Part 1 Preliminary
pt 1: Subst 20.10.1972. Rep 28.10.1977.
pt 1 (previously Part 2): Subst 20.10.1972. Am 1.6.1973; 24.8.1973; 7.9.1973; 5.10.1973; 7.12.1973; 25.10.1974; 4.4.1975; 13.6.1975; 23.7.1976; 25.3.1977; 29.4.1977; 22.7.1977. Renumbered 28.10.1977. Am 28.7.1978; 30.5.1980; 24.7.1981; 28.8.1981; 30.6.1982; 22.10.1982; 22.4.1983; 8.7.1983; 31.8.1984; 26.4.1985 (see erratum 10.5.1985); 5.7.1985; 23.8.1985; 22.8.1986; 19.6.1987; 25.9.1987; 26.8.1988; 23.12.1988; 14.7.1989; 22.12.1989; 20.4.1990; 25.5.1990; 22.6.1990; 20.7.1990; 15.2.1991; 15.3.1991; 6.3.1992; 27.3.1992; 22.5.1992; 2.10.1992; 30.10.1992; 27.11.1992; 2.4.1993; 20.8.1993; 24.9.1993; 31.3.1994 (see erratum 8.4.1994); 24.6.1994; 25.8.1995; 22.9.1995; 23.2.1996; 21.3.1997; 23.5.1997; 22.5.1998; 21.8.1998; 20.8.1999; 19.11.1999; 21.7.2000; 25.8.2000; 23.2.2001; 28.11.2003.
pt 1: Am 7.7.1972; 11.8.1972. Subst 20.10.1972. Am 5.10.1973; 7.12.1973; 28.12.1973; 23.7.1976; 1.7.1977; 22.12.1978; 6.7.1979; 17.8.1979; 21.9.1979; 2.4.1982; 22.10.1982; 17.12.1982; 25.2.1983; 22.4.1983; 9.12.1983; 23.12.1983; 24.2.1984; 23.3.1984; 31.8.1984; 7.12.1984; 3.1.1986; 12.9.1986; 26.9.1986; 23.12.1988; 19.5.1989; 22.12.1989; 30.3.1989; 25.10.1991; 2.10.1992; 30.10.1992; 2.4.1993; 20.8.1993; 10.12.1993; 25.2.1994; 24.6.1994; 21.10.1994; 23.12.1994; 28.4.1995; 24.11.1995; 19.7.1996; 25.10.1996; 7.8.1998; 21.8.1998; 24.12.1998; 19.2.1999; 25.6.1999; 20.8.1999; 27.8.1999; 24.12.1999 (see also 25.2.2000); 24.11.2000; 19.10.2001 (see also 26.10.2001); 30.8.2002; 1.11.2002; 28.11.2003; 28.5.2004.
pt 1: Ins 24.8.1973. Am 1.8.1975; 22.8.1975; 26.3.1976; 25.3.1977; 1.7.1977; 24.11.1978; 6.7.1979; 24.7.1981; 8.10.1982; 24.2.1984; 31.8.1984; 26.4.1985; 23.8.1985; 20.12.1985; 24.4.1986; 22.8.1986; 20.2.1987; 4.9.1987; 18.12.1987; 17.6.1988; 23.9.1988; 21.4.1989; 17.11.1989; 15.12.1989; 23.2.1990; 15.2.1991; 16.8.1991; 25.10.1991; 27.3.1992; 22.5.1992; 2.10.1992; 30.10.1992; 26.2.1993; 25.6.1993; 21.7.1995; 24.11.1995; 26.4.1996; 19.7.1996; 22.8.1997; 21.11.1997; 24.7.1998; 25.6.1999; 20.8.1999; 30.6.2000; 25.8.2000.
1 Name of Rules
These rules may be cited as the Supreme Court Rules 1970.
2 Commencement
These rules shall commence on the commencement of the Act.Editorial note—Date of commencement: 1.7.1972. See Gazette No 59 of 2.6.1972, p 2018.
3 Overriding purpose
(1) The overriding purpose of these rules, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in such 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 to civil proceedings 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 1.3: Am 2.6.1972; 23.6.1972; 30.6.1972; 11.8.1972; 27.10.1972; 4.5.1973; 21.12.1973; 28.12.1973; 22.2.1974; 29.3.1974; 3.5.1974; 24.5.1974; 28.6.1974; 6.9.1974; 25.10.1974; 1.8.1975; 22.8.1975; 26.3.1976; 25.3.1977; 27.5.1977; 1.7.1977; 24.11.1978; 30.3.1979; 21.12.1979; 30.5.1980; 24.7.1981; 24.12.1981; 30.6.1982; 22.10.1982; 8.7.1983; 29.6.1984; 31.8.1984; 7.12.1984; 21.12.1984; 26.4.1985; 31.5.1985; 5.7.1985; 12.7.1985; 23.8.1985; 30.8.1985; 20.9.1985; 20.12.1985; 3.1.1986; 24.4.1986; 23.5.1986; 27.6.1986; 12.9.1986; 26.9.1986 (see erratum 30.1.1987); 13.3.1987; 25.9.1987; 23.10.1987; 20.5.1988; 17.6.1988; 23.12.1988; 19.5.1989; 14.7.1989; 22.9.1989; 15.12.1989; 22.12.1989; 23.2.1990; 25.5.1990; 20.7.1990; 14.12.1990; 21.12.1990; 19.4.1991; 21.6.1991; 20.9.1991; 13.12.1991; 6.3.1992; 22.5.1992; 2.10.1992; 30.10.1992; 27.11.1992; 26.2.1993; 2.4.1993; 25.6.1993; 20.8.1993; 24.9.1993; 19.11.1993; 10.12.1993; 25.2.1994; 22.4.1994; 24.6.1994; 21.10.1994; 23.12.1994; 24.2.1995; 28.4.1995; 22.9.1995. Rep 24.11.1995. Ins 28.1.2000.
4 Amendment and continuance of rules
(1) The rules specified in the first column of Schedule A to these rules:(a) are amended to the extent and in the manner specified opposite those rules in the second column of that Schedule, and(b) subject to those amendments, remain in force.(1A) Subject to the Matrimonial Causes Rules made under the Matrimonial Causes Act 1899 and subject to subrule (1), these rules apply to proceedings in the Court under the Matrimonial Causes Act 1959.(2) The rules specified in Schedule B to these rules remain in force.(3) The Conveyancing Act Rules 1902, promulgated on 5 September 1902, remain in force.rule 1.4: Am 2.6.1972.
5 Rescission of rules
(1) The rules specified in Schedule C to these rules are rescinded.(2) The rules made on 18 March 1908 relating to section 14 of the District Courts (Amendment) Act 1905 are rescinded.
6 Pending proceedings
(1) The amendments and rescissions made by rules 4 and 5 do not, unless the Court otherwise orders, affect any proceedings commenced in the Court before the commencement of the Act or affect any of the matters mentioned in paragraph (a) or paragraph (b) of subsection (2) of section 16 of the Act.(1A) Subrule (1) does not apply to proceedings to which Divisions 1, 2 and 3 of Part 1B (which relates to pending proceedings) applies.(1B) Subrule (1) does not apply to the amendments made by rule 4 so far as they relate to rules 152G, 152H, 152J, 152K, 152L, 152M, 152N, 152O, Appendix Part V and Appendix Part VI of the Matrimonial Causes Rules.(1C) Subrule (1) does not apply to the rescissions made by rule 5 so far as they relate to the Dormant Funds Rules.(2) The Court may make orders under subrule (1) on application by a party or of its own motion.(3) Where the Court makes an order under section 16 of the Act or under subrule (1) of this rule, the court may make such orders as it thinks fit as to amendment or otherwise in relation to the conduct of the proceedings.rule 1.6: Am 11.8.1972; 28.12.1973; 28.6.1974; 23.7.1976; 23.9.1977; 21.12.1979; 24.10.1980; 16.4.1982; 23.12.1983.
7 Non-revivor
(1) An amendment made by rule 4 or a rescission made by rule 5 shall not revive anything not in force or existing immediately before the commencement of these rules.cf 52 and 53 Vict c 63, s 38 (2) (a).(2) The rescission by rule 5 of any rules by which previous rules were rescinded shall not have the effect of reviving the previous rules.cf Act No 4, 1897, s 6.
8 Interpretation
cf RSC (Rev) 1965, O 13, r 1 (2).
(1) In these rules, unless the context or subject matter otherwise indicates or requires:ASIC means the entity known as the Australian Securities Commission prior to 1 July 1998, and subsequently known as the Australian Securities and Investments Commission.assess, when used in relation to costs assessed otherwise than by the Court, means assess in accordance with Part 11 of the Legal Profession Act 1987.barrister has the same meaning as it has in the Legal Profession Act 1987.Central West means the district of the State comprising Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Orange, Parkes, and Wellington.Commercial List means the list to which Part 14 applies.Companies Code means the Companies (New South Wales) Code.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 and commercial matters.convention country means a foreign country to which a convention applies.corporation includes any artificial person.costs determination means a determination made under section 180 of the Legal Profession Act 1987 as in force from time to time prior to 1 July 1994.cross-claim means a claim for relief under section 78 of the Act.curator means:(a) in respect of a person:(i) the management of whose estate is, by the Protected Estates Act 1983 or by any order of the Court or the Guardianship Tribunal under that Act or under the Guardianship Act 1987, committed to the Protective Commissioner,(ii) of whose estate the Protective Commissioner has, in accordance with section 63 of the Protected Estates Act 1983, 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 of whose estate a manager has been appointed by order of the Court or the Guardianship Tribunal under section 22 of the Protected Estates Act 1983 or section 25M of the Guardianship Act 1987—the manager appointed.disable person means a minor or an incompetent person.document means any record of information, and includes:(a) anything on which there is writing,(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them,(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or(d) a map, plan, drawing or photograph.cf Act No 15 of 1987, s 21 (1).examiner means a person appointed by an order:(a) under Part 27 rule 1A, or(b) under section 7 (1) (a) of the Foreign Evidence Act or section 6 (1) (a) or section 21 (2) (a) of the Evidence on Commission Act 1995 or, where the order is of a kind referred to in any of those paragraphs, under section 10 (1) of the Foreign Evidence Act or section 9 or section 23 of the Evidence on Commission Act 1995 respectively.expert means a person who has specialised knowledge based on the person’s training, study or experience.fax means send a copy by facsimile transmission.folio means 100 words, five figures being counted as one word.cf Cost Rules, r 2. Rules of the Supreme Court (Revised) 1965 (Eng), O 1, r 4 (1).Foreign Evidence Act means the Foreign Evidence Act 1994 of the Commonwealth.funds includes money, debentures, stock, shares and other securities and investments.incommunicate person means a person suffering from such a handicap of body or mind, by way of coma, paralysis or otherwise whether or not induced by any drug or by medical or other treatment, that he or she is unable to receive communications respecting his or her property or affairs, or to express his or her will respecting his or her property or affairs.cf Act No 6, 1919, s 163D.incompetent person means:(a) a person who is not a minor and who is:(i) incapable of managing his or her affairs, or(ii) incommunicate, or(b) a minor who has a curator.Law Courts Building means the building in which the Sydney registry of the Court is located.medical practitioner means a person registered under the Medical Practice Act 1992 or under any law of another State or Territory of the Commonwealth for the registration of persons practising the profession of medicine.cf s 10 (2) Act No 15, 1926.master includes an acting master and the Protective Commissioner.Mutual Recognition Act means the Mutual Recognition Act 1992 of the Commonwealth.Northern Rivers district means the district of the State comprising Ballina, Bellingen, Byron Bay, Casino, Coffs Harbour, Dorrigo, Glen Innes, Grafton, Kempsey, Kyogle, Lismore, Macksville, Maclean, Mullumbimby, Murwillumbah, Port Macquarie, Tenterfield, Tweed Heads and Wauchope.notice means notice in writing.cf RSC (Rev) 1965, O 66, r 2 (5).officer, in relation to a corporation, includes a director and any person having (whether alone or with others) powers of management, direction or control of the corporation.officer of the Court does not include a solicitor, barrister or liquidator.originating process means a statement of claim, a summons or, where a cross-claim is made against a person not previously a party to the proceedings in which the cross-claim is made, the cross-claim.pay, in relation to funds, includes transfer, deposit and deliver.person bound, in relation to a judgment or order, means a person required by the judgment or order:(a) to pay money,(b) to give possession of land,(c) to deliver goods (with or without the alternative of paying the assessed value of the goods),(d) to do any other act, or(e) to abstain from doing any act.personal injuries includes any disease and any impairment of a person’s physical or mental condition.cf RSC (Rev) 1965, O 5, r 2.pleading includes a statement of claim and a cross-claim to which Divisions 1 and 2 of Part 6 apply and subsequent pleadings, but does not include a summons or a notice of motion.Possession List means the list to which Part 14B applies.Professional Negligence List means the list to which Part 14C applies.registry means a registry at Lismore, Newcastle, Orange, Sydney, Wagga Wagga or Wollongong.Riverina means the district of the State comprising Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora, Tumut and Wagga Wagga.solicitor has the same meaning as it has in the Legal Profession Act 1987.Technology and Construction List means the list to which Part 14A applies.the Act means the Supreme Court Act 1970.the Evidence Act means the Evidence Act 1995.the Service and Execution of Process Act means the Service and Execution of Process Act 1992 of the Commonwealth.Trans-Tasman Mutual Recognition Act means the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth.tutor means a next friend or guardian ad litem of a disable person.writing includes, subject to Part 65 (which relates to documents generally) printing, photography, photocopying, lithography, typewriting and any other mode of representing or reproducing words in visible form.cf Act No 15 of 1987, s 21 (1).(2) Where:(a) reference is made in the rules to the holder of an office in the Public Service or in the Australian Public Service, andthe reference shall continue to apply to the holder of that office.(b) the name of the office is changed or the relevant function is assumed by the holder of another office,(3) (Repealed)(4) For the purposes of these rules, a claim for a liquidated demand together with interest (other than a claim for an order for interest under section 94 of the Act) is a claim for a liquidated demand.rule 1.8: Am 2.6.1972; 30.3.1973; 7.9.1973; 29.3.1974; 28.6.1974; 1.8.1975; 26.3.1976; 1.4.1977; 28.4.1978; 24.11.1978; 24.4.1981; 9.12.1983; 24.2.1984; 23.3.1984; 29.6.1984; 7.12.1984; 26.4.1985; 27.6.1986; 12.9.1986; 26.9.1986; 24.10.1986; 21.11.1986; 4.9.1987; 17.6.1988; 2.12.1988; 19.5.1989; 18.8.1989; 17.11.1989; 15.2.1991; 26.2.1993; 2.4.1993; 23.4.1993; 10.12.1993; 24.6.1994; 28.4.1995; 21.7.1995; 1.3.1996; 26.4.1996; 19.7.1996; 21.2.1997; 24.4.1998 (see erratum 1.5.1998); 7.8.1998; 21.8.1998; 23.10.1998; 24.12.1998; 21.5.1999; 27.8.1999; 24.12.1999; 28.1.2000; 19.10.2001 (see also 26.10.2001).
9 Seals
(1) There shall be the seals mentioned in the first column in the table below, which shall be impressed seals and respectively shall have the wording mentioned in the second column of the table and shall be in the custody of the officer mentioned in the third column of the table.
9A Filing
(1) A document for filing, including a document sought to be filed under rule 9B:(a) in a registry or in an office of a clerk of the Court, or(b) in Court, oris not filed unless it is accepted:(c) with an associate to a Judge or master,(d) if it is received in a registry or office of a clerk of the Court—by an officer of the Court, or(e) otherwise—by the Court.(1A) A document that is an originating process on a claim for damages or a defence on a claim for damages, and any fresh document filed to amend such a document, must not be filed unless it includes a certification referred to in section 198L (2) of the Legal Profession Act 1987 and made by the relevant solicitor or barrister in the form prescribed by Form 158.(1B) Notwithstanding anything in these rules, the obligation to comply with subrule (1A) must not be waived.(2) The date of acceptance shall be subscribed on the document:(a) where it is accepted under subrule (1) (d)—by an officer of the Court, or(b) where it is accepted under subrule (1) (e)—by any person approved by the Court.rule 1.9A: Ins 23.12.1983. Subst 26.9.1986; 21.4.1989. Am 25.10.1996; 29.11.2002.
9B Filing by post or document exchange
(1) Any document for filing in a registry may be filed under this rule.(2) A document for filing under this rule may:(a) be posted to the registry, orwith a request that the document be filed.(b) be left, addressed to the registry:(i) in the exchange box of Australian Document Exchange Pty Ltd and of that registry,(ii) in another exchange box for transmission to the exchange box of that Company and registry, or(iii) if it is the registry at Sydney, in a box provided for the purpose in the registry,rule 1.9B: Ins 26.9.1986. Am 21.11.1986.
9C Filing prescribed bail forms by fax
A document, which concerns an application relating to bail and the form of which is prescribed by the rules, shall be sufficiently filed if a copy of the document, produced in the Sydney registry by a facsimile transmission machine, is filed.rule 1.9C: Ins 19.11.1993.
10 Serial number
(1) A document filed shall bear a serial number allocated by the registry.(2) The number shall be followed by a reference to the calendar year in which the number is assigned.(3) A new series of numbers shall be commenced at the beginning of each calendar year.rule 1.10: Am 2.6.1972. Subst 6.7.1979. Am 14.11.1980; 24.4.1981; 7.12.1984 (see erratum 21.12.1984); 24.10.1986 (see erratum 30.1.1987); 26.4.1996; 19.2.1999. Subst 24.11.2000.
10A Place of filing
(1) Documents shall not, subject to the rules, except with the leave of the Court, be presented for filing in a registry at a place outside Sydney, except in proceedings in the Common Law Division for trial or hearing at that place.(1A) In respect of proceedings in the Common Law Division for trial or hearing in the Riverina documents may be presented for filing in the registry at Wagga Wagga or in an office in the Riverina of a clerk of the Court.(1B) (Repealed)(1C) In respect of proceedings in the Common Law Division for trial or hearing in the Central West documents may be presented for filing in the registry at Orange or in an office in the Central West of a clerk of the Court.(1D) In respect of proceedings in the Common Law Division for trial or hearing in the Northern Rivers district documents may be presented for filing in the registry at Lismore or in an office in the Northern Rivers district of a clerk of the Court.(2) The Court file shall, unless the Court otherwise directs, be held in, or sent to, the registry at the place at which the file is required for the purposes of a trial or hearing at that place.(3) Where there is a Court file and another document is to be filed, the document shall, subject to subrules (1A), (1C) and (1D), Part 51 rule 47 and Part 51AA rule 29, unless the Court otherwise directs, be presented for filing in the registry in which the Court file is held or:(a) in proceedings for trial or hearing in the Riverina—in the registry at Wagga Wagga or in the office in the Riverina of a clerk of the Court, or(b) in proceedings for trial or hearing in the Central West—in the registry at Orange or in the office in the Central West of a clerk of the Court, or(c) in proceedings for trial or hearing in the Northern Rivers district—in the registry at Lismore or in the office in the Northern Rivers district of a clerk of the Court.(4) Subrule (1) does not apply to a statement of claim or summons or to a copy of a subpoena.(5) Subrule (3) does not apply to a copy of a subpoena issued elsewhere than in the registry in which the Court file is held.rule 1.10A: Ins 6.7.1979. Am 14.11.1980; 24.4.1981; 23.12.1983; 7.12.1984; 26.9.1986; 24.10.1986; 15.2.1991; 23.5.1997.
11 Forms
cf Act No 15 of 1987, s 80.
Forms are prescribed in Schedule F.rule 1.11: Am 2.6.1972. Subst 4.9.1987.
11A Order on terms
cf s 21 of the Act; General Rules of Procedure in Civil Proceedings 1986 (Vic), Rule 1.14 (1) (b).
Where, under these rules, the Court or any person may make any order or give any direction or leave or do any other thing, the Court or person may make the order or give the direction or leave or do the thing on such terms and conditions (if any) as the Court or person thinks fit.rule 1.11A: Ins 22.4.1988.
12 Relief from rules
cf Court of Appeal Rules, r 57.
The Court may dispense with compliance with any of the requirements of the rules, either before or after the occasion for compliance arises.rules 1.12, 1.13: Am 2.6.1972.
13 Procedure wanting or in doubt
(1) Where a person desires to commence proceedings or take any step in any proceedings, and the manner or form of procedure is not prescribed by the Act or the rules or by or under any other Act or that person is in doubt as to the manner or form of procedure, the Court may, on application by that person, give directions.cf High Court Rules, O 72, r 1 (1).(2) Proceedings commenced in accordance with the directions of the Court shall be well commenced.cf HCR, O 72, r 1 (2).(3) A step taken in accordance with the directions of the Court shall be regular and sufficient.cf HCR, O 72, r 1 (2).(4) In respect of proceedings to be commenced for directions under subrule (1), application may be made by summons in any Division.rules 1.12, 1.13: Am 2.6.1972.
14 Saving as to discovery
cf Act No 24, 1901, s 45.
These rules do not affect the right of any person to commence proceedings for discovery.
Part 1A Sittings and vacations
pt 1A: Ins 2.6.1972.
1 Sittings
(1) Sittings shall be held in each year at such times and places as are appointed for that year or from time to time by the Chief Justice.cf HCR O 59, rr 1 and 2.(2) Particulars of times and places appointed shall be published in the Gazette.(3) The Court may sit at any time and place notwithstanding that the time and place of the sitting has not been appointed or has not been published as provided in this rule.rule 1A.1: Ins 2.6.1972.
2 Vacations
(1) There shall be a fixed vacation and a variable vacation in each year.(2) The fixed vacation shall be a period of six weeks from the beginning of the Monday before the 24th of December.(3) The variable vacation shall be a period not exceeding four weeks regulated by the Chief Justice.(4) A hearing or trial shall not be held in the fixed vacation, unless the Court otherwise orders.rule 1A.2: Ins 2.6.1972. Subst 20.12.1974. Am 24.6.1994; 24.9.1999.
3 (Repealed)
rule 1A.3: Ins 2.6.1972. Rep 19.4.1991.
Part 1B Pending proceedings
pt 1B: Ins 11.8.1972.
Division 1 Preliminary
1 Interpretation
(1) Where this Part provides that the Act applies to any proceedings, the Act and the rules shall apply to the proceedings and the repeals and amendments made by the Act and the amendments and rescissions made by rules 4 and 5 of Part 1 shall have effect in relation to the proceedings and to the matters mentioned in paragraph (a) and (b) of subsection (2) of section 16 of the Act.(2) The provisions of the rules relating to proceedings commenced by statement of claim shall, except so far as the Court otherwise orders, and except so far as the context or subject matter otherwise indicates or requires, apply to proceedings to which the Act applies.rule 1B.1: Ins 11.8.1972. Am 4.5.1973.
2 Application: powers of the Court
(1) The Court may, on the application of any party in any proceedings, order that this Part, or any of the provisions of this Part, shall not apply to the proceedings.(2) Where the Court makes any order under subrule (1), the Court may make such orders as it thinks fit as to amendment or otherwise in relation to the conduct of the proceedings.rules 1B.2–1B.5: Ins 11.8.1972.
3 Documents and backsheets
Notwithstanding Part 1 rule 10 and Part 65 rules 1 and 3, a document and a backsheet in proceedings to which this Part applies shall:(a) be headed “In the Supreme Court of New South Wales Common Law Division”,(b) show the existing number of the proceedings, and(c) retain the existing title, together with the words “Proceedings under Part 1B” above the title.rules 1B.2–1B.5: Ins 11.8.1972.
Division 2 Appearance and no declaration
4 Application of Act where appearance and no declaration
(1) Subject to subrule (3), and unless the Court otherwise orders, this Division applies to:(a) proceedings commenced by writ of summons under Part 2 of the Common Law Procedure Act 1899, in which, before 12 August 1972, the defendant, or where there is more than one defendant, each of the defendants, has entered an appearance but no declaration has been filed, and(b) proceedings commenced by writ of summons under Part 2 of the Common Law Procedure Act 1899, in which, before 12 August 1972:(i) the defendant has not entered an appearance, or where there is more than one defendant, one or more of the defendants has not entered an appearance, and(ii) no declaration has been filed, and, on or after 12 August 1972, but before a declaration is filed, the defendant, or where there is more than one defendant, each and every defendant who has not already entered an appearance, enters an appearance.(2) The Act shall apply to proceedings to which this Division applies.(3) This Division shall not apply to any proceedings in which:(a) application has been or is made under section 4 of the Witnesses Examination Act 1900, unless the application has been refused before a declaration is filed or an appearance is entered, or(b) before a declaration is filed or an appearance is entered, money has been paid into Court and remains in Court or a bond or undertaking securing the payment of money into Court has been deposited and remains with the Prothonotary.rules 1B.2–1B.5: Ins 11.8.1972.
5 Service of appearance
A copy of the notice of appearance shall be served on the plaintiff on the day of filing, in the manner prescribed by Order 9 rule 3 of the General Rules of Court.rules 1B.2–1B.5: Ins 11.8.1972.
6 Conditional appearance
Where a person enters a conditional appearance, rules 7 and 8 of Part 11 before 23 December 1988 apply as if the writ were an originating process and the conditional appearance were entered under rule 7 of that Part before 23 December 1988.rule 1B.6: Ins 11.8.1972. Am 23.12.1988.
7 Statement of claim instead of declaration
(1) The plaintiff shall not file a declaration but shall, before the expiry of 14 days after the date on which the Act applies to the proceedings by virtue of this Division, file a statement of claim and the proceedings shall continue on the pleadings.(2) A statement of claim (Form 5 of Schedule F) shall not bear the note required by Part 7 Rule 3 (which relates to a note to the defendant to appear).(3) The statement of claim shall bear the following note addressed to the defendant:1You are liable to suffer judgment or an order against you unless you comply with the rules of Court relating to your defence.(4) He shall, on the day of filing, serve the statement of claim upon each defendant.rule 1B.7: Ins 11.8.1972.
8 Time for defence
The time for serving a defence under Part 15 Rule 3 shall, subject to subrule (2) of that rule, be 21 days after the service of the statement of claim.rule 1B.8: Ins 11.8.1972. Am 26.9.1986.
Division 3 After Issues for Trial filed
9 Application of Act where Issues for Trial filed
(1) Subject to subrule (2), and unless the Court otherwise orders, this Division applies to proceedings commenced by writ of summons under Part 2 of the Common Law Procedure Act 1899, where Issues for Trial are filed after 1 September 1972.(2) This Division shall not apply to any proceedings in which:(a) an objection to a pleading has been raised by demurrer and the demurrer has not, on 1 September 1972, been disposed of by judgment or otherwise,(b) an application has been or is made under section 4 of the Witnesses Examination Act 1900, unless the application has been refused before the filing of the Issues for Trial,(c) before the filing of the Issues for Trial, money has been paid into Court and remains in Court or a bond or undertaking securing the payment of money into Court has been deposited and remains with the Prothonotary, or(d) an order has been made under section 98 (1) (which relates to transfers to the equitable jurisdiction) of the Common Law Procedure Act 1899.rules 1B.9–1B.14: Ins 11.8.1972.
10 Mode of application of Act and rules
The Act and rules shall, upon the filing of the Issues for Trial, apply to the proceedings to which this Division applies as if the proceedings had been commenced by statement of claim.rules 1B.9–1B.14: Ins 11.8.1972.
11 Service and notice
(1) The party filing the Issues for Trial shall, within two days after the filing thereof, serve the Issues for Trial on each other party in the proceedings.(2) The Issues for Trial and the backsheet shall bear the words prescribed by paragraph (c) of rule 3.rules 1B.9–1B.14: Ins 11.8.1972.
12 Praecipe etc of no effect
In proceedings to which this Division applies, a praecipe for trial or a notice of trial endorsed upon the Issues for Trial shall cease to have any force or effect.rules 1B.9–1B.14: Ins 11.8.1972.
13 Issues to be tried
Unless the Court otherwise orders, the issues stated in the Issues for Trial shall be the issues to be tried and the pleadings shall be closed.rules 1B.9–1B.14: Ins 11.8.1972.
14 Place of trial
(1) The venue as laid shall be the place of trial, unless the Court otherwise orders.cf P 33, r 2.(2) The Court may fix separate places of trial for any questions or issues.rules 1B.9–1B.14: Ins 11.8.1972.
15 Mode of trial
cf P 33, r 3.
Subject to the Act, the Court may order that any question or issue be tried with a jury and that any other question or issue be tried without a jury.rule 1B.15: Ins 11.8.1972. Subst 20.10.1972.
16 Extent of trial
cf P 33, r 4.
Proceedings shall, unless the Court otherwise orders, be set down for trial generally, that is to say, for trial of all questions and issues arising on every claim for relief in the proceedings.rule 1B.16: Ins 11.8.1972.
17 Notice to set down for trial
(1) A party may, after the filing of the Issues for Trial and, in proceedings to which rule 22 applies, subject to rule 22, file a notice to set down for trial, that is to say, a notice requesting that the proceedings be set down for trial.cf P 33, r 5.(1A) Proceedings shall not be set down for trial at any place other than Sydney unless the notice to set down for trial is filed not less than two months before the beginning of the sittings at that place.(2) The notice to set down for trial shall state:(a) the place for trial as fixed by or under rule 14,(b) whether the proceedings are to be set down for trial generally or for the trial of specified issues, and(c) whether the trial is to be with a jury.(3) A party filing a notice to set down for trial shall, on the day of filing, serve the notice on each other party in the proceedings.rule 1B.17: Ins 11.8.1972. Am 30.3.1973; 21.11.1986.
18 Want of prosecution
cf P 33, r 6.
Where a plaintiff does not, within 6 weeks after the filing of the Issues for Trial, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.rule 1B.18: Ins 11.8.1972.
19 (Repealed)
rule 1B.19: Ins 11.8.1972. Rep 23.3.1984.
20 Setting down for trial
(1) Where notice to set down for trial has been filed, and the Court considers that the proceedings are ready for trial, the Court shall set the proceedings down for trial in accordance with this rule.cf P 33, r 8.(2) The Court shall set the proceedings down:(a) for trial at the place fixed by or under rule 14,(b) for trial on a specific date or, unless Sydney is the place of trial, at sittings beginning on a specific date, and(c) either for trial generally or for the trial of specific issues, in accordance with rule 16.rules 1B.20, 1B.21: Ins 11.8.1972. Am 30.3.1973.
21 Notice of trial
cf P 33, r 9.
The Court shall, not less than 14 days before the date for which the proceedings are set down for trial, give notice of trial to each party in the proceedings and who was not present or represented when the proceedings were set down for trial.rules 1B.20, 1B.21: Ins 11.8.1972. Am 30.3.1973.
22 Personal injuries cases: particulars
(1) A party may not file a notice to set down for trial proceedings to which this rule applies unless the party has served on all parties the statement mentioned in Part 33 rule 8A (2) (a)–(d).(2) The statement mentioned in subrule (1) shall be filed with the notice to set down for trial.(3) (Repealed)rule 1B.22: Ins 11.8.1972. Subst 30.3.1973. Am 26.9.1986. Subst 21.11.1986. Am 20.3.1987.
23 Requisition for jury
cf P 34, r 3.
A requisition for trial with a jury for the purposes of section 86 of the Act shall be filed not later than 21 days after the filing of the Issues for Trial.rules 1B.23, 1B.24: Ins 11.8.1972.
24 Reference to Part 33 in Parts 34, 35
For the purposes of this Division, a reference in Part 34 rule 4 and in Part 35 rule 1 to Part 33 shall be construed as a reference to this Division.rules 1B.23, 1B.24: Ins 11.8.1972.
Division 4 Court fees
pt 1B, div 4 (Rule 1B.25): Ins 28.12.1973.
25 Court fees
Unless the Court otherwise orders:(a) Part 1 rule 6 (1) does not apply to:(i) rule 58 of or the Second Schedule to the Court of Appeal Rules,(ii) Order 29 rule 2 or Order 29 rule 3 of or the Second Schedule to the General Rules of the Court,(iii) rule 351 of or Table A to the Consolidated Equity Rules of 1902,(iv) the Scale of Fees to be Charged in the Sheriff’s Office under the Sheriff’s Rules, or(v) any other rule fixing Court fees, and(b) the regulations made under the Act shall apply in respect of proceedings commenced before the commencement of the Act and have effect in respect of the matters mentioned in section 16 (2) of the Act.pt 1B, div 4 (Rule 1B.25): Ins 28.12.1973.
Division 5 Judgments and orders
pt 1B, div 5 (Rule 1B.26): Ins 1.7.1977.
26 Judgments etc and orders
(1) Unless the Court otherwise orders:(a) the Act and the rules apply to the drawing, settling, passing, signing and sealing of a form of, and to the manner of entry of, a judgment, decree, rule, decretal order or other order in any jurisdiction of the Court mentioned in paragraph (b) of section 8 (1) of the Act, or in the Court of Appeal, in proceedings commenced before 1 July 1972, as they apply to the drawing, settling, passing, signing and sealing of a minute of, and to the manner of entry of, a judgment or order in the corresponding Division of the Court mentioned in that paragraph, or in the Court of Appeal, in proceedings commenced on or after that date,(b) where a form of judgment, decree, rule, decretal order or other order is prescribed by any law formerly in force, it shall be sufficient compliance with that law if the operative part of the form is stated in Form 50 or Form 51, as the case may require.(2) Part 1 rule 6 (1) shall not apply to the matters to which subrule (1) applies.pt 1B, div 5 (Rule 1B.26): Ins 1.7.1977.
Division 6 Funds in Court
pt 1B, div 6 (Rule 1B.27): Ins 21.12.1979.
27 Application of Part 50
Part 50 (which relates to funds in Court) shall apply to proceedings commenced in the Court before 1 July 1972.pt 1B, div 6 (Rule 1B.27): Ins 21.12.1979.
Part 2 Time
pt 2 (previously Part 3): Am 2.6.1972; 30.6.1972. Subst 20.10.1972. Am 1.6.1973; 22.2.1974; 29.3.1974; 3.5.1974; 28.6.1974; 22.8.1975; 23.7.1976; 29.4.1977; 22.7.1977. Renumbered 28.10.1977. Am 28.10.1977; 28.7.1978; 8.7.1983; 23.12.1983; 31.5.1985; 22.11.1985; 24.4.1986; 12.9.1986; 20.11.1987; 23.9.1988; 19.5.1989; 20.10.1989; 23.2.1990; 22.6.1990; 28.4.1995; 23.5.1997; 21.5.1999; 24.11.2000; 23.2.2001; 19.10.2001 (see also 26.10.2001).
pt 2: Ins 2.6.1972. Subst 20.10.1972. Am 24.8.1973; 5.10.1973; 2.11.1973; 7.12.1973; 4.4.1975; 22.12.1978; 21.9.1979; 30.6.1982; 22.10.1982 (see erratum 12.11.1982); 22.4.1983; 9.12.1983; 24.2.1984; 29.6.1984; 31.8.1984; 21.9.1984; 26.4.1985; 5.7.1985; 20.12.1985; 24.4.1986; 27.6.1986; 23.10.1987; 19.2.1988; 23.12.1988; 24.2.1989; 19.5.1989; 18.8.1989; 15.12.1989; 22.12.1989; 30.3.1990; 25.5.1990; 24.8.1990; 15.2.1991; 22.5.1992; 2.10.1992; 30.10.1992; 27.11.1992; 2.4.1993; 25.6.1993; 2.7.1993; 20.8.1993; 24.9.1993; 19.11.1993; 25.2.1994; 24.6.1994; 21.10.1994; 23.12.1994; 21.7.1995; 25.8.1995; 24.11.1995; 1.3.1996; 25.10.1996; 22.5.1998; 21.8.1998; 23.10.1998; 20.8.1999; 27.8.1999; 24.9.1999; 24.12.1999 (see also 25.2.2000); 20.4.2000; 24.11.2000; 11.5.2001; 23.11.2001; 30.8.2002; 31.10.2003; 19.12.2003.
pt 2, Heading: Ins 24.8.1973. Am 19.2.1999 (see also 25.6.1999); 25.6.1999.
pt 2: Ins 24.8.1973. Subst 1.8.1975.
1 “Month”
cf RSC (Rev) 1965, O 3, r 1.
In any judgment or order and in any document in any proceedings, unless the context or subject matter otherwise indicates or requires, month means calendar month.
2 Reckoning
(1) Any period of time fixed by rules or by any judgment or order or by any document in any proceedings, shall be reckoned in accordance with this rule.cf RSC (Rev) 1965, O 3, r 2 (1).(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 or part of a day on which the registry is closed, that day shall be excluded.(4) Where the last day for doing a thing is, or a thing is to be done on, a day on which the registry is closed, the thing may be done on the next day on which the registry is open.(5) Where the last day for doing a thing in a registry or office of a court (other than the Court) or a tribunal is a day on which that registry or office is closed, the thing may be done on the next day on which that registry or office is open.(5A) Subrules (4) and (5) shall not apply to the reckoning of time under Part 37 rule 4 (1) (b).(6) Section 36 of the Interpretation Act 1987 (which subsection relates to the reckoning of time) does not apply to these rules.rule 2.2: Am 28.6.1974; 8.10.1982; 14.2.1986; 4.9.1987; 1.3.1996.
3 Extension and abridgment
(1) The Court may, on terms, by order, extend or abridge any time fixed by the rules or by any judgment or order.cf RSC (Rev) 1965, O 3, r 5 (1).(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.cf RSC (Rev) 1965, O 3, r 5 (2).(3) The period within which a person is required by rules or by any order to serve, file or amend any pleading or other document may be extended by consent without an order for extension.cf RSC (Rev) 1965, O 3, r 5 (3).
4 Fixing times
cf RSC (Rev) 1965, O 62, r 16 (1) (b); Court of Appeal Rules, r 22.
Where no time is fixed by the rules or by any judgment or order of the Court for the doing of any thing in or in connection with any proceedings, the Court may, by order, fix the time within which the thing is to be done.
5 Vacation
(1) In reckoning the time fixed by the rules or any judgment or order for the doing by a party of any act:(a) the period from the beginning of 25 December until the end of 9 January next following, andshall, unless the Court otherwise orders, be excluded but, subject to Part 1A rule 2 (4) (which relates to a trial in the fixed vacation), business may be done during those periods.(b) the period from the beginning of 11 September 2000 until the end of 29 September 2000,cf General Rules of the Court, O 1, r 1 and O 3, r 1.(2) Where the Court makes an order under subrule (1) on the application of a party, the party on whose application the order was made shall serve a minute of the order:(a) in the case of an order with respect to the time for appearance to be limited in an originating process—with the originating process,(b) otherwise—forthwith on each party.rule 2.5: Am 20.12.1974; 28.7.1978; 17.12.1982. Subst 19.6.1987. Am 20.9.1991; 24.9.1999.
6 Registry hours
cf GRC, O 2, r 1 proviso.
(1) Except on Saturdays, Sundays and other holidays:(a) the Sydney registry shall be open to the public for business between 9 in the morning and 5 in the afternoon,(b) any other registry shall be open to the public for business between 9 in the morning and 12.30 in the afternoon and between 1.30 and 5 in the afternoon.(2) A registry or part of a registry may be opened at other times for urgent business.rule 2.6: Am 30.9.1977; 18.12.1987; 24.9.1999; 14.6.2002.
Part 3 Preliminary discovery
pt 3 (previously Part 4): Ins 20.10.1972. Am 23.2.1973; 29.3.1974; 13.6.1975; 22.7.1977. Renumbered 28.10.1977. Am 22.12.1978; 28.8.1981 (see erratum 18.9.1981); 25.9.1981; 30.10.1981; 7.5.1982; 30.6.1982; 9.12.1983; 20.9.1985; 22.11.1985; 23.12.1988; 20.10.1989; 20.7.1990; 15.2.1991; 30.10.1992; 2.4.1993 (see erratum 8.4.1993); 23.4.1993; 24.9.1993; 21.7.1995; 24.11.1995; 26.4.1996; 21.5.1999; 30.6.2000; 19.4.2002; 28.11.2003.
1 Examination and production
(1) Where, on application by any person, it appears to the Court that:(a) the applicant, having made reasonable inquiries, is unable to ascertain the identity of a person for the purpose of commencing proceedings against that person or is unable to ascertain the description of any person sufficiently for that purpose, andthe Court may order that person:(b) some person has or may have knowledge of facts, or has or may have in his possession, custody or power any document or thing, tending to assist in the ascertainment of the identity or description of the person concerned,(c) to attend before the Court or an officer of the Court and be orally examined on any matter relating to the identity or description of the person concerned, and(d) to produce any document or thing in his possession, custody or power relating to the identity or description of the person concerned.(2) Where, on the application of any person, 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 the ascertainment of the identity or description of the person concerned, the Court may order the corporation or any officer of the corporation to produce any document or thing in the possession, custody or power of the corporation relating to the identity or description of the person concerned.(3) In this rule:person concerned means the person referred to in subrule (1) (a), anddescription includes the name, place of residence, place of business, occupation and sex of the person concerned.rule 3.1: Am 2.6.1972. Subst 28.6.1974.
2 Procedure
(1) An application for an order under rule 1 shall be made by summons under Part 5 rule 3 joining the person against whom the order is sought as a defendant.(2) An order under rule 1 must be served personally on the person ordered to attend or to produce any document or thing.(3) An application for an order under rule 1 is assigned to the Division to which the proceedings referred to in rule 1 (1) (a) would be assigned.rule 3.2: Am 2.6.1972; 15.2.1991; 13.6.2003.
3 Conduct money
Part 37 rule 6 (which relates to conduct money) applies in relation to an order under rule 1 as it applies in relation to a subpoena.rule 3.3: Am 2.6.1972. Subst 2.4.1982. Am 26.3.2004.
4 Expense and loss
Where any person incurs expense or loss in complying with an order under rule 1 in an amount exceeding any sum paid under rule 3, the Court may order the applicant to pay to that person an amount sufficient to make good the expense or loss.
Part 4 Commencement of proceedings
1 Two modes only
cf RSC (Rev) 1965, O 5, r 1.
