall be appointed by the Chief Judge for the purposes of rule 3 (3).

rule 51A.1: Ins 24.6.1983. Am 24.8.1984. Subst 22.12.1989. Am 26.4.1991.

2 Referral for arbitration

(1)  In this rule, Court includes, where a registrar is empowered to make an order under section 63A of the Act, that registrar.

(2)    (Repealed)

(3)  Nothing in these rules shall be construed as preventing the Court from maintaining separate lists of actions in respect of which orders may be made under section 63A (1) of the Act, or from listing such actions ahead of other actions.

(4)  For the purposes of section 63A (3) (d) of the Act, an action is within a class of actions that may not be referred for determination pursuant to the Arbitration (Civil Actions) Act 1983 if:

(a), (b)    (Repealed)

(c)  the defendant has pleaded 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.

(d)    (Repealed)

(5)  Notwithstanding anything in subrule (4), a class of actions prescribed for the purposes of section 63A (3) (d) of the Act does not include any action remaining in the Commercial List.

rule 51A.2: Ins 24.6.1983. Am 19.4.1984; 23.10.1987; 10.6.1988; 23.3.1989. Subst 22.12.1989. Am 16.2.1990; 11.1.1991; 13.8.1993; 8.12.1995; 1.3.1996; 24.4.1998.

Division 2 Arbitration under the “Philadelphia” system

pt 51A, div 2: Ins 22.12.1989.

3 “Philadelphia” system

(1)  This Division applies to an action referred for arbitration by an order made under subrule (3).

(2)  Rules 4 and 5 do not apply, but the remainder of this Part does apply, to an action to which this Division applies.

(3)  In Sydney, and at any other of the proclaimed places referred to in rule 1 which is appointed by the Chief Judge for the purposes of this subrule, an order under section 63A (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.

(4)  An arbitrator to whom an action is referred by an order made under subrule (3) shall, if he is not prepared to hear and determine the action, so inform the Court as soon as practicable, specifying the reasons why he is not prepared to hear and determine the action.

(4A)  An arbitrator who has not determined an action may, under subrule (4), 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.

(5)  Where an arbitrator declines or fails to hear and determine an action referred to him, 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.

(6)  An arbitrator may, if he thinks fit, from time to time adjourn arbitration of an action which he has commenced to hear.

(7)  Without prejudice to the operation of subrule (6), an arbitrator to whom an action has been referred shall, on the date specified in the order referring the action or to which the arbitration has been adjourned under subrule (6), hear, or continue to hear, the action whether or not the parties to the action appear.

rule 51A.3: Ins 24.6.1983. Subst 22.12.1989. Am 26.4.1991; 23.6.1995.

Division 3 Arbitration other than under the “Philadelphia” system

pt 51A, div 3: Ins 22.12.1989.

4 Referral—procedure

(1)  This rule applies to an action referred to an arbitrator under section 63A (1) of the Act other than by an order made under rule 3 (3).

(2)  Where an order is made referring an action to arbitration, the Court or registrar shall, when making the order or as soon as practicable thereafter, nominate the arbitrator to whom the action is to be referred for determination, and the registrar shall, upon the arbitrator being nominated:

(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.

(3)  In nominating an arbitrator under subrule (2) 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 a referred action involving technical issues, and

(b)  complying with any choice of arbitrator made by all the parties in the action referred to arbitration.

rule 51A.4: Ins 24.6.1983. Am 10.6.1988. Subst 22.12.1989.

rules 51A.4A, 51A.4B: Ins 19.4.1984. Rep 22.12.1989.

5 Procedure by arbitrator

(1)  This rule applies to an action referred to an arbitrator under section 63A (1) of the Act other than by an order made under rule 3 (3).

(2)  An arbitrator to whom an action is referred shall:

(a)  if he 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 is not prepared to hear and determine the action, or

(b)  as soon as practicable fix a date, time and place for the hearing and determination of the action and inform the parties to the action, and the registrar, 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)  Where an arbitrator returns the record of an action to the Court under subrule (2) (a) or 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) in relation to an action shall be a date that is not later than 2 months after receipt by him of the record of the action.

(5)  In fixing a date, time and place under subrule (2) (b) in relation to an action, an arbitrator shall have regard to, but is not bound to meet, the convenience of the parties to the action.

(6)  For cause shown by a party to an action referred to him for determination, an arbitrator may, if he thinks fit, from time to time adjourn arbitration of the action.

(7)  Without prejudice to the operation of subrule (6), an arbitrator to whom an action has been referred shall, on the date and at the time and place:

(a)  fixed by him under subrule (2) (b), or

(b)  to which the arbitration has been adjourned under subrule (6),

hear, or continue to hear, the action whether or not the parties to the action appear.

(8)  Where within the period of 2 months that next succeeds receipt by him under rule 4 of the record of an action, an arbitrator fails to complete determination of the action, the arbitrator shall:

(a)  forthwith after the expiration of that period, and

(b)  if he fails to complete that determination during any month that next succeeds the end of that period—forthwith after the end of that 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 referred to him.

(10)  An arbitrator to whom an action is referred shall:

(a)  take custody of any exhibit produced to him in relation to the action, and

(b)  before, or immediately after, making his determination in the action, return the exhibit to the person by whom it was produced.

rule 51A.5: Ins 24.6.1983. Subst 22.12.1989. Am 23.6.1995; 1.3.1996.

Division 4 General

pt 51A, div 4: Ins 22.12.1989.

5A Application

This Division applies to an action referred to an arbitrator under section 63A (1) of the Act, whether by an order made under rule 3 (3) or otherwise.

rule 51A.5A (previously Rule 51A.5): Ins 22.12.1989. Renumbered 16.2.1990.

5B Continuation after referral

(1)  Notwithstanding anything in this Part, an order for referral of an action to an arbitrator shall be conditional on the fee on referral required by the District Court (Fees) Regulation being paid to the registrar not later than two (2) weeks prior to the date fixed for the hearing before the arbitrator.

(2)  Where the fee mentioned in subrule (1) has not been paid to the registrar two (2) weeks or more before the date fixed for the hearing before the arbitrator, the registrar shall report the non-payment to the Court, which shall make such order as it thinks fit, whether on the application of a party or of its own motion.

(3)  The orders that may be made under subrule (2) include an order striking out any defence or other pleading.

rule 51A.5B: Ins 1.3.1996. Am 7.7.2000; 28.3.2002.

6 Medical reports

(1)  A party seeking to adduce on any issue at an arbitration any evidence of a medical practitioner as to the past, present, or probable future physical or mental condition of a person shall obtain from the practitioner a written report containing the substance of the matters sought to be adduced as evidence and shall serve the report on each party who has separately pleaded not later than 14 days after the date on which notice of referral to arbitration was forwarded by the registrar.

(2)  A party shall not be entitled to adduce before an arbitrator oral evidence of a medical practitioner as to matters mentioned in subrule (1) unless the arbitrator otherwise directs or the parties consent.

rule 51A.6: Ins 24.6.1983. Am 23.10.1987. Subst 22.12.1989. Am 24.8.1990.

7 Proof of documents

Documents purporting to be hospital clinical notes and records, medical practitioners’ records, workers compensation records and wages records shall, unless the arbitrator otherwise directs, to the extent that they are admissible in evidence be so admissible without further proof as to their identity.

rule 51A.7: Ins 24.6.1983. Subst 22.12.1989.

8 Confession or agreement

Where the Court has made an order under section 63A (1) of the Act with respect to an action:

(a)  the Court may exercise its powers to enter a judgment in the action to which all the parties consent,

(b)  the provisions of Part 14 continue to apply to the action, and

(c)  where the Court enters a judgment in the action to which all the parties consent, or where the registrar enters up judgment in the action under Part 14 rule 2 or 3, the Court shall be deemed to have revoked the order under section 63A (1) of the Act with respect to the action.

rule 51A.8: Ins 24.6.1983. Subst 20.3.1987; 22.12.1989.

9 Award of arbitrator

(1)  In this rule (this subrule excepted), a reference to the award of an arbitrator is a reference to an award made by an arbitrator to determine an action referred to him under section 63A (1) of the Act.

(2)  The award of an arbitrator shall be in or to the effect of the approved form, and the arbitrator shall, forthwith after the making thereof, transmit the award to the Court together, in the case of an action to which rule 4 applies, with:

(a)  as many copies thereof and of any attachments thereto as there were parties separately represented in the action, and

(b)  the record of the action.

(3)  An arbitrator shall specify in, or attach to, his award his reasons for the award, being reasons that, in his opinion, are sufficiently stated to make the parties aware of his view of the case made by each of them.

(4)  Where a party has not attended on an arbitration, the arbitrator shall include in his award a statement that the party did not so attend and any other information known to the arbitrator concerning the failure to attend.

(5)  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 he has endorsed the date of sending and the registrar’s notice in the approved form.

rule 51A.9: Ins 24.6.1983. Subst 22.12.1989.

10 Period after which award becomes judgment

For the purposes of section 63A (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, under rule 9 (5), 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.

rule 51A.10: Ins 24.6.1983. Am 20.9.1985; 16.1.1987; 5.6.1987. Subst 22.12.1989.

11 Rehearing

(1)  An application for the rehearing under section 18 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 thereof as there are parties who have separately pleaded.

(2)  The registrar shall, as soon as practicable after filing a notice under subrule (1), fix a date for the rehearing of the action, or for the action to be before the Court for directions as to the rehearing, and advise the parties of that date.

(3)  Before the record of an action is brought before the Court for a rehearing of the action, the registrar shall seal within the record all information as to the nature and quantum of the determination or award of the arbitrator by whom the action was determined, but the Court shall not disqualify itself from rehearing the action because it becomes aware in any manner of any such information.

rule 51A.11: Ins 24.6.1983. Am 23.10.1987. Subst 22.12.1989. Am 6.10.1995; 24.4.1998; 30.10.1998.

12 (Repealed)

rule 51A.12: Ins 8.9.1989. Subst 22.12.1989. Am 6.7.1990; 9.10.1992. Rep 18.10.1996.

13 Appointment to panel

Any arbitrator appointed under section 5 (2) of the Arbitration (Civil Actions) Act 1983 may be appointed under section 11 (2) (c) of the Egg Industry (Repeal and Deregulation) Act 1989 to the arbitration panel set up under section 11 (1) of the latter Act.

rule 51A.13: Ins 16.2.1990.

Part 51B Commercial Arbitration Act 1984

pt 51B (Rules 51B.1–51B.6): Ins 21.6.1991.

1 Interpretation

In this Part:

arbitrator includes an umpire.

subject Act means the Commercial Arbitration Act 1984.

pt 51B (Rules 51B.1–51B.6): Ins 21.6.1991.

2 Commencement of applications under the subject Act

(1)  Proceedings on an application, other than an application for the issue of a subpoena, under the subject Act shall be commenced by notice of application under Part 5 Division 3.

(2)  Subject to Part 29 rule 6 (4), application for the issue of a subpoena under section 17 of the subject Act shall be made by producing the subpoena to the registrar in duplicate.

pt 51B (Rules 51B.1–51B.6): Ins 21.6.1991.

3 Interlocutory orders

In proceedings on an application for an order under section 47 of the subject Act, the Court may refuse to make the order where the Court considers that the arbitrator has power to make the order.

pt 51B (Rules 51B.1–51B.6): Ins 21.6.1991.

4 Time for application

(1)  In this rule material date means:

(a)  in respect of an award which, by agreement by the parties to the arbitration agreement, may be made with reasons later—the date on which notice of the reasons is given by the arbitrator to the person who wishes to apply to the Court, or

(b)  in respect of any other award—the date on which notice of the award is given by the arbitrator to the person who wishes to apply to the Court.

(2)  Proceedings on an application to the Court for an order under section 42 or 43 of the subject Act shall be commenced within 28 days after the material date or within such extended time as the Court may fix.

pt 51B (Rules 51B.1–51B.6): Ins 21.6.1991.

5 Subpoenas

(1)  Part 29 (except Part 29 rules 2A, 3, 6 (6), (7), (8) and 7A) applies in relation to the issue of a subpoena under section 17 (1) of the subject Act as it applies in relation to the issue of a subpoena in proceedings in the Court.

(2)  A subpoena for production before an arbitrator may, with the leave of the Court or the arbitrator, require production on any day.

(3)  A subpoena requiring production of any document before an arbitrator shall, unless the Court otherwise orders, permit the person named to produce the document to a person, and at a place, nominated in writing by the arbitrator and stated in the subpoena, by hand or by post, in either case so that the person nominated receives it not later than 2 days before the first date on which production before the arbitrator is required, instead of attending and producing it before the arbitrator.

(4)  Where a document is produced to the person nominated pursuant to subrule (3) the person nominated shall:

(a)  if required to do so, give a receipt to the person producing the document, and

(b)  produce the document as the nature of the case requires or as the arbitrator may direct.

(5)  Subrule (3) does not apply to so much of a subpoena as requires a person to attend to give evidence.

pt 51B (Rules 51B.1–51B.6): Ins 21.6.1991.

6 Leave to enforce award

A party against whom an award is made under the subject Act shall be a respondent to any application to the Court under section 33 (1) of that Act for leave to enforce the award.

pt 51B (Rules 51B.1–51B.6): Ins 21.6.1991.

Part 51C Service and Execution of Process Act 1992 (Cth)

pt 51C (Rules 51C.1–51C.4): Ins 8.4.1993.

1 Interpretation

In this Part, Commonwealth Act means the Service and Execution of Process Act 1992 (Cth).

pt 51C (Rules 51C.1–51C.4): Ins 8.4.1993.

2 Commencement

This Part commences on 10 April 1993.

pt 51C (Rules 51C.1–51C.4): Ins 8.4.1993.

3 Fees

The fee for:

(a)  registering a judgment under section 105 (1) of the Commonwealth Act is $40, and

(b)  issuing a sealed copy of a judgment for registration under that subsection is $10.

pt 51C (Rules 51C.1–51C.4): Ins 8.4.1993.

4 Costs

(1)  The fees allowed for service of process of the 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 the Court, or

(b)  if there is no such scale, in accordance with the scale of fees in force for the time being in the Court for service of process of the 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, unless the Court otherwise orders, the sum of:

(a)  the fees paid to the Court for the registration of the judgment, and

(b)  $233.

pt 51C (Rules 51C.1–51C.4): Ins 8.4.1993.

Part 51D De Facto Relationships Act 1984 , Family Provision Act 1982 and Testator’s Family Maintenance and Guardianship of Infants Act 1916

pt 51D (Rules 51D.1–51D.5): Ins 28.11.1997.

1 De Facto Relationships Act 1984

The following rules of the Supreme Court Rules 1970 apply to proceedings before the District Court under the De Facto Relationships Act 1984 in the same way as they apply to proceedings before the Supreme Court:

(a)  Part 52, rule 24A (De Facto Relationships Act 1984),

(b)  Part 52, rule 24B (Orders for non-application of rules 24 and 24A),

(c)  Part 52A, rule 34 (De Facto Relationships Act 1984),

(d)  Part 52A, rule 35 (Orders for non-application of rules 33 and 34),

(e)  Part 77, Division 19, rules 74–76A (De Facto Relationships Act 1984).

pt 51D (Rules 51D.1–51D.5): Ins 28.11.1997.

2 Family Provision Act 1982

The following rules of the Supreme Court Rules 1970 apply to proceedings before the District Court under the Family Provision Act 1982 in the same way as they apply to proceedings before the Supreme Court:

(a)  Part 77, Division 16, rules 54–69 (Family Provision Act 1982),

(b)  Part 78, rule 5 (1) (n) (Powers of the registrar),

(c)  Part 78, rule 10 (Publication of notice of intended application),

(d)  Part 78, rule 11 (Delay),

(e)  Part 78, rule 25 (Evidence in support of application for administration),

(f)  Part 78, rule 25A (Evidence in support of application for administration by de facto wife or de facto husband),

(g)  Part 78, rule 26 (Evidence in support of application for administration with will annexed),

(h)  Part 78, rule 26A (Evidence in support of application for administration for the purposes only of the Family Provision Act 1982).

pt 51D (Rules 51D.1–51D.5): Ins 28.11.1997.

