Part 1 Preliminary
1 Name of Rules
These rules may be cited as the Compensation Court Rules 1990.rule 1: Am 2.7.1999; 21.7.2000.rule 1: Am 2.7.1999.rule 1: Am 11.12.1998.pt 4A (rules 1–7): Ins 21.7.2000.rule 1: Am 28.6.1996.rule 1: Am 11.12.1998.rule 1: Am 11.12.1998.pt 11A (rules 1–3): Ins 20.10.2000.rule 1: Rep 28.6.1996.pt 12A (rules 1–8): Ins 10.3.1995.rule 1: Am 28.6.1996; 21.7.2000.rule 1: Am 10.3.1995; 11.12.1998.rule 1: Am 28.6.1996.rule 1: Am 6.3.1998; 12.11.1999.pt 29A (rules 1–14): Ins 21.7.2000.
2 Commencement
These rules have effect on and from 1 January 1991.rule 2: Am 21.7.2000.rule 2: Am 2.7.1999; 21.7.2000.pt 4A (rules 1–7): Ins 21.7.2000.rule 2: Am 20.10.2000.rule 2: Am 28.6.1996.rule 2: Am 1.3.1991; 11.12.1998.pt 11A (rules 1–3): Ins 20.10.2000.rule 2: Am 21.6.1991; 14.2.1992. Rep 28.6.1996.pt 12A (rules 1–8): Ins 10.3.1995.rule 2: Am 28.6.1996; 21.7.2000.rule 2: Am 6.3.1998; 12.11.1999; 21.7.2000.rule 2: Am 11.12.1998.rule 2: Am 11.12.1998; 21.7.2000.rule 2: Am 21.7.2000.rules 2–5: Am 21.7.2000.pt 29A (rules 1–14): Ins 21.7.2000.rule 2: Am 15.11.1991; 27.3.1992 (see erratum 21.8.1992).
2A Overriding purpose
(1) The overriding purpose of these rules is to facilitate the just, quick and cheap resolution of the real issues in any proceedings.(2) The Court must seek to give effect to the overriding purpose when it exercises any power given to it by the rules or when interpreting any rule.(3) A party is under a duty to assist the Court to further the overriding purpose and, to that effect, to participate in the processes of the Court and to comply with directions and orders of the Court.(4) A solicitor or barrister shall not, by his or her conduct, cause his or her client to be put in breach of the duty identified in (3).(5) The Court may take into account any failure to comply with (3) or (4) in exercising a discretion with respect to costs.rule 2A: Ins 20.10.2000.pt 4A (rules 1–7): Ins 21.7.2000.pt 11A (rules 1–3): Ins 20.10.2000.pt 12A (rules 1–8): Ins 10.3.1995.rule 2A: Ins 21.7.2000.rule 2A: Ins 21.7.2000.rules 2–5: Am 21.7.2000.pt 29A (rules 1–14): Ins 21.7.2000.
3 Workers’ Compensation Rules
(1) Subject to subrule (2) and to Part 29 Division 1, the Workers’ Compensation Rules do not apply to proceedings in the Court, whether those proceedings were or are commenced before or after the commencement of these rules.(2) Anything done in respect of any proceedings in the Court in conformity with the Workers’ Compensation Rules before the commencement of these rules shall be as valid as if it had been done in conformity with these rules.rule 3: Am 15.9.1995.rule 3: Am 21.7.2000.rule 3: Am 11.12.1998.pt 4A (rules 1–7): Ins 21.7.2000.rule 3: Am 27.3.1992.rule 3: Am 11.12.1998; 21.7.2000.pt 11A (rules 1–3): Ins 20.10.2000.rules 3–5: Rep 28.6.1996.pt 12A (rules 1–8): Ins 10.3.1995.rule 3: Am 28.6.1996; 21.7.2000.rule 3: Am 20.10.2000.rule 3: Am 11.12.1998.rule 3: Am 27.3.1992; 28.6.1996; 21.7.2000.rule 3: Am 21.7.2000.rules 2–5: Am 21.7.2000.pt 29A (rules 1–14): Ins 21.7.2000.rule 3: Subst 13.10.1995; 28.6.1996.rule 3: Am 21.7.2000.rule 3: Am 21.7.2000.
4 (Repealed)
pt 4A (rules 1–7): Ins 21.7.2000.
rules 3–5: Rep 28.6.1996.
pt 12A (rules 1–8): Ins 10.3.1995.
rules 2–5: Am 21.7.2000.
pt 29A (rules 1–14): Ins 21.7.2000.
5 Interpretation
(1) In these rules unless the context or subject matter otherwise indicates or requires:compensation includes any monetary benefit under the Workers Compensation Acts.corporation includes any body of persons that may by law sue or be sued, whether in its own name or in the name of any officer or other person.Court includes a commissioner when exercising the functions of the Court in respect of any matter allocated to the commissioner and a registrar when exercising any function of the Court conferred on a registrar by or under the Act or any other Act.document, when used other than to refer to a document filed or to be filed, has the meaning that it has under section 21 (1) of the Interpretation Act 1987.file, in relation to a document, means lodge at the registry for inclusion in the record of the Court.insurer, in relation to an employer or other person as to whom a question arises as to his liability for compensation, means the insurer of the employer or other person under section 155 (1) of the 1987 Act or section 144 (1) of the 1998 Act.medical practitioner means a person who was registered under the Medical Practitioners Act 1938 or is 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.originating process, in relation to any proceedings, means the document by the filing of which the proceedings are commenced.privileged document or thing in relation to any proceedings means, unless and until the Court directs that it cease to be a privileged document or thing:(i) a document or thing of which evidence could not be adduced in the proceedings over the objection of any person, by virtue of the operation of Part 3.10 Division 1 of the Evidence Act,(ii) a document the contents or production of which would disclose:(A) 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, where:(I) consent by the protected confider within the meaning of section 126C of the Evidence Act has not been given to disclosure of the confidence, contents or information, and(II) section 126D of the Evidence Act would not operate to stop Part 3.10 Division 1A of the Evidence Act from preventing the adducing of evidence in respect of the confidence, contents or information,(B) (Repealed)(iiA) a document of which evidence could not be adduced in the proceedings by virtue of the operation of section 126H of the Evidence Act,(iii) where Party B is a natural person, a document or thing 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, orwithin the meaning of section 128 of the Evidence Act,(B) is liable to pay a civil penalty,(iv) a document the admission or use of which in a proceeding would be contrary to section 129 of the Evidence Act,(v) a document that relates to matters of state within the meaning of section 130 of the Evidence Act,(vi) a document to which section 131 of the Evidence Act applies,(vii) a document or thing:(A) the disclosure of the contents of which, or(B) the production of which, orin the proceedings would be contrary to any Act or Commonwealth Act other than the Evidence Act or the Evidence Act 1995 of the Commonwealth.(C) the admission or use of which,proceedings means proceedings in the Court.registry means a registry of the Court, and in respect of any proceedings means the registry in which the originating process in relation to the proceedings was filed.the 1987 Act means the Workers Compensation Act 1987.the 1998 Act means the Workplace Injury Management and Workers Compensation Act 1998.the Act means the Compensation Court Act 1984.the Evidence Act means the Evidence Act 1995.the rules means these rules.WorkCover Authority means the WorkCover Authority constituted under the 1998 Act.Workers Compensation Acts means the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998.Workers’ Compensation Rules means the rules made under the Workers’ Compensation Act 1926, and published in Government Gazette No 96 of 30 July 1976, as amended.(2) A reference in the rules to a worker or to a dependant of a worker has the same meaning as it has when made in the 1998 Act.(3) A reference in the 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.(4) Where under the rules the Court may make any order or give any direction or leave or do any other thing on terms, the Court may make the order or give the direction or leave or do the thing on such terms and conditions (if any) as the Court thinks fit.rule 5: Am 11.12.1998; 2.7.1999; 12.11.1999; 21.7.2000.pt 4A (rules 1–7): Ins 21.7.2000.rule 5: Subst 20.12.1991. Am 6.3.1998; 2.7.1999.rules 3–5: Rep 28.6.1996.pt 12A (rules 1–8): Ins 10.3.1995.rule 5: Ins 20.10.2000.rule 5: Am 27.3.1992.rules 2–5: Am 21.7.2000.rule 5: Rep 28.6.1996.rule 5: Am 27.3.1992; 11.12.1998.pt 29A (rules 1–14): Ins 21.7.2000.rule 5: Am 27.3.1992.rule 5: Ins 14.2.1992. Am 11.12.1998. Rep 21.7.2000.
6 Adherence to and relief from rules
(1) Subject to subrules (2) and (2A) and to rule 7, the practice in the Court shall be the practice provided by the Act, the Workers Compensation Acts or the rules.(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.(2A) A Practice Note issued by the Chief Judge for the speedy determination of the real questions between the parties to proceedings in general or to specific proceedings or classes of proceedings shall be taken to be a direction given by the Court under subrule (2).(a), (b) (Repealed)(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, taken or continued in the Court, except in so far as that practice is inconsistent with any provision of or under any such Act.rule 6: Am 28.6.1996; 11.12.1998.pt 4A (rules 1–7): Ins 21.7.2000.rule 6: Am 11.12.1998.rule 6: Am 27.3.1992; 12.8.1994; 28.6.1996; 11.5.2001.pt 12A (rules 1–8): Ins 10.3.1995.rule 6: Am 2.7.1999.rule 6: Am 27.3.1992.rule 6: Am 11.12.1998.rule 6: Am 1.3.1991; 15.11.1991; 14.2.1992; 21.8.1992, 13.10.1995; 6.3.1998; 21.7.2000.rule 6: Am 1.3.1991. Rep 28.6.1996.pt 29A (rules 1–14): Ins 21.7.2000.rule 6: Am 27.3.1992.rule 6: Am 11.12.1998.
7 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, the Workers Compensation Acts or the rules, or by or under any other Act, or the person is in doubt as to the manner or form of procedure, the Court may, on application by the 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.(4) An application for directions under this rule may be made, whether or not proceedings have been commenced, by notice of motion under Part 14.rule 7: Am 11.12.1998; 2.7.1999.pt 4A (rules 1–7): Ins 21.7.2000.pt 12A (rules 1–8): Ins 10.3.1995.rule 7: Am 2.7.1999.rule 7: Am 11.12.1998.rule 7: Subst 21.7.2000.rule 7: Am 27.3.1992. Rep 28.6.1996.pt 29A (rules 1–14): Ins 21.7.2000.rule 7: Ins 28.6.1996.
8 Seal of the Court
A registrar shall seal or stamp with the seal of the Court any originating process filed with him, and any award, order, notice, certificate or other process, or any copy thereof, made, given or issued by him, and any document filed with or issued by him and required by the rules to be sealed.rule 8: Am 11.12.1998; 11.5.2001.pt 12A (rules 1–8): Ins 10.3.1995.rule 8: Am 7.5.1993; 22.10.1993.rule 8: Am 15.9.1995; 12.11.1999.rule 8: Am 21.7.2000.rule 8: Am 1.3.1991. Subst 22.12.1995. Am 11.12.1998; 21.7.2000; 11.5.2001.rule 8: Am 12.8.1994; 21.7.2000.rule 8: Am 21.7.2000.rule 8: Am 11.12.1998.pt 29A (rules 1–14): Ins 21.7.2000.
Part 2 Administration
1 Registries
(1) There shall be a registry at Sydney and a registry at each other place the subject of a direction given by the Chief Judge for the purposes of this subrule.(2) The registries shall be under the control and direction of the registrar, subject to any direction by the Chief Judge or a Judge.(3) Except on Saturdays, Sundays and public holidays, and whether in vacation or otherwise, the registry at Sydney and at any other place shall be open to the public for business between 9.00 in the morning and 4.00 in the afternoon.(4) A registry shall, notwithstanding subrule (3), 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 or the registrar shall direct.pt 29A (rules 1–14): Ins 21.7.2000.
2 Sittings of the Court
The registrar shall from time to time cause to be affixed in some conspicuous place in each of the registries a notice of the places, days and hours at which the Chief Judge has directed that the Court shall sit.pt 29A (rules 1–14): Ins 21.7.2000.
3 Vacation
(1) There shall be a fixed vacation and a variable vacation in each year.(1A) The fixed vacation shall be a period of 6 weeks from the beginning of the Monday before the 24th of December.(1B) The variable vacation shall be a period of 4 weeks regulated by the Chief Judge.(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.pt 29A (rules 1–14): Ins 21.7.2000.
4 (Repealed)
pt 29A (rules 1–14): Ins 21.7.2000.
Part 3 Venue
1 Where proceedings may be heard
(1) Subject to this rule, proceedings shall be heard at Sydney.(2) Subject to subrules (3) and (4), where proceedings are commenced in a registry at a place other than Sydney, they shall be heard at that other place.(3) The Court or a registrar may, if it or he thinks fit, and with or without application by any party, order in respect of any proceedings that the proceedings be heard at a specified place other than the place at which they are required under subrule (1) and (2) to be heard, and the proceedings shall be heard at that specified place.(3A) In making an order under subrule (3) the Court or a registrar may have regard to, but is not bound by, any desired venue for the hearing stated in the originating process filed in the proceedings.(4) A Judge may if he thinks fit direct that proceedings commenced to be heard before him at any place be continued before him at another place.(5) Nothing in this rule shall be construed as limiting any function of the Chief Judge under the Act.pt 29A (rules 1–14): Ins 21.7.2000.
2 Chambers
(1) A Judge, commissioner or registrar in chambers may, in respect of any proceedings, give any 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 in Sydney or elsewhere.(2) A Judge, commissioner 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 decision or order that he is likely to give or make in chambers.pt 29A (rules 1–14): Ins 21.7.2000.
3 Reserved decision
(1) Where in any proceedings a Judge or a commissioner reserves his decision on any question of fact or law, he may:(a) give his decision in court at any place at which the Court is sitting, or in chambers in accordance with rule 2, or(b) draw up his decision in writing, sign it and forward it to a registrar.(2) Where a registrar receives a decision forwarded to him under subrule (1) (b), he shall, after giving at least 24 hours’ notice to the parties to the proceedings, read or otherwise publish the decision at a convenient time and place specified in the notice, whether or not the Court is sitting at that place at that time.(3) A decision given by a Judge or a commissioner under subrule (1) (a) or read or otherwise published by a registrar under subrule (2) shall take effect on the day on which it is given, read or otherwise published and shall be as valid as if given by the Judge or a commissioner at the hearing of the proceedings to which the decision relates.pt 29A (rules 1–14): Ins 21.7.2000.
4 Adjournment
The Court may, on terms, adjourn any sittings or the hearing of any proceedings in such manner as the Court thinks fit.pt 29A (rules 1–14): Ins 21.7.2000.
Part 4 Time
1 Reckoning of time
(1) Any period of time fixed by the Act or the rules, or by or under the Workers Compensation Acts, for the doing of any act in or in connection with any proceedings, or fixed by any decision or order or by any document in the proceedings, shall be reckoned in accordance with this rule.(2) Where a time of one day or a longer time is to be reckoned by reference to a given day or event, the given day or the day of the given event shall not be counted.(3) Where, apart from this subrule, the period in question, being a period of 5 days or less, would include a day on which the registry relevant 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 in respect of any proceedings is a day on which the registry relevant to the proceedings is closed, and by reason thereof the thing cannot be done on that day, the thing may be done on the next day on which the registry is open.pt 29A (rules 1–14): Ins 21.7.2000.
2 Extension and abridgment
(1) The Court may, on terms, by order extend or abridge any time fixed by the rules or by any decision 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 an order to serve, file or amend any document may be extended by consent, without an order for extension.(4) (Repealed)pt 29A (rules 1–14): Ins 21.7.2000.
3 Fixing time
Where no time is fixed by the Act or the rules, or by or under the Workers Compensation Acts, or by any decision 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.pt 29A (rules 1–14): Ins 21.7.2000.
4 Running of time
(1) In the period from the beginning of 25 December until the end of 9 January next following, time shall not, unless the Court otherwise orders, run so as to put any party in default in respect of any act for the doing of which a time is fixed by the rules or by any decision or order of the Court, but, subject to Part 2 rule 3 (2), business may be done during that period.(2) subject to subrule (1), the Chief Judge may, in special circumstances, by Practice Note, fix a period when time shall not, unless the court otherwise orders, run so as to put any party in default in respect of any act for the doing of which a time is fixed by the rules or by any decision or order of the Court, but subject to Part 2 rule 3 (2) business may be done during that period.pt 29A (rules 1–14): Ins 21.7.2000.
Part 4A Preliminary discovery
pt 4A (rules 1–7): Ins 21.7.2000.
1 Interpretation
In this Part:discoverable matter means:(a) the time and date of the occurrence of a relevant injury,(b) the identity of the employer or person liable under the Workers Compensation Acts in respect of a relevant injury,(c) the identity of an insurer or insurers of an employer or of a person liable under the Workers Compensation Acts, against whom a claim for workers compensation may be made in respect of a relevant injury, or(d) the identity of the self insurer against whom a claim for workers compensation may be made in respect of a relevant injury.relevant injury means an injury giving rise to a claim for workers compensation under the Workers Compensation Acts.pt 29A (rules 1–14): Ins 21.7.2000.
2 Examination and production
(1) Where, on application to the Court by any applicant, it appears to the Court that:(a) the applicant, having made reasonable inquiries, is unable to ascertain a discoverable matter for the purpose of commencing proceedings in relation to a relevant injury, andthe Court may order that person:(b) some person has or may have knowledge of facts, or has or may have in that person’s possession, custody or power any document or thing, tending to assist in the ascertainment of the discoverable matter,(c) 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 discoverable matter, and(d) to produce any document or thing in that person’s possession, custody or power relating to the discoverable matter.(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 a discoverable matter, 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 discoverable matter.pt 29A (rules 1–14): Ins 21.7.2000.
3 Procedure
(1) An applicant may apply for orders under rule 2 by notice of motion under Part 14 supported by affidavit, without making any person a respondent.(2) An application under rule 2 before a Registrar shall be referred to the Court on application by any party.(3) An order under rule 2 shall be served within a reasonable time on the person ordered to attend or to produce any document or thing.pt 29A (rules 1–14): Ins 21.7.2000.
4 Conduct money
(1) An order under rule 2 shall not require a person to attend or to produce any document or thing on any day on which that person’s attendance, or production by that person, is required, unless an amount sufficient to meet the reasonable expenses of complying with the order in relation to that day is paid or tendered to that person at the time of service of the order or not later than a reasonable time before that day.(2) Where an order under rule 2 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.pt 29A (rules 1–14): Ins 21.7.2000.
5 Expense and loss
Where any person incurs expense or loss in complying with an order under rule 2 in an amount substantially exceeding any amount paid under rule 4, 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.pt 29A (rules 1–14): Ins 21.7.2000.
6 Default in complying with order
The Court may order that any failure to comply with an order under rule 2 be dealt with as a failure to comply with a subpoena.pt 29A (rules 1–14): Ins 21.7.2000.
7 Privilege
For the purposes of this Part, a document shall be privileged from production if it is a privileged document or thing.pt 29A (rules 1–14): Ins 21.7.2000.
Part 5 Commencement of proceedings
Division 1 Application for determination and general
1 Originating process
Except as otherwise provided in the rules or by or under any Act, the originating process in respect of any proceedings shall be an application for determination.pt 29A (rules 1–14): Ins 21.7.2000.
2 Validity for service
(1) For the purpose of service an originating process shall be valid until the expiration of 2 months after the date on which it is filed or for such further period as the Court may direct.(2) Nothing in this rule prevents the Court from making an order striking out any proceedings on the grounds of undue delay by the applicant or appellant in serving the originating process.(3) Nothing in this rule prevents an applicant or appellant from commencing fresh proceedings by lodging another originating process.pt 29A (rules 1–14): Ins 21.7.2000.
3 Time of commencement
Proceedings shall be commenced when the originating process in respect of the proceedings is filed.pt 29A (rules 1–14): Ins 21.7.2000.
4 Particular proceedings commenced by application for determination
Without limiting the generality of rule 1, but subject to this Part, proceedings:(a) under section 224 (1) or 225 (3) of the 1998 Act in respect of the Uninsured Liability and Indemnity Scheme,(b) for an order for further expenses under section 62 of the 1987 Act,(c) for a review of a weekly payment under section 55 of the 1987 Act,(d) for the commutation of a weekly payment under section 51 of the 1987 Act,(e) under section 16 of the Workers Compensation (Bush Fire, Emergency and Rescue Services) Act 1987 in respect of bush fire fighters’ compensation,(f) under section 21 of the Police Regulation (Superannuation) Act 1906, and(g) under section 29 of the Sporting Injuries Insurance Act 1978,shall be commenced by the filing of an application for determination.(h) by way of appeal under section 8I of the Workers Compensation (Dust Diseases) Act 1942,pt 29A (rules 1–14): Ins 21.7.2000.