Notwithstanding the provisions of any Act, rule or regulation in force immediately before the commencement of the Act, proceedings in the Court shall be commenced by statement of claim or by summons.
2 Where statement of claim required
(1) Proceedings shall be commenced by statement of claim:(a) where a claim is made by the plaintiff for any relief or remedy for any tort,(b) where a claim made by the plaintiff is based on an allegation of fraud,(c) where a claim is made by the plaintiff for damages for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under an Act or Commonwealth Act or independently of any contract or any such provision), and the damages claimed consist of or include damages in respect of the death of any person or in respect of personal injuries to any person or in respect of damage to any property,(d) where a claim is made by the plaintiff for relief in respect of any trust other than an express trust wholly in writing,(e) where a claim is made by the plaintiff in proceedings for possession of land.cf RSC (Rev) 1965, O 5, r 2.(2) Subrule (1) does not apply to proceedings commenced by a person who desires to apply for:(a) an order under Part 28 rule 1 (1) (a) (relating to proceedings for a writ of habeas corpus),(ai) orders under Part 28 rule 1 (1) (ai) (relating to custody of minors),(aii) a declaration of right,(b) an injunction,(c) an appointment of a receiver,(d) orders under Part 28 rule 2 (which relates to the preservation of property), or(e) (Repealed)(f) relief or remedy for trespass to land.(3) (Repealed)rule 4.2: Am 2.6.1972; 30.3.1973; 4.5.1973; 25.5.1984; 30.8.1985; 20.4.1990; 31.3.1994; 25.10.1996 (see erratum 29.11.1996).
2A Commencement where there is no defendant
(1) Proceedings in which there is no defendant shall be commenced by summons.(2) If the proceedings in which there is no defendant are commenced by statement of claim:(a) the proceedings shall be well commenced for all purposes on the date of the filing of the statement of claim,(b) the plaintiff may file a summons in the proceedings claiming the relief which he claims by the statement of claim, and(c) upon the filing of a summons as mentioned in paragraph (b), the proceedings shall, subject to paragraph (a), continue as if commenced by summons.rules 4.2A, 4.2B: Ins 2.6.1972.
2B Wrong commencement by statement of claim
(1) Where proceedings in which there is a defendant are commenced by statement of claim, but ought under any Act or under the rules to have been commenced by summons, or might in the opinion of the Court more conveniently continue as if commenced by summons:(a) the proceedings shall be well commenced for all purposes on the date of the filing of the statement of claim,(b) the Court may order that the plaintiff file a summons in the proceedings claiming the relief which he claims by the statement of claim.(2) Upon the filing of a summons pursuant to an order under subrule (1) (b), the proceedings shall, subject to subrule (1) (a), continue as if commenced by summons.rules 4.2A, 4.2B: Ins 2.6.1972.
3 Where plaintiff may choose
(1) Except in the case of proceedings which by the rules or by or under any Act are required to be commenced by statement of claim only or by summons only, proceedings may be commenced either by statement of claim or by summons as the plaintiff considers appropriate.cf RSC (Rev) 1965, O 5, r 4 (1).(2) Proceedings:(a) in which the sole or principal question at issue is, or is likely to be, one of the construction of an Act or Commonwealth Act or of any instrument made under an Act or Commonwealth Act, or of any deed, will, contract or other document, or some other question of law, orare amongst those which are appropriate to be commenced by summons unless the plaintiff considers the proceedings more appropriate to be commenced by statement of claim.(b) in which there is unlikely to be a substantial dispute of fact,cf RSC (Rev) 1965, O 5, r 4 (2).rule 4.3: Am 2.6.1972; 30.8.1985.
4 Proceeding by solicitor or in person
Subject to rules 4A and 5 (1) and subject to Part 63 rules 2 and 3 (which relate to disability), any person may proceed in the Court by a solicitor or in person.rule 4.4: Am 20.9.1991. Subst 23.5.1997.
4A Corporations
(1) Except as provided by this rule or by or under any Act, a corporation (other than a solicitor corporation) may not commence or carry on any proceedings otherwise than by a solicitor.(2) A corporation may commence or carry on proceedings by a director (referred to in this rule as the authorised director) if:(a) the authorised director is also a plaintiff in the proceedings,(b) the authorised director has the authority of the corporation to commence and carry on the proceedings, and(c) there is filed with the originating process an affidavit, made by the authorised director within 2 days before the date of commencement of the proceedings, containing statements to the effect set out in either paragraph (a) or (b) of subrule (3).(3) The affidavit shall contain statements to the effect either:(a)(i) that the authorised director is a director of the corporation,(ii) that the authorised director has been authorised by a resolution of the directors duly passed at a meeting of directors held on a specified date (which shall not be earlier than 21 days before the date of the affidavit) to commence and carry on the proceedings,(iii) that the authority has not been revoked, and(iv) that the authorised director is aware that he or she may be liable to pay some or all of the costs of the proceedings, or(b)(i) that the authorised director is the managing or governing director of the corporation and has authority to exercise the powers of the directors, and(ii) that the authorised director is aware that he or she may be liable to pay some or all of the costs of the proceedings.(4) The authorised director may join as a plaintiff with the corporation for the purpose of permitting the corporation to take advantage of this rule.(5) Without limiting the powers of the Court under section 76 of the Act, the Court may make against the corporation and the authorised director any order for costs which, if the authorised director had not been a party, it would have made against the corporation.(6) Subject to subrule (7), these rules apply to a corporation which commences or carries on proceedings by an authorised director as if the corporation were a party proceeding in person.(7) The authority of a person who purports to have commenced, or to be carrying on, proceedings for a corporation under this rule may be challenged in the same manner as the retainer of a solicitor purporting to act for a party may be challenged.(8) A corporation that has complied with subrule (2) in any proceedings may defend, by the authorised director, a cross-claim in the proceedings.rule 4.4A: Ins 23.5.1997.
5 Relator
(1) A relator must act by a solicitor.cf RSC (Rev) 1965, O 15, r 11.(2) A solicitor may not act for a relator in any proceedings unless the relator has authorised the solicitor in writing to act for him in the proceedings and the authority has been filed.cf RSC (Rev) 1965, O 15, r 11.(3) The authority may be written on the originating process.(4) (Repealed)rule 4.5: Am 24.7.1998.
Part 5 Proceedings by summons
1 Application of Part
(1) This Part applies only to proceedings commenced by summons on or after 16 June 2003.(2) The provisions of this Part (as in force immediately before 16 June 2003) continue to apply to proceedings commenced by summons before that date in the same way as they would have applied had the Supreme Court Rules (Amendment No 376) 2003 not been made.(3) This Part has effect subject to any contrary provisions of these rules.rule 5.1: Subst 13.6.2003.
2 Parties
(1) Subject to Part 51 rule 50 (4) and Part 51AA rule 32 (4) (which relate to a summons in the Court of Appeal), a party claiming relief by summons shall be called a plaintiff.cf RSC (Rev) 1965, O 7, r 2 (2).(2) Subject to Part 51 rule 50 (5) and Part 51AA rule 32 (5) (which relate to a summons in the Court of Appeal), a party against whom relief is claimed by summons shall be called a defendant.cf RSC (Rev) O 7, r 2 (2).rule 5.2: Am 23.5.1980; 23.5.1997.
3 Form of summons
(1) A summons commencing proceedings must be in Form 6 and state a return day.(2) The return day to be stated in a summons under this rule may be fixed by the Court or, if not fixed by the Court, is to be obtained from the appropriate registry.(3) If there is a defendant, the summons is to be served not less than 5 days before the return day unless the Court orders otherwise. A summons is to bear a note of any order made under this subrule.(4) If the return day is obtained from the appropriate registry and the summons is to be served outside the State, the return day is to be not less than one month after the date of filing of the summons.rule 5.3: Rep 2.6.1972. Ins 13.6.2003.
4–5 (Repealed)
rule 5.4: Subst 2.6.1972. Rep 13.6.2003.
rules 5.4A–5.4C: Ins 2.6.1972. Am 6.7.1979. Rep 13.6.2003.
rule 5.5: Subst 2.6.1972. Rep 13.6.2003.
5A Alteration of date
(1) Where an appointment for hearing has been obtained or made, the Court may alter the appointment to a later date and may authorise the solicitor for a party to make corresponding alterations in any copy for service of any summons or notice.(2) The registrar may exercise the powers of the Court under subrule (1) and may give authority by telephone or by such other means as he thinks fit.rule 5.5A: Ins 2.6.1972.
5B Defence: extinction of right or title
In proceedings commenced by summons, a claim that a right or title has been extinguished under Division 1 of Part 4 of the Limitation Act 1969 may be made by affidavit or by serving a notice of the claim.rule 5.5B: Ins 21.9.1979. Am 26.9.1986.
6 Place for hearing of summons
(1) This rule applies to proceedings commenced in the Common Law Division.(2) If a summons names a place outside Sydney as the place for attendance, that place is to be the place for hearing unless the Court otherwise orders.rule 5.6: Rep 2.6.1972. Ins 6.7.1979. Am 14.11.1980; 13.6.2003.
7 Directions
(1) Without limiting the generality of Part 26 (which relates to directions), the Court may:(a) make orders for defining the issues by pleadings or otherwise,(b) direct that the whole or any part of the evidence be given on affidavit or orally,(c) make any orders relating to the conduct of the proceedings which it might make on motion by a party.(2) The Court may, on or after making an order under subrule (1) (a), make orders for the filing of a statement of claim or other pleadings.(3) Subject to any order of the Court:(a) a statement of claim to be filed pursuant to an order under this rule shall not bear the note required by Part 7 rule 3 but shall bear the following note addressed to the defendant:“You are liable to suffer judgment or an order against you unless you comply with the rules of the Court relating to your defence”,(b) the plaintiff shall, on the day of filing, serve the statement of claim on the defendant,(c) the defendant shall, subject to Part 15 rule 3 (2), file his defence within 21 days after the service of the statement of claim on him.rule 5.7: Am 2.6.1972. Subst 23.3.1984. Am 20.4.1990.
8 Determination
cf RSC (Rev) 1965, O 28, r 4 (1).
The Court may, on the first or any later day of hearing:(a) hear and determine the proceedings or any claim in the proceedings, and(b) make such order or such judgment as the nature of the case requires.rule 5.8: Am 30.3.1990.
9 Absence of party
cf RSC (Rev) 1965, O 28, r 4 (1).
The Court may proceed with a hearing in the absence of:(a) a plaintiff, where he has had due notice of the hearing,(b) a defendant, where:(i) he is in default of appearance, or(ii) he has had due notice of the hearing.
10 (Repealed)
rule 5.10: Rep 29.3.1974.
11 Continuation on pleadings
(1) The Court may order that the proceedings continue on pleadings.cf RSC (Rev) 1965, O 28, r 8 (1).(2) The Court may, on or after making an order under subrule (1):(a) order that any affidavits stand as pleadings, or(b) make orders for the filing of a statement of claim or other pleadings.cf RSC (Rev) 1965, O 28, r 8 (1).(3) Subject to any order of the Court:(a) a statement of claim to be filed pursuant to an order under this rule shall not bear the note required by Part 7 rule 3 but shall bear the following note addressed to the defendant:“You are liable to suffer judgment or an order against you unless you comply with the rules of the Court relating to your defence”,(b) the plaintiff shall, on the day of filing, serve the statement of claim on the defendant,(c) the defendant shall, subject to Part 15 rule 3 (2), file his defence within 21 days after the service of the statement of claim on him.(4) The provisions of the rules concerning proceedings commenced by statement of claim shall, except so far as the Court otherwise orders, and except so far as the context or subject matter otherwise indicates or requires, apply to proceedings ordered under this rule to continue on pleadings.cf RSC (Rev) 1965, O 28, r 8 (4).rule 5.11: Am 2.6.1972; 26.9.1986; 23.12.1988. Subst 19.5.1989.
12 Want of prosecution
(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any party or of its own motion, stay or dismiss the proceedings.See Part 40 rule 8.(2) The Court may not make an order under subrule (1) without giving the plaintiff a reasonable opportunity to be heard.(3) The Court may, on application by any party, set aside an order that is made on the Court’s own motion under subrule (1).rule 5.12: Am 2.6.1972; 22.7.1977. Subst 25.11.1994.rule 5.12, footnote: Ins 25.10.1996.
Part 6 Cross-claims
pt 6: Subst 29.3.1974.
Division 1 General
1 Application
This Part applies to cross-claims.rule 6.1: Subst 29.3.1974; 29.6.1984.
2 Form
(1) A cross-claim shall be entitled in the proceedings with an addition separate from and below the existing title of the proceedings, headed “CROSS-CLAIM” or “SECOND CROSS-CLAIM”, or as the case may be, showing the names of the parties to the cross-claim.cf RSC (Rev) 1965, O 15, r 3 (2).(2) Where there are two or more cross-claims, the second cross-claim to be filed shall be called the second cross-claim, the third to be filed shall be called the third cross-claim, and so on.(3) Part 7 rule 1 (which relates to claims for relief in originating process) applies to a cross-claim whether or not the cross-claim is an originating process.rule 6.2: Am 2.6.1972. Subst 29.3.1974. Am 25.8.1995.
3 Title
On a cross-claim being filed, a document afterwards filed or used in the proceedings shall, subject to Part 65 rule 1 (4) (which relates to abbreviation of the title), be entitled in the manner in which the cross-claim is entitled.rule 6.3: Am 2.6.1972. Subst 29.3.1974. Am 9.12.1983.
4 Directions
cf RSC (Rev) 1965, O 16, r 4 (4).
Without limiting the generality of Part 26, the Court may, at any stage of the proceedings, on terms:(a) order that any cross-claim or any question or issue in or arising on any cross-claim be separately tried,cf RSC (Rev) 1965, O 15, r 5 (2); O 16, r 4 (3) (b).(b) give to a defendant to the cross-claim leave to defend the claim on the originating process or any other cross-claim in the proceedings, either alone or in addition to any other party,(c) give to a defendant to the cross-claim leave to appear at the trial or hearing of the claim on the originating process or on any other cross-claim in the proceedings and to take such part in the trial or hearing as the Court thinks fit,(d) determine the extent to which the cross-claimant and a defendant to the cross-claim shall be bound as between themselves by a judgment (including a judgment by consent or by default) or decision (including a decision by consent) on the claim on the originating process or any other cross-claim in the proceedings.rule 6.4: Subst 29.3.1974; 23.3.1984; 29.6.1984.
5 Service
(1) Where a defendant to a cross-claim has, on the date of filing the cross-claim, an address for service in the proceedings, the cross-claimant shall, as soon as practicable, serve the cross-claim on the defendant to the cross-claim.cf RSC (Rev) 1965, O 15, rr 2 (1), 3 (2), (3).(2) Where a defendant to a cross-claim has an address for service in the proceedings, personal service of the cross-claim on him is not required.cf RSC (Rev) 1965, O 15, r 3 (5).(3) Part 9 rule 12 (which relates to cases where filing operates as service) does not apply to the service of a cross-claim.(4) Where there is a cross-claim against a person who is not a party to the proceedings on the originating process in respect of which the cross-claim is filed, the cross-claimant shall, on the date of serving the cross-claim, serve on the defendant to the cross-claim the originating process and all the following documents (if any) which have been filed by the cross-claimant or served on the cross-claimant by any other party:(a) in proceedings commenced by summons, cross-claims,(b) in proceedings commenced by statement of claim, other pleadings,(c) notices of motions not finally disposed of,(d) affidavits, other than affidavits which are not relevant to the issues arising on the cross-claim,(e) amendments made to any of the documents required by this rule to be served.rule 6.5: Subst 29.3.1974. Am 25.10.1996.
5A (Repealed)
rule 6.5A: Ins 12.7.1985. Am 14.2.1986. Rep 25.10.1996.
6 Conduct of proceedings generally
(1) Subject to this Part, the proceedings on a cross-claim shall follow as nearly as may be the course of proceedings on the originating process in respect of which the cross-claim is filed.cf RSC (Rev) 1965, O 15, r 3 (2); O 16, r 3 (4).(2) Subject to this Part, and without limiting the generality of subrule (1), these rules apply to a cross-claim and the proceedings arising from it as they apply to the originating process in respect of which the cross-claim is filed and the proceedings arising from it.(3) Subrules (1) and (2) apply as if:(a) the cross-claim were the originating process in respect of which the cross-claim is filed,(b) the cross-claimant were a plaintiff, and(c) the defendant to the cross-claim were a defendant.cf RSC (Rev) 1965, O 15, r 3 (5); O 16, r 3 (4).(4) A plaintiff in an originating process need not enter an appearance to a cross-claim in the same proceedings.cf RSC (Rev) 1965, O 16, r 8 (3).(5) An appearance entered by a party to the proceedings shall, upon service of a cross-claim on him, operate as an appearance to the cross-claim.cf RSC (Rev) 1965, O 16, r 8 (3).(6) Subject to this Part, the trial or hearing and all other steps in the proceedings on the cross-claim shall as far as practicable be carried on together with the trial or hearing and similar steps in the proceedings on the originating process in respect of which the cross-claim is filed.rules 6.6, 6.7: Subst 29.3.1974.
7 Default of defendant to cross-claim
cf RSC (Rev) 1965, O 16, r 5 (1) (a).
Where a defendant to a cross-claim does not enter an appearance or file a defence, if and as required by these rules, or does not file a defence in accordance with an order to do so, a judgment (including a judgment by default or by consent) or decision (including a decision by consent) on any claim, question or issue in the proceedings shall, unless the Court otherwise orders, be binding as between the cross-claimant and the defendant to the cross-claim so far as the judgment or decision is relevant to any claim, question or issue in the proceedings on the cross-claim.rules 6.6, 6.7: Subst 29.3.1974.
8 Separate prosecution
cf RSC (Rev) 1965, O 15, r 2 (3).
A cross-claim may proceed notwithstanding that judgment is entered on the originating process or any other cross-claim in the proceedings or that the proceedings on the originating process or any other cross-claim are stayed, dismissed or discontinued.rule 6.8: Subst 29.3.1974. Rep 25.10.1996 (see erratum 20.12.1996).rule 6.8 (previously Rule 6.9): Subst 29.3.1974. Renumbered 25.10.1996 (see erratum 20.12.1996).
9 Contribution or indemnity
(1) Where a defendant makes a cross-claim for contribution or indemnity in respect of a claim against him in the proceedings:(a) judgment for the claimant on the cross-claim shall not be entered except by direction of the Court,cf RSC (Rev) 1965, O 16, r 5 (1) (b).(b) judgment for the claimant on the cross-claim shall not, unless the Court otherwise orders, be enforced by execution until satisfaction of any judgment in the proceedings against the cross-claimant.cf RSC (Rev) 1965, O 16, rr 5 (1) (b), 7 (2).(2) Where, in respect of a claim against him in any proceedings, the defendant makes a claim for contribution under section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (which relates to contribution between tortfeasors) against a party in the proceedings, a defence to the cross-claim or subsequent pleadings on the cross-claim shall not be filed unless the Court so directs.rule 6.9 (previously Rule 6.10): Subst 29.3.1974. Am 23.5.1980; 26.9.1986; 23.12.1988. Renumbered 25.10.1996 (see erratum 20.12.1996).
Division 2 Proceedings commenced by statement of claim
10 Commencement
(1) A party against whom a claim is made in proceedings commenced by statement of claim and who claims relief under section 78 of the Act may make his claim by filing a pleading by way of cross-claim in those proceedings.cf RSC (Rev) 1965, O 15, rr 2 (1), 3 (1); O 16, rr 1 (1), 8 (1), (2), 9 (1), 11.(2) A cross-claimant may file a cross-claim within the time fixed for filing his defence.cf RSC (Rev) 1965, O 15, rr 2 (1), 3 (2), (3); O 16, r 1 (2).(3) (Repealed)rule 6.10 (previously Rule 6.12): Subst 15.12.1972; 29.3.1974. Am 26.9.1986; 23.12.1988. Renumbered 25.10.1996 (see erratum 20.12.1996).
11 Form
(1) A cross-claim under rule 10 shall be in the prescribed form.cf RSC (Rev) 1965, O 15, r 3 (6).(2) Where a cross-claimant cross-claims solely against a party who claims in the proceedings against the cross-claimant, the cross-claimant may add the cross-claim to his defence.cf RSC (Rev) 1965, O 15, r 2 (1).(3) Subject to Part 15 rule 26 (which relates to embarrassing pleadings and the like), a cross-claimant may, in his cross-claim, plead all or any of the facts on which he relies by reference to the prior pleadings in the proceedings.(4) A cross-claimant shall, in addition to pleading any other facts on which he relies, plead the facts showing that the claim is one which, under section 78 of the Act, may be made in the proceedings.rule 6.11: Subst 29.3.1974. Am 21.12.1979; 25.10.1991; 25.11.1994; 23.2.1996. Rep 25.10.1996 (see erratum 20.12.1996).rule 6.11 (previously Rule 6.13): Am 23.2.1973. Subst 29.3.1974. Renumbered 25.10.1996 (see erratum 20.12.1996).
Division 3 Proceedings commenced by summons
12 Cross-claims by leave
(1) Subject to rule 13, a defendant to a summons may not cross-claim without leave.cf RSC (Rev) 1965, O 28, r 7 (1), (2).(2) The defendant who seeks leave under subrule (1) shall, at as early a stage as is practicable, tell the Court the nature of the cross-claim.(3) The cross-claim shall be made in such manner as the Court may direct.rule 6.12 (previously Rule 6.15): Ins 29.3.1974. Am 25.10.1996. Renumbered 25.10.1996 (see erratum 20.12.1996).
13 Cross-claims without leave
(1) A defendant to a summons may cross-claim against the plaintiff without leave.(2), (2A) (Repealed)(3) The cross-claimant may file a cross-claim within the time limited for entering his appearance.(4) A cross-claim under this rule shall be in the prescribed form.(5) The cross-claimant shall file with the cross-claim an affidavit showing facts establishing that the claim is one which, under section 78 of the Act, may be made in the proceedings.rule 6.13 (previously Rule 6.16): Ins 29.3.1974. Am 31.5.1985; 24.4.1986; 21.11.1986; 15.12.1989. Renumbered 25.10.1996 (see erratum 20.12.1996).rule 6.14: Ins 29.3.1974. Subst 23.5.1980. Am 2.4.1982. Rep 12.7.1985. Renumbered 25.10.1996 (see erratum 20.12.1996).
Part 7 Originating process
1 Relief claimed
(1) An originating process shall state specifically the relief claimed by the plaintiff.cf RSC (Rev) 1965, O7, r 3 (1); O 16, rr 1 (1), 8 (1); O 18, r 15 (1).(2) Where the claim for relief includes a claim for the determination or direction of the Court on any question, the originating process shall state the question.cf RSC (Rev) 1965, O 7, r 3 (1); O 16, rr 1 (1), 8 (1).(3) Costs need not be specifically claimed.cf RSC (Rev) 1965, O 18, r 15 (1).(4) Exemplary damages and aggravated compensatory damages shall be specifically claimed.cf RSC (Rev) 1965, O 18, r 8 (3).(5) An order for interest under section 94 of the Act or section 73 of the Motor Accidents Act 1988 or section 137 of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987 (which sections relate to interest up to judgment) shall be specifically claimed without claiming any amount.(6) Subrule (5) shall not affect Part 16 rule 1A (2) (which relates to a claim for a liquidated demand and for an order for interest under section 94 of the Act).rule 7.1: Am 6.9.1974; 21.12.1979; 9.12.1983; 23.9.1988; 25.11.1994; 23.2.1996; 19.11.1999.
2 Name, address etc
cf RSC (Rev) 1965, O 6, r 5 (3), (4).
(1) An originating process must have subscribed to it:(a) the name and address of the plaintiff,(b) where the plaintiff sues by a solicitor, the name, address and telephone number of the solicitor,(c) where the plaintiff sues by a solicitor and that solicitor has another solicitor as agent in the proceedings, the name, address and telephone number of the agent, and(d) an address for service.(2) Where it appears from any originating process that the plaintiff sues by a solicitor:(a) the solicitor shall, on request in writing by the defendant, declare in writing whether the originating process was filed by the solicitor, and(b) if the solicitor declares in writing that the originating process was not filed by the solicitor, the Court may, on application by a defendant, stay the proceedings.rule 7.2: Am 20.2.1987; 20.9.1991.
3 Notice to appear
(1) Where there is a defendant, an originating process (other than a summons under Part 5 rule 3) shall bear a note:(a) where the place for trial or hearing is in the Riverina—that the defendant is liable to suffer judgment or an order against him unless a prescribed form of notice of appearance is received in the registry at Wagga Wagga or in an office of a clerk of the Court at Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora or Tumut, and(b) where the place for trial or hearing is in the Central West—that the defendant is liable to suffer judgment or an order against him unless a prescribed form of notice of appearance is received in the registry at Orange or in an office of a clerk of the Court at Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Parkes, or Wellington,(c) where the place for trial or hearing is in the Northern Rivers district—that the defendant is liable to suffer judgment or an order against him unless a prescribed form of notice of appearance is received in the registry at Lismore or in an office of a clerk of the Court at Ballina, Bellingen, Byron Bay, Casino, Coffs Harbour, Dorrigo, Glen Innes, Grafton, Kempsey, Kyogle, Macksville, Maclean, Mullumbimby, Murwillumbah, Port Macquarie, Tenterfield, Tweed Heads or Wauchope, and(d) in any other case—that a defendant is liable to suffer judgment or an order against him unless a prescribed form of notice of his appearance is received in the registry, and give the address of the registry at the place named as the place for trial or hearing.(2) The note under subrule (1) shall specify the time limited by the rules other than Part 2 rule 5 (1) or rule 5 (1) (c) of this Part for the entry of the appearance.(3) Where there is a defendant, a summons under Part 5 rule 3 shall bear a note that, if there is no attendance before the Court by the defendant or his counsel or solicitor at the time and place stated in the summons, the proceedings may be heard and the defendant will be liable to suffer judgment or an order against him and:(a) where a place in the Riverina is the place for hearing—that, before any attendance at that time, the defendant must enter an appearance in the registry at Wagga Wagga or in an office of a clerk of the Court at Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora or Tumut, or(b) where a place in the Central West is the place for hearing—that, before any attendance at that time, the defendant must enter an appearance in the registry at Orange or in an office of a clerk of the Court at Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Parkes or Wellington, or(c) where a place in the Northern Rivers district is the place for hearing—that, before any attendance at that time, the defendant must enter an appearance in the registry at Lismore or in an office of a clerk of the Court at Ballina, Bellingen, Byron Bay, Casino, Coffs Harbour, Dorrigo, Glen Innes, Grafton, Kempsey, Kyogle, Macksville, Maclean, Mullumbimby, Murwillumbah, Port Macquarie, Tenterfield, Tweed Heads or Wauchope, or(d) in any other case—that, before any attendance at the time stated in the summons, the defendant must enter an appearance in the registry, and give the address of the registry at the place named as the place for attendance.rule 7.3: Subst 2.6.1972. Am 6.7.1979; 24.4.1981; 17.12.1982; 7.12.1984; 24.10.1986; 23.12.1988; 13.6.2003.
4 Money claim: stay on payment
(1) Where a plaintiff, by his originating process, claims against a defendant for a liquidated demand or a liquidated demand together with a claim for an order for interest under section 94 of the Act, but makes no claim of any other kind, the defendant:(a) may, within the time limited for appearance, pay to the plaintiff the sum of:(i) the amount claimed, including any interest claimed (other than costs), and(ii) an amount for costs equal to:(A) if the originating process is filed prior to 1 July 1994—the amount fixed by a costs determination in force at the date of filing, ornotwithstanding the repeal of the costs determination, and(B) otherwise—the amount fixed by a costs determination in force on 30 June 1994,(iii) if the amount fixed by the costs determination does not include the fee paid on filing the originating process—an amount equal to that fee, and(b) may file notice of the payment.cf RSC (Rev) 1965, O 6, r 2 (1) (b).(2) Where payment is to be made under this rule on a claim for a liquidated demand together with a claim for an order for interest under section 94 of the Act for any period, being a period between the date when the cause of action arose and the date of payment, interest shall be paid for any part of the period mentioned in column 1 of Schedule J, at the rate or rates specified in the claim in respect of that part or at the rate per cent yearly specified in column 2 of that Schedule beside that part, whichever is less.(3) Upon the filing of a notice of payment under subrule (1), further proceedings shall be stayed.(4) An originating process to which this rule applies shall bear a note to the effect of subrules (1) and (3) and, where subrule (2) applies, of subrule (2) and shall specify the amount for costs referred to in subrule (1) (a).rule 7.4: Am 2.6.1972. Subst 30.3.1973. Am 1.8.1975; 8.10.1982; 9.12.1983; 18.12.1987; 19.2.1988; 24.2.1989; 18.8.1989; 24.8.1990; 26.2.1993; 24.6.1994.
5 Time for appearance
(1) The time to be limited for a defendant to enter an appearance shall be:(a) in the case of service of a summons under Part 5 rule 3—not later than the return day stated in the summons, or(b) in the case of service of any other originating process:(i) within the State, the Australian Capital Territory or the Jervis Bay Territory—not less than 14 days after service,(ii) within any other State or Territory—not less than 21 days after service, or(iii) elsewhere—28 days after service or such other time as the Court may order,(c) in a case where the Court refuses an application under Part 11 rule 8 (1) (which relates to setting aside an originating process)—seven days after the refusal.(2) Subrule (1) has effect subject to the Service and Execution of Process Act.(3) In subrule (1) (b):(a) Jervis Bay Territory means the Territory referred to in the Jervis Bay Territory Acceptance Act 1915 of the Commonwealth, and(b) Territory means a Territory referred to in section 122 of the Constitution of the Commonwealth and includes a Territory administered by the Commonwealth under a Trusteeship Agreement.rule 7.5: Subst 2.6.1972. Am 1.11.1985; 23.12.1988; 2.4.1993; 13.6.2003.
6 Filing and copies
(1) Proceedings shall be commenced by the filing of the originating process.(2) Originating process may be filed in the registry at the place for trial or hearing or, in the case of a statement of claim or summons, in any registry or in the office elsewhere in the State of a clerk of the Court.(3) The officer accepting the originating process on filing shall, on request by the plaintiff, sign and seal with a seal of the Court and, if not filed in the registry, at the place for trial or hearing, subscribe the place of filing on a sufficient number of copies of the originating process for service and proof of service and, where the originating process is filed under Part 1 rule 9B, serve the copies on the plaintiff.(4) Where an originating process is filed, it shall, unless it is filed in the registry at the place for trial or hearing, be sent to that registry.rule 7.6: Am 2.6.1972; 25.3.1977; 23.12.1977; 6.7.1979; 14.11.1980; 23.12.1983; 26.9.1986.
7 Validity for service
(1) Subject to subrule (1A), for the purposes of service an originating process shall be valid for 1 year from the date on which it is filed, unless the Court otherwise orders.(1A) Where an originating process contains an application for an order under section 7 of the Family Provision Act 1982, for the purposes of service the originating process shall be valid for 3 months from the date on which it is filed, unless the Court otherwise orders.(2) Nothing in this rule prevents the plaintiff from commencing fresh proceedings by filing another originating process.(3) Subrule (1) is subject to Part 14C rule 7 (which relates to a claim for professional negligence).rule 7.7: Am 15.6.1984; 21.8.1998; 24.12.1998; 19.3.1999.
8 Recovery of land—notice to occupier
(1) Where, at the time at which proceedings for possession of land are commenced, a person (in this rule called the occupier) not joined as a defendant is in occupation of the whole or any part of the land, the plaintiff shall either:(a) state in the originating process that he does not seek to disturb the occupation of the occupier, or(b) serve the originating process on the occupier together with a notice that the occupier may apply to the Court for an order that the occupier be added as a defendant and that, if the occupier does not so apply within 10 days after service, the occupier may be evicted pursuant to a judgment entered in the occupier’s absence.cf GRC, O 21, r 14.(1A) If an originating process is amended by the addition of a claim for possession of land, the time at which proceedings for possession of that land are commenced shall, for the purposes of subrule (1), be taken to be the time at which the amendment is made.(2) Documents may be served on an occupier for the purposes of subrule (1) personally or by leaving the documents on the land in his occupation addressed to him by name or addressed to “the occupier”.rule 7.8: Am 2.6.1972; 21.7.1995; 19.12.1997.
Part 8 Causes of action and parties
1 Joinder of causes of action
cf RSC (Rev) 1965, O 15, r 1 (1).
A plaintiff may, in any proceedings, claim relief against the same defendant in respect of more than one cause of action:(a) where the plaintiff claims, and the defendant is alleged to be liable, in the same capacity in respect of all the causes of action,(b) where the plaintiff claims, or the defendant is alleged to be liable, in the capacity of executor of the will of a deceased person or administrator of the estate of a deceased person in respect of one or more of the causes of action, and in his personal capacity but with reference to the estate of the same deceased person, in respect of all other causes of action, or(c) where the Court gives leave so to do.
2 Joinder of parties generally
cf RSC (Rev) 1965, O 15, r 4 (1).
Two or more persons may be joined as plaintiffs or defendants 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 of fact would arise in all the proceedings, and(ii) all rights to relief claimed in the proceedings (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions, or(b) where the Court gives leave so to do.
3 Joint right
(1) Where, in any proceedings, the plaintiff claims relief to which any other person is entitled jointly with him:(a) all persons so entitled shall be parties to the action, and(b) any of them who does not consent to being joined as a plaintiff shall be made a defendant.cf RSC (Rev) 1965, O 15, r 4 (2).(2) Subrule (1) applies subject to any Act and subject to section 62 of the Bankruptcy Act 1966 and applies unless the Court gives leave to the contrary.cf RSC (Rev) 1965, O 15, r 4 (2).
4 Leave under rules 1, 2 and 3
cf RSC (Rev) 1965, O 15, r 1 (2).
(1) The Court may grant leave under rule 1 or rule 2 before or after the joinder and may grant leave under rule 3 (2) before or after the non-joinder.(2) A plaintiff may apply for leave under rule 1 or rule 2 or rule 3 (2) either before or after filing his originating process and may apply without serving notice of the motion on any person on whom the originating process has not been served.
5 Common liability
(1) Where, in any proceedings, relief is claimed against a defendant who is jointly liable with some other person and also severally liable, that other person need not be made a defendant to the proceedings.cf RSC (Rev) 1965, O 15, r 4 (3).(2) Where persons are jointly, but not severally, liable in contract, in tort or under a statute, and relief is claimed against some but not all of those persons, the Court may, on the application of any defendant to the proceedings, by order stay the proceedings until the other persons so liable are added as defendants.cf RSC (Rev) 1965, O 15, r 4 (3).rule 8.5: Am 20.12.1985; 14.2.1986.
6 Inconvenient joinder
cf RSC (Rev) 1965, O 15, r 5 (1).
Where any joinder of parties or of causes of action may embarrass or delay trial of the proceedings or is otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit.
7 Misjoinder and non-joinder of parties
(1) Proceedings shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party.cf RSC (Rev) 1965, O 15, r 6 (1).(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.cf RSC (Rev) 1965, O 15, r 6 (1).
8 Addition of parties
(1) Where a person who is not a party:(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 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,cf RSC (Rev) 1965, O 15, r 6 (2).(2) A person shall not be added as a plaintiff without his consent.cf RSC (Rev) 1965, O 15, r 6 (2).(3) Without limiting the generality of subrule (1), where a person not a party to proceedings for possession of land is in possession (by himself or by a tenant) of the whole or any part of the land, the Court, on application by him, may order that he be added as a defendant and make orders for the further conduct of the proceedings.cf RSC (Rev) 1965, O 15, r 10 (1).rule 8.8: Am 20.10.1989.
9 Removal of parties
cf RSC (Rev) 1965, O 15, r 6 (2).
Where a party:(a) has been improperly or unnecessarily joined, orthe Court, on application by any party or of its own motion, may 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,rule 8.9: Am 20.10.1989.
10 Death, transmission etc
(1) Where a party dies or becomes bankrupt but a cause of action in the proceedings survives, the proceedings shall not abate by reason of the death or bankruptcy.cf RSC (Rev) 1965, O 15, r 7 (1).(2) Where the interest or liability of a party passes by assignment transmission devolution or otherwise to another person, the Court may make consequential orders for the addition, removal or re-arrangement of parties and may make orders for the further conduct of the proceedings.cf RSC (Rev) 1965, O 15, r 7 (2).(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.rule 8.10: Am 20.10.1989.
11 Further conduct of proceedings
(1) Without limiting the generality of the powers of the Court under rules 8, 9 and 10, orders under those rules for the further conduct of the proceedings may include orders relating to:(a) service of the order and other documents in the proceedings,(b) amendment,(c) appearance of added parties, and(d) substitution of one party for another party or a former party.cf RSC (Rev) 1965, O 15, rr 7 (2), (3), (4), 8, 10 (3).(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 entry of appearance by the old party shall not dispose with entry of appearance by the new.cf RSC (Rev) 1965, O 15, r 8 (4).(3) Where in any proceedings a party is added otherwise than pursuant to an order under rule 10 or Part 20 rule 4 (3), the date of commencement of the proceedings so far as concerns him shall be:(a) where he is added as a defendant—the date on which the amendment adding him as a defendant is made or the date of entry of his appearance or the date of filing his defence, whichever is earliest,(b) otherwise—the date on which the amendment adding him as a party is made.(4) An amendment made pursuant to an order made under rule 10 shall, unless the Court otherwise orders, relate back to the date of filing the originating process.rule 8.11: Am 20.10.1989.
12 Failure to proceed after death of party
(1) Where:(a) a party dies but a cause of action in the proceedings survives his death, andthe Court may, on application by a party or by a person to whom liability on the cause of action survives on the death, order that, unless, within a specified time after service of the order in accordance with subrule (2), a party is added in substitution for the deceased party, the proceedings be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon, as the case may be, survives on the death.(b) an order under rule 10 for the addition of a party in substitution for the deceased party is not made within three months after the death,cf RSC (Rev) 1965, O 15, r 9.(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.cf RSC (Rev) 1965, O 15, r 9.
13 Representation: concurrent interests
(1) Where numerous persons have the same interest in any proceedings the proceedings may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.cf RSC (Rev) 1965, O 15, r 12 (1).(2) At any stage of proceedings pursuant to this rule the Court, on the application of the plaintiff, may appoint any one or more of the defendants or other persons (as representing whom the defendants are sued) to represent all, or all except one or more, of those persons in the proceedings.cf RSC (Rev) 1965, O 15, r 12 (2).(3) Where, under subrule (2), the Court appoints a person who is not a defendant, the Court shall make an order under rule 8 adding him as a defendant.cf RSC (Rev) 1965, O 15, r 12 (2).(4) A judgment entered or order made in proceedings pursuant to this rule shall be binding on all the persons as representing whom the plaintiffs sue or, as the case may be, the defendants are sued but shall not be enforced against any person not a party to the proceedings except with the leave of the Court.cf RSC (Rev) 1965, O 15, r 12 (3).(5) An application for leave under subrule (4) shall be made by motion, notice of which shall be served personally on the person against whom it is sought to enforce the judgment or order.cf RSC (Rev) 1965, O 15, r 12 (4).(6) Notwithstanding that a judgment or order to which an application under subrule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.cf RSC (Rev) 1965, O 15, r 12 (5).(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.cf RSC (Rev) 1965, O 15, r 12 (1).rule 8.13: Am 20.10.1989.
14 Representation: administration cases etc
(1) In any proceedings concerning:(a) the administration of the estate of a deceased person,(b) property subject to a trust, orthe Court, if satisfied that one or more of the conditions specified in subrule (2) are satisfied, may appoint one or more persons to represent any person (including an unborn person) or class who is or may be interested (whether presently or for any future, contingent or unascertained interest), in, or affected by, the proceedings.(c) the construction of a written instrument, including an Act,cf RSC (Rev) 1965, O 15, r 13 (1).(2) The conditions for the exercise of the power conferred by subrule (1) are as follows:(a) that the person, the class or some member of the class, cannot be ascertained or cannot readily be ascertained,(b) that the person, class or some member of the class, though ascertained, cannot be found,(c) that, though the person or the class and the members thereof can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to exercise the power for the purpose of saving expense.cf RSC (Rev) 1965, O 15, r 13 (2).(3) Where in any proceedings the Court exercises the power conferred by subrule (1), a judgment or order entered or made in the proceedings shall be binding on the person or class represented as if he or they were parties.cf RSC (Rev) 1965, O 15, r 13 (3).(4) Where, in any such proceedings as are mentioned in subrule (1), a compromise is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons) but:(a) there is a party in the same interest who assents to the compromise or on whose behalf the Court sanctions the compromise, orthe Court, if satisfied that the compromise will be for the benefit of the absent persons, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order has been obtained by fraud or non-disclosure of material facts.(b) the absent persons are represented by a person appointed under subrule (1) and he so assents,cf RSC (Rev) 1965, O 15, r 13 (4).
15 Trustees etc
(1) Where any proceedings, including proceedings to enforce a security by way of foreclosure or otherwise, are brought by or against a trustee, executor or administrator:(a) it shall not be necessary to join as a party any of the persons having a beneficial interest under the trust or in the estate,(b) a judgment or order in the proceedings shall, subject to subrule (2), be as binding on those persons as it is on the trustee, executor or administrator.cf RSC (Rev) 1965, O 15, r 14 (1).(2) Where a judgment is entered or an order is made in proceedings to which subrule (1) applies and it appears to the Court that in those proceedings the trustee, executor or administrator could not or did not in fact represent the interests of the persons having a beneficial interest under the trust or in the estate, the Court may, in those or other proceedings, order that the judgment so entered or the order so made shall not be binding on those persons.(3) Subrule (1) does not limit the power of the Court to order the addition of parties under rule 8.cf RSC (Rev) 1965, O 15, r 14 (2).rule 8.15: Am 20.10.1989.
16 Deceased person
(1) Where in any proceedings 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 purposes of the proceedings.cf RSC (Rev) 1965, O 15, r 15 (1).(2) An order under subrule (1), and any judgment or order subsequently entered 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.cf RSC (Rev) 1965, O 15, r 15 (1).(3) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.cf RSC (Rev) 1965, O 15, r 15 (2).