3 Testator’s Family Maintenance and Guardianship of Infants Act 1916

Part 77, Division 6, rules 22–31 (Testator’s Family Maintenance and Guardianship of Infants Act 1916) of the Supreme Court Rules 1970 apply to proceedings before the District Court under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 in the same way as they apply to proceedings before the Supreme Court.

pt 51D (Rules 51D.1–51D.5): Ins 28.11.1997.

4 Documents

If a rule of court of the Supreme Court referred to in rules 1, 2 or 3 requires a document to be in a form specified in Schedule F to the Supreme Court Rules 1970 the document is to be in that form in proceedings in the District Court.

pt 51D (Rules 51D.1–51D.5): Ins 28.11.1997.

5 Modifications

The forms contained in Schedule F to the Supreme Court Rules 1970 apply with necessary modifications and to the extent that they are not inconsistent with the District Court Act 1973.

pt 51D (Rules 51D.1–51D.5): Ins 28.11.1997.

Part 52 Miscellaneous

1 Corporation acting in person

For the purposes of the Act and rules, a corporation may authorise an officer of the corporation to sign any document, or do any thing which a party to any proceedings acting in person may do, in respect of any civil 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 deemed to be signed or done by the corporation.

rule 52.1: Subst 14.6.1985.

2 Authority by corporation

(1)  An authority given by a corporation to an officer of the corporation for the purposes of section 43 of the Act or rule 1 shall be under the seal of the corporation, and shall, before the officer so authorised takes any step in any proceedings by virtue of the authority, be lodged with the registrar for the proper place in relation to the proceedings.

(2)  An authority may be lodged for the purposes of subrule (1) by the lodging of the authority or a copy of the authority prepared by photographic or other similar process.

(3)  An authority mentioned in subrule (1) may be expressed to be for the purposes only of the proceedings named in the authority, or for the purposes of all proceedings brought, or to be brought, at any proclaimed place, or in the Court.

(4)  An authority mentioned in subrule (1) shall, after being lodged with a registrar for the purposes of that subrule, remain in force until revoked by the lodging with the registrar of a revocation signed by the secretary or other public officer of the corporation.

rule 52.2: Am 14.6.1985.

3 Searches

(1)  A party to any proceedings may search the file kept by the registrar in respect of the proceedings.

cf DCR r 17 (1).

(2)  A person other than a party to any proceedings, or the solicitor for the party, shall not search the file kept by the registrar in respect of the proceedings except by leave of the Court or registrar.

cf DCR r 451.

(3)    (Repealed)

(4)  Subject to Part 43 rule 3 (3), no person shall search any book of record kept by the registrar except by leave of the Court or registrar.

(5)  Subrules (2) and (4) do not apply in respect of proceedings under section 134 (1) (c) of the Act.

rule 52.3: Am 30.7.1976; 23.6.1995; 8.12.1995.

3A “TFM” proceedings

(1)  When proceedings are commenced by a party under section 134 (1) (c) of the Act at a proclaimed place other than Sydney, such party shall as soon as practicable after filing the originating process lodge a copy with the registrar for Sydney.

(2)  The registrar for Sydney shall keep a register of originating process filed in proceedings under section 134 (1) (c) of the Act in respect of all registries. Such register and any file recorded in such register may be searched by any person.

rule 52.3A: Ins 30.7.1976.

4 Waiver of appeal cf DCR r 119.

An agreement shall come into effect for the purposes of section 129 of the Act:

(a)  if a form of agreement is drawn up by either party, signed by both parties, and filed by either party, or

(b)  if a party endorses on a pleading filed by him, or separately files and serves on the opposite party, a statement that he is willing to accept as final the ruling, order, direction or decision of the Court, and the opposite party endorses on a pleading filed by him in reply to the firstmentioned pleading, or separately files and serves on the firstmentioned party, a statement that he agrees to accept the ruling, order, direction or decision as final.

5 (Repealed)

rule 52.5: Rep 21.6.1996.

6 Removal of proceedings DCR r 385.

(1)  Where an application for an order of removal or prohibition relating to an action is granted or refused by the Supreme Court, the plaintiff shall as soon as practicable serve the registrar with a copy of the order granting or refusing the application.

(2)  Where an order of removal or prohibition relating to any proceedings is made by the Supreme Court, the registrar shall, as soon as practicable after being served with a copy of the order, send by post or otherwise to the prothonotary the file kept by the registrar in respect of the proceedings.

7 Affidavit of service of certain process DCR r 422.

(1)  In this rule, process means any notice of appeal or application (whether as originating process or otherwise), summons or order (but not a subpoena), whereby a person is called upon to attend before the Court or a registrar on a day named in the process, and return-day means the day so named.

(2)  Except where otherwise provided in the rules, where at noon on the day on which the registry is open for business most nearly preceding the return-day of any process:

(a)  a person served with the process has filed no document in reply to the process, and

(b)  no affidavit of service of the process on the person has been filed,

the party at whose instance the process was served shall be deemed to have discontinued, as against that person, the proceedings initiated by the process.

(3)  The Court may if it thinks fit order on terms that any proceedings deemed to have been discontinued under subrule (2) may be continued.

8 Entry of satisfaction cf DCR r 426.

(1)  In this rule, satisfaction-piece means a document signed by a judgment creditor or his solicitor whereby the judgment creditor acknowledges that his judgment debt has been satisfied.

(2)  Any signature to a satisfaction-piece, other than the signature of a solicitor, shall be witnessed by any registrar, a solicitor, or a justice of the peace.

(3)  A judgment creditor may file a satisfaction-piece acknowledging satisfaction of his judgment debt, and thereupon the judgment debt shall be no longer enforceable as to the whole or any part thereof.

9 Publication

(1)  Except where otherwise provided, where notice of any matter is required by the Act or rules, or by any order of the Court, to be published, the notice shall be published in such newspaper or periodical as the Court or registrar shall direct.

cf DCR r 427.

(2)  The Court or registrar may also direct that the notice be published by email or facsimile, on the internet or by any other electronic means.

rule 52.9: Am 21.9.2001.

10 Computation of distance

Distance, for the purposes of section 5 (1) of the Act, means distance computed according to the nearest route ordinarily used in travelling.

11 Application of Divisions 2 to 7 of Part 3 of Act

(1)  Sections 47, 63, 64, 65, 66, 67, 69A, 70 and 81 of the Act, and Part 26 rules 5A, 5B, 6, and 7 apply, so far as they can apply, to any proceedings under section 133 or 134 of the Act as though the proceedings were an action, the applicant in the proceedings were the plaintiff in that action and the respondent in the proceedings were the defendant in that action.

(2)    (Repealed)

rule 52.11: Am 14.6.1985.

12 Temporary injunctions

The proclaimed places prescribed for the purposes of section 140 (5) and (6) of the Act are Campbelltown, Gosford, Liverpool, Penrith.

rule 52.12: Am 22.4.1983.

13 Striking out ancillary proceedings

(1)  The Court may, if it thinks fit, strike out any proceedings ancillary to an action at any time on terms, and a registrar may, if he thinks fit, strike out any proceedings before him ancillary to an action at any time on terms, and without affecting the generality of the foregoing provisions of this subrule, the Court or registrar may so strike out any proceedings if:

(a)  no party appears, or

(b)  a respondent does, but the applicant does not, appear.

(2)  Where proceedings are struck out under subrule (1), the Court (or, where the proceedings are struck out by a registrar, the Court or the registrar) may, on the application of any party, order that the proceedings be restored on terms, and without affecting the generality of the foregoing provisions of this subrule, the proceedings may be so restored upon such terms and conditions as to costs, the staying of the proceedings or the action until payment of costs, and the priority of the hearing of the proceedings as the Court or registrar, as the case may require, thinks fit.

(3)  A reference in this rule to proceedings that are ancillary to an action is a reference to proceedings that are ancillary to an action that is pending in the Court at the time the ancillary proceedings are brought.

rule 52.13: Am 7.7.2000.

14 Pending proceedings

(1)  Subject to section 186 (1) (d) and (e) of the Act, the provisions of sections 1 to 43 inclusive, 47, 51, 63 to 70 inclusive, 77 to 118 inclusive, 125 to 131 inclusive and 149 to 164 inclusive of the Act and Parts 1, 2, 3, 6, 7, 8 and 12 to 52 inclusive of the rules shall apply, so far as they can apply, to proceedings pending in a former Court immediately before the commencement of the Act as though the proceedings had been commenced under the Act.

(2)  Without limiting the generality of subrule (1), the provisions of sections 92 and 94 of the Act and Part 32 rule 6 shall apply to the issue of process consequent on a failure to comply with an order for the examination of a judgment debtor, if the order is issued before, and returnable after, the commencement of the Act, as though the order were an examination summons.

rule 52.14: Am 27.3.1975; 24.10.1975; 14.6.1985.

15 (Repealed)

rule 52.15: Ins 18.11.1977. Rep 6.10.1995.

16 Failure to comply with subpoena

(1)  A warrant for the arrest and keeping in custody of a person pursuant to section 65 of the Act shall be addressed to the Sheriff or bailiff or such person as the Court may appoint and shall be in the prescribed form issued under the hand of the Judge who directed the arrest and keeping in custody.

(2)  Where a person is brought before a Registrar in accordance with a warrant issued in accordance with subrule (1) hereof the Registrar may direct that he be brought before the Court forthwith unless the earlier release is ordered by the Court or by the Supreme Court or he may require an undertaking in the prescribed form to comply with the requirement of the subpoena referred to in the warrant at such time as may be directed and upon such undertaking being given the person may forthwith be discharged out of custody.

(3)  Where the requirement referred to in such warrant is for the production of a document or thing the Registrar may accept such document or thing when produced to him as satisfaction of the undertaking referred to in subrule (2) hereof whereupon the person shall be discharged out of custody forthwith.

rule 52.16: Ins 13.6.1980. Am 19.8.1988.

17 (Repealed)

rule 52.17: Ins 13.6.1980. Rep 14.6.1985.

Part 53 Criminal procedure rules

pt 53: Ins 25.9.1987.

1 Interpretation

(1)  This Part applies only to proceedings in the criminal jurisdiction of the Court.

(2)  In this Part, registrar means registrar of the Court in its criminal jurisdiction, and, in relation to any proceedings, means the registrar for the proclaimed place at which the proceedings are heard or to be heard.

rule 53.1: Ins 25.9.1987.

2 Record of committal or appeal

(1)  Where an accused person is committed for trial to the District Court sitting at a proclaimed place, the Clerk of the Local Court at which the accused person was committed for trial shall as soon as practicable forward to the registrar for the proclaimed place a record containing the following information relating to the committal:

(a)  the full name of the accused person and any other names recorded in the proceedings in the Local Court as names by which that person is also known,

(b)  the date of birth and last known address of the accused person,

(c)  whether the accused person is in custody or on bail,

(d)  where known to the Clerk, the full name, address and telephone number of any solicitor who acted for the accused person in the proceedings resulting in the committal,

(e)  the full name and rank of the member of the police force responsible for the proceedings resulting in the committal, and his location,

(f)  the short title of the offence for which the accused person was committed, and

(g)  the location of the transcription centre to which the tapes of the proceedings resulting in the committal were sent for transcription.

(2)  Where an appellant lodges under section 126 (1) of the Justices Act 1902 a notice of appeal, or an application for leave to appeal, which is to be heard in the District Court sitting at a proclaimed place, the Clerk of the Local Court at which was made the conviction or order, or was imposed the sentence, appealed against shall as soon as practicable forward to the registrar for the proclaimed place a record containing the following information relating to the appeal:

(a)  the full name of the appellant and any other names recorded in the proceedings in the Local Court as names by which the appellant is also known,

(b)  the date of birth and last known address of the appellant,

(c)  whether the appellant is in custody or on bail,

(d)  where known to the Clerk, the full name, address and telephone number of any solicitor who acted for the appellant in the proceedings resulting in the conviction or, order or sentence,

(e)  where the informant in the proceedings resulting in the conviction or order was:

(i)  a member of the police force—the full name and rank of the member of the police force responsible for those proceedings and his location, or

(ii)  not a member of the police force—the full name and address of the informant, and, where he laid the information as the holder of an office, the title of that office,

(f)  the short title of the offence of which the appellant was convicted, and

(g)  the location of the transcription centre to which the tapes of the proceedings resulting in the conviction or, order or sentence were sent for transcription.

rule 53.2: Ins 25.9.1987. Am 11.6.1999.

2A Appeals under section 133F of the Justices Act 1902

(1)  In this rule:

appeal means appeal brought under section 133F of the Justices Act 1902.

respondent in respect of an appeal means the person on whom the sentence appealed against was imposed.

(2)  An appeal shall be lodged by giving notice of the appeal in the approved form to the Clerk of the Local Court at the Downing Centre, Sydney.

(3), (4)    (Repealed)

(5)  The Clerk of the Local Court at which was imposed the sentence appealed against shall, as soon as practicable after receiving notice of the appeal, forward to the registrar for the proclaimed place nearest to that Local Court a record containing the following information relating to the appeal:

(a)  the full name of the respondent and any other names recorded in the proceedings in the Local Court as names by which the respondent is also known,

(b)  the date of birth and last known address of the respondent,

(c)  whether the respondent is in custody or on bail,

(d)  where known to the Clerk, the full name, address and telephone number of any solicitor who acted for the respondent in the proceedings resulting in the sentence,

(e)  where the informant in the proceedings resulting in the sentence was:

(i)  a member of the police force—the full name and rank of the member of the police force responsible for those proceedings and his location, or

(ii)  not a member of the police force—the full name and address of the informant, and, where he laid the information as the holder of an office, the title of that office,

(f)  the short title of the offence in respect of which the respondent was sentenced, and

(g)  the location of the transcription centre to which the tapes of the proceedings resulting in the sentence were sent for transcription.

rules 53.2A, 53.2B: Ins 23.3.1989. Am 28.3.1991; 11.6.1999.

2B Notification of lodging of appeal

(1)  The Clerk of the Local Court who receives notice of an appeal, or an application for leave to appeal, lodged under section 126 (1) of the Justices Act 1902 shall immediately thereafter send notification of the lodging of the appeal or application to the Director of Public Prosecutions and the registrar for the proclaimed place at which the appeal or application is to be heard.

(2)  The Clerk of the Local Court at the Downing Centre, Sydney shall, immediately after notice of an appeal under section 133F of the Justices Act 1902 is given to him, send notification of the lodging of the appeal to the registrar for the proclaimed place at which the appeal is to be heard.

rules 53.2A, 53.2B: Ins 23.3.1989. Am 28.3.1991; 11.6.1999.

2C Clerk of Local Court to order transcript

Where, consequent on any proceedings in a Local Court:

(a)  a person is committed for trial to the District Court,

(b)  an appellant lodges under section 126 (1) of the Justices Act 1902 a notice of appeal or an application for leave to appeal, or

(c)  the Director of Public Prosecutions lodges an appeal under section 133F of that Act,

the Clerk of the Local Court shall as soon as practicable request preparation of a transcript of the proceedings.

rule 53.2C: Ins 23.3.1989. Am 11.6.1999.

3 Service of documents

(1)  In this rule:

copy means a true copy of a document (including a notice of listing) to be served.

party means the person to be served with a document.

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

(2)  Except where otherwise provided by or under any Act or these rules, service may be effected:

(a)  on an accused person, appellant, or respondent to an appeal under section 131AB of the Justices Act 1902—by a member of the police force or a Sheriff’s Officer, or

(b)  on any other person, by any person over the age of 16 years.

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

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

(5)  A copy may be delivered to a person by handing it to him or by leaving it in his presence and informing him of its nature.

(6)  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.