4A Compliance with statutory restrictions on commencement of proceedings in respect of “existing claims”
(1) This rule is made pursuant to section 106G of the 1987 Act.(2) This rule applies to “existing claims” under the 1987 Act as defined in section 87D of the said Act and as may be amended by any regulation duly made under the said Act pursuant to section 87D (2).(3) A party seeking to commence any proceeding in respect of any such claim shall file with the initiating process either:(a) a certificate of compliance in the form stipulated by subrule (6) of this rule certifying that the commencement of such proceeding is not contrary to the provisions of sections 106D, 106E, or 106F of the said Act as the case may be, or(b) a copy of a certificate of the Senior Conciliation Officer or conciliation officer issued pursuant to section 98D regarding the conciliation of the dispute the subject of the proposed proceeding.(4) Where the certificate of the Senior Conciliation Officer or conciliation officer filed with the initiating process does not expressly deal with all elements sought to be recovered in the proposed proceeding the party seeking to commence proceedings shall file with it a certificate of compliance in relation to all other elements.(5) Any initiating process not accompanied by such appropriate certificate or certificates shall not be accepted for filing.(6) Such certificates of compliance shall be in or to the effect of the approved form or such portion or portions thereof as may be relevant to the particular matter.(7) This rule ceases to operate, and is deemed rescinded, if and when the category of “existing claims” ceases to exist pursuant to any regulation duly made pursuant to subsections (2) and (3) of section 87D.(8) Where, leave of the Court having been previously obtained, a party seeks to file as amended application for determination adding an additional party or parties to the current proceedings than the provisions of this rule apply mutatis mutandis in respect of the proposed applications against such added party or parties.(9) This rule applies in respect of all initiating process presented for filing on or after 27 June 1997 and before 11 December 1998.rule 4A: Ins 16.5.1997. Am 11.12.1998; 21.7.2000.pt 29A (rules 1–14): Ins 21.7.2000.
4B Compliance with statutory restrictions on commencement of proceedings for “new claims”
(1) This rule is made pursuant to section 106FE of the 1987 Act.(2) This rule applies to “new claims” under the 1987 Act as defined in section 87D of the said Act.(3) A party seeking to commence any proceeding in respect of any such claim shall file with the initiating process either:(a) a copy of a certificate of conciliation outcome issued by the Principal Conciliator or a conciliation officer pursuant to section 98D, or(b) a copy of the notification by a conciliation officer under section 104 (3) in relation to the dispute which is the subject matter of the proposed proceeding, and/or(c) a certificate of compliance in the form stipulated by subrule (6) of this rule certifying that the commencement of such proceedings is not contrary to the provisions of section 106FB, 106FC or 106FD of the said Act as the case may be.(4) Where the certificate of the Principal Conciliator or conciliation officer or the notification under section 104 (3) filed with the initiating process does not expressly deal with all elements sought to be recovered in the proposed proceeding the party seeking to commence proceedings shall also file with the initiating process a certificate of compliance in relation to all other elements.(5) Any initiating process not accompanied by such appropriate certificate, certificates and/or notification shall not be accepted for filing.(6) Such certificate of compliance shall be in or to the effect of the approved form or such portion or portions thereof as may be relevant to the particular matter.(7) Where, leave of the Court having been previously obtained, a party seeks to file as amended application for determination adding an additional party or parties to the current proceedings than the provisions of this rule apply mutatis mutandis in respect of the proposed applications against such added party or parties.(8) This rule applies in respect of all initiating process presented for filing on or after 27 June 1997 and before 11 December 1998.rule 4B: Ins 16.5.1997. Am 11.12.1998; 21.7.2000.pt 29A (rules 1–14): Ins 21.7.2000.
4C Compliance with statutory restrictions on commencement of proceedings under the 1998 Act
(1) This rule is made pursuant to section 104 of the 1998 Act.(2) This rule applies to claims for compensation referred to in sections 101, 102 and 103 of the 1998 Act.(3) A party seeking to commence any proceeding in respect of any such claim shall file with the initiating process either:(a) a copy of a conciliation certificate issued by the Principal Conciliator or a conciliation officer pursuant to section 84 indicating that conciliation was wholly or partially unsuccessful, or(b) a copy of the notification by a conciliation officer under section 95 (4) in relation to the dispute which is the subject matter of the proposed proceedings, and/or(c) a certificate of compliance in the form stipulated by sub-rule (6) of this rule certifying that the commencement of such proceedings is not contrary to the provisions of section 101, 102 or 103 of the said Act as the case may be.(4) Where the certificate of the Principal Conciliator or conciliation officer or the notification under section 95 (4) files with the initiating process does not expressly deal with all elements sought to be recovered in the proposed proceeding the party seeking to commence proceedings shall also file with the initiating process a certificate of compliance in relation to all other elements.(5) Any initiating process not accompanied by such appropriate certificate, certificates and/or notification shall not be accepted for filing.(6) Such certificate of compliance shall be in or to the effect of the approved form or such portion or portions thereof as may be relevant to the particular matter.(7) Where, leave of the Court having been previously obtained, a party seeks to file an amended application for determination adding an additional party or parties to the current proceedings then the provisions of this rule apply mutatis mutandis in respect of the proposed applications against such added party or parties.(8) This rule applies in respect of all initiating process presented for filing on or after 11 December 1998.rule 4C: Ins 11.12.1998. Am 11.5.2001.pt 29A (rules 1–14): Ins 21.7.2000.
5 Applications under Police Regulation (Superannuation) Act 1906
(1) In this rule, proceedings under the Act means an application for a determination under section 21 (1) of the Police Regulation (Superannuation) Act 1906.(2) The application for determination to commence proceedings under the Act shall contain particulars of the orders sought.(3) In proceedings under the Act in relation to a decision of:(a) the SAS Trustee Corporation—that Corporation, orshall be a respondent to the proceedings.(b) the Commissioner of Police—that Commissioner,(4) Notwithstanding Part 11 rule 3, in proceedings under the Act any answer filed under that rule shall contain a statement as to whether the respondent consents to the orders sought (or any of them), and any grounds on which the respondent opposes the making of any of the orders sought.(5) (Repealed)(6) In proceedings under the Act, the registrar shall:(a) where an answer is filed, after the expiry of 21 days after the filing of the answer, orlist the proceedings before a Judge for a directions hearing.(b) where no answer is filed, after the expiry of 21 days after the last day for filing the answer,(7) On a directions hearing the Judge may make orders concerning the conduct of the proceedings, which may include an order fixing a hearing date.pt 29A (rules 1–14): Ins 21.7.2000.
6 Uninsured Liability and Indemnity Scheme
The WorkCover Authority shall be a necessary party to any application under section 224 (1) or 225 (3) of the 1998 Act.pt 29A (rules 1–14): Ins 21.7.2000.
Division 2 Proceedings commenced by notice of motion
7 Uninsured Liability and Indemnity Scheme—incidental proceedings
Where a matter or question for determination by the Court under the Uninsured Liability and Indemnity Scheme is already the subject of proceedings, proceedings to determine the matter or question may be commenced by notice of motion under Part 14 in the proceedings already before the Court.pt 29A (rules 1–14): Ins 21.7.2000.
8 Application for further medical expenses etc
Where a worker who has commenced proceedings for compensation seeks to apply for an order under section 62 (6A) of the 1987 Act he may so apply by notice of motion under Part 14 in the proceedings.pt 29A (rules 1–14): Ins 21.7.2000.
9 Application for suspension of weekly payment
An application for an order for suspension of a weekly payment, or for a declaration that a worker’s right to take or prosecute any proceedings under the 1998 Act has been suspended, until, pursuant to section 120 of that Act, the worker submits to medical examination may be made, whether or not proceedings have been commenced in respect of the subject matter to which the weekly payment relates, by notice of motion under Part 14.rule 9: Am 11.12.1998.rule 9: Am 26.8.1994.rule 9: Am 21.7.2000.rule 9: Rep 15.9.1995.rule 9: Am 21.7.2000.rule 9: Am 27.3.1992.rule 9: Am 21.7.2000.pt 29A (rules 1–14): Ins 21.7.2000.
9A Objection to referral to medical referee or medical panel
An application objecting to a reference to a medical referee or medical panel pursuant to Part 20 rule 5A (3) shall be made by notice of motion under Part 14 in any case proceeding in relation to the subject medical dispute, or otherwise by summons under rule 11A.rule 9A: Ins 2.7.1999.rule 9A: Ins 21.7.2000.pt 29A (rules 1–14): Ins 21.7.2000.
9B Applications for contribution, indemnity or apportionment
(1) The following applications shall be made by notice of motion under Part 14 where proceedings are pending in relation to the subject matter of the application:(a) for contribution pursuant to sections 15, 16 or 17 of the 1987 Act,(b) for indemnification pursuant to section 20 of the 1987 Act,(c) for apportionment pursuant to sections 22 or 22A of the 1987 Act, and(d) for a determination pursuant to section 22B of the 1987 Act.(2) It shall not be necessary to endorse a return date on any notice of motion filed pursuant to subrule (1).(3) Where there are no proceedings pending in relation to the subject matter of an application under subrule (1), proceedings shall be commenced by application for determination.rule 9B: Ins 20.10.2000.pt 29A (rules 1–14): Ins 21.7.2000.
10 Compensated worker ceasing to reside in Australia
(1) An application for a determination of the Court under section 53 of the 1987 Act shall be commenced by notice of motion under Part 14, supported by affidavits.(2) The affidavits mentioned in subrule (1) shall include affidavits by the worker and a medical practitioner who has examined the worker.(3) The affidavits mentioned in subrule (1) shall verify:(a) the circumstances in which the application is made,(b) the age and a description of the applicant sufficient to identify him,(c) particulars as to the injury, the nature and extent of the incapacity resulting from the injury, and the history and treatment of the worker since the injury,(d) the amount and duration of the weekly payment,(e) the worker’s present and proposed places of residence, and(f) the detail of any award or previous proceedings in respect of the injury.rule 10: Am 11.12.1998.rule 10: Rep 15.9.1995.rule 10: Am 21.6.1991; 27.3.1992.rule 10: Am 21.7.2000.rule 10: Am 21.7.2000.rule 10: Am 21.7.2000.pt 29A (rules 1–14): Ins 21.7.2000.
11 Proceedings to perpetuate testimony
Proceedings under Part 21 rule 12 (2) shall be commenced by notice of motion under Part 14, supported by affidavits.rule 11: Am 2.7.1999.rule 11: Ins 2.4.1993. Am 21.7.2000.pt 29A (rules 1–14): Ins 21.7.2000.
Division 2A Proceedings commenced by summons
11A Application and procedure
(1) This Division applies to proceedings commenced by summons.(2) For the purposes of Division 1 of Part 5, a Summons is an originating process.(3) The procedure for the hearing and disposal of a Summons shall be as near as practicable to that applicable to the hearing and disposal of a notice of motion in accordance with the provisions of Part 14 (2), (3), (4) and (5).rule 11A: Ins 6.3.1998.pt 29A (rules 1–14): Ins 21.7.2000.
11B Particular proceedings commenced by summons
The following proceedings shall be commenced by summons where no proceedings have been commenced in relation to the subject matter in dispute:(a) for an order for costs pursuant to section 112 (7) of the 1998 Act,(b) (Repealed)(c) for revocation of a direction of a conciliator for payment of weekly payments pursuant to section 97 (2) of the 1998 Act,(d) for an order for refund of weekly payments pursuant to section 58 of the 1987 Act,(e) for any order or other relief relating to discontinuation of payments pursuant to section 52A of the 1987 Act,(f) for apportionment between dependents pursuant to section 29 of the 1987 Act or for variation of any previous apportionment pursuant to section 30 of the 1987 Act,(g) where liability has been admitted, for an order for payment in respect of dependent children pursuant to section 31 of the 1987 Act,(h) for variation in the manner in which the Public Trustee invests, applies, pays out or otherwise deals with money paid to the Public Trustee pursuant to section 85 of the 1987 Act. The Public Trustee shall be made a respondent to any such application, and(i) for any order, direction or authorisation in respect of the payment of compensation pursuant to sections 83, 85, and 85A of the 1987 Act.rule 11B: Ins 6.3.1998. Rep 11.12.1998. Ins 2.7.1999. Am 11.5.2001.pt 29A (rules 1–14): Ins 21.7.2000.
Division 3 Appeals to the Court
12 Application of this Division
This Division applies to an appeal to the Court brought under any existing or future Act other than the Act or the Workers Compensation Acts, and so applies subject to any provision of or under the Act under which the appeal is brought.rule 12: Am 11.12.1998.rule 12: Ins 12.8.1994.pt 29A (rules 1–14): Ins 21.7.2000.
13 Notice of appeal
rule 13, hdg: Am 12.11.1999.(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) shall also lodge:(a) a copy of the application or other originating process which was before the authority which made the decision appealed against, and(b) a copy of the decision or determination the subject of the appeal.rule 13: Am 21.7.2000.rule 13: Ins 6.3.1998. Am 21.7.2000.pt 29A (rules 1–14): Ins 21.7.2000.rule 13: Am 27.3.1992.
14 Time for appeal
An appeal to which this Division applies shall be commenced within 28 days after the decision appealed against, or within such further time as may be ordered by the Court.rule 14: Am 21.6.1991.pt 29A (rules 1–14): Ins 21.7.2000.
15 Service
A notice of appeal mentioned in rule 13 shall, unless service is dispensed with by order of the Court made at or before the hearing, be served on every respondent to the appeal.rule 15: Am 12.11.1999; 21.7.2000.rule 15: Am 22.3.1991; 15.11.1991; 22.10.1993.
16 Affidavits
A party to an appeal to which this Division applies who intends to rely on any affidavit shall file the affidavit and serve it on each other party to the appeal (except a party on whom service of the notice of appeal is dispensed with as mentioned in rule 15) in sufficient time before the hearing to enable that other party to reply on affidavit, or within such period as the Court may order.rule 16: Am 2.7.1999.rule 16: Am 1.3.1991.rule 16: Am 11.12.1998.rule 16: Am 6.3.1998; 12.11.1999.
17 Answer by respondent
A respondent to an appeal to which this Division applies:rule 17, hdg: Am 21.7.2000.(a) who files an affidavit in the appeal shall include in the first affidavit so filed an address for service, or(b) who does not file such an affidavit shall, before being heard in the appeal, file and serve on the appellant a notice of appearance.rule 17: Am 21.7.2000.
18 Setting down for hearing
(1) Where in respect of an appeal to which this Division applies:(a) a respondent has filed an affidavit or notice of appearance, orthe registrar shall set the appeal down for call-over or mention for the purpose of fixing a hearing date, and shall advise the parties of the setting down.(b) no respondent has filed an affidavit or notice of appearance, and the appellant has filed an affidavit of service of the notice of appeal showing that the notice of appeal was served on a respondent more than 14 days previously,(2) The provisions of this rule apply subject to any order of the Court.rule 18: Ins 10.3.1995.
19 Procedure generally
Except as provided 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 proceedings commenced by application for determination, subject to such modifications to those procedures as may be necessary to give effect to this rule.rule 19: Ins 10.3.1995.
Division 4 Applications and appeals under section 208M of the Legal Profession Act 1987
20 Interpretation
In this Division:rule 20, hdg: Ins 2.7.1999.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.rule 20: Rep 28.6.1996. Ins 28.6.1996.rule 20: Ins 10.3.1995. Am 2.7.1999.rule 20: Ins 10.3.1995.
21 Application for leave
rule 21, hdg: Ins 2.7.1999.(1) An application for leave may be made by notice of motion under Part 14.(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.(2A) In addition to service on any respondent to the application, the applicant must serve the application for leave on the proper officer of the Supreme Court.(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.rule 21: Ins 28.6.1996. Am 2.7.1999.rule 21: Ins 10.3.1995.rule 21: Ins 10.3.1995. Am 2.7.1999.
22 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) If the Court so orders, an appeal may be heard and determined in chambers.rule 22: Ins 28.6.1996.rule 22: Ins 10.3.1995. Am 11.12.1998.rule 22: Ins 10.3.1995.
Part 6 Parties and claims
Division 1 General
1 General
In this Part, respondent includes “insurer”.
2 Joinder of claims
An applicant may, in one proceedings, apply for relief against the same respondent in respect of more than one claim.
3 Joinder of parties generally
Two or more persons may be joined as applicants or respondents in any proceedings:(a) where:(i) if separate proceedings 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 proceedings, and(ii) all rights claimed in the proceedings (whether they are joint, several or alternative) are in respect of or arise out of the same death or injury, or series of deaths or injuries, or(b) where the Court gives leave so to do.
4 Joint right
(1) Where, in any proceedings, the applicant claims relief to which any other person is entitled jointly with him:(a) all persons so entitled shall be parties to the proceedings, and(b) any of them who does not consent to being joined as an applicant shall be made a respondent.(2) Subrule (1) applies subject to any Act, and subject to section 62 of the Bankruptcy Act 1966 (Commonwealth), and applies unless the Court gives leave to the contrary.
5 Leave under rules 3 and 4
(1) The Court may grant leave under rule 3 before or after the joinder and may grant leave under rule 4 (2) before or after the non-joinder.(2) An applicant may apply for leave under rule 3 or rule 4 either before or after lodging his originating process and may so apply without serving notice of the motion on any person on whom the originating process has not been served.
6 Common liability
(1) Where, in any proceedings, a respondent is jointly liable with some other person and also severally liable, that other person need not be made a respondent in the proceedings.(2) Where persons are jointly, but not severally, liable in respect of a death or injury and proceedings in respect of that death or injury are commenced against some but not all of those persons, the Court may, on the application of any respondent in the proceedings, by order stay the proceedings until the other persons so liable are added as respondents.
7 Separate representation of party re several interests
(1) Where an insurer under a policy of insurance or indemnity issued to an employer is entitled to defend, or make any application in, any proceedings in the name of the employer, but in respect of part only of the subject of the proceedings, the Court may if it thinks fit, on terms, at any stage of the proceedings grant leave to the employer to appear separately and be separately represented in respect of that part.(2) Where the Court grants leave under subrule (1) to an employer in respect of a part of the subject of any proceedings, any document subsequently filed by or in the name of the employer in the proceedings shall clearly identify the part, including any period of insurance, in respect of which it is filed.
8 Inconvenient joinder
Where any joinder of parties or claims may embarrass or delay hearing of the proceedings or is otherwise inconvenient, the Court may order separate hearings or make such other order as the Court thinks fit.
9 Misjoinder and non-joinder of parties
(1) No proceedings shall 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 proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the parties.
10 Addition of parties
Where a person who is not a party to any proceedings:(a) ought to have been joined as a party, orthe 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 proceedings.(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon,
11 Removal of parties
Where a party:(a) has been improperly or unnecessarily joined, orthe 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 proceedings.(b) has ceased to be a proper or necessary party,
12 Death, transmission etc
(1) Where a party dies or becomes bankrupt but a claim in the proceedings survives, the proceedings 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 proceedings.(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.
13 Further conduct of proceedings
(1) Without limiting the generality of the powers of the Court under rules 10, 11 and 12, orders under those rules for the further conduct of proceedings may include orders relating to:(a) service of the order and other documents in the proceedings,(b) amendment,(c) the filing of answers by added respondents, 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 proceedings 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 an answer by the old party shall not dispense with the filing of an answer by the new party.(3) Subject to subrule (2), where a new party is added pursuant to an order under rule 10 or rule 12, the date of commencement of the proceedings so far as concerns him shall be the date of filing of the originating process amended 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.
14 Failure to proceed after death of party
(1) Where:(a) a party dies but a claim in the proceedings survives his death, andthe Court may, on application by a party or by a person to whom liability on the claim 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 proceedings shall be dismissed so far as concerns any claim for or against the person to whom the claim in the proceedings or the liability thereon, as the case may be, survives on the death.(b) an order under rule 12 for the addition of a party in substitution for the deceased party is not made within 3 months after 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 proceedings.
15 Executors and administrators
An executor or administrator may continue or defend proceedings in like manner as if he were a party claiming or defending in his own right.
16 Deceased person
(1) Where in any proceedings (other than proceedings commenced under rule 17) 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 proceedings and that he has no personal representative, the Court may, on the application of any party:(a) order that the proceedings 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 purpose of the proceedings.(2) An order under subrule (1), and any decision or order subsequently given or made in the proceedings, 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 proceedings.(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 the Court thinks fit.
17 Applications in the case of death of a worker
(1) In proceedings for the benefit of dependants in the case of the death of a worker, the following persons shall be joined as respondents:(a) the personal representative (if any) of the worker, if that personal reprentative is not already an applicant,(b) if the proceedings are brought by or on behalf of some only of the dependants, the other dependants, and(c) any other person claiming to be a dependant.(2) (Repealed)(3) Where an injured worker dies leaving no dependants, proceedings to recover his reasonable burial or cremation expenses may be continued:(a) by the personal representative of the worker, or(b) by any person to whom any such expenses are due or who has paid any such expenses.(4) In proceedings brought under subrule (3) (b):(a) the personal representative (if any) of the worker, and any person referred to in subrule (3) (b) who has not been joined as an applicant, shall be joined as a respondent, and(b) if the amount awarded is insufficient to meet the expenses sought to be recovered, the Court may give directions for the apportionment of that amount.
18 Conduct
The Court may give the conduct of the whole or any part of any proceedings to such party as it thinks fit.
19 Representation: concurrent interests
(1) Where numerous persons have the same interest in any proceedings, the proceedings may, unless the Court otherwise orders, be 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 applicant in the proceedings, may, on terms, appoint any one or more of the respondents or other persons (as representing whom the claim is made against the respondents) 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 respondent, the Court shall make an order under rule 10 adding him as a respondent.(4) A decision given or order made in proceedings pursuant to this rule shall be binding on all the persons as representing whom the applicants claim or, as the case may be, the respondents are claimed against, 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 on the persons against whom it is sought to enforce the decision or order.(6) Notwithstanding that a decision 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 decision 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.
Division 2 Minors and disable persons
20 Definitions
In this Division:curator means:(a) in respect of a person:(i) the management of whose estate is, by the Protected Estates Act 1983, or by an 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, orthe protective Commissioner,(iii) in relation to whose property the Protective Commissioner is authorised as mentioned in section 66 (1) (a) of that Act—(b) in respect of a person whose estate a manager has been appointed by order of the Supreme Court or the Guardianship Board under section 22 or section 22A of the Protected Estates Act 1983—the manager appointed.disable person means a minor or an incompetent person.incompetent person means:(a) a person who is not a minor and who is:(i) incapable of managing that person’s own affairs, or(ii) incommunicate, or(b) a minor who has a curator.judgment includes any award, decision or determination.minor means a person under the age of 18 years.tutor means a next friend or guardian ad litem of a disable person.