17 Conduct
cf RSC (Rev) 1965, O 15, r 17.
The Court may give the conduct of the whole or any part of any proceedings to such person as it thinks fit.
Part 9 Service: general
1 Mode of service
cf RSC (Rev) 1965, O 65, r 1 (1).
Any document required or permitted to be served in any proceedings may be served personally, but need not be served personally, unless personal service is required by the rules or by order.
1A Operation of Service and Execution of Process Act
Nothing in this Part affects the operation of the Service and Execution of Process Act.rule 9.1A: Ins 2.4.1993.
2 Originating process
(1) Subject to any Act, originating process shall be served personally on each defendant.(2) The copy for service shall be signed and sealed as mentioned in Part 7 rule 6.cf RSC (Rev) 1965, O 10, r 1 (1); O 15, r 3 (5); O 16, r 3 (4).(3) Where a defendant to any originating process files a notice of appearance, the originating process shall be taken to have been served on him personally on the date on which his notice of appearance is filed or on such earlier date as may be proved.cf RSC (Rev) 1965, O 10, r 1 (3).rule 9.2: Am 2.6.1972; 23.12.1988.
3 Personal service: how effected
(1) Personal service of a document may be effected by leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document.cf GRC, O 6, r 2.(2) Personal service of a document on a corporation may be effected by serving the document in accordance with subrule (1) on the mayor, chairman or president of the corporation, or on the town clerk, clerk, secretary, treasurer or other similar officer of the corporation or, where provision is made by or under any Act for service of a document on a corporation, by serving a copy of the document in accordance with that provision.cf RSC (Rev) 1965, O 65, r 3.(3) Personal service of a document on the Crown Solicitor for the purposes of section 6 of the Crown Proceedings Act 1988 may be duly effected by serving the document in accordance with subrule (1) at the office of the Crown Solicitor on a person who is apparently a member of the staff.cf RSC (Rev) 1965, O 77, r 4 (2) (a).rule 9.3: Am 28.6.1974; 23.12.1988.
4 Ordinary service: how effected
(1) Where personal service of a document is not required, the document may be served:(a) by leaving a copy of the document at the proper address of the person to be served between the hours of nine in the morning and five in the afternoon on any day except a Sunday on which Christmas Day falls, or(b) by sending a copy of the document by pre-paid post addressed to the person to be served at his proper address, or(c) where provision is made by or under any Act for service of a document on a corporation, by serving a copy of the document in accordance with that provision, or(d) 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, by leaving a copy of the document addressed to that solicitor, in that exchange box or at another exchange box for transmission to that exchange box, or(e) where the address for service of a person to be served is the office of a solicitor and the solicitor adds to that address the solicitor’s name and “will accept service to fax number” together with the solicitor’s facsimile transmission number, by 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.cf RSC (Rev) 1965, O 65, r 5 (1).(2) For the purposes of subrule (1), the proper address of a person shall be the address for service of that person in the proceeding but if, at the time when the copy is left or posted pursuant to subrule (1), he has no address for service in the proceedings, his usual or last known place of business or of abode shall be his proper address.cf RSC (Rev) 1965, O 65, r 5 (2).(3) The time of service of any document for the purpose of any proceedings shall, where the copy of the document:(i) (Repealed)(ii) is left in an exchange box or at an exchange in accordance with subrule (1) (d)—be two days after the copy is so left,or, where an earlier time is shown to be the time of receipt, the time of receipt shown.(iii) is transmitted in accordance with subrule (1) (e)—be one day after the document is so transmitted,rule 9.4: Am 28.6.1974; 21.10.1977; 6.7.1979; 23.3.1984; 23.5.1986; 24.2.1989; 20.9.1991; 25.8.1995.
4A Identity
cf Bankruptcy Rule 122 (3).
For the purposes of the proof of service, evidence of a statement by a person of his identity or that he holds some office is evidence of his identity or that he holds that office, as the case may be.rule 9.4A: Ins 2.6.1972.
5 Possession of land
(1) Where, in proceedings for possession of land, the Court is satisfied:(a) that it appears that no person is in possession of the land, andthe Court may authorise service of the originating process on that defendant by affixing a copy of the originating process to a conspicuous part of the land.(b) that there is a defendant on whom the originating process cannot, apart from this rule, be served without undue delay or expense,cf RSC (Rev) 1965, O 10, r 4 (a).(2) Where, in proceedings for possession of land, the Court is satisfied:(a) that a copy of the originating process has been affixed to a conspicuous part of the land,(b) that at the time when the copy was so affixed it appeared that no person was in possession of the land, andthe Court may order that the affixing of the copy have effect as service on that defendant.(c) that there is a defendant on whom the originating process could not, apart from this rule, be served without undue delay or expense,cf RSC (Rev) 1965, O 10, r 4 (b).(3) A party may apply for an order under this rule without filing or serving notice of the motion.cf RSC (Rev) 1965, O 10, r 4.(4) This rule has effect notwithstanding that the defendant is outside the State at the time of affixing the copy of the originating process.
6 Address for service
(1) Subject to subrules (1A), (8) and (9), an address for service shall be the address of a place in the State (other than a document exchange of Australian Document Exchange Pty Limited) at which documents in the proceedings 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 that person.(1A) The address for service of a defendant who is served with originating process in Australia outside the State may be an address inside Australia, whether inside or outside the State.(2) Subject to subrules (1A), (8) and (9), where a person is not represented by a solicitor, or is represented by a solicitor who does not have a box in a document exchange maintained in the State by Australian Document Exchange Pty Ltd, or is represented by a solicitor who has such a box and has another solicitor acting as agent, his address for service shall:(a) where the place for trial or hearing is in the Riverina—be the address of a place within three kilometres of the registry at Wagga Wagga,(b) where the place for trial or hearing is in the Central West—be the address of a place within three kilometres of the registry at Orange,(c) where the place for trial or hearing is in the Northern Rivers district—be the address of a place within three kilometres of the registry at Lismore,(d) where any other place outside Sydney is the place for trial or hearing and there is a registry at that place—be the address of a place within three kilometres of that registry,(e) in any other case—be the address of a place within three kilometres of the General Post Office, Sydney.(3) The address for service of a person who is represented by a solicitor shall be the office of the solicitor, or, where the solicitor has another solicitor acting as agent, the office of the agent.(4) A person may change his address for service by filing a notice of the change showing his new address for service.(5) A person who files a notice of a change of his address for service shall, on the date of filing, serve the notice on each party to the proceedings.(6) A notice mentioned in Part 66 rule 3 (2), 4, 5, 6 (1) (a) or 7 (1) showing a new address for service constitutes a notice for the purposes of subrule (4).(7) While a person is in custody and is not represented by a solicitor, subrule (2) shall not apply.(8) An address for service of a person who files a notice under Section 19 (1) of the Mutual Recognition Act and who is not represented by a solicitor need not be the address of a place in the State if it is the address of a place within Australia.(9) An address for service contained in an application to set aside a subpoena made under section 13 of the Evidence and Procedure (New Zealand) Act 1994 by a person who is not represented by a solicitor having a place of business in the State need not be the address of a place in the State if it is the address of a place within Australia or New Zealand.rule 9.6: Am 1.10.1976; 21.10.1977. Subst 6.7.1979. Am 14.11.1980; 8.7.1983; 20.12.1985; 12.9.1986 (see erratum 3.10.1986); 24.10.1986; 16.8.1991; 20.9.1991; 23.4.1993; 1.3.1996.
6A Address for service: Service and Execution of Process Act
Notwithstanding rule 6, an address for service stated in an appearance entered under the Service and Execution of Process Act shall be an address for service for the purpose of the rules.rule 9.6A: Ins 21.10.1977. Rep 6.7.1979. Ins 2.4.1993.
7 Acceptance by solicitor
(1) This rule applies to:(a) any originating process, and(b) any document required or permitted to be served in any proceedings, but not required to be served personally.cf RSC (Rev) 1965, O 10, r 1 (2).(2) Where a solicitor makes on a copy of a document to which this rule applies a note that he accepts service of the document on behalf of any person, the document shall be taken to have been duly served on that person on the date on which the solicitor makes the note or on such earlier date of service as may be proved.cf RSC (Rev) 1965, O 10, r 1 (2).
7A Service on Magistrates
rule 9.7A, hdg: Ins 1.8.1975. Subst 29.8.2003.(1) In proceedings against a Magistrate:(a) for any relief or remedy which would formerly have been granted by writ of prohibition, orservice of any document on the Magistrate may be effected by serving the document upon the registrar of the court at which the decision or determination was made personally.(b) for an order under section 112 (5) of the Justices Act 1902, as in force prior to the commencement of the Justices Legislation Amendment (Appeals) Act 1998, (which subsection relates to proceedings for prohibition),cf GRC O 24, r 3.(1A) Where service of a document is effected on the registrar of the court under subrule (1), the document shall also be served on the Chief Executive Officer to the Chief Magistrate of the Local Courts personally or by post.(2) Subrule (1) does not apply where an order for costs against the Magistrate is sought.(3) In this rule, Magistrate includes a licensing magistrate under the Liquor Act 1982, a children’s magistrate, a mining warden and an industrial magistrate.rule 9.7A: Ins 1.8.1975. Am 31.5.1985; 21.7.1995; 19.2.1999; 29.8.2003.
7B Service on mining warden
(1) In proceedings against a warden (within the meaning of the Mining Act 1992) for any relief or remedy which would formerly have been granted by writ of prohibition, service of any document on the warden may be made by serving the document on the mining registrar of the mining division in which the determination was made personally.cf GRC O 24, r 3.(2) Subrule (1) does not apply where an order for costs against the warden is sought.rule 9.7B: Ins 1.8.1975. Am 30.10.1992.
8 Service at address for service in court or tribunal below
If:(a) a decision is given or a case is stated in proceedings before any judge, justice or other person (the proceedings below),(b) a party to the proceedings below (the subject party) has an address for service in the State for the purposes of those proceedings at the office of a solicitor (the address below),(c) proceedings (not being proceedings in relation to punishment for contempt) arising out of the proceedings below are commenced in the Court (the new proceedings),documents, including the originating process, may be served on the subject party at the address below, until the subject party has an address for service in the new proceedings, as if the address below were the subject party’s address for service in the new proceedings.(d) the plaintiff in the new proceedings has not received notice that the address below has ceased to be applicable,rule 9.8, headnote: Subst 13.12.1991; 22.3.1996.rule 9.8: Am 1.10.1976; 16.8.1991; 20.9.1991. Subst 22.3.1996.
9 Service under contract
cf RSC (Rev) 1965, O 10, r 3.
Where a defendant in any proceedings has, before or after the commencement of the proceedings, agreed that originating process or any other document in the proceedings may be served on the defendant or on some other person on behalf of the defendant in a manner or at a place (whether in or outside the State) specified in the agreement, service in accordance with the agreement shall be sufficient service on the defendant.
10 Substituted service
cf RSC (Rev) 1965, O 65, rr 4 (1), (3), 5 (1) (c).
(1) Where the service of any document is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by the rules, the Court may, 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 person to be served.(2) Where the Court makes an order under subrule (1), the Court may order that the document be taken to have been served on the happening of any specified event, or on the expiry of any specified time.
11 Informal service: confirmation
Where the service of any document on any person is required or permitted in any proceedings and it is impracticable for any reason to serve the document or to serve the document in the manner required by or under any Act or by the rules, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of that person, the Court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.
12 Service by filing
cf Consolidated Equity Rules of 1902, r 40; RSC (Rev) 1965, O 65, r 9.
Where the service of any document on any person is required or permitted in any proceedings, but personal service is not required, and that person is in default of appearance or has entered an appearance but has no address for service in the proceedings, the filing of the document shall, unless the Court otherwise orders, have effect as service of the document on that person.
13 Husband and wife
cf GRC O 6, r 4.
Subject to the rules, where husband and wife are parties to proceedings, service on the husband shall not have effect as against the wife.
14 Notice etc by the Court
Where, under the rules or under an order, any notice or other document is to be given to or served on any party by the Court or any officer of the Court, the notice or document shall, unless the rules otherwise provide or the Court otherwise orders, be sufficiently given or served if served in any manner in which a document not requiring personal service may be served under this Part.
15 Injunction service
Where the Court grants an interlocutory injunction, the party may serve notice of the injunction, if desired, by telegram or letter signed by or on behalf of the registrar.rule 9.15: Ins 2.6.1972.
Part 10 Service outside the State
Division 1 General
1 Interpretation
In this Part, unless the context or subject matter otherwise indicates or requires, Australia has the meaning which it has in the Service and Execution of Process Act.rule 10.1: Ins 2.4.1993.
1A Cases for service of originating process
(1) Subject to rule 2 and rule 2A, originating process may be served outside Australia in the following cases:(a) where the proceedings are founded on a cause of action arising in the State,cf Act No 21, 1899, s 18 (4) (a).(b) where the proceedings are founded on a breach in the State of a contract wherever made, whether or not the breach is preceded or accompanied by a breach wherever occurring that renders impossible the performance of any part of the contract which ought to be performed in the State,cf Act No 21, 1899, s 18 (4) (a); Act No 24, 1901, s 30 (f); RSC (Rev) 1965, O 11, r 1 (1) (g); Cth Act No 11, 1901, s 11 (1) (c).(c) where the subject matter of the proceedings is a contract and the contract:(i) is made in the State,(ii) is made on behalf of the person to be served by or through an agent carrying on business or residing in the State,(iii) is governed by the law of the State, or(iv) is one a breach of which was committed in the State,cf Act No 21, 1899, s 18 (4) (a); RSC (Rev) 1965, O 11 r 1 (f); Cth Act No 11, 1901, s 11 (1) (b), South Australian Supreme Court Rules 1987, r 18.02 (e) (v).(d) where the proceedings are founded on a tort committed in the State,cf Act No 21, 1899, s 18 (4) (a); RSC (Rev) 1965, O 11, r 1 (1) (h); Cth Act No 11, 1901, s 11 (1) (d).(e) where the proceedings, wholly or partly, are founded on, or are for the recovery of damages in respect of, damage suffered in the State caused by a tortious act or omission wherever occurring,(f) where the proceedings are for contribution or indemnity in respect of a liability enforceable by proceedings in the Court,(g) where the person to be served is domiciled or ordinarily resident in the State,cf Act No 24, 1901, s 30 (d) (e1); RSC (Rev) 1965, O 11, r 1 (1) (c).(h) where the proceedings are proceedings in respect of which the person to be served has submitted or agreed to submit to the jurisdiction of the Court,cf RSC (Rev) 1965, O 11, r 2.(i) where the proceedings are properly brought against a person served or to be served in the State and the person to be served outside the State is properly joined as a party to the proceedings,cf Act No 24, 1901, s 30 (g); RSC (Rev) 1965, O 11, r 1 (1) (j).(j) where, in respect of a person other than the person to be served:(i) the proceedings are proceedings to which any of paragraphs (a) to (f) of subsection (1) of section 11 of the Service and Execution of Process Act 1901 applies,(ii) the proceedings are properly brought against him, and(iii) originating process in the proceedings has been or is to be served on him under that Act or he has entered an appearance to originating process in the proceedings or liberty to proceed against him has been given in the proceedings under section 11 of that Act,(k) where the subject matter of the proceedings, so far as concerns the person to be served, is property in the State,cf Act No 24, 1901, s 30 (a), (e1); RSC (Rev) 1965, O 11, r 1 (1) (a); Cth Act No 11, 1901, s 11 (1) (a).(l) where the proceedings are for the perpetuation of testimony relating to property in the State,cf RSC (Rev) 1965, O 11, r 1 (1) (a).(m) where the proceedings concern the construction, effect or enforcement of an Imperial Act or Commonwealth Act, or a regulation or other instrument having or purporting to have effect under such an Act, affecting property in the State,cf Act No 24, 1901, s 30 (b); RSC (Rev) 1965, O 11, r 1 (1) (b).(n) where the proceedings are for the construction, rectification, setting aside or enforcement of a deed, will or other instrument or of a contract, obligation or liability, affecting property in the State,cf Ibid.(o) where the proceedings are for an injunction as to anything to be done in the State or against the doing of any act in the State, whether damages are also sought or not,cf Act No 24, 1901, s 30 (g); RSC (Rev) 1965, O 11, r 1 (1) (i); Cth Act No 11, 1901, s 11 (1) (d).(p) where the proceedings are for the administration of the estate of a person who dies domiciled in the State or are for relief which might be granted in proceedings for administration of such an estate,cf Act No 24, 1901, s 30 (e); RSC (Rev) 1965, O 11, r 1 (1) (d).(q) where the proceedings are for the execution of trusts which are governed by the law of the State, or are for relief which might be granted in proceedings for the execution of such trusts,cf Act No 24, 1901, s 30 (e); RSC (Rev) 1965, O 11, r 1 (1) (e).(r) where the proceedings affect the person to be served in respect of his membership of a corporation incorporated in the State or of an association formed or carrying on any part of its affairs in the State,cf Act No 24, 1901, s 30 (i).(s) where the proceedings concern the construction, effect or enforcement of an Act or a regulation or other instrument having or purporting to have effect under an Act,cf Act No 24, 1901, s 30 (b) (e2); RSC (Rev) 1965, O 11, r 1 (1) (b).(t) where the proceedings concern the effect or enforcement of an executive, ministerial or administrative act done or purporting to be done under an Act or regulation or other instrument having or purporting to have effect under an Act,cf Act No 24, 1901, s 30 (e2).(u) where the proceedings:(i) relate to an arbitration held in, or governed by the law of, the State, or(ii) are brought to enforce in the State an arbitral award wherever made, or(iii) are for orders necessary or convenient for carrying into effect in the State the whole or any part of an arbitral award wherever made,cf RSC (Rev) 1965, O73, r 7 (1), (1A); O 11, r 1 (1) (m).(v) where the proceedings are brought to enforce in the State a judgment wherever given,cf RSC (Rev) 1965, O 11, r 1 (1) (m).(w) where the proceedings are for relief relating to the custody, guardianship, protection or welfare of a minor, whether or not he is in the State, which relief the Court has, apart from service, jurisdiction to grant, or(x) where the proceedings, so far as concerns the person to be served, fall partly within one or more of the foregoing paragraphs and fall, as to the residue, within one or more of the others of the foregoing paragraphs.(2) Where an originating process to be served under subrule (1) is a cross-claim, the expression the proceedings, where occurring in subrule (1), means the proceedings (whether under section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 or not) on the cross-claim.rule 10.1A: Ins 30.8.1985. Rep 17.6.1988.rule 10.1A (previously Rule 10.1): Am 23.5.1980; 8.10.1982; 26.4.1985; 21.3.1986; 17.6.1988; 2.12.1988. Renumbered 2.4.1993.
2 Leave to proceed where no appearance
(1) Where an originating process is served on the defendant outside Australia and the defendant does not enter an appearance within the time limited for appearance, the plaintiff shall not proceed against that defendant except with the leave of the Court.(2) A motion for leave under subrule (1) may be made without serving notice of the motion on the defendant.rule 10.2: Am 23.5.1980; 26.4.1985. Subst 17.6.1988.
2A Notice to the defendant served outside Australia
Where an originating process is served outside Australia, a notice in the prescribed form shall be served with the originating process.rules 10.2A, 10.2B: Ins 17.6.1988.
2B Service of originating process in Australia
(1) Subject to this Part, an originating process may be served outside the State in Australia.(2) An originating process for service outside the State in Australia shall bear a statement either that the plaintiff intends to proceed under the Service and Execution of Process Act 1901 or that the plaintiff intends to proceed under the Supreme Court Rules 1970.(3) The plaintiff may not proceed otherwise than in accordance with the intention stated under subrule (2) except with the leave of the Court.rules 10.2A, 10.2B: Ins 17.6.1988.
3 Other documents
Service outside the State of a document other than originating process is valid if the service is in accordance with the prior leave of the Court or is confirmed by the Court.
4 Rules as to service generally
cf RSC (Rev) 1965, O 11, r 5 (1).
Subject to this Part and subject to any convention, the rules apply to service outside the State under this Part as they apply to service inside the State.
5 Mode of service
cf RSC (Rev) 1965, O 11, r 5 (3) (a).
A document which is to be served outside Australia need not be served personally on the person required to be served so long as it is served on him in accordance with the law of the country in which service is effected.rule 10.5: Am 17.6.1988.
6 Commonwealth laws
Nothing in this Division affects the operation of the Service and Execution of Process Act 1901, the Service and Execution of Process Act or any other law of the Commonwealth or requires the leave of the Court for any service or other thing which may be effected or done under that Act or any other law of the Commonwealth.rule 10.6: Am 2.4.1993.
6A Setting aside service outside Australia
cf Victorian GRPCP 1986, r 7.05.
(1) The Court may make an order of a kind referred to in Part 11 rule 8 (which relates to setting aside etc originating process) on application by a person on whom an originating process is served outside Australia.(2) Without limiting subrule (1), the Court may make an order under this rule on the ground:(a) that the service of the originating process is not authorised by these rules, or(b) that this Court is an inappropriate forum for the trial of the proceedings.rule 10.6A: Ins 17.6.1988.
Division 2 Service in foreign country
7 Application
cf RSC (Rev) 1965, O 11, r 6 (2), (3).
This Division applies to the service of any document for the purpose of proceedings in the Court:(a) in a convention country pursuant to a convention, or(b) in such other country as the Attorney-General, by instrument filed in the proceedings, may direct.
8 Requisite documents
cf RSC (Rev) 1965, O 11, r 6 (4), (5).
A person (in this Division called the applicant) requiring a document to be served in another country may:(a) lodge 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 9,(iii) a copy of the document and of the translation,(iv) such further copies of the document and of the translation as the registrar may direct, and(v) if any special manner of service is required, a request for service in that manner and, unless English is an official language of the country concerned, a translation of the request, and(b) file:(i) a copy of each of the documents mentioned in paragraph (a), and(ii) a request and undertaking in accordance with rule 10.
9 Translation
cf RSC (Rev) 1965, O 11, r 6 (5).
A translation of a document lodged under rule 8 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.
10 Request and undertaking
A request and undertaking filed under rule 8 shall contain:(a) a request by the applicant to the Prothonotary that a sealed copy of the document to be served be transmitted to the country concerned for service on a specified person,(b) if the applicant requires service pursuant to a convention, a reference to the convention, and(c) an undertaking by the applicant or his solicitor to pay to the Prothonotary an amount equal to the sum of all expenses incurred in consequence of the request for service.
11 Procedure on filing and lodgment
cf RSC (Rev) 1965, O 11, r 6 (7).
(1) Where documents are filed and lodged under rule 8 in the registry of the Court of Appeal or of a Division other than the Common Law Division, the registrar shall deliver the documents to the Prothonotary.(2) The Prothonotary shall seal the documents lodged with the seal of the Court and shall send them to the Director-General of the Attorney General’s Department for transmission for service, together with such letter of request (if any) as may be necessary.rules 10.11, 10.12: Am 20.7.1990; 21.7.1995.
12 Evidence of service
cf RSC (Rev) 1965, O 11, r 5 (5).
Where the Prothonotary has sent documents to the Director-General of the Attorney General’s Department as mentioned in rule 11 and afterwards a certificate purporting to be a certificate of a judicial authority or other responsible person in the country concerned or of a British or Australian consular authority in that country as to service or attempted service or non-service is filed, the certificate shall be evidence of the matters stated in the certificate.rules 10.11, 10.12: Am 20.7.1990; 21.7.1995.
13 Order for payment of expenses
Where a person has given an undertaking as mentioned in rules 8 and 10 and does not, within 7 days after service on him of an account of expenses incurred in consequence of the request for service, pay to the Prothonotary the amount of the expenses, the Court may, on application by the Prothonotary:(a) order the applicant to pay the amount of the expenses to the Prothonotary, and(b) stay the proceedings until payment so far as concerns the whole or any part of any claim for relief by the applicant.
Part 11 Appearance
1 Appearance by solicitor or in person
Subject to rule 1A and subject to Part 63 rules 2 and 3 (which relate to disability), any person may enter an appearance and may defend proceedings by a solicitor or in person.rule 11.1: Am 20.9.1991. Subst 23.5.1997.
1A Corporations
(1) Except as provided by this rule or by or under any Act, a corporation (other than a solicitor corporation) may not enter an appearance in, or defend, any proceedings otherwise than by a solicitor.(2) A corporation may enter an appearance in, or defend, proceedings by a director (referred to in this rule as the authorised director) if:(a) the authorised director has the authority of the corporation to enter an appearance in, and defend, the proceedings, and(b) there is filed with the appearance an affidavit, made by the authorised director within 2 days before the date of entering the appearance, containing statements to the effect set out in either paragraph (a) or (b) of subrule (3).(3) The affidavit shall contain statements to the effect either:(a)(i) that the authorised director is a director of the corporation,(ii) that the authorised director has been authorised by a resolution of the directors duly passed at a meeting of directors held on a specified date (which shall not be earlier than 21 days before the date of the affidavit) to enter an appearance in and defend, the proceedings,(iii) that the authority has not been revoked, and(iv) that the authorised director is aware that he or she may be liable to pay some or all of the costs of the proceedings, or(b)(i) that the authorised director is the managing or governing director of the corporation and has authority to exercise the powers of the directors, and(ii) that the authorised director is aware that he or she may be liable to pay some or all of the costs of the proceedings.(4) The plaintiff may, within 28 days after service of the notice of appearance, amend the originating process to add the authorised director as a defendant.(5) Without limiting the powers of the Court under section 76 of the Act, the Court may make against the corporation and the authorised director any order for costs which, if the authorised director had not been a party, it would have made against the corporation.(6) These rules apply to a corporation which enters an appearance in, or defends, proceedings by an authorised director as if the corporation were a party defending in person.(7) A corporation that has complied with subrule (2) in any proceeding may, by the authorised director, make a cross-claim in the proceedings.rule 11.1A: Ins 23.5.1997.
2 No step without appearance
cf Consolidated Equity Rules of 1902, r 96A.
Subject to these rules, a person shall not, except by leave of the Court, take any step in any proceedings unless, before taking the step, he has filed originating process in the proceedings or has entered an appearance in the proceedings.
3 Mode of entry
(1) An appearance in any proceedings shall be entered by filing a notice of appearance.(2) Two or more persons entering an appearance by the same solicitor on the same day may do so by a single notice of appearance.cf RSC (Rev) 1965, O 12, r 1 (4).(3) (Repealed)rule 11.3: Am 6.7.1979; 14.11.1980; 24.4.1981; 23.12.1983; 7.12.1984 (see erratum 21.12.1984); 26.9.1986.
4 Notice of appearance
(1) Notice of appearance shall show:(a) the name and address of the person entering the appearance,(b) where the person entering the appearance appears by a solicitor:(i) the name, address and telephone number of the solicitor, and(ii) if the proceedings are in the Court of Appeal—the solicitor’s facsimile transmission number and the name of the person in the solicitor’s office handling the matter,(c) where the person entering the appearance appears by a solicitor and that solicitor has another solicitor as agent for the solicitor in the proceedings, the name, address and telephone number of the agent, and(d) an address for service.cf RSC (Rev) 1965, O 12, r 3 (3), (4).(2) Where any address shown in a notice of appearance by which a defendant enters an appearance is not genuine, the plaintiff may, with the leave of the Court, continue the proceedings as if the appearance had not been entered.cf RSC (Rev) 1965, O 12, r 3 (5).(3) A defendant who wishes to take no active part in proceedings may:(a) include in the defendant’s appearance a statement that the defendant submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made, and(b) add to the statement “, save as to costs”.(4) A defendant who has filed an appearance containing a statement referred to in subrule (3):(a) shall not, except with the leave of the Court, file a defence or affidavit or take any other step in the proceedings, and(b) may at any time, by leave of the Court, file a defence or affidavit and take any other step in the proceedings upon such terms and conditions as may be imposed by the Court.(5) Subrules (3) and (4) do not apply to proceedings in the Court of Appeal.rule 11.4: Am 2.6.1972; 20.2.1987; 20.9.1991; 25.10.1991; 22.9.1995.
5 Copies and service
(1) A defendant may, when filing a notice of appearance, tender a sufficient number of copies for service on the plaintiff, on each other party of whose address for service he has notice and, if the defendant wishes, on the defendant and request that the copies be dealt with in accordance with subrule (3).cf RSC (Rev) 1965, O 12, r 4.(2) A defendant may, when filing a notice of appearance under Part 1 rule 9B, send a sufficient number of copies for service on the plaintiff, on each other party of whose address for service he has notice and, if the defendant wishes, on the defendant and request that the copies be dealt with in accordance with subrule (3).cf RSC (Rev) 1965, O 12, r 4.(3) Where a notice of appearance is received in a registry or office together with one or two copies and a request that the copies be dealt with in accordance with this subrule:(a) the copies shall be marked by an officer with the date of acceptance of the notice of appearance,(b) a copy shall be used by an officer for the purpose of his serving the notice on the plaintiff,(c) each other copy (if any) shall be used by an officer for the purpose of his serving the notice on each other party who has an address for service in the proceedings and, if there is a sufficient number of copies, on the defendant.cf RSC (Rev) 1965, O 12, r 4.(4) Unless a copy of a notice of appearance is tendered with a request that it be dealt with in accordance with subrule (3) (b), the defendant shall, on the date of entry of his appearance, serve the notice of appearance on the plaintiff and on each other party of whose address for service he has notice.cf RSC (Rev) 1965, O 12, r 4.rule 11.5: Am 21.10.1977; 6.7.1979; 23.5.1980 (see erratum 27.6.1980); 23.12.1983; 26.9.1986; 21.4.1989.
6 Late appearance
(1) A defendant may enter an appearance at any time without leave.cf RSC (Rev) 1965, O 12, r 6 (1).(2) Where a defendant enters an appearance after the time limited for appearing, he shall not, unless the Court otherwise orders, be entitled to file a defence or do any other thing later than if he had entered an appearance within that time.cf RSC (Rev) 1965, O 12, r 6 (2).rule 11.6: Am 26.9.1986; 23.12.1988.
7 (Repealed)
rule 11.7: Am 2.6.1972. Rep 23.12.1988.
8 Setting aside originating process etc
cf RSC (Rev) 1965, O 12, r 8 (1).
(1) The Court may, on application made by a defendant to any originating process on notice of motion filed within the time fixed by subrule (2), by order:(a) set aside the originating process,(b) set aside the service of the originating process on the defendant,(c) declare that the originating process has not been duly served on the defendant,(d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State,(e) discharge any order extending the validity for service of the originating process,(f) protect or release:(i) property seized, or threatened with seizure, in the proceedings, or(ii) property subject to an order restraining its disposition or disposal or in relation to which such an order is sought,(g) declare that the Court has no jurisdiction over the defendant in respect of the subject matter of the proceedings,(h) decline in its discretion to exercise its jurisdiction in the proceedings,(i) grant such other relief as it thinks appropriate.cf RSC (Rev) 1965, O 12, r 8.(2) Notice of motion under subrule (1):(a) may be filed without entering an appearance,(b) shall bear a note “The defendant’s address for service is” and state the address,(c) shall be filed within the time limited for entering an appearance.(3) The making of an application under subrule (1) shall not be treated as a voluntary submission to the jurisdiction of the Court.rule 11.8: Am 23.12.1988.
Part 12 Distribution of business
pt 12: Subst 22.8.1975.
pt 12, Heading: Am 2.6.1972. Subst 22.8.1975.
1 (Repealed)
rule 12.1: Subst 2.6.1972; 22.8.1975. Am 23.3.1984; 26.4.1985. Rep 22.9.1989.
rule 12.1A: Ins 15.12.1972. Am 1.6.1973; 29.3.1974. Rep 22.8.1975.
rule 12.1B: Ins 24.8.1973. Rep 22.8.1975.
rule 12.1C: Ins 7.9.1973. Rep 22.8.1975.
2 Removal to Court of Appeal
(1) Where any proceedings are commenced in a Division, the Court in the Division in which the proceedings are pending may:(a) in a case where the Court makes any order under Part 31 rule 2 for the decision of a question of law, oron application by a party or of its own motion, make an order that the proceedings be removed into the Court of Appeal.(b) in any other case, where the Court states the question to be decided or determined and is satisfied that special circumstances exist which render it desirable to make an order under this subrule,cf s 51 (4), (5), (6) and (7) of the Act.(2) Upon an order being made under subrule (1):(a) the Court of Appeal may, on application by a party or of its own motion, order that the whole or any part of the proceedings be remitted to a Division for the determination by trial or otherwise of the proceedings or any question arising in the proceedings, or(b) the proceedings may be continued and disposed of in the Court of Appeal.(3) Proceedings may be removed into the Court of Appeal under subrule (1) notwithstanding that any decision or determination in the proceedings is expressed by any Act to be final or without appeal.(4) None of the foregoing subrules limits the operation of any of the others.(5) In subrule (1) (b), the word “question” has the meaning which it has in Part 31 rule 1.rule 12.2: Subst 22.8.1975.
3 Declarations of right and injunctions
Proceedings need not be assigned to the Equity Division solely because a declaration of right or an injunction is claimed in the proceedings.rule 12.3: Ins 22.8.1975.
4 Common Law Division
(1) There shall be assigned to the Common Law Division proceedings in the Court under:(a) (Repealed)(b) the Landlord and Tenant Act 1899,(c) section 383 of the Commonwealth Electoral Act 1918,(d) (Repealed)(e) the Motor Dealers Act 1974 (other than proceedings under section 38 (3A) (b) of that Act, which paragraph relates to an appeal from the District Court),(f) section 42 (1) of the Registered Clubs Act 1976,(g) the Liquor Act 1912,(h) section 106 of the Residential Tenancies Act 1987,(i) section 63 of the Water Supply Authorities Act 1987,(j) the Agricultural Tenancies Act 1990, and(k) the Exotic Diseases of Animals Act 1991,(l) section 40 (1) of the Crimes (Aviation) Act 1991 of the Commonwealth,(m) Sections 12, 13, 19 (1) and (2), and 20 of the National Crime Authority (State Provisions) Act 1984,(n) Regulation 5 of the National Crime Authority (State Provisions) Regulation 1986,(o) Sections 22, 23, 30 and 31 of the National Crime Authority Act 1984 (Commonwealth),(p) Regulation 7 of the National Crime Authority Regulations (Commonwealth),(q) Section 39R of the Drug Misuse and Trafficking Act 1985,(r) Section 39 of the Travel Agents Act 1986,(s) Part 2 of Chapter 7 of the Criminal Procedure Act 1986,(t) section 22A of the Lotteries and Art Unions Act 1901,(u) sections 205F (1), 206 (6), 207 (2), 221 and 245 (1) of the Customs Act 1901 of the Commonwealth,(v) section 107A (3) and (4) of the Telecommunications (Interception) Act 1979 of the Commonwealth,(w) sections 69E (1), 69L and 69R (3) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 of the Commonwealth,(x) sections 65–67 of the Consumer, Trader and Tenancy Tribunal Act 2001,(y) the Conveyancers Licensing Act 1995 (other than proceedings assigned to the Court of Appeal),(z) section 74 of the Crimes (Forensic Procedures) Act 2000,(aa) section 51AA (1) (b) or (2) (d) of the Corporations Act 1989 of the Commonwealth,(bb) (Repealed)(2) There shall be assigned to the Common Law Division proceedings in the Court:(a) under the provisions of the Acts and Commonwealth Acts mentioned in column 1 of Part 1 of Schedule H, and(b) mentioned in Part 2 of Schedule H.(3) The matter in column 2 of Part 1 of Schedule H is inserted for convenience of reference only and does not affect the operation of the rules.rule 12.4: Ins 22.8.1975. Am 28.7.1978; 6.7.1979; 22.4.1983; 31.5.1985; 20.12.1985 (see erratum 31.1.1986); 24.4.1986; 27.6.1986; 4.9.1987; 23.10.1987; 20.11.1987; 22.9.1989; 17.11.1989; 15.3.1991; 27.3.1992; 26.2.1993; 21.5.1993; 28.4.1995; 26.4.1996; 19.2.1999; 21.5.1999; 25.2.2000; 20.4.2000; 30.6.2000; 25.8.2000; 1.6.2001; 19.4.2002; 29.8.2003.
5 Equity Division
There shall be assigned to the Equity Division:(a) proceedings in the Court under:(i) the Real Property Act 1900,(ii) the Married Persons (Property and Torts) Act 1901,(iii) the Co-operation Act 1923,(iv) the Marriage Act 1961,(v) section 113 of the Maintenance Act 1964,(vi) the Permanent Building Societies Act 1967,(vii) sections 55A and 66 of the Credit Union Act 1969,(viii) (Repealed)(ix) the Minors (Property and Contracts) Act 1970,(x) the Securities Industry Act 1975,(xi) the Restraints of Trade Act 1976,(xii) (Repealed)(xiii) the Status of Children Act 1996,(xiv) section 74 of the Funeral Funds Act 1979,(xv) the National Companies and Securities Commission Act 1979 (Commonwealth),(xviii) the Companies (Application of Laws) Act 1981,(xix) the Securities Industry (New South Wales) Code,(xx) the Companies (Acquisition of Shares) (New South Wales) Code,(xxi) the Companies (New South Wales) Code,(xxii) section 7 of Bishopsgate Insurance Australia Limited Act 1983,(xxiii) section 45 of the Apiaries Act 1985,(xxiv) the Futures Industry Act 1986 (Commonwealth),(xxv) the Futures Industry (New South Wales) Code,(xxvi) the Gas Act 1986,(xxvii) sections 20B and 88 (1) of the Children (Care and Protection) Act 1987,(xxviii) the Community Land Development Act 1989,(xxix) the Community Land Management Act 1989,(xxxi) any “national scheme law” as defined in section 60 of the Corporations (New South Wales) Act 1990,(xxxii) the Charitable Fundraising Act 1991,(xxxiii) section 10 (3) of the State Owned Corporations Act 1989,(xxxiv) section 42, or section 45 or section 72 of the State Records Act 1998,(xxxv) sections 35 and 37 of the Gas Pipelines Access (New South Wales) Law,(xxxvi) section 188 of the Workplace Injury Management and Workers Compensation Act 1998,(xxxvii) (Repealed)(xxxviii) section 200 of the Strata Schemes Management Act 1996,(xxxix) section 18 of the Uncollected Goods Act 1995,(xl) section 43 (1) or (7) or section 44 or sect 45 or section 46 or section 48 of the Sydney 2000 Games (Indicia And Images) Protection Act 1996 of the Commonwealth,(xli) section 13 of the Warnervale Airport (Restrictions) Act 1996,(xlii) (Repealed)(xliii) section 13 of the Married Persons (Equality of Status) Act 1996,(xliv) section 76A or section 77 (2) or (4) of the Retail Leases Act 1994,(b) proceedings in the Court:(i) on an application for a writ of habeas corpus ad subjiciendum in respect of a minor,(ii) for orders for the custody of and access to minors,(iii) on an appeal to the Court in a Division in proceedings between husband and wife or parent and child,(iv) for orders under and provision by or under any Act that a debenture or bond issued by a corporation constituted by that Act, or a coupon annexed to that debenture or bond, has been lost or destroyed or defaced and directions by or under that Act for advertisement relating to that debenture, bond or coupon,(v) for orders under any provision made by or under any Act for the appointment of a receiver of the income of a corporation which is constituted by that Act and which makes default in payment to the holder of any debenture, or coupon, issued or stock inscribed by that corporation,(vi) in relation to any provision in any Act or Commonwealth Act by which a tax, fee, duty or other impost is levied, collected or administered by or on behalf of the State or the Commonwealth,(vii) in respect of which jurisdiction is conferred by section 51 (2A) of the Corporations Act 1989 of the Commonwealth,(viii) arising out of section 62B (1) or (2) of the Retail Leases Act 1994.rule 12.5: Ins 22.8.1975. Am 25.3.1977. Subst 29.4.1977. Am 28.7.1978; 6.7.1979; 30.5.1980; 24.7.1981. Subst 28.8.1981. Am 30.6.1982; 8.10.1982; 9.12.1983; 27.6.1986; 25.7.1986; 22.8.1986; 20.2.1987; 25.9.1987 (see erratum 20.11.1987); 18.12.1987 (see erratum 3.6.1988); 20.5.1988; 23.2.1990; 16.3.1990; 20.7.1990; 19.4.1991; 21.6.1991; 25.10.1991; 22.5.1992; 25.8.1995; 25.10.1996; 24.4.1998; 23.10.1998; 21.5.1999 (see erratum 28.5.1999); 20.4.2000; 30.6.2000; 21.7.2000; 25.8.2000; 20.10.2000; 1.6.2001; 19.4.2002.
5A, 6 (Repealed)
rule 12.5A: Ins 23.12.1988. Rep 23.10.1998.
rule 12.6: Ins 22.8.1975. Rep 29.4.1977.
rule 12.6 (previously Rule 12.7): Ins 22.8.1975. Renumbered 29.4.1977. Am 8.10.1982. Rep 19.2.1999.
7 Business assigned to one of several Divisions
Proceedings in the Court in which a claim is made for relief under:(a) the Fair Trading Act 1987 (except proceedings specified in the Third Schedule to the Act or assigned by Part 75), orare to be assigned to the Common Law Division or the Equity Division, as is appropriate to the nature of the proceedings.(b) Division 1 or 1A of Part V of the Trade Practices Act 1974, orrule 12.7: Ins 20.11.1987. Subst 23.2.1990. Am 21.5.1993; 7.8.1998; 19.2.1999. Subst 22.12.2000.
Part 13 Summary disposal
Division 1 Summary judgment
1 Application
cf RSC (Rev) 1965, O 14, r 1 (2).
This Division applies to all proceedings except proceedings within the application of section 88 of the Act (which relates to cases of fraud and other matters).
2 Summary judgment
cf RSC (Rev) 1965, O 14, rr 1 (1), 2 (1), 3 (1).