(7)  It shall not be necessary to the regular service of any document that the original thereof be produced to any person.

(8)  Where a solicitor acts for a party, service on the party may be effected by:

(a)  delivering a copy to the solicitor,

(b)  leaving a copy, addressed to the solicitor, at his office,

(c)  sending a copy by post addressed to the solicitor at his office, or

(d)  where the solicitor has an exchange box in a document exchange, in the State, of Australian Document Exchange Pty Limited—leaving a copy, addressed to the solicitor, in that exchange box or at another exchange box for transmission to that exchange box.

(9)  Service on a party who is in custody at an institution may be effected by delivery of a copy at the institution to the officer in charge thereof.

(10)  Service:

(a)    (Repealed)

(b)  by leaving a copy at an exchange box shall be deemed to be effected on a day 2 days after the copy is so left.

rule 53.3: Ins 25.9.1987. Am 23.3.1989; 6.10.1995.

4 Party in custody

Where for the purposes of any proceedings:

(a)  a document is handed, or information or a request is conveyed, to the officer in charge of an institution for delivery to a party who is in custody at that institution, or

(b)  a party who is in custody at an institution hands a document, or conveys information or a request, to the officer in charge of that institution for delivery to the registrar,

the officer shall ensure that the document, information or request is so delivered as soon as practicable.

rule 53.4: Ins 25.9.1987.

5 Representation

(1)  A legal practitioner whose authority to act for a party in any proceedings has not been terminated by the party shall not, without the leave of the Court, cease to act for the party unless he has given reasonable notice of his intention to so cease to act to all parties to the proceedings, the registrar and the Criminal Listing Director.

(2)  An application for the leave of the Court as mentioned in subrule (1) shall be made on notice to all parties to the proceedings, the registrar and the Criminal Listing Director of the day and the place where, and the grounds on which, the leave is to be sought.

(3)  Non-payment of professional costs or counsel’s fees shall not of itself constitute adequate grounds on which the Court may grant leave as mentioned in subrule (1).

(4)  A statement by a legal practitioner that he desires for ethical reasons to cease to act shall, without any explanation being required by the Court, constitute adequate grounds for the granting of leave as mentioned in subrule (1), and the fact that such a statement has been made by the legal practitioner shall be recorded on the Court file.

(5)  A solicitor or, where a barrister acts uninstructed by any solicitor, a barrister who acts for a party in any proceedings and has reason at any time to believe that he has lost contact with the party shall as soon as practicable, in writing, so inform every other party, the registrar and the Criminal Listing Director.

(6)  Without limiting the generality of subrule (5), a solicitor or, where a barrister acts uninstructed by any solicitor, a barrister who acts for a party in any proceedings shall, not less than 1 month nor more than 2 months before the date fixed for the hearing of the proceedings, ascertain whether he remains in contact with the party.

(7)  The provisions of this rule apply in addition to, and not in derogation from, the provisions of clause 6 of the Criminal Procedure Regulation 1987.

rule 53.5: Ins 25.9.1987. Am 4.5.1990; 1.3.1996.

6 Listing

(1)  At the listing of any proceedings the Court may hear the proceedings or may give directions for the proper, speedy and convenient hearing of the proceedings as it may determine, and may adjourn the listing of the proceedings to another date.

(2)  In adjourning the listing of any proceedings to another date the Court shall so far as practicable liaise with the Criminal Listing Director.

rule 53.6: Ins 25.9.1987.

7 Venue

(1)  This rule applies subject to any order made by the Supreme Court under Section 577 of the Crimes Act 1900, or by the Attorney General, in respect of the venue of any proceedings.

(2)  Subject to this rule, the venue for the hearing of any proceedings shall be:

(a)  in the case of a person committed for trial or sentence to the Court sitting at a proclaimed place—that proclaimed place, or

(b)  in the case of an appeal under section 120, or an application for leave to appeal under section 123 or 124, of the Justices Act 1902, the proclaimed place nearest to the Local Court at which was made the conviction or order or was imposed the sentence, appealed, or sought to be appealed, against, or

(c)  in the case of an appeal under section 133F of the Justices Act 1902—the nearest proclaimed place to the Local Court at which was imposed the sentence appealed against.

(3)  Whether or not the hearing of any proceedings has commenced, the Court may, on the application of a party or of its own motion, on terms order that the venue of the proceedings be changed to another proclaimed place.

(4)  Notwithstanding anything in subrule (2), and without limiting subrule (3), the Court may, on the application of a party or of its own motion, direct that any proceedings for hearing at a specified proclaimed place comprised within a District are to be heard at another proclaimed place that is comprised within the same District.

(5)  The powers of the Court under subrule (4) may, in respect of a District, be exercised by the Court, or by the registrar in the criminal jurisdiction for that District.

rule 53.7: Ins 25.9.1987. Am 23.3.1989; 15.12.1995; 11.6.1999.

8 Subpoenas

(1)  In this rule, person named means, in relation to a subpoena, the person to whom the subpoena is addressed.

(2)  On request by any party, any registrar shall issue a subpoena to give evidence or a subpoena for production or a subpoena both to give evidence and for production.

(3)  Subrule (2) does not prevent the issue of a subpoena to give evidence and a subpoena for production to the same person in the same proceedings.

(4)  A party may require a subpoena for production of documents or things to be returnable on:

(a)  any day on which the proceedings are listed before the Court, or any day not more than 21 days before any such day, or

(b)  with the leave of the Court or registrar, any other day.

(5)  Unless the Court otherwise orders, a subpoena issued at the request of a party who is not the prosecuting authority in the proceedings shall not require the person named to attend or produce any document or thing on any day on which his attendance is required unless an amount sufficient to meet the reasonable expenses of the person named of complying with the subpoena in relation to that day is paid or tendered to him at the time of service of the subpoena or not later than a reasonable time before that day.

(6)  Where the person named in a subpoena for production of any document or thing, being a subpoena requiring attendance before the Court at a proclaimed place, is not a party in the proceedings, the subpoena shall, unless the Court otherwise orders, permit the person to produce the document or thing to the registrar at the proclaimed place not later than the day before the first day on which his attendance is required, instead of attending and producing the document or thing as required by the subpoena.

(7)  Where a document or thing is produced to the registrar pursuant to subrule (6), the registrar shall:

(a)  give a receipt to the person producing the document or thing, and

(b)  produce the document or thing as the nature of the case requires or as the Court may direct.

(8)  Where a document or thing is produced to the registrar pursuant to subrule (6) 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 him.

(9)  Where a document or thing is produced to the registrar pursuant to subrule (6) in compliance with a subpoena which is returnable under subrule (4) on a day other than a day on which the proceedings are heard, the registrar may, if he 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 him.

(10)  Subrules (8) and (9) 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.

(11)  Subrules (6) and (10) do not apply to so much of a subpoena as requires the person named to attend to testify in any proceedings.

(12)  A subpoena shall be served within a reasonable time.

(13)  The Court may, on application by the person named in a subpoena, set aside the subpoena wholly or in part.

(14)  Notice of an application under subrule (13) shall be filed and served on the party on whose request the subpoena was issued.

(15)  A party or his solicitor or barrister may:

(a)  inspect documents or things 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.

(16)  Where the registrar is not notified by a party, the person to whom the subpoena was addressed, or a person claiming privilege in respect of the document, that any such party or person objects to the making of an order under subrule (15), the function of the Court to make that order may, unless the Court otherwise orders, be exercised by the registrar.

rule 53.8: Ins 25.9.1987. Am 8.12.1995.

9 Return of exhibits

(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 60 days after sentence is passed or deferred or a final order is made, the Court makes no order for the return or retention of the exhibits, and no notice is given to the registrar of any appeal in the proceedings, 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 his keeping for a period only of 14 days after the first day on which the exhibits may be so returned.

rule 53.9: Ins 25.9.1987.

10 Pre-trial applications

(1)  Any application to the Court in relation to any proceedings which may practicably be made before the day appointed for the hearing of the proceedings shall be made before that day.

(2)  An application may be made, and the Court may make orders with regard to the application, before the day appointed for the hearing, where the application is:

(a)  for adjournment,

(ai)  to seek or to give any admission or consent,

(b)  to quash or stay an indictment,

(c)  to demur to an indictment,

(d)  for separate trials,

(e)  for severance of counts,

(f)  for change of venue,

(g)  to set aside a subpoena,

(gi)  for leave to withdraw an appeal under section 133O of the Justices Act 1902,

(h)  for directions generally,

(i)  for an order under the Bail Act 1978, or

(j)  for an order under rule 11 (1).

(3)  Subject to subrule (4), an application referred to in subrule (1) shall be made by filing notice of motion supported, unless the Court otherwise orders, by an affidavit or affidavits as to the facts and grounds upon which the application is made.

(4)  A party may make an application referred to in subrule (1) without previously filing or serving notice of the motion:

(a)  where the preparation of the notice, or the filing or service of the notice (as the case may be), would cause undue delay or other mischief to the applicant,

(b)  where no date has been fixed for the hearing of the proceedings, or of any proceedings ancillary to the proceedings, and all parties to the proceedings consent to the order applied for, or

(c)  where the Court gives leave to the party so to do.

(5)  Notice of a motion shall:

(a)  state the date and time when, and the place where, the motion is to be made, that date, time and place having been obtained by the applicant from the registrar,

(b)  where the Court has made an order under subrule (6), bear a note of the order made,

(c)  state concisely the nature of the order sought, and

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

(6)  Unless the Court otherwise orders, a party filing a notice of motion shall serve the notice, and every affidavit in support of the motion, on each other party to the proceedings not less than 3 days before the date fixed for the motion.

(7)  An application referred to in subrule (1) in relation to any proceedings which are expected to be heard at a place where the Court does not usually sit on every Court day may be made in Sydney.

rule 53.10: Ins 25.9.1987. Am 24.12.1987; 22.4.1988; 23.3.1989; 11.6.1999.

10A Application to reopen proceedings

(1)  An application of a party as referred to in section 43 (2) of the Crimes (Sentencing Procedure) Act 1999 shall, unless the Court otherwise orders, be made on notice of motion.

(2)  Rule 10 (5), (6) and (7) shall apply to a notice of motion referred to in subrule (1) as if the notice were filed under rule 10.

rule 53.10A: Ins 23.3.1989. Am 28.3.2002.

10B Elections under Criminal Procedure Act

(1)  An election referred to in section 32 (1) or (5) of the Criminal Procedure Act 1986 in respect of any proceedings:

(a)  shall be in writing in or to the effect of the approved Form,

(b)  in the case of an election referred to in section 32 (1) shall be endorsed with the consent of the Director of Public Prosecutions given for the purposes of section 32 (3) of that Act, and

(c)  shall be lodged with the registrar before the day appointed for the hearing of the proceedings.

(2)  Consent of the Director of Public Prosecutions may be endorsed under subrule (1) (b) by the Director or a person authorised by the Director to give such consents on the Director’s behalf.

rule 53.10B: Ins 28.3.1991. Am 6.10.1995.

10C Notice under section 67 or 99 of the Evidence Act 1995

Part 28 rule 9A applies in respect of proceedings in the criminal jurisdiction of the Court.

rule 53.10C: Ins 6.10.1995.

10D Manner of presenting indictments

(1)  An indictment may be presented by filing a copy of the indictment with the registrar.

(2)  If an indictment is filed with the registrar, a copy of the indictment must be served on each accused person or the accused person’s legal representative within 14 days after the filing of the indictment.

(3)  Without limiting the generality of rule 3, an indictment may be filed or served by letter or facsimile.

(4)  In this rule, accused person’s legal representative means:

(a)  a solicitor who acts for the accused, or

(b)  if a barrister acts for the accused person uninstructed by a solicitor, the barrister.

rules 53.10D–53.10F: Ins 21.9.2001.

10E Time for presenting indictments

(1)  For the purposes of section 54 (3) (a) of the Criminal Procedure Act 1986, the time within which an indictment is to be presented at a relevant proclaimed place is extended to 8 weeks after the committal of the accused person for trial.

(2)  In this rule, relevant proclaimed place means a proclaimed place other than Sydney, Sydney West, Newcastle, Wollongong, Gosford, Lismore, Wagga Wagga, Dubbo or Bathurst.

rules 53.10D–53.10F: Ins 21.9.2001.

10F Applications for orders under section 54 (3) (b) of Criminal Procedure Act 1986

An application for an order under section 54 (3) (b) of the Criminal Procedure Act 1986 to extend the time for filing an indictment:

(a)  must be made before the time for filing the indictment has expired, and

(b)  may be made in Court or by written application to the Court.

rules 53.10D–53.10F: Ins 21.9.2001.

11 Evidence

(1)  The Court may order that an enquiry by way of a voir dire into the admissibility of any evidence or as to the capacity of a witness to give evidence be had, before the trial Judge, at any stage of any proceedings whether before or after the jury is empanelled.

(2)  Before commencing any enquiry ordered under subrule (1) the Court shall require the accused person, if he has not already pleaded to the charge against him, to so plead.

(3)  Unless the Court otherwise orders, a party shall make any statement he intends to make, and give any evidence he intends to give, before he adduces any other evidence.

(4)  The Court may in any proceedings order, on terms, that evidence or submissions may be received by telephone, video link or other form of communication.

rule 53.11: Ins 25.9.1987. Am 8.12.1995.

11A View of real property

The Court has the same powers as the Supreme Court has to make an order for a view of real property for the purposes of any proceedings.

rule 53.11A: Ins 27.5.1994.

12 Recording of orders etc

Any judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings shall be entered on the indictment in the proceedings, and that entry shall, when signed by the Judge, be the record of the judgement, order, sentence, direction or recommendation.

rule 53.12: Ins 25.9.1987.

12A Notice of result of appeal

As soon as practicable after the Court gives judgment in respect of, or makes an order or gives any leave which has the effect of disposing of, an appeal under section 120 or section 133F of the Justices Act 1902, the registrar shall send notice of the judgment, order or leave to the Magistrate who recorded the conviction, made the order, or imposed the sentence, appealed against.

rule 53.12A: Ins 23.3.1989. Am 11.6.1999.

13 Recognizances

(1)  The registrar shall:

(a)  maintain a record of every recognizance entered into by order of the Court, and

(b)  where money is paid to the registrar as required by a condition of a recognizance, maintain a record of the payment and disburse the money to the person entitled to it.

(2)  Where a recognizance entered into by order of the Court is conditioned to require a party to do or refrain from doing any thing or to suffer the doing of any thing by any person, and it is alleged that the party is in breach of that condition, the person so alleging shall without delay so advise the registrar.

(3)  Unless the Court otherwise orders, the registrar shall, in respect of a recognizance:

(a)  on receiving any advice given under subrule (2), or

(b)  on becoming aware of a breach of a condition requiring payment of money to the registrar,

without delay submit a report on the advice or breach to the Judge who required the recognizance to be entered into, or, if that Judge be not available, to the Chief Judge or another Judge.

(4)  After considering any report submitted to him under subrule (3), a Judge may if he thinks fit direct that the party the subject of the report be brought before him or another Judge or that no action be taken in respect of the report, or may make such other directions as to him seem appropriate.

(5)  Where a Judge directs under subrule (4) that a party be brought before a Judge, the registrar shall without delay give notice to the party to that effect, and shall include in that notice the place and time at which the party is so required to appear.

(6)  At a place and time notified under subrule (5), or at any other place and time to which the matter is adjourned, a Judge may deal according to law with a party who is in breach of a condition of a recognizance whether or not the Judge is the Judge who directed that the party be brought before a Judge.

(7)  The certificate of the registrar as to the amount of any money paid to him as required by a condition of a recognizance, the date of any such payment, and any amount remaining due to be paid under the condition, shall be evidence of the facts stated in the certificate.

rule 53.13: Ins 25.9.1987.

14 Interpreters

(1)  This rule applies to an interpreter whose services are provided by arrangement with the registrar for the assistance of the Court in the translation of evidence given in any proceedings.