21 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.
22 Need for tutor
(1) Subject to section 23 of the 1987 Act and 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:(a) defend any proceedings,(b) intervene in any proceedings, or(c) appear in any proceedings under a judgment or order.(3) Where, in any proceedings, a disable person has a tutor, the disable person may, by his tutor, commence, carry on or defend any third or subsequent party proceedings.
23 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 authorised by the rules to be done by him shall or may be done by his tutor.(2) A tutor must act by a solicitor.rules 23–28: Ins 10.3.1995.rule 23: Ins 2.7.1999.
24 Appointment of tutor generally
(1) Subject to subrule (5), and subject to rules 25 and 27, 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 subrule (3), any person may 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.rules 23–28: Ins 10.3.1995.rule 24: Ins 2.7.1999.
25 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 24 (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.rules 23–28: Ins 10.3.1995.
26 Non-appearance by disable person
Where originating process in any proceedings has been served on a disable person, a party to the proceedings shall not take any further step in the proceedings affecting the disable person until a tutor for the disable person appears on the record or is appointed by the Court under rule 27.rules 23–28: Ins 10.3.1995.
27 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,(b) where the proposed tutor is the registrar, that the applicant has no knowledge of any other proper person to be appointed, and(c) where the proposed tutor is not the registrar, that the proposed tutor:(i) consents to act,(ii) is a proper person for appointment,(iii) has no interest in the proceedings adverse to the interest of the disable person, and(iv) that the disable person is in default of appearance, if that is the fact.rules 23–28: Ins 10.3.1995.
28 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 23–28: Ins 10.3.1995.
29 Compromise etc of matter in suit
(1) Subject to section 51 of the 1987 Act, 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.rule 29: Ins 10.3.1995. Am 2.7.1999.
30 Terms of approval
(1) The Court may give its approval under rule 29 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).rule 30: Ins 10.3.1995.
31 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 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, 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) This rule does not extend the jurisdiction of the Court over a disable person absent from the State.rule 31: Ins 10.3.1995.
Part 7 Interest
1 Claim for interest
Unless the Court otherwise orders, which order may be on terms, interest shall not be ordered to be paid in any proceedings unless there is included in the originating process in respect of the proceedings a statement that interest will be claimed, and particulars of the period or periods for which, the rate or rates at which, and (where the amount or amounts are known) the amount or amounts on which, interest is intended to be claimed.
2 Rates
Unless the Court otherwise orders, which order may be on terms, the rate at which interest shall be ordered to be paid shall, in respect of any part of a period, be the rate per centum yearly prescribed in respect of that period for the purposes of section 95 (1) of the Supreme Court Act 1970, or the rate or rates specified under rule 1 in respect of that part, whichever is less.
Part 8 Service
pt 8, hdg: Am 2.7.1999.
Division 1 General
1 Interpretation
In this Part:copy means a true copy of a document to be served, and where the document is filed before service means a true copy of the document sealed with the seal of the Court.party means the person to be served with a document.service means service of a document required or permitted by the Act or the rules, or by or under the Workers Compensation Acts, to be served in the conduct of any proceedings.
2 Who may serve process
Except where otherwise provided by or under any Act, service may be effected by any person over the age of 16 years.
3 Mode of service
(1) Service may be personal, but need not be personal unless required by the rules or any order.(2) Personal service may be effected by delivering a copy to the party personally.(3) A copy may be delivered to a person by handing it to him or by leaving it in his presence and informing him of its nature.(4) Except where personal service is required, service may be effected by delivering a copy at the residence or place of business of the party, to a person apparently not less than 16 years old and apparently residing at that residence or employed at that place of business.(5) It shall not be necessary to the regular service of any document that the original thereof be produced to any person.(6) In this rule, place of business of the party means a place of business of which the party is the proprietor or one of the proprietors.
4 When service may not be effected
Service may not be effected on Christmas Day or Good Friday.
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 strike out the proceedings, or order fresh process to issue, as to it may seem just.(2) Where it is impracticable for any reason to effect service of any document, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of the party, the Court may if it thinks fit by order direct that the service be deemed to have been effected on a date specified in the order.(3) Where a party lodges any document for filing in reply to a document alleged to have been served on 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.
5A Service on insurer
Where any insurer of a respondent is named in an originating process, a copy of that originating process shall be served on any such insurer.rule 5A: Ins 28.6.1996.rule 5A: Ins 6.3.1998. Subst 12.11.1999.rule 5A: Ins 10.3.1995. Am 11.12.1998; 21.7.2000.
6 Service on solicitor (originating process)
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 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)
(1) This rule does not apply to or in respect of the service of any originating process, 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.
8 Address for service
(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 at which is situated the registry relevant to the proceedings.(3) The address for service in any proceedings of a person who acts in the proceedings without a solicitor shall be an address notified by the person in the first document filed by him in the proceedings.(4) 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, or document as to which personal service is required.(2) Where a person has, by the operation of rule 8 (2) or (3), an address for service in any proceedings, 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 that person on a day 2 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.
10 (Repealed)
11 Prisoner
(1) Where a person confined in a prison is a party, service on him may be effected by delivering a copy at the prison to the officer in charge thereof for delivery to the party.(2) Where for the purpose of any proceedings:(a) a document is handed, or information or a request is conveyed, to the officer in charge of a prison for delivery to a party who is confined in the prison, orthe officer shall ensure that the document, information or request is so delivered as soon as practicable.(b) a party who is confined in a prison hands a document, or conveys information or a request, to the officer in charge of the prison for delivery to the registrar,
12 Where party “keeps house”
Where a party or person 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 party or person of a copy which would take effect as service on the party, service on the party may be effected by:(a) placing the copy in the mail-box appropriate to, or affixing the copy on any outer door of, the place of residence or place of business, or, if access cannot be obtained to any such mail-box or door, affixing the copy on some part of the place of residence or place of business, or of any fence or wall surrounding it, as near as practicable to the principal door or entrance, and(b) within 24 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.
13 Where violence threatened
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.
14 Service under contract
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.
15 Identity
For the purposes of the proof of service, evidence of a statement by a person of his identity, or that he holds some office, is evidence of his identity or that he holds the office, as the case may be.
16 Substituted service
(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 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.(3) Without limiting the generality of subrule (1), where the person sought to be served is a party as to whom a matter or question arises as to payment by him of compensation, the Court may order under subrule (1):(a) that the document be served on the insurer of that person, or(b) that any notice published under section 222 (1) of the 1998 Act stand in lieu of service.
17 Service on WorkCover Authority
Service on the WorkCover Authority may be effected by delivering a copy to an officer of the Authority at, or by sending a copy by post addressed to the Authority at, the office of the Authority, or by leaving a copy, addressed to the Authority, in the Authority’s exchange box in a document exchange of Australian Document Exchange Pty Limited, or at another exchange box for transmission to that exchange box.
Division 2 Service in foreign country
18 Application
This Division applies to the service of any document for the purpose of proceedings in the Court in another country.
19 Requisite documents, filing and service
A person (in this Division called the person applying) requiring a document to be served in another country shall:(a) file with the registrar:(i) the document to be served,(ii) unless English is an official language of the country concerned, a translation of the document in accordance with rule 22,(iii) a copy of the document and of the translation, and(iv) such further copies of the document and of the translation as the registrar may direct.
20 Documents to be sealed
Where documents are filed and lodged under rule 19, the registrar shall seal the documents lodged with the seal of the Court.
21 Service pursuant to Rules
Subject to any applicable convention, such documents shall be served in accordance with the Rules.
22 Translation
A translation of a document lodged under rule 19 shall:(a) be a translation into an official language of the country in which service is required, and(b) bear a certificate, in that language, of the translator, stating his qualifications and certifying that it is a translation of the document.
23 Notice
A notice in the prescribed form shall be served with any originating process.
24 Definition
In this Division convention means a convention made between Her Majesty or any of her predecessors and the king or other head of state of a foreign country regarding legal proceedings in civil matters.
Part 9 Particulars
1 Interpretation
In this Part, relevant document means an originating process, an answer, or a third or subsequent party notice, as the case may indicate or require, and includes any such document as amended.
2 Sufficiency
(1) A party filing a relevant document shall include in the document such particulars of any claim, defence or other matter alleged as are necessary to enable the opposite party to identify the case he is required by the document to meet.(2) Rule 3 does not affect the generality of subrule (1).
3 Out-of-pocket expenses etc
Where a party seeks to include in his claim against another party moneys which he has paid, or is liable to pay, he shall give in a relevant document the best particulars he can give of those moneys.
4 Manner of giving particulars
(1) Where rule 2 or rule 3 requires particulars to be given in a relevant document and it is inconvenient to set those particulars out in the relevant document, they shall be set out in a separate document referred to in the relevant document and filed and served with the relevant document.(2) Notwithstanding subrule (1), where the necessary particulars exceed one page and have, before the date on which the relevant document is filed, been given to the party on whom the relevant document is required to be served (or to whom a copy of the relevant document is required to be given or sent), and the relevant document 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.
5 Order for particulars
(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 a relevant document filed by him, or(b) a statement of the nature of the case on which he relies.(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, if it thinks fit, by the same or any subsequent order direct that, if the order made under this rule is not complied with within a period of time stated by the Court, any proceedings brought, or any document filed, by the party in default shall be struck out, or that any such proceedings shall be stayed until the order made under this rule is complied with.(4) The Court shall not make an order under this rule before the filing of an answer in any proceedings unless, in the opinion of the Court, the order is necessary or desirable to enable the respondent to file the answer, or for some other special reason.
6 Schedule of earnings
In any application where the quantum of weekly compensation is or may be an issue and there is or may be a dispute in respect of the actual or probable earnings of a worker during any relevant period the following provisions shall, unless the Court otherwise orders, have effect:(1) The applicant shall file and serve on each other party not later than 21 days before the hearing date, a schedule containing full particulars of such earnings during such period.(2) If any party disputes the accuracy of any matter in the schedule that party shall, not later than 7 days after service of the schedule or 28 days after expiry of the time prescribed for filing an answer pursuant to Part 11 rule 3 (1), whichever is the later, file and serve a schedule containing its allegations of such earnings.(3) A matter not so disputed shall be deemed to be admitted.(4) In all matters where the venue is other than Sydney, Parramatta, Newcastle or Wollongong the applicant shall serve the schedule referred to in subrule (1) at least 14 days prior to the date fixed for call over of matters listed for those sittings.
Part 10 Default judgment, summary judgment etc
1 Default judgment
(1) Where a respondent from whom an applicant claims compensation fails:(a) to file an answer as referred to in Part 11,(b) to deny wholly or partially in an answer filed by him that he is liable to pay the compensation claimed, orwithin the time limited for the filing of an answer, the applicant may apply to the Court for default judgment.(c) to set out in an answer filed by him a sufficient statement of the grounds for any such denial,(2) An application for default judgment may be made by filing an affidavit of service of the originating process in the proceedings and filing and serving (at least 3 days before the date fixed by the registrar for the hearing of the application for default judgment) notice of intention to apply for default judgment.(3) On the hearing of an application for default judgment the Court may make such determination in the proceedings or give such directions for the further conduct of the proceedings as it thinks fit.
2 Summary judgment
(1) Where, on motion under Part 14 by an applicant in relation to any claim for compensation or other relief or any part of any such claim:(a) there is evidence of the facts on which the claim or part is based, andthe Court may, at any time, make such award in favour of the applicant on that claim or part as the nature of the case requires.(b) there is evidence given by the applicant or by some responsible person that, in the belief of the person giving the evidence, the respondent has no grounds on which to contest the claim or part,(2) An award made under this rule may, on sufficient cause being shown, be set aside, on terms, by order of the Court.
3 Summary stay or dismissal
(1) Where in proceedings on a claim for compensation it appears to the Court that in relation to the claim or to any part of the claim:(a) no reasonable grounds for the claim are disclosed,(b) the proceedings are frivolous or vexatious, orthe Court may order that the proceedings be stayed or dismissed generally or in relation to any part of the claim.(c) the proceedings are an abuse of the process of the Court,(2) A respondent who seeks an order under this rule may apply for the order on motion under Part 14.
4 Proceedings deemed struck out
(1) Where in respect of any proceedings on a claim for compensation:(a) a respondent has not filed a notice of appearance or answer, andwithin 3 months after the date of commencement of the proceedings, the proceedings as against that respondent are deemed to have been struck out, and no further step may be taken in those proceedings (other than an application mentioned in subrule (2)) until the proceedings have been restored to the list.(b) the applicant has not filed an affidavit of service of the originating process on that respondent,(2) The Court may, on application by a party and on terms, restore to the list any proceedings deemed to have been struck out under subrule (1).
Part 11 Appearance and answer
1 Right of appearance
(1) A party to any proceedings may appear:(a) by a barrister or solicitor retained by or on behalf of that party, or by a solicitor employed (as an agent or otherwise) by a solicitor so retained, oror by another person allowed by leave of the Court granted in the particular proceedings to appear on that party’s behalf.(b) if no barrister or solicitor is so retained and:(i) if that party is a natural person—by himself, or(ii) if that party is a corporation, and the Court so approves—by an officer of the corporation authorised in that behalf by the corporation in a document signed by the secretary or other public officer of the corporation and lodged with the registrar,(2) Subject to and in accordance with the rules and any provision made by or under the Workers Compensation Acts, a person appearing in any proceedings may address the Court and examine and cross-examine witnesses.(3) A person who is not a barrister or solicitor retained as mentioned in subrule (1) shall not be entitled to receive or recover an amount of money or other remuneration or consideration for appearing on behalf of another person in any proceedings.(4) Subrule (3) does not operate to prevent an employee who appears on behalf of his employer in the ordinary course of his employment from receiving wages or salary for so appearing.(5) No amount paid to a person who appears in any proceedings and who is not a barrister or solicitor retained as mentioned in subrule (1) shall be allowed as costs between party and party.
2 Notice of appearance
(1) A respondent to proceedings shall, before being heard in the proceedings, and unless he has filed an answer:(a) file a notice of appearance, and(b) serve the notice of appearance on all other parties to the proceedings and any insurer concerned in the proceedings.(2) A notice of appearance under this rule may be conditional.(3) Effect shall be given to a notice of conditional appearance subject to any conditions contained in the notice.
3 Answer
(1) A respondent to proceedings may, not later than 28 days after service on him of the originating process in the proceedings, file, and serve on all other parties to the proceedings, an answer setting out:(a) any grounds on which he intends to deny wholly or partially the applicant’s claim,(b) any respects in which he alleges that the applicant’s particulars are inaccurate or incomplete, including full particulars of any such allegation, and(c) any fact and the effect of any document which he intends to bring to the notice of the Court or on which he intends to rely.(2) Without limiting the generality of subrule (1), where a respondent intends:(a) to deny wholly or partially that he is liable to pay to the applicant the compensation claimed or that the applicant is entitled to the relief sought, he shall set out in his answer a statement of the grounds on which and the extent to which he denies that he is so liable or that the applicant is so entitled, or(b) to rely upon the fact that:(i) any notice of injury or of incapacity or death was not given as required by the Workers Compensation Acts and the respondent is prejudiced in his defence by the want of that notice, orhe shall set out in his answer a detailed statement of that fact.(ii) that the claim for compensation was not made within the time limited by the Workers Compensation Acts,(3) A respondent shall not, at any hearing of the proceedings, except by consent of the applicant or by leave, given on terms, of the Court, raise any matter of defence not raised in the answer filed by him under this rule.(4) Without limiting the generality of subrule (3), the applicant’s claim and particulars, and any respondent’s liability under the Workers Compensation Acts to pay the compensation claimed or to give the relief sought, shall, subject to:(a) any matter of defence contained in an answer filed by the respondent under this rule,(b) any consent of the applicant,(c) any leave given by the Court (which leave may be given on terms) to file an answer or amend an answer, orbe taken to be admitted for the purposes of the proceedings.(d) the operation of Part 10 in relation to summary judgment,(5) For the purposes of subrules (3) and (4), a matter of defence may be raised in an answer 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.
Part 11A Limiting issues
pt 11A (rules 1–3): Ins 20.10.2000.
1 Putting matters in issue unreasonably
(1) A party to proceedings must not in a pleading or at a hearing make, or put in issue, an allegation of fact unless it is reasonable to do so.(2) A party to proceedings who has in a pleading or at a hearing made, or put in issue, an allegation of fact must not maintain that allegation or its traverse unless it is reasonable to do so.
2 Reasonableness of issue
In determining whether it is reasonable for a party to make or put in issue an allegation of fact or to maintain such an allegation or its traverse, consideration must be given to the steps taken by the party to ascertain whether there is a reasonable basis for doing so.
3 Scope of Part
Nothing in this Part shall give rise to, or affect, any right to seek that proceedings or any claim for relief or any defence be stayed or dismissed or struck out.
Part 12
1–5 (Repealed)
pt 12: Rep 28.6.1996.
Part 12A Mediation and neutral evaluation
pt 12A (rules 1–8): Ins 10.3.1995.
1 Directions
The Court may give directions for regulating and prescribing the practice and procedure to be followed in a mediation or neutral evaluation, including the preparation and service of documents.
2 Mode of referral
The Court may refer a matter for mediation or neutral evaluation if:(a) a request for such referral is filed by any person who has an address for service in the proceedings with the consent of all other persons endorsed thereon, or(b) at any stage when the matter is before the Court all persons consent to such referral.
3 Selection of mediator or evaluator
The parties may agree:(a) as to who is to be the mediator or evaluator, or(b) that the mediator or evaluator be any one of the persons on any list compiled by the Chief Judge pursuant to section 38H of the Act.
4 Appointments and directions by mediator or evaluator
A person to whom a matter is referred for mediation or neutral evaluation:(a) shall, within 14 days of being notified of the referral, in writing appoint a time for the mediation or neutral evaluation, and(b) may give directions relating to preparations for and conduct of the mediation or neutral evaluation.
5 Completion of referral
The parties and the mediator or evaluator shall conduct the referral with the object, so far as practicable, of completing the referral within 42 days.
6 Neutral evaluation session procedure
(1) Unless the evaluator otherwise directs:(a) a neutral evaluation session shall be attended:(i) subject to subparagraph (ii), by each party or, where a party is a company, by the officer of the company having responsibility for the conduct of the proceedings, or(ii) if the conduct of the proceedings by a party is controlled by an insurer—by the officer of the insurer having responsibility for the conduct of the proceedings,(b) a party must be accompanied by that party’s counsel or solicitor at a neutral evaluation session, and(c) the evaluator, after hearing the parties, shall express the evaluator’s views on:(i) the degree of probability of each party succeeding in the proceedings,(ii) the compensation or other remedy likely to be awarded to the worker, and shall express a view on the range of compensation if it is appropriate to do so.(2) The evaluator’s views may be expressed conditionally (eg “if X is accepted then A but if Y is accepted then B”).
7 Mediation session procedure
Unless the mediator otherwise directs:(a) a mediation session shall be attended:(i) subject to subparagraph (ii), by each party or, where a party is a company, by an officer of the company having authority to settle the proceedings, or(ii) if the conduct of the proceedings by a party is controlled by an insurer—by an officer of the insurer having authority to settle the proceedings, and(b) a party shall be accompanied by that party’s counsel or solicitor at a mediation session.
8 Notification of conclusion of mediation or neutral evaluation
The mediator or evaluator shall, within 7 days of the conclusion of the mediation or neutral evaluation, advise the Court of the fact that the mediation or neutral evaluation has been concluded but not of the details thereof.
Part 13 Admissions and submission to award
1 Voluntary admissions
(1) A party to any proceedings may, by notice served on another party, admit, in favour of the other party, but for the purpose of the proceedings only, the facts specified in the notice.(2) A party may, with the leave of the Court, withdraw an admission made under subrule (1).
2 Notice to admit facts
(1) A party to proceedings which are contested by the filing of an answer or a third or subsequent party notice may, by notice served on another party, require him to admit, for the purpose of the proceedings only, the facts specified in the notice.(2) If, as to any fact specified in a notice given under subrule (1), the party on whom the notice is served does not, within 14 days after that service, serve, on the party serving the notice to admit facts, a notice disputing that fact, that fact shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit facts is served in favour of the party serving the notice to admit facts.(3) A party may, with the leave of the Court, withdraw an admission made under subrule (2).
3 Decision on admissions
(1) Where admissions are made by a party, whether under a requirement under section 24 (1) (b) of the Act, or under the rules, or otherwise, the Court may, on the application of any other party, give any decision 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 Notice to admit documents
(1) A party to any proceedings which are contested by the filing of an answer or a third or subsequent party notice may, by notice served on another party, require him to admit, for the purpose of the proceedings only, the authenticity of the documents specified in the notice.(2) If, as to any document specified in a notice given under subrule (1), the party on whom the notice is served does not, within 14 days after that 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 made under subrule (2).
5 Admission of documents discovered
(1) Where a list of documents is served on a party under Part 18, and inspection of any documents 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 any document filed by him in the proceedings denied the authenticity of a document, orsubrule (1) does not work an admission by the first-mentioned party as to that document.(b) within 14 days after the time limited under Part 18 for inspection of a document, serves on the party giving inspection a notice that he disputes the authenticity of the document,(3) Where a party serves on another party a list of documents pursuant to Part 18, 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 hearing 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 18 rule 3 as they apply in relation to a list of documents served under that Part.
6 Restricted effect of admission
An admission under this Part or under a requirement under section 24 (1) (b) of the Act for the purposes 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 Costs
(1) Where a party to any proceedings serves a notice under rule 2 (2), 4 (2) or 5 (2) disputing a fact or the authenticity of a document, and afterwards that fact or the authenticity of that document is proved in the proceedings, he shall, unless the Court otherwise orders, pay the costs of proof.(2) (Repealed)(3) This rule applies except where otherwise provided in section 18 of the Act.