(1) Where, on application by the plaintiff in relation to any claim for relief or any part of any claim for relief of the plaintiff:(a) there is evidence of the facts on which the claim or part is based, andthe Court may, by order, on terms, give such judgment for the plaintiff on that claim or part as the nature of the case requires.(b) there is evidence given by the plaintiff or by some responsible person that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part, or no defence except as to the amount of any damages claimed,(2) Without limiting subrule (1), the Court may, under that subrule, give judgment for the plaintiff for damages to be assessed.(3) In this rule, damages includes the value of goods.rule 13.2: Am 2.6.1972; 27.4.1984; 30.3.1990.
3 Cross-claim
cf RSC (Rev) 1965, O 14, r 3 (2).
(1) A party may apply under this Division notwithstanding that, by rule 1, this Division does not apply to the proceedings in relation to a claim made by some other party.(2) Where the Court gives judgment against a party under this Division, and that party claims relief against the party obtaining the judgment, the Court may stay execution on, or other enforcement of, the judgment until determination of the claim by the party against whom the judgment is given.rule 13.3: Am 30.3.1990.
4 (Repealed)
rule 13.4: Rep 2.6.1972.
Division 2 Summary stay or dismissal
5 Frivolity etc
(1) Where in any proceedings it appears to the Court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:(a) no reasonable cause of action is disclosed,(b) the proceedings are frivolous or vexatious, orthe Court may order that the proceedings be stayed or dismissed generally or in relation to any claim for relief in the proceedings.(c) the proceedings are an abuse of the process of the Court,(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).
5A Non appearance by plaintiff
(1) If there is no attendance by or on behalf of a plaintiff at a hearing (including the hearing of an interlocutory or other application and a directions hearing), or at a trial, of which he or she has had due notice, the Court may, on application by a party or of its own motion, adjourn the hearing or trial to another date and direct that not less than 5 days before that date a notice of the adjournment be served on the plaintiff advising that the proceedings may be dismissed if there is no attendance by or on behalf of the plaintiff at the adjourned hearing or trial.(2) If the plaintiff has been given notice in accordance with subrule (1) and there is no attendance by or on behalf of the plaintiff at the adjourned hearing or trial, the Court may, on application by a party or of its own motion, dismiss the proceedings.(3) This rule does not restrict any other power of the Court to dismiss proceedings.rule 13.5A: Ins 24.12.1999.
Division 3 General
6 Residue of proceedings
cf RSC (Rev) 1965, O 14, rr 6 (1), 8.
Where, in any proceedings:(a) a party applies under this Part for:(i) judgment pursuant to Division 1, or(ii) an order for stay or dismissal pursuant to Division 2, andthe proceedings may be continued as regards any claim or part of a claim not disposed of by judgment or dismissal and not stayed.(b) the proceedings are not wholly disposed of by judgment or dismissal or the proceedings are not wholly stayed,rule 13.6: Am 23.3.1984; 30.3.1990.
Part 14 Commercial List
pt 14: Subst 29.3.1974; 24.4.1986; 21.11.1986; 7.8.1998.
1 Assignment of business and entry in Commercial List
(1) Subject to subrule (2), proceedings in the Court:(a) arising out of commercial transactions, orare assigned to the Equity Division and may, subject to this part, be entered in the Commercial List (the List).(b) in which there is an issue that has importance in trade or commerce,(2) Subrule (1) does not apply to:(a) any proceedings assigned by the Act or by or in accordance with the rules or by or under any other Act to the Court of Appeal or the Equity Division (other than proceedings assigned by this Part or with a view to entry in the List),(b) proceedings to which Part 76 or Part 78 applies,(c) proceedings assigned by Part 12 rule 4 (2) or Part 77 rule 84 (3) or rule 92 or rule 96 or rule 99 or rule 100 or rule 104 or rule 114 or rule 116 or rule 118, or(d) proceedings:(i) for commanding or otherwise requiring a public body or a public officer to perform a public duty,(ii) for prohibiting or otherwise restraining a public body or a public officer from performing or purporting to perform any act,(iii) for determining by declaration or otherwise any matter concerning the powers of a public body or a public officer, and(iv) in appeals or applications to the Court in respect of decisions of a public body or a public officer under any enactment specified in the rules for the purposes of this subsection,(e) proceedings specified in the Third Schedule to the Act or assigned by Part 75.(3) In subrule (1), issue includes any question or issue in any proceedings, whether of fact or law or both, and whether raised by pleadings, agreement of parties or otherwise.rule 14.1: Subst 29.3.1974; 24.4.1986; 21.11.1986; 7.8.1998; 19.2.1999.
2 Application of rules
Part 36 rule 3 (2) (evidence by affidavit), rule 8 (plans, etc) and Schedule F Form 6 (summons) shall not apply to:(a) proceedings entered in the List, or(b) a summons filed in the Equity Division that contains a requirement under rule 6.rule 14.2: Subst 29.3.1974. Am 23.12.1977. Subst 24.4.1986; 21.11.1986. Am 24.5.1991. Subst 7.8.1998. Am 13.6.2003.
3 Appeals
Part 51A rules 4 and 5 and 10–13 (which relate to appeals to the Court) shall not apply to proceedings entered, or intended to be entered, in the List.rule 14.3: Subst 29.3.1974; 24.4.1986; 21.11.1986. Am 19.6.1987; 24.6.1994; 26.4.1996; 25.10.1996; 22.11.1996. Subst 7.8.1998.
Part 72A rules 2 and 6 (which relate to applications and appeals under the Commercial Arbitration Act 1984) shall not apply in proceedings entered, or intended to be entered, in the List.rule 14.4: Subst 29.3.1974. Rep 24.4.1986. Ins 21.11.1986. Rep 25.7.1997. Ins 7.8.1998.
5 Commencement of proceedings
Notwithstanding Part 4 rule 2, where a plaintiff requires any proceedings to be entered in the List under rule 6, he or she shall commence proceedings by summons in the Equity Division.rule 14.5: Subst 29.3.1974. Am 23.3.1984. Rep 24.4.1986. Ins 21.11.1986. Subst 7.8.1998.
6 Entry in the List on commencement of proceedings
Where a plaintiff adds “Commercial List” next under the heading and title on his or her summons in proceedings in the Equity Division, the proceedings shall be entered in the List without any order for entry.rule 14.6: Ins 29.3.1974. Rep 24.4.1986. Ins 21.11.1986. Am 25.10.1996. Subst 7.8.1998.
7 Removal from the List
(1) Where any proceedings are entered in the List, the Court, on the application of a party or of its own motion, may, if it is satisfied that it is proper to do so, order that the proceedings be removed from the List, and may give such further directions as to the continuance of the proceedings as it thinks fit.(2) A party who wants an order under subrule (1) shall move on notice for that order on or before the first hearing for directions conducted in accordance with the practice of the Court.rules 14.7, 14.8: Ins 29.3.1974. Rep 24.4.1986. Ins 7.8.1998.
8 Appeal by leave
An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from an order that any proceedings be entered in the List.rules 14.7, 14.8: Ins 29.3.1974. Rep 24.4.1986. Ins 7.8.1998.
9 (Repealed)
rule 14.9: Ins 29.3.1974. Rep 23.3.1984. Ins 7.8.1998. Rep 28.1.2000.
10 Bulk transfer and entry orders
(1) The Court may of its own motion, by a single order, order that all proceedings, or all proceedings of a specified type, be transferred from the Commercial Division to the Equity Division.(2) The Court may of its own motion, by a single order, order that all proceedings of a specified type be entered in the Commercial List.(3) Part 41 rule 11 (1) shall not apply to an order to which subrule (1) or subrule (2) applies.rule 14.10: Ins 7.8.1998.
Part 14A Technology and Construction List
pt 14A: Ins 31.5.1985. Subst 19.10.2001 (see also 26.10.2001).
pt 14A, Heading: Am 23.2.1990. Subst 19.10.2001 (see also 26.10.2001).
1 Interpretation
In this Part:building or engineering expert includes builder, engineer, architect, designer and quantity surveyor.building or engineering work includes:(a) any intended building or engineering work, and(b) any building or engineering work in the course of construction or completion or which has been substantially or fully completed, and(c) any associated work.rule 14A.1: Ins 31.5.1985. Subst 19.10.2001 (see also 26.10.2001).
2 Proceedings for entry in list
The following proceedings (unless they are proceedings on a claim for damages in respect of the death of, or personal injuries to, any person) may, subject to this Part, be entered in the Technology and Construction List (the List) kept in the registry:(a) proceedings relating to or arising out of:(i) the design, carrying out, supervision or inspection of any building or engineering work,(ii) the performance by any building or engineering expert of any other services with respect to any building or engineering work,(iii) any certificate, advice or information given or withheld with respect to any building or engineering work,(b) proceedings relating to or arising out of, or the determination of which involves, the design, acquisition, disposal or operation of technology in commercial transactions or in transactions involving Government,(c) proceedings on a claim for rectification, setting aside or cancellation of any agreement with respect to matters mentioned in paragraph (a) or (b).rule 14A.2: Ins 31.5.1985. Am 15.12.1989. Subst 19.10.2001 (see also 26.10.2001).rule 14A.2A: Ins 15.12.1989. Subst 25.6.1999. Rep 19.10.2001 (see also 26.10.2001).
3 Application of rules
Part 36, rule 3 (2) (evidence by affidavit) and rule 8 (plans, photographs and models) and Schedule F, Form 6 (summons) do not apply to:(a) proceedings entered in the List, or(b) a summons filed in the Equity Division that contains a requirement under rule 5.rule 14A.3: Ins 31.5.1985. Am 15.12.1989. Subst 25.6.1999; 19.10.2001 (see also 26.10.2001). Am 13.6.2003.
4 Commencement of proceedings
Despite Part 4, rule 2, where a plaintiff requires any proceedings to be entered in the List under rule 2, he or she must commence proceedings by summons in the Equity Division.rule 14A.4: Ins 31.5.1985. Am 15.12.1989; 26.2.1993. Subst 25.6.1999; 19.10.2001 (see also 26.10.2001).
5 Entry in list on commencement of proceedings
(1) Where a plaintiff, on his or her summons, or a defendant, on his or her notice of appearance or, in proceedings commenced by statement of claim, on his or her defence requires proceedings to be entered in the List:(a) in the case of proceedings in the Equity Division, the proceedings must be entered in the List without any order for entry, or(b) in any other case, the defendant requiring entry is entitled to an order that the proceeding be transferred to the Equity Division and entered in the List.(2) A requirement under subrule (1) must be made by a party by adding “Technology and Construction List” next under the heading and title on his or her summons, notice of appearance or defence, as the case may be.(3) A requirement under subrule (1) must not be made:(a) on a cross-claim, or(b) by a defendant to a cross-claim who is a party in the proceedings before the filing of that cross-claim.rule 14A.5: Ins 31.5.1985. Am 15.12.1989. Subst 19.10.2001 (see also 26.10.2001).
6 Removal from list
(1) Where any proceedings are entered in the List, the Court, on the application of a party or of its own motion, may, if it is satisfied that it is proper to do so, order, on terms, that the proceedings be removed from the List, and may give such further directions as to the continuance of the proceedings as it thinks fit.(2) A party who wants an order under subrule (1) must move on notice for that order on or before the first hearing for directions conducted in accordance with the practice of the Court.rule 14A.6: Ins 31.5.1985. Rep 15.12.1989. Ins 25.6.1999. Subst 19.10.2001 (see also 26.10.2001).
7 Bulk transfer orders
(1) The Court may of its own motion, by a single order, order that proceedings of a specified type be transferred from the Common Law Division to the Equity Division.(2) Part 41, rule 11 (1) does not apply to an order to which subrule (1) applies.rules 14A.7, 14A.8: Ins 31.5.1985. Rep 15.12.1989. Ins 19.10.2001 (see also 26.10.2001).
8 Appeal by leave
An appeal does not lie to the Court of Appeal, except by leave of the Court of Appeal, from an order that any proceedings be entered in the List.rules 14A.7, 14A.8: Ins 31.5.1985. Rep 15.12.1989. Ins 19.10.2001 (see also 26.10.2001).rules 14A.9–14A.11: Ins 31.5.1985. Rep 15.12.1989.rule 14A.12: Ins 31.5.1985. Rep 25.7.1997.rule 14A.13: Ins 31.5.1985. Rep 19.10.2001 (see also 26.10.2001).rule 14A.14: Ins 31.5.1985. Subst 25.6.1999. Rep 28.1.2000.
Part 14B Possession List
pt 14B (Rules 14B.1–14B.8): Ins 24.12.1999.
1 Definitions
In this Part:possession claim means a claim for possession of land, whether made by statement of claim or by cross-claim.the List means the Possession List kept in the registry.pt 14B (Rules 14B.1–14B.8): Ins 24.12.1999.
2 Application of Part
This Part, other than rule 4, does not apply to:(a) proceedings in the Equity Division,(b) proceedings entered in the Professional Negligence List,and is subject to Parts 14A and 14C.(c) appeals, or applications for stays, in respect of orders made by the Residential Tribunal,pt 14B (Rules 14B.1–14B.8): Ins 24.12.1999.
3 Entry in List
(1) Upon a possession claim being made in proceedings commenced after the commencement of this Part, the proceedings (ie the whole of the proceedings as instituted by statement of claim and all cross-claims in the same proceedings) shall be entered in the List, if not already so entered.(2) The Court may, on application by a party or of its own motion, order entry in the List of proceedings in which a possession claim is made, that:(a) were commenced before commencement of this Part, or(b) are transferred to the Court.pt 14B (Rules 14B.1–14B.8): Ins 24.12.1999.
4 Removal from the List
(1) The Court may, on application by a party or of its own motion, order that proceedings be removed from the List and may give such further directions as to the continuance of the proceedings as it thinks fit.(2) Proceedings in the List that are entered in the Professional Negligence List or transferred to the Equity Division shall be removed from the List.(3) This Part, other than rule 5 (1), does not apply to proceedings that have been removed from the List.pt 14B (Rules 14B.1–14B.8): Ins 24.12.1999.
5 Notice of entry in or removal from the List
(1) The Court shall give notice of entry of proceedings in, and removal of proceedings from, the List:(a) in the case of entry otherwise than pursuant to an order—to the party filing the document that results in the entry, and(b) in any other case—to each party who has an address for service in the proceedings and who was not present or represented when the order to enter or remove was made.(2) Notice under subrule (1) (a) may, in addition to any other valid means, be given to a party by handing it to the person who filed the document.(3) A party who is given notice under subrule (1) (a) shall serve the notice with the document and, if the document is not a statement of claim, will forthwith serve the document and the notice on each other party who has an address for service in the proceedings.pt 14B (Rules 14B.1–14B.8): Ins 24.12.1999.
6 Endorsement of documents
(1) A party must add the words “Possession List” under the heading and title of a document filed by that party in proceedings that:(a) are entered in the List, or(b) will be entered in the List as a result of the filing of the document.pt 14B (Rules 14B.1–14B.8): Ins 24.12.1999.
7 Dismissal
(1) If a defence to a possession claim has not been filed in proceedings entered in the List within 5 months of the possession claim being instituted, the Court may of its own motion dismiss:(a) the proceedings, orunless a party satisfies the Court that such an order should not be made.(b) if there is more than one claim made in the proceedings—the claim for possession,(2) The Court may not make an order under subrule (1) without giving the parties a reasonable opportunity to be heard.(3) Subrule (1) does not apply to proceedings, or to a claim, that have or has been disposed of by judgment, final order, discontinuance or dismissal.pt 14B (Rules 14B.1–14B.8): Ins 24.12.1999.
8 Effect of dismissal
(1) An order for dismissal under rule 7 shall not prevent a party from:(a) bringing fresh proceedings, or(b) claiming in fresh proceedings relief that has been claimed in the dismissed proceedings.(2) Where:(a) proceedings are dismissed under rule 7,(b) a party is, by reason of the dismissal, 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, the party so liable brings against that other party further proceedings on the same or substantially the same cause of action as that on which the dismissed proceedings were brought,pt 14B (Rules 14B.1–14B.8): Ins 24.12.1999.
Part 14C Professional Negligence List
pt 14C: Ins 24.12.1998.
1 Definitions
In this Part:professional negligence means the breach of a duty of care or of a contractual obligation in the performance of professional work or in the provision of professional services by a medical practitioner, an allied health professional (eg dentist, chemist, physiotherapist), a hospital, a solicitor or a barrister.professional negligence claim means a claim in the Common Law Division for damages, indemnity or contribution based on an assertion of professional negligence, whether made by statement of claim or by cross-claim.the List means the Professional Negligence List kept in the registry.rule 14C.1: Ins 24.12.1998. Am 28.1.2000.
2 Application of Part
This Part does not apply to proceedings in the Equity Division or entered in the Technology and Construction List and is subject to Part 14A.rule 14C.2: Ins 24.12.1998. Am 19.10.2001 (see also 26.10.2001).
3 Entry in List
(1) A party to proceedings:(a) in which a professional negligence claim is instituted after the commencement of this Part, ormust add the words “Professional Negligence List” under the heading and title of all documents filed by that party.(b) which are entered in the List,(2) Where a document endorsed pursuant to subrule (1) (a) is filed, the proceedings (ie the whole of the proceedings as instituted by statement of claim and all cross-claims in the same proceedings) shall be entered in the List, if not already so entered.(3) The Court may, on application by a party or of its own motion, order entry in the List of proceedings:(a) in which subrule (1) has not been complied with,(b) in which a professional negligence claim was instituted before commencement of this Part, or(c) which are or have been transferred to the Court and which include a professional negligence claim.rule 14C.3: Ins 24.12.1998.
4 Removal from the List
(1) The Court may, on application by a party or of its own motion, order that proceedings be removed from the List and may give such further directions as to the continuance of the proceedings as it thinks fit.(2) Proceedings in the List that are entered in the Technology and Construction List shall be removed from the List.(3) This Part does not apply to proceedings that have been removed from the List.rule 14C.4: Ins 24.12.1998. Am 19.10.2001 (see also 26.10.2001).
5 Notice of entry in or removal from the List
(1) The Court shall give notice of entry of proceedings in, and removal of proceedings from, the List:(a) in the case of entry otherwise than pursuant to an order—to the party filing the document that results in the entry, and(b) in any other case—to each party who has an address for service in the proceedings and who was not present or represented when the order to enter or remove was made.(2) Notice under subrule (1) (a) may, in addition to any other valid means, be given to a party by handing it to the person who filed the document.(3) A party who is given notice under subrule (1) (a) shall serve the notice with the document and, if the document is not a statement of claim, will forthwith serve the document and the notice on each other party who has an address for service in the proceedings.rules 14C.5–14C.7: Ins 24.12.1998.
6 Service of experts’ reports
(1) A person instituting a professional negligence claim (other than a claim against a barrister or a solicitor) must, unless the Court otherwise orders, file and serve, with the statement of claim or cross-claim instituting the professional negligence claim, an expert’s report or experts’ reports which includes or include an opinion supporting:(a) breach of duty of care, or contractual obligation, alleged against each person sued for professional negligence,(b) the general nature and extent of damage alleged (including death, injury or other loss or harm and prognosis, as the case may require), and(c) the causal relationship alleged between such breach of duty or obligation and the damage alleged.(2) Within 28 days from the date of an order being made under rule 3 (3), the party making the professional negligence claim (other than a claim against a barrister or a solicitor) must file and serve such a report or reports on all other parties to the proceedings.(3) In the case of a professional negligence claim against a barrister or a solicitor, the Court may order the plaintiff or cross-claimant to file and serve an expert’s report or experts’ reports supporting the claim.(4) If a party fails to comply with subrule (1), (2) or (3), the Court may by order, on the application of a party or of its own motion strike out the whole or any part of the proceedings (including a cross-claim), as may be appropriate.rules 14C.5–14C.7: Ins 24.12.1998.
7 Validity for service
For the purposes of service, an originating process that contains a claim for professional negligence shall be valid for 4 months from the date on which it is filed, unless the Court otherwise orders.rules 14C.5–14C.7: Ins 24.12.1998.
Part 14D Administrative Law List
pt 14D: Ins 25.6.1999.
1 Interpretation
In this Part:(a) Administrative Law proceedings means:(i) proceedings which were, at the conclusion of 30 June 1999, in the Administrative Law Division of the Court,(ii) proceedings assigned by any of the following rules:(A) Part 12 rule 4 (2), or(B) Part 77 rule 84 (3), 99, 100, 114 or 116,(iii) proceedings:(A) for commanding or otherwise requiring a public body or a public officer to perform a public duty,(B) for prohibiting or otherwise restraining a public body or a public officer from performing or purporting to perform any act,(C) for determining by declaration or otherwise any matter concerning the powers of a public body or a public officer, or(D) in appeals or applications to the Court in respect of decisions of a public body or a public officer under any enactment specified in the rules for the purposes of this subsection, and(iv) proceedings under sections 65–67 of the Consumer, Trader and Tenancy Tribunal Act 2001.(v) (Repealed)(b) the List means the Administrative Law List kept in the registry.(c) prescribed tribunal means:(i) a specified tribunal within the meaning of section 48 of the Act,(ii) a Local Court, whether constituted by a magistrate or by justices of the peace,(iii) a magistrate, coroner or deputy coroner, or(iv) any other tribunal, person or body of persons prescribed, or belonging to a class prescribed for the purposes of this definition.(d) public body means a body of persons, whether corporate or unincorporate, constituted by or under an Act and required to perform or performing public duties, but does not include a prescribed tribunal.(e) public officer means a person holding or acting in a public office under the Government of the State or an office created by or under an Act and required to perform or performing public duties, but does not include a prescribed tribunal.rule 14D.1: Ins 25.6.1999. Am 23.7.1999; 30.6.2000; 1.6.2001; 19.4.2002; 29.8.2003.
2 Entry in List
(1) A party to Administrative Law proceedings in the Common Law Division must add the words “Administrative Law List” under the heading and title of all documents filed by that party.(2) Where a document endorsed pursuant to subrule (1) is filed, the proceedings shall be entered in the List, if not already so entered.(3) The Court may, on application by a party or of its own motion, order entry in the List of proceedings in which subrule (1) has not been complied with.(4) The Court may, at the same time as transferring Administrative Law proceedings to the Common Law Division, order that they be entered in the List.(5) Proceedings referred to in rule 1 (a) (i) shall be entered in the List.rules 14D.2, 14D.3: Ins 25.6.1999.
3 Removal from List
(1) The Court may, on application by a party or of its own motion, order that the proceedings be removed from the List and may give such further directions as to the continuance of the proceedings as it thinks fit.(2) This Part does not apply to proceedings that have been removed from the List.rules 14D.2, 14D.3: Ins 25.6.1999.
Part 15 Pleadings
Division 1 Preliminary
1 Application
This Part applies to proceedings commenced by statement of claim but, subject to these rules, not to proceedings commenced by summons.
2 Trial without further pleadings
(1) Where, in the opinion of the Court:(a) the issues between the parties can be defined without further pleadings, orthe Court may, on application by a party, order that the proceedings be so tried.(b) for any other reason the proceedings can properly be tried without further pleadings,cf RSC (Rev) 1965, O 18, r 21 (1), (2).(2) Where the Court makes an order under subrule (1), the Court may direct the parties to prepare a statement of the issues or, if the parties do not agree on a statement of the issues, may settle the statement itself.cf RSC (Rev) 1965, O 18, r 21 (2), (3).(3) (Repealed)rule 15.2: Am 2.6.1972; 23.3.1984.
Division 2 Particular pleadings
2A (Repealed)
rule 15.2A: Ins 10.12.1993. Rep 23.10.1998.
3 Defence
cf RSC (Rev) 1965, O 18, r 2 (2).
(1) Subject to subrule (2), a defendant shall file and serve his defence:(a) before the expiry of 14 days after the date of expiry of the time limited for his appearance, or(b) in the case of a defendant to a cross-claim who is not required to enter an appearance to the cross-claim, before the expiry of 21 days after the date of service of the cross-claim on him.cf RSC (Rev) 1965, O 18, r 2 (1).(2) Where, before the date on which a defendant files his defence, a plaintiff serves on that defendant notice of a motion under Part 13 rule 2 for summary judgment on any claim for relief or part of any claim for relief:(a) subrule (1) shall not apply to that defendant; but(b) if, on the motion for summary judgment, the Court does not dispose of all the claims for relief against that defendant, the Court may order him to file and serve his defence before the expiry of a time fixed by the Court.(3) This rule does not apply to proceedings on a cross-claim for contribution to which Part 6 rule 9 (1) applies.rule 15.3: Am 2.6.1972; 15.12.1972; 29.3.1974; 26.9.1986; 23.12.1988; 25.10.1996.
4 Reply
(1) Where a defendant serves a defence on a plaintiff and a reply is needed for compliance with rule 13 or Part 67 rule 19 (which relates to defamation), the plaintiff shall file and serve the reply before the expiry of 14 days after the date of service on him of the defence.cf RSC (Rev) 1965, O 18, r 3 (1), (4).(2) Where a plaintiff files both a reply and a defence to a cross-claim, he shall put them in one document.cf RSC (Rev) 1965, O 18, r 3 (3).rule 15.4: Am 3.5.1974; 26.9.1986; 23.12.1988.
5 Rejoinder etc
cf RSC (Rev) 1965, O 18, r 4.
(1) A party shall not, except with the leave of the Court, file any pleading subsequent to a reply.(2) The applicant for leave under subrule (1) shall, unless the Court otherwise orders, file notice of the motion before the expiry of 14 days after service on him of the pleading to which he seeks leave to plead.rule 15.5: Am 26.4.1985; 26.9.1986; 23.12.1988.
Division 3 Form and manner of pleading
6 Paragraphs
cf RSC (Rev) 1965, O 18, r 6 (2).
Where a pleading alleges or otherwise deals with several matters:(a) the pleading shall be divided into paragraphs,(b) each matter shall, so far as convenient, be put in a separate paragraph, and(c) the paragraphs shall be numbered consecutively.
7 Facts, not evidence
(1) A pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which he relies, but not the evidence by which those facts are to be proved.cf RSC (Rev) 1965, O 18, r 7 (1).(2) Subrule (1) has effect subject to this Part and to Part 7 (which relates to originating process) and to Part 16 (which relates to particulars).
8 Brevity
cf RSC (Rev) 1965, O 18, r 7 (1).
A pleading shall be as brief as the nature of the case admits.
9 Documents and spoken words
cf RSC (Rev) 1965, O 18, r 7 (2).
Where any documents or spoken words are referred to in a pleading:(a) the effect of the document or of the spoken words shall, so far as material, be stated, and(b) the precise terms of the document or spoken words shall not be stated, except so far as those terms are themselves material.
10 Presumed facts
cf RSC (Rev) 1965, O 18, r 7 (3).
A party need not plead a fact if:(a) the fact is presumed by law to be true, orexcept so far as may be necessary to meet a specific denial of that fact by the other party in his pleading.(b) the burden of disproving the fact lies on the other party,
11 Conditions precedent
cf RSC (Rev) 1965, O 18, r 7 (4).
Where it is a condition precedent necessary for the case of a party in any pleading that:(a) a thing has been done,(b) an event has happened,(c) a state of affairs exists, or existed at some time or times,(d) the party is and has been at all material times ready and willing to perform an obligation, ora statement that:(e) the party was at all material times ready and willing to perform an obligation,(f) the thing has been done,(g) the event has happened,(h) the state of affairs exists, or existed at that time or those times,(i) the party is and has been at all material times ready and willing to perform the obligation, orshall be implied in the pleading.(j) the party was at all times ready and willing to perform the obligation,rule 15.11: Subst 16.11.1990; 21.7.1995.
12 Money claims
(1) This rule applies where the plaintiff claims money payable by the defendant to the plaintiff for:(a) goods sold and delivered by the plaintiff to the defendant,(b) goods bargained and sold by the plaintiff to the defendant,(c) work done and materials provided by the plaintiff for the defendant at his request,(d) money lent by the plaintiff to the defendant,(e) money paid by the plaintiff for the defendant at his request,(f) money had and received by the defendant for the use of the plaintiff,(g) interest upon money due from the defendant to the plaintiff and forborne at interest by the plaintiff to the defendant at his request, or(h) money found to be due from the defendant to the plaintiff on accounts stated between them.(2) Subject to subrules (3) and (4), it shall be sufficient to plead the facts in the manner appearing in subrule (1).(3) The defendant may, within the time limited for filing his defence, file and serve on the plaintiff a notice that the defendant requires the plaintiff to plead the facts on which he relies in accordance with this Part other than this rule.(4) Where a defendant files and serves a notice pursuant to subrule (3):(a) the plaintiff shall, within 14 days after service of the notice upon him, amend his statement of claim so as to plead the facts on which he relies in accordance with this Part other than this rule, and(b) the time for the defendant to file his defence shall not expire before the lapse of 14 days after service on him of the amended statement of claim or of notice of the amendments to the statement of claim.(5) Part 20 rules 7, 8 and 9 (which relate to the mode of amendment and to service after amendment) apply to an amendment under this rule.(6) A plaintiff may amend his statement of claim under Part 20 rule 2 notwithstanding that he has amended it under this rule.(7) This rule does not affect the provisions of Part 16 concerning particulars.(8) A defendant may add a notice under subrule (3) to his notice of appearance.rule 15.12: Am 2.6.1972; 26.9.1986; 23.12.1988.
12A Amount of unliquidated damages
cf Rules of the Supreme Court 1965 (Tas), Pt 1; O 3, r 11; O 21, r 5.
In a pleading an amount shall not be claimed for unliquidated damages.rule 15.12A: Ins 30.3.1973. Am 26.9.1986; 23.12.1988.
13 Matters for specific pleading
cf RSC (Rev) 1965, O 18, r 8 (1).
(1) The plaintiff shall, in his statement of claim, plead specifically any matter which, if not pleaded specifically, may take the defendant by surprise.(2) In a defence or subsequent pleading the party pleading shall plead specifically any matter, for example, performance, release, any statute of limitation, extinction under Division 1 of Part 4 of the Limitation Act 1969, of a right or title, voluntary assumption of risk, causation of accident by mechanical defect not known to, or discoverable by, the defendant, fraud or any fact showing illegality:(a) which he alleges makes any claim, defence or other case of the opposite party not maintainable,(b) which, if not pleaded specifically, may take the opposite party by surprise, or(c) which raises matters of fact not arising out of the preceding pleading.rule 15.13: Am 21.9.1979; 8.10.1982.
14 Contributory negligence
cf GRC, O 30, r 31A.
A defendant who relies on contributory negligence shall plead the contributory negligence.
15 Possession of land: defence
cf RSC (Rev) 1965, O 18, r 8 (2).
In proceedings for the possession of land:(a) a defendant shall plead specifically every ground of defence on which he relies, and(b) it shall not be sufficient for a defendant to state that he is in possession of the land by himself or his tenant.
16 New matter
cf RSC (Rev) 1965, O 18, r 9.
A party may plead any matter notwithstanding that the matter has arisen after the commencement of the proceedings.
17 Departure
(1) A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with a previous pleading of his.cf RSC (Rev) 1965, O 18, r 10 (1).(2) Subrule (1) does not affect the right of a party to make allegations of fact or raise grounds or claims, in the alternative.cf RSC (Rev) 1965, O 18, r 10 (2).
18 Points of law
cf RSC (Rev) 1965, O 18, r 11.
A party may by his pleading raise any point of law.
19 (Repealed)
rule 15.19: Rep 2.6.1972.
Division 4 Progress of pleading
20 Admissions and traverse
(1) Subject to subrule (3), an allegation of fact made by a party in his pleading shall stand admitted by any opposite party required to plead to that pleading unless it is traversed by that opposite party in his pleading or a joinder of issues under rule 21 operates as a denial of it.cf RSC (Rev) 1965, O 18, r 13 (1).(2) A traverse may be made either by a denial or by a statement of non-admission, and either expressly or by necessary implication, and either generally or as to any particular allegation.cf RSC (Rev) 1965, O 18, r 13 (2).(3) Where a pleading makes an allegation of the suffering of damage, or an allegation of an amount of damages, a pleading to that pleading by an opposite party shall be taken to traverse the allegation, unless the allegation is specifically admitted.cf RSC (Rev) 1965, O 18, r 13 (4).
21 Joinder of issue
(1) If there is no reply to a defence, there shall be an implied joinder of issue on that defence.cf RSC (Rev) 1965, O 18, r 14 (1).(2) Subject to subrule (3):(a) there shall be, at the close of pleadings, an implied joinder of issue on the pleading last filed, and(b) a party may in his pleading expressly join issue on the next preceding pleading.cf RSC (Rev) 1965, O 18, r 14 (2).(3) There shall be no joinder of issue on a statement of claim.cf RSC (Rev) 1965, O 18, r 14 (3).(4) A joinder of issue operates as a denial of every allegation of fact made in the pleading on which there is a joinder of issue unless, in the case of an express joinder of issue, any allegation is excepted from the joinder and is stated to be admitted, in which case the express joinder of issue shall operate as a denial of every other allegation of fact.cf RSC (Rev) 1965, O 18, r 14 (4).rule 15.21: Am 26.9.1986; 23.12.1988.
22 Close of pleadings
cf RSC (Rev) 1965, O 18, r 20 (2).
(1) The pleadings on a statement of claim shall, unless the Court otherwise orders, be closed, as between any plaintiff and any defendant, on the date of expiry of the time fixed by or under these rules for filing the next pleading to the pleading last filed in the proceedings between those parties.(2) For the purpose of subrule (1) only, the time for filing by a party of a pleading subsequent to a reply is 14 days after the service on him of the pleading last filed in the proceedings.(3) Subrule (1) shall have effect notwithstanding that on the date mentioned in that subrule a request or order for particulars has been made but has not been complied with.rule 15.22: Am 26.4.1985; 26.9.1986; 23.12.1988 (see erratum 27.1.1989); 19.5.1989.
Division 5 General
23 Verification of certain pleadings
(1) Any party pleading shall, subject to this rule, verify the pleading by affidavit in accordance with this rule.(2) An affidavit verifying a pleading may, subject to this rule, be made:(a) by the party pleading,(b) where the party pleading is a disable person—by his tutor,(c) where the party pleading is a corporation—by a member or officer of the corporation having knowledge of the facts so far as they are known to that corporation,(d) where the party pleading is a body of persons lawfully suing or being sued in the name of the body or in the name of any officer or other person—by a member or officer of the body having knowledge of the facts so far as they are known to that body,(e) where the party pleading is the Crown, an officer of the Crown suing or sued in his official capacity—by an officer of the Crown having knowledge of the facts so far as they are known to the Crown.(3) Where a person has, by subrogation, contract or statute, the right to plead, “party pleading” in subrule (2) includes the person.(4) Subject to subrules (6), (7), (8), (9) and (10), an affidavit verifying a pleading shall:(a) set out the facts entitling the deponent under subrule (2), subrule (3) or both to make the affidavit,(b) state:(i) as to any allegations of fact which the pleading traverses by a denial—that the deponent believes that the allegations are untrue,(ii) as to any allegations of fact which the pleading traverses by statements of non-admission—that, having made reasonable inquiries, the deponent does not know that the allegations are true,(iii) as to any allegations of fact in the pleading—that the deponent believes that the allegations are true.(5) An affidavit verifying a pleading shall be filed with, or subscribed to, the pleading.(6) Where a party pleading is unable in the affidavit verifying his pleading to comply with paragraph (b) of subrule (4), the affidavit may comply with so much of that paragraph as can be complied with and state why the party pleading is unable to comply with the remainder.(7) Subject to any direction made under subrule (9), the filing and serving of an affidavit under subrule (6) shall be a sufficient compliance with the requirements of subrule (1).(8) A party may, within 14 days after service on him of an affidavit under subrule (6) relating to a pleading, apply to the Court for a direction that the party pleading verify or further verify his pleading and for such other directions as may be appropriate.(9) Where a party applies to the Court under subrule (8), the Court may direct the party pleading to file such further affidavit (if any), by such deponent and as to such facts as the Court may determine.(10) The Court may, by order, give leave to a party pleading to file, instead of an affidavit complying with subrule (4), an affidavit by such deponent and as to such facts as the Court may determine.(11) A party may apply for an order under subrule (10) without serving notice of the motion.(12) A party filing an affidavit under subrule (5), subrule (6), or pursuant to leave granted under subrule (10) shall serve the affidavit with the pleading to which it relates.(13) Subrule (1) applies to an amended pleading as it applies to a pleading not amended.(14) Subrule (13) does not affect the application to an amended pleading of any other rule applying to a pleading.(15) In subrule (2) (e), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.(16) Subject to subrule (17), this rule shall not apply to a pleading in proceedings for the recovery of damages for defamation, malicious prosecution or false imprisonment or for the recovery of damages in respect of the death of a person or in respect of personal injuries.(17) In any proceedings for the recovery of damages for defamation, malicious prosecution or false imprisonment or for the recovery of damages in respect of the death of a person or in respect of personal injuries, the Court may order that this rule shall apply to any pleading or all pleadings in the proceedings (including any pleading filed before the order is made) with such variations (if any) as the Court may direct.rule 15.23: Am 2.6.1972. Subst 25.2.1983. Am 23.3.1984; 12.7.1985; 26.9.1986; 23.12.1988; 24.2.1989.
24 Defence of tender
(cf Pt 52, r 13A)
(1) Where, in proceedings on a claim for a liquidated demand, a defence of tender before commencement of the proceedings is pleaded, the defendant shall with the defence pay into Court the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until the amount has been paid into Court.cf RSC (Rev) 1965, O 18, r 16.(1A) Where a tender is made to which section 224 of the Customs Act 1901 of the Commonwealth applies:(a) subrule (1) shall not apply to a defence which pleads the tender, and(b) the amount tendered may be paid into Court when entering the defence.(2) On paying the money into Court the defendant shall file notice of the payment into Court.(3) The plaintiff may accept the money by filing a notice of acceptance.(4) Where the plaintiff accepts the money, the proceedings shall be stayed in relation to the defence.(5) Whether or not accepted, the money shall not be paid out except by order of the Court.cf RSC (Rev) 1965, O 22, r 4 (1) (b).(6) A party filing a notice under this rule shall, on the day of filing, serve the notice on each other party to the proceedings.rule 15.24: Subst 23.6.1989. Am 26.4.1996.
25 (Repealed)
rule 15.25: Rep 29.6.1984.
26 Embarrassment etc
(1) Where a pleading:(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading,(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, orthe Court may at any stage of the proceedings, on terms, order that the whole or any part of the pleading be struck out.(c) is otherwise an abuse of the process of the Court,cf RSC (Rev) 1965, O 18, r 19 (1).(2) The Court may receive evidence on the hearing of an application for an order under subrule (1).
27 General issue abolished
(1) A party shall not plead the general issue.(2) Subrule (1) has effect notwithstanding anything in any Act.
28 Service of pleadings
cf Part 6 rule 5 and Part 9 rule 2.
(1) Each party to any proceedings in the Court who files a pleading shall, on the date of filing, serve the pleading on each other party to the proceedings.(2) In subrule (1) the expression each other party means each party to the proceedings on the originating process or on any cross-claim of whose address for service the party serving has notice but does not include any party against whom judgment has been entered or in respect of whom proceedings are stayed, dismissed or discontinued.(3) Subrule (1) does not affect any other rule requiring service of any pleading on any party.rule 15.28: Ins 23.5.1980. Am 26.9.1986; 23.12.1988.
29 (Repealed)
rule 15.29: Ins 26.9.1986 (see errata 19.12.1986, 30.1.1987). Rep 23.12.1988.
Part 15A Limiting issues
pt 15A (Rules 15A.1–15A.4): Ins 28.1.2000.
1 Putting matters in issue unreasonably
(1) A party to proceedings must not in a pleading or at a trial or 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 trial or hearing made, or put in issue, an allegation of fact must not maintain that allegation or its controversion unless it is reasonable to do so.pt 15A (Rules 15A.1–15A.4): Ins 28.1.2000.
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 controversion, consideration must be given to the steps taken by the party to ascertain whether there is a reasonable basis for doing so.pt 15A (Rules 15A.1–15A.4): Ins 28.1.2000.
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.pt 15A (Rules 15A.1–15A.4): Ins 28.1.2000.
4 Certifying as separate issues
(1) During final submissions at any trial or hearing, a party may request the presiding Judge or Master to certify, at the time of delivering the final or a supplementary judgment, that:(a) identified allegations of fact were made or put in issue, orby another party contrary to rule 1, either generally or from a specified time, and to further certify:(b) identified allegations of fact, or their controversion, were maintained,(c) the party acting contrary to rule 1, and(d) the party in whose favour the certificate is granted.(2) Where:(a) a request is made under subrule (1), andhe or she may by order certify accordingly.(b) the presiding Judge or Master is satisfied that it is appropriate to do so,(3) A certificate may be refused notwithstanding that non compliance with rule 1 is shown.pt 15A (Rules 15A.1–15A.4): Ins 28.1.2000.
Part 16 Particulars
Division 1 General
pt 16, div 1, hdg: Ins 20.9.1991.
1 General
(1) A party pleading shall give the necessary particulars of any claim, defence or other matter pleaded by him.cf RSC (Rev) 1965, O 18, r 12 (1).(2) Rules 1A–5B do not affect the generality of subrule (1).cf RSC (Rev) 1965, O 18, r 12 (1).(3) (Repealed)rule 16.1: Am 21.12.1979; 8.10.1982; 9.12.1983; 20.4.1990.
1A Interest under s 94 of the Act
(1) Subject to subrule (2), rule 1 (1) does not require a party pleading to give particulars of a claim for an order for interest under section 94 of the Act or section 73 of the Motor Accidents Act 1988 or section 137 of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987 (which sections relate to interest up to judgment).(2) Where a party pleading claims for a liquidated demand and for an order for interest under section 94 of the Act on the amount claimed, he shall give particulars of the rate or rates at which, the amount or amounts on which and the period or periods for which, interest is claimed.rule 16.1A: Ins 9.12.1983. Am 25.11.1994; 23.2.1996; 19.11.1999.
2 Fraud etc
cf RSC (Rev) 1965, O 18, r 12 (1) (a).
A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies.
3 Condition of mind
cf RSC (Rev) 1965, O 18, r 12 (1) (b).
(1) A party pleading any condition of mind shall give particulars of the facts on which he relies.(2) In subrule (1) condition of mind includes any disorder or disability of mind, and malice and any fraudulent intention, but does not include knowledge.