(2)  This rule does not apply to an interpreter who is engaged to assist a party.

(3)  An interpreter to whom this rule applies shall, when attending at the Court for the purpose of the proceedings, report to the Sheriff’s Officer in charge at the Court or to the Associate to the presiding Judge.

(4)  An interpreter to whom this rule applies shall not, without the direction or permission of the presiding Judge, make his services available to, or communicate with, a party to the proceedings or the representative of such a party.

rule 53.14: Ins 25.9.1987. Am 11.6.1999.

15 Functions of assistant registrars

(1)  An assistant registrar at a place that is a proclaimed place shall have the functions of the registrar for that proclaimed place other than the function exercisable under rule 8 (16).

(2)  An assistant registrar at a place that is not a proclaimed place shall have the function only of issuing subpoenas.

rule 53.15: Ins 25.9.1987. Am 8.12.1995.

Schedule 1 Code of conduct for expert witnesses

(Part 28, rule 9C and Part 28A, 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 28A as the 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 the 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 7.7.2000.

Schedule

Scale of costs and allowances to witnesses

Fees to solicitors

Notes—

Where a fee is allowed for drawing a document, an additional fee shall not be allowed for engrossing the document.

The costs of any unnecessary, irrelevant or prolix matter in any document shall be disallowed.

		$ c
Preparing process
1.	Drawing statement of claim, notice of cross-claim, or third or subsequent party notice, including necessary copies	15.00
	or per folio	1.00
2.	Drawing notice of appeal, or notice of application, to commence proceedings, including necessary copies	15.00
	or per folio	1.00
3.	Drawing and attending to file and obtain:
	(a)  a subpoena to give evidence, including copy for service	6.00
	and for each additional witness	1.00
	(b)  a subpoena for production or for production and to give evidence, including copy for service	6.00
	and per folio, for each folio excluding printed matter beyond three	1.00
4.	Drawing notice of application to the Court or registrar, other than to commence proceedings, including necessary copies	5.00
	or per folio	1.00
5.	Drawing any necessary summons, including necessary copies	4.00
6.	Drawing notice of grounds of defence, including necessary copies	7.00
	or per folio	1.00
Instructions
7.	To commence or defend proceedings, including interpleader proceedings	11.50
8.	For cross-claim or for third or subsequent party notice	11.50
9.	For any necessary affidavit which, in the opinion of the taxing officer, cannot be prepared from information already known to the solicitor	6.00
10.	For brief to counsel to advise on evidence	10.50
Preparing for hearing
11.	For work necessarily or properly done in preparing for a trial or hearing and not otherwise provided for, including:
	(a)  taking instructions for examination of any party or witness;
	(b)  considering the facts and law;
	(c)  attending on and corresponding with client;
	(d)  interviewing and corresponding with witnesses and potential witnesses and taking proofs of their evidence;
	(e)  arranging to obtain reports or advice from experts and maps, plans, photographs and models;
	(f)  making search in any public office and elsewhere for relevant documents;
	(g)  inspecting any property or place material to the proceedings;
	(h)  perusing relevant documents; and
	(i)  the general care and conduct of the proceedings:
	(i)  where the trial or hearing is on a garnishee summons, taking of evidence under Part 25, or simple application to the Court or registrar (including application to the Court for leave to pay by instalments)	10.50
	(ii)  otherwise, discretionary
	Note— 1. This item should begin with a short statement of: (a) the main issues; (b) any particular difficulties of fact or law; (c) any special skill, knowledge or responsibility required. 2. This should be followed not by a chronological narrative, but by an analysis of the work done, separated under main headings appropriate to the subject matter. Under a heading of, for example, “Attendances on and correspondence with client”, there should be included a statement of the number of attendances on the client, the total time occupied and the number of letters sent, but not the details of every attendance or of every letter. 3. A separate allowance will not be made under the heading of “Skill, care and responsibility” or the like, but the taxing officer may be asked to mark the amount allowed in respect of each matter set out under this item.
Drawing
12.	Any document necessarily or properly filed or delivered to another party or to counsel or the Court and not otherwise provided for, per folio	1.00
Copies
13.	Of any document, where no other provision is made:
	(a)  typed or written, per folio	0.35
	(b)  printed or carbon, per folio	0.12
	(c)  prepared by photographic or other similar process, per copy	0.60
	Note— A fee shall not be allowed for any copy unless the taxing officer is satisfied that the copy was necessary and that no copy previously prepared was available.
Service
	Note— A fee shall not be allowed under item 14 or 15 unless the taxing officer is satisfied that the bailiff could not have served the process within a reasonable time, or that service by the solicitor, rather than by the bailiff, has materially decreased the costs of service.
14.	Service or attempted service by a solicitor or his employee, where service by post is not authorised	3.50
15.	For each mile beyond two miles necessarily travelled in attempting to serve any process, to be allowed once only in respect of one address, the miles allowed to be reckoned one way only and not to exceed ten	0.30
	Note— Where in the same proceedings any two or more process have, or could have, been served together, a fee may be allowed under item 15 in respect of only one of the process.
16.	Service of any process which is authorised to be served by post	1.75
Perusals
	Note— A fee shall not be allowed for re-perusing any document if a fee has previously been allowed for perusing the document. A fee may be allowed for perusing a party’s own documents but only if in the opinion of the taxing officer it is reasonable to do so.
17.	Of originating process, notice of grounds of defence, notice of cross-claim, third or subsequent party notice, notice to produce or admit or summons to claimant or statement of claimant’s claim in interpleader proceedings	3.50
	or per folio, exclusive of printed matter	0.35
*18.	Of any document where no other provision is made, per folio	0.35
	or per hour	13.50
Attendances
19.	To file any document not otherwise provided for	3.00
20.	To obtain or give any necessary consent or admission	3.50
*21.	To produce documents for inspection	6.00
	or, if personal supervision necessary, per hour	13.50
*22.	To inspect documents	6.00
	or per hour	13.50
23.	On deponent to swear an affidavit or for a solicitor or his clerk to swear an affidavit	3.50
24.	To mark annexure	0.20
25.	On counsel with any brief	5.50
26.	On counsel to appoint conference	1.75
*27.	On conference with counsel, per hour	13.50
*28.	In Court instructing counsel on any hearing per hour	13.50
29.	For any short attendance in Court without counsel	7.00
*30.	For any other attendance in Court on any hearing without counsel or for any attendance by a solicitor which involves a high degree of skill and responsibility, per hour	20.25
	Note— 1. Under Item 28, an allowance of $13.50, and under Item 30 an allowance of $20.25 shall not be exceeded where the proceedings are undefended or there is no real contest, or if the solicitor, or his employee or partner who is a solicitor, does not attend in person. 2. Subject to Note 1, where the hearing in any proceedings is not reached, or is adjourned upon payment of the costs of the day, there may be allowed in respect of any time lost thereby in awaiting the commencement of the hearing the amount that would have been allowed under Item 28, 29 or 30 if the time had been spent in the hearing of the proceedings.
*31.	To take, with or without counsel, a reserved judgment	10.00
	or per hour	13.50
*32.	On taxation of costs, per hour	13.50
*33.	Any lengthy attendance not otherwise provided for, per hour	13.50
34.	On call-over, or any other attendance, not being a lengthy attendance, not otherwise provided for	3.00
35.	Any telephone attendance not otherwise provided for	1.75
	or, if lengthy, such amount as the taxing officer thinks fit, not exceeding	3.00
Travelling and waiting
*36.	For each day of not less than six hours employed in travelling or in waiting, for which no other provision is made	75.00
	or, where less than six hours is so employed, per hour	13.50
	or for an unqualified clerk, discretionary.
Letters
37.	Form letters	1.75
38.	Letters other than form letters	2.75
	or if special or necessarily lengthy, such amount as the taxing officer thinks fit.
Costs to be entered on statement of claim
*39.	To be entered on a statement of claim signed by a solicitor in respect of solicitor’s costs for the preparation and issue of the statement of claim	40.00
Judgment by default and order for judgment
*40.	Costs of entering judgment by default upon a statement of liquidated claim (or of obtaining an order for judgment on an ordinary statement of claim without proceeding to judgment) including all instructions, preparation, drawing and copying of all documents, all letters, affidavits, orders and attendances	75.00
	In addition, all Court fees and amount for service paid to bailiff or allowed under Item 14, 15 or 50.
Judgment in undefended actions
*41.	Unless the Court otherwise orders, costs of obtaining judgment in an undefended action in which an order for judgment has been made, including all instructions, preparation, drawing and copying of all documents, all letters, affidavits, orders, judgments and attendances	125.00
	In addition, all Court fees and amount for service paid to bailiff or allowed under Item 14, 15 or 50, and any amount properly paid to counsel.
	* See Notes regarding subject matter exceeding $20,000 in actions commenced on or after 1 April 1983 and actions commenced before 31 May 1974.
Examination summonses
42.	Costs of an examination summons where allowable, including all instructions, preparation drawing and copying of all documents, all letters, affidavits, summons and attendances	30.00
	In addition, where warrant issued for the apprehension of the judgment debtor	12.00
	In addition, any amount for service paid to bailiff or allowed under item 14, 15 or 50, and, where warrant issued, amount paid to bailiff for execution or attempted execution of warrant.
Writs
43.	Writ of execution, including affidavit for issue and attending to issue, but not including court or bailiff’s fees or any application for leave to issue	10.50
44.	Writ against the person, including all instructions, preparation drawing and copying of all documents, all summonses, letters, affidavits, orders and attendances, in Court and otherwise, but not including court or bailiff’s fees	50.00
General
45.	Where in any case not otherwise provided for the taxing officer is of opinion that an allowance should be made, such amount as is just and reasonable.
Disbursements
46.	For procuring certificates, office copies or other documentary evidence which the taxing officer thinks necessary and proper, such amount as is just and reasonable, not exceeding the amount actually paid.
47.	For the necessary expenses of postage, telephone and telegrams, such amount as is just and reasonable, not exceeding the amount actually paid.
48.	Court fees, bailiff’s fees, and other fees and payments, which, in the opinion of the taxing officer, have been properly paid, and which are not otherwise provided for.
49.	For preparing plans, charts or models for use at the trial, where the Court has not disallowed the costs of the same, such amount as is just and reasonable, not exceeding the amount actually paid.
50.	For service of process by a person other than the bailiff, where not otherwise provided for, and where the taxing officer is satisfied that the bailiff could not have served the process within a reasonable time, or that service by the person, rather than by the bailiff, has materially decreased the costs of service, such amount as is just and reasonable, not exceeding the amount actually paid and not exceeding the amount which would have been allowed if the like service had been performed by the bailiff.
51.	Where the solicitor does not reside or carry on business within two miles of the place where the hearing, or inspection of documents, is to take place, the amount reasonably paid for the solicitor’s locomotion to attend the hearing or inspection, not exceeding, unless the Court otherwise orders, 60c per mile travelled, to be reckoned one way only.
52.	Where in the opinion of the taxing officer the solicitor cannot reasonably travel to and from the place of hearing or inspection the same day, in addition to any allowance made under item 51, the amount reasonably paid for the solicitor’s accommodation, not exceeding $18.50 for each night necessarily spent away from the solicitor’s residence or place of business.
	Note— Where the solicitor is engaged in more than one proceedings on the same day there shall be allowed only such proportion of the amounts otherwise allowable under items 51 and 52 as the taxing officer, having regard to all the circumstances, thinks fit.

* Note—

Where subject-matter exceeds $20,000 in actions commenced on or after 1 April 1983 (Pt 39 r 10 (5D), (6C)).

Special Scale (Solicitors)

Where by the rules or by any order costs are to be taxed on the Special Scale, this Schedule is amended by omitting Items 18, 21, 22, 27, 28, 30, 31, 32, 33, 36 and 39 and by inserting instead the following Items—

		$ c
18.	Of any document where no other provision is made, per folio	0.50
	or per hour	15.00
21.	To produce documents for inspection	6.00
	or, if personal supervision necessary, per hour	15.00
22.	To inspect documents	7.50
	or per hour	15.00
27.	On conference with counsel per hour	15.00
28.	In Court instructing counsel on any hearing per hour	15.00
30.	For any other attendance in Court on any hearing without counsel or for any attendance by a solicitor which involves a high degree of skill and responsibility per hour	22.00
	Note— 1. Under Item 28, an allowance of $15.00, and under Item 30 an allowance of $22.00 shall not be exceeded where the proceedings are undefended or there is no real contest, or if the solicitor, or his employee or partner who is a solicitor, does not attend in person. 2. Subject to Note 1, where the hearing in any proceedings is not reached, or is adjourned upon payment of the costs of the day, there may be allowed in respect of any time lost thereby in awaiting the commencement of the hearing the amount that would have been allowed under Item 28, 29 or 30 if the time had been spent in the hearing of the proceedings.
31.	To take, with or without counsel, a reserved judgment	10.00
	or per hour	15.00
32.	On taxation of costs, per hour	15.00
33.	Any lengthy attendance not otherwise provided for, per hour	15.00
Travelling and waiting
36.	For each day of not less than six hours employed in travelling or in waiting, for which no other provision is made	90.00
	or where less than six hours is so employed, per hour	15.00
	or, for an unqualified clerk, discretionary.
Costs to be entered on statement of claim
39.	To be entered on a statement of claim signed by a solicitor in respect of solicitor’s costs for the preparation and issue of the statement of claim	46.15

* Note. Actions commenced before 31 May 1974

In respect of actions commenced (not in respect of work done) before 31 May 1974, items 18, 21, 22, 27, 28, 30, 31, 32, 33, 36, 39, 40 and 41 are as hereunder:

		$ c
18.	Of any document where no other provision is made, per folio	0.35
	or per hour	12.00
21.	To produce documents for inspection	6.00
	or, if personal supervision necessary, per hour	12.00
22.	To inspect documents	6.00
	or per hour	12.00
27.	On conference with counsel per hour	12.00
28.	In Court instructing counsel on any hearing per hour	12.00
30.	For any other attendance in Court on any hearing without counsel or for any attendance by a solicitor which involves a high degree of skill and responsibility per hour	18.00
	Note— 1. Under Item 28, an allowance of $13.50, and under Item 30 an allowance of $20.00 shall not be exceeded where the proceedings are undefended or there is no real contest, or if the solicitor, or his employee or partner who is a solicitor, does not attend in person. 2. Subject to Note 1, where the hearing in any proceedings is not reached, or is adjourned upon payment of the costs of the day, there may be allowed in respect of any time lost thereby in awaiting the commencement of the hearing the amount that would have been allowed under Item 28, 29 or 30 if the time had been spent in the hearing of the proceedings.
31.	To take, with or without counsel, a reserved judgment	10.00
	or per hour	12.00
32.	On taxation of costs, per hour	12.00
33.	Any lengthy attendance not otherwise provided for, per hour	12.00
Travelling and waiting
36.	For each day of not less than six hours employed in travelling or in waiting, for which no other provision is made	75.00
	or where less than six hours is so employed, per hour	12.00
	or, for an unqualified clerk, discretionary.
Judgment by default and order for Judgment
40.	Costs of entering judgment by default upon a statement of liquidated claim (or of obtaining an order for judgment on an ordinary statement of claim without proceeding to judgment) including all instructions, preparation, drawing and copying of all documents, all letters, affidavits, orders and attendances and all Court fees	85.00
	In addition, amount for service paid to bailiff or allowed under Item 14, 15 or 50.
Judgment in undefended actions
41.	Unless the Court otherwise orders, costs of obtaining judgment in an undefended action in which an order for judgment has been made, including all instructions, preparation, drawing and copying of all documents, all letters, affidavits, orders, judgments and attendances and all Court fees	135.00
	In addition, amount for service paid to bailiff or allowed under Item 14, 15 or 50, and any amount properly paid to counsel.

Work done on or after 18 October 1991

Following is a determination of the Legal Fees and Costs Board gazetted on 18 October 1991 in respect of work done on or after 18 October 1991.