8 Submission to award
(1) This rule applies without limiting the generality of rule 3.(2) An employer who is a party to proceedings for an award of compensation or for determination of any question as to his liability to pay compensation may, at any stage of the proceedings, and whether or not he admits any liability to pay compensation, file and serve a notice stating that he is willing to submit to an award of compensation in the terms set out in the notice.(3) If the worker who is a party, or the dependants who are parties, to the proceedings file and serve notice of his or their willingness to accept the award as set out in the notice given under subrule (2), the registrar shall cause the proceedings to be listed before the Court, and the Court may make such award or give such directions as to it may appear proper.(4) If notice under subrule (3) is not filed and served within twenty-eight (28) days after the service of notice under subrule (2) the proceedings shall be continued as though the notice under subrule (2) had not been filed.(5) If proceedings are continued under subrule (4), before the record of the proceedings is brought before the Court for any hearing of the proceedings, the registrar shall seal within the record the notice filed under subrule (2) and any information contained in the record in respect of that notice, but the Court need not disqualify itself from hearing the proceedings only because it becomes aware in any manner of the notice or of any such information.
Part 14 Motions
1 Application of this Part
The provisions of this Part apply to an interlocutory or other application in or for the purposes of or in relation to any proceedings, and any application to which this Part applies shall be made by motion.
2 Notice
(1) Subject to subrule (2), a person shall not move the Court for an order unless before moving he has filed notice of the motion and has served the notice on each interested party.(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 party interested, other than the applicant, 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 requirement 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 each party to be affected by the order which is sought.(4) The grounds of a notice of motion, and any supporting facts or circumstances on which the applicant intends to rely, shall be verified in an affidavit or affidavits filed in the proceedings.
3 Time for service of notice
Where notice of a motion is required to be served, it shall, unless the Court otherwise orders, be served not less than 7 days before the date fixed for the hearing of the motion.
4 Affidavits
A party who intends at the hearing of any motion to rely on any affidavit shall file the affidavit and serve a copy on each other interested party (except a party on whom service of notice of the motion is dispensed with in accordance with the rules) in sufficient time before the hearing to enable that other party to reply on affidavit, or within such period as the Court may order.
5 Hearing
(1) The Court upon the hearing or adjourned hearing of any motion may make or refuse the order sought and may make such other order or give such directions as may be just.(2) A motion in relation to any proceedings shall include, so far as is practicable, all or as many applications as the applicant to the motion may desire to make in relation to the proceedings and as, having regard to the nature of the proceedings, can conveniently be dealt with at the one time, and upon the hearing or adjourned hearing of the motion any respondent to the motion shall be at liberty to make any application in relation to the proceedings.(3) Where a respondent to a motion makes any application as mentioned in subrule (2) the Court may either grant or refuse the order sought by that respondent, and give such directions as may be just, or may adjourn the hearing of the application and direct any necessary notice to be given.(4) Where the Court grants or refuses any order upon the hearing or adjourned hearing of a motion, it may do so on terms.
6 Costs
(1) The Court may if it thinks fit order any party to pay to another party the costs, or any specified part of the costs, of any application to which this Part applies, or may order that those costs be reserved to the hearing of the proceedings.(2) No costs shall be allowed of any application made ex parte except by order of the Court.(3), (4) (Repealed)(5) This rule applies whether or not costs are claimed in the notice of motion.(6) This rule applies except where otherwise provided in section 18 of the Act.
Part 15 Amendment
1 General
(1) The Court may, at any stage of any proceedings, on the application of any party or without any such application, order, on terms, that any document in the proceedings be amended, or that any party have leave to amend any document filed by him 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.(4) This rule does not apply to the amendment of an award, order or certificate.
2 Amendment of document without leave
A party may, without leave, amend any document filed by him at any time before a preliminary advice of hearing or notice of call-over is issued in the proceedings.
3 Amendment after preliminary advice of hearing
(1) Where a party applies, or several parties by consent apply, for an order amending, or giving leave to amend, a document after a preliminary advice of hearing or notice of call-over has been issued in the proceedings, the party or parties shall in the application advise the Court as to whether, and if so to what extent, the amendment if made will affect the readiness of the proceedings for hearing.(2) When making or refusing an order referred to in subrule (1), the Court may give directions as to the listing of the proceedings for call-over, mention, pre-trial conference or hearing.
4 Mode of amendment—directions
(1) Where the Court orders, or gives leave for, the making of an amendment, it 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, and may make any such order or leave conditional on compliance with any such directions.(2) Rules 5, 6 and 7 have effect subject to subrule (1).
5 Mode of amendment—simple amendments
(1) Where the amendments authorised under this Part 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) where the amendment is made pursuant to an order, the date of the order, or(b) where the amendment is made by a party without leave, a reference to the rule authorising the amendment.(3) The marking mentioned in subrule (2) shall:(a) where the amendment is made pursuant to an order, be carried out by the registrar and sealed with the seal of the Court, or(b) where the amendment is made by a party without leave, be carried out by the party and initialled by him.
6 Mode of amendment—fresh document
Subject to rule 5 (1), amendments authorised under this Part 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 5 (2).
7 Service after amendment
Where a document has been served and is afterwards amended, the party who filed the document 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 5—a notice specifying the amendment and the matters mentioned in rule 5 (2), or(b) if the amendment is made under rule 6—the fresh document.
8 Award order or certificate
(1) Where there is a clerical mistake, or an error arising from an accidental slip or omission, in an award or order, or in a certificate, the Court, on the application of a party or without any such application, may, at any time, correct the mistake or error.(2) Rules 5, 6 and 7 do not apply to a correction made under subrule (1).
9 Costs
(1) Where a party amends a document under this Part, with or without leave, he shall, unless the Court otherwise orders, pay the costs of any other party of and occasioned by the amendment.(2) This rule applies except where otherwise provided in section 18 of the Act.
Part 16 Withdrawal and discontinuance
1 Discontinuance
(1) A party may discontinue proceedings so far as concerns the whole or any part of any claim made by him:(a) if no preliminary advice of hearing or notice of call-over has been issued in the proceedings—without leave of the Court or consent of any other party, or(b) after a preliminary advice of hearing or notice of call-over has been issued in the proceedings—with the consent of all other parties or by leave of the Court.(2) Application for the leave of the Court as mentioned in subrule (1) (b) may be made:(a) if made on not less than 3 days’ notice to all other parties at a time when the proceedings are before the Court for another purpose—orally, or(b) if made otherwise—by motion under Part 14.
2 Withdrawal
(1) A party raising any matter in an answer may withdraw that matter at any time.(2) Subrule (1) does not enable a party to withdraw, without the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of that other party.
3 Terms of leave
The Court may give leave under rule 1 or rule 2 on terms.
4 Want of prosecution
(1) Where an applicant does not within a reasonable time take any step necessary to bring any proceedings to a hearing, or unreasonably takes any step to avoid the proceedings being brought to a hearing, the Court may, on the application of the respondent, order on terms that the proceedings be dismissed or make such other order as the Court thinks fit.(2) Where proceedings are dismissed under subrule (1), rules 7, 8 and 9 apply as though the dismissal were a discontinuance.
5 Mode of discontinuance or withdrawal
(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 consent shall be endorsed by each consenting party on the notice before filing.
6 Service
A party filing a notice under rule 5 shall, on the day of filing or as soon as practicable thereafter, serve the notice on each other party.
7 Costs
(1) Where a party to any proceedings discontinues the proceedings as to the whole or any part thereof, the Court may, if it thinks fit, on the application of another party against whom the discontinued claim was brought and who does not consent to the discontinuance, order the party to pay the costs of the other party.(2) The costs payable to a party by virtue of an order under subrule (1) shall be the costs of the party occasioned by the discontinued claim and reasonably incurred before service on the party of notice of the discontinuance.(3) This rule applies except where otherwise provided in section 18 of the Act.
8 Effect of discontinuance
A discontinuance under this Part as to any claim for compensation shall not be a defence to proceedings on the same, or substantially the same, claim for compensation.
9 Stay to secure costs
Where:(a) a party discontinues proceedings so far as concerns the whole or any part thereof,(b) he is, by virtue of any order under rule 7 (1), liable to pay the costs of another party occasioned by the proceedings, andthe Court may stay the further proceedings until those costs are paid.(c) before payment of the costs, he brings against that other party further proceedings on the same or substantially the same claim for compensation as that on which the discontinued proceedings were brought,
10 Proceedings stood over generally
(1) Where proceedings are stood over generally on terms allowing a party to restore the proceedings for hearing, and the proceedings are not so restored within 6 months after they are so stood over, the proceedings shall, unless the Court otherwise orders, be deemed to have been discontinued by the applicant on the last day of that period of 6 months.(2) (Repealed)
Part 17 Third party procedure
1 Third party notice
(1) Where a respondent in any proceedings claims as against any person (in this Part called the third party) that the respondent is entitled to:(a) contribution towards or indemnity for any compensation he is ordered in the proceedings to pay to or on behalf of the applicant, orthe respondent may, not later than the filing of his answer in the proceedings, or, where no answer is filed, within 28 days after service of the originating process in the proceedings, file a third party notice.(b) any other relief or remedy relating to or connected with the subject of the proceedings,(2) A third party notice shall contain such particulars of the respondent’s claim against the third party as the originating process would be required to contain if the respondent had separately claimed against the third party in respect of that claim.(3) A respondent shall when filing a third party notice lodge with the registrar as many copies of the notice as there are parties already in the proceedings.(4) The registrar shall, as soon as practicable after any copies are lodged with him under subrule (3):(a) seal the copies,(b) give or send by post one of the copies to the applicant or his solicitor, and(c) return the others of the copies to the respondent.
2 Stay of proceedings
(1) Where a respondent who has filed an answer in any proceedings files a third party notice, the proceedings shall be stayed until the third party files an answer to the respondent’s claim against him, or until the expiration of 28 days after service on the third party of the third party notice, whichever first occurs.(2) Where proceedings are stayed under subrule (1) and the third party notice is not served on the third party, or an affidavit of that service is not filed, within a reasonable time, the Court may, on the application of the applicant in the proceedings, remove the stay.
3 Service
(1) A respondent who files a third party notice shall as soon as practicable thereafter serve, or cause to be served, the third party notice on the third party, on every other party to the proceedings other than the applicant and any insurer nominated, and, where the third party was not a party to the proceedings before the service of the third party notice, shall also serve on the third party a copy of the originating process and every answer filed in the proceedings before the filing of the third party notice.(2) A respondent who has served, or caused to be served, a third party notice on the third party shall as soon as practicable thereafter file an affidavit of that service and inform each party to the proceedings, other than that respondent and the third party, in writing, of the date of that service.
4 Rights and liabilities of third party
(1) A third party shall, as from the time of service upon him of a third party notice, be a party to the proceedings in which the notice was filed, and, subject to the rules, he shall have the same rights, and be subject to the same liabilities, in respect of the proceedings as he would have had and been subject to if the respondent has separately claimed against him in respect of the claim the subject of the proceedings.(2) Without limiting the generality of subrule (1), the third party shall be subject to the provisions of Part 11 as to the filing of an appearance or an answer in the proceedings, and he shall include in any answer filed by him any grounds on which he disputes the applicant’s claim against the respondent as well as any grounds on which he disputes the respondent’s claim against the third party.
5 Hearing
(1) The Court may direct what part the third party shall take in the hearing of the proceedings and generally the extent to which the usual procedures at a hearing shall be modified because of the joinder of the third party.(2) As between the respondent by whom the third party notice has been given and the third party, the Court may grant to either of them any relief or remedy which might properly have been granted if the claim against the third party had been made in separate proceedings, and may give such decision for either of them against the other as may be just.(3) A respondent shall not, except by leave of the Court (which leave may be granted on terms), enforce any decision given in his favour against a third party until any decision given in favour of the applicant against the respondent in the same proceedings has been satisfied.
6 Separate hearings
The Court may, if the hearing in the one proceedings of the issues between the applicant and the respondent and the issues between the respondent and the third party would in its opinion embarrass or delay the hearing of the proceedings or be otherwise inconvenient, order separate hearings or make such other order as it thinks fit.
7 Fourth and subsequent parties
(1) Where a third party makes against any person such a claim as is mentioned in rule 1 (1) the third party may join the person as a fourth party in the proceedings, and subsequent parties may be joined in succession in the like circumstances, each by the party previous to him in order of joinder.(2) The provisions of this Part apply to parties joined subsequently to the third party as though in each group of 3 parties successively joined the first of those parties were an applicant, the second a respondent, and the third a third party.
8 Co-respondents
A person may be joined as a third party under this Part in any proceedings notwithstanding that he is already one of the respondents in the proceedings.
9 Costs
(1) Where a third party has been joined in any proceedings the Court:(a) may order any party to pay the costs incurred by any other party,(b) may order any party to pay any costs which would otherwise be payable by any other party,(c) may make such other order as to costs as the justice of the case may require, and(d) (Repealed)(2) Costs in any proceedings in which a third party has been joined shall, subject to any order or direction of the Court under subrule (1):(a) (Repealed)(b) be recoverable by a party against another party only to the extent of the issues between those parties, and not to the extent of any costs payable by the first mentioned party.(3) This rule applies except where otherwise provided in section 18 of the Act.
Part 18 Discovery and inspection of documents
Division 1 Discovery
1 Order for general discovery
The court may, at any stage of any proceedings, order any party to file and serve on any other party:(a) a list in accordance with rule 2 of documents relating to any matter in question in the proceedings, or(b) a list as mentioned in paragraph (a), verified by affidavit.
2 Contents of list
(1) A list of documents required by or under this Part shall, unless the Court otherwise orders, conform to the requirements of this rule.(2) A list of documents shall enumerate the documents which are or have been in the possession, custody or power of the party making the list.(3) A list of documents shall enumerate the documents in a convenient sequence and as shortly as possible, but shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified.(4) Where a party making a list of documents claims that any document in his possession, custody or power is privileged from production, he shall, in the list, sufficiently state the grounds of the privilege.(5) A list of documents shall distinguish those documents which are in the possession, custody or power of the party making the list from those that have been but are not in his possession, custody or power.(6) A list of documents shall, as to any document which has been but is not then in the possession, custody or power of the party making the list, state when he parted with the document and what has become of it.(7) A list of documents shall appoint a time within 7 days after service of the list when, and a place where, the documents in the list which are in the possession, custody or power of the party making the list, and as to which the party makes no claim of privilege, may be inspected.(8) Where a party making a list of documents has a solicitor in the proceedings, the solicitor shall certify on the list that, according to his instructions, the list and the statements in the list are correct.
3 Order for particular discovery
Where, at any stage of any proceedings, it appears to the Court, from evidence or from the nature or circumstances of the case or from any document filed in the proceedings, that there are grounds for belief that some document or class of documents relating to any matter in question in the proceedings may be or may have been in the possession, custody or power of a party, the Court may order that party:(a) to file an affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it, and(b) to serve the affidavit on any other party.
4 Deponent
(1) Subject to subrule (2), an affidavit verifying a list of documents of a party or an affidavit to be filed by a party pursuant to an order under rule 3 may be made as follows:(a) by the party,(b) where the party is a corporation, by an officer of the corporation,(c) 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,(d) where the party is a Government employer within the meaning of the 1998 Act, other than the Crown, by an officer of that employer.(2) Where the party is a person to whom subrule (1) (b), (c) or (d) applies, and the affidavit is to be filed and served pursuant to an order, the Court may:(a) specify by name or otherwise the person to make the affidavit, or(b) specify by description or otherwise the persons from whom the party may choose the person to make the affidavit.(3) Subject to subrule (2), where the party is a person to whom subrule (1) (b) (c) or (d) applies, the party shall choose a person to make the affidavit who is qualified under the relevant paragraph and has knowledge of the facts.
5 Absence of privilege
(1) Except with the leave of the Court, a party to any proceedings may not claim to be excused from production of any document on the ground that it relates solely to and does not tend to impeach his own case and does not relate to or tend to support the case of any opposing party.(2) Leave under subrule (1) shall not be granted except for special cause.(3) Any application to the Court for leave under subrule (1) may be made without serving notice of the motion.
5A Privilege
For the purposes of this Part, a document shall be privileged from production if it is a privileged document or thing.
Division 2 Inspection
6 Document referred to in document filed
(1) Where an originating process, answer, third or subsequent party notice, or affidavit filed by a party refers to a document, any other party may, by notice to produce served on him, require him to produce the document for inspection.(2) Where a notice to produce a document is served on a party under subrule (1), he shall, within 14 days after that service, serve on the party requiring production a notice:(a) appointing a time within 7 days after service of the notice under this subrule when, and a place where, the document may be inspected,(b) claiming that the document is privileged from production and sufficiently stating the grounds of the privilege, or(c) stating that the document is not in his possession, custody or power and stating to the best of his knowledge information and belief where the document is and in whose possession, custody or power it is.
7 Order for production
(1) Where:(a) it appears from a list of documents filed by a party under this Part that any document is in his possession, custody or power,(b) an originating process, answer, third or subsequent party notice, or affidavit filed by a party refers to any document, orthe Court may, unless the document is privileged from production, order the party:(c) it appears to the Court, from evidence or from the nature or circumstances of the case or from any document filed in the proceedings, that there are grounds for a belief that any document relating to any matter in question in the proceedings is in the possession, custody or power of a party,(d) to produce the document for inspection by any other party at a time and place specified in the order, or(e) to file and serve on any other party a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy.(2) An affidavit made pursuant to an order under subrule (1) (e) shall, unless the Court otherwise orders, state whether there are in the document copied, and if so what, erasures, interlineations or alterations.
8 Power to take copies
A party to whom a document is produced for inspection under this Part may take copies of the document.
9 Production to the Court
(1) The Court may, at any stage of any proceedings, order any party to produce to the Court any document in his possession, custody or power relating to any matter in question in the proceedings.(2) Upon production of a document to the Court pursuant to an order under subrule (1), the Court may deal with the document in such manner as it thinks fit.
10 Inspection to decide objection
Where an application is made for an order under rule 7 for the production of any document for inspection by another party or for an order under rule 9 for the production of any document to the Court, and a claim is made that the document is privileged from production or an objection to production is made on any other ground, the Court may inspect the document for the purpose of deciding the validity of the claim or objection.
Division 3 General
11 Order only if necessary
The Court shall not make an order under this Part for the filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made.
12 Default
(1) Where a party makes default in filing or serving a list of documents or affidavit or other document or in producing any document as required under this Part, the Court may make such order as it thinks fit, including:(a) an order that the party in default pay the costs of any other party occasioned by the default,(b) if the party in default is the applicant, 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(c) if the party in default is a respondent, an order that his answer be struck out and that default judgment be given against him.(2) This rule applies except where otherwise provided in section 18 of the Act.
13 Public interest
This Part does not affect any rule of law which authorises or requires the withholding of any document on the ground that its disclosure would be injurious to the public interest.
Part 19 Interrogatories
1 Order to answer
(1) The Court may, at any stage of any proceedings, order any party to file and serve on any other party (whether the interrogating party or not):(a) a statement in accordance with rule 2 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.
2 Contents of statement
(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 or her and the party requiring the answer,(b) that the interrogatory is vexatious or oppressive,(c) unless and until the Court directs that the question shall not be prevented by this subrule:(i) that evidence in answer to a question in terms of the interrogatory could not be adduced in the proceedings over the objection of any person, by virtue of the operation of part 3.10 Division 1 of the Evidence Act,(ii) that an answer to the interrogatory could disclose:(A) 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, where:(I) consent by the protected confider within the meaning of section 126C of the Evidence Act has not been given to disclosure of the confidence, contents or information, and(II) section 126D of the Evidence Act would not operate to stop Part 3.10 Division 1A of the Evidence Act from preventing the adducing of evidence in respect of the confidence, contents or information,(B) (Repealed)(iiA) a document of which evidence could not be adduced in the proceedings by virtue of the operation of section 126H of the Evidence Act,(iii) where the party is a natural person, that an answer to the interrogatory may tend to prove that the party:(A) has committed an offence against or arising under an Australian law or a law of a foreign country, orwithin the meaning of section 128 of the Evidence Act,(B) is liable to a civil penalty,(iv) that admission or use in a proceeding of evidence in answer to a question in terms of the interrogatory would be contrary to section 129 of the Evidence Act,(v) 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,(vi) that an answer to the interrogatory would disclose a communication or a document to which section 131 of the Evidence Act applies,(vii) that an answer to the interrogatory would disclose or result in disclosure of information the disclosure, admission or use of which in the proceedings would be contrary to any Act or Commonwealth Act other than the Evidence Act or the Evidence Act 1995 of the Commonwealth.(4) On an objection under subrule (2) (b) to answer an interrogatory, the Court may:(a) order that an answer to that interrogatory shall not be required,(b) limit the extent to which an answer to that interrogatory shall be required, or(c) require the objecting party to specify on what grounds he objects to answer that interrogatory and determine the sufficiency of the objection.(5) Where the Court determines under subrule (4) (c) that an objection to answer an interrogatory is not sufficient the objecting party shall not be entitled to object to answer that interrogatory.
3 Deponent
(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 corporation, by an officer of the corporation,(c) 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,(d) where the party is a Government employer within the meaning of the 1998 Act, other than the Crown, by an officer of that employer.(2) Where the party is a person to whom subrule (1) (b), (c) or (d) applies, and the affidavit is to be filed and served pursuant to an order, the Court may:(a) specify by name or otherwise the person to make the affidavit, or(b) specify by description or otherwise the persons from whom the party may choose the person to make the affidavit.(3) Subject to subrule (2), where the party is a person to whom subrule (1) (b), (c) or (d) applies, the party shall choose a person to make the affidavit who is qualified under the relevant paragraph and has knowledge of the facts.