4 Negligence: breach of statutory duty
(1) In proceedings on a common law claim for damages in tort, a party pleading negligence (whether contributory or otherwise) or breach of statutory duty shall give particulars of the matter pleaded.cf General Rules of the Court, O 10, r 7A; O 30, r 31B.(2) The particulars required by subrule (1) shall be a statement of the facts but not of the evidence by which the facts are to be proved, on which the party relies as constituting the negligent act or omission or the breach of statutory duty alleged in the pleading.cf GRC O 10, r 7A; O 30, r 31B.(3) If the party relies on more than one negligent act or omission or breach of statutory duty, the particulars required by subrule (1) shall, so far as practicable, state separately each negligent act or omission or breach of statutory duty on which he relies.cf GRC O 10, r 7A; O 30, r 31B.
5 Out of pocket expenses
cf GRC O 10, r 7.
Where, a party pleading claims damages which include moneys which he has paid or is liable to pay, he shall give particulars of those moneys.rule 16.5: Am 24.4.1986.
5A Exemplary damages
cf RSC (Rev) 1965, O 18, r 8 (3).
Where a party pleading claims exemplary damages, he shall give particulars of the facts and matters on which he relies to establish that claim.rule 16.5A: Ins 6.9.1974.
5B Aggravated damages
Where a party pleading claims aggravated compensatory damages, he shall give particulars of the facts and matters on which he relies to establish that claim.rule 16.5B: Ins 23.9.1988.
6 Manner of giving particulars
(1) Where any of rules 1 to 5B require particulars of any pleading to be given, the particulars shall be set out in the pleading or, if that is inconvenient, shall be set out in a separate document referred to in the pleading and that document shall be filed and served with the pleading.cf RSC (Rev) 1965, O 18, r 12 (1), (2).(2) Notwithstanding subrule (1), where the necessary particulars of debt, expenses or damages exceed three folios and have, before the date on which the pleading is filed, been given to the party on whom the pleading is required to be served, and the pleading shows the date on which the particulars were given:(a) subrule (1) shall not require that the particulars be filed or served; but(b) the Court may order that a copy of the particulars be filed and served.cf RSC (Rev) 1965, O 18, r 12 (2).rule 16.6: Am 26.9.1986; 23.12.1988; 20.4.1990.
7 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 his pleading, or in any affidavit ordered to stand as his pleading, or(b) a statement of the nature of the case on which he relies, or(c) where he claims damages, particulars relating to general or other damages.cf RSC (Rev) 1965, O 18, r 12 (3).(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.cf RSC (Rev) 1965, O 18, r 12 (4).(3) The Court shall not make an order under this rule before the filing of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the defendant to plead or for some other special reason.cf RSC (Rev) 1965, O 18, r 12 (5).rule 16.7: Am 6.9.1974; 26.9.1986; 23.12.1988.
Division 2 Interim payments
pt 16, div 2 (Rule 16.8): Ins 20.9.1991.
8 Interim payments
Where an application for an order under section 76E of the Act is made in proceedings in the Common Law Division, the plaintiff shall serve on the defendant against whom the order is sought, no later than the date of filing of notice of the motion:(a) where the application relates to a claim made for damages in respect of personal injuries—the statement and the copies or originals of documents referred to in Part 33 rule 8A (2), or(b) where the application relates to a claim for damages under the Compensation to Relatives Act 1897 which includes a claim for loss of maintenance and support—the statement and the copies or originals of documents referred to in Part 33 rule 8A (4) and shall comply with Section 6 of that Act.pt 16, div 2 (Rule 16.8): Ins 20.9.1991.
Part 16A
1–5 (Repealed)
pt 16A (Rules 16A.1–16A.5): Ins 10.12.1993. Rep 21.8.1998.
Part 17 Default judgment
1 Application
This Part applies to proceedings commenced by statement of claim.
2 Default
cf RSC (Rev) O 13, rr 1–6; O 19, rr 2–7.
A defendant shall be in default for the purposes of this Part:(a) where the originating process bears a note under Part 7 rule 3 and the time for him to enter his appearance has expired but he has not entered his appearance or filed a notice of motion for an order under Part 11 rule 8 (1) (which relates to setting aside originating process, etc),(b) where the Court refuses an application under Part 11 rule 8 (1) (which relates to setting aside an originating process, etc) and the time for him to enter his appearance has expired but he has not entered his appearance,(c) where he is required to file a defence and the time for him to file his defence has expired but he has not filed his defence, or(d) where he is required to file an affidavit under Part 15 rule 23 (which relates to verification of pleadings) in relation to his defence and the time for him to file the affidavit in accordance with that rule has expired but he has not so filed the affidavit.rule 17.2: Am 2.6.1972; 20.10.1972; 25.2.1983; 26.9.1986; 23.12.1988.
3 Procedure on default
cf RSC (Rev) 1965, O 13, rr 1–5; O 19, rr 2–6.
Where a defendant is in default, the plaintiff may:(a) take the steps mentioned in rules 4 to 10 according to the nature of his claim for relief against the defendant in default, and(b) carry on the proceedings against any other party to the proceedings.
4 Liquidated demand
(1) Where the plaintiff’s claim for relief against a defendant in default is for a liquidated demand and the only other claim or claims made against the defendant is or are for an order or orders under section 94 or section 95 of the Act or for costs, the plaintiff, subject to satisfying the requirements of subrule (2), may enter judgment against that defendant for:(a) a sum not exceeding the sum claimed in the statement of claim on that demand,(b) any interest which has been ordered by the Court under section 94, and(c) costs.(2) A plaintiff applying to enter judgment under this rule shall file an affidavit which:(a) is in accordance with the prescribed form,(b) subject to subrule (3), is made by the plaintiff or, where there is more than one plaintiff, by one of them,(c) sets out the facts entitling the deponent under paragraph (b) to make the affidavit,(d) states the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,(e) states that the deponent believes these matters to be true, and(f) is sworn not earlier than 14 days before the day on which it is filed.(3) In subrule (2), in the case of a plaintiff which is:(a) a disable person—an affidavit by the person’s tutor,(b) a corporation—an affidavit by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation,(c) a body of persons lawfully suing or being sued in the name of the body or in the name of any officer or other person—an affidavit by a member or officer of the body having knowledge of the facts so far as they are known to the body,(d) the Crown—an affidavit by an officer of the Crown having knowledge of the facts so far as they are known to the Crown,(e) a company to which a liquidator or provisional liquidator has been appointed—an affidavit by the liquidator or provisional liquidator,is taken to be an affidavit by the plaintiff.(f) not referred to in any of the preceding paragraphs—an affidavit by an employee of the plaintiff having knowledge of the facts so far as they are known to the plaintiff,(4) In subrule (3), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.rule 17.4: Am 1.8.1975; 8.10.1982; 9.12.1983. Subst 23.12.1994. Am 25.10.1996.
5 Unliquidated damages
cf RSC (Rev) 1965, O 13, r 2; O 19, r 3.
Where the plaintiff’s claim for relief against a defendant in default is for unliquidated damages only, the plaintiff may enter judgment against that defendant for damages to be assessed and for costs.
6 Detinue
cf RSC (Rev) 1965, O 13, r 3; O 19, r 4.
Where the plaintiff’s claim for relief against a defendant in default relates to the detention of goods only, the plaintiff may enter judgment against that defendant, within the limits of the plaintiff’s claim for relief, either:(a) for delivery of the goods or their value to be assessed and for costs, orat the option of the plaintiff.(b) for the value of the goods to be assessed and for costs,
7 Possession of land
(1) Where the plaintiff’s claim for relief against a defendant in default is for possession of land only, the plaintiff may, subject to Part 40 rule 11, enter judgment for possession of land as against that defendant and for costs.cf RSC (Rev) 1965, O 13, r 4 (1); O 19, r 5 (1).(2) Where, before entry of judgment under subrule (1), any person has filed notice of motion for his addition as a defendant, a plaintiff shall not enter judgment under that subrule until the motion is disposed of.rule 17.7: Subst 4.5.1973.
8 Mixed claims
cf RSC (Rev) 1965, O 13, r 5; O 19, r 6.
Where the plaintiff’s claims for relief against a defendant in default include two or more of the claims for relief mentioned in rules 4 to 7, and no other claim, the plaintiff may enter such judgment against that defendant on any of those claims for relief as he would be entitled to enter under those rules if that were the plaintiff’s only claim for relief against that defendant.
9 General
(1) Whatever claims for relief are made by a plaintiff, where a defendant is in default, the Court may, on application by the plaintiff, give such judgment against that defendant as the plaintiff appears to be entitled on his statement of claim.cf RSC (Rev) 1965, O 13, r 6 (1); O 19, r 7 (1).(2) Notwithstanding subrule (1), the Court shall not, under that subrule, give judgment for the possession of land unless satisfied of the matters mentioned in Part 40 rule 11.rule 17.9: Am 4.5.1973; 30.3.1990.
10 Judgment for costs alone
(1) Where, under any of rules 4 to 8, a plaintiff is entitled to enter judgment against a defendant in default for any relief and for costs, but it appears by affidavit that by reason of the defendant having satisfied the claims of the plaintiff it is unnecessary for the plaintiff to continue the proceedings against that defendant, the plaintiff may enter judgment against that defendant for costs alone.(2) Whatever claims for relief are made by a plaintiff, where a defendant satisfies the claims of the plaintiff or complies with the demands of the plaintiff or for some other reason it becomes unnecessary for the plaintiff to continue the proceedings against that defendant, but the defendant is in default, the Court may, on application by the plaintiff, give judgment against that defendant for costs.cf RSC (Rev) 1965, O 13, r 6 (2).(3) Part 9 rule 12 (which relates to service by filing) does not apply to service of notice of a motion for judgment under subrule (2).cf RSC (Rev) 1965, O 13, r 6 (3).rule 17.10: Am 30.3.1990.
Part 18 Admissions
1 Voluntary admission
(1) A party to proceedings may, by notice served on another party, admit, in favour of the other party, but for the purpose of the proceedings only, the facts specified in the notice.cf RSC (Rev) 1965, O 27, r 1.(2) A party may, with the leave of the Court, withdraw an admission under subrule (1).
2 Notice to admit facts
(1) A party to proceedings may, by notice served on another party, require him to admit, for the purpose of the proceedings only, the facts specified in the notice.cf RSC (Rev) 1965, O 27, r 2 (1).(2) If, as to any fact specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit facts, a notice disputing that fact, that fact shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit facts is served in favour of the party serving the notice.(3) A party may, with the leave of the Court, withdraw an admission under subrule (2).
3 Judgment on admissions
(1) Where admissions are made by a party, whether by his pleading or otherwise, the Court may, on the application of any other party, give any judgment or make any order to which the applicant is entitled on the admissions.cf RSC (Rev) 1965, O 27, r 3.(2) The Court may exercise its powers under subrule (1) notwithstanding that other questions in the proceedings have not been determined.cf RSC (Rev) 1965, O 27, r 3.rule 18.3: Am 30.3.1990.
4 Admission of documents discovered
(1) Where a list of documents is served on a party under Part 23 (which relates to discovery and inspection of documents), and inspection of any document specified in the list is permitted to that party under that Part, then, subject to subrule (2), the following admissions by that party in favour of the party serving the list shall have effect unless the Court otherwise orders:(a) that the document, if described in the list as an original document, is an original document and was printed, written, signed or executed as it purports to have been, or(b) that the document, if described in the list as a copy, is a true copy.cf RSC (Rev) 1965, O 27, r 4 (1).(2) Where a party:(a) has by his pleading denied the authenticity of a document, orsubrule (1) does not work an admission by the firstmentioned party as to that document.(b) within 14 days after the time limited under Part 23 for inspection of a document, serves on the party giving inspection a notice that he disputes the authenticity of the document,cf RSC (Rev) 1965, O 27, r 4 (1), (2).(3) Where a party serves on another party a list of documents pursuant to Part 23, those parties shall be in the position that they would be in if the latter party had, on the date of service of the list, served on the party serving the list a notice requiring production at the trial of such of the documents specified in the list as are in the possession, custody or power of the party serving the list.cf RSC (Rev) 1965, O 27, r 4 (3).(4) Subrules (1), (2) and (3) apply in relation to an affidavit made in compliance with an order under Part 23 rule 7 (which relates to discovery of particular documents) as they apply in relation to a list of documents served under that Part.cf RSC (Rev) 1965, O 27, r 4 (4).
5 Notice to admit documents
(1) A party to proceedings may, by notice served on another party, require him to admit, for the purpose of those proceedings only, the authenticity of the documents specified in the notice.cf RSC (Rev) 1965, O 27, r 5 (1).(2) If, as to any document specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit documents, a notice disputing the authenticity of the document, the document shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit documents is served.cf RSC (Rev) 1965, O 27, r 5 (2), (3).(3) A party may, with the leave of the Court, withdraw an admission under subrule (2).cf RSC (Rev) 1965, O 27, r 5 (3).
6 Restricted effect of admission
cf RSC (Rev) 1965, O 27, r 2 (2).
An admission under this Part 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.
Part 19 Motions
1 Application
(1) An interlocutory or other application, in or for the purposes of or in relation to proceedings commenced by statement of claim or by summons, shall be made by motion.(2) In this Part, the person making the application is referred to as the applicant and any other party to the application is referred to as a respondent.rule 19.1: Am 24.5.1974; 24.2.1995.
2 Notice
(1) Subject to subrules (2) and (3), a person shall not move the Court for any order unless before moving he or she has filed notice of the motion and has served the notice on each respondent.(2) A person may move the Court without previously filing or serving notice of the motion:(a) where the preparation of the notice, or the filing or service (as the case may be) of the notice would cause undue delay or other mischief to the applicant,(b) where each respondent consents to the order,(c) where under these rules or the practice of the Court for the time being the motion may properly be made without the prior filing or service (as the case may be) of notice of the motion, or(d) where the Court dispenses with the requirements of subrule (1).(3) A respondent who is a party to the proceedings and is in
default of appearance need not be served unless an order is sought requiring that respondent to do, or to refrain from doing, some act.(4) 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 makes an order under rule 3, bear a note of the order made,(c) state concisely the nature of the order which is sought,(d) name (or if a party to the proceedings, identify) the applicant and each respondent, and(e) where the applicant does not already have an address for service in the proceedings, state an address for service.(5) Costs need not be specifically claimed.rule 19.2: Am 2.6.1972. Subst 24.2.1995.
3 Time for service of notice
cf RSC (Rev) 1965, O 8, r 2 (2); O 32, r 3.
Where notice of a motion is required to be served, it shall, unless the Court otherwise orders, be served not less than three days before the date fixed for the motion.
4 Service
Where notice of a motion is required to be served on a person who has not entered an appearance, the notice shall be served personally.rule 19.4: Am 24.2.1995.
5 Absence of party
The Court may hear and dispose of a motion in the absence of any party to the motion where notice of the motion has been duly served on the absent party.rule 19.5: Subst 24.2.1995.
6 (Repealed)
rule 19.6: Rep 2.6.1972.
7 Notice of adjournment
Where notice of motion has been served for any date or the hearing of a motion has been adjourned to any date and, before that date, any party to the motion files a request, bearing the consent of each other party to the motion, for an adjournment in accordance with this rule, the hearing of the motion shall stand adjourned to the date specified in the notice or to such later date as the Court may appoint.rules 19.7, 19.8: Am 24.2.1995.
8 Further hearing
(1) Where notice of a motion for any day has been filed or served, and the motion is not disposed of on that day:(a) the Court may hear and dispose of the motion on any later day fixed by the Court, and(b) subject to subrule (2), filing or service of further notice of motion shall not be required.(2) Subrule 1 (b) shall not have effect:(a) where the Court directs the filing or service of a further notice of motion, or(b) where service is required on a person on whom notice of the motion has not previously been served.rules 19.7, 19.8: Am 24.2.1995.
Part 20 Amendment
1 General
cf RSC (Rev) 1965, O 20, r 8 (2).
(1) The Court may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the Court thinks fit.cf RSC (Rev) 1965, O 20, rr 5 (1), 8 (1).(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.cf 15 & 16 Geo 5, c 49, s 43; RSC (Rev) 1965, O 20, r 8 (1); Cth Act No 7, 1903, s 23.(3) Where there has been a mistake in the name of a party, subrule (1) applies to the person intended to be made a party as if he were a party.(3A) An order may be made, or leave may be granted, under subrule (1) notwithstanding that the effect of the amendment is, or would be, to add or substitute a cause of action arising after the commencement of the proceedings, but in such a case the date of commencement of the proceedings, so far as concerns that cause of action, shall, subject to rule 4, be the date on which the amendment is made.(4) This rule does not apply to the amendment of a minute of a judgment or order or of a certificate.rule 20.1: Am 16.3.1990; 24.11.1995; 25.10.1996.
2 Amendment of pleading
cf RSC (Rev) 1965, O 20, r 12.
(1) A party pleading may, without leave, amend the pleading once at any time before the pleadings are closed.cf RSC (Rev) 1965, O 20, r 3 (1).(2) A party pleading may, subject to subrules (5) and (6), by consent of the parties, amend the pleading at any stage of the proceedings.(2A) (Repealed)(3) A plaintiff filing a summons or a cross-claim to which Part 6 Division 3 applies may, subject to subrules (5) and (6), by consent of the parties, amend the summons or cross-claim at any stage of the proceedings.(4) Subject to subrules (5) and (6), this rule applies to an amendment which would have the effect that a person is added as, or ceases to be, a party, as it applies to other amendments.(5) This rule does not apply to an amendment which would have the effect of adding a person as a plaintiff unless:(a) the plaintiff immediately before the amendment is made acts by a solicitor,(b) that solicitor at the time the amendment is made certifies on the amended document:(i) that he acts for the person added as a plaintiff, and(ii) that the person consents to being added as a plaintiff.(6) This rule does not apply to an amendment which would have the effect that a person ceases to be a party unless that person consents to ceasing to be a party.rule 20.2: Subst 7.5.1982; 19.12.1986. Am 16.3.1990; 15.2.1991; 15.3.1991.
2A Pleading by opposite party
(1) This rule applies, subject to any order of the Court, where a party amends pursuant to or without the leave of the Court.(2) Where a plaintiff amends his statement of claim:(a) if the defendant has filed his defence, he may amend his defence, and(b) the time for filing his defence or amended defence, as the case may be, shall be either the time fixed by or under these rules for filing his defence or 14 days after service on him under rule 9, whichever expires later.cf RSC (Rev) 1965, O 20, r 3 (2).(3) Where a defendant amends his defence:(a) if the plaintiff has filed a reply, he may amend his reply, and(b) the time for filing his reply or amended reply, as the case may be, shall be either the time fixed by or under these rules for filing his reply or 14 days after service on him under rule 9, whichever expires later.cf RSC (Rev) 1965, O 20, r 3 (3).(4) The rights to amend under subrule (2) (a) and subrule (3) (a) are in addition to the right to amend under rule 2.(5) Where the following is the order of events:(a) a party (in this rule called the first party) files a pleading (in this rule called the first pleading),(b) an opposite party files a pleading (in this rule called the second pleading) in answer (whether by way of defence, reply or otherwise) to the first pleading,(c) the first party amends the first pleading,then:(d) the opposite party does not amend the second pleading within the time allowed by this rule,(e) the second pleading shall have effect as a pleading in answer to the amended first pleading, and(f) Part 15 rule 21 (2) (a) shall not apply, but, if no further pleading between those parties is filed, there shall be, at the close of pleadings, an implied joinder of issue on the second pleading.rule 20.2A: Ins 7.5.1982. Am 26.9.1986 (see erratum 30.1.1987); 23.12.1988.
3 Disallowance of amendment
(1) Where a party amends his pleading under rule 2 (1) or rule 2A, the Court, on application by an opposite party, may, subject to subrule (2), by order disallow the amendment.cf RSC (Rev) 1965, O 20, r 4 (1), (3).(2) Notice of a motion under subrule (1) shall be filed and served within 14 days after the date of service on the applicant under rule 9.cf RSC (Rev) 1965, O 20, r 4 (1).(3) Where, on the hearing of an application under subrule (1), the Court is satisfied that, if an application for leave to make the amendment had been made under rule 1 (1) on the date on which the amendment was made under rule 2 (1) or rule 2A, the Court would not have given leave to make the whole or some part of the amendment, the Court shall disallow the amendment or that part, as the case may be.cf RSC (Rev) 1965, O 20, r 4 (2).rule 20.3: Am 7.5.1982; 19.12.1986; 16.3.1990.
4 Statutes of limitation
(1) Where any relevant period of limitation expires after the date of filing of a statement of claim and after that expiry an application is made under rule 1 for leave to amend the statement of claim by making the amendment mentioned in any of subrules (3), (4) and (5), the Court may in the circumstances mentioned in that subrule make an order giving leave accordingly, notwithstanding that that period has expired.cf RSC (Rev) 1965, O 20, r 5 (2).(2) (Repealed)(3) Where there has been a mistake in the name of a party and the Court is satisfied that the mistake was not misleading or such as to cause reasonable doubt as to the identity of the person intended to be made a party, the Court may make an order for leave to make an amendment to correct the mistake, whether or not the effect of the amendment is to substitute a new party.cf RSC (Rev) 1965, O 20, r 5 (3).(4) Where, on or after the date of filing a statement of claim, the plaintiff is or becomes entitled to sue in any capacity, the Court may order that the plaintiff have leave to make an amendment having the effect that he sues in that capacity.cf RSC (Rev) 1965, O 20, r 5 (4).(5) Where a plaintiff, in his statement of claim, makes a claim for relief on a cause of action arising out of any facts, the Court may order that he have leave to make an amendment having the effect of adding or substituting a new cause of action arising out of the same or substantially the same facts and a claim for relief on that new cause of action.cf RSC (Rev) 1965, O 20, r 5 (5).(5A) An amendment made pursuant to an order made under this rule shall, unless the Court otherwise orders, relate back to the date of filing the statement of claim.(6) This rule has effect in relation to a summons as it has effect in relation to a statement of claim.(7) This rule does not limit the powers of the Court under rule 1.rule 20.4: Am 20.10.1972; 5.12.1975; 27.4.1984; 20.10.1989; 25.10.1996.
5 Duration of leave or consent
(1) Subject to Part 2 rule 3 (which relates to the extension and abridgment of time), where the Court makes an order giving a party leave to amend a document, then, if the party does not amend the document in accordance with the order before the expiration of the period specified for that purpose in the order or, if no period is so specified, before the expiration of 14 days after the date on which the order is made, the order shall cease to have effect.cf RSC (Rev) 1965, O 20, r 9.(2) Subject to Part 2 rule 3, where, at the request of a party, each other party gives consent to amend a document, then, if the requesting party does not amend the document in accordance with the consent or consents before the expiration of 14 days after the date on which the consent or the first of the consents is given, the consent or consents shall cease to have effect.rule 20.5: Am 20.10.1989; 16.3.1990.
6 Mode of amendment—directions
(1) Where the Court orders, or gives leave for, the making of an amendment, the Court may give such directions as it thinks fit concerning the mode of amendment and consequential service of the amended document or of notice of the amendment.(2) Rules 7, 8 and 9 have effect subject to subrule (1).
7 Mode of amendment—simple amendments
(1) Where the amendments to be made to a document are not so numerous or lengthy or otherwise of such nature as to render the document difficult or inconvenient to read and the document has been filed, the amendments may be made by writing the alterations in the document.(2) A filed document amended under this rule shall be marked with a statement specifying the date of the amendment and:(a) if the amendment is made pursuant to an order—the date of the order, or(b) otherwise—a reference to the rule authorising the amendment.rule 20.7: Am 26.9.1986; 20.10.1989; 25.10.1996.
8 Mode of amendment—fresh document
Subject to rule 7 (1), amendments to a filed document shall be made by filing a fresh document, amended as so authorised, and bearing a statement specifying the matters mentioned in rule 7 (2).rule 20.8: Am 20.10.1989.
9 Service after amendment
Where a document has been served and is afterwards amended, the party making the amendment shall, on the day on which the amendment is made, serve on the parties on whom the document was served:(a) if the amendment is made under rule 7—a notice specifying the amendments and the matters mentioned in rule 7 (2), or(b) if the amendment is made under rule 8—the fresh document.rule 20.9: Am 26.8.1988.
10 Minute of judgment or order
cf RSC (Rev) 1965, O 20, r 11.
(1) Where there is a clerical mistake, or an error arising from an accidental slip or omission, in a minute of a judgment or order, or in a certificate, the Court, on the application of any party or of its own motion, may, at any time, correct the mistake or error.(2) Rules 7, 8 and 9 do not apply to a correction made under subrule (1).rule 20.10: Am 2.6.1972; 25.10.1996.
Part 21 Withdrawal and discontinuance
1 Withdrawal of appearance
cf RSC (Rev) 1965, O 21, r 1.
A party who has entered an appearance may withdraw the appearance at any time with the leave of the Court.
2 Discontinuance
A party making a claim for relief may, before the beginning of the trial or hearing of the proceedings on the claim (but not otherwise), discontinue the proceedings so far as concerns the whole or any part of any claim for relief made by him:(a) where he or his solicitor certifies that he does not represent any other person and all other parties having an address for service in the proceedings consent, or(b) with the leave of the Court.rule 21.2: Am 2.6.1972. Subst 20.12.1974; 12.7.1985. Am 16.3.1990.
3 Withdrawal of defence, reply etc
cf RSC (Rev) 1965, O 21, r 2 (2) (a).
(1) A party raising any matter in a defence or subsequent pleading may withdraw that matter at any time.(2) Subrule (1) does not enable a party to withdraw, without the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of that other party.
4 (Repealed)
rule 21.4: Rep 25.10.1996.
5 Mode of discontinuance or withdrawal
(1) A discontinuance or withdrawal under rule 2 or rule 3 shall be made by filing a notice stating the extent of the discontinuance or withdrawal.cf RSC (Rev) 1965, O 21, r 2 (1), (2), (4).(2) Where the discontinuance or withdrawal is by consent, the notice under subrule (1) must bear the consent of each consenting party.cf RSC (Rev) 1965, O 21, r 2 (4).(3) A notice under subrule (1) effecting a discontinuance under rule 2 (a) may contain a statement that no order will be sought as to the costs occasioned by the discontinued claim and incurred before service of the notice.rule 21.5: Am 2.4.1993; 25.10.1996.
6 Service
cf RSC (Rev) 1965, O 21, r 2 (1), (2).
A party filing a notice under rule 5 shall, as soon as practicable, serve the notice on each other party.rule 21.6: Am 25.10.1996.
7 Effect of discontinuance
cf RSC (Rev) 1965, O 21, r 4.
A discontinuance under this Part as to any cause of action shall not, subject to the terms of any consent to the discontinuance or of any leave to discontinue, prevent the claimant from bringing fresh proceedings or claiming the same relief in fresh proceedings.rule 21.7: Am 12.7.1985; 25.10.1996.
8 Stay to secure costs
cf RSC (Rev) 1965, O 65, r 5 (1).
Where:(a) a party discontinues proceedings so far as concerns the whole or any part of any claim for relief,(b) he is, by reason of the discontinuance, liable to pay the costs of another party occasioned by the proceedings, 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 cause of action as that on which the discontinued proceedings were brought,
Part 22 Offer of Compromise
pt 22: Subst 23.6.1989.
pt 22, Heading: Am 31.8.1984. Subst 23.6.1989.
Division 1 Offer to compromise non-costs claim
pt 22, div 1, hdg: Ins 10.12.1993.
1 General
Subject to Division 2:(a) this Division does not apply to an offer to compromise a party’s entitlement, under the rules or an order, to costs, and(b) if an offer of compromise made under this Division contains a term which purports to negative or limit the operation of Part 52A rule 22 (1), that offer shall be of no effect for any purpose under this Division or Part 52A rule 22.rule 22.1: Ins 10.12.1993. Am 24.6.1994.
1A Mode of making offer
(1) An offer of compromise is made to a party under this Division by serving a notice of the offer on the party.(2) A notice of offer shall:(a) be prepared in accordance with Part 65 rules 1–4,(b) bear a statement to the effect that the offer is made in accordance with this Division, and(c) where the offeror has made or been ordered to make an interim payment referred to in Division 2 of Part 5 of the Act to the offeree, state whether or not the offer is in addition to the payment so made or ordered.rule 22.1A (previously Rule 22.1): Am 31.8.1984. Subst 23.6.1989. Am 20.9.1991. Renumbered 10.12.1993. Am 10.12.1993 (see errata 24.12.1993).
2 Application
In any proceedings the plaintiff or the defendant may make to the other an offer to compromise any claim in the proceedings on the terms specified in the notice of offer.rule 22.2: Am 21.12.1979; 31.8.1984. Subst 23.6.1989. Am 19.4.1991.
3 Time for making or accepting offer
(cf Pt 52, r 17: costs)
(1) An offer may be made at any time before the time prescribed by subrule (8) in respect of the claim to which it relates.(2) A party may make more than one offer.(3) An offer may be expressed to be limited as to the time it is open to be accepted but the time expressed shall not be less than 28 days after it is made.(4) (Repealed)(5) An offeree may accept the offer by serving notice of acceptance in writing on the offeror before:(a) the expiration of the time specified in accordance with subrule (3) or, if no time is specified, the expiration of 28 days after the offer is made, orwhichever is sooner.(b) the time prescribed by subrule (8) in respect of the claim to which the offer relates,(6) An offer shall not be withdrawn during the time it is open to be accepted, unless the Court otherwise orders.(7) An offer is open to be accepted within the period referred to in subrule (5) notwithstanding that during that period the party to whom the offer (the first offer) is made makes an offer (the second offer) to the party who made the first offer whether or not the second offer is made in accordance with this Division.(8) The time prescribed for the purposes of subrules (1) and (5) and Part 52A rule 22 (3) is:(a) where the trial is before a jury—after the Judge begins to sum up to the jury,(b) where the proceedings have been referred under section 76B (1) of the Act for determination pursuant to the Arbitration (Civil Actions) Act 1983—after the conclusion of the arbitration hearing, or(c) in any other case—after the Judge or master gives his decision or begins to give his reasons for decision on a judgment (except an interlocutory judgment).(9) Where an offer is accepted under this rule, any party to the compromise may enter judgment accordingly.rule 22.3: Am 29.3.1974. Subst 23.6.1989. Am 19.4.1991; 16.8.1991; 10.12.1993 (see erratum 24.12.1993); 24.6.1994; 29.11.1996.
4 Time for payment
An offer providing for the payment of a sum of money, or for the doing of any other act, shall, unless the notice of offer otherwise provides, be taken to provide for the payment of that sum or the doing of that act within 28 days after acceptance of the offer.rule 22.4: Subst 23.6.1989; 14.12.1990.
5 Withdrawal of acceptance
(1) A party who accepts an offer may, by serving a notice of withdrawal on the offeror, withdraw the acceptance:(a) where the offer provides for payment of a sum of money or the doing of any other act and the sum is not paid to the offeree or into Court or the act is not done within 28 days after acceptance of the offer or within such other time as the offer provides, or(b) where the Court gives leave so to do.(2) On withdrawal of an acceptance all steps in the proceedings taken in consequence of the acceptance shall have such effect only as the Court may direct.(3) On withdrawal of an acceptance or on the motion for leave to withdraw an acceptance, the Court may:(a) give directions under subrule (2),(b) gives directions for restoring the parties as nearly as may be to their positions at the time of the acceptance, and(c) give directions for the further conduct of the proceedings.rule 22.5: Am 31.8.1984. Subst 23.6.1989. Am 22.9.1989; 14.12.1990.
6 Offer without prejudice
An offer made in accordance with this Division shall be taken to have been made without prejudice, unless the notice of offer otherwise provides.rule 22.6: Subst 23.6.1989. Am 10.12.1993.
7 Disclosure of offer to Court
(1) No statement of the fact that an offer has been made shall be contained in any pleading or affidavit.(2) Where an offer has not been accepted, then, subject to subrule (3), no communication with respect to the offer shall be made to the Court at the trial or, as the case may require, to the arbitrator.(3) An offer made in accordance with this Part may be disclosed to the Court or, as the case may require, to the arbitrator:(a) for the purposes of Part 52A rule 22 (4) or (6)—after all questions of liability and the relief to be granted have been determined,(b) as provided by Part 52A rule 22 (9),(c) where a notice of offer provides that the offer is not made without prejudice, or(d) in so far as disclosure is necessary to enable the offer to be taken into account for the purposes of section 94 (3) of the Act or section 73 (4) of the Motor Accidents Act 1988 or section 137 (4) of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987.rule 22.7: Am 2.6.1972. Subst 23.6.1989. Am 24.5.1991; 16.8.1991; 27.3.1992; 24.6.1994; 25.11.1994; 23.2.1996; 19.11.1999.
8 Failure to comply with accepted offer
(1) Where a party to an accepted offer fails to comply with the terms of the offer, then, unless for special cause the Court otherwise orders, the other party shall be entitled, as he may elect, to:(a) such judgment or order as is appropriate to give effect to the terms of the accepted offer, or(b) where the party in default is the plaintiff, an order that the proceedings be dismissed, and, where the party in default is the defendant, an order that the defence be struck out, and in either case to judgment accordingly.(2) Where a party to an accepted offer fails to comply with the terms of the offer, and a defendant in the proceeding has made a cross-claim which is not the subject of the accepted offer, the Court may make such order or give such judgment under subrule (1) and make such order that the proceeding on the cross-claim be continued as it thinks fit.rule 22.8: Am 31.8.1984. Subst 23.6.1989. Am 14.12.1990; 25.10.1996.
9 Multiple defendants
Where two or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a debt or damages and rights of contribution or indemnity appear to exist between the defendants, Part 52A rule 22 shall not apply to an offer unless:(a) in the case of an offer made by the plaintiff—the offer is made to all defendants, and is an offer to compromise the claim against all of them,(b) in the case of an offer made to the plaintiff:(i) the offer is to compromise the claim against all defendants, and(ii) where the offer is made by two or more defendants—by the terms of the offer the defendants who made the offer are jointly or jointly and severally liable to the plaintiff for the whole amount of the offer.rule 22.9, headnote: Subst 31.8.1984. Rep 23.6.1989.rule 22.9: Am 22.8.1986. Subst 23.6.1989. Am 24.6.1994.
Division 2 Offer to compromise costs claim
pt 22, div 2, hdg: Ins 10.12.1993.
10 Costs offer before bill served
Where:(a) the defendant makes an offer to the plaintiff under rule 2 (a principal offer) to compromise a claim by the plaintiff,(b) at:(i) the same time, orthe defendant makes to the plaintiff an offer to compromise the plaintiff’s entitlement to costs in respect of the claim (a costs offer),(ii) any subsequent time prior to service on the defendant of the plaintiff’s bill of costs in respect of the claim,(c) the costs offer includes a statement that it is made in accordance with this rule,(d) the principal offer is accepted and the costs offer is not accepted,(e) the plaintiff’s costs in respect of the claim are taxed, andthe costs offer shall, for the purposes of Part 52 rule 40 (2), be a successful costs offer.(f) the taxing officer is of the opinion that the costs offer was in an amount not less than the amount of costs allowable to the plaintiff in respect of the claim, other than the costs relating to the taxation,rules 22.10, 22.11: Rep 23.6.1989. Ins 10.12.1993.
11 Costs offer after bill served
(1) After service of a bill of costs in proceedings, the party entitled to the costs or the party liable to pay them may serve on the other an offer of compromise under rule 2 in respect of the amount of the costs to be taxed and Division 1 and Part 52 rule 17 shall, with any necessary modification, apply as if the decision of the taxing officer were the decision of a Judge.(2) The operation of this rule is subject to the exercise of the taxing officer’s discretion under Part 52 rule 40 (2).rules 22.10, 22.11: Rep 23.6.1989. Ins 10.12.1993.
Division 3 Offer to contribute
pt 22, div 3, hdg: Ins 25.10.1996.
12 Offer to contribute
(1) Where in any proceedings:(a) a party (the first party) stands to be held liable to another party (the second party) to contribute towards any debt or damages which may be recovered against the second party in the proceedings,(b) the first party, at any time after entering an appearance, makes an offer to the second party to contribute to a specified extent to the debtor damages, andthe offer shall not be brought to the attention of the Court or, as the case may require, to the arbitrator, until all questions of liability or amount of debt or damages have been decided.(c) the offer is made without prejudice to the first party’s defence,cf RSC (Rev) 1965, O 16, r 10.(2) In subrule (1), a reference to debt or damages includes a reference to interest claimed:(a) under section 94 of the Act, on the debt, or(b) under section 94 of the Act or section 73 of the Motor Accidents Act 1988 or section 137 of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987, on the damages.rule 22.12, headnote: Subst 31.8.1984. Rep 23.6.1989. Ins 25.10.1996.rule 22.12: Am 2.6.1972. Subst 9.12.1983. Am 31.8.1984. Rep 23.6.1989. Ins 25.10.1996 (see erratum 29.11.1996). Am 19.11.1999.
13–15 (Repealed)
rule 22.13: Rep 23.6.1989.
rule 22.14: Am 2.6.1972; 6.9.1974; 21.10.1977; 8.10.1982; 9.12.1983; 31.8.1984; 21.12.1984; 20.12.1985; 27.6.1986; 22.8.1986 (see erratum 3.10.1986); 23.10.1987; 19.2.1988; 24.2.1989. Rep 23.6.1989.
rule 22.15: Rep 23.6.1989.
Part 23 Discovery and inspection of documents
pt 23: Subst 19.7.1996.
1 Definitions
In this Part:(a) document includes any part of a document,(b) excluded documents means in relation to proceedings, subject to any order of the Court to the contrary:(i) any document filed in the proceedings and any copy thereof,(ii) any document served on the party A (as described in rule 3 (1)) after the commencement of the proceedings and any copy thereof,(iii) any document which wholly came into existence after the commencement of the proceedings,(iv) any additional copy of a document included in a list of documents under rule 3 (5), which contains no mark, deletion or other matter, relevant to a fact in issue, not present in the document so included, and(v) any document comprising an original written communication sent by party B prior to the date of commencement of the proceedings of which a copy is included in a list of documents under rule 3 (5),(c) privileged document means in relation to proceedings, unless and until the Court directs that it cease to be a privileged document:(i) a document of which evidence could not be adduced in the 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 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:(A) the disclosure of the contents of which,(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,(d) a document or matter is to be taken to be relevant to a fact in issue if it could, or contains material which could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of a witness), regardless of whether the document or matter would be admissible in evidence.rule 23.1: Am 23.3.1984; 26.9.1986; 24.5.1991. Subst 19.7.1996. Am 23.8.1996; 27.8.1999; 19.11.1999.
2 Notice to produce for inspection
(1) A party (party A) may by notice served on another party (party B) require party B to produce for the inspection of party A:(a) any document (other than a privileged document) referred to in any originating process, pleading, affidavit or witness statement filed or served by party B,(b) any other specific document (other than a privileged document) clearly identified in the notice, relevant to a fact in issue.(2) The maximum number of documents which party A may require party B to produce in reliance on subrule (1) (b), whether by one or more notices, is 50.(3) Party B, upon being served with a notice under subrule (1), shall within a reasonable time:(a) produce for the inspection of party A such of the documents as are in the possession, custody or power of party B,(b) in respect of any document which is not produced, serve on party A a notice stating in whose possession the document is, to the best of the knowledge, information and belief of party B, or that party B has no knowledge, information or belief as to that matter.(4) A notice under subrule (1) may specify a time for production of all or any of the documents required to be produced. If the time specified is 14 days or longer after service of the notice it is to be taken to be a reasonable time for the purpose of subrule (3) unless the contrary is shown. If the time specified is less than 14 days after service of the notice it is to be taken to be less than a reasonable time unless the contrary is shown.rule 23.2: Am 26.9.1986. Subst 19.7.1996.