The scale is intended to replace that provided by the District Court Rules 1973, in particular, the Schedule—Scale of Costs and Allowances to Witnesses—Fees to Solicitors, items 1 to 52.

Notes—

Where a fee is allowed for drawing a document, an additional fee shall not be allowed for engrossing the document.

The costs of any unnecessary, irrelevant or prolix matter in any document shall be disallowed.

		$ c
Preparing process
1.	Drawing statement of claim, notice of cross-claim, or third or subsequent party notice, including necessary copies	93.00
	or per folio	6.00
2.	Drawing notice of appeal, or notice of application, to commence proceedings, including necessary copies	93.00
	or per folio	6.00
3.	Drawing and attending to file and obtain:
	(a)  a subpoena to give evidence, including copy for service	37.00
	and for each additional witness	6.00
	(b)  a subpoena for production or for production and to give evidence, including copy for service	37.00
	and per folio, for each folio excluding printed matter beyond three	6.00
4.	Drawing notice of application to the Court or registrar, other than to commence proceedings including necessary copies	31.00
	or per folio	6.00
5.	Drawing any necessary summons, including necessary copies	25.00
6.	Drawing notice of grounds of defence, including necessary copies	43.00
	or per folio	6.00
Instructions
7.	To commence or defend proceedings, including interpleader proceedings	71.00
8.	For cross-claim or for third or subsequent party notice	71.00
9.	For any necessary affidavit which, in the opinion of the taxing officer, cannot be prepared from information already known to the solicitor	37.00
10.	For brief to counsel to advise on evidence	65.00
Preparing for hearing
11.	For work necessarily or properly done in preparing for a trial or hearing and not otherwise provided for, including:
	(a)  taking instructions for examination of any party or witness;
	(b)  considering the facts and law;
	(c)  attending on and corresponding with client;
	(d)  interviewing and corresponding with witnesses and potential witnesses and taking proofs of their evidence;
	(e)  arranging to obtain reports or advice from experts and maps, plans, photographs and models;
	(f)  making search in any public office and elsewhere for relevant documents;
	(g)  inspecting any property or place material to the proceedings;
	(h)  perusing relevant documents; and
	(i)  the general care and conduct of the proceedings:
	(i)  where the trial or hearing is on a garnishee summons taking of evidence under Part 25, or simple application to the Court or registrar (including application to the Court for leave to pay by instalments)	65.00
		(ii)  otherwise, discretionary
	Note— 1. This item should begin with a short statement of: (a) the main issues; (b) any particular difficulties of fact or law; (c) any special skill, knowledge or responsibility required. 2. This should be followed not by a chronological narrative, but by an analysis of the work done, separated under main headings appropriate to the subject matter. Under a heading of, for example, “Attendance on and correspondence with client”, there should be included a statement of the number of attendances on the client, the total time occupied and the numbers of letters sent, but not the details of every attendance or of every letter. 3. A separate allowance will not be made under the heading of “Skill care and responsibility” or the like, but the taxing officer may be asked to mark the amount allowed in respect of each matter set out under this item.
Drawing
12.	Any document necessarily or properly filed or delivered to another party or to counsel or the Court and not otherwise provided for, per folio	6.00
Copies
13.	Of any document, where no other provision is made:
	(a)  typed or written, per folio	2.00
	(b)  printed or carbon, per folio	1.00
	(c)  prepared by photographic or other similar process, per copy	4.00
	Note— A fee shall not be allowed for any copy unless the taxing officer is satisfied that the copy was necessary and that no copy previously prepared was available.
Service
	Note— A fee shall not be allowed under item 14 or 15 unless the taxing officer is satisfied that the bailiff could not have served the process within a reasonable time, or that service by the solicitor, rather than by the bailiff, has materially decreased the costs of service.
14.	Service or attempted service by a solicitor or his employee, where service by post is not authorised	22.00
15.	For each kilometre beyond three kilometres necessarily travelled in attempting to serve any process, to be allowed once only in respect of one address, the kilometres allowed to be reckoned one way only and not to exceed sixteen	2.00
	Note— Where in the same proceedings any two or more process have, or could have, been served together, a fee may be allowed under item 15 in respect of only one of the process.
16.	Service of any process which is authorised to be served by post	11.00
Perusals
	Note— A fee shall not be allowed for reperusing any document if a fee has previously been allowed for perusing the document. A fee may be allowed for perusing a party’s own documents but only if in the opinion of the taxing officer it is reasonable to do so.
17.	Of originating process, notice of grounds of defence, notice of cross-claim, third or subsequent party notice, notice to produce or admit or summons to claimant or statement of claimant’s claim in interpleader proceedings	22.00
	or per folio, exclusive of printed matter	2.00
18.	Of any document where no other provision is made, per folio	2.00
	or per hour	84.00
Attendances
19.	To file any document not otherwise provided for	19.00
20.	To obtain or give any necessary consent or admission	22.00
21.	To produce documents for inspection	37.00
	or, if personal supervision necessary, per hour	84.00
22.	To inspect documents	37.00
	or per hour	84.00
23.	On deponent to swear an affidavit or for a solicitor or his clerk to swear an affidavit	22.00
24.	To make annexure	1.00
25.	On counsel with any brief	34.00
26.	On counsel to appoint conference	11.00
27.	On conference with counsel per hour	84.00
28.	In Court instructing counsel on any hearing per hour	84.00
29.	For any short attendance in Court without counsel	43.00
30.	For any other attendance in Court on any hearing without counsel or for any attendance by a solicitor which involves a high degree of skill and responsibility per hour	126.00
	Note— 1. Under item 28, an allowance of $84 and under item 30, an allowance of $124.00 shall not be exceeded where the proceedings are undefended or there is no real contest, or if the solicitor, or his/her employee or partner who is a solicitor, does not attend in person. 2. Subject to Note 1, where the hearing of any proceedings is not reached, or is adjourned upon payment of the costs of the day, there may be allowed in respect of any time lost thereby in awaiting the commencement of the hearing the amount that would have been allowed under item 28, 29 or 30 if that time had been spent in the hearing of the proceedings.
31.	To take, with or without counsel, a reserved judgment	62.00
	or per hour	84.00
32.	On taxation of costs, per hour	84.00
33.	Any lengthy attendance not otherwise provided for, per hour	84.00
34.	On call-over, or any other attendance not being a lengthy attendance, not otherwise provided for	19.00
35.	Any telephone attendance not otherwise provided for	11.00
	or, if lengthy, such amount as the taxing officer thinks fit, not exceeding	19.00
Travelling and waiting
36.	For each day of not less than six hours employed in travelling or in waiting, for which no other provision is made	465.00
	or, where less than six hours is so employed, per hour	84.00
	or, for an unqualified clerk, discretionary
Letters
37.	Form letters	11.00
38.	Letter other than form letters	17.00
	or if special or necessarily lengthy, such amount as the taxing officer thinks fit.
Costs to be entered on statement of claim
39.	To be entered on a statement of claim signed by a Solicitor in respect of solicitor’s costs for the preparation and issue of the statement of claim	248.00
Judgment by default and order for judgment
40.	Costs of entering judgment by default upon a statement of liquidated claim (or of obtaining an order for judgment on an ordinary statement of claim without proceeding to judgment) including all instructions, preparation, drawing and copying of all documents, all letters, affidavits, orders and attendances	465.00
	In addition, all Court fees and amount for service paid to bailiff or allowed under Item 14, 15 or 50.
Judgment in undefended actions
41.	Unless the Court otherwise orders, costs of obtaining judgment in an undefended action in which an order for judgment has been made, including all instructions, preparation, drawing and copying of all documents, all letters, affidavits, orders, judgments and attendances	776.00
	In addition, all Court fees and amount for service paid to bailiff or allowed under Item 14, 15 or 50, and any amount properly paid to counsel.
Examination summonses
42.	Costs of an examination summons where allowable, including all instructions, preparation, drawing and copying of all documents, all letters, affidavits, summonses and attendances	186.00
	In addition, where warrant issued for the apprehension of the judgment debtor	74.00
	In addition, any amount for service paid to bailiff or allowed under Item 14, 15 or 50, and, where warrant issued, amount paid to bailiff for execution or attempted execution of warrant.
Writs
43.	Writ of execution, including affidavit for issue and attending to issue, but not including court or bailiff’s fees or any application for leave to issue	65.00
44.	Writ against the person, including all instructions, preparation drawing and copying of all documents, all summonses, letters, affidavits, orders and attendances, in Court and otherwise, but not including court or bailiff’s fees	310.00
General
45.	Where in any case not otherwise provided for the taxing officer is of opinion that an allowance should be made, such amount as is just and reasonable.
Disbursements
46.	For procuring certificates, office copies or other documentary evidence which the taxing officer thinks necessary and proper, such amount as is just and reasonable, not exceeding the amount actually paid.
47.	For the necessary expenses of postage, telephone and telegrams, such amount as is just and reasonable, not exceeding the amount actually paid.
48.	Court fees, bailiff’s fees, and other fees and payments, which, in the opinion of the taxing officer, have been properly paid, and which are not otherwise provided for.
49.	For preparing plans, charts or models for use at the trial, where the Court has not disallowed the costs of the same, such amount as is just and reasonable, not exceeding the amount actually paid.
50.	For service of process by a person other than the bailiff, where not otherwise provided for, and where the taxing officer is satisfied that the bailiff could not have served the process within a reasonable time, or that service by the person, rather than by bailiff, has materially decreased the costs of service, such amount as is just and reasonable, not exceeding the amount actually paid and not exceeding the amount which would have been allowed if the like service had been performed by the bailiff.
51.	Where the solicitor does not reside or carry on business within 3 kilometres of the place where the hearing, or inspection of documents, is to take place, the amount reasonably paid for the solicitor’s locomotion to attend the hearing or inspection, not exceeding, unless the Court otherwise orders, $2 per kilometre travelled, to be reckoned one way only.
52.	Where in the opinion of the taxing officer the solicitor cannot reasonably travel to and from the place of hearing or inspection the same day, in addition to any allowance made under item 51, the amount reasonably paid for the solicitor’s accommodation, not exceeding $115 for each night necessarily spent away from the solicitor’s residence or place of business.
	Note— Where the solicitor is engaged in more than one proceedings on the same day there shall be allowed only such proportion of the amounts otherwise allowable under items 51 and 52 as the taxing officer, having regard to all the circumstances, thinks fit.

Special Scale (Solicitors)

Where by the rules or by any order costs are to be taxed on the Special Scale, this Schedule is amended by omitting Items 18, 21, 22, 27, 28, 30, 31, 32, 33, 36 and 39 and by inserting instead the following Items:

		$ c
18.	Of any document where no other provision is made per folio	3.00
	or per hour	93.00
21.	To produce documents for inspection	37.00
	or, if personal supervision necessary, per hour	93.00
22.	To inspect documents	47.00
	or per hour	93.00
27.	On conference with Counsel per hour	93.00
28.	In Court instructing Counsel on any hearing per hour	93.00
30.	For any other attendance in Court on any hearing without Counsel or for any attendance by a solicitor which involves a high degree of skill and responsibility per hour	136.00
	Note— 1. Under Item 28, an allowance of $93, and under Item 30 an allowance of $136 shall not be exceeded where the proceedings are undefended or there is no real contest, or if the solicitor, or his employee or partner who is a solicitor, does not attend in person. 2. Subject to Note 1, where the hearing in any proceedings is not reached, or is adjourned upon payment of the costs of the day, there may be allowed in respect of any time lost thereby in awaiting the commencement of the hearing the amount that would have been allowed under Item 28, 29 or 30 if the time had been spent in the hearing of the proceedings.
31.	To take, with or without Counsel, a reserved judgment	62.00
	or per hour	93.00
32.	On taxation of costs, per hour	93.00
33.	Any lengthy attendance not otherwise provided for per hour	93.00
Travelling and waiting
36.	For each day of not less than six hours employed in travelling or in waiting, for which no other provision is made	558.00
	or where less than six hours is so employed, per hour	93.00
	or, for an unqualified clerk, discretionary
Costs to be entered on statement of claim
39.	To be entered on a statement of claim signed by a solicitor in respect of solicitor’s costs for the preparation and issue of the statement of claim	286.00

Work done on or after 13 November 1992

Following is a determination of the Legal Fees and Costs Board gazetted on 30 October 1992 in respect of work done on or after 13 November 1992.

This scale replaces items 1–38 of the Schedule, Fees to Solicitors, District Court Rules 1973.

Fees to solicitors

This scale is the Schedule and the Special Scale for the purposes of the District Court Rules.

		$ c
Drawing
1.	(a)  Court document (being any document filed in court)
	(i)  per page or part thereof	45.00
	Note— this item includes a subpoena for production
	(ii)  using prescribed form or standard document per page	30.00
	(b)  Other, including a bill of costs, per folio	15.00
Typing and Checking
2.	(a)  Court documents [referred to in 1 (a) (i)], per page	30.00
	(b)  Other documents, including a bill of costs, per folio	9.00
Letters (including drafting, typing and checking)
3.	(a)  Short letter (up to one folio in length)	17.00
	(b)  Circular—being identical (save for address details) with any other letter	8.00
	(c)  Any other letter, per folio	17.00
Telephone Calls
4.	(a)  Not requiring skill	14.00
	(b)  Requiring skill or legal knowledge, per quarter hour or part thereof	35.00
Perusal of Documents
5.	(a)  For each page, if 3 folios or less	15.00
	or per folio	5.00
	Except where an allowance for 30 or more folios is claimed in respect of any document or documents, costs allowed for perusal shall be discretionary.
	(b)  Where it is not necessary to peruse but it is necessary to scan a document, per page	3.00
	Except where an allowance for 10 or more pages is claimed in respect of any document or documents, costs allowed for scanning shall be discretionary.
Copying
6.	Being a photographic reproduction, carbon or other copy of a document, including sending or receiving facsimile transmission, per page	1.00
Time Reasonably Spent by a Solicitor
7.	Including travelling, waiting time other than work referred to in items 1–6 inclusive, per quarter hour or part thereof	35.00
Time Reasonably Spent by a Clerk
8.	On work other than work referred to in items 1–6 inclusive, per six minute unit	4.00
Specific Skill, Care and Responsibility
9.	Where any individual item merits any particular skill or attention an additional allowance shall be made in addition to any general allowance under item 10.
Skill, Care and Responsibility
10.	Such sum as may be reasonable, having regard to all the circumstances of the case and in particular to:
	(a)  the complexity of the matter;
	(b)  the difficulty or novelty of the questions involved in the matter;
	(c)  the skill, specialised knowledge and responsibility involved and the time and labour extended by the solicitor;
	(d)  the liability assumed by the solicitor in the matter;
	(e)  the number and importance of the documents prepared and perused, however brief;
	(f)  the places and circumstances in which the business involved in the matter is transacted;
	(g)  the importance of the matter to the client;
	(h)  the amount or value of money or property involved;
	(i)  the nature of the title to any land involved;
	(j)  the general care and conduct of the solicitor having regard to his/her instructions and all relevant circumstances, including the preparation for hearings generally and for hearing of taxation of a bill of costs specifically.

General—In the above scale:

Page—means a page typewritten or printed and which is a page of a nature or kind usual for the particular document and includes part of a page;

Folio—means 100 words;

Drawing a document does not include typing and checking;

Allowances under items 2 and 3 include any file copy;

In respect of facsimile transmissions [Item 6], STD and ISD transmission fees may be claimed as a disbursement.

Work done on or after 16 July 1993

Following is a determination of the Legal Fees and Costs Board gazetted on 2 July 1993. It amends the scale published in Government Gazette of 30.10.92, in particular, replacing items 1 (b), 4 (b), 5 and 6 and inserting item 7A.