4 Insufficient answer
(1) Where a party fails to answer an interrogatory sufficiently, the Court may:(a) if he has made an insufficient answer, order him to make a further answer verified by affidavit in accordance with rule 3, or(b) order him or any of the persons mentioned in rule 3 (1) (b), (c) or (d), as the nature of the case requires, to attend to be orally examined.(2) Subrule (1) does not limit the powers of the Court under rule 5.
5 Default
Where a party makes default in compliance with an order under rule 1 or rule 4 to file or serve a statement or affidavit, the Court may make such order as it thinks fit, including:(a) if the party in default is an applicant, 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 respondent, an order that any answer filed by him be struck out and that default judgment be given against him.
6 Answers as evidence
(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.
7 Public interest
This Part does not affect any rule of law which authorises or requires the withholding of any matter on the ground that its disclosure would be injurious to the public interest.
Part 20 Medical examinations, inspection of property etc
Division 1 Medical examinations
1 Application and interpretation
(1) This Division applies to a medical examination (other than examination by a medical referee or medical panel as provided in the 1998 Act) required, ordered or conducted for the purposes of proceedings in the Court.(2) In this Division:medical examination includes any examination by a medical expert, but does not include tests mentioned in Division 2.medical expert includes medical practitioner and dentist.worker means a worker as defined in the 1998 Act in respect of whom proceedings are commenced.
2 Notice of examination
(1) Subject to this rule, any party or insurer of a party may serve on a worker a notice for the medical examination of the worker.(2) A notice for medical examination shall be a reasonable request by the party giving the notice that the worker submit to examination by a specified medical expert at a specified time and place.(3) Except by leave of the Court, which may be given on terms, or consent of the worker, a notice shall not be given under subrule (1) requesting that a worker submit to examination:(a) by a medical expert specialising in a particular field of practice if the worker has already been examined, at the request of the party giving the notice, by another medical expert specialising in that field, or(b) by the one medical expert:(i) more than twice in respect of the one proceedings, or(ii) at intervals of less than 2 months.(4) An examination to which the worker submits himself for the purposes of section 119 of the 1998 Act is not an examination by a medical expert for the purposes of subrule (3).
3 Expenses
(1) A party who serves a notice for medical examination, or on whose application the Court makes an order under rule 5 for medical examination, of a worker shall, on request by the worker, pay to the worker a reasonable sum to meet the travelling and other expenses of the worker of and incidental to the medical examination, including any wages lost by the worker.(2) Where a worker claims that he has not been paid a reasonable sum as required by subrule (1), he may so advise the registrar, who may, if he thinks fit, report the matter to the Court.(3) Where the registrar reports a matter to the Court under subrule (2), subject to any order of the Court the worker remains liable to comply with the notice or order for his medical examination, but the Court may direct a party to pay such sum as the Court thinks fit in discharge of the party’s obligation under subrule (1).
4 Non-compliance with notice
Where a notice for medical examination of a worker is served pursuant to rule 2, the worker does not submit to examination in accordance with the notice, and the Court is of opinion that there was no reasonable excuse for his not so submitting, the Court may, on terms, stay proceedings as to any claim for compensation made in the Court in respect of the worker.
5 Order for examination
(1) The Court may, on terms, make orders for the medical examination of a worker in respect of whom a claim for compensation is made in the Court, including an order that the worker submit to examination by a specified medical expert at a specified time and place.(2) Where the Court orders that a worker submit to examination by a medical expert, the worker shall do all things reasonably requested, and answer all questions reasonably asked, of him by the medical expert for the purposes of the examination.
Division 1A Medical referees and medical panels
5A Application for reference
(1) An application for reference to a medical referee or medical panel shall be lodged with the registrar together with sufficient copies for every respondent to the application.(2) (Repealed)(3) The registrar shall endorse on or attach to the application and on sufficient copies of the application a notice containing the following matter:(a) where any respondent to the application objects to the reference applied for, that respondent may, within 21 days from the date of the notice, request that the application be listed before the registrar for argument and determination,(b) any such request shall be made in accordance with Part 5 rule 9A, andand shall send a copy of the application so endorsed to every respondent to the application.(c) that, in certain circumstances, a certificate or determination of a medical referee or medical panel may be conclusive evidence of the worker’s condition,(4) (Repealed)(5) In the application of section 122 of the 1998 Act for the purposes of section 122 (12) of that Act, section 122 (2) of that Act shall be construed as requiring any application to be made jointly by the worker and the employer.
5B Certificate
(1) A certificate given under section 122 (5) of the 1998 Act shall be in or to the effect of the approved form.(2) The registrar shall as soon as practicable after receiving a certificate furnish a copy to each party to the application.rule 5B: Ins 21.7.2000.
Division 2 Rehabilitation assessment
6 Application and interpretation
(1) This Division applies to proceedings in which the extent of impairment of the earning capacity of a worker due to an injury or injuries to that worker is relevant to any matter in question.(2) In this Division, occupational rehabilitation service has the meaning which it has for the purposes of section 59 of the 1987 Act.
7 Order for rehabilitation tests
(1) The Court may, on terms, make orders for such testing of the worker as to the Court may seem proper for the purpose of assisting the Court to assess the extent of impairment of the worker’s 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 rehabilitation centre conducted by a hospital, or(b) a place providing an occupational rehabilitation service.(2) Where the Court makes an order under subrule (1) that a worker submit to tests, the worker 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 applicant in the proceedings of any expense or loss incurred in complying with the order.
Division 3 Inspection of property etc
8 Inspection of property etc
(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.
9 (Repealed)
Division 4 Default
10 Default
(1) Where a party (whether or not the party is a worker) makes default in compliance with an order under this Part, or in compliance with rule 5 (2) or 7 (2), and the Court is of opinion that there was no reasonable excuse for the default, the Court may make such order as it thinks fit, including:(a) an order that the party in default pay the costs of any other party occasioned by the default,(b) if the party in default is an applicant, an order that the proceedings be stayed or dismissed as to the whole or any part thereof, or(c) if the party in default is a respondent, an order that any answer filed by him be struck out and that default judgment be given against him.(2) This rule does not limit any power of the Court to punish for contempt.(3) This rule applies except where otherwise provided in section 18 of the Act.
Part 21 Evidence by deposition
1 Order for examination of witness
The Court may, for the purpose of any proceedings, on terms, make an order allowing the evidence of any witness (whether a party to the proceedings or not) to be taken, prior to the hearing of the proceedings, on examination under this Part in New South Wales or elsewhere before:(a) any Judge or commissioner, sitting in Court, in chambers or elsewhere,(b) any registrar,(c) a notary public,(d) a justice of the peace,(e) a practising barrister or solicitor, or(f) such other person as the Court, in the special circumstances of the case, may think fit to appoint, specified in the order as examiner.
2 Evidence admissible
The evidence of a witness taken under rule 1 shall be admissible, subject to all just exceptions, at the hearing of the proceedings unless it is proved that the witness is, at the time of the hearing, within a convenient distance of the place at which the proceedings are being heard and able to attend.
3 Expenses
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 hearing of the proceedings before the Court.
3A Evidence otherwise than on oath
Unless the Court otherwise orders, a person may be examined in another country pursuant to an order under rule 1 otherwise than on oath or affirmation if the person is examined in accordance with the procedure of that country.rule 3A: Ins 21.7.2000.
4 Documents for examiner
(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.
5 Appointment for examination
(1) Subject to any order of the Court, 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 reasonable notice of an appointment under this rule to the party obtaining the order, and that party shall give reasonable notice of the appointment to each other party.
6 Conduct of examination
(1) The examiner shall permit each party, his counsel and solicitor, and any other person in respect of whom leave of the Court is granted under Part 11 rule 1 (1), to attend the examination.(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 hearing before the Court.(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.
7 Examination of additional persons
(1) Where the examiner is a Judge or commissioner, 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 or commissioner, 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 the examiner does so, shall annex to the written record or transcript of the depositions of that person the consent of each of the parties.
8 Objection
Where objection is taken to a question put to a witness being examined before an examiner, or a witness being so examined takes objection to answering a question put to him or to produce 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) shall be set out in the deposition of the witness or in a statement attached to the deposition,(c) the Court shall, at the hearing of the proceedings or on application by any party, decide the validity of the ground for the objection, and(d) subject to section 18 of the Act, if the Court decides against the objector, the Court may order him to pay any costs occasioned by the objection.
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 shall contain as nearly as may be the statement of the witness examined.(3) The examiner may direct that the words of any question and the answer to the question be set out in the deposition.(4) Subject to subrules (2) and (3) and to rule 8 (b), the deposition need not set out every question and answer.
9A 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.
10 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.(1A) 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.(2) The examiner shall authenticate by the examiner’s signature the written record or transcript of the deposition and any document which constitutes a recording under rule 9A.(3) 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 (or payable to) him in respect of the examination.(4) The examiner shall send the written record or transcript of the deposition and any document which constitutes a recording under rule 9A to the registrar and the registrar shall file it or them in the proceedings.(5) The examiner shall, unless the Court otherwise orders, send to the registrar any exhibits which were before the examiner, and the registrar shall deal with the exhibits in such manner as the Court may direct.(6) Subrules, (1), (3) and (4) do not apply where the examiner is a Judge or a commissioner.
11 Special report
(1) The examiner may make to the Court a special report with regard to an examination before him and with regard to the absence of any person from, or the conduct of any person at, the examination.(2) The Court may direct such proceedings to be taken, or make such order, on the report as the Court thinks fit.
12 Perpetuation of testimony
(1) Witnesses shall not be examined to perpetuate testimony unless proceedings have been commenced for the purpose.(2) Any person may commence proceedings to perpetuate testimony which may be material for establishing any right or claim to any relief which the Court might grant, and which right or claim cannot be established before the happening of a future event.(3) Where proceedings to perpetuate testimony touch any matter or thing in which the WorkCover Authority may have an interest, that Authority shall be made a respondent to those proceedings.
Part 22 Hearing
1 Time and place of hearing
(1) Where a date for the hearing of any proceedings has been fixed, the hearing of the proceedings may be held on that or any later date.(2) Notwithstanding subrule (1) and notwithstanding the fixing of a date for the hearing of any proceedings, the Court may make such order as it thinks fit for fixing the time and place of hearing.
2 Proceedings called on for hearing
(1) Subject to the rules, where proceedings are called on for hearing:(a) if the applicant and a respondent appear, the Court may proceed to hear and dispose of the proceedings as against that respondent, or(b) if the applicant does, but a respondent does not, appear, the Court may proceed to the hearing of the proceedings against that respondent on the part of the applicant, and may make an award.(2) Where the Court proceeds to the hearing of any proceedings on the part of the applicant, as referred to in subrule (1) (b), its decision in the proceedings:(a) may, on sufficient cause being shown, be set aside by order of the Court on terms, and(b) shall, if not set aside, be as final and conclusive between the parties to the proceedings as if all parties had appeared.
3 Striking out of proceedings
(1) The Court may, if it thinks fit, strike out any proceedings at any time on terms, and without affecting the generality of the foregoing provisions of this subrule, the Court may so strike out any proceedings if:(a) no party appears, or(b) a respondent does, but the applicant does not, appear.(1A) Where proceedings which have not been heard, part heard or discontinued, and in which a preliminary advice of hearing or notice of call-over has been issued, have not been before the Court during any period of 6 months, the proceedings are, unless the Court otherwise orders, deemed to have been struck out.(2) Where proceedings are struck out under subrule (1) or (1A), the Court may, on the application of any party, order that the proceedings be reinstated on terms, and without affecting the generality of the foregoing provisions of this subrule, the proceedings may be reinstated upon such terms and conditions as to costs, the staying of the proceedings until payment of costs, and the priority of the hearing of the proceedings as the Court thinks fit.(3) Subrule (2) applies except where otherwise provided in section 18 of the Act.
4 Conduct of the hearing
(1) For the purposes of this rule:(a) where the burden of proof on any issue lies on the applicant, he shall be the beginning party and the respondent shall be the opposite party, and(b) where the burden of proof on all the issues lies on the respondent, he shall be the beginning party and the applicant shall be the opposite party.(2) The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the hearing of any proceedings.(3) Subject to subrule (2):(a) where the only parties to any proceedings are one applicant and one respondent, the order of evidence and addresses shall be as provided by subrules (4) to (7), and(b) in any other case, the order of evidence and addresses shall be as provided in subrules (4) to (7), 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.
5 Obligation of party
A party shall limit evidence, including cross-examination, to that which is reasonably necessary to advance and protect that party’s interests which are at stake in the proceedings.
Part 23 Evidence: general
1 Interpretation
In this Part:issue at a hearing means an issue of fact at a hearing arising on any claim for relief in the proceedings, and includes a question of fact at the hearing of an application for default judgment under Part 10 rule 1 (1).hearing means a hearing in any proceedings other than proceedings to which Division 2 or 3 of Part 5 applies, and includes the hearing of an application for default judgment under Part 10 rule 1 (1).
2 Witness at a hearing
(1) Subject to subrule (2), the evidence of any witness on any issue at a hearing shall be given orally before the Court.(2) Subrule (1) applies subject to the Act, the Workers Compensation Acts, the rules, any provision for the time being made by or under any other Act, any direction of the Court and any agreement between the parties.
2A Evidence by telephone, video link, etc
Subject to the Evidence (Audio and Audio Visual Links) Act 1998 and to Part 4 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth, 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.
3 Witness on other occasions
(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 Evidence by affidavit
(1) The Court may, on terms, order in any proceedings that evidence of particular facts may be given by affidavit.(2) Where the only matters in question in any proceedings are a claim for interest under section 109 of the 1998 Act and costs, evidence of facts relating to the matter of interest may, unless the Court otherwise orders, be given by affidavit.
5 Hearsay and copies
(1) This rule does not apply to evidence on an issue at a hearing.(2) Subject to subrule (1), subrules (3) and (4) apply where undue delay or hardship would otherwise be caused.(3) Where a statement on information and belief is made by a deponent in an affidavit, or by a witness being examined orally, and the deponent or witness gives the source and ground of the information, the statement shall not be inadmissible on the ground that it is hearsay.(4) Where a deponent swears in an affidavit, or a witness being examined orally states, that a document is a copy of an original, the document shall not be inadmissible as evidence of the contents of the original on the ground that the original is not produced.
6 Earlier evidence in the proceedings
(1) Subject to subrule (2), evidence taken in the proceedings may be used subsequently in the proceedings.(2) Subrule (1) does not enable the use, as evidence on any issue at a hearing, of evidence taken before the hearing, but:(a) evidence at a hearing may be used on the hearing of an application for default judgment under Part 10 rule 1 (1) in the same proceedings, and(b) evidence taken in proceedings may, with the leave of the Court, be used as evidence on any issue at a hearing in the proceedings in relation to the proof of particular facts.
7 Depositions
(1) Subject to this Part, a deposition taken in any proceedings is not admissible in evidence in the proceedings unless taken pursuant to Part 21.(2) Subject to subrule (3), a deposition taken in any proceedings (other than a deposition taken pursuant to Part 21) is not admissible in evidence on any issue at a hearing 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 hearing.(3) The Court may admit a deposition in evidence on any issue at a hearing in relation to the proof of particular facts.(4) Except as evidence on any issue at a hearing, a deposition taken in any proceedings is admissible 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.
8 Expert’s reports and hospital reports
(1) In this rule:(a) expert’s report means a statement by an expert in writing which sets out the expert’s opinion and the facts on which the opinion is formed and which contains the substance of the expert’s evidence which the party serving the statement intends to adduce in evidence in chief at the hearing, and includes:(i) a statement in writing made by a medical expert, as defined in Part 20 rule 1 (2), and(ii) a statement in writing made by a medical practitioner as defined in section 59 of the 1987 Act,(b) hospital report means a statement in writing concerning a patient made by or on behalf of a hospital which the party serving the statement intends to adduce in evidence in chief at the hearing,(c) party includes any person who has filed an appearance or answer.(2) This rule applies in respect of any proceedings subject to the Evidence Act, the Workers Compensation Acts and any regulations made thereunder and to any orders of the Court or agreement between the parties not inconsistent with such Acts or regulations.(3) Each party in any proceedings may, at least 28 days before such party seeks to tender them, serve experts’ reports and hospital reports on each other party to the proceedings.(4) Where an expert’s report is served in accordance with subrule (3), or an order is made under subrule (2), 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.(5) Except where otherwise provided in the Workers Compensation Acts, and unless the Court otherwise orders, a party may require the attendance for cross examination of the expert.(6) A party who requires the attendance of a person under subrule (5) shall procure that attendance, and, whether the party procures the attendance by the issue and service of a subpoena or otherwise, the person shall not thereby become the party’s witness except for the purpose of determining any liability for conduct money or witness’ expenses.(7) A party who requires the attendance of a person as mentioned in subrule (6) shall as soon as practicable inform all other parties to the proceeding that he has done so.(8) Where a person who has made a report is cross examined, the party tendering the report may re-examine him.(9) Where a hospital report is served in accordance with subrule (3) or an order is made under subrule (2), the report is admissible.(10) In reckoning the period of 28 days referred to in subrule (3):(a) any day on which the matter is listed for hearing shall not be counted, and(b) where the hearing is not on consecutive days, any period of less than 28 days between hearing days shall not be counted.(11) Where a party has been served with an expert’s report or a hospital report by another party and the first party seeks to rely on such report, it shall not be necessary to serve a copy of that report on the party who served it but the first party shall give notice of intention to rely on the report to the party who served it and to each other party in the proceedings, within the time prescribed by subrule (3).(12) This rule does not apply to an expert’s report if:(a) the expert resides outside the Commonwealth of Australia, orunless the Court orders otherwise.(b) the expert is resident in or near a place in which the hearing began or was continued but from which place the hearing has been adjourned to some other place,
8A Notice
(1) Notice for the purposes of section 67 or 99 of the Evidence Act shall, unless the Court otherwise orders, be given 28 days before the party seeks to adduce the evidence.rule 8A: Ins 15.9.1995. Am 12.11.1999.
9 Evidence in other proceedings
(1) A party may, with the leave of the Court, but saving all just exceptions, read evidence taken, or an affidavit filed, in other proceedings.(2) Subrule (1) does not allow evidence taken, or an affidavit filed, in other proceedings to be read as evidence on any issue at a hearing, except in relation to the proof of particular facts.
10 Plans, photographs and models
(1) Where a party intends to tender any plan, photograph or model at a hearing, he shall, not later than 7 days before the commencement of the hearing, give the other parties an opportunity to inspect it and to agree to its admission without proof.(2) Non-compliance with subrule (1) shall not affect the admissibility of a plan, photograph or model.
11 Proof of Court documents
(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.
12 Production of Court documents
Where, for the purpose of any proceedings, a person, by request in writing, requires a registrar to produce to the Court any document in the custody of that registrar, that registrar shall, unless the Court otherwise orders, produce the document in accordance with the request.
13 Attendance and production
(1) The court may make orders for:(a) the attendance of any person for the purpose of being examined, or(b) the attendance of any person and production by him of any document or thing specified or described in the order, or(c) production by any corporation of any document or thing 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 Court or any registrar, examiner, arbitrator, or other person authorised to take evidence, on any hearing or other occasion.(3) Subrules (1) and (2) apply whether or not the person for whose attendance the order is made has been required to attend by subpoena.
14 Leading questions to witness
Where a person is examined in relation to an investigation, inspection or report made by him in the course of carrying out public or official duties, the party calling the person may, unless the Court otherwise directs, examine that person by asking him leading questions.
14A Attendance of prisoner
1. This rule applies to an application for an order to bring up before the Court a prisoner for the purpose of the examination of that person in proceedings.2. An application for an order shall be made by filing a notice of motion and supporting affidavit.3. The notice of motion and supporting affidavit must be served on the governor of the correctional centre where the witness is confined at least 2 days before the return date of the motion.4. The Court may if it thinks fit dispense with the requirements of subrules 2 and 3 provided it is satisfied that adequate notice of the application has been given to the governor of the correctional centre.rule 14A: Ins 21.7.2000.
15 Privilege
(1) Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds that the document or thing is a privileged document or thing, 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 hearing or on any other occasion.(3A) Where a party to any proceedings claims privilege from production of any document or thing 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) This rule does not apply to an objection to produce any document or thing or to answer any question on the ground mentioned in subrule (4).
16 Production on notice
(1) Where a party to any proceedings serves on another party notice requiring the party served to produce at any hearing in the proceedings, or before any registrar, examiner, arbitrator or other person authorised to receive 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.(2) (Repealed)
Part 24 Subpoenas
1 Interpretation
In this Part:issuing officer means a registrar or a clerk of the Court in a registry.medical expert has the meaning it has for the purposes of Part 20.person named means, in relation to a subpoena, the person to whom the subpoena is addressed.
2 Conduct money
(1) A subpoena shall not require the person named to attend or to produce any document or thing on any day 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) An amount is not sufficient for the purpose of subrule (1) if it is less than the amount which would be payable in respect of the person named if the party issuing the subpoena were entitled to claim witness’ expenses in respect of that person as costs in the proceedings, including for travelling and other expenses:(a) for the distance necessary to be travelled by the person named in attending the Court:(i) if not exceeding 80 kilometres—80 cents per kilometre one way after the first kilometre, or(ii) if exceeding 80 kilometres—the reasonable cost of travel, and(b) for sustenance and accommodation, where necessarily incurred, such amount as having regard to all the circumstances is reasonable.
2A Expense and loss
Where a person named is not a party and in consequence of service of a subpoena, reasonably incurs expenses or loss substantially exceeding any sum paid under rule 2 or rule 9, 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.