3 Order for discovery
(1) The Court may, on the application of a party or of its own motion, order that any party (party B) give discovery to any other party (party A) or parties (each of which is included in the expression “party A”) of:(a) documents within a class or classes specified in the order,(b) one or more samples (selected in such manner as the Court may specify) of documents within such a class.(2) A class of documents shall not be specified in more general terms than the Court considers to be justified in the circumstances.(3) Subject to subrule (2), a class of documents may be specified:(a) by relevance to one or more facts in issue,(b) by description of the nature of the documents and the period within which they were brought into existence,(c) in such other manner as the Court considers appropriate in the circumstances.(4) The effect of an order for discovery under subrule (1) is that the parties involved are required to comply with the succeeding provisions of this rule.(5) Party B must, within 28 days of the order being made (or of notice of the order being received by party B, if party B was not present or represented when the order was made) or such other period as the Court may specify, serve on party A:(a) a list, complying with subrule (6), of all the documents or samples specified in the order (other than excluded documents) which:(i) are in the possession, custody or power of party B, or(ii) are not, but were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of party B,(b) an affidavit made in accordance with subrule (7) stating:(i) that the deponent has made reasonable enquiries and:(A) believes that there are no documents (other than excluded documents) falling within any of the classes specified in the order which are, or were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of party B other than those referred to in the list of documents,(B) believes that the documents in part 1 of the list are within the possession, custody or power of party B,(C) believes that the documents in part 2 of the list are within the possession or power of the persons (if any) respectively specified in that part,(D) as to any document in part 2 in respect of which no such person is specified, that the deponent has no belief as to whose possession or power the document is in, and(ii) in respect of any document which are claimed to be privileged documents, the facts relied on as establishing the existence of the privilege, and(c) where party B is represented by a solicitor, a certificate by that solicitor stating:(i) that the solicitor has advised party B as to the obligations arising under an order for discovery (and where party B is a corporation, which officers of party B have been so advised), and(ii) that the solicitor is not aware of any documents within any of the classes specified in the order (other than excluded documents) which are, or were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of party B, other than those referred to in the list of documents.(6) The list of documents shall:(a) be divided into two parts, of which part 1 relates to documents in the possession, custody or power of party B, and part 2 relates to documents which are not, but were later than 6 months prior to the commencement of the proceedings, in the possession, custody or power of party B,(b) include a brief description by reference to nature and date (or period) of each document or group of documents, and in the case of a group, the number of documents in that group,(c) specify against the description of each document or group in part 2 of the list the person (if any) in whose possession the document or group of documents is believed to be,(d) identify any document or group of documents which is claimed to be privileged, and specify:(i) any provision of Part 3.10 of the Evidence Act 1995 under which the privilege is claimed to arise, or(ii) the circumstances which it is claimed bring the document or group of documents within rule 1 (c) (ii) or (iii).(7) The affidavit shall be made:(a) where party B is a natural person and not a disable person—by party B,(b) where party B is a disable person—by party B’s tutor,(c) where party B is a corporation—by an officer of the corporation having knowledge of the facts so far as they are known to the corporation, or by its liquidator or provisional liquidator,(d) where party B is the Crown—by an officer of the Crown having knowledge of the facts so far as they are known to the Crown.(8) If any time after the affidavit is made, and before the end of the trial or hearing, party B becomes aware:(a) that any document within the class or classes specified in the order (not being an excluded document) but not included in part 1 of the list of documents is within, or has come into, party B’s possession, custody or power, orparty B shall thereupon give written notice to party A of that fact and comply with subrule (10) in respect of the document, as if that document had been included in part 1 of the list of documents and the list had been served on the date of the giving of such notice.(b) that any document included in part 1 of the list of documents which was claimed to be a privileged document, was not, or has ceased to be, a privileged document,(9) Party B shall ensure that the documents described in part 1 of the list (other than privileged documents) are:(a) at the time the list of documents is served on party A and for a reasonable time thereafter, physically kept and arranged in a way that makes the documents readily accessible, and capable of convenient inspection by party A, and(b) at the time the list of documents is served on party A and until completion of the trial of the proceedings, identified in a way that enables particular documents to be readily retrieved.(10) Within 21 days after service of the list of documents, or within such other period or at such other times as the Court may specify, party B shall, on request by party A:(a) produce for inspection by party A the documents described in part 1 of the list (other than privileged documents),(b) make available a person who is able to, and does on request by party A, explain the way the documents are arranged and assist in locating and identifying particular documents or classes of documents,(c) provide facilities of the inspection and copying of such of the documents (other than privileged documents) as are not capable of being copied by photocopying,(d) subject to an undertaking being given by the solicitor for party A to pay the reasonable costs thereof (or if party A has no solicitor, subject to party A providing to party B an amount not less than a reasonable estimate of the reasonable costs of the use thereof), provide photocopies of, or photocopying facilities for the copying of, such of the documents as are capable of being copied by photocopying.(11) No copy document, or information from a document, obtained by party A as a result of discovery by party B shall be disclosed or used otherwise than for the purposes of the conduct of the proceedings, without the leave of the Court, unless the document has been received into evidence in open Court.(12) Nothing in subrule (11) shall affect the power of the Court to make an order restricting the disclosure or use of any document whether or not received into evidence, or the operation of any such order.rule 23.3: Subst 19.7.1996.
4 Powers of Court
The Court may, on the application of a party, or of its own motion:(a) by order discharge, vary or extend any of the obligations arising under rules 2 and 3,(b) determine any question of privilege or other question arising from the operation of this Part,(c) where a party does not comply with an obligation arising under rules 2 and 3:(i) by order, dismiss or limit any claim made by that party,(ii) by order, strike out or amend any pleading filed by that party,(iii) strike out, disallow or reject any evidence which that party has adduced or seeks to adduce,(iv) require that party to pay the whole or part of the costs of another party of the proceedings, or(v) make such other order as the Court considers appropriate in the circumstances,(d) inspect any document in relation to which a question arises under this Part, for the purpose of determining the question, and order that the document be produced to the Court for the purpose of inspection by the Court.rule 23.4: Am 26.9.1986; 23.12.1988. Subst 19.7.1996. Am 23.5.1997.
5 Personal injury claims
Rule 2 (1) (b) and rule 3 shall not apply to proceedings on a common law claim for damages arising out of the death of, or bodily injury to, any person or for contribution in respect of damages so arising, unless the Court, for special reasons, otherwise orders.rule 23.5: Am 9.12.1983; 26.9.1986. Subst 19.7.1996.
6 Contempt
Neither the provisions of rule 4 (c) nor any order made thereunder shall affect the liability of a party or any other person for contempt of court in respect of any breach of an order for discovery under rule 3 (1).rule 23.6: Am 20.9.1991. Subst 19.7.1996.rule 23.6A: Ins 30.4.1976. Rep 24.5.1996.rule 23.7: Am 26.9.1986. Rep 19.7.1996.rule 23.8: Am 25.2.1983; 26.9.1986; 24.2.1989. Rep 19.7.1996.rule 23.9: Am 26.9.1986; 23.2.1990. Rep 19.7.1996.rule 23.10: Am 26.9.1986. Rep 19.7.1996.rules 23.11–23.14: Rep 19.7.1996.rule 23.15: Am 21.10.1977; 26.9.1986; 20.10.1989; 23.2.1990; 30.3.1990; 20.9.1991. Rep 19.7.1996.rule 23.15A: Ins 21.6.1991. Rep 19.7.1996.rule 23.16: Subst 24.5.1996. Am 23.8.1996. Rep 19.7.1996. For proceedings commenced before 1.10.1996, see also paragraph 3 of GG No 98 of 27.8.1999, p 7460 and paragraph 3 of GG No 130 of 19.11.1999, p 10696.
Part 24 Interrogatories
1 Interrogatories by notice
(1) Subject to this rule and to any direction given in a particular case, after the pleadings between any parties are closed, any of those parties may:(a) where the place of trial is Sydney, not later than two months prior to the call-over, andserve on any other of those parties a notice requiring the party served to answer not more than 30, or such other number as the Court may by order specify, separate specified interrogatories relating to any matter in question between the interrogating party and the party served.(b) in any other case, not later than two months prior to the beginning of the sittings at the place where the trial is to take place,cf RSC (Rev) 1965, O 26, r 1 (1).(1A) For the purposes of rule 1, where an interrogatory comprises more than one separate question, each such question shall be treated as a separate interrogatory.(2) The notice may require that the answers be verified, and may so require notwithstanding that the interrogating party has previously required all or any of the interrogatories to be answered without requiring the answers to be verified.cf RSC (Rev) 1965, O 26, r 1 (1).(3) This rule does not apply to proceedings on a common law claim for damages arising out of the death of, or bodily injury to, any person or for contribution in respect of damages so arising.(4) Subject to subrule (2), a party shall not serve more than one notice under subrule (1) on the same party without the leave of the Court.(5) (Repealed)rule 24.1: Am 2.6.1972; 23.3.1984; 26.9.1986; 20.11.1987; 24.5.1991.
2 Answers pursuant to notice
(1) A party who is required under rule 1 to answer interrogatories shall, subject to rule 3, answer the interrogatories within such time, not being less than 14 days after service on him of the notice under rule 1, as may be specified in the notice.(2) A party who is required under rule 1 to answer interrogatories but is not required to verify his answers shall, subject to rule 3, answer the interrogatories by serving on the party requiring the answers a statement in accordance with rule 6.(3) A party who is required under rule 1 to answer interrogatories and to verify his answers shall, subject to rule 3, answer the interrogatories by serving on the party requiring the answers:(a) an affidavit verifying a statement in accordance with rule 6, and(b) the statement so verified, unless the statement has already been served.rule 24.2: Am 26.9.1986.
3 Limitation of interrogatories by notice
cf RSC (Rev) 1965, O 26, r 1 (3).
(1) The Court may, before or after any party has been required under rule 1 to answer interrogatories, order that answers to interrogatories under rule 2 by any party shall not be required, or shall be limited to such interrogatories or classes of interrogatories, or to such of the matters in question in the proceedings, as may be specified in the order.(2) Where any party has been required under rule 1 to answer any interrogatory, the Court may, on application by him, order that an answer to the interrogatory shall not be required or may limit the extent to which an answer shall be required.(3) The Court shall, on application, make such orders under subrules (1) and (2) as are necessary to prevent unnecessary interrogatories or unnecessary answers to interrogatories.
4 Co-defendants
Where a plaintiff claims relief against two or more defendants, and requires any defendant to answer interrogatories under rule 2, that defendant shall serve his statement in answer and affidavit if any not only on the plaintiff but also on each other defendant who has filed a defence.rule 24.4: Am 26.9.1986; 23.12.1988.
5 Order to answer
(1) The Court may, at any stage of any proceedings, order any party to serve on any other party (whether the interrogating party or not):(a) a statement in accordance with rule 6 in answer to interrogatories specified or referred to in the order relating to any matter in question in the proceedings, or(b) a statement as mentioned in paragraph (a) verified by affidavit.cf RSC (Rev) 1965, O 26, r 1 (1).(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.cf RSC (Rev) 1965, O 26, r 1 (3).rule 24.5: Am 26.9.1986 (see erratum 30.1.1987).
6 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) that evidence in answer to a question in terms of the interrogatory 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 application under rule 3 (2) or rule 5 in respect of any interrogatory, the Court may require the applicant to specify on what grounds he objects to answer that interrogatory and may determine the sufficiency of the objection and, if the Court determines that the objection is not sufficient, the applicant shall not be entitled to object to answer that interrogatory in a statement in answer to interrogatories.rule 24.6: Am 23.8.1996; 27.8.1999; 19.11.1999.
7 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 disable person, by his tutor,(c) where the party is a corporation, by a member or officer of the corporation,(d) where the party is a body of persons lawfully suing or being sued in the name of the body or in the name of any officer or other person, by a member or officer of the body,(e) where the party is the Crown, an officer of the Crown suing or sued in his official capacity, by an officer of the Crown.(2) Where the party is a person to whom any of paragraphs (c), (d) and (e) of subrule (1) applies, and the affidavit is to be served pursuant to an order, the Court may, in relation to any or all of the interrogatories:(a) specify by name or otherwise the person to make the affidavit, or(b) specify by description or otherwise the persons from whom the party may choose the person to make the affidavit.(3) Subject to subrule (2), where the party is a person to whom any of paragraphs (c), (d) and (e) of subrule (1) applies, the party shall, in relation to each interrogatory, choose a person to make the affidavit who is qualified under the relevant paragraph and has knowledge of the facts.(4) In subrule (1) (e), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.rule 24.7: Am 25.2.1983; 26.9.1986; 24.2.1989.
8 Insufficient answer
(1) Where a party fails to answer an interrogatory sufficiently, the Court may:(a) if he has made an insufficient answer, order him to make a further answer verified by affidavit in accordance with rule 7, or(b) order him or any of the persons mentioned in paragraphs (b) to (d) of rule 7 (1), as the nature of the case requires, to attend to be orally examined.cf RSC (Rev) 1965, O 26, r 5.(2) Subrule (1) does not limit the powers of the Court under rule 9.
9 Default
(1) Where a party makes default in compliance with an order under rule 5 or rule 8 to serve a statement or affidavit, the Court may give or make such judgment or such order as it thinks fit, including:(a) if the party in default is a plaintiff, an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings, or(b) if the proceedings were commenced by statement of claim and the party in default is a defendant, an order that his defence be struck out and the giving of judgment accordingly.cf RSC (Rev) 1965, O 26, r 6 (1).(2) Where a party has a solicitor:(a) an order under rule 5 or rule 8 need not, for the purposes of enforcement of the order by committal or sequestration, be served personally; but(b) if the order has not been served personally, the order shall not be enforced by committal of any person or by sequestration of the property of any person if that person shows that he did not have notice or knowledge of the order within sufficient time for compliance with the order.cf RSC (Rev) 1965, O 26, r 6 (3).(3) Where a party has a solicitor, and an order under rule 5 or rule 8 against the party is served on the party by leaving a copy of the order at the office of, or posting it to, the solicitor or the solicitor’s agent or, where the order may be served under Part 9 rule 4 (1) (d), by leaving a copy of the order in an exchange box or at an exchange in accordance with Part 9 rule 4 (1) (d) or, where the order may be served under Part 9 rule 4 (1) (e), by transmitting the information contained in the order to the solicitor’s facsimile transmission number in accordance with Part 9 rule 4 (1) (e), the solicitor shall, if the solicitor fails without reasonable cause to notify the party of the order, be guilty of misconduct.cf RSC (Rev) 1965, O 26, r 6 (4).rule 24.9: Am 21.10.1977; 26.9.1986; 20.10.1989; 16.3.1990; 30.3.1990; 20.9.1991.
10 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.cf RSC (Rev) 1965, O 26, r 7.(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.cf RSC (Rev) 1965, O 26, r 7.
11 (Repealed)
rule 24.11: Rep 23.8.1996.
Part 25 Medical examination: inspection of property etc
pt 25: Ins 26.9.1986. Am 24.7.1992.
pt 25.div 1A (Rules 25.7A, 25.7B): Ins 26.9.1986. Am 24.7.1992.
Division 1 Medical examination
1 Application and interpretation
(1) This Division applies to proceedings in which:(a) the physical or mental condition of a person is relevant to any matter in question, and(b) either:(i) that person is a party, or(ii) a party claims relief for the benefit of that person pursuant to the Compensation to Relatives Act of 1897.(2) In this Division:first party means the party mentioned in subrule (1) (b).medical examination includes any examination by a medical expert but does not include tests mentioned in Division 1A.medical expert includes dentist, medical practitioner, occupational therapist, optometrist, physiotherapist and psychologist.person concerned means the person mentioned in subrule (1) (a).rules 25.1, 25.2, 25.3, 25.5, 25.6: Am 26.9.1986.
2 Notice for examination
(1) Any party other than the first party may serve on the first party a notice in accordance with this rule for the medical examination of the person concerned.cf General Rules of the Court, O 14, r 10; Rules of the Supreme Court (WA), O 25, r 12 (1) (a).(2) A notice for medical examination shall be a request by the party giving the notice that the person concerned submit to examination by a specified medical expert at a specified time and place.cf GRC, O 14, r 10; RSC, (WA), O 25, r 12 (1) (a).rules 25.1, 25.2, 25.3, 25.5, 25.6: Am 26.9.1986.
3 Expenses
cf RSC (WA), O 25, r 12 (2).
A party who serves a notice for medical examination shall, on request by the first party, pay to the first party a reasonable sum to meet the travelling and other expenses of the person concerned of and incidental to the medical examination including the expenses of having a medical expert chosen by him attend his examination pursuant to rule 6.
4 Non-compliance with notice
(1) Where a notice for medical examination of a person concerned is served pursuant to rule 2 and the person concerned does not submit to examination in accordance with the notice, the Court may, on terms, stay the proceedings as to any claim for relief by or for the benefit of the person concerned.cf GRC, O 14, rr 10, 11, 12; RSC (WA), O 25, r 12 (3).(2) Where, before the proceedings are set down for trial under Part 33 rule 8, a party files notice of a motion for a stay of proceedings under subrule (1), the proceedings shall, unless the Court otherwise orders, be stayed pending disposal of the motion.cf GRC, O 14, r 11.
5 Order for examination
(1) The Court may, on terms, make orders for the medical examination of a person concerned, including an order that a person concerned submit to examination by a specified medical expert at a specified time and place.(2) Where the Court orders that a person concerned submit to examination by a medical expert, the person concerned shall do all things reasonably requested and answer all questions reasonably asked of him by the medical expert for the purposes of the examination.
6 Medical expert for person concerned
cf RSC (WA), O 25, r 15 (1) (a).
The person concerned may have a medical expert chosen by him attend his examination.
7 (Repealed)
rule 25.7: Am 2.6.1972; 29.8.1980. Rep 26.9.1986.
Division 1A Rehabilitation assessment
7A Application and interpretation
(1) This Division applies to proceedings in which the extent of impairment of the earning capacity of a party due to personal injuries to that party is relevant to any matter in question.(2) In this Division:(a) party concerned means the party mentioned in subrule (1), and(b) occupational rehabilitation service has the meaning which it has for the purposes of section 59 of the Workers Compensation Act 1987.
7B Order for rehabilitation tests
(1) The Court may make orders for testing the party concerned for the purpose of assessing the extent of impairment of the party’s earning capacity, including an order to submit to tests, pursuant to the direction of a medical practitioner, during a specified period and at a specified place, being:(a) a hospital,(b) a rehabilitation centre conducted by a hospital, orat which:(c) some other suitable place,(d) treatment by way of rehabilitation, oris afforded.(e) an occupational rehabilitation service,(2) Where the Court makes an order under subrule (1) that a party concerned submit to tests, the party concerned shall do all things reasonably requested and answer all questions reasonably asked by the medical practitioner or any person conducting a test for the purposes of the test.(3) The terms upon which the Court may make orders under subrule (1) include terms for the payment by the party obtaining the order to the party concerned of any expense or loss incurred in complying with the order.
Division 2 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.cf Act No 21, 1899, s 104; RSC (Rev) 1965, O 29, rr 2 (1) (4), 3 (1).(2) An order under subrule (1) may authorise any person to enter any land or to do any other things for the purpose of getting access to the property.cf RSC (Rev) 1965, O 29, rr 2 (2), 3 (2).(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.rule 25.8: Am 25.8.1995; 27.8.1999.
9 (Repealed)
rule 25.9: Rep 25.8.1995.
Division 3 Default
10 Default
(1) Where a party makes default in compliance with an order under this Part, or in compliance with rule 5 (2), the Court may give or make such judgment or such order as it thinks fit, including:(a) if the party in default is a plaintiff, an order that the proceedings be stayed or dismissed as to the whole or any part of the relief claimed by him in the proceedings, or(b) if the proceedings were commenced by statement of claim and the party in default is a defendant an order that his defence be struck out and the giving of judgment accordingly.cf GRC, O 14, r 10; RSC (WA), O 25, r 12 (3).(2) Where a person concerned, not being a party, makes default in compliance with an order under this Part, or in compliance with rule 5 (2), the Court may order that the proceedings be stayed or dismissed as to any relief claimed for the benefit of the person concerned.(3) This rule does not limit the powers of the Court to punish for contempt.rule 25.10: Am 30.3.1990.
Part 26 Directions
pt 26: Subst 23.3.1984.
1 Directions and orders
cf RSC (Rev) 1965, O 25, r 1 (1).
The Court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appears convenient (whether or not inconsistent with the rules) for the just, quick and cheap disposal of the proceedings.rule 26.1: Am 21.4.1978. Subst 23.3.1984. Am 21.9.1984; 24.4.1986.
2 Appointment for hearing
The Court may, at any time and from time to time, of its own motion, appoint a date for a hearing at which it may give the directions and orders mentioned in rule 1.rule 26.2: Am 21.4.1978. Subst 23.3.1984.
3 Case management by the Court
Without limiting the generality of rule 1, orders and directions may relate to:(a) the filing of pleadings,(b) the defining of issues, including requiring counsel or the parties to exchange memoranda in order to clarify issues,(c) the provision of any essential particulars,(d) the making of admissions,(e) the filing of lists of documents, either generally or with respect to specific matters,(f) the delivery or exchange of experts’ reports and the holding of conferences of experts,(g) the provision of copies of documents, including the provision in electronic form,(h) the administration and answering of interrogatories, either generally or with respect to specific matters,(i) the service and filing of affidavits or statements of evidence or documents to be relied on by a specified date or dates,(j) the giving of evidence at the hearing, including whether evidence of witnesses in chief shall be given orally, or by affidavit or statement, or both,(k) the use of telephone or video conference facilities, video tapes, film projection, computer and other equipment and technology,(l) the provision of affidavit evidence by specified persons in support of an application for an adjournment,(m) a timetable with respect to any matters to be dealt with.rule 26.3: Rep 23.3.1984. Ins 28.1.2000.
4–8 (Repealed)
rules 26.4–26.8: Rep 23.3.1984.
Part 27 Taking evidence otherwise than at the trial
pt 27, Heading: Am 12.9.1986; 19.5.1989.
pt 27 (The whole Part): Am 28.4.1995 (“Evidence Act 1905” and “Evidence Act 1905 of the Commonwealth” omitted wherever occurring, “Foreign Evidence Act” inserted instead; “7V (1)”, “7V (3)” and “7W” omitted wherever occurring, “7 (1)”, “8 (1)” and “10” inserted instead respectively).
1 Interpretation
In this Part a reference to the subsection or paragraph mentioned in column 1 below includes a reference to the subsection or paragraph mentioned beside it in column 2.
1A Order for examination of witness
The Court may, for the purpose of proceedings in the Court, make orders for the examination of any person before a Judge or master or other officer of the Court or before such other person as the Court may appoint as examiner at any place:(a) in the State or out of the State in Australia, or(b) out of Australia.rule 27.1A: Ins 12.9.1986. Subst 19.5.1989.
1B Criminal proceedings
(1) Where a person has been committed for trial or to be dealt with before the Court, a proceeding between the prosecuting authority and the person is before the Court for the purposes of any application to the Court under section 7 (1) of the Foreign Evidence Act.(2) Any application under section 7 (1) of the Foreign Evidence Act shall be made:(a) in a proceeding which is before the Court under subrule (1)—by summons in the Common Law Division,(b) in proceedings which are specified in the Third Schedule to the Act—by motion in the proceedings as if the proceedings had been commenced by summons,(c) in proceedings in the Court in its summary jurisdiction—by motion in the proceedings.(3) Rule 12 (1) (b) (which relates to a stay of proceedings) does not apply in criminal proceedings.(4) Where a person has been committed for trial or to be dealt with before the District Court, a proceeding between the prosecuting authority and the person is before the District Court for the purposes of any application to the Court under section 10 (1) of the Foreign Evidence Act.rule 27.1B: Ins 19.5.1989. Am 25.10.1996; 19.2.1999.
1C Judge etc as examiner
(1) A Judge, master or other officer of the Court may not act as an examiner otherwise than with the concurrence of the Chief Justice.(2) Where the proposed examiner is a Judge or a master or other officer of the Court, an applicant for an order (in this rule called an examination order) under rule 1A (b), section 7 (1) (a) of the Foreign Evidence Act or, where the order is of a kind referred to in section 7 (1) (a) of that Act, under section 10 (1) of that Act, shall request the proposed examiner to certify the amount which in his opinion should be paid into Court as provision for expenses in relation to the examination.(3) An examination order shall be expressed to be conditional upon the payment into Court by such person and within such time as the Court may specify of not less than the amount certified in accordance with subrule (2).(4) Where the registrar forms the opinion that the amount paid or payable into Court under subrule (3) is or may be insufficient to provide for the expenses of the examination, the Court may, on application of the registrar:(a) order the party on whose application the examination order was made to pay into Court such further amount, and within such time, as the Court may specify, or(b) stay the proceedings until payments so far as concerns the whole or any part of any claim for relief by that party, or(c) suspend the operation of the examination order until payment.(5) The registrar shall apply so much of the amount paid into Court as may from time to time be required for the purpose, in the payment to or at the direction of the examiner of expenses or advances for expenses incurred or to be incurred in relation to the examination.(6) Any amount paid under subrule (5) which is not required for expenses in relation to the examination shall be repaid into Court.(7) After the conclusion of the examination, upon the examiner certifying that no expenses in relation to the examination remain unpaid or unrecouped from the money in Court, the registrar shall, subject to any order of the Court, refund to the person by whom the money was paid into Court (and, if more than one, in the same proportions as their respective payments into Court) any money remaining in Court.rules 27.1C, 27.1D: Ins 19.5.1989.
1D Forms of order
Orders under rule 1A or section 7 (1) (a) and (c) of the Foreign Evidence Act may be in or to the effect of the forms prescribed.rules 27.1C, 27.1D: Ins 19.5.1989.
2 Letter of request
(1) Upon the making of an order under section 7 (1) (c) of the Foreign Evidence Act or, where the order is of a kind referred to in section 7 (1) (c) of that Act, under section 10 (1) of that Act, for the issuing of a letter of request, the party obtaining the order shall:(a) lodge with the registrar:(i) a form of the appropriate letter of request,(ii) the interrogatories (if any) and cross-interrogatories (if any) to accompany the letter of request, and(iii) unless the Court otherwise orders, if the letter of request is to be issued to the judicial authorities of a country in which English is not an official language appropriate to the place where the evidence is to be taken—a translation of each of the documents mentioned in subparagraphs (i) and (ii) in an official language of that country appropriate to the place where the evidence is to be taken, and(b) file:(i) a copy of each of the documents mentioned in paragraph (a), and(ii) an undertaking by the party obtaining the order or his solicitor to be responsible for all expenses incurred by the Court or by any person at the request of the Court in respect of the letter of request and, on being given notice of the amount of any such expenses, to pay the amount to the registrar.cf RSC (Rev) 1965, O 39, r 3 (1)–(4), (6).(2) A translation lodged under subrule (1) (a) (iii) must be certified by the person making it to be a correct translation; and the certificate must state the person’s full name and address and the office or qualification by reason of which the person so certifies.cf RSC (Rev) 1965, O 39, r 3 (5).rule 27.2: Am 12.9.1986; 19.5.1989; 23.12.1994.
2A Foreign Evidence Act
Where an order is made under section 7 (1) (a) of the Foreign Evidence Act or, where the order is of a kind referred to in section 7 (1) (a) of that Act, under section 10 (1) of that Act, rules 3–11 apply subject to any directions given by the Court under section 8 (1) of that Act.rule 27.2A: Ins 12.9.1986.
2B Evidence otherwise than on oath
cf RSC (Rev) 1965, O 39, r 3A.
Unless the Court otherwise orders:(a) a person may be examined in another country pursuant to an order under rule 1A (b), orotherwise than on oath or affirmation if the person is examined or the evidence is taken in accordance with the procedure of the country.(b) evidence of a person may be taken in another country pursuant to an order under section 7 (1) (c) of that Act,rule 27.2B: Ins 21.11.1986. Am 19.5.1989.
3 Documents for examiner
(1) The party obtaining an order for examination before an examiner under rule 1A, section 7 (1) (a) of the Foreign Evidence Act or, where the order is of a kind referred to in section 7 (1) (a) of that Act, under section 10 (1) of that Act, shall furnish the examiner 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.cf RSC (Rev) 1965, O 39, r 7.(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 for examination or in a later order, state the questions to which the examination is to relate.(3) This rule does not apply where a Judge or a master is the examiner.rule 27.3: Am 23.5.1980; 12.9.1986; 19.5.1989.
4 Appointment for examination
(1) The examiner shall appoint a place and time for the examination.cf RSC (Rev) 1965, O 39, r 6 (1).(2) The time appointed shall, having regard to the convenience of the person to be examined, and to the circumstances, be as soon as practicable after the making of the order.cf RSC (Rev) 1965, O 39, r 6 (1).(3) The examiner shall give notice of an appointment under this rule to the party obtaining the order and that party shall, not less than 3 days before the time appointed, give notice of the appointment to each other party.rules 27.4, 27.5: Am 2.6.1972.
5 Conduct of examination
(1) The examiner shall permit each party, his counsel and solicitor to attend the examination.(1A) Subject to this Part, the proceedings before the examiner shall be in accordance with the procedure of this Court.(2) A person examined before an examiner may, unless the Court otherwise orders, be cross-examined and re-examined.cf RSC (Rev) 1965, O 39, r 8 (1) (a).(3) The examination, cross-examination and re-examination of a person before an examiner shall, unless the Court otherwise orders, be conducted in like manner as at a trial.cf RSC (Rev) 1965, O 39, r 8 (1) (b).(4) The examiner may put any question to a person examined before him as to:(a) the meaning of any answer made by that person, or(b) any matter arising in the course of the examination.cf RSC (Rev) 1965, O 39, r 8 (2).(5) The examiner may adjourn the examination from time to time or from place to place.cf RSC (Rev) 1965, O 39, r 8 (3).rules 27.4, 27.5: Am 2.6.1972.
6 Examination of additional persons
cf RSC (Rev) 1965, O 39, r 9.
(1) Where the examiner is a Judge or a master, 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 a master, the examiner may, with the consent in writing of each party to the proceedings, take the examination of any person not named or provided for in the order for examination and, if he does so, he shall annex to the written record or transcript of the deposition of that person the consent of each of the parties.rule 27.6: Subst 23.5.1980. Am 19.5.1989.
7 Objection
(1) Where objection is taken to a question put to a person being examined before an examiner, or a person being so examined takes objection to answering a question put to him or to 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) must be set out in the written record or transcript of the deposition of that person or in a statement attached to the written record or transcript,(c) the Court may, on motion by any party, decide the validity of the ground for the objection,(d) if the Court decides against the objector, the Court may order him to pay the costs occasioned by the objection.cf RSC (Rev) 1965, O 39, r 10.(2) This rule does not apply where the examiner is a Judge or a master.rule 27.7: Am 23.5.1980; 19.5.1989.
8 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.cf Act No 27, 1902, s 37 (4).(2) The deposition must contain as nearly as may be the statement of the person examined.cf RSC (Rev) 1965, O 39, r 11 (1).(3) The examiner may direct that the words of any question and the answer to the question be recorded.cf RSC (Rev) 1965, O 39, r 11 (2).(4) Subject to subrules (2) and (3) and subject to rule 7 (1) (b) every question and answer need not be recorded.cf RSC (Rev) 1965, O 39, r 11 (1).rule 27.8: Am 19.5.1989.
8A Videotaping etc the examination
cf Family Law Rules, O 30, r 6 (2).
The Court or the examiner may give directions for making, by any audio-visual method, a recording of proceedings on an examination.rule 27.8A: Ins 19.5.1989.
9 Authentication and filing
(1) Where, for the purposes of rule 8 (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.cf Act No 27, 1902, s 37 (5).(2) A transcript shall be prepared of a deposition recorded by one of the means other than writing, referred to in rule 8 (1) and the person who prepared the transcript shall certify that it is a correct transcript of the deposition so recorded.cf Justices Act (Transcripts) Regulation 1976, reg 2.(3) The examiner shall authenticate by his signature the written record or transcript of the deposition and any document which constitutes a recording under rule 8A.(4) The examiner shall make on, or attach to, the written record or transcript of the deposition a note signed by him of the time occupied in the examination and the fees received by him in respect of the examination.cf RSC (Rev) 1965, O 39, r 12.(5) The examiner shall send the written record or transcript of the deposition and any document which constitutes a recording under rule 8A to the registrar and the registrar shall file them in the proceedings.cf RSC (Rev) 1965, O 39, r 11 (4).(6) The examiner shall, unless the Court otherwise orders, send the exhibits to the registrar and the registrar shall deal with the exhibits in such manner as the Court may direct.(7) Subrules (1), (2), (4) and (5) do not apply where the examiner is a Judge or a master.rule 27.9: Am 23.5.1980; 19.5.1989.
10 Special report
(1) The examiner may make to the Court a special report with regard to an examination before him and with regard to the absence of any person from, or the conduct of any person at, the examination.cf RSC (Rev) 1965, O 39, r 13.(2) The Court may direct such proceedings to be taken, or make such order, on the report as the Court thinks fit.cf RSC (Rev) 1965, O 39, r 13.
11 Default of witness
(1) Where a person has been required by subpoena to attend before an examiner who is not a Judge or a master, and he refuses to be sworn for the purposes of the examination or to answer any lawful question, or to produce any document or thing, the examiner shall, at the request of any party, give to that party a certificate, signed by the examiner, of the refusal.cf RSC (Rev) 1965, O 39, r 5 (1).(2) The Court may upon the certificate being filed, and on motion by any party:(a) order that person to be sworn, or to answer the question or to produce the document or thing as the case may be, and(b) order that person to pay any costs occasioned by his refusal.cf RSC (Rev) 1965, O 39, r 5 (1), (3).rule 27.11: Am 23.5.1980.
12 Order for payment of expenses
(1) Where a party has given an undertaking as mentioned in rule 2 (1) (b) (ii) and does not, within 7 days after service on him of notice of the amount of the expenses concerned, pay the amount of the expenses to the registrar, the Court may, on application by the registrar:(a) order the party to pay the amount of the expenses to the registrar, and(b) stay the proceedings until payment so far as concerns the whole or any part of any claim for relief by that party.(2) In subrule (1) (b), proceedings includes, where the undertaking was filed upon the making of an order under section 10 (1) of the Foreign Evidence Act of a kind referred to in section 7 (1) (c) of that Act, a proceeding (except a criminal proceeding) before the inferior court.rule 27.12: Am 12.9.1986.
13 Perpetuation of testimony
(1) Witnesses shall not be examined to perpetuate testimony unless proceedings have been commenced for the purpose.cf RSC (Rev) 1965, O 39, r 15 (1).(2) Any person may commence proceedings to perpetuate testimony which may be material for establishing any right or claim to any relief, which right or claim cannot be established before the happening of a future event.cf High Court Rules (NZ), r 443.(3) Proceedings to perpetuate the testimony of witnesses shall not be set down for trial.cf RSC (Rev) 1965, O 39, r 15 (3).(4) Where proceedings to perpetuate testimony touch any matter or thing in which the Crown may have an interest, the Attorney-General may be made a defendant.cf RSC (1883), O 37, r 36.(5) Where, pursuant to subrule (4), the Attorney-General is made a defendant to proceedings to perpetuate testimony, a deposition taken in those proceedings shall not be inadmissible in other proceedings by reason that the Crown was not a party to the proceedings to perpetuate testimony.cf RSC (1883), O 37, r 36.(6) Subrule (2) does not affect the right of any person to commence proceedings to perpetuate testimony in cases to which that subrule does not apply.rule 27.13: Am 19.12.1986.
Part 28 Interim preservation, etc
1 Order before commencement of proceedings
cf RSC (Rev) 1965, O 29, r 1 (3).
(1) In an urgent case, the Court may, on the application of a person who intends to commence proceedings:(a) make any order which the Court might make in proceedings on an application for a writ of habeas corpus ad subjiciendum,(ai) make orders for the custody of minors,(aii) grant an injunction,(aiii) make an order extending the operation of a caveat under:(i) the Real Property Act 1900,(ii) the Offshore Minerals Act 1999, or(iii) the Offshore Minerals Act 1994 of the Commonwealth,(b) appoint a receiver, orto the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings.(c) make orders under rule 2,(2) An application under subrule (1) may be made in any Division but shall, so far as practicable, be made in the Division to which the proceedings that are intended to be commenced would be assigned.(3) A person making an application under subrule (1) shall give an undertaking to the Court to file, within 14 days of determination of the application, an originating process commencing proceedings in respect of the subject matter of the application.rule 28.1: Am 2.6.1972; 18.12.1987; 21.7.1995; 20.6.1997; 25.8.2000.
2 Preservation of property
(1) In proceedings concerning any property, or in proceedings in which any question may arise as to any property, the Court may make orders for the detention, custody or preservation of the property.cf RSC (Rev) 1965, O 29, r 2 (1).(2) An order under subrule (1) may authorise any person to enter any land or to do any other thing for the purpose of giving effect to the order.cf RSC (Rev) 1965, O 29, r 2 (2).(3) In proceedings concerning the right of any party to a fund, the Court may order that the fund be paid into Court or otherwise secured.cf RSC (Rev) 1965, O 29, r 2 (3).
3 Disposal of personal property
cf RSC (Rev) 1965, O 29, r 4 (1).
Where, in proceedings concerning any property (other than land) or in proceedings in which any question may arise as to any property (other than land), it appears to the Court that:(a) the property is of a perishable nature or is likely to deteriorate, orthe Court may make an order for the sale or other disposal of the whole or any part of the property by such person, in such manner, and upon such terms (if any) as the Court may direct.(b) for any other reason it is desirable that the property should be sold or otherwise disposed of,
4 Interim distribution
cf RSC (Rev) 1965, O 29, r 8.
Where, in proceedings concerning property, it appears to the Court that the property is more than sufficient to answer the claims on the property for which provision ought to be made in the proceedings, the Court may allow any part of the property to be conveyed, transferred or delivered to any person having an interest in the property.
5 Interim income
cf RSC (Rev) 1965, O 29, r 8.
Where, in proceedings concerning property, it appears to the Court that the whole or any part of the income of the property is not required to answer the claims on the property or its income for which provision ought to be made in the proceedings, the Court may allow that income or part to be paid, during such period as the Court may determine, to all or any of the persons having an interest in the income.
6 Payment before ascertainment of all persons interested
cf RSC (Rev) 1965, O 43, r 8.
Where two or more persons are entitled to share in a fund, the Court may order or allow immediate payment to any of those persons of his share without reserving any part of his share to meet the subsequent costs of ascertaining any other of those persons.
7 Terms, time for order, “usual undertaking as to damages”
(1) The Court may make orders under this Part on terms and at any stage of the proceedings.cf RSC (Rev) 1965, O 29, rr 1 (3), 2 (4), 8.(2) The “usual undertaking as to damages”, if given to the Court in connection with any interlocutory order or undertaking, is an undertaking to the Court to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, affected by the operation of the interlocutory order or undertaking or of any interlocutory continuation, with or without variation, of the order or undertaking.rule 28.7: Subst 23.3.1984; 7.12.1984.
8 (Repealed)
rule 28.8: Rep 23.3.1984.
rule 28.12A: Ins 2.6.1972. Rep 20.10.1972.
Part 29 Receivers
1 Address for service
A receiver shall, within 7 days after his appointment, file a notice specifying an address for service.
2 Security
(1) Where the Court appoints a receiver, the Court may give directions for the filing by the receiver of security in accordance with this rule.cf RSC (Rev) 1965, O 30, r 2 (2).(2) Where the Court directs the appointment of a receiver, then, unless the Court otherwise orders, a person shall not be appointed receiver pursuant to the direction until he has filed a security in accordance with this rule.cf RSC (Rev) 1965, O 30, r 2 (1).(3) Subrules (1) and (2) have effect subject to any provision for the time being in force made by or under any Act.(4) A security to be filed in accordance with this rule shall be a security approved by the Court that the receiver will account for what he receives as receiver and will deal with what he receives as the Court may direct.cf RSC (Rev) 1965, O 30, r 2 (2).(5) Where a security has been filed under this rule, the Court may make orders for the vacation of the security.
3 Remuneration
A receiver shall be allowed such remuneration, if any, as may be fixed by the Court.
4 Accounts
(1) A receiver shall file accounts at such intervals or on such dates as the Court may direct.cf RSC (Rev) 1965, O 30, r 4 (1).(2) The receiver shall, on the day on which he files an account, obtain an appointment to pass the account and serve the account, with a note of the appointment, on each party interested who has an address for service in the proceedings.(3) The receiver shall, unless the Court otherwise orders, attend on the appointment to pass the account.
5 Default
(1) Where a receiver:(a) is required by these rules or by an order or direction of the Court:(i) to file any account or affidavit,(ii) to attend on an appointment to pass his account, or(iii) to do any other thing, andthe Court may make such orders and give such directions as the Court thinks fit, including orders and directions for:(b) does not carry out the requirement,(c) the discharge of the receiver,(d) the appointment of another receiver, and(e) the payment of costs.cf RSC (Rev) 1965, O 30, r 6 (1).(2) Without limiting subrule (1), where a receiver is required by these rules or by an order or direction of the Court to pay into Court any sum shown by his account as due from him, and he does not carry out the requirement, the Court may charge him with interest at the rate per cent yearly mentioned in column 2 of Schedule J beside the last period mentioned in column 1 of that Schedule on that sum while in his possession as receiver.cf RSC (Rev) 1965, O 30, r 6 (2).(3) This rule does not limit the powers of the Court as to the enforcement of orders or as to the punishment of contempt.rule 29.5: Am 6.9.1974; 8.10.1982; 9.12.1983; 21.12.1984; 20.12.1985; 27.6.1986; 23.10.1987; 19.2.1988; 24.2.1989; 18.8.1989; 24.8.1990.
6 Powers
(1) The Court may authorise a receiver to do (either in his own name or in the name of the parties or any of them and either generally or in any particular instance) any act or thing which the parties or any of them might do if of full age and capacity.(2) Subrule (1) has effect notwithstanding that the parties or any of them are not of full age and capacity.(3) This rule does not limit the powers of the Court apart from this rule to authorise a receiver to do any act or thing.
7 Account on death
(1) Where a receiver in any proceedings dies, the Court may, on motion in the proceedings, make such orders as the Court thinks fit for the filing and passing of accounts by the representatives of the deceased receiver and for the payment into Court of any amount shown to be due.(2) The Court shall not make any order under subrule (1) unless notice of the motion has been served on the representatives.(3) Notice of a motion under this rule may be served in any manner in which a statement of claim may be served.
Part 30 Disposal of land
1 Interpretation
cf RSC (Rev) 1965, O 31, r 1.
In this Part land includes any interest in or right over land.
2 Power to order sale
cf RSC (Rev) 1965, O 31, r 1.
In proceedings relating to land, other than proceedings in the Common Law Division for possession of land, the Court may, at any stage of the proceedings:(a) order that the whole or any part of the land be sold, and(b) order that any party in receipt of the rents or profits of the land or otherwise in possession of the land deliver possession to such person as the Court may direct.
3 Manner of sale
(1) This rule applies where the Court has made an order under rule 2 that land be sold.cf RSC (Rev) 1965, O 31, r 2 (1).(2) The Court may appoint a party or other person to have the conduct of the sale.cf RSC (Rev) 1965, O 31, r 2 (4) (a).(3) The Court may permit the person having the conduct of the sale to sell the land in such manner as he thinks fit.cf RSC (Rev) 1965, O 31, r 2 (1).(4) The Court may direct any party to join in the sale and conveyance or transfer or in any other matter relating to the sale.cf RSC (Rev) 1965, O 31, r 2 (1).(5) The Court may give such further directions as it thinks fit for the purpose of effecting the sale, including directions:(a) fixing the manner of sale, that is to say, whether sale is to be by contract conditional on approval of the Court, by private treaty, by public auction, by tender, or by some other manner,(b) fixing a reserve or minimum price,(c) requiring payment of the purchase money into Court or to trustees or other persons,(d) for settling the particulars and conditions of sale,(e) for obtaining evidence of value, or(f) fixing the remuneration to be allowed to any auctioneer, real estate agent or other person.cf RSC (Rev) 1965, O 31, r 2 (4) (b)–(g).