		$ c
1.	Drawing
	(b)  other documents including a party-party bill of costs in taxable form, per folio	15.00
4.	Telephone calls
	(b)  requiring skill or legal knowledge,
	(i)  not more than six minutes	20.00
	(ii)  if continuing for more than six minutes—per six minute unit after the first	14.00
5.	Perusal of documents
	(a) (i)  Court documents (being any document filed in court)—per page or part thereof	15.00
	(ii)  other, per folio	5.00
	Costs allowed for perusal are discretionary where an allowance of 30 or more folios, or 10 or more pages, is claimed in respect of any document or documents.
	(b)  Where it is not necessary to peruse but it is necessary to scan a document, per page	3.00
	Costs allowed for scanning are discretionary where an allowance of 10 or more pages is claimed in respect of any document or documents.
6.	Copying—being a photographic reproduction, carbon or other copy of a document including sending or receiving facsimile transmission, including the time reasonably spent by a solicitor or clerk in preparing, sorting and collating such documents for copying, per page	1.00
7A.	Time reasonably spent by a solicitor attending court as an advocate without counsel, in any application, cause, motion, hearing or trial but not including attendance at any call-over, directions hearing, mention or adjournment, per quarter hour or part thereof	50.00

Lump sum costs on and after 4 June 1993

Following is a determination of the Legal Fees and Costs Board gazetted on 21 May 1993 in respect of work done on and after 4 June 1993. This scale replaces items 39–44 of the Schedule, Fees to Solicitors.

District Court

Determination

THE Board determines that this determination shall take effect in respect of work done on and after the 4th June, 1993.

Fees to solicitors

Lump Sum Costs for the Enforcement of a Debt in Respect of Liquidated Amounts Without Trial

Notes—

(a) This scale replaces items 39–44 of the Schedule, Fees to Solicitors, District Court Rules 1973 .

(b) This scale is the Schedule and the Special Scale for the purposes of the District Court Rules.

(c) The total amount of costs in relation to each item has been calculated by reference to items 1–10 of the Schedule, Fees to Solicitors, District Court Rules 1973 , taking into account the various matters listed under each item of this scale.

		$ c
Part 1
11.	Costs to be entered on a statement of claim signed by a solicitor in respect of the solicitor’s costs for the preparation and issue of the statement of claim, including: Instructions: One hour; Drawing/typing/checking of documents: Statement of liquidated claim—3 pages, 7 folios + filing copies, cheque to pay process server account; Attendances: Solicitor—quarter hour, Clerk—1 hour; Telephone calls: 1 with plaintiff, 1 with debtor; Letters: 2 to plaintiff, 1 to process server; Perusal of documents: 1 page; Including skill, care and responsibility	514.00
12.	Costs of entering judgment by default upon a statement of claim or of obtaining an order for judgment on an ordinary statement of claim without proceeding to judgment, the amount of such fee includes all the matters listed in Item 11 plus: Drawing/typing/checking of documents: Affidavit of service, affidavit of debt, order for judgment and notice of order [Forms 24/25]; Attendances: Solicitor—quarter hour, Clerk—half hour; Telephone calls: 2 with plaintiff; Letters: 1 to plaintiff; Skill, care and responsibility	740.00
13.	Unless the Court otherwise orders, costs of obtaining judgment in an undefended action in which an order for judgment has been made, the amount of such fee includes all the matters listed in Items 11 and 12 plus: Drawing/typing/checking of documents: Affidavit of debt; Attendances: Solicitor—on client quarter hour, at call over—1 hour, at hearing—2 hours; clerk—half hour; Telephone calls: 1 with plaintiff; Letters: 1 to plaintiff, 1 to debtor; Including skill, care and responsibility	1,068.00
Part 2 Additional Costs
14.	(a)  Cost of an examination summons where allowable including: Drawing/typing/checking of documents: Summons [Form 76] + copies, cheque for process server; Attendances: Solicitor attending court to conduct examination—1 and ½ hours, Clerk—2 at half an hour; Telephone Calls: 1 to plaintiff; Letters: 1 to process server, 1 to plaintiff; Perusals: Process server report; Including skill, care and responsibility	405.00
	(b)  Cost of the issue of a warrant for the apprehension of the judgment debtor if necessary including: Drawing/typing/checking of documents: Affidavit to issue warrant [Form 79], warrant [Form 90]; Attendances: Solicitor—quarter hour, Clerk—half an hour; Telephone Calls: 1 to plaintiff; Letters: 1 to plaintiff; Including skill, care and responsibility	174.00
15.	Costs on the issue of a writ of execution including: Drawing/typing/checking of documents: Affidavit [Form 93], writ [Form 94], drawing cheque to plaintiff; Attendances: Solicitor on client—half an hour, on bailiff—half an hour, Clerk—one hour; Telephone Calls: 1 to plaintiff; Letters: 1 to plaintiff; Including skill, care and responsibility	311.00
16.	Costs on the issue of a writ against the person including: Drawing/typing/checking of documents: Affidavit verifying grounds, summons + copies [Form 109], order authorising writ [Form 110]; Attendances: Solicitor—on client, half an hour, at court—2 hours, on bailiff—half an hour, Clerk—1 hour; Telephone Calls: 1 with plaintiff; Including skill, care and responsibility	684.00
17.	Service—for each additional defendant	40.00
18.	Costs on substituted service, including: Drawing/typing/checking of documents: Application [Form 14], affidavit [Form 5] and order [Form 39], cheque for process server; Attendances: Solicitor—total 1 hour, Clerk—half an hour; Telephone Calls: 1 to plaintiff; Letters: 1 to plaintiff, 1 to process server; Perusals: 2 allowed at 1 page; Including skill, care and responsibility	370.00

Fees to counsel

Note—

The amounts to be allowed for fees paid to counsel on a taxation on any scale shall not exceed the amounts set out under that scale in Items 53 to 71.

		Lowest scale $	Second scale $	Third scale $	Highest scale $
53.	With brief where liability and quantum contested	60	75	108	162
54.	With brief where liability admitted and quantum contested	40	50	75	108
55.	In addition to any allowance under item 53 or 54, where quantum contested, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	20	25	35	50
57.	On conference, if in the opinion of the taxing officer necessary, where liability and quantum contested	10	13	18	25
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted, and quantum contested	6	9	14	19
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	4	5	7	10
60.	Where a party is ordered to pay costs of the day in respect of a trial, as part of those costs	17	21	29	42
61.	In addition to any allowance under item 60, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
62.	With brief on an application to the Court for new trial	43	54	76	108
63.	With brief on any other application	21	26	36	52
64.	In addition to any allowance under item 63, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator, when allowed by the Court	60	75	108	162
66.	With brief on the taking of evidence under Part 25	17	20	30	35–52
Note— Where a reference to arbitration or the taking of evidence under Part 25 is directed at the trial, and counsel is then appearing, an allowance shall not be made under item 65 or 66, but a refresher may be allowed in a proper case.
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	10	12	18	18–32
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	17	20	30	25–52
69.	For any view certified by the Court	11	12	20	21–35
70.	In addition to any allowance under item 69, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	5	8	11	15

Briefs delivered on or after 6 September 1974

In respect of briefs delivered to counsel on or after 6 September 1974, the scale of fees to counsel in respect of actions commenced on or after 1st July, 1973, shall be as set out in items 53–71 below:

Note—

The amounts to be allowed for fees to counsel on a taxation on any scale shall not exceed the amounts set out under that scale in items 53 to 71.

		Lowest scale $	Second scale $	Third scale $	Highest scale $
53.	With brief where liability and quantum contested	68	102	152	203
54.	With brief where liability admitted and quantum contested	45	68	106	135
55.	In addition to any allowance under Item 53 or 54, where quantum contested, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	21	32	48	63
57.	On conference, if in the opinion of the taxing officer necessary where liability and quantum contested	10	15	23	30
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted, and quantum contested	8	13	19	25
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	4	7	10	13
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	17	26	39	52
61.	In addition to any allowance under Item 60, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
62.	With brief on an application to the Court for new trial	45	68	102	135
63.	With brief on any other application	22	33	49	65
64.	In addition to any allowance under Item 63, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	68	102	152	203
66.	With brief on the taking of evidence under Part 25	19	28	42	44–65
Note— When a reference to arbitration on the taking of evidence under Part 25 is directed at the trial, and counsel is then appearing, an allowance shall not be made under Item 65 or 66 but a refresher may be allowed in a proper case.
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	11	16	22	23–40
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	18	24	32	31–65
69.	For any view certified by the Court	12	18	26	26–44
70.	In addition to any allowance under Item 69, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved Judgment	6	10	15	19

Briefs delivered on or after 12 August 1977

In respect of briefs delivered to counsel on or after 12 August 1977, the scale of fees to counsel in respect of actions commenced on or after 1st July, 1973, shall be as set out in items 53–71 below:

Note—

The amounts to be allowed for fees to counsel on a taxation on any scale shall not exceed the amounts set out under that scale in items 53 to 71.

		Lowest scale $	Second scale $	Third scale $	Highest scale $
					where subject-matter does not exceed 12,000.00 $	where subject-matter exceeds 12,000.00 $
53.	With brief where liability and quantum contested	68	118–136	152–203	203–242	242–270
54.	With brief where liability admitted and quantum contested	45	78–92	106–135	135–162	162–180
55.	In addition to any allowance under Item 53 or 54, where quantum contested, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	21	37–43	48–63	63–76	76–84
57.	On conference, if in the opinion of the taxing offer necessary, where liability and quantum contested	10	17–20	23–30	30–36	36–40
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted, and quantum contested	8	15–17	19–25	25–30	30–33
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	4	9	12	15	20
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	17	30	52	63	70
61.	In addition to any allowance under Item 60, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
62.	With brief on an application to the Court for new trial	45	78–90	102–135	135–162	162–180
63.	With brief on any other application	22	38–44	49–65	65–78	78–87
64.	In addition to any allowance under Item 63, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	68	118–136	152–203	203–242	242–270
66.	With brief on the taking of evidence under Part 25	19	32–37	42–56	56–67	67–75
Note— When a reference to arbitration or the taking of evidence under Part 25 is directed at the trial, and counsel is then appearing, an allowance shall not be made under Item 65 or 66 but a refresher may be allowed in a proper case.
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	11	19	26	36	48
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	18	29	38	45	70
69.	For any view certified by the Court	12	22	32	40	50
70.	In addition to any allowance under Item 69, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	6	12	18	23	26

Note—

The minimum figure of the range on Items 53, 54, 56, 62, 63, 65 and 66 shall not be exceeded without an order of the Court.

Briefs delivered on or after 1 March 1980

In respect of briefs delivered to counsel on or after 1 March 1980, the scale of fees to counsel in respect of actions commenced on or after 1st July, 1973, shall be as set out in items 53–71 below:

Note—

The amounts to be allowed for fees to counsel on a taxation on any scale shall not exceed the amounts set out under that scale in items 53 to 71.

		Lowest scale $	Second scale $	Third scale $	Highest scale $
					where subject-matter does not exceed 12,000.00 $	where subject-matter exceeds 12,000.00 $
53.	With brief where liability and quantum contested	68	140–161	180–241	241–287	287–321
54.	With brief where liability admitted and quantum contested	45	92–109	126–160	160–192	192–214
55.	In addition to any allowance under Item 53 or 54, where quantum contested, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	21	44–51	57–74	74–90	90–99
57.	On conference, if in the opinion of the taxing officer necessary, where liability and quantum contested	10	20–23	27–35	35–42	42–47
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted, and quantum contested	8	17–20	22–29	29–35	35–39
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	4	10	14	17	23
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	17	35	61	74	83
61.	In addition to any allowance under Item 60, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
62.	With brief on an application to the Court for new trial	45	92–107	121–160	160–192	192–214
63.	With brief on any other application	22	45–52	58–77	77–92	92–103
64.	In addition to any allowance under Item 63, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	68	140–161	180–241	241–287	287–321
66.	With brief on the taking of evidence under Part 25	19	38–44	49–66	66–79	79–89
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	11	22	30	42	57
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	18	34	45	53	83
69.	For any view certified by the Court	12	26	38	47	59
70.	In addition to any allowance under Item 69 any amount not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	6	14	21	27	39

Note—

The minimum figure of the range of Items 53, 54, 56, 62, 63, 65 and 66 shall not be exceeded without an order of the Court.

Briefs delivered on or after 2 February 1981

In respect of briefs delivered to counsel on or after 2 February 1981, the scale of fees to counsel in respect of actions commenced on or after 1st July, 1973, shall be as follows.

Note—

The amounts to be allowed for fees to counsel on a taxation on any scale shall not exceed the amounts set out under that scale in items 53 to 71.

		Lowest scale $	Second scale $	Third scale $	Highest scale $
					where subject-matter does not exceed 12,000.00 $	where subject-matter exceeds 12,000.00 $
53.	With brief where liability and quantum contested	68	156–175	195–261	261–311	311–347
54.	With brief where liability admitted and quantum contested	45	100–118	136–173	173–208	208–231
55.	In addition to any allowance under Item 53 or 54, where quantum contested, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	21	47–55	62–81	81–98	98–108
57.	On conference, if in the opinion of the taxing officer necessary, where liability and quantum contested	10	22–26	30–39	39–46	46–51
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted, and quantum contested	8	19–22	24–32	32–39	39–42
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	4	12	15	19	26
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	17	39	67	81	90
61.	In addition to any allowance under item 60, any amount not exceeding the amount marked on the brief, specially ordered by the court.
62.	With brief on an application to the Court for new trial	45	100–116	131–173	173–208	208–231
63.	With brief on any other application	22	49–56	63–83	83–100	100–112
64.	In addition to any allowance under Item 63, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	68	151–175	195–261	261–311	311–347
66.	With brief on the taking of evidence under Part 25	19	41–47	54–72	72–86	86–96
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	11	24	33	46	62
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	18	37	49	58	90
69.	For any view certified by the Court	12	28	41	51	64
70.	In addition to any allowance under Item 69 any amount not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	6	15	23	30	33

Note—

The minimum figure of the range of Items 53, 54, 56, 62, 63, 65 and 66 shall not be exceeded without an order of the Court.

Briefs delivered on or after 2 February 1982

In respect of briefs delivered to counsel on or after 2 February 1982, the scale of fees to counsel in respect of actions commenced on or after 1st July, 1973, shall be as set out in items 53–71 below:

Note—

The amounts to be allowed for fees to counsel on a taxation on any scale shall not exceed the amounts set out under that scale in items 53 to 71.

		Lowest scale $	Second scale $	Third scale $	Highest scale $
					where subject-matter does not exceed 12,000.00 $	where subject-matter exceeds 12,000.00 $
53.	With brief where liability and quantum contested	68	168–194	217–289	289–345	345–385
54.	With brief where liability admitted and quantum contested	45	111–131	151–192	192–231	231–256
55.	In addition to any allowance under Item 53 or 54, where quantum contested, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	21	53–61	68–90	90–108	108–120
57.	On conference, if in the opinion of the taxing officer necessary, where liability and quantum contested	10	24–28	33–43	43–51	51–57
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted, and quantum contested	8	21–24	27–36	36–43	43–47
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	4	13	17	21	28
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	17	43	74	90	100
61.	In addition to any allowance under Item 60, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
62.	With brief on an application to the Court for new trial	45	111–128	145–192	192–231	231–256
63.	With brief on any other application	22	54–63	70–93	93–111	111–124
64.	In addition to any allowance under Item 63, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	68	168–194	217–289	289–345	345–385
66.	With brief on the taking of evidence under Part 25	19	46–53	60–80	80–95	95–107
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	11	27	37	51	68
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	18	41	54	64	100
68A.	For advising on quantum if in the taxing officer’s opinion it was necessary to take counsel’s advice		100	100	150	150
Note— A fee under this item will not be allowed where a fee is allowed under either items 53 or 54 unless specially ordered by the Court.
69.	For any view certified by the Court	12	31	46	57	71
70.	In addition to any allowance under Item 69, any amount not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	6	17	26	33	37

Note—

The minimum figure of the range of Items 53, 54, 56, 62, 63, 65 and 66 shall not be exceeded without an order of the Court.