3 Production
(1) The person named in a subpoena for production of any document or thing may produce the document or thing by post, courier or otherwise to the address of the Court stated on the subpoena.(1A) Unless the subpoena otherwise provides, the person named in a subpoena for production may produce clear, sharp photocopies of the documents the subject of the subpoena.(2) Where a document or thing is produced to a registrar pursuant to subrule (1), the registrar shall:(a) (Repealed)(b) produce the document or thing as the nature of the case requires or as the Court may direct.(3) (Repealed)(4) Where a document or thing is produced to a registrar pursuant to subrule (1) in compliance with a subpoena which is returnable on a day mentioned in rule 6 (5) (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.(5) Subrules (3) and (4) do not operate to prevent the issue of a further subpoena requiring the production of a document or thing returned by a registrar under either of those subrules.(6) This rule does not apply to so much of a subpoena as requires the person named to attend to testify in any proceedings.
4 (Repealed)
5 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 if the Court so orders.(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.
6 Issue
(1) On request by a party, an issuing officer shall issue a subpoena to give evidence or a subpoena for production or a subpoena both to give evidence and for production.(1A) A party may not, except with the leave of the Court or registrar, request the issue of a subpoena for production more than 6 weeks before the day on which the subpoena is to be made returnable.(2) Subrule (1) does not prevent the issue of a subpoena to give evidence and a subpoena for production to the same person in the same proceedings.(3) Subject to subrule (4), a party requesting the issue of a subpoena shall produce the subpoena to the issuing officer in duplicate.(4) (Repealed)(5) A party may require a subpoena for production of documents to be returnable on:(a)(i) a day not later than the last day for return of subpoena endorsed by the registrar on the notice of listing in the proceedings, or(ii) in any other case, the day fixed for the hearing of the proceedings or any day not more than 21 days before that day,(b) the day fixed for the hearing of any application ancillary to the proceedings, or any day not more than 21 days before that day,(c) the day fixed for any pre-hearing conference in the proceedings, or any day not more than 21 days before that day,(d) the day fixed for any call-over of the proceedings, or(e) with the leave of the Court or registrar, any other day.(5A) A party may, on or before requesting the issue of a subpoena for production, request the inclusion in the subpoena of a mention date for consideration of the making of an order under subrule (6).(5B) Where a subpoena for production is issued returnable on a day later than the last day for return, if any, endorsed under subrule (5) (a) (i), the registrar may direct that the subpoena include a mention date for consideration of the making of an order under subrule (6).(6) A party or his solicitor or barrister may:(a) inspect documents produced in compliance with a subpoena, andif the Court or the Registrar so orders, and any such order may be made on terms.(b) take copies of any documents so inspected,(6A) An order to inspect documents under subrule (6) shall be taken to include an order to take copies of any document so inspected unless the Court or the registrar otherwise orders.(7) Where the Court or the registrar orders under subrule (6) that parties may inspect documents and it is a term of that order that one party shall have first access to the documents, it shall, unless the Court or the registrar otherwise directs, be a further term (whether express or implied) of that order that:(a) where the order is made at a mention or hearing, inspection on behalf of that party shall be carried out within:(i) where the party is present when the order is made—14 days after the making of the order, or(ii) where the party is not present when the order is made—14 days after the party is notified in writing of the order by another party,(ai) where the order is made other than at a mention or hearing, inspection on behalf of that party shall be carried out within 14 days after the making of the order,(b) any claim for privilege in respect of any of the documents on behalf of that party shall be made at the conclusion of the inspection of the documents, and(c) any other party may inspect the documents as soon as the time for compliance has elapsed without inspection being carried out or, if the documents have been inspected on behalf of that party, at the conclusion of that inspection except for any of the documents in respect of which a claim for privilege is made on behalf of that party.(8) In subrule (7), a reference to a party includes a reference to the solicitor or barrister for the party.(9) Where a document is produced to the registrar in compliance with a subpoena and no mention date has been included in the subpoena pursuant to subrule (5A) or (5B), the registrar shall make an order under subrule (6) that the parties may inspect the document, and subrule (7) applies to any such order.(10) A party may apply to the registrar to rescind or vary any order made under subrule (9), and the registrar may rescind or vary the order as the registrar thinks fit.(11) Notwithstanding anything in Part 31, a party may not apply to the Court for any mandatory order, removal or review in relation to any order made under subrule (9) unless the party has applied to the registrar under subrule (10) and the registrar has had a reasonable opportunity to consider the application.
7 Mode of service
(1) Part 8 applies to service of a subpoena.(2) In addition to any mode of service prescribed or permitted by virtue of subrule (1), service of a subpoena on a medical expert may be effected at a place where the expert’s practice is carried on, by handing a copy of the subpoena to some person apparently engaged (whether as a servant or otherwise) in the practice and apparently of or above the age of 16 years.
8 Time for service
(1) A subpoena shall be served within a reasonable time.(2) Without limiting subrule (1), where a subpoena requires attendance or production or both on a specified date the subpoena shall, unless the Court or the registrar otherwise orders, be served at least 7 days, or, where the person named is a medical expert who is to give evidence as such an expert, 14 days, before the day on which it is returnable.(3) Without limiting subrule (1) or (2), where a subpoena requires a medical expert to attend in Sydney or Parramatta 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 or the registrar otherwise orders.(4) An order under subrule (2) or (3) may be made on terms, and those terms may include a requirement for the payment of money to the person named in the subpoena.(5) The parties may not by consent abridge any time fixed by or under subrule (2) or (3).
9 Production by medical expert
(1) A party may require 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.(2) A subpoena requested under subrule (1) shall not require the person named to attend or produce any document on any date specified unless an amount of not less than $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.(3) Rule 2 shall not apply to a subpoena requested under subrule (1).(4) Rule 3 shall apply to the photocopies as it applies to the records.
10 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.
11 Alteration to obligations
(1) A party who has requested the issue of a subpoena may, by written or oral notice to the person named, alter the day specified in the subpoena to a day which is:(a) later than the day specified in the subpoena and the day, if any, as last altered pursuant to this subrule, and(b) a day on which the party might require the subpoena to be returnable under rule 6 (5).(1A) Subrule (1) has no application in relation to a subpoena to give evidence where an order has been made vacating the hearing date specified in the subpoena.(2) Where the person named has not been called to give evidence or has not produced documents to 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.
12 Failure to comply with subpoena
(1) Where a person is brought before the Court or registrar in accordance with a warrant issued for the person’s failure to comply with the requirements of a subpoena, and the person seeks discharge from custody on the giving of an undertaking to comply with those requirements, the undertaking shall be in writing in the approved form.(2) Where an undertaking referred to in subrule (1) is for the production of a document or thing, then unless the Court or registrar otherwise orders the undertaking may be complied with by production of the document or thing to the registrar.
13 Privilege
Nothing in this Part compels a person on whom a subpoena is served to produce a privileged document or thing in connection with any application ancillary to the proceedings or at the hearing of the proceedings.
Part 25 Affidavits
1 Time for swearing
An affidavit for use in any proceedings may be sworn before or after the commencement of the proceedings.
2 Form
(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 before 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
(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
(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
(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
An affidavit may not be used without leave of the Court unless it has been filed.
7 Service
The Court may give directions concerning the service of affidavits.
8 Scandal etc
Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, the Court or registrar may order that:(a) the matter be struck out, or(b) the affidavit be taken off the file.
9 Cross-examination
(1) A party may require the attendance for cross-examination of a person making an affidavit.(2) A requirement under subrule (1) shall be made to the party filing or proposing to use the affidavit.(3) Where the attendance of a person is required under subrule (1) and he does not attend, his affidavit shall not be used without the leave of the Court.(4) Where a person making an affidavit is cross-examined, the party using the affidavit may re-examine him.
10 Affidavits of service
An affidavit of service shall contain:(a) a statement as to when, where, how and by whom service was effected,(b) a statement, using as nearly as practicable the actual words used by the person to whom the process was delivered, as to what, if anything, that person said, on the occasion of service, concerning the service or the subject matter of the proceedings, and(c) a statement that the deponent is over the age of 16 years, or is of a named class of persons who by virtue of their status, occupation or otherwise must be over that age.
Part 26 Awards, orders and enforcement
1 General relief
The Court may, at any stage of any proceedings, on the application of any party, give such decision 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 decision or order in any originating process.
2 Written opinion
Where the Court gives any decision or makes any order and the opinion of the Court is reduced to writing, it shall be sufficient to state orally the opinion without stating the reasons for the opinion, but the written opinion shall be then given by delivering it to the registrar for delivery to the parties.
3 Judicial notice of order
(1) In any proceedings, the Court may take judicial notice of any order of the Court.(2) In any proceedings, the Court may be informed of an order of the Court by (amongst other things) reference to a note made by, or by the direction of, the Judge, commissioner or registrar making the order.
4 Settling of award
(1) Where the Court gives a decision or makes a final order disposing of any proceedings, the registrar shall as soon as convenient prepare and settle a form of award engrossing the decision or order.(2) The registrar shall:(a) before 9.30 am on any day, cause to be listed on the notice board in the registry notice of any proceedings in which he proposes to settle the form of award that day,(b) permit any party to any proceedings to be present when he settles the form of award in the proceedings, and(c) sign and seal any form of award settled by him, and as soon as practicable cause a copy to be forwarded to each party, and any insurer of a respondent, to the proceedings.(3) The registrar may, if the registrar thinks fit, dispense with compliance with the requirements of subrules 2 (a) and 2 (b).
5 Application for certificate
(1) A person requiring the issue of a certificate under section 23 (1) of the Act of an award or order shall make application for the certificate by swearing and filing an affidavit containing and verifying a statement of:(a) the date of the award or order,(b) the amount of money originally payable under the award or order,(c) the amount of costs originally payable under the award or order, if that amount has been fixed by assessment of the costs or otherwise,(d) the total amount, if any, paid by the debtor under the award or order in reduction of the amount payable,(e) the total amount of any credits accrued in reduction of the amount payable otherwise than by payment,(f) the amount or amounts on which, and the date or dates from which, the person claims to be entitled to interest in respect of the amount payable,(g) such other particulars, if any, as are necessary to calculate the balance payable under the award or order,(h) the amount payable under the award or order on the date of swearing of the affidavit, and(i) the address of the place of residence or business of the debtor under the award or order.(2) An affidavit mentioned in subrule (1) shall not be filed if it is sworn more than 14 days before the day on which it is submitted for filing.
Part 27 Reconsideration and appeals from the Court
1 Reconsideration without application
The Court may of its own motion, on giving such notice to the parties as is reasonable in all the circumstances of the case, under section 17 (4) of the Act reconsider any matter which has been dealt with by it and rescind, alter or amend any decision previously made or given by the Court.
2 Application for reconsideration
(1) An application for the exercise by the Court of any of its powers under section 17 (4) of the Act shall be made by motion under Part 14.(2) An application mentioned in subrule (1) shall be made as soon as practicable after the person making the application becomes aware of any ground on which it is made, and before the person, if he is a party to the proceedings, takes any fresh step in the proceedings after becoming so aware.(3) An application mentioned in subrule (1) shall be supported by an affidavit or affidavits containing and verifying a statement as to:(a) with regard to the decision, order, award or other matter the subject of the application:(i) when, where, by whom, in what proceedings and between what parties it was made or dealt with,(ii) its terms,(iii) to what extent, and when and in what manner, it has been carried into effect, and(iv) in what respects it is sought to be rescinded, altered, amended or reconsidered,(b) the terms of any decision, order, award or other matter sought to be substituted,(c) the grounds on which the application is made,(d) full particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence alleged as a ground for the application,(e) when, where, from whom and in what manner the facts, matters or things in respect of each ground relied on first became known to the person making the application,(f) any steps taken in the proceedings by the person making the application after a fact, matter or thing mentioned in paragraph (e) became known to him, and the respective dates upon which any such steps were taken, and(g) whether any stay of proceedings is sought and in respect of what matters and to what extent.(4) An application mentioned in subrule (1) shall be made returnable for the first available day convenient to the Court.
3 Stay of proceedings re reconsideration
(1) On the giving of notice by the Court under rule 1, or on the making of an application under rule 2, the Court may, if it thinks fit, and with or without any application for a stay of proceedings, order, on terms, that the proceedings be stayed, and to what extent.(2) Subject to any order under subrule (1), neither the giving of notice by the Court under rule 1 nor the making of an application under rule 2 shall operate as a stay of proceedings.(3) For the purposes of this rule, stay of proceedings includes deferment of the payment out in due course of any moneys paid into the Court in favour of any person.
4–7 (Repealed)
rule 4: Am 1.3.1991; 10.3.1995. Rep 28.6.1996.
rule 4: Rep 9.9.1994.
rule 4, hdg: Am 2.7.1999.
rule 4: Am 2.7.1999; 21.7.2000.
rule 4: Am 27.3.1992; 11.12.1998; 2.7.1999.
rule 4, hdg: Ins 2.7.1999.
rule 4: Ins 28.6.1996. Am 20.10.2000.
rule 4: Am 11.12.1998.
rule 4: Am 21.7.2000.
rule 4: Rep 15.9.1995.
rule 4: Am 1.3.1991. Rep 28.6.1996.
rules 4–6: Subst 28.6.1996.
rule 4: Am 11.12.1998.
8 Decision on appeal
Upon any decision being given by the Supreme Court or the High Court in respect of an appeal from the Court, the registrar shall obtain and file a copy of the decision and reasons therefor, and, where appropriate, shall list the proceedings for directions.
Part 28 Investment
1 Payment to Public Trustee
The Court may direct the registrar:(a) to pay money paid into the Court to the Public Trustee for the purpose of payment into the Public Trustee’s common fund, and(b) to demand from the Public Trustee repayment in accordance with the order of the Court of any moneys so paid and any interest payable by the Public Trustee on those moneys, together with a statement of that interest.
Part 29 Costs
Division 1 Application
1 General
(1) This Part, other than rules 2 and 3, applies to work done by solicitors or counsel on or after the day on which these rules commence.(2) This Part applies except where otherwise provided in section 18 of the Act.
1A Application after commencement of the Legal Profession Reform Act 1993
(1) This Part has no operation after 30 June 1994 except as provided by:(a) section 18 of the Act,(b) the Workers Compensation Acts and the regulations made under those Acts,(c) the Legal Profession Act 1987 and the regulations made under that Act, or(d) 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 1A: Ins 21.7.2000.
2 Work done by solicitors before rules commence
In respect of work done by solicitors before the day on which these rules commence, costs in any proceedings shall be taxed or otherwise determined as though the Workers’ Compensation Rules continued to apply to the proceedings.
3 Work done by counsel before rules commence
In respect of work done by counsel before the day on which these rules commence, fees to counsel in any proceedings shall be taxed or otherwise determined as though the Workers’ Compensation Rules continued to apply to the proceedings.
Division 2 General
4 Interpretation
(1) In this Part, a reference to costs is a reference to costs payable between party and party in respect of proceedings, including disbursements.(2) In this Part:taxing officer means a registrar or a person appointed by the Chief Judge to be a taxing officer, and in relation to any proceedings means the taxing officer before whom costs in the proceedings are to be taxed or to whom any matter in respect of the proceedings is referred.
5 Amount recovered
(1) Subject to this rule, in this Part the amount recovered in any proceedings means the aggregate of all sums of money recovered under all heads of claim in the proceedings, other than any sum recovered under a head of claim to which no ground of denial (whether whole or partial) of liability was raised, by any answer filed in the proceedings, additional to any grounds raised to a head of claim under which a larger sum was recovered.(2) For the purposes of this Part:(a) where the Court makes a general order for payment of expenses under section 60 of the 1987 Act and does not specify the amount of those expenses, the amount recovered under the order shall be deemed to be $1,000,(b) where compensation is recovered by way of a weekly payment during incapacity (whether or not any liability in respect of that payment is then commuted under section 51 of the 1987 Act), the amount recovered shall be deemed to be the total of the weekly payments awarded, calculated for:(i) the period of liability up to and including the first day fixed for the hearing of the proceedings, andtogether with, where any lump sum is awarded, that lump sum,(ii) any period during which the proceedings stood adjourned at the request of the employer or insurer,(c) where on a review under section 55 of the 1987 Act of a weekly payment:(i) the weekly payment is ordered to be increased, the amount recovered shall be deemed to be the total of the increase ordered, calculated for:(a) the period commencing on the day from which the increase is ordered and concluding on the first day fixed for the hearing of the applicant for review, andtogether with, where any lump sum is awarded, that lump sum,(b) any period during which the application for review stood adjourned at the request of the employer or insurer,(ii) the employer or insurer claims that the weekly payment should be ended or that the amount or period of the payment should be reduced, and the payment is not ordered to be ended or reduced in amount or period, the amount recovered shall be deemed to be the total of the weekly payment calculated for:(a) the period commencing on the day on which the application for review was filed and concluding on the first day fixed for the hearing of that application, andtogether with, where any lump sum is awarded, that lump sum, or(b) any period during which the application for review stood adjourned at the request of the employer or insurer,(iii) the employer or insurer claims that the amount or period of the weekly payment should be reduced, and the amount or period is ordered to be reduced but not to the extent claimed by the employer or insurer, and costs are awarded to the worker, the amount recovered shall be deemed to be the total of the weekly payment (or of the weekly payment as reduced by the order) calculated for:(a) the period commencing on the day on which the application for review was filed and concluding on the first day fixed for the hearing of that application (or that period as reduced by the order), andtogether with, where any lump sum is awarded, that lump sum,(b) any period during which the application for review stood adjourned at the request of the employer or insurer,(d) where an award is made in any proceedings (including any application for review of a weekly payment) before a date for the hearing of the proceedings is fixed, the date of the award shall for the purposes of paragraphs (b) and (c) be deemed to be the first day fixed for the hearing of the proceedings, and(e) where any proceedings (including any application for review of a weekly payment) is listed for call-over for the purpose of fixing a date for hearing at a country sittings of the Court, and a date is not fixed, the first date of the country sittings shall for the purposes of paragraphs (b) and (c) be deemed to be the first day fixed for the hearing of the proceedings.(3) Where in any proceedings costs are ordered to be paid by a worker, the amount recovered shall for the purposes of this Part be deemed to be:(a) where the worker claimed an amount for compensation in the proceedings—that amount, or(b) in any other case, the amount which would have been, or would have been deemed to be, the amount recovered in the proceedings if costs had been ordered in favour of the worker.
6 Solicitor authorised to receive costs
Where a party to whom costs are payable acts by a solicitor, the solicitor is hereby authorised to receive any moneys paid to the Court or payable by a party on account of those costs.
Division 3 Entitlement to costs
7 Worker’s costs
Where in any proceedings the Court makes a final order, or gives a final decision, in favour of the worker, the worker shall, unless the Court otherwise orders, be entitled to recover his costs of the proceedings against the employer against whom the final order or decision was made or given.
8 Commutation cases
(1) Where an employer commences proceedings under section 51 of the 1987 Act with the consent of the worker, the employer shall, unless the Court otherwise orders, pay the costs of the worker of the proceedings whatever be the result of the proceedings.(2) For the purposes of subrule (1), unless the Court otherwise orders, the costs of the worker:(a) shall include the costs of instructions, of negotiations between the employer’s and the worker’s solicitors and counsel, of obtaining necessary reports by medical or other experts, of obtaining necessary advice from and of conference with counsel, and of the preparation of all material necessary to be placed before the Court on the hearing, notwithstanding that any such costs may have been incurred before the proceedings were commenced, and(b) shall not include counsel’s fees other than the brief fee relevant to the proceedings, and the fee for one conference appropriate to that brief fee, as set out in the Schedule of counsel’s fees Annexure “A” to these rules.(3) Where in any proceedings other than proceedings commenced under section 51 of the 1987 Act an award is made for the commutation of the liability in respect of a weekly payment in whole or in part by the payment of a lump sum, the worker’s costs of the proceedings shall include the costs and disbursements of obtaining reports by medical or other experts necessary for consideration by the Court with regard to the commutation.
9 Costs where other proceedings
Where in any proceedings a worker is entitled to recover costs against an employer or insurer, those costs shall not be reduced or apportioned because any part of them was incurred also in respect of proceedings under the Uninsured Liability and Indemnity Scheme, or in respect of proceedings against another person against whom no award has been made, except to the extent that any such part has been received by the worker.
Division 4 Ascertainment of costs
10 Taxed costs and other provisions
(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 costs are to be paid to any person, the Court may order that, as to the whole or any part (specified in the 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 other than the scale which would be otherwise applicable,(b) a proportion specified in the order of the taxed costs,(c) the costs taxed in compliance with any direction of the Court as to the allowance or disallowance of any item or the amount to be allowed in respect of any item,(d) the taxed costs from or up to a stage of the proceedings specified in the order,(e) a gross amount specified in the order, or(f) an amount in respect of costs to be ascertained in such manner as the Court may direct.(3) Where a person to whom costs are payable has reasonably incurred costs for which provision is not made by this Part, reasonable costs may be allowed (whether by decision of the taxing officer on taxation or by any order under subrule (2)) having regard to any provision made for costs of a like nature.
11 Agreement as to costs
(1) Where costs are payable by one party to another, those parties may agree as to the amount of the costs.(2) An amount of costs agreed to under subrule (1) shall not be included in any certificate issued under section 23 (1) of the Act unless the agreement is embodied in a form of order bearing the consent of the party required to pay the costs and lodged for the signature of the registrar.
12 Agreement as to part of costs
(1) Notwithstanding anything in this Part, where costs are payable by one party to another, the parties may agree as to the amount of those costs payable in respect of any item or items of work done.(2) An amount of costs agreed to under subrule (1) shall not be included in any certificate issued under section 23 (1) of the Act unless the agreement is embodied in a form of order bearing the consent of the party required to pay the costs and lodged for the signature of the registrar.(3) Where parties have agreed under subrule (1) as to the amount of costs payable in respect of any item or items of work done in any proceedings and a party is entitled to recover costs in the proceedings in respect of any other item or items, that party may tax the costs of the other item or items, and a reference in this Part to taxation of costs shall be taken to be a reference to the taxation of the costs of the other item or items.