4 Certificate of sale
(1) Where, pursuant to this Part, land is sold by public auction, the auctioneer shall, unless the Court otherwise orders, certify the result of the sale.cf RSC (Rev) 1965, O 31, r 3 (1).(2) Where, pursuant to this Part, land is sold otherwise than by public auction, the solicitor of the person having the conduct of the sale shall, unless the Court otherwise orders, certify the result of the sale.cf RSC (Rev) 1965, O 31, r 3 (1).(3) The Court may require that the certificate be verified by affidavit of the person certifying.cf RSC (Rev) 1965, O 31, r 3 (1).(4) The person having the conduct of the sale shall file the certificate and affidavit if any.cf RSC (Rev) 1965, O 31, r 3 (2).
5 Mortgage, exchange or partition
cf RSC (Rev) 1965, O 31, r 4.
Where the Court makes an order for the mortgage, exchange or partition of land, rules 3 and 4, so far as applicable and with the necessary modifications, apply to the mortgage, exchange or partition as those rules apply to a sale under this Part.
Part 31 Separate decision of questions: consolidation
pt 31, Heading: Subst 22.8.1975.
Division 1 Separate decision of questions
1 Interpretation
cf RSC (Rev) 1965, O 33, r 3.
In this Part, question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
2 Order for decision
cf RSC (Rev) 1965, O 33, r 3.
The Court may make orders for:(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings, and(b) the statement of a case and the question for decision.
3 (Repealed)
rule 31.3: Rep 22.8.1975.
4 Agreed result
(1) Any parties to proceedings in which a case is stated under rule 2 may, with the leave of the Court, agree that, on any question being decided in the sense specified in the agreement, a specified judgment or order shall be given or made.(2) On that question being so decided, the Court may give or make the agreed judgment or order.cf Court of Appeal Rules, r 35 (2).(3) Where an agreement is made pursuant to subrule (1) before a case is stated, the terms of the agreement shall be set out in the stated case.rule 31.4: Am 30.3.1990.
5 Record etc of decision
Where any question is decided under this Part, the Court shall, subject to rule 6, either:(a) cause the decision to be recorded, or(b) give or make such judgment or order as the nature of the case requires.rule 31.5: Am 30.3.1990.
6 Disposal of proceedings
cf RSC (Rev) 1965, O 33, r 7.
Where the decision of a question under this Part:(a) substantially disposes of the proceedings or of the whole or any part of any claim for relief in the proceedings, orthe Court may, as the nature of the case requires:(b) renders unnecessary any trial or further trial in the proceedings or on the whole of any part of any claim for relief in the proceedings,(c) dismiss the proceedings or the whole or any part of any claim for relief in the proceedings, or(d) give any judgment, or(e) make any other order.rule 31.6: Am 30.3.1990.
Division 2 Consolidation
7 Consolidation etc
Where several proceedings are pending in the same Division, then, if it appears to the Court:(a) that some common question of law or fact arises in both or all of them,(b) that the rights to relief claimed therein are in respect of, or arise out of, the same transaction or series of transactions, orthe Court may, on terms, order those proceedings to be consolidated or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them.(c) that for some other reason it is desirable to make an order under this rule,rule 31.7: Ins 22.8.1975.
Part 32 Stated cases
Division 1 External stated cases
1 Application
(1) This Division applies, subject to subrule (2), to stated cases not stated in the Court.(2) This Division does not apply to stated cases to which Division 3 or Division 4 applies.rule 32.1: Subst 1.8.1975. Am 19.10.1979.
2 Commencement of proceedings
(1) Proceedings in the Court on a stated case shall be commenced by summons claiming the decision or determination of the questions and matters stated for decision or determination in the stated case.(2) The plaintiff shall file and serve the stated case with the summons.
3 (Repealed)
rule 32.3: Rep 2.6.1972. Ins 7.9.1973. Rep 17.6.1988.
Division 2 Stated cases generally
4 Form and contents
cf Court of Appeal Rules, r 33 (1).
A stated case shall:(a) be divided into paragraphs numbered consecutively,(b) state concisely the facts and documents necessary to enable the Court to decide the questions arising or otherwise to hear and determine the proceedings on the stated case, and(c) state the questions and matters to be decided or determined.
5 Documents
cf CAR, r 33 (2).
The Court and the parties may refer to the whole contents of a document stated in a stated case.
6 Inferences
cf CAR, r 33 (3).
The Court may draw inferences from the facts and documents stated in a stated case.
7 Insufficient case
(1) Where it appears to the Court that a stated case does not state the facts and documents sufficiently to enable the Court to decide the questions arising or otherwise to hear and determine the proceedings on the stated case, the Court may:(a) with the consent of all parties interested, add to or otherwise alter the stated case,(b) send the stated case back to the Division or court in which it is stated or to the judge, justice or person by whom it is stated for the purpose of addition or other alteration, or(c) receive evidence, make findings of fact, and add to the stated case in accordance with the findings of fact of the Court.(2) The Court shall not exercise its powers under subrule (1) (c) in respect of a stated case in any criminal proceedings.
8 Disputed facts
(1) This rule applies to proceedings on a stated case in which any party is entitled to dispute any fact or document stated in a stated case, including a stated case under section 124 of the Stamp Duties Act 1920 or section 38A of the Land Tax Management Act 1956.(2) The Court may receive evidence, make findings of fact, and add to or alter the stated case in accordance with the findings of fact of the Court.rule 32.8: Am 26.8.1988; 21.4.1989.rule 32.9: Ins 1.8.1975. Subst 19.2.1999. Rep 29.8.2003.rule 32.9A: Ins 23.5.1980. Rep 29.8.2003.rules 32.10–32.14: Ins 1.8.1975. Rep 29.8.2003.rule 32.14A: Ins 21.9.1979. Rep 29.8.2003.rules 32.15–32.19: Ins 1.8.1975. Rep 29.8.2003.rule 32.20: Ins 1.8.1975. Am 21.9.1979; 12.10.1979. Rep 29.8.2003.rule 32.21: Ins 1.8.1975. Rep 29.8.2003.
Division 3
9–21 (Repealed)
pt 32, div 3: Ins 1.8.1975. Rep 29.8.2003.
Division 4 Cases stated by mining wardens
pt 32, div 4: Ins 1.8.1975. Am 30.10.1992 (“appellant” and “respondent” omitted wherever occurring, “plaintiff” and “defendant” inserted instead); 26.2.1993 (“determination or direction” omitted wherever occurring, “decision” inserted instead).
22 Application
(1) This Division applies to proceedings under sections 325 and 326 of the Mining Act 1992 (the Mining Act).(2) The rules, other than this Division, so far as applicable, apply to proceedings to which this Division applies.rule 32.22: Ins 1.8.1975. Subst 30.10.1992.
22A (Repealed)
rule 32.22A: Ins 16.8.1991. Rep 30.10.1992.
23 Application to state a case
(1) An application to state a case shall state the grounds on which the plaintiff contends that the decision of the warden was erroneous in point of law.(2) An application to a warden to state and sign a case under section 325 (1) of the Mining Act need not be served upon the warden personally but may be made by delivering it to the mining registrar of the mining division in which the decision was made personally.rule 32.23: Ins 1.8.1975. Am 30.10.1992; 27.11.1992.
24 Time to apply to state a case
cf Mining Act—Appeal rules, r 20.
An application under section 325 (1) of the Mining Act (which subsection relates to an application to state a case) must be made within 28 days after the decision of the warden.rule 32.24: Ins 1.8.1975. Subst 30.10.1992.
25 Time to notify defendant
Written notice that application has been made for a case to be stated and signed pursuant to section 325 (1) of the Mining Act shall be given by the plaintiff to the defendant within three days after the application is made by serving a copy of the application on the defendant or his solicitor.rules 32.25, 32.26: Ins 1.8.1975. Am 30.10.1992.
26 Time for serving draft case
(1) Within 28 days after the expiration of the time limited under rule 24, the plaintiff shall:(a) deliver the draft case to the warden or lodge it with the mining registrar of the mining division in which the decision was made, and(b) serve it upon the defendant or his solicitor.(2) A copy of any record of evidence need not be annexed to the draft case.rules 32.25, 32.26: Ins 1.8.1975. Am 30.10.1992.
27 Time for settling draft case
The warden shall appoint in writing a time and place at which the draft case shall be settled.rule 32.27: Ins 1.8.1975.
27A Amendment of plaintiff’s grounds of contention
The applicant may, without leave, state in his draft case grounds on which he contends that the decision was erroneous in point of law other than the grounds stated in his application to a warden to state and sign a case.rule 32.27A, headnote: Am 30.10.1992.rule 32.27A: Ins 21.9.1979. Am 30.10.1992.
28 Objections
A defendant who wishes to object to the draft case shall, before the date appointed to settle it, give notice of his objection to the plaintiff.rules 32.28, 32.29: Ins 1.8.1975.
29 Form of case
An application to a warden to state and sign a case and a stated case shall be in the forms prescribed under rule 11, making such changes as are necessary.rules 32.28, 32.29: Ins 1.8.1975.
30 Dispensing with evidence
The plaintiff may apply in writing to the warden to dispense with the copying of evidence which is irrelevant to the stated case.rule 32.30: Ins 1.8.1975. Am 21.9.1979 (see erratum 12.10.1979).
31 Serving case for signing
Within 14 days after being notified in writing that the draft case has been settled, the plaintiff shall obtain it and deliver the prepared case to the warden or lodge it with the mining registrar of the mining division in which the decision was made for signing by the warden.rule 32.31: Ins 1.8.1975. Am 30.10.1992.
32 Extension of time
(1) Prior to the commencement of proceedings in the Court, any warden may, on such terms and conditions (if any) as he thinks fit, extend any time fixed by this Division, as well after as before the time expires, whether or not an application for the extension is made before the time expires.(2) Subrule (1) does not affect Part 2 rule 3 (which relates to an extension of time).rule 32.32: Ins 1.8.1975. Am 21.9.1979.
33 Transmitting the case
(1) A case is transmitted under section 325 (6) of the Mining Act by filing it in the Court.(2) The plaintiff shall commence proceedings on the case by filing with the case a summons claiming the decision or determination of the questions and matters stated for decision or determination in the case.(3) The officer designated pursuant to section 325 (6) of the Mining Act is the Prothonotary.rule 32.33: Ins 1.8.1975. Am 30.10.1992; 19.2.1999.
34 Service of the case
The plaintiff shall, on the day of filing, subject to Part 9 rule 8, serve the summons and two copies of the case on the defendant personally.rules 32.34, 32.35: Ins 1.8.1975.
35 Service
Part 9 does not apply to service of a document under rules 22 to 31.(See s 383 of the Mining Act.)rules 32.34, 32.35: Ins 1.8.1975.rule 32.35, footnote: Am 30.10.1992.
Division 5
36–39 (Repealed)
pt 32, div 5 (Rules 32.36–32.39): Ins 26.3.1976. Rep 24.11.1978.
Part 32A Dismissal of inactive proceedings in a division
pt 32A: Ins 21.8.1998.
pt 32A, Heading: Ins 21.8.1998. Am 23.10.1998.
1 Application
This Part applies to proceedings in a Division that have not been disposed of by judgment, final order, discontinuance or dismissal.rule 32A.1: Ins 21.8.1998. Am 23.10.1998.
2 Dismissal
(1) If no party to proceedings has, for over 5 months, taken any step in the proceedings that appears from records maintained by the Court, the Court may of its own motion dismiss the proceedings, or part of the proceedings, unless a party satisfies the Court that special circumstances exist that render it desirable that such an order should not be made.(2) The Court may not make an order under subrule (1) without giving the parties a reasonable opportunity to be heard.rule 32A.2: Ins 21.8.1998. Am 28.11.2003.
3 Effect of dismissal
cf Part 40, rule 8.
(1) An order for dismissal under rule 2 shall not prevent a party from:(a) bringing fresh proceedings, or(b) claiming in fresh proceedings relief that has been claimed in the dismissed proceedings.(2) Where:(a) proceedings are dismissed under rule 2,(b) a party is, by reason of the dismissal, 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, the party so liable brings against that other party further proceedings on the same or substantially the same cause of action as that on which the dismissed proceedings were brought,rule 32A.3: Ins 21.8.1998.
Part 33 Setting down for trial
1 Application
(1) This Part applies to proceedings commenced by statement of claim.cf RSC (Rev) 1965, O 34, r 1 (1).(2) This Part applies to proceedings commenced by summons to such extent and with such modifications as the Court may direct.
2 Place of trial
(1) Subject to subrule (2), Sydney shall, unless the Court otherwise orders, be the place of trial.(2) Where, in proceedings in the Common Law Division, the plaintiff, by his statement of claim, names a place of trial, that place shall, unless the Court otherwise orders, be the place of trial.(3) The Court may fix separate places of trial for any questions or issues.
3 Mode of trial
Subject to the Act and to section 7A of the Defamation Act 1974, the Court may order that any question or issue be tried with a jury and that any other question or issue be tried without a jury.rule 33.3: Am 28.4.1995.
4 Extent of trial
Proceedings shall, unless the Court otherwise orders, be set down for trial generally, that is to say, for trial of all questions and issues arising on every claim for relief in the proceedings.
5 Notice to set down for trial
(1) A party may, after the pleadings are closed and, in proceedings to which rule 8A applies (which rule relates to personal injuries cases), subject to rule 8A, file a notice to set down for trial, that is to say, a notice requesting that the proceedings be set down for trial.(1A) Proceedings shall not be set down for trial at any place other than Sydney unless the notice to set down for trial is filed not less than two months before the beginning of the sittings at that place.(2) The notice to set down for trial shall state:(a) the place for trial as fixed by or under rule 2,(b) whether the proceedings are to be set down for trial generally or for the trial of specified issues,(c) whether the trial is to be with a jury.(d) (Repealed)(3) A party filing notice to set down for trial shall, on the day of filing, serve the notice on each other party who has an address for service in the proceedings.(4) This rule does not apply to proceedings entered in the Commercial List or the Technology and Construction List.rule 33.5: Am 30.3.1973; 31.5.1985; 24.4.1986; 21.11.1986; 15.12.1989; 7.8.1998; 19.10.2001 (see also 26.10.2001).
6 Want of prosecution
(1) Where a plaintiff does not, within six weeks after the pleadings are closed, set the proceedings down for trial, the Court, on motion by any other party, may, on terms, dismiss the proceedings or make such other order as the Court thinks fit.cf RSC (Rev) 1965, O 34, r 2 (1).(2) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due despatch, the Court may, on application by any party or of its own motion, stay or dismiss the proceedings.(3) The Court may not make an order under subrule (2) without giving the plaintiff a reasonable opportunity to be heard.(4) The Court may, on application by any party, set aside an order that is made on the Court’s own motion under subrule (2).rule 33.6: Am 22.7.1977; 25.11.1994.
7 (Repealed)
rule 33.7: Rep 23.3.1984.
8 Setting down for trial
(1) Where notice to set down for trial has been filed, and the Court considers that the proceedings are ready for trial, the Court shall set the proceedings down for trial or arbitration in accordance with this rule.(2) Subject to subrule (3), the Court shall set the proceedings down:(a) for trial at the place fixed by or under rule 2,(b) for trial on a specific date or, unless Sydney is the place of trial, at sittings beginning on a specific date, and(c) either for trial generally or for the trial of specific issues, in accordance with rule 4.(3) The Court may, if it considers that proceedings which are before it for the purposes of subrule (1) should be referred for determination under section 76B (1) of the Act, order that the proceedings be so referred and set the proceedings down for arbitration, instead of for trial, on a specific date.rule 33.8: Am 30.3.1973; 22.12.1989.
8A Personal injuries cases; particulars
(1) Subrule (2) applies to proceedings in the Common Law Division in which a claim is made for damages in respect of personal injuries.cf GRC, O 13, r 15.(2) The plaintiff may not file a notice to set down for trial proceedings to which this subrule applies unless the party has served on all other parties who have an address for service in the proceedings a statement setting out:(a) particulars of injuries received,(b) particulars of continuing disabilities,(c) details of out-of-pocket expenses, andtogether with:(d) where any claim is made in respect of loss of income:(i) the name and address of each employer during the 12 months preceding the accident together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,(ii) the name and address of each employer since the accident together with details of the periods of employment, capacity in which employed and net earnings,(iii) the amount claimed in respect of loss of income to the date of the statement by comparison between what the plaintiff has earned since the accident and what he would have earned but for the accident, setting out, in respect of what the plaintiff would have earned but for the accident, particulars thereof, including where appropriate, particulars of the earnings of comparable employees and the identity of those employees or, where appropriate, particulars of payment which the plaintiff would have received under a relevant award or industrial agreement and the description of that award or industrial agreement,(iv) particulars of any alleged loss of earning capacity and future economic loss,(v) where self-employed, such additional particulars as will achieve full disclosure of the basis of the claim for loss of income, and(vi) particulars of any claim in respect of services of a domestic nature or services relating to nursing or attendance,(e) copies or originals of all documents available to the plaintiff in support of a claim for special damage and economic loss, whether past, present or continuing, including:(i) hospital, medical and similar accounts,(ii) letters from a workers’ compensation insurer indicating moneys paid to or on behalf of the plaintiff,(iii) letters from employers, wage records, income records and group certificates, and(iv) reports, contracts, correspondence and award rates relied on to support any claim in respect of services of a domestic nature or services relating to nursing and attendance, and(f) copies or originals of all hospital and medical reports available at the time of serving the statement upon which the plaintiff intends to rely at the trial.(3) Subrule (4) applies to proceedings in the Common Law Division in which a claim made under the Compensation to Relatives Act 1897 includes a claim for loss of maintenance and support.(4) The plaintiff shall not file a notice to set down for trial proceedings to which this subrule applies unless the party has served on all other parties who have an address for service in the proceedings a statement setting out:(a) the name and address of each employer of the deceased person during the 12 months preceding death with details of the periods of employment, capacity in which employed, net earnings during each period of employment and the basis of any assertion that those earnings would have increased but for death,(b) where the deceased person was self-employed, such particulars as will achieve full disclosure of the basis of the claim,together with:(c) particulars of expenses of the funeral or cremation of the deceased person or the cost of erecting a headstone or tombstone over the grave of the deceased person,(d) copies or originals of all documents available to the plaintiff in support of the claim including:(i) letters from employers, wage records, income records and group certificates, and(ii) material from which the particulars referred to in paragraph (b) were derived.(5) Where subrule (2) applies, the statement mentioned in subrule (2) (a)–(d), and, where subrule (4) applies, the statement mentioned in subrule (4) (a)–(c), shall be filed with the notice to set down for trial.(6) Subrules (3), (4) and (5) do not affect the requirements of section 6 of the Compensation to Relatives Act 1897 (which section relates to a particular of the nature of the claim, etc).rule 33.8A: Ins 30.3.1973. Am 26.9.1986; 21.11.1986; 20.3.1987 (see erratum 10.4.1987); 19.6.1987; 23.2.1990; 31.3.1994.
8B Notification of compromise etc
cf RSC (Rev) 1965, O 34, r 8.
The parties to proceedings commenced in the Court shall, where it is a fact that:(a) there is an agreement for compromise or settlement of the proceedings,(b) the proceedings are discontinued, orforthwith notify the registrar of the fact.(c) an appearance or defence is withdrawn,rule 33.8B: Ins 20.4.1990.
9 Notice of trial
The Court shall, not less than 14 days before the date for which the proceedings are set down for trial, give notice of trial to each party who has an address for service in the proceedings and who was not present or represented when the proceedings were set down for trial.rule 33.9: Am 30.3.1973.
Part 34 Trial
1 Interpretation
cf RSC (Rev) 1965, O 35, r 7 (2), (6).
For the purposes of this Part:(a) where the burden of proof on any issue lies on the plaintiff, he shall be the beginning party and the defendant shall be the opposite party, and(b) where the burden of proof on all the issues lies on the defendant, he shall be the beginning party and the plaintiff shall be the opposite party.
2 Application
(1) This Part applies to proceedings commenced by statement of claim.(2) Subject to rule 3, this Part applies to proceedings commenced by summons to such extent and with such modifications as the Court may direct.
3 Requisition for jury
(1) An application for an order under section 85 of the Act for proceedings to be tried by jury must be made by notice of motion.(2) Any such notice of motion must be filed with the Court at the same time as the requisition for the trial with a jury referred to in section 85 (2) (a) (i) of the Act is filed with the Court.rule 34.3: Subst 2.6.1972. Am 25.10.1974; 4.4.1975; 19.11.1993 (see erratum 26.11.1993); 25.6.1999. Subst 1.11.2002.
4 Time and place of trial
(1) Where proceedings have been set down for trial under Part 33 for a specified date, the trial may be held on that or any later date.(2) Notwithstanding subrule (1) and notwithstanding the setting down of any proceedings for trial under Part 33, the court may make such order as it thinks fit for fixing the time and place of trial.
5 Absence of party
cf RSC (Rev) 1965, O 35, r 2 (2).
(1) If, when a trial is called on, any party is absent, the Court may, on terms:(a) order that the trial be not had unless the proceedings are again set down for trial, or unless such other steps are taken as the Court may direct,(b) proceed with the trial generally or so far as concerns any claim for relief in the proceedings, or(c) adjourn the trial.(2) Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial a verdict is given or a finding or assessment is made, the Court, on motion by that party, may, on terms, set aside or vary the verdict, finding or assessment, and may give directions for the further conduct of the proceedings.cf RSC (Rev) 1965, O 35, r 2 (1).(3) Subrule (2) does not enable the Court to vary the verdict, finding or assessment of a jury at a trial except with the consent of each interested party present at the trial.(4) A motion under subrule (2) must be made on notice and the notice must be filed and served not more than 7 days after the giving of the verdict or the making of the finding or assessment.
6 Conduct of the trial
(1) The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.cf RSC (Rev) 1965, O 35, r 7 (1).(2) Subject to subrule (1):(a) where the only parties are one plaintiff and one defendant, and there is no cross-claim, the order of evidence and addresses shall be as provided by the following subrules of this rule, and(b) in any other case, the order of evidence and addresses shall be as provided by the following subrules of this rule, subject to such modifications as the nature of the case may require.cf RSC (Rev) 1965, O 35, r 7 (2).(3) The beginning party may make an address opening his case and may then adduce his evidence.cf RSC (Rev) 1965, O 35, r 7 (2).(4) 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.cf RSC (Rev) 1965, O 35, r 7 (3).(5) If, pursuant to subrule (4), 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.cf RSC (Rev) 1965, O 35, r 7 (3).(6) If, pursuant to subrule (4), the opposite party elects to adduce evidence, the opposite party may make an opening address before adducing his evidence and after adducing his evidence he may make an address closing his case and thereupon the beginning party may make an address closing his case.cf RSC (Rev) 1965, O 35, r 7 (4).
6AA Time etc limits at trial
(1) At any time before or during a trial, the Court may by direction:(a) limit the time to be taken in examining, cross-examining or re-examining a witness,(b) limit the number of witnesses (including expert witnesses) that a party may call,(c) limit the time to be taken in making any oral submissions,(d) limit the time to be taken by a party in presenting its case,(e) limit the time to be taken by the trial,(f) amend a direction made under this rule.(2) Any such direction must not detract from the principle that each party is entitled to a fair trial, and must be given a reasonable opportunity to lead evidence, cross-examine witnesses and make submissions.(3) In deciding whether to make any such direction, the Court may have regard to the following matters in addition to any other matters that may be relevant:(a) the subject matter, complexity or simplicity of the case,(b) the number of witnesses to be called,(c) the volume and character of the evidence to be led,(d) the time expected to be taken for the trial,(e) the need to place a reasonable limit on the time allowed for the trial,(f) the efficient administration of the Court lists, and(g) the interests of parties to other proceedings before the Court.(4) The Court may, at any time, direct a solicitor or barrister for a party to give to the party a memorandum stating:(a) the estimated length of the trial and the estimated costs and disbursements of the solicitor or barrister,(b) the estimated costs that would be payable by the party to another party if the party were unsuccessful at trial.rule 34.6AA: Ins 28.1.2000 (see also 25.2.2000).
6A Dismissal on plaintiff’s application
The Court, on the application of any party making a claim for relief in any proceedings, may, at any time but, in the case of trial with a jury, before verdict, make an order, on terms, for the dismissal of the proceedings so far as concerns any cause of action or the whole or any part of any claim for relief made by him.rule 34.6A: Ins 12.7.1985.
7 Dismissal on defendant’s application
(1) This rule applies to a trial of a common law claim.(2) Where the plaintiff is the beginning party, a defendant may, at any time after the conclusion of the evidence for the plaintiff in his case in chief, move for an order of dismissal of the proceedings, or dismissal of the proceedings so far as concerns any cause of action on which the plaintiff claims against that defendant, on the ground that, on the evidence given, a judgment or verdict for the plaintiff could not be supported.(3) The plaintiff may decline to argue the question raised by the defendant’s motion under subrule (2).(4) Unless the plaintiff declines to argue the question pursuant to subrule (3), the Court shall, if the ground of the motion of the defendant is established, make an order of dismissal of the proceedings, or of dismissal of the proceedings so far as concerns the cause of action in question, as the nature of the case requires.(5) If the plaintiff declines to argue the question, or if the motion of the defendant is refused, the defendant may adduce evidence or further evidence or make an application under rule 8.(6) Where fewer than all defendants move the Court under subrule (2), the Court shall not entertain the motion before the conclusion of the evidence given for all parties.rule 34.7: Am 2.6.1972; 23.7.1976; 12.7.1985; 24.4.1986; 15.12.1989; 20.4.1990; 25.6.1999.
8 Judgment for want of evidence
(1) This rule applies to a trial.(2) An opposite party may, after the conclusion of the evidence in the beginning party’s case in chief or after the conclusion of the evidence given for all parties, move the Court for judgment for that opposite party in the proceedings generally or on any claim for relief in the proceedings on the ground that, on the evidence given, judgment for the beginning party could not be supported.(3) Where the ground of an opposite party’s motion under subrule (2) is established, the Court shall give judgment for the opposite party accordingly.(4) Where an opposite party moves the Court under subrule (2), he may not adduce evidence or further evidence in the proceedings generally or on the claim for relief in question, as the case may be.(5) Where fewer than all opposite parties move the Court under subrule (2), the Court shall not entertain the motion before the conclusion of the evidence given for all parties.rule 34.8: Am 2.6.1972. Subst 23.7.1976. Am 30.3.1990.
8A Judgment notwithstanding verdict
Where, at a trial with a jury, a verdict is given or a finding or assessment is made, the Court may, on the motion of any party or of its own motion, give judgment as it thinks fit notwithstanding the verdict.rule 34.8A, headnote: Ins 25.10.1991.rule 34.8A: Ins 20.4.1990.
9 Record
cf General Rules of the Court, O 2, r 3; RSC (Rev) 1965, O 35, r 10.
The associate, or other proper officer present at the trial, shall be clerk at the trial and shall maintain and complete a record of the trial.
10 Death before judgment
(1) Where a party dies after the verdict or finding on the issues of fact, the Court may give judgment, and judgment may be entered, notwithstanding the death.cf RSC (Rev) 1965, O 35, r 9.(2) Subrule (1) does not affect the power of the Court to make orders under Part 8 rule 10 (which relates to change of parties by reason of death, etc).cf RSC (Rev) 1965, O 35, r 9.rule 34.10: Am 30.3.1990.
Part 35 Assessment
1 Damages under judgment
cf RSC (Rev) 1965, O 37, r 3.
(1) Subject to subrule (2), where judgment is entered for damages to be assessed, the proceedings shall, unless the Court otherwise orders, be set down in accordance with Part 33 for trial for assessment of damages under the judgment.(2) Where judgment is entered against any party for damages to be assessed and the proceedings are carried on against that party on any claim for relief not determined by the judgment or against any other party, the trial for assessment of damages under the judgment shall, unless the Court otherwise orders, be held together with any other trial in the proceedings and the proceedings shall be set down for trial accordingly.
2 Value of goods under judgment
cf RSC (Rev) 1965, O 37, r 5.
Rule 1 applies in relation to a judgment for the value of goods to be assessed, with or without damages to be assessed, as it applies to a judgment for damages to be assessed, and references in rule 1 to the assessment of damages shall be construed accordingly.
3 Damages to time of assessment
(1) Where damages are to be assessed in respect of:(a) any continuing cause of action,(b) repeated breaches of recurring obligations, orthe damages shall be assessed down to the time of assessment, including damages for breaches occurring after the commencement of the proceedings.(c) intermittent breaches of a continuing obligation,cf RSC (Rev) 1965, O 37, r 6.(2) Subrule (1) applies to the assessment of damages under this Part or otherwise.cf RSC (Rev) 1965, O 37, r 6.
Part 36 Evidence: general
1 Interpretation
In this Part, unless the context or subject matter otherwise indicates or requires:issue at a trial means an issue of fact at a trial arising on any claim for relief in the proceedings, and includes a question of fact at a trial arising on the assessment of damages or of the value of goods.trial means a trial in proceedings commenced by statement of claim, and includes an assessment of damages or of the value of goods in the Common Law Division in proceedings commenced by statement of claim.rule 36.1: Am 24.4.1986; 21.11.1986.
2 Witnesses at a trial
(1) Subject to subrules (2), (3) and (4), the evidence of any witness on any issue at a trial shall be given orally before the Court.cf RSC (Rev) 1965, O 38, r 1.(2) The Court may, on terms, order that evidence of particular facts may be given by affidavit.cf Act No 24, 1901, s 57 (1).(3) Subrule (1) applies subject to:(a) the Act,(b) the rules,(c) any direction of the Court,(d) any agreement between the parties, and(e) section 29 (4) and section 31 of the Evidence Act.cf RSC (Rev) 1965, O 38, r 1.(4) Where the only matters in question are:(a) on a claim for a liquidated demand and for an order for interest under section 94 of the Act, interest, andevidence of facts at the trial arising on the matter of interest may, unless the Court otherwise orders, be given by affidavit.(b) costs,rule 36.2: Am 9.12.1983; 27.3.1992; 25.8.1995; 27.8.1999.
2A Evidence by audio-visual method or by telephone
(1) The Court may give directions for and in relation to the conduct of proceedings, including the giving of evidence, by any audio-visual method or by telephone.(2) This rule shall not apply to directions which could be sought under section 25 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth.rule 36.2A: Ins 25.7.1997 (see errata 8.8.1997 and 22.8.1997).
3 Witnesses 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.cf RSC (Rev) 1965, O 38, r 2 (3).(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 Hearsay and copies
(1) Subject to subrule (4), subrules (2) and (3) apply where undue delay or hardship would otherwise be caused.cf General Rules of the Court, O 27, r 1A.(2) 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 and for the information and belief, the statement shall not be inadmissible on the ground that it is hearsay.cf RSC (Rev) 1965, O 14, r 2 (2); O 41, r 5 (2).(3) 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.cf Spencer v Bailey(1892) 93 L.T.Jo. 223.(4) This rule does not apply to evidence on an issue at a trial.cf RSC (Rev) 1965, O 41, r 5 (2).rule 36.4: Am 17.11.1989.
4A Witness statements
(1) Directions which the Court may give under Part 26 rule 1 in the proceedings shall include directions to any party to serve on each other party who has an address for service in the proceedings written statements of the oral evidence which the party intends to adduce in chief on any issues of fact to be decided at the trial.(2) Each statement shall be signed by the intended witness unless the signature of the intended witness cannot be procured or the Court otherwise orders.(2A) If an intended witness, to whose evidence a statement under subrule (1) relates, does not give evidence, no party may put the statement in evidence at the hearing without leave of the Court.(3) Directions given under subrule (1) may:(a) make different provision with regard to different issues of fact or different witnesses,(b) require that statements be filed,(c) require that notice be given of any objection to any of the evidence in a statement and of the grounds of the objection.(4) Where the party serving the statement calls the witness at the trial:(a) the party may not, except with the leave of the Court, adduce evidence from the witness, the substance of which is not included in the statement served, except in relation to new matters which have arisen in the course of the trial,(b) the Court may direct that the statement served, or part of it, shall stand as the evidence, or part of the evidence, in chief of the witness, and(c) whether or not the statement or any part of it is referred to during the evidence in chief of the witness, any party may put the statement or any part of it in cross-examination of the witness.(5) A party who fails to comply with a direction given under subrule (1) may not adduce evidence to which the direction related, except with the leave of the Court.(6) Where the Court directs that a statement be filed, then, subject to any direction of the Court, the statement shall not be filed otherwise than in Court by handing it up in Court on the first occasion after the statement is signed that the proceedings are before the Court for any purpose or, with the leave of the Court, on any later occasion.(7) A statement which has been served shall, before it is handed up under subrule (6), bear a note of the time, place and manner of service.(8) This rule shall not deprive any party of the right to treat any communications as privileged or make admissible evidence otherwise inadmissible.cf RSC (Rev) 1965, O 38, r 2A.(9) An application by a party to the Court for an order that the party not be required to comply with a direction under subrule (1) in respect of any proposed witness or witnesses (whether or not the direction has been given) may be made without serving notice of the motion by which the application is made.rule 36.4A: Ins 25.8.1989. Am 22.9.1989; 27.3.1992.
5 Earlier evidence in the proceedings
(1) Subject to subrule (2), evidence taken in proceedings may be used subsequently in the proceedings.cf RSC (Rev) 1965, O 38, r 12.(2) Subrule (1) does not enable the use, as evidence on any issue at a trial, of evidence taken before the trial, but:(a) evidence at a trial may be used on an assessment of damages or of the value of goods 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 trial in the proceedings in relation to the proof of particular facts.
6 Evidence by deposition
(1) Subject to subrule (2), the Court may permit a party to any proceeding in relation to which an order under Part 27 rule 1A (which relates to evidence by deposition) has been made, to tender as evidence in the proceedings the evidence of a person taken in the examination held as a result of the order or a record of that evidence.(2) Evidence of a person so tendered is not admissible if:(a) it appears to the satisfaction of the Court at the hearing of the proceeding that the person is in the State and is able to attend the hearing, or(b) the evidence would not have been admissible had it been given or produced at the hearing of the proceeding.(3) Where it is in the interests of justice to do so, the Court may, in its discretion, exclude from the proceeding evidence taken in an examination held as a result of an order made under Part 27 rule 1A notwithstanding that it is otherwise admissible.(4) Evidence that a case falls within subrule (2) (a), section 9 (2) (a) of the Foreign Evidence Act, section 8 (2) (a) or section 22 (2) (a) of the Evidence on Commission Act 1995 may, unless the Court otherwise orders, be given by affidavit on information and belief, but the person making the affidavit shall give the source and ground of and for the information and belief.(5) In this rule a reference to evidence taken in an examination includes a reference to:(a) a document produced at the examination,(b) answers made, whether in writing, or orally and reduced to writing, to any written interrogatories presented at the examination, and(c) any document which constitutes a recording under Part 27 rule 8A (which relates to videotape etc).(6) Where the examination and the trial (except with a jury) are before the same Judge, master or other officer of the Court, he may make any necessary observations and findings as to demeanour and credibility of the person examined and act upon them for the determination of the issues at the trial.rule 36.6: Am 2.6.1972; 12.9.1986. Subst 19.5.1989. Am 17.11.1989; 28.4.1995; 21.7.1995.
6B Foreign material
(1) A party to proceedings who adduces foreign material under section 24 (1) or section 32 (1) of the Foreign Evidence Act as evidence must:(a) give not less than 14 days’ written notice to each other party who has an address for service in the proceedings of:(i) the intention to adduce evidence under the subsection, and(ii) the nature of the foreign material, andunless the Court otherwise orders.(b) adduce all relevant evidence available to that party:(i) as to whether the person who gave the testimony that is the subject of the foreign material is in Australia and is able to attend the hearing,(ii) if the foreign material is adduced under section 24 (1) of the Foreign Evidence Act—of the matters to which section 25 (2) (a) or (c) of the Foreign Evidence Act refer, and(iii) if the foreign material is adduced under section 32 (1) of the Foreign Evidence Act—of the matters to which section 33 (2) (a) or (c) of the Foreign Evidence Act refer,(2) In this rule foreign material has the same meaning as it has in the Foreign Evidence Act.rule 36.6B: Ins 28.4.1995. Am 25.10.1996.
7 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.cf RSC (1883), O 37, r 3.(2) Subrule (1) does not enable evidence taken, or an affidavit filed, in other proceedings to be read as evidence on any issue at a trial, except in relation to the proof of particular facts.cf RSC (1883), O 37, r 3.rule 36.7: Am 14.2.1986; 21.3.1986; 20.2.1987.
8 Plans, photographs and models
(1) Where a party intends to tender any plan, photograph or model at a trial or hearing, he shall, not less than 7 days before the commencement of the trial or hearing, give the other parties an opportunity to inspect it and to agree to its admission without proof.cf RSC (Rev) 1965, O 38, r 5.(2) Non-compliance with subrule (1) shall not affect the admissibility of a plan, photograph or model.
9 Proof of Court documents
(1) A document purporting to be marked with a seal of the Court is admissible in evidence without further proof.cf RSC (Rev) 1965, O 38, r 10 (2).(2) An office copy of a document filed in or issued out of the Court is admissible evidence in all proceedings and between all parties to the same extent as the original document would be admissible.cf RSC (Rev) 1965, O 38, r 10 (1).(3) A document purporting to be marked with a 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.cf RSC (Rev) 1965, O 38, r 10 (2).rule 36.9: Am 14.2.1986; 20.2.1987.
10 Production of Court documents
Where, for the purpose of any proceedings, a person, by request in writing, requires a registrar to produce to the Court or to a judge or officer of the Court any document in the custody of the registrar, the registrar, shall, unless the Court otherwise orders, produce the document in accordance with the request.
10A Unstamped documents: undertaking in respect of section 29 of the Stamp Duties Act 1920
(1) The “solicitor’s usual undertaking as to stamp duty”, if given to the Court by a solicitor in relation to an instrument referred to in section 29 of the Stamp Duties Act 1920, or an unexecuted copy referred to in that section, is an undertaking that the solicitor will cause the instrument or copy to be presented to the Chief Commissioner for assessment in accordance with that Act and cause any duty and fine to which the instrument or copy is liable to be paid.(2) The “party’s usual undertaking as to stamp duty”, if given to the Court by a party in relation to an instrument referred to in section 29 (4) of the Stamp Duties Act 1920, is an undertaking that the party will within 28 days inform the Chief Commissioner of the name of the person primarily liable to duty in respect of the instrument and lodge the instrument or a copy of the instrument with the Chief Commissioner.rule 36.10A: Ins 19.7.1985. Am 16.8.1991; 20.10.2000.
10B Unstamped documents: arrangements under section 304 of the Duties Act 1997
(1) The “usual undertaking by person liable” if given to the Court by a party in relation to an instrument referred to in section 304 (2) of the Duties Act 1997 is an undertaking that the party will within a time specified by the Court transmit the instrument to the Chief Commissioner.(2) The “usual undertaking by person not liable” if given to the Court by a party in relation to an instrument referred to in section 304 (2) of the Duties Act 1997 is an undertaking that the party will within a time specified by the Court forward to the Chief Commissioner the name and address of the person liable to pay duty on the instrument under that Act together with the instrument.rule 36.10B: Ins 20.10.2000.
11 Consent of trustee etc
(1) A document purporting to contain the written consent of a person to act as tutor of a disable person, to act as trustee, to act as receiver, or to act in any other office on appointment by the Court, and purporting to be executed and authenticated in accordance with subrule (2), is evidence of the consent.cf RSC (Rev) 1965, O 38, r 11.(2) A document is sufficiently executed and authenticated for the purposes of subrule (1):(a) where the consenting person is not a corporation, if the document is signed by the consenting person and the signature is verified by some other person, orcf RSC (Rev) 1965, O 38, r 11.(b) where the consenting person is a corporation, if the seal of the corporation is affixed to the document in the presence of and attested by its clerk, secretary or other permanent officer or his deputy, and a member of the board of directors, council or other governing body of the corporation.cf Act No 6, 1919, s 51A (1).
12 Attendance and production
(1) The Court may make orders for:(a) the attendance of any person for the purpose of being examined,cf RSC (Rev) 1965, O 38, r 13 (1).(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 specified or described in the order.(2) An order under subrule (1) may be made for the attendance of any person before, and production by him to, or for the production by any corporation to, the Court or a Judge or any officer of the Court, examiner, referee, arbitrator, or other person authorised to take evidence, on any trial, hearing or other occasion.cf RSC (Rev) 1965, O 38, r 13 (1).(3) Subrules (1) and (2) apply whether or not the person required by the order to attend or produce any document or thing has been required to do so by subpoena.rule 36.12: Am 2.4.1982; 22.11.1985; 25.10.1991.
12A 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.rule 36.12A: Ins 20.10.1972.
13 Privilege
(1) This rule applies where:(a) the Court, by subpoena or otherwise, orders any person to produce any document to,(b) a party is required by a notice served under rule 16 (1) to produce any document to, orthe Court or a Judge or any officer of the Court, or any examiner, referee, arbitrator or other person authorised to receive evidence and neither Part 3.10 of the Evidence Act nor Part 3.10 of the Evidence Act 1995 of the Commonwealth is applicable.(c) a question is put to a person in the course of examination before,(2) The Court shall not compel, and rule 16 shall not require, production of a document or an answer to a question, unless and until the Court directs that the production or answer shall not be prevented by this subrule:(a) over the objection of a person if evidence of the document, or of an answer to the question, could not be adduced in the proceedings over the objection of the person, by virtue of the operation of Part 3.10 Division 1 of the Evidence Act,(b) if the contents or production of the document, or an answer to the question, would disclose:(i) 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:(A) 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(B) 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,(ii) (Repealed)(b1) if evidence of a document, or of an answer to the question, could not be adduced in the proceedings by virtue of the operation of section 126H of the Evidence Act,(c) if the person required to produce, or answer, is a natural person and an answer to the question, or the contents or production of the document, would tend to prove that the person:(i) 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,(ii) is liable to a civil penalty,(d) if admission or use, in a proceeding, of the document, or of evidence in answer to the question, would be contrary to section 129 of the Evidence Act,(e) if the document relates to, or an answer to the question would contain information that relates to, matters of state within the meaning of section 130 of the Evidence Act,(f) if the contents or production of the document, or an answer to the question, would disclose a communication or a document to which section 131 of the Evidence Act applies,(g) in the case of the production of a document—if:(i) the disclosure of its contents,(ii) its production, 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,(iii) its admission or use,(h) in the case of the answer to a question—if an answer would disclose or result in disclosure of information the disclosure, admission or use of which in the proceeding would be contrary to any Act or Commonwealth Act other than the Evidence Act or the Evidence Act 1995 of the Commonwealth.(3) Where a party to any proceedings claims privilege from production of any document, the Court may, if it thinks fit:(a) permit evidence in relation to the claim to be given by any other party by affidavit or otherwise, and(b) permit cross-examination on any affidavit used in support of the claim.rule 36.13: Am 22.11.1985; 21.6.1991. Subst 27.8.1999. Am 19.11.1999.