Briefs delivered on or after 1 April 1983

In respect of briefs delivered to counsel on or after 1 April 1983, the scale of fees to counsel where the subject-matter of the proceedings does not exceed $20,000 is as set out hereunder (reduced where appropriate in accordance with Pt 39 r 10 (10)); where the subject-matter of the proceedings exceeds $20,000 the scale of fees to counsel is the Special Scale hereunder.

		Scale $	Special Scale (Counsel) $
53.	With brief where liability and quantum contested	345–385	350–450
54.	With brief where liability admitted and quantum contested	231–256	250–350
55.	In addition to any allowance under item 53 or 54, where quantum contested, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	108–120	95–180
57.	On conference, if in the opinion of the taxing officer necessary, where liability and quantum contested	51–57	60 and 55 for each hour after the first.
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted and quantum contested	43–47	50 and 50 for each hour after the first.
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	28	30
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	100	115
61.	In addition to any allowance under item 60, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
62.	With brief on an application to the Court for new trial	231–256	250–300
63.	With brief on any other application	111–124	120–200
64.	In addition to any allowance under item 63, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	345–385	350–450
66.	With brief on the taking of evidence under Part 25	95–107	115 and 55 for each hour after the first.
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	68	55–140
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	100	60–140
68A.	For advising on quantum if in the taxing officer’s opinion it was necessary to take counsel’s advice	150	150
Note— A fee under this item will not be allowed where a fee is allowed either under items 53 or 54 unless specially ordered by the Court.
69.	For any view certified by the Court	71	75 and 55 for each hour after the first.
70.	In addition to any allowance under item 69, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	37	40

Note—

The minimum figure of the range of Items 53, 54, 56, 62, 63, 65 and 66 shall not be exceeded without an order of the Court.

Briefs delivered on or after 6 October 1983

In respect of briefs delivered to counsel on or after 6 October 1983, the scale of fees to counsel where the subject matter of the proceedings does not exceed $20,000 is as set out hereunder (reduced where appropriate in accordance with Part 39 Rule 10 (10)); where the subject matter of the proceedings exceeds $20,000, the scale of fees to counsel is the Special Scale hereunder.

		Scale $	Special Scale (Counsel) $
53.	With brief where liability and quantum contested	396–442	402–516
54.	With brief where liability admitted and quantum contested	265–294	287–402
55.	In addition to any allowance under item 53 or 54, where quantum contested, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	124–138	109–207
57.	On conference, if in the opinion of the taxing officer necessary, where liability and quantum contested	59–65	69 and 63 for each hour after the first.
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted and quantum contested	49–54	57 and 57 for each hour after the first.
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	32	34
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	115	132
61.	In addition to any allowance under item 60, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
62.	With brief on an application to the Court for new trial	265–294	287–344
63.	With brief on any other application	127–142	138–229
64.	In addition to any allowance under item 63, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	396–442	402–516
66.	With brief on the taking of evidence under Part 25	109–123	132 and 63 for each hour after the first.
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	78	63–161
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	115	69–161
68A.	For advising on quantum if in the taxing officer’s opinion it was necessary to take counsel’s advice	172	172
Note— A fee under this item will not be allowed where a fee is allowed either under items 53 or 54 unless specially ordered by the Court.
69.	For any view certified by the Court	81	86 and 63 for each hour after the first.
70.	In addition to any allowance under item 69, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	42	46

Note—

The minimum figure of the range of Items 53, 54, 56, 62, 63, 65 and 66 shall not be exceeded without an order of the Court.

Briefs delivered on or after 1 June 1985

In respect of briefs delivered to counsel on or after 1 June 1985, the scale of fees to counsel where the subject matter of the proceedings does not exceed $20,000 is set out hereunder (reduced where appropriate in accordance with Part 39, Rule 10 (10)); where the subject matter of the proceedings exceeds $20,000, the scale of fees to counsel is the Special Scale hereunder.

		Scale $	Special Scale (Counsel) $
53.	With brief where liability and quantum contested	423–472	429–551
54.	With brief where liability admitted and quantum contested	283–314	307–429
55.	In addition to any allowance under item 53 or 54, where quantum contested, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	132–147	116–221
57.	On conference, if in the opinion of the taxing officer necessary, where liability and quantum contested	63–69	74 and 67 for each hour after the first.
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted and quantum contested	52–58	61 and 61 for each hour after the first.
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	34	36
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	123	141
61.	In addition to any allowance under item 60, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
62.	With brief on an application to the Court for new trial	283–314	307–367
63.	With brief on any other application	136–152	147–245
64.	In addition to any allowance under item 63, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	423–472	429–551
66.	With brief on the taking of evidence under Part 25	116–131	141 and 67 for each hour after the first.
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	83	67–172
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	123	74–172
68A.	For advising on quantum, including any attendance on a pre-trial conference	184	184
Note— A fee under this item will not be allowed where a fee is allowed either under items 53 or 54 unless specially ordered by the Court.
69.	For any view certified by the Court	87	92 and 67 for each hour after the first.
70.	In addition to any allowance under item 69, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	45	49

Note—

The minimum figure of the range of Items 53, 54, 56, 62, 63, 65 and 66 shall not be exceeded without an order of the Court.

Briefs delivered on or after 15 February 1988

In respect of briefs delivered to counsel on or after 15 February 1988, the scale of fees to counsel where the subject matter of the proceedings does not exceed $20,000 is the Scale set out hereunder (reduced where appropriate in accordance with Part 39 rule 10 (10)); where the subject matter of the proceedings exceeds $20,000 the scale of fees to counsel is the Special Scale (Counsel) set out hereunder.

		Scale $	Special Scale (Counsel) $
53.	With brief where liability and quantum contested	530–590	535–690
54.	With brief where liability admitted and quantum contested	355–395	385–535
55.	In addition to any allowance under item 53 or 54, where quantum contested, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	165–185	145–275
57.	On conference, if in the opinion of the taxing officer necessary, where liability and quantum contested	80–90	90 and 85 for each hour after the first.
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted and quantum contested	65–75	75 and 75 for each hour after the first.
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	40	45
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	155	175
61.	In addition to any allowance under item 60, any amount, not exceeding the amount marked on the brief, specially ordered by the court.
62.	With brief on an application to the Court for new trial	355–395	385–460
63.	With brief on any other application	170–190	185–305
64.	In addition to any allowance under item 63, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	530–590	535–690
66.	With brief on the taking of evidence under Part 25	145–165	175 and 85 for each hour after the first.
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	105	85–215
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	155	90–215
68A.	For advising on quantum, including any attendance on a pre-trial conference	230	230
Note— A fee under this item will not be allowed where a fee is allowed under item 53 or 54 unless specially ordered by the Court.
69.	For any view certified by the Court	110	115 and 85 for each hour after the first.
70.	In addition to any allowance under item 69, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	55	60

Note—

The minimum figure of the range of Items 53, 54, 56, 62, 63, 65 and 66 shall not be exceeded without an order of the Court.

Briefs delivered on or after 6 March 1989

In respect of briefs delivered to counsel on or after 6 March 1989, the scale of fees to counsel where the subject matter of the proceedings does not exceed $20,000 is the Scale set out hereunder (reduced where appropriate in accordance with Part 39 rule 10 (10)); where the subject matter of the proceedings exceeds $20,000 the scale of fees to counsel is the Special Scale (Counsel) set out hereunder.

		Scale $	Special Scale (Counsel) $
53.	With brief where liability and quantum contested	585–650	590–760
54.	With brief where liability admitted and quantum contested	390–435	425–590
55.	In addition to any allowance under item 53 or 54, where quantum contested, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	180–205	160–300
57.	On conference, if in the opinion of the taxing officer necessary, where liability and quantum contested	90–100	100 and 95 for each hour after the first.
58.	On conference, if in the opinion of the taxing officer necessary, where liability admitted and quantum contested	70–80	80 and 80 for each hour after the first.
59.	On conference, if in the opinion of the taxing officer necessary, in undefended actions	45	50
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	170	190
61.	In addition to any allowance under item 60, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
62.	With brief on an application to the Court for new trial	390–435	425–505
63.	With brief on any other application	185–210	205–335
64.	In addition to any allowance under item 63, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	585–650	590–760
66.	With brief on the taking of evidence under Part 25	160–180	190 and 95 for each hour after the first.
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	115	95–235
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	170	100–235
68A.	For advising on quantum, including any attendance on a pre-trial conference	255	255
Note— A fee under this item will not be allowed where a fee is allowed under item 53 or 54 unless specially ordered by the Court.
68B.	For attending on a directions hearing or conference not allowed for under Item 68A, if in the taxing officer’s opinion it was necessary for counsel to attend	150	150
69.	For any view certified by the Court	120	125 and 95 for each hour after the first.
70.	In addition to any allowance under item 69, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	60	65

Note—

The minimum figure of the range of Items 53, 54, 56, 62, 63, 65 and 66 shall not be exceeded without an order of the Court.

* Briefs delivered on or after 24 July 1992 and before 19 November 1992

* Note—

This scale, which applies only to briefs delivered from 24 July 1992 to 18 November 1992 inclusive, was disallowed in the Legislative Assembly on 18 November 1992.

Following is a determination of counsel’s fees by the Legal Fees and Costs Board gazetted on 10 July 1992 and applies in respect of briefs delivered to counsel on or after 24 July 1992 and before 19 November 1992.

		Scale $	Special Scale (Counsel) $
53.	With brief where liability and quantum contested	820–875	835–1130
54.	With brief where liability admitted and quantum contested	545–585	570–835
55.	In addition to any allowance under item 53 or 54, where quantum contested, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
56.	With brief in undefended actions	310–340	285–435
57.	On conference, if in the opinion of the taxing officer necessary	120–155 per hour or part of an hour	120–155 per hour or part of an hour
59.	Deleted.
60.	Where a party is ordered to pay the costs of the day in respect of a trial, as part of these costs	305	320
61.	In addition to any allowance under item 60, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
62.	With brief on an application to the Court for new trial	545–585	570–710
63.	With brief on any other application	325–350	340–490
64.	In addition to any allowance under item 63, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
65.	With brief before an arbitrator when allowed by the Court	820–875	835–1130
66.	With brief on the taking of evidence under Part 25	285–310	320 & 155 for each hour after the first.
67.	For settling any document which in the taxing officer’s opinion was necessary to be settled by counsel	170	155–375
68.	For advising on evidence if in the taxing officer’s opinion it was necessary to take counsel’s advice	305	155–375
68A.	For advising on quantum, including any attendance on a pre-trial conference	375	375
Note— A fee under this item will not be allowed where a fee is allowed either under items 53 or 54 unless specially ordered by the Court.
68B.	For attending on a directions hearing or conference not allowed for under item 68A, if in the taxing officer’s opinion it was necessary for counsel to attend	250	250
69.	For any view certified by the Court	175	185 and 155 for each hour after the first.
70.	In addition to any allowance under item 69, any amount, not exceeding the amount marked on the brief, specially ordered by the Court.
71.	For attending before the Judge to take a reserved judgment	120–155 per hour or part of an hour	120–155 per hour or part of an hour
71A.	Hearing not reached	Refresher of approp. brief fee	Refresher of appropriate brief fee

Work done on and after 16 July 1993

Following is a determination of the Legal Fees and Costs Board gazetted on 2 July 1993 and expressed to apply to work done on and after 16 July 1993.

District court

Note—

(i) This scale replaces items 53 to 71 of the scale in respect of counsels’ fees provided by the rules of the District Court.

(ii) This scale is the Schedule and the Special Scale for the purposes of the District Court Rules.

Fees to counsel

1. For brief on hearing, contested action.

(This fee shall include the first 5 hours of hearing including waiting time). [The fee allowed for (a) shall depend on the difficulty of work and the seniority, expertise and standing of counsel]

(a)  Range: $700–$1,000

(b)  plus an amount of $140 per hour for preparation

2. To make, support or oppose any application.

[The fee allowed for (a) shall depend on the difficulty of work and the seniority, expertise and standing of counsel]

(a)  Range: $140–$200 per hour

(b)  plus an amount of $140 per hour for preparation

3. For drawing, settling any necessary document; conferences; advice; pleadings or for any work involving counsel in chambers; views, including travelling time; taking a reserved judgment; appearing at call overs; mentions and adjournments—per hour: $140

4. General

(a)  In respect of items 1–3 for senior counsel: an amount to be decided at the discretion of the taxing officer and in the exercise of that discretion the taxing officer shall take into account the actual fees paid to senior counsel.

(b)  No retaining fee to counsel shall be allowed on any taxation of costs on the party–party basis.

(c)  The concept of a refresher fee is not recognised in this determination, but on a second and subsequent day of hearing there shall be allowed in respect of Item 1 (a), a rate of $140–$200 per hour.

Country loadings

Items 55, 61, 64 and 70 of the Schedule to the Rules enable the recovery of “any amount, not exceeding the amount marked on the brief, specially ordered by the Court”. The following loadings have been recommended by the Chief Judge.

Locality	Briefs delivered on or after:							Work done on or after:
		1 Apr 1980 $	2 Feb 1981 $	2 Feb 1982 $	6 Oct 1983 $	27 June 1988 $	1 Jan 1989 $	21 Sept 1990 $	29 Jan 1991 $	3 Feb 1992 $	1 Feb 1993 $	10 Jan 1994 $
Albury	165	193	208	240	283	413	449	501	536	679	705	723
Armidale	149	180	194	224	263	468	425	481	508	585	603	663
Batemans Bay	—	—	—	—	—	—	—	—	—	734	594	662
Bathurst	127	143	156	176	202	291	305	355	370	499	513	525
Bega	143	208	227	267	330	472	511	571	660	756	776	799
Bourke	176	288	273	348	463	756	824	944	1040	1077	1206	1141
Broken Hill	240	365	405	376	551	820	832	992	1102	1191	1207	1232
Campbelltown	45	65	71	78	95	123	—	129	130	133	62	63
Casino	180	203	228	261	319	439	477	539	540	778	798	745
Cessnock	88	115	131	150	174	340	361	426	431	641	405	411
Cobar	171	268	251	277	397	730	798	904	992	1070	1100	1049
Coffs Harbour	145	177	201	229	278	441	427	481	482	547	567	584
Condobolin	149	177	191	216	317	562	591	664	729	833	617	889
Cooma	143	197	222	263	313	426	461	515	541	843	686	882
Coonamble	171	256	278	328	423	740	519	501	669	908	844	850
Cootamundra	143	171	185	253	249	341	373	425	482	497	571	603
Cowra	138	191	207	189	229	319	357	393	539	461	433	464
Deniliquin	171	265	287	319	384	622	611	742	827	1037	882	777
Dubbo	130	164	179	204	246	345	377	417	438	577	607	615
Forbes	138	171	185	212	240	337	435	427	585	646	617	615
Glen Innes	170	233	252	292	338	598	539	600	625	667	689	584
Gosford	66	70	77	85	104	134	147	167	169	173	173	176
Goulburn	127	172	187	210	246	445	359	412	414	428	428	434
Grafton	171	202	218	252	296	435	551	509	629	567	699	715
Griffith	165	228	246	282	286	507	499	568	633	553	573	588
Gundagai	143	187	204	228	269	438	529	597	618	545	650	690
Gunnedah	143	216	233	270	312	454	501	563	612	710	609	680
Hay	171	310	303	337	405	708	764	824	964	714	1053	761
Inverell	149	229	248	286	371	547	529	592	627	665	689	683
Katoomba	—	—	—	—	—	—	—	—	—	236	236	239
Kempsey	149	177	191	222	261	460	415	459	486	690	698	629
Leeton	171	235	254	291	297	437	499	576	645	—	—	—
Lismore	193	254	274	314	378	466	694	738	875	707	631	658
Lithgow	66	110	120	133	158	209	228	260	262	269	269	273
Maitland	88	122	128	145	183	348	293	337	342	465	405	*411
Moree	171	235	254	291	348	523	567	648	669	567	601	616
Moruya	138	179	181	237	333	500	484	540	603	686	515	516
Moss Vale	66	85	93	103	126	218	238	272	274	280	280	284
Mudgee	110	182	201	183	220	385	468	528	581	610	630	490
Murwillumbah	193	302	350	389	475	635	673	752	784	833	888	761
Muswellbrook	127	172	187	210	246	334	361	414	416	430	430	436
Narrabri	158	219	238	273	326	523	565	651	673	540	559	572
Narrandera	171	229	247	283	287	574	620	702	767	631	553	568
Newcastle	75	162	176	198	231	315	340	390	392	405	405	411
Nowra	66	115	139	138	173	315	340	390	392	405	405	411
Nyngan	171	232	213	235	344	680	746	842	920	909	1002	977
Orange	127	149	163	180	204	317	337	379	420	541	555	468
Parkes	127	164	178	202	234	339	449	512	573	603	617	633
Penrith	45	65	71	78	95	104	114	129	130	133	62	63
Picton	—	—	—	—	—	—	145	165	167	—	—	—
Port Macquarie	135	174	187	216	253	369	469	525	550	499	517	530
Queanbeyan	138	174	210	231	278	479	408	464	481	517	523	526
Quirindi	143	226	245	282	—	—	—	562	567	—	—	—
Scone	138	200	173	197	—	—	—	526	567	—	—	—
Singleton	138	126	151	150	180	325	363	418	419	513	552	632
Tamworth	134	169	183	211	249	365	397	455	474	609	615	613
Taree	143	165	177	204	239	351	369	423	442	636	479	490
Tweed Heads	—	—	—	—	—	—	—	—	—	785	711	714
Wagga Wagga	135	197	204	233	280	395	428	482	501	595	621	544
Wentworth	240	371	400	445	598	799	833	978	1047	1107	1164	1154
Wollongong	66	75	82	90	110	197	215	247	249	256	256	260
Wyalong	149	262	237	267	377	546	581	658	723	—	—	—
Yass	138	182	198	222	261	354	383	439	441	456	456	463
Young	138	164	183	251	293	331	369	415	472	607	571	603

Note—

* This loading also includes sitting at East Maitland.