13 Taxation of costs
(1) Where costs in respect of any proceedings are to be taxed, they shall be taxed by a taxing officer.(2) Subject to any order or direction made or given by the Court, costs for taxation shall be taxed upon the scales in or annexed to these rules, and in compliance with the provisions of this Part.
14 Taxation—counsel’s fees
(1) Fees properly paid or payable to counsel for work done before 1 July 1991 shall, on a taxation of his client’s costs, be allowed in accordance with the requirements of the Schedule of counsel’s fees Annexure “A” to these rules.(1A) Fees properly paid as payable to counsel for work done on or after 1 July 1991 shall, on a taxation of his client’s costs, be allowed in accordance with the requirements of the Schedule of counsel’s fees Annexure “C” to these rules.(2) Where the Schedule of counsel’s fees provides more than one head of claim under which counsel’s fee for brief on hearing in any proceedings might properly be determined, that fee shall be determined under such of those heads as produces the highest fee, and as though the entire amount recovered or deemed to be recovered in the proceedings were recovered under that head of claim.
15 Taxation—solicitors’ costs
(1) In this rule:first scale means the scale of fees for solicitors set out in the Schedule of solicitors’ costs Annexure “B” to these rules, and the disbursements prescribed in that scale.second scale means a scale of fees for solicitors comprising the fees in the first scale increased by 50 per centum thereof and the disbursements prescribed in the first scale.(2) Solicitors’ costs for taxation in respect of any proceedings shall be taxed:(a) in a death claim where liability is admitted subject only to proof of marriage, dependency or other similar issue—upon the first scale,(b) in a death claim (commenced before 1 November 1990) other than a claim mentioned in paragraph (a):(i) where the amount recovered does not exceed $14,500—upon the second scale, or(ii) where the amount recovered exceeds $14,500—as nearly as practicable upon the highest scale for the time being applicable to actions in the Supreme Court in its Common Law Division,(bi) in a death claim (commenced on or after 1 November 1990) other than a claim mentioned in paragraph (a), upon the second scale,(c) in proceedings claiming only an award based on weekly payments of compensation where those payments were being paid at the appropriate rate at the time of commencement of the proceedings and continued to be so paid on a regular basis up to the time when the award was made—unless the Court otherwise orders, upon the first scale,(d) in a claim other than a death claim, and other than proceedings mentioned in paragraph (c), (e) or (f), upon the second scale,(e) in proceedings for suspension of a weekly payment—upon the first scale, or(f) in an application for a declaration of liability—upon the first scale.
16 Taxation—witnesses’ expenses
(1) Subject to this rule, there may be allowed on a taxation of costs in respect of any proceedings amounts paid to witnesses for their attendance at the Court or other assistance in the hearing of the proceedings.(2) Subject to this rule, the amount allowable in respect of any witness shall be the amount that would have been allowable in the District Court in respect of such a witness had the proceedings been an action in the District Court heard on the day or days on which the proceedings were heard in the Court.(3) The amount allowable in respect of a witness:(a) who gave evidence shall be allowed on taxation unless the Court otherwise orders, orwhether or not the witness was subpoenaed.(b) who did not give evidence may be allowed on taxation if the taxing officer thinks fit,(4) Where a witness necessarily remains in the vicinity of the Court 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 waiting time as the Court may order, or, in the absence of any order by the Court, as the taxing officer may think fit.(5) Where a witness 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 for the purpose of any proceedings, there may be allowed on taxation such amount in respect of the time or expense of the witness as the Court may order, or, in the absence of any order by the Court, as the taxing officer may think fit.(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 an expert witness the Court orders that a qualifying fee be allowed there shall be allowed on taxation such amount paid to the witness for so qualifying 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, orthere shall be allowed on taxation such amount paid in respect of the expenses as the taxing officer thinks fit.(b) the Court makes no order and the taxing officer thinks fit to allow the expenses,
16A Taxation—costs of service outside New South Wales
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.rule 16A: Ins 2.4.1993.
17 General powers of a taxing officer
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 given under rule 20 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,(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.
18 Costs of taxation
(1) Costs taxed under a decision or order of the Court shall, unless the decision 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 taxation 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.
19 Where decision subject to appeal etc
Costs to be taxed under a decision or order may, unless the Court otherwise orders, or unless proceedings in respect of the decision or order are stayed, be taxed notwithstanding that the decision or order is liable to be reviewed or to be set aside, varied or discharged on appeal or otherwise.
20 Notice of taxation
(1) A party whose costs in respect of any proceedings are to be taxed shall file a bill of those costs, and may obtain from the registrar in duplicate a notice of an appointment stating the day and hour at which the taxation is to commence.(2) A party whose costs are to be taxed shall serve, in accordance with subrule (3):(a) a notice of the appointment for the taxation obtained under subrule (1), andon any party liable to pay the costs.(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,(3) Service for the purposes of subrule (2) shall be effected:(a) in accordance with Part 8, not less than 15 days before the day appointed for the 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 15 days before the day appointed for the taxation.(4) Notwithstanding rule 17 (d), but subject to rule 17 (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.
21 Bill of costs
(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 to these rules on which it is intended to rely in claiming each item of costs,(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 did 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, the disbursement or fee may be included in the bill notwithstanding that it has not been paid.(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) 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.(6) The Court or the taxing officer may give leave, on terms, for the amendment of a bill of costs.
22 Taxation—attendance of parties
(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 to a taxation, and, with the leave of the taxing officer, any party to the proceedings not a party to the taxation, may attend the taxation.
23 Taxation—notice of adjournment
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.
24 Taxation—what costs allowed
On a taxation of costs in 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.
25 Taxation—report and reference
(1) The 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, together with such circumstances in reference thereto as the taxing officer thinks proper to report.(2) The 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 not 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.
26 Review of taxation
(1) The Court may, on application by a party under Part 14, review a taxation as to the whole or any part thereof.(2) Notice of motion for a review of a taxation shall be filed within 14 days after the completion of the taxation.(3) On the review, unless the Court otherwise orders:(a) further evidence shall not be received, and(b) a party shall not raise any ground of objection not raised before the taxing officer.(4) Subject to subrule (3), 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 allowance or disallowance of any item or as to its quantum,(c) make orders for the remission of any item to the taxing officer for taxation in accordance with the directions of the Court, and(d) make such other orders as the nature of the case requires.
27 Default of party entitled
(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 to pay the costs, file and serve a bill of the costs and serve notice of an appointment for the taxation of the costs as required by rule 20, 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 of appointment within a time fixed by the registrar under subrule (1), 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:(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 18 (2) as he thinks fit as to the costs of any other party.
Part 29A Costs after 30 June 1994
pt 29A (rules 1–14): Ins 21.7.2000.
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:(a) section 18 of the Act,(b) the Workers Compensation Acts and the regulations made under those Acts, or(c) the Legal Profession Act 1987 and the regulations made under that Act.
2 Interpretation
In this Part, and unless the context or subject matter otherwise indicates or requires, a reference to costs is a reference to costs payable between party and party in respect of proceedings, including disbursements.
3 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.
4 Worker’s costs
Where in any proceedings the Court makes a final order, or gives a final decision, in favour of the worker, the worker shall, unless the Court otherwise orders, be entitled to recover the worker’s costs of the proceedings against the employer against whom the final order or decision was made or given.
5 Commutation cases
Where an employer commences proceedings under section 51 of the 1987 Act with the consent of the worker, the employer shall, unless the Court otherwise orders, pay the costs of the worker of the proceedings whatever be the result of the proceedings.
6 Costs where other proceedings
Where in any proceedings a worker is entitled to recover costs against an employer or insurer, those costs shall not be reduced or apportioned because any part of them was incurred also in respect of proceedings under the Uninsured Liability and Indemnity Scheme, or in respect of proceedings against another person against whom no award has been made, except to the extent that any such part has been received by the worker.
7 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.
8 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 4A in respect of that action including payments of conduct money and payments on account of expenses and loss under that Part.
9 Agreement as to costs
(1) Where costs are payable by one party to another, those parties may agree as to the amount of the costs.(2) An amount of costs agreed to under subrule (1) shall not be included in any certificate issued under section 23 (1) of the Act unless the agreement is embodied in a form of order bearing the consent of the party required to pay the costs and lodged for the signature of the registrar.
10 Agreement as to part of costs
(1) Notwithstanding anything in this Part, where costs are payable by one party to another, the parties may agree as to the amount of those costs payable in respect of any item or items of work done.(2) An amount of costs agreed to under subrule (1) shall not be included in any certificate issued under section 23 (1) of the Act unless the agreement is embodied in a form of order bearing the consent of the party required to pay the costs and lodged for the signature of the registrar.
11 Order for costs—when payable
(1) Where, before the conclusion of any proceedings, 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.
12 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.
13 Indemnity basis
On an assessment on the indemnity basis, all costs shall be allowed except in 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.
14 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.
Part 30 Commissioners
1 Where commissioner may exercise functions
Subject to the rules, where a commissioner is authorised to exercise a function he may exercise that function:(a) in Court, orin such circumstances and on such terms as the commissioner thinks fit.(b) in chambers,
2 Mandatory order and removal
(1) The Chief Judge may by order direct a commissioner to do or refrain from doing, in any proceedings, any act relating to the functions which the commissioner is authorised to exercise.(2) Subject to any direction by the Chief Judge, an application for an order under subrule (1) shall be made by notice of motion under Part 14, and the commissioner concerned shall be, for the purposes of Part 14 rule 2 (1), an interested party.(3) The Chief Judge, before the conclusion of any proceedings before a commissioner, may, on application by a party or of his own motion, order that the proceedings be removed into the Court constituted by a Judge, and upon such removal the Court may:(a) hear and determine the question or matter in respect of which the proceedings were before the commissioner, or(b) hear and determine any question or matter in the proceedings and remit the proceedings to the commissioner with such directions as the Court thinks fit.
3 Appeal from commissioner
(1) In this rule and in rule 4 award has the same meaning as provided by section 34A (6) of the Act.(2) An appeal from a commissioner shall be made by the filing of a notice of appeal.(3) A notice of appeal shall be filed within 28 days after the award is made.(4) The notice of appeal shall state:(a) the number and year of the proceedings in which the award was made,(b) the heading and title of the proceedings, appropriately abbreviated,(c) the date of the award appealed from,(d) whether the appeal is from the whole or part only of the award, identifying such part,(e) the grounds on which the appeal is sought, and(f) the orders sought.(5) The person making the appeal shall be called the “claimant” and each other party to the appeal shall be called an “opponent”.
4 Leave to appeal
(1) An application for leave to appeal shall be made by notice of motion.(2) The notice of motion seeking leave to appeal shall be filed within 28 days after the award is made.(3) The party applying for leave to appeal shall file with or subscribe to the notice of motion a statement of:(a) the nature of the case,(b) the questions involved, and(c) the reasons why leave should be given.(4) If a Judge grants leave to appeal, he may order the party applying for such leave to file a notice of appeal as required by subrule 3 (4) or make such other order as is appropriate for the expeditious hearing of the appeal.
5 Further evidence on appeal
(1) A party seeking to adduce further evidence on appeal shall give notice of such evidence to each other party as soon as it is possible to do so.(2) The “special grounds” referred to in section 34A (4) of the Act shall, unless the Court otherwise orders, be established by evidence on affidavit.
6 Appearance on appeal
Each opponent to an appeal or to an application for leave to appeal shall file a notice of his appearance, in accordance with Part 11 rule 2.
7 References by commissioner to a Judge
(1) A commissioner who refers a question to a Judge pursuant to section 34B of the Act shall endorse on the papers the question or questions that he refers to the Judge or shall state them orally and direct that a transcript of the question or questions be taken out and placed with the papers. The commissioner shall then direct the registrar to list the matter before a Judge.(2) Where it appears to the Judge that the material provided in the papers is insufficient to enable him to determine the question or questions asked he may direct the commissioner to prepare a notice in writing which shall be called a “reference”.(3) A reference shall state:(a) the questions on which the Judge’s opinion is sought,(b) when and how the question arose in the proceedings,(c) the ultimate facts proved or admitted in the proceedings, and(d) distinct findings of fact in relation to actual occurrences and circumstances upon which the commissioner based his conclusions or inferences, and distinct statements of those inferences.(4)(a) Where a party applies to a commissioner to refer a question to a Judge, the commissioner may direct that party to draft a reference within 14 days.(b) A party who drafts a reference shall file and serve a copy of it on each other party.(c) Each other party shall, within 7 days after service on him of the draft reference notify the applying party in writing of any objections he makes, or amendments he desires, to the draft reference and file a copy of such notice.(d) The commissioner shall, within 28 days after the order for the draft reference, list the proceedings before him for decisions as to the form of the reference.(5) Where more than one party applies to a commissioner to refer a question to a Judge, the commissioner may direct any one of them to draft a reference in accordance with subrule (4).(6) Where a commissioner makes a reference, the registrar shall list it for hearing before a Judge as soon as practicable.
Part 31 Registrars
1 Interpretation
(1) A function conferred or imposed on a registrar under rule 2 shall be in addition to, and not in substitution for, or derogation from, any function conferred or imposed on a registrar by or under any other law.(2) A function conferred or imposed on a registrar under any of the rules may be exercised by a Judge.
2 Functions
Except where a Judge otherwise orders or the rules otherwise provide, a registrar may, with respect to any proceedings, exercise the functions of the Court to:(a) make any order as to procedure or practice which does not have the effect of determining the incidence or quantum of the liability of any party in respect of the subject matter of the proceedings, and(b) make any order consented to by:(i) the parties to the application for the order, andwhether or not the order has the effect of determining any liability.(ii) any other person who will be required to comply with the order or to suffer anything to be done under the order,
3 Where registrar may exercise functions
(1) Subject to the rules, where a registrar is authorised to exercise a function he may exercise that function:(a) in Court, orin such circumstances and on such terms as the registrar thinks fit.(b) in chambers,(2) (Repealed)
4 Mandatory order and removal
(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 functions which he is authorised to exercise.(2) Subject to any direction by a Judge, an application for an order under subrule (1) shall be made by notice of motion under Part 14, and the officer concerned shall be, for the purposes of Part 14 rule 2 (1), an interested party.(3) 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, and upon such removal the Court may:(a) hear and determine the question or matter in respect of which the proceedings were before the registrar, or(b) hear and determine any question or matter in the proceedings and remit the proceedings to the registrar with such directions as the Court thinks fit.
5 Application for review
(1) In this rule, review means review under section 36 of the Act.(2) An application for review of a decision of a registrar may be made orally to the registrar immediately after he gives the decision.(3) Subject to subrule (2), an application for review of a decision of a registrar shall be made by notice of motion under Part 14.(4) An application for review of a decision of a registrar shall be made within 14 days after the decision is given.
6 Report on review or reference
(1) Where a decision of a registrar is the subject of an application for review under section 36 of the Act, the registrar shall prepare and furnish to the Court a report as to all findings of fact made, and inferences drawn, by him leading to the decision, and any other matter which in his opinion is likely to be of assistance to the Court in determining the review.(2) Where a registrar refers to the Court a question or matter arising in proceedings before him, he shall prepare and furnish to the Court a report as to all findings of fact made, and inferences drawn, by him relevant to the question or matter, and as to any other matter which in his opinion is likely to be of assistance to the Court in determining the reference.(3) The Court may if it thinks fit request a registrar who has furnished a report under subrule (1) or (2) to prepare and furnish a further report as to any matter which the Court thinks is likely to be of assistance to it with regard to the review or reference, and the registrar shall comply with any such request.(4) The registrar shall forward to each party to a review or reference a copy of any report or further report furnished to the Court under this rule.
7 Fresh evidence on review
(1) On a review under section 36 of the Act of the decision of a registrar, evidence that was not adduced before the registrar shall not be adduced without leave of the Court.(2) The Court may if it thinks fit refuse to grant leave under subrule (1) unless it is satisfied that there was good reason why the evidence was not adduced before the registrar.
8 Directions on review or reference
An application to the Court for directions in respect of a review under section 36 of the Act of a decision of a registrar, or a reference by a registrar under section 37 of the Act, may be made by any party at any time after the application for the review, or the reference, is made.
Part 32 Documents
1 Heading and title
(1) Subject to subrule (2), a document filed in the Court for the purpose of any proceedings shall be headed in the Court and in the full names of the parties, and shall bear immediately under the names of the parties a brief statement as to the nature of the document.(2) Except in the case of:(a) originating process,(b) a document to be served on a person not before the service a party to the proceedings,(c) a form of award, ora document may bear an abbreviation of the title of the proceedings sufficient to identify the proceedings.(d) a certificate under section 23 (1) of the Act,
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.(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.
3 General requirements
(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 impossible.(2) There shall be lodged with any document as many copies of the document as there are parties to be served.(3) A document shall be on paper of durable quality, capable of receiving ink writing, and of about “A4” standard size.(4) Subject to subrule (7), the writing on a document shall be on one face of the paper only, and a margin of not less than 25 millimetres shall be kept clear on the left hand side.(5) The writing on a document shall be clear, sharp, legible and permanent.(6) A document shall, unless required to be signed by some other person, be signed by the party filing it, or by his solicitor or agent given leave by the Court to appear in the proceedings.(7) A document shall have endorsed upon a separate backsheet, where the document is filed in matters commenced before 1 January 1995, and on the first page, where the document is filed in matters commenced from 1 January 1995:(a) the number and year of the proceedings,(b) the heading and title of the proceedings, appropriately abbreviated,(c) a short description of the document, and(d) the name, address, telephone number and any Australian Document Exchange box number of the solicitor or agent for the party, and, if the solicitor acts in the proceedings by an agent, of the solicitor’s agent, or, if the party acts in person, a notice to that effect.(8) Except where otherwise prescribed or the Court otherwise orders, a facsimile, carbon or photostat copy of a document shall not be filed.(9) 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.(10) 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.(11) A registrar shall assist a party appearing in person who is illiterate or otherwise unable to complete properly any necessary document, but shall not in doing so advise the party as to the conduct of his case.
4 Words and figures
Dates, amounts and other numbers in any document filed in any proceedings shall be expressed in figures and not in words.
5 Signature of solicitor
A document, other than an affidavit, filed in any proceedings and requiring the signature of the solicitor on the record or his agent may be signed by the solicitor or agent, or by the partner, or the clerk or other employee, of the solicitor or agent.
6 Striking out documents etc
The Court may at any stage of any proceedings, on application or of its own motion, strike out any document, or any part of any document, filed in the proceedings, or direct that any such document be amended, or make such other order as it thinks fit regarding any such document.
7 Notice of rejection
Where a 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.
8 Sealing duplicate documents
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 33 Solicitors
1 Power to act by solicitor
(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
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
(1) Where a solicitor signs, and files on behalf of a party in any proceedings, any originating process, notice of appearance, answer, 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.
4 Change of solicitor etc
(1) Where a solicitor acts for a party in any proceedings, the party may change his solicitor.(2) Where a party changes his solicitor, he, 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.(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.(5) Where a solicitor acts for a party in any proceedings and afterwards ceases to act, the solicitor may, subject to subrule (6), sign and file notice of the change and serve the notice on the parties.(6) A solicitor shall not file or serve a notice of change under subrule (5) without leave of the Court unless he has, not less than 7 days before doing so, served on his former client notice of his intention to file and serve the notice of change.(7) A solicitor filing a notice of change under subrule (5) shall, except where the notice is filed with the leave of the Court, file and serve with the notice an affidavit showing service in compliance with subrule (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.
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 4 has been completed.
Part 34 Arbitration
1 Interpretation
In this Part:arbitrator means an arbitrator appointed under rule 2.proceedings means proceedings before the Court and includes any matter arising from any proceedings.referred proceedings means proceedings the subject of an unrevoked order under rule 5 (1).
2 Appointment to office as arbitrator
(1) The Chief Judge may by instrument in writing appoint suitable persons to be arbitrators to hear referred proceedings.(2) A person is not a suitable person for the purposes of subrule (1) unless he is:(a) a barrister nominated by the New South Wales Bar Association in writing signed by the President or a Vice-President of that Association, or(b) a solicitor nominated by the Law Society of New South Wales in writing signed by the President or Vice-President of that Society.(3) The Chief Judge:(a) may, by instrument in writing, revoke the appointment of an arbitrator, and(b) shall, at the written request of the Association or Society which nominated the arbitrator for appointment, so revoke the appointment.(4) An arbitrator may resign his office by instrument in writing delivered to the Chief Judge.
3 Roster of arbitrators
The Chief Judge or the registrar may at any time and from time to time:(a) fix days on which arbitrators may hear referred proceedings at the Court,(b) alter any day so fixed,(c) roster arbitrators to attend the Court on any day so fixed, and(d) alter any such roster.
4 Remuneration of arbitrators
(1) The remuneration of an arbitrator shall be the same remuneration as is from time to time determined by the Minister in pursuance of section 5 (8) of the Arbitration (Civil Actions) Act 1983.(2) The remuneration due to an arbitrator shall be paid to him, out of moneys paid under section 35 (2) of the 1998 Act, on the certificate of the registrar.
5 Referral to arbitration
(1) The Chief Judge or a registrar may, if he thinks fit and with the consent of all parties concerned, at any stage of any proceedings which appear to be ready for hearing, by order refer the proceedings for hearing before an arbitrator at the Court.(2) An order under subrule (1) shall specify a day for the hearing of the proceedings before the arbitrator, and on that day the proceedings shall be listed for hearing before any arbitrator who is rostered to attend the Court on that day.(3) The Chief Judge or registrar shall, before making an order under subrule (1) in relation to any proceedings:(a) consider the preparations for hearing,(b) so far as possible, deal with all matters that may be dealt with on application to the Court before the hearing, and(c) give such directions for the conduct of the proceedings before the arbitrator as appear best adapted for the just, quick and cheap disposal of the proceedings.(4) The Court may, at any time before the making of an award under rule 12 (1) in relation to any proceedings the subject of an order under subrule (1), revoke the order and give directions for the subsequent conduct of the proceedings and as to any costs incurred before the revocation of the order.
6 Procedure before arbitrator
(1) For cause shown by a party to referred proceedings listed before an arbitrator, the arbitrator may, if he thinks fit, adjourn the arbitration to a date fixed by the registrar.(2) Without prejudice to the operation of subrule (1), an arbitrator may hear and determine proceedings listed before him whether any party appears or not.(3) Except to the extent that the Act, the Workers Compensation Acts, or any directions given by the Chief Judge or a registrar when referring the proceedings to arbitration, otherwise provide, the procedure at an arbitration under this Part shall be determined by the arbitrator.(4) Subject to the rules of evidence being complied with, an arbitrator shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
7 Appearances
A party to any referred proceedings may appear before the arbitrator in person, by counsel or solicitor, or, by leave of the arbitrator, by an agent.
8 Subpoenas
A subpoena in respect of referred proceedings may be made returnable before the arbitrator.
9 Evidence
(1) Subject to subrule (4), evidence given in referred proceedings shall be given and received in the same way as it would be given and received before the Court.(2) Without prejudice to any arrangement made by a party for the recording of evidence in referred proceedings, subrule (1) shall not be construed as requiring any such evidence to be recorded.(3) An arbitrator may administer an oath or take an affidavit for the purpose of referred proceedings.(4) Documents purporting to be hospital clinical notes and records, doctors’ records, workers compensation records and wages records shall, unless the arbitrator otherwise directs, to the extent that they are admissible in evidence on the hearing of the referred proceedings, be so admissible without further proof as to their identity.
10 Refusal or failure to take oath etc
(1) Where, at the hearing of referred proceedings, a witness:(a) refuses or fails to take an oath when required by the arbitrator to do so, orthe arbitrator or a party to the proceedings may apply to the Court for an order that the witness attend before the Court for examination.(b) refuses or fails to answer a question that he is required by the arbitrator to answer,(2) Where application is made for an order under subrule (1), the Court shall, unless satisfied that there was a reasonable excuse for the refusal or failure of the witness to take the oath or answer the question, make the order applied for.(3) Where the Court makes an order under subrule (1) it may also order the transmission to the arbitrator of the record of any evidence given pursuant to an order under subrule (1), and any such evidence shall be deemed to have been given at the hearing before the arbitrator.
11 Contempt
An arbitrator may direct a person who:(a) wilfully insults:(i) the arbitrator while he is hearing referred proceedings or proceeding to or from such a hearing, or(ii) a person in attendance at such a hearing or proceeding to or from such a hearing,(b) wilfully misbehaves during the hearing of referred proceedings,(c) wilfully and without lawful excuse interrupts the hearing of referred proceedings,(d) assaults or wilfully obstructs an arbitrator or other person during the hearing of referred proceedings, orto remove himself from the sitting of the arbitrator at which the contravention occurs.(e) without lawful excuse, disobeys a lawful direction given to him by the arbitrator during the hearing of referred proceedings,
12 Determination by arbitrator and award
(1) The issues in dispute in referred proceedings shall be determined by the arbitrator on the evidence adduced before him, and the arbitrator shall record his determination by an award in writing signed by him and forwarded by him to the registrar as soon as practicable.(2) An award mentioned in subrule (1) shall contain, or have attached to it, a report of all findings of fact made by the arbitrator necessary to his determination, and the reasons for his determination, being reasons that, in the opinion of the arbitrator, are sufficiently stated to make the parties aware of his view of the case made by each of them.(3) The registrar shall, forthwith after receiving the award of an arbitrator, send to each of the parties to the proceedings 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 as to the listing of the proceedings under subrule (4).(4) The registrar shall list the proceedings for mention before him on a date 28 days after the sending of the award under subrule (3), or a date as soon as practicable after that date.(5) A party shall be taken to consent to the entry of the award of the arbitrator as the decision of the Court in the proceedings unless the party, before the date fixed by the registrar for the mention of the proceedings under subrule (4), files a notice of objection and serves that notice on each other party.(6) Where a party files and serves notice of objection under subrule (5), the award of the arbitrator ceases to have effect, and the proceedings shall be heard and determined in the Court as if they had never been referred to arbitration.(7) On the mention of the proceedings as referred to in subrule (4), the registrar shall:(a) if a party has filed notice of objection under subrule (5), give directions as to the further hearing of the proceedings, or(b) if no party has filed notice of objection under subrule (5), enter the award of the arbitrator as the decision of the Court in the proceedings.(8) An award entered by the registrar under subrule (7) (b) shall for all purposes be deemed to be the decision of the Court in the proceedings.(9) Without affecting the generality of subrule (6), a subpoena for the giving of evidence or production of documents, at a rehearing before the Court of any proceedings, by the arbitrator to whom the proceedings were referred under rule 5, shall not be issued if the evidence relates or the documents relate to the arbitration.
13 Costs
An arbitrator may make, in respect of the hearing of referred proceedings before him, any order as to the payment of fees or costs that the Court might have made in respect of the hearing of the proceedings if the proceedings had been heard before the Court.
Part 35 Miscellaneous
1 Notices
(1) 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) 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.
2 Corporation acting in person
(1) For the purposes of the Act and the rules, and subject to Part 11 rule 1 (1), 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 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.(2) An authority given by a corporation to an officer of the corporation for the purposes of subrule (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.(3) An authority may be lodged for the purposes of subrule (2) by the lodging of the authority, or a copy of the authority prepared by photographic or other similar process.(4) An authority mentioned in subrule (2) 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.(5) An authority mentioned in subrule (2) shall, after being lodged with the 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.
3 Searches
(1) A party to any proceedings may search the file kept by the registrar in respect of the proceedings.(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.(3) Notwithstanding subrule (2), 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.
4 Striking out ancillary proceedings
(1) The Court may, if it thinks fit, strike out any proceedings ancillary to any proceedings in the Court at any time on terms, and a registrar may, if he thinks fit, strike out any ancillary proceedings before him on terms, and, without affecting the generality of the foregoing provision of this subrule, the Court or registrar may so strike out any ancillary proceedings if:(a) no party appears, or(b) a respondent to the ancillary proceedings does, but the applicant in the ancillary proceedings does not, appear.(2) Where ancillary proceedings are struck out under subrule (1), the Court (or, where the ancillary proceedings are struck out by a registrar, the registrar or the Court) may, on the application of any party, order that the ancillary proceedings be reinstated on terms, and, without affecting the generality of the foregoing provisions of this subrule, the ancillary proceedings may be reinstated upon such terms and conditions as to costs, the staying of the proceedings or the ancillary proceedings until payment of costs, and the priority of the hearing of the ancillary proceedings as the Court or registrar, as the case may require, thinks fit.(3) Subrule (2) applies except where otherwise provided in section 18 of the Act.
5 (Repealed)
Annexure “A” Schedule of counsel’s fees
Brief on hearing
Head of Claim | Amount recovered not exceeding | Amount recovered over | |||
$5,700 | $11,400 | $15,200 | $15,200 | ||
$ | $ | $ | $ | ||
1 | Property damage | 240 | 240 | 240 | 240 |
2 | Medical hospital, etc | 240 | 323 | 430 | 430 |
3 | Commutations and redemptions | 170 | 220 | 290 | 340 |
(Where the amount recovered exceeds $50,700 the brief fee shall be $445.00) | |||||
4 | Lump sum loss of faculties | 190 | 265 | 355 | 530 |
5 | Weekly payments (closed period) | 285 | 370 | 495 | 747 |
6 | Weekly payments (continuing period) or claims under s 67 of the Compensation Act | 390 | 475 | 635 | 800 |
7 | Death Claims | 440 | 525 | 695 | 800 |
In death claims where liability is admitted subject only to formal proof of marriage, dependency or other similar issue, a brief fee will be allowed only if specially ordered by the Court. | |||||
8 | Declaration of liability—$295. | ||||
9 | Examination under Part 21—$140. | ||||
10 | Conferences
| ||||
11 | Refreshers
| ||||
12 | Where the hearing is adjourned upon an order for payment of the costs of the day—$196. | ||||
13 | Motions, including motions for suspension of weekly payments, or to state a case—$117. | ||||
14 | Settling request for a case to be stated and settling the case, including associated conferences and attendances before the Court—$230. | ||||
15 | Other settling—$91. | ||||
16 | Advice on evidence, if certified to by the Court—$91. | ||||
17 | View, if certified to by Court—$133 and $95 for each hour after the first. | ||||
18 | To take reserved judgment, if certified to by Court—$65. | ||||
19 | Attending on pre-hearing conference, where the registrar thinks it appropriate for counsel to attend—$230. | ||||
20 | Mentions, where the registrar thinks it appropriate for counsel to attend—$50, or, where questions of privilege or matters of a like nature are argued—$50, or $95 per complete hour, whichever is the greater. | ||||
21 | Loadings (a) In respect of any proceedings heard or partially heard outside the Sydney metropolitan area, counsel whose chambers are in Sydney shall be entitled to a loading for the first day only, in accordance with a determination in force of the Legal Fees and Costs Board, and where a town has not been included in the determination the loading for that town shall be the loading for the nearest town that is so included. (b) Where a hearing takes place at 2 or more country towns, the loading payable is that appropriate to the furthest of those towns. (c) Where of the proceedings commenced, or continued to be heard, at a country town on any one day, counsel holds a brief on hearing in 2, a loading of one-half of the full loading will be allowed in respect of each brief, and where counsel holds more than 2 such briefs on hearing, a loading of one-third of the full loading will be allowed in respect of each brief. | ||||
22 | Fees for Queen’s Counsel or more than one counsel will not be allowed without an order of the Court. | ||||
23 | Unless otherwise ordered, fees for Queen’s Counsel will be those for junior counsel plus one-half. | ||||
24 | Pre-hearing conference before the registrar—$95. | ||||
25 | Counsel’s fees for conducting a review of a decision of a commissioner under section 36, or a reference by a commissioner under section 37, of the Act shall, unless the Court otherwise orders, and whatever be any amount recovered or deemed to be recovered, be the maximum amount prescribed in this Schedule in respect of such a head of claim as gave rise to the review or reference. | ||||
26 | The Court may in a special case order that fees additional to those provided in this Schedule be payable to counsel. | ||||
Annexure “B” Schedule of solicitors’ costs
$ | ||
Preparing process | ||
1 | Preparing originating process, notice of appeal to the Court, notice of application for leave to make an appeal to the Court, or third or subsequent party notice, including necessary copies | 35.00 |
2 | Preparing further particulars, when required by an opposite party, including copy to file | 10.50 |
3 | Preparing subpoena to give evidence, including copy for service and attending to issue—each witness | 10.50 |
4 | Preparing subpoena to produce documents or things, including copy for service and attending to issue—each witness | 20.50 |
Notices etc | ||
5 | Preparing notice to produce or admit documents, or to admit facts, including necessary copy | 12.50 |
Or, if special or necessarily long, such allowance as the registrar thinks proper, not exceeding per page | 10.00 | |
6 | Preparing notice of motion, not being in respect of an ex parte application, including necessary copies | 12.50 |
Or, if special or necessarily long, such allowance as the registrar thinks proper, not exceeding per page | 10.00 | |
7 | Preparing request for listing or any other necessary or proper notice or demand not otherwise provided for, including necessary copies | 10.00 |
Or, if special or necessarily long, such allowance as the registrar thinks proper, not exceeding per page | 10.00 | |
8 | Preparing certificate of readiness where required, including necessary copies | 12.50 |
Or, if special or necessarily long, such allowance as the registrar thinks proper, not exceeding per page | 10.00 | |
Service | ||
9 | Service or attempted service by a solicitor or his employee, where service by post is not authorised | 12.50 |
10 | For each kilometre beyond 3 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 | 160.60 |
Notes— 1 A fee will not be allowed under item 9 or 10 unless the registrar 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. 2 Where in the same proceedings any 2 or more process have, or could have, been served together, a fee may be allowed under item 10 in respect of only one of the process. | ||
11 | Service of any process which is authorised to be served by post | 5.00 |
Instructions | ||
12 | To commence or defend proceedings, or for third or subsequent party notice | 25.00 |
13 | For any necessary affidavit which, in the opinion of the registrar, cannot be prepared from information already known to the solicitor | 16.00 |
14 | For counsel to advise on evidence | 25.00 |
Preparing for hearing | ||
15 | Whether counsel employed or not, for work necessarily done in preparing for hearing and not otherwise provided for, including: (a) taking instructions for examination of any party or witness, (b) considering the facts or 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, | |
| 35.00 | |
Notes— 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 letter. 3 A separate allowance will not be made under the heading of “skill, care and responsibility” or the like, but the registrar may be asked to mark the amount allowed in respect of each matter set out under this item. | ||
Drawing | ||
16 | Any document necessarily or properly filed or delivered to another party or to counsel or the Court and not otherwise provided for, per page | 10.00 |
Notes— 1 The costs of unnecessary, irrelevant and prolix matter in documents will be disallowed. 2 Where a fee is allowed for drawing a document, no fee will be allowed for engrossing the document. | ||
Copies | ||
17 | Of any document, where no other provision is made, per page copied | 1.20 |
Note— A fee will not be allowed for any copy unless the registrar is satisfied that the copy was necessary and that no copy previously prepared was available. | ||
Perusals | ||
18 | Of originating process, third or subsequent party notice, or answer, per page | 10.00 |
19 | Of notice to produce or admit | 16.00 |
20 | Of draft of special order or award prepared by registrar | 15.00 |
Notes— 1 A fee will not be allowed for re-perusing any document if a fee has previously been allowed for perusing the document. 2 A fee for perusing a party’s own document will be allowed only if the registrar is of opinion that the special circumstances of the case warrant it. | ||
Attendances | ||
21 | To file any document not otherwise provided for | 10.00 |
22 | To inspect documents or produce documents for inspection | 16.00 |
Or, per hour | 25.00 | |
23 | To obtain or give any necessary or proper consent or admission | 10.00 |
24 | On examination of a witness under Part 21, without counsel | 50.50 |
And for each complete hour after the first hour | 25.00 | |
25 | On examination of a witness under Part 21, with counsel | 25.00 |
26 | On deponent to swear an affidavit or for a solicitor or his clerk to swear an affidavit | 8.00 |
27 | On counsel with brief | 12.50 |
28 | To appoint conference | 7.00 |
29 | On conference with counsel, per hour | 35.00 |
30 | On a pre-hearing conference, call-over, mention or interlocutory application: | |
— with counsel, per hour | 35.00 | |
— without counsel, per hour | 54.00 | |
31 | In Court on the hearing of any proceedings: | |
— with counsel, per hour | 54.00 | |
— without counsel, per hour | 70.00 | |
Notes— 1 Where the solicitor, or his partner or employee who is a solicitor, does not attend in person, an amount in the discretion of the registrar will be allowed instead of any amount under item 30 or 31. 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 an amount not exceeding the amount that would have been allowed under item 30 or 31 if that time had been spent in the hearing of the proceedings. 3 Where the solicitor is engaged in any other proceedings on the same day, the amount under item 30 or 31 will be such proportion only as the registrar thinks reasonable, having regard to all the circumstances. 4 Where a party is not notified of any payment, withdrawal or discontinuance in time to prevent attendance at Court, there may be allowed for that attendance an amount in the discretion of the registrar not exceeding the amount claimable under item 31 for one hour’s attendance appropriate to the proceedings. | ||
32 | To take, with or without counsel, a deferred judgment | 25.00 |
33 | On taxation of costs | 25.00 |
Or, per hour | 35.00 | |
34 | Any telephone attendance not otherwise provided for | 5.50 |
35 | Any attendance not otherwise provided for | 10.00 |
Or, per hour | 35.00 | |
36 | Travelling and waiting time—per hour | 30.90 |
or, in the case of a clerk, per hour | 15.45 | |
Letters | ||
37 | Form letters | 5.50 |
38 | Letters other than form letters | 10.00 |
Or, if special or necessarily lengthy, such amount as the registrar thinks fit. | ||
Disbursements | ||
39 | For procuring certificates, office copies or other documentary evidence which the registrar thinks necessary and proper, such amount as is just and reasonable, not exceeding the amount actually paid. | |
40 | For the necessary expenses of postage, telex, telegrams, and the carriage and transmission of documents, such amount as is just and reasonable, not exceeding the amount actually paid. | |
41 | Court fees, bailiff’s fees, and other fees and payments which, in the opinion of the registrar, have been properly paid, and which are not otherwise provided for. | |
42 | For preparing plans, charts or models for use at the hearing, where the Court has not disallowed the costs of the same, such amount as is just and reasonable, not exceeding the amount actually paid. | |
43 | Fares reasonably incurred in respect of any attendance. | |
44 | Amounts reasonably paid to interpreters, not exceeding: | |
(a) in respect of a hearing of ½-day’s duration | 107.00 | |
(b) in respect of a hearing of 1 day’s duration | 48.00 | |
(c) in respect of a conference held on the day of hearing | 17.00 | |
(d) in respect of a conference held other than on the day of hearing or a medical examination by a non-treating specialist | 50.00 | |
And, for each half-hour after the first hour | 17.00 | |
Maximum fee for any conference or examination | 82.00 | |
General | ||
45 | In any case not otherwise provided for in this Schedule, and in which in the opinion of the taxing officer an allowance should be made, such amount may be allowed as is just and reasonable. | |
Annexure “C” Schedule of counsel’s fees for work from 1 July 1991
$ | ||
1 | Briefs on hearing | |
Brief Fees shall be calculated on the nature of the relief obtained, in accordance with the following scale | ||
Scale A: | $500 | |
Scale B: | $700 | |
Scale C: | $800 | |
The scale appropriate for the relief obtained shall be as follows: | ||
(a) Property Damage: | A | |
(b) Medical, Hospital etc: | A | |
(c) Commutations and redemptions: | A | |
(d) Lump sum loss of faculties under the former Act: | A | |
(e) Lump sum loss of faculties (s 66), including any claim for pain and suffering: | C | |
(f) Lump sum for pain and suffering: | C | |
(g) Weekly payments (closed period): | B | |
(h) Weekly payments (continuing period): | C | |
(i) Death claims: | C | |
(j) Death claims where respondent admits liability subject only to formal proof of marriage, dependency or other similar issue, only if certified by the Court: | A | |
(k) Review of decisions of Commissioners (substantive matters): | C | |
(l) Reviews of decisions of Registrars or of Commissioners (procedural matters): | A | |
(m) Appeals to the Court: | C | |
2 | Declaration of Liability | $295 |
3 | Examination under Part 21 | $140 |
4 | Conferences | |
Where brief fee does not exceed $255: | $42 | |
Where brief fee exceeds $255, but does not exceed $410: | $50 | |
Where brief fee exceeds $410 but does not exceed $615: | $72 | |
Where brief fee exceeds $615: | $92 | |
Other conferences, if certified: | $100–$250 | |
5 | Refreshers | |
Where the hearing is not concluded on the date on which it is begun, there will be allowed, unless the Court otherwise orders, in respect of each further day on which the hearing continues | ||
for more than 3 hours, a refresher of two-thirds, or | ||
for 3 hours or less, a refresher of one half of the brief fee. | ||
In respect of hearings outside the Sydney metropolitan area: (a) a full refresher will be allowed in respect of any subsequent day on which the hearing continues at a town other than that at which it commenced, (b) unless the Court otherwise orders, no refresher will be allowed in respect of a hearing which continues at another town on the day on which it commenced, and (c) no loading will be taken into account in calculating any refresher. | ||
6 | Where the hearing is adjourned upon an order for payment of the costs of the day—a fee equal to a refresher of one half of the brief fee. | |
7 | Where the matter is not reached on a day upon which it is listed for hearing—a fee equal to a refresher of two thirds of the brief fee (if certified by the Court). | |
8 | Motions, where the Court certifies that the matter is appropriate for Counsel | $300 |
9 | Settling request for a case to be stated and settling the case, including associated conferences and appearances before the Court | $230 |
10 | Settling particulars | $91 |
11 | Other settling | $91 |
12 | Advice on evidence | $91 |
13 | View, if certified to by the Court | $133 |
14 | To take reserved judgment, if certified to by the Court | $65 |
15 | Attending on pre-hearing conference, where the registrar thinks it appropriate for counsel to attend | $230 |
16 | Mentions, where the registrar thinks it appropriate for counsel to attend—$50, or where questions of privilege or matters of a like nature are argued—$50, or $95 per complete hour, whichever is the greater. | |
17 | Loadings: (a) In respect of any proceedings heard or partially heard outside the Sydney metropolitan area, counsel whose chambers are in Sydney shall be entitled to a loading for the first day only, in accordance with a determination in force of the Legal Fees and Costs Board, and where a town has not been included in the determination the loading for that town shall be the loading for the nearest town that is so included. (b) Where a hearing takes place at 2 or more country towns, the loading payable is that appropriate to the furthest of those towns. (c) Where of the proceedings commenced, or continued to be heard, at a country town on any one day, counsel holds a brief on hearing in 2, a loading of one-half of the full loading will be allowed in respect of each brief, and where counsel holds more than 2 such briefs on hearing, a loading of one third of the full loading will be allowed in respect of each brief. | |
18 | Fees for Queen’s Counsel or more than one counsel will not be allowed without an order of the Court. | |
19 | Unless otherwise ordered, fees for Queen’s Counsel will be those for junior counsel plus one-half. | |
20 | Pre-hearing conference before the registrar | $95 |
21 | The Court may in a special case order that fees additional to those provided in this Schedule be payable to counsel. |