Note—

In respect of briefs delivered on or after 1 April 1980:

1.  The second or subsequent day loading recommended for all localities is $102.

2.  Senior counsel’s loading should be increased by $60 per day.

Note—

In respect of briefs delivered on or after 2 February 1981:

1.  The second or subsequent day loading recommended for all localities is $110.

2.  Senior counsel’s loading should be increased by $65 per day.

Note—

In respect of briefs delivered on or after 2 February 1982:

1.  The second or subsequent day loading recommended for all localities is $125.

2.  Senior counsel’s loading should be increased by $72 per day.

Note—

In respect of briefs delivered on or after 6 October 1983:

1.  The second or subsequent day loading recommended for all localities is $140.

2.  Senior counsel’s loading should be increased by $82 per day.

Note—

In respect of briefs delivered on or after 27 June 1988:

1.  The second or subsequent day loading recommended for all localities is $141.

2.  Senior counsel’s loading should be increased by $62 per day.

Note—

In respect of briefs delivered on or after 1 January 1989:

1.  The second or subsequent day loading recommended for all localities is $150.

2.  Senior counsel’s loading should be increased by $58 per day.

Note—

In respect of work done on or after 21 September 1990:

1.  Senior Counsel—add $87 per day.

2.  For each additional day—add $172.

Note—

In respect of work done on or after 29 January 1991:

1.  Senior Counsel—add $87 per day.

2.  For each additional day—add $173.

Note—

In respect of work done on or after 3 February 1992:

1.  Senior Counsel—add $100 per day.

2.  For each additional day—add $180.

Note—

In respect of work done on or after 1 February 1993:

1.  Senior Counsel—add $93 per day.

2.  For each additional day—add $180.

3.  Where the NRMA car rental discount is applicable the amount of the loading is to be reduced by $47.

Note—

In respect of work done on or after 10 January 1994:

1.  Senior Counsel—add $93 per day.

2.  For each additional day—add $182.

3.  Where the NRMA car rental discount is applicable, the amount of the loading is to be reduced by an amount that is calculated by subtracting the discount amount paid from the amount allowed in the loading of $99.

Guidelines for the exercise of the Court’s discretion as to loadings are contained in the following Practice Note, issued by the Chief Judge on 25 November 1988:

PRACTICE NOTE

Loadings for counsel in the District Court are prescribed in only the most general terms. Items 55, 61, 64 and 70 in the scale of counsel’s fees (Schedule to the Rules) enable the recovery of “any amount, not exceeding the amount marked on the brief, specially ordered by the Court”. Amounts relative to particular towns are determined only in the sense that they are recommended by the Chief Judge.

A recent meeting of the Rule Committee considered, and rejected, a proposal for Rules detailing the allowance of loadings. The Committee was of opinion that the discretion given under the present system should not be restricted by Rule, but that it would be helpful to the Court and the profession if general guidelines were published for the assistance of Judges in exercising the discretion.

The guidelines suggested are:

1.  Loadings for individual actions lasting one day or less should be in accordance with the attached Schedule (which should be regularly reviewed by the Rule Committee). In settling each amount in the Schedule regard is had to the Court’s starting time, the availability and cost of transport, whether an overnight stay is required, any additional costs for meals, and whether counsel should be compensated for lost chamber time. The Schedule is intended to apply in respect of briefs delivered on or after 1 January 1989.

2.  Where an action is heard on more than one day at a sittings, the additional loading for each day after the first should be the flat figure for second or subsequent day loadings in the Schedule. This figure is determined with regard only to additional accommodation costs and additional loss of chamber time.

3.  Where the Court allows fees for senior counsel, there should be an addition to the loading for each day at the flat figure in the Schedule. This figure is determined with regard only to the additional accommodation likely to be needed by senior counsel.

4.  Where counsel holds more than one brief at a sittings he should be allowed the full loading in respect of only one action, so that his outgoings and losses are recovered only once. If the other actions require him to spend additional days in the town, he should be allowed only the flat “subsequent day” loading in respect of each such day. Once counsel’s total entitlement is settled on this basis, the allocation of that amount between his various briefs should in general be in accordance with his wishes.

It must be emphasised that these guidelines are no more than that, and that the allowance of loadings, and their quantum, remain a matter for the discretion of the Court.

		$ c
Allowances to witnesses
72.	Barristers, solicitors, medical practitioners, surveyors, architects, accountants and other professional persons	88.00
	or per hour	65.00
73.	Whenever the persons mentioned in item 72 are called to give expert evidence and not evidence of fact:
	(a)  to give expert evidence, including travelling to Court, where period from departure from home, hospital, place of practice, office, place of employment or other place to return thereto from attendance at Court does not exceed one and a half hours	134.00
	(b)  for every full hour after the first hour and a half, or a proportion thereof if not for a full hour	65.00
	(c)  the amounts payable under (a) and (b) above shall not exceed a total of $534.00 per day.
74.	Travelling and other allowances:
	(a)  payment to be made at the rate of 80 cents per kilometre one way after the first kilometre up to and including 80 kilometres;
	(b)  exceeding 80 kilometres—the reasonable cost thereof plus the cost of reasonable accommodation and meals.
75.	Other witnesses: Such allowance as is commensurate with the witness’s remuneration or circumstances but not exceeding the allowances provided by items 72, 73 and 74.
76.	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
77.	(a)  Report made by an attending general practitioner
	(i)  where a re-examination of a patient is not required	37.00
	(ii)  where a re-examination of a patient is required	67.00
	(b)  Report made by an attending specialist
	(i)  where a re-examination of a patient is not required	55.00
	(ii)  where a re-examination of a patient is required	92.00
	(c)  Report made by a specialist who has not previously treated the patient
	(i)  where an examination is not required	67.00
	(ii)  where an examination is required	112.00
	(d)  Attending a joint examination (including travelling time where the distance does not exceed 8 kilometres)
	(i)  as examining practitioner (including provision of report)	134.00
	(ii)  as non-examining practitioner where the examination is conducted by another practitioner	55.00
	(iii)  provision of report by non-examining practitioner (see (ii) above)	55.00

Work done on or after 19.4.91

Following is a determination of the Legal Fees and Costs Board gazetted on 19 April 1991. The scale affects the District Court Rules 1973, in particular the Schedule—Allowances to Witnesses, items 72–74 and 77. The scale applies to work done on or after 19 April 1991.

Determination:

		$ c
Allowances to witnesses
Note— These allowances are intended to replace those provided by the rules of the Supreme Court, the District Court, the Compensation Court and the Local Courts where they exercise jurisdiction under the Local Courts (Civil Claims) Act 1970.
1.	Barristers, Solicitors, Accountants, Medical Practitioners, Surveyors, Architects, Pharmacists and other professional persons	160.00
	or per hour	125.00
2.	Whenever the persons mentioned in item 1 are called to give expert evidence and not evidence of fact:
	2.1  to give expert evidence, including travelling to Court, where period from departure from home, hospital, place of practice, office, place of employment or other place to return thereto from attendance at Court does not exceed one and a half hours	250.00
	2.2  for every full hour after the first hour and a half or a proportion thereof if not for a full hour	125.00
	2.3  the amount payable under (1) and (2) above shall not exceed a total per day of	800.00
3.	Travelling and other allowances:
	3.1  payment to be made at the rate of $1.00 per kilometre one way after the first kilometre up to and including 80 kilometres;
	3.2  exceeding 80 kilometres—the reasonable costs thereof plus the costs of reasonable accommodation and meals.
4.	Other witnesses:
	4.1  Such allowance as is commensurate with the witnesses’ remuneration or circumstances but not exceeding the allowances provided by the preceding three items.
	4.2  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
5.	The following fees may vary within the stated range, depending on the complexity of the matter, the number of documents to be studied and the amount of research needed to give the medical opinion.
	5.1  Report made by an attending general practitioner:
	(i)  where a re-examination of a patient is not required	80.00
	(ii)  where a re-examination of a patient is required	120.00
	5.2  Report made by an attending specialist:
	(i)  where a re-examination of a patient is not required	150.00
	(ii)  where re-examination of a patient is required	200.00
	5.3  Report made by a specialist who has not previously treated the patient:
	(i)  where an examination is not required	100.00–175.00
	(ii)  where an examination is required	200.00–250.00
6.	Attending a joint examination (including travelling time where the distance does not exceed eight kilometres):
	6.1 (i)  as an examining practitioner (including provision of report)	300.00
	(ii)  as a non-examining practitioner where the examination is conducted by another practitioner	130.00
	(iii)  provision of report by non-examining practitioner (see (ii) above)	100.00
7.	Where special circumstances are shown to exist, e.g. as in the case of a psychiatrist or psychologist necessitating prolonged or repeated attendances in a particular case, fees may be charged in accordance with Item 1.
8.	This determination does not limit any power of Court, or a taxing officer of a Court, to determine in any particular case the amount of costs payable in respect of any contentious business. In particular the Board draws attention to the terms of Section 194 of the Legal Profession Act 1987.
Execution against lands
78.	Amount to be paid as security by a judgment debtor under Part 36 rule 7 (c), where the costs of the writ of execution are allowable:
	(a)  on the highest scale	240.00
	(b)  on the second scale	200.00
	(c)  on the first scale	160.00

Work done on or after 31.7.92

Following is a determination of the Legal Fees and Costs Board gazetted on 17 July 1992. The scale affects the District Court Rules 1973, in particular the Schedule—Allowances to Witnesses, items 72 to 77. It applies to work done on and after 31 July 1992.

		$
Allowances to witnesses
1.	Barristers, Solicitors, Accountants, Medical Practitioners, Surveyors, Architects, Pharmacists and other professional persons attending to give evidence	160–300
	or per hour	125–200
	1.1  Whenever a Barrister, Solicitor, Accountant, Architect, Pharmacist, or other professional person not being a medical practitioner prepares a report, the fee for the preparation of such report shall be allowed at a rate per hour or part thereof	125–200
	[Item 1.1 was added, with respect to work done on and after 5 November 1993, by a determination of Legal Fees and Costs Board gazetted on 22.10.93.]
2.	Whenever the persons mentioned in item 1 are called to give expert evidence and not evidence of fact:
	2.1  attending to give expert evidence, including travelling to Court, where period from departure from home, hospital, place of practice, office, place of employment or other place to return thereto from attendance at Court does not exceed one and a half hours	250–400
	2.2  for every full hour after the first hour and a half or a proportion thereof if not for a full hour	125–200
	2.3  the maximum amount payable per day under items 1 and 2 above, shall be such a sum that is the total of the number of hours that reasonably involved a witness at the rates applicable in items 1 and 2.
3.	Travelling and other allowances:
	3.1  payment to be made at the rate of $1.00 per kilometre one way after the first kilometre up to and including 80 kilometres, plus reasonable parking fees;
	3.2  exceeding 80 kilometres—the reasonable costs thereof plus the costs of reasonable accommodation meals and parking.
4.	Other witnesses:
	4.1  such allowance as is commensurate with the witnesses’ remuneration or circumstances but not exceeding the allowances provided under items 1 and 2;
	4.2  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
5.	The following fees may vary within the stated range, depending on the complexity of the matter, the number of documents to be studied and the amount of research needed to give the medical opinion.
	5.1  Report made by an attending general practitioner:
	(a)  in respect of an initial consultation and examination of a patient	120–160
	(b)  in respect of any further consultation and examination after the first	80–120
	(c)  where a re-examination of the patient is not required	60–80
	5.2  Report made by an attending specialist:
	(a)  in respect of an initial consultation and examination of a patient	200–300
	(b)  in respect of any further consultation and examination after the first	150–250
	(c)  where a re-examination of the patient is not required	100–175
	5.3  Report made by a specialist who has not previously treated the patient:
	(a)  in respect of an initial consultation and examination of a patient	220–500
	(b)  in respect of any further consultation and examination after the first	200–450
	(c)  where a re-examination of the patient is not required	100–215
6.	Attending a joint examination (including travelling time where the distance does not exceed eight kilometres):
	6.1 (a)  as an examining practitioner (including provision of report)	300–500
	(b)  as a non-examining practitioner where the examination is conducted by another practitioner	130–175
	(c)  provision of report by non-examining practitioner [see (b) above]	100–175
7.	Where special circumstances are shown to exist, e.g., as in the case of a psychiatrist or psychologist necessitating prolonged or repeated attendances in a particular case, fees may be charged in accordance with Item 1.
Interpreters
8.	Allowances for interpreters:
	8.1  amounts reasonably paid to an interpreter attending court in respect of a hearing—not exceeding per day:	250
	8.2  in respect of attending any conference or medical examination:
	(a)  for the first two hours or part of two hours:	80
	(b)  for every hour or part of an hour after the initial two hours:	30
	8.3  in respect of a translation of any document—per folio of 100 words:	22
	8.4  travelling—as per amounts allowed under items 4.1 and 4.2, [Other witnesses] of this scale.
GENERAL
9.	This Determination does not limit any power of a court, or a taxing officer of a court to determine in any particular case the amount of costs payable in respect of any contentious business. The Board draws attention to the terms of section 194 of the Legal Profession Act 1987.

Sch: Am 31.5.1974; 6.9.1974; 20.12.1974; 24.12.1975; 12.8.1977; 14.10.1977; 29.2.1980; 13.2.1981; 3.4.1981; 29.1.1982; 16.4.1982; 23.4.1982; 7.1.1983; 31.3.1983; 25.11.1983; 14.6.1985; 30.8.1985; 9.5.1986; 12.2.1988 (but see erratum 26.2.1988); 2.9.1988; 17.2.1989; 21.7.1989; 19.4.1991; 18.10.1991; 29.5.1992; 10.7.1992; 17.7.1992; 30.10.1992; 21.5.1993; 2.7.1993; 22.10.1993.