13A Disclosure of experts’ reports and hospital reports
(1) Subrules (2)–(5) apply:(a) to proceedings in the Court in which damages are claimed in respect of the death of a person or in respect of personal injuries, and(b) to any other proceedings in which the Court may at any time on the application of a party or of its own motion direct that they shall apply.(2) 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 chief at the trial,(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 trial.(3) Unless the Court otherwise orders, in proceedings to which this rule applies, each party in the proceedings shall:(a) in any case where the Court by notice to the parties fixes a date for determining the date for trial—not later than 21 days before the date fixed by the notice,(b) in any case where the place of trial is a place other than Sydney—not later than 21 days before the first call-over held in respect of the sittings at that place, andserve experts’ reports and hospital reports on each other party who has an address for service in the proceedings.(c) in any other case—not later than 21 days before the date on which the Court determines the date for trial,(4) An application to the Court for an order under subrule (3) (other than an order solely for abridgment or extension of time) may be made without serving notice of the motion.(5) In proceedings to which this rule applies, except with the leave of the Court or by consent of the parties:(a) the oral expert evidence in chief of any expert is not admissible unless that evidence is covered by the expert’s report served in accordance with this rule,(b) neither an expert’s report nor a hospital report is admissible when tendered under section 63 or section 64 or section 69 of the Evidence Act, unless it has been served in accordance with this rule.(6) For the purpose of subrule (5), evidence is covered by a report if the report contains the substance of the matters sought to be adduced in evidence.rule 36.13A: Ins 15.12.1972. Am 30.3.1973; 7.12.1973. Subst 17.8.1979. Am 29.8.1980; 27.4.1984. Subst 26.9.1986. Am 19.11.1993; 25.8.1995; 27.8.1999.
13B Expert’s report admissible in trial without a jury
(1) Where an expert’s report is served in accordance with rule 13A or an order is made under rule 13A (3), the report is admissible as evidence of the expert’s opinion and, where the expert’s direct oral evidence of a fact upon which the opinion was formed would be admissible, as evidence of that fact, without further evidence, oral or otherwise.(2) A party may, unless the Court otherwise orders:(a) in any case where the Court by notice to the parties fixes a date for determining the date for trial—not later than 35 days before the date for trial so determined,(b) in any case where the place of trial is a place other than Sydney—not later than 7 days before the first call-over held in respect of the sittings at that place, andrequire the attendance for cross-examination of the expert.(c) in any other case—not later than 7 days before the date on which the Court determines the date for trial,(3) The parties may not by consent abridge the time fixed by or under subrule (2).(4) A requirement under subrule (2) shall be made to the party who served the report.(5) Where the attendance of an expert is required under subrule (2), his report shall not be tendered under section 63 or section 64 or section 69 of the Evidence Act or otherwise used unless the person attends or is dead or the Court grants leave to use it.(6) Where an expert attends pursuant to a requirement under subrule (2), the party using the report may re-examine him.(7) This rule does not apply to proceedings on a trial with a jury.rule 36.13B: Ins 13.6.1975. Rep 30.4.1976. Ins 17.8.1979. Am 27.4.1984; 20.9.1985; 26.9.1986; 24.10.1986; 19.11.1993; 25.8.1995; 27.8.1999.
13BA Fees for medical expert for compliance with subpoena
(1) If a subpoena is served on a medical expert who is to give evidence of medical matters but is not called as a witness, the expert is, unless the Court otherwise orders, entitled to be paid, in addition to the amount payable under Part 37 rule 11, the amount prescribed in item 6 of Schedule G1.(2) The amount payable under subrule (1) must be paid by the issuing party to the expert within 30 days after the date for the expert’s attendance.(3) If a party makes a requirement under rule 13B (2) and revokes it, he or she must pay to the issuing party the amount paid under subrule (2), but otherwise an amount paid under subrule (2) by the issuing party is not recoverable from any other party unless the Court so orders.(4) This rule applies only to proceedings on a trial at Sydney.(5) In this rule, issuing party has the same meaning as it has in Part 37.rule 36.13BA: Ins 26.3.2004. Am 28.5.2004.
13BB Service of subpoena on medical expert
(1) If the person named in a subpoena is a medical expert:(a) service of the subpoena on the expert may be effected at a place where the expert’s practice is carried on, by handing it to some person apparently engaged (whether as an employee or otherwise) in the practice and apparently of or above the age of 16 years, and(b) if, on tender of the subpoena to the person mentioned in paragraph (a), the person refuses to accept it, the subpoena may be served by putting it down in the person’s presence after he or she has been told of the nature of the subpoena.(2) If a subpoena requires a medical expert to attend in Sydney on a specified date for the purpose of giving evidence on medical matters, the subpoena must be served on the expert not later than 21 days before the date so specified unless the court otherwise orders.(3) The parties may not by consent abridge the time fixed by or under subrule (2).rules 36.13BB, 36.13BC: Ins 26.3.2004.
13BC Subpoena requiring production of medical records
(1) A subpoena for production may require a medical expert to produce medical records or clear, sharp photocopies of them.(2) A subpoena for production may not require a person named to produce any medical records or copies thereof unless the amount prescribed in item 2 of Schedule G1 is paid or tendered to the person at the time of service of the subpoena or not later than a reasonable time before the date on which production is required.(3) Part 37 rule 6 does not apply to a subpoena to which subrule (1) applies.(4) Part 37 rule 7 applies to the photocopies in the same way as it applies to the records.(5) If a subpoena to which subrule (1) applies has been issued and served but the party who requested the issue of the subpoena requires production of medical records without the option of producing photocopies of them, the party must request the issue of, and serve, another subpoena requiring production of the original medical records.rules 36.13BB, 36.13BC: Ins 26.3.2004.
13C Expert witnesses
(1) For the purposes of this rule and rule 13CA:expert witness means an expert engaged for the purpose of:(a) providing a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or(b) giving opinion evidence in proceedings or proposed proceedings.the code means the expert witness code of conduct in Schedule K.(2) Unless the Court otherwise orders:(a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert shall provide the expert with a copy of the code,(b) unless an expert witness’s report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it:(i) service of the report by the party who engaged the expert witness shall not be valid service for the purposes of the rules or of any order or practice note, and(ii) the report shall not be admitted into evidence,(c) oral evidence shall not be received from an expert witness unless:(i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and(ii) a copy of the acknowledgment has been served on all parties affected by the evidence.(3) If an expert witness furnishes to the engaging party a supplementary report, including any report indicating that the expert witness has changed his or her opinion on a material matter expressed in an earlier report by the expert witness:(a) the engaging party must forthwith serve the supplementary report on all parties on whom the engaging party has served the earlier report, and(b) the earlier report must not be used in the proceedings by the engaging party, or by any party in the same interest as the engaging party on the question to which the earlier report relates, unless paragraph (a) is complied with.(4) This rule shall not apply to an expert engaged before this rule commences.rule 36.13C: Ins 13.12.1991. Am 25.6.1993. Subst 28.1.2000.
13CA Conference between experts
(1) The Court may, on application by a party or of its own motion, direct expert witnesses to:(a) confer and may specify the matters on which they are to confer,(b) endeavour to reach agreement on outstanding matters, and(c) provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement.(2) An expert so directed may apply to the Court for further directions.(3) The Court may direct that such conference be held with or without the attendance of the legal representatives of the parties affected, or with or without the attendance of legal representatives at the option of the parties respectively.(4) The content of the conference between the expert witnesses shall not be referred to at the hearing or trial unless the parties affected agree.(5) The parties may agree, at any time, to be bound by agreement on any specified matter. In that event, the joint report may be tendered at the trial as evidence of the matter agreed. Otherwise, the joint report may be used or tendered at the trial only in accordance with the rules of evidence and the practices of the Court.(6) Where, pursuant to this rule, expert witnesses have conferred and have provided a joint report agreeing on any matter, a party affected may not, without leave of the Court, adduce expert evidence inconsistent with the matter agreed.rule 36.13CA: Ins 28.1.2000. Am 1.6.2001; 27.7.2001.
13D Notice under s 67 or s 99 of the Evidence Act
(1) Notice for the purposes of section 67 or section 99 of the Evidence Act shall, unless the Court otherwise orders be given:(a) in any case where the Court by notice to the parties fixes a date for determining the date for trial—not later than 21 days before the date fixed by that notice,(b) in any other case where the place of trial is a place other than Sydney—not later than 21 days before the first call-over held in respect of the sittings at that place, and(c) in any other case—not later than 21 days before the date on which the Court determines the date for trial.(2) Rule 4A (2), (2A) and (4) shall apply to a statement referred to in regulation 5 (2) (a) or (b) of the Evidence Regulation 1995 as if the statement were a statement referred to in rule 4A (1).(3) Rule 4A (2A) and (4) shall apply to a document referred to in regulation 5 (5) (a) of the Evidence Regulation 1995 as if the document were a statement referred to in rule 4A (1).rule 36.13D: Ins 25.8.1995. Am 22.9.1995; 27.8.1999.
Where the proper needs of a minor are relevant, the Court may have regard, to the extent to which it considers it appropriate, to any relevant findings of published research in relation to the maintenance of minors.rule 36.13E: Ins 19.7.1996.
14 Attendance of inmate in proceedings in the Court
(1) This rule applies to an application for an order under section 72 of the Act for the purpose of the examination of a person in proceedings in the Court.(2) The applicant shall, not less than two days before moving for the order, give to the Crown Solicitor, by letter or otherwise, notice in writing of his intention to apply for the order.cf GRC, O 16, r 11 (2).(3) The applicant may apply for the order by filing an affidavit of the facts on which he relies and leaving with the registrar a form of the order which he wants.cf GRC, O 16, r 11 (1).(4) The applicant need not, unless the Court otherwise directs, file or serve notice of motion for the order.cf GRC, O 16, r 11 (1).rules 36.14, 36.15, 36.headnotes: Am 21.2.1997.
15 Attendance of inmate in other cases
(1) The procedure for obtaining an order under section 72 of the Act for the purpose of the examination of a person otherwise than in proceedings in the Court shall be as stated in this rule.(2) The person seeking the order shall, not less than two days before commencing proceedings for the order, give to the Crown Solicitor, by letter or otherwise, notice in writing of his intention to commence the proceedings.cf GRC, O 16, r 11 (1).(3) Proceedings for the order shall be commenced in the Common Law Division by summons without joining any person as defendant.(4) The plaintiff shall file with the summons an affidavit of the facts on which he relies and shall leave with the Prothonotary a form of minute of order which he wants.cf GRC, O 16, r 11 (1).(5) The Court may make the order at any time after the filing of the summons and affidavit under subrule (4) and without attendance of the plaintiff or any other person.cf GRC, O 16, r 11 (1).rules 36.14, 36.15, 36.headnotes: Am 21.2.1997.
16 Production on notice
(1) Subject to rule 13, where a party to any proceedings serves on another party notice requiring the party served to produce at any trial or hearing in the proceedings or, with the leave of the Court, on any day, or before any judge, officer, examiner or other person having authority to take evidence in the proceedings any document or thing for the purpose of evidence and the document or thing is in the possession, custody or power of the party served, the party served shall, unless the Court otherwise orders, produce the document or thing in accordance with the notice, without the need for any subpoena for production.(1A) Where leave is given under subrule (1) for production on a day or under Part 37 rule 3 for the issue of a subpoena for production on a day, any party may serve on any other party a notice under subrule (1) for production on either day.(2) Where there is a clerk of the Court at the place for production, the party on whom a notice under subrule (1) is served may produce the document or thing to that clerk either by hand or by post, in either case so that the clerk receives them not later than two days before the date required under subrule (1) for production.(3) A party may not, except with the leave of the Court, search for, or inspect, any document or thing produced, except by him, pursuant to this rule and not admitted into evidence.(4) Subrules (1)–(2) are subject to Part 77 rule 134A (which relates to production where a direction has been made under section 7 (1) of the Evidence (Audio and Audio Visual Links) Act 1998).rule 36.16: Am 2.6.1972; 2.4.1982; 24.12.1982; 14.7.1989; 21.5.1999; 27.8.1999; 26.3.2004.
Part 36A Evidence and Procedure (New Zealand) Act 1994 (Commonwealth)
pt 36A (Rules 36A.1–36A.8): Ins 1.3.1996.
1 Interpretation
In this Part, unless the contrary intention appears:(a) the subject Act means the Evidence and Procedure (New Zealand) Act 1994,(b) another court means an inferior court, and(c) the expressions used in this Part have the same meaning as in the subject Act.pt 36A (Rules 36A.1–36A.8): Ins 1.3.1996.
2 Application of this Part
This Part applies to proceedings to which the subject Act applies.pt 36A (Rules 36A.1–36A.8): Ins 1.3.1996.
3 Leave to serve subpoena
(1) Application for leave under the subject Act to serve a subpoena in New Zealand shall be made:(a) if the subpoena is issued in proceedings in the Court—by motion in the proceedings, or(b) otherwise—by summons in the Common Law Division joining as defendant the person to whom the subpoena is addressed.(2) The application shall be supported by an affidavit annexing a copy of the subpoena and setting out:(a) the name, designation or occupation, and address of the person named and whether that person is over 18 years of age,(b) the nature and significance of the evidence to be required from the person named, or of the document or thing required to be produced by that person,(c) details of the steps taken to ascertain whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience, to the person named,(d) the date by which it is intended to serve the subpoena,(e) details of:(i) the calculation of the sum sufficient to meet reasonable expenses in complying with the subpoena, and(ii) how and when those expenses are to be paid, or tendered, to that person in money or in vouchers,(f) where the subpoena requires the person named to give evidence—an estimate of the time that person will be required to attend to give evidence, and(g) details of any facts or matters known to the deponent which may provide cause for the subpoena to be set aside under sections 14 (2) and (3) of the Act.(3) The applicant for leave may, unless the Court otherwise orders, proceed without giving notice of the motion to any person or serving the summons on any person.(4) Before granting leave under the subject Act to serve a subpoena, the Court may require the applicant for leave to undertake to meet the expenses or loss reasonably incurred by the person named, not being a party to the proceeding, in complying with the subpoena, if those expenses or loss exceed the allowances and travelling expenses to be provided to that person at the time of service of the subpoena.(5) A subpoena issued by the Court to which this Part applies shall be in Form 45A, Form 45B, Form 45C, Form 45D or Form 45E as the case requires.pt 36A (Rules 36A.1–36A.8): Ins 1.3.1996.
4 Production of document or thing pursuant to subpoena
If the registrar receives a fax under section 17 of the Evidence Amendment Act 1994 (New Zealand), the registrar may confirm with the registry that issued the receipt in New Zealand that the document or thing produced is able to be transported to the Court as soon as practicable so that the document or thing may be produced in the Court on the date the person named in the subpoena was to have attended.pt 36A (Rules 36A.1–36A.8): Ins 1.3.1996.
5 Failure to comply with subpoena issued by the Court
(1) A certificate under section 16 of the subject Act, in the prescribed form, may be issued on the Court’s own motion or on application by a party.(2) Application for the issue of a certificate may be made:(a) if the proceedings in which the certificate is sought are then before the Court—orally, or(b) by filing:(i) an affidavit of service of the subpoena and order and notice referred to in section 10 (3) of the subject Act, and(ii) an affidavit stating:(A) particulars of the order granting leave to serve the subpoena,(B) whether application was made to set aside the subpoena and, if so, particulars of the application and of its outcome, and(C) that the subpoena was not complied with.(3) A draft certificate in the prescribed form shall be filed when making the application.(4) The applicant need not, unless the Court otherwise orders, file or serve notice of motion for the issue of the certificate.(5) An application under subrule (2) (b) may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of any person.pt 36A (Rules 36A.1–36A.8): Ins 1.3.1996.
6 Setting aside subpoena
(1) An application to the Court under section 13 of the subject Act must be made by affidavit setting out the facts and grounds on which the application is based.(2) The affidavit must be:(a) headed with the heading on the copy order of the Court granting leave to serve the subpoena, and(b) filed at, or faxed for filing to, the Sydney registry of the Court.(3) The affidavit must set out the address for service, and telephone number and, if applicable, the fax number of the applicant for an order to set aside the subpoena.(4) The registry must:(a) if the affidavit, or a fax of the affidavit suitable for filing, is received—acknowledge, by post or fax, the receipt of the affidavit or the fax, or(b) if a fax of the affidavit that is unsuitable for filing is received—advise the applicant, by post or fax, of the unsuitability.(5) The registrar must serve the affidavit on the party who obtained leave to serve the subpoena or fax the affidavit to that party’s fax number.(6) An application made under this rule will be determined at a date, time and place and in the manner directed by the Court.(7) An objection under section 14 (4) of the subject Act must be made by filing notice in the prescribed form not later than 7 days after:(a) if the objection is made by the person named in the subpoena—the date when the application was filed, or(b) otherwise—the date when the application is served on the party who obtained leave to serve the subpoena.(8) A request under section 14 (6) that is not made in the application must be made by filing a request in the prescribed form.pt 36A (Rules 36A.1–36A.8): Ins 1.3.1996.
7 Evidence by video-link or telephone
(1) An application for a direction under section 25 of the subject Act may be made orally or by motion on notice.(2) The application must be supported by an affidavit stating:(a) the reasons why such a procedure is desirable,(b) the nature of the evidence to be taken,(c) the number of witnesses to be examined,(d) the expected duration of the evidence,(e) whether issues of character are likely to be raised,(f) in the case of submissions—the expected duration of the submissions,(g) the facilities available for such a procedure or that can reasonably be made available,(h) that the requirements of section 26 or section 27 of the subject Act are able to be met.(3) In deciding whether to grant the application, the Court may take account of the matters set out in the applicant’s affidavit in addition to any other matters considered to be material, including cost and convenience to the witness and all parties.(4) Where the Court makes a direction under section 25 (1) of the subject Act, it may direct the registrar to arrange and co-ordinate the appropriate facilities in Australia and New Zealand.(5) Without limiting the generality of subrule (4), the Court may direct that:(a) the registrar arrange for the evidence to be given, or the submissions to be made, at the High Court of New Zealand or at another place approved by that court,(b) an officer of the High Court of New Zealand, or another person approved by the Court, be requested to be present to assist in the transmission of the evidence or submissions and, in particular, to:(i) introduce witnesses to be called and legal representatives,(ii) assist with the administration of oaths, if necessary, and(iii) assist with the implementation of any directions or requests given or made by the judge or officer hearing the evidence or submissions.pt 36A (Rules 36A.1–36A.8): Ins 1.3.1996.
8 Fax copies
(1) Part 6 of the subject Act is taken to apply to a fax of a document in the same way as it applies to the original of the document (whether or not that original is itself a copy or an extract of a document).(2) If a fax of a document is adduced in evidence pursuant to Part 6 of the subject Act, the party adducing that evidence must file in the registry a copy of the fax on paper of durable quality measuring about 295mm long and 210mm wide on which the writing is permanent, unless the fax meets those specifications.pt 36A (Rules 36A.1–36A.8): Ins 1.3.1996.
Part 37 Subpoenas
pt 37: Subst 26.3.2004.
1 Definitions
(1) In this Part:addressee means the person who is the subject of the order expressed in a subpoena.conduct money means a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending.issuing officer means an officer of the Court who is empowered to issue a subpoena on behalf of the Court.issuing party means the party at whose request a subpoena is issued.Registrar, in relation to proceedings in respect of which a subpoena is sought or issued, means the Registrar of the Division in which the proceedings are being taken.subpoena means an order in writing requiring the addressee:(a) to attend to give evidence, or(b) to produce the subpoena or a copy of it and a document or thing, or(c) to do both of those things.(2) To the extent that a subpoena requires the addressee to attend to give evidence, it is called a subpoena to attend to give evidence.(3) To the extent that a subpoena requires the addressee to produce the subpoena or a copy of it and a document or thing, it is called a subpoena to produce.rule 37.1: Am 2.6.1972; 6.7.1979; 2.4.1982. Subst 26.3.2004.
2 Issuing of subpoena
(1) The Court may, in any proceeding, by subpoena order the addressee:(a) to attend to give evidence as directed by the subpoena, or(b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena, or(c) to do both of those things.(2) An issuing officer must not issue a subpoena:(a) if the Court has made an order, or there is a rule of the Court, having the effect of requiring that the proposed subpoena:(i) not be issued, or(ii) not be issued without the leave of the Court and that leave has not been given, or(b) requiring the production of a document or thing in the custody of the Court or another court.(3) The issuing officer must seal with the seal of the Court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service.(4) A subpoena is taken to have been issued on its being sealed or otherwise authenticated in accordance with subrule (3).rule 37.2: Am 2.6.1972; 2.4.1982; 23.9.1988. Subst 26.3.2004.
3 Form of subpoena
(1) A subpoena must be in accordance with Form 46.(2) A subpoena must not be addressed to more than one person.(3) Unless the Court otherwise orders, a subpoena must identify the addressee by name or by description of office or position.(4) A subpoena to produce must:(a) identify the document or thing to be produced, and(b) specify the date, time and place for production.(5) A subpoena to attend to give evidence must specify the date, time and place for attendance.(6) The date specified in a subpoena must be the date of trial or any other date as permitted by the Court.(7) The place specified for production may be the Court or the address of any person authorised to take evidence in the proceeding as permitted by the Court.(8) A subpoena must specify the last date for service of the subpoena, being a date not earlier than:(a) 5 days, orbefore the date specified in the subpoena for compliance with it.(b) any shorter or longer period as ordered by the Court and specified in the subpoena,(9) If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer.rule 37.3: Am 2.6.1972; 2.4.1982. Subst 26.3.2004.rule 37.3A: Ins 17.8.1979. Am 2.4.1982; 20.9.1985; 26.2.1993. Rep 26.3.2004.
4 Setting aside or other relief
(1) The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it.(2) An application under subrule (1) must be made on notice to the issuing party.(3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.rule 37.4: Am 2.6.1972. Subst 2.4.1982. Am 2.4.1993; 1.3.1996; 19.3.1999. Subst 26.3.2004.
5 Service
(1) A subpoena must be served personally on the addressee.(2) The issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee.rule 37.5: Am 2.6.1972; 2.4.1982; 25.8.1995. Subst 26.3.2004.
6 Compliance with subpoena
(1) An addressee need not comply with the requirements of a subpoena to attend to give evidence unless conduct money has been handed or tendered to the addressee a reasonable time before the date on which attendance is required.(2) An addressee need not comply with the requirements of a subpoena unless it is served on or before the date specified in the subpoena as the last date for service of the subpoena.(3) Despite rule 5 (1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.(4) The addressee must comply with a subpoena to produce:(a) by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the Court or to the person authorised to take evidence in the proceeding as permitted by the Court, or(b) by delivering or sending the subpoena or a copy of it and the document or thing to the Registrar at the address specified for the purpose in the subpoena, so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production.(5) In the case of a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and of the document or thing in any of the ways permitted by subrule (4) does not discharge the addressee from the obligation to attend to give evidence.rule 37.6: Am 2.6.1972; 6.7.1979; 2.4.1982; 26.9.1986; 24.10.1986. Subst 26.3.2004.
7 Production otherwise than upon attendance
(1) This rule applies if an addressee produces a document or thing in accordance with rule 6 (4) (b).(2) The Registrar must, if requested by the addressee, give a receipt for the document or thing to the addressee.(3) If the addressee produces more than one document or thing, the addressee must, if requested by the Registrar, provide a list of the documents or things produced.(4) The addressee may, with the consent of the issuing party, produce a copy, instead of the original, of any document required to be produced.(5) The addressee may at the time of production inform the Registrar in writing that any document or copy of a document produced need not be returned and may be destroyed.rule 37.7: Am 17.8.1979; 2.4.1982; 24.2.1989; 10.12.1993; 19.3.1999. Subst 26.3.2004.rule 37.7A: Ins 17.8.1979. Am 2.4.1982; 20.9.1985; 20.10.1989; 6.3.1992. Rep 26.3.2004.
8 Removal, return, inspection, copying and disposal of documents and things
The Court may give directions in relation to the removal from and return to the Court, and the inspection, copying and disposal, of any document or thing that has been produced to the Court in response to a subpoena.rule 37.8: Subst 2.4.1982; 26.3.2004.
9 Inspection of, and dealing with, documents and things produced otherwise than on attendance
(1) This rule applies if an addressee produces a document or thing in accordance with rule 6 (4) (b).(2) On the request in writing of a party, the Registrar must inform the party whether production in response to a subpoena has occurred, and, if so, include a description, in general terms, of the documents and things produced.(3) Subject to this rule, no person may inspect a document or thing produced unless the Court has granted leave and the inspection is in accordance with that leave.(4) Unless the Court otherwise orders, the Registrar may permit the parties to inspect at the office of the Registrar any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule.(5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the Registrar in writing of the objection and of the grounds of the objection.(6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the Registrar in writing of the objection and of the grounds of the objection.(7) On receiving notice of an objection under this rule, the Registrar:(a) must not permit any, or any further, inspection of the document or thing the subject of the objection, and(b) must refer the objection to the Court for hearing and determination.(8) The Registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party must notify the addressee, the objector and each other party accordingly.(9) The Registrar must not permit any document or thing produced to be removed from the office of the Registrar except on application in writing signed by the solicitor for a party.(10) A solicitor who signs an application under subrule (9) and removes a document or thing from the office of the Registrar, undertakes to the Court by force of this rule that:(a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding, and(b) the document or thing will be returned to the Registry in the same condition, order and packaging in which it was removed, as and when directed by the Registrar.(11) The Registrar may, in the Registrar’s discretion, grant an application under subrule (9) subject to conditions or refuse to grant the application.rule 37.9: Ins 2.4.1982. Subst 26.8.1988. Am 25.8.1995. Subst 26.3.2004.
10 Disposal of documents and things produced
(1) Unless the Court otherwise orders, the Registrar may, in the Registrar’s discretion, return to the addressee any document or thing produced in response to the subpoena.(2) Unless the Court otherwise orders, the Registrar must not return any document or thing under subrule (1) unless the Registrar has given to the issuing party at least 14 days’ notice of the intention to do so and that period has expired.(3) If the addressee has informed the Court that a document or a copy of a document produced need not be returned and may be destroyed, the Registrar may, unless the Court otherwise orders, destroy the document or copy instead of returning it.(4) The Registrar must not destroy a document or a copy of a document unless the Registrar has first given to the issuing party and to the addressee at least 14 days’ notice of the intention to destroy the document or copy.rule 37.10: Ins 24.12.1982. Subst 26.3.2004.
11 Costs and expenses of compliance
(1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.(2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs.(3) An amount fixed under this rule is separate from and in addition to:(a) any conduct money paid to the addressee, and(b) any witness expenses payable to the addressee.rule 37.11: Ins 2.10.1992. Subst 26.3.2004.
12 Failure to comply with subpoena—contempt of court
(1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly.(2) Despite rule 5 (1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.(3) Subrules (1) and (2) are without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.rules 37.12, 37.13: Ins 26.3.2004.
13 Documents and things in the custody of a court
(1) A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Registrar in writing accordingly, identifying the document or thing.(2) If the document or thing is in the custody of the Court, the Registrar must produce the document or thing:(a) in Court or to any person authorised to take evidence in the proceeding, as required by the party, or(b) as the Court directs.(3) If the document or thing is in the custody of another court, the Registrar must, unless the Court has otherwise ordered:(a) request the other court to send the document or thing to the Registrar, and(b) after receiving it, produce the document or thing:(i) in Court or to any person authorised to take evidence in the proceeding as required by the party, or(ii) as the Court directs.rules 37.12, 37.13: Ins 26.3.2004.
Part 38 Affidavits
1 Time for swearing
cf Consolidated Equity Rules of 1902, r 19A.
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.cf RSC (Rev) 1965, O 41, r 1 (4).(2) The body of an affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.cf RSC (Rev) 1965, O 41, r 1 (6).(3) Where it appears to the person before whom an affidavit is sworn that the deponent is illiterate or blind, he must certify in or below the jurat that:(a) the affidavit was read in his presence to the deponent, and(b) the deponent seemed to understand the affidavit.cf RSC (Rev) 1965, O 41, r 3.(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.cf RSC (Rev) 1965, O 41, r 3.(4A) A solicitor taking and receiving an affidavit concerning any matter within the jurisdiction of the Court shall, by use of a stamp or otherwise, add, legibly below his signature, his name and address together with “solicitor”.(4B) A person authorised or deemed to have been authorised by the Chief Justice under section 27 (2) of the Oaths Act 1900, taking and receiving an affidavit concerning any matter within the jurisdiction of the Court, shall, by use of a stamp or otherwise, add, legibly below his signature, his name and address together with “commissioner for affidavits”.(5) Each page of an affidavit shall be signed by the deponent and by the person before whom it is sworn.cf General Rules of the Court, O 27, r 5.(6) (Repealed)rule 38.2: Am 2.6.1972; 22.9.1989; 21.2.1997; 20.2.1998.
3 Alterations
(1) Where there is any interlineation, erasure or other alteration in the jurat or body of an affidavit, 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.cf RSC (Rev) 1965, O 41, r 7 (1).(2) Subrule (1) applies to an account verified by affidavit as if the account were part of the affidavit.rule 38.3: Am 26.9.1986.
4 Annexures, exhibits and length of affidavits
(1) Subject to subrule (2) a document to be used in conjunction with an affidavit may be made:(a) an annexure, orto the affidavit.(b) an exhibit,(2) Except by leave of the Court, an affidavit, together with annexures, must not exceed 50 pages.(3) An annexure to an affidavit must be identified as such by a certificate endorsed on the annexure (and not on a page separate from the annexure) signed by the person before whom the affidavit is made.(4) An exhibit to an affidavit must be identified as such by a certificate attached to the exhibit entitled in the same manner as the affidavit and signed by the person before whom the affidavit is made.(5) An exhibit to an affidavit must not be filed.(6) A party who serves an affidavit to which a document is an exhibit shall, at the option of any other party:(a) produce the document for inspection by that other party,(b) provide a photocopy of the document to that other party, or(c) produce the document at some convenient place to enable it to be photocopied by that other party.(7) Where it would be convenient for the Judge or other judicial officer expected to hear a matter to peruse the exhibit prior to its tender, the exhibit (or a copy thereof) should be delivered to the chambers of the Judge or other judicial officer within 2 days prior to the expected hearing.rule 38.4: Subst 25.10.1996.
4A (Repealed)
rule 38.4A: Ins 8.7.1983. Rep 24.9.1993.
5 Irregularity
An affidavit may, with the leave of the Court, be used notwithstanding any irregularity in form.rule 38.5: Subst 26.9.1986.
6 Filing affidavits
(1) An affidavit may not be used without the leave of the Court unless it has been filed.(2) Subject to subrule (3), an affidavit for use in proceedings in the Court shall be filed in the registry.(3) An affidavit may be filed in Court when the proceedings are before the Court:(a) in the circumstances referred to in subrule (4) (b), or(b) with the leave of the Court.(4) An affidavit for use in proceedings to be listed for any purpose on a known date before the Court in Sydney:(a) where practicable, shall be filed in the registry not less than 2 days before that date, clearly endorsed at the top of the left hand margin of the front page to the effect “BEFORE THE COURT ON [DATE]”, or(b) otherwise—shall not be filed in the registry less than 2 days before that date and may be filed in Court when the proceedings are before the Court on that date.rule 38.6: Rep 14.2.1986. Ins 26.9.1986. Am 21.4.1989. Subst 21.10.1994.
7 Service
(1) A party intending to use an affidavit shall serve it on each other interested party not later than a reasonable time before the occasion for using it arises.(2) A party who fails to serve an affidavit in accordance with the requirements of the rules or of any direction of the Court may not use the affidavit without the leave of the Court.rule 38.7: Subst 2.6.1972. Am 14.2.1986; 27.11.1992.
7A Proof of service of an affidavit
(1) An affidavit which has been served may be identified in an affidavit of service by:(a) exhibiting to the affidavit of service a copy of the affidavit served, or(b) including in the affidavit of service a sufficient description of the affidavit served.(2) A copy of an affidavit which has been served shall not be annexed to an affidavit of service.rule 38.7A: Ins 22.4.1994.
8 Scandal etc
cf RSC (Rev) 1965, O 41, r 6.
Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, the Court 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.cf GRC, O 27, r 12.(2) A requirement under subrule (1) shall be made to the party serving or proposing to use the affidavit.(3) Where the attendance of a person is required under subrule (1), the affidavit may not be used unless the person attends or is dead or the Court grants leave to use it.(4) Where a person making an affidavit is cross-examined, the party using the affidavit may re-examine him.rule 38.9: Am 26.9.1986; 24.10.1986.
Part 39 Court appointed expert and assistance to the Court
pt 39: Subst 28.1.2000.
Division 1 Court appointed expert
1 Selection and appointment
(1) Where a question for an expert witness arises in any proceedings the Court may, at any stage of the proceedings, on application by a party or of its own motion, after hearing any party affected who wishes to be heard:(a) appoint an expert (in this Division referred to as the expert) to inquire into and report upon the question,(b) authorise the expert to inquire into and report upon any facts relevant to the inquiry and report on the question,(c) direct the expert to make a further or supplemental report or inquiry and report, and(d) give such instructions (including provision concerning any examination, inspection, experiment or test) as the Court thinks fit relating to any inquiry or report of the expert.(2) The Court may appoint as the expert a person selected by the parties affected or a person selected by the Court or selected in a manner directed by the Court.rule 39.1: Subst 28.1.2000.
2 Code of conduct
(1) A copy of the expert witness code of conduct in Schedule K (the code) shall be provided to the expert by the registrar or as the Court may direct.(2) A report by the expert shall not be admitted into evidence unless the report contains an acknowledgment by the expert that he or she has read the code and agrees to be bound by it.(3) Oral evidence shall not be received from the expert unless the Court is satisfied that he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it.rule 39.2: Am 22.11.1985. Subst 28.1.2000.
3 Report
(1) The expert shall send his or her report to the registrar.(2) The registrar shall send a copy of the report to each party affected.(3) Subject to compliance with this rule, the report shall be deemed to have been admitted into evidence in the proceedings unless the Court otherwise orders.rules 39.3–39.5: Subst 28.1.2000.
4 Cross-examination
Any party affected may cross-examine the expert and the expert shall attend court for examination or cross-examination if so requested on reasonable notice by the registrar or by a party affected.rules 39.3–39.5: Subst 28.1.2000.
5 Remuneration
(1) The remuneration of the expert shall be fixed by the Court.(2) Subject to subrule (3), the parties specified by the Court shall be jointly and severally liable to the expert to pay the amount fixed by the Court for his remuneration.(3) The Court may direct when and by whom the expert is to be paid.(4) Subrules (2) and (3) do not affect the powers of the Court as to costs.rules 39.3–39.5: Subst 28.1.2000.
6 Other expert evidence
Where an expert has been appointed pursuant to this Part in relation to a question arising in the proceedings, a party to the proceedings may not adduce evidence of any other expert on the question except with the leave of the Court.rule 39.6: Subst 28.1.2000; 23.5.2003.
Division 2 Assistance to the Court
7 Assistance to the Court
The Court may, in any proceedings other than proceedings entered in the Admiralty List or proceedings tried with a jury, obtain the assistance of any person specially qualified to advise on any matter arising in the proceedings, may act upon the adviser’s opinion, and may make orders for the adviser’s remuneration.rule 39.7: Am 23.10.1998. Subst 28.1.2000.
Part 40 Judgments and orders
pt 40, Heading: Am 4.5.1973.
Division 1 General
1 General relief
cf RSC (Rev) 1965, O 29, r 1 (1).
The Court may, at any stage of any proceedings, on the application of any party, give such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that judgment or order in any originating process.rules 40.1, 40.2: Am 30.3.1990.
2 Written opinion
cf Court of Appeal Rules, r 54.
Where the Court gives any judgment or makes any order and the opinion of the Court or of any Judge or officer of the Court is reduced to writing, it shall be sufficient to state orally the opinion of the Court, Judge or officer without stating the reasons for the opinion, but the written opinion shall be then given by delivering it to an associate or to the registrar or to an officer of the registry.rules 40.1, 40.2: Am 30.3.1990.
3 Date of effect
cf RSC (Rev) 1965, O 42, r 3 (2).
(1) A judgment shall take effect:(a) where it is given in Court—as of the date on which it is given,(b) otherwise—as of the date of entry.(2) (Repealed)(3) Subject to subrule (1) an order shall take effect as of the date on which it is made.(4) Notwithstanding subrules (1) and (3), where an order of the Court directs the payment of costs and the costs are, pursuant to any Act or the rules, to be taxed, the order shall take effect as of the date of the certificate of taxation.(5) Notwithstanding subrules (1), (3) and (4), the Court may order that a judgment or order take effect as of a date earlier or later than the date fixed by those subrules.rule 40.3: Am 9.12.1983; 30.3.1990.
4 Time for compliance
(1) Where a judgment or order requires a person to do an act within a specified time, the Court may, by order, require him to do the act within another specified time.cf RSC (Rev) 1965, O 45, r 6 (1).(2) Where a judgment or order requires a person to do an act forthwith or forthwith upon a specified event or to do an act but does not specify a time within which he is required to do the act, the Court may, by order, require him to do the act within a specified time.cf RSC (Rev) 1965, O 45, r 6 (2).rule 40.4: Subst 12.7.1985.
5 Payment to the registrar
(1) Where there is a case for ordering a person to pay money into Court, the Court may, instead of ordering payment into Court, order the person to pay the money to the registrar.(2) Where the Court has ordered a person to pay money into Court, and the whole or any part of the money remains unpaid, the Court may order the person to pay to the registrar so much of the money as remains unpaid and thereupon discharge the order for payment into Court so far as concerns the money which remains unpaid.
6 Fine
cf Fines and Forfeited Recognizances Rules, r 4.
(1) Where the Court imposes a fine, the Court shall order that the person on whom the fine is imposed pay the fine to the registrar.cf Fines and Forfeited Recognizances Rules, Form 2.(2) The registrar shall pay into the Consolidated Revenue Fund all moneys paid to him on account of any fine imposed by the Court.
7 Interest
(1) Where the Court gives judgment for the payment of money and makes an order under section 94 of the Act or section 73 of the Motor Accidents Act 1988 or section 137 of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987 for the payment of interest, interest shall, unless the order otherwise provides, be payable on so much only of the money as is from time to time unpaid.cf Act No 21, 1899, s 142 (1) proviso.(2) The prescribed rate of interest for the purposes of section 95 of the Act is, in respect of any period mentioned in column 1 of Schedule J, the rate per cent yearly mentioned in column 2 of that Schedule beside that period.rule 40.7: Am 6.9.1974; 8.10.1982; 9.12.1983; 21.12.1984; 20.12.1985; 27.6.1986; 20.2.1987; 20.3.1987; 23.10.1987; 19.2.1988; 24.2.1989; 18.8.1989; 30.3.1990; 24.8.1990; 25.11.1994; 23.2.1996; 19.11.1999.
8 Dismissal
(1) Where under section 46 (1) (b) and (c) of the Act (which paragraphs relate to dismissal of certain proceedings by a Judge of Appeal) or section 108 (2) of the Act (which subsection relates to an order of the Court of Appeal where a verdict cannot be supported) or under these rules, except Part 51 rule 24 (a) and (b) and Part 51AA rule 17 (a) and (b) (which paragraphs relate to dismissal of an appeal by the Court of Appeal), the Court makes an order for the dismissal of proceedings or for the dismissal of proceedings so far as concerns any cause of action or the whole or any part of any claim for relief, the order for the dismissal shall not, subject to any terms or conditions on which the order for dismissal is made, prevent the plaintiff or claimant from bringing fresh proceedings or claiming the same relief in fresh proceedings.(2) Where:(a) the Court makes an order for the dismissal of proceedings so far as concerns any cause of action or the whole or any part of any claim for relief by any party,(b) the Court orders that party to pay any costs, andthe Court may stay the further proceedings until those costs are paid.(c) before payment of the costs, the party brings against a party to whom the costs are payable further proceedings on the same or substantially the same cause of action or for the same or substantially the same relief,rule 40.8: Am 25.10.1974; 23.5.1997.
9 Setting aside or varying judgment or order
(1) The Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment.cf RSC (Rev) 1965, O 13, r 9; O 19, r 9; O 35, r 2 (1).(2) The Court may set aside or vary a judgment:(a) where the judgment has been entered pursuant to Part 17 (which relates to default judgment), or(b) where the judgment has been entered after judgment has been given in the absence of a party, whether or not the absent party had notice of trial or of any motion for the judgment,(c) where the judgment has been entered in proceedings for possession of land after judgment has been given in the absence of a person and the Court decides to make an order that the person be added as a defendant.(3) The Court may, on terms, set aside or vary an order:(a) where the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of motion for the order, or(b) where notice of motion for the setting aside or variation is filed before entry of the order.(4) In addition to its powers under subrules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and excepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief.(5) Nothing in this rule affects any other power of the Court to set aside or vary a judgment or order.rule 40.9: Am 2.6.1972; 30.3.1990.
10 Judicial notice of order
(1) In any proceedings, the Court may take judicial notice of any order of, or undertaking given to, the Court in the proceedings.(2) In any proceedings, the Court may be informed of an order of, or an undertaking given to, the Court in the proceedings by (amongst other things) reference to a note made:(a) by the Judge or master making the order or accepting the undertaking or by his associate or by any other proper officer, or(b) by the registrar or other officer making the order or accepting the undertaking.rule 40.10: Am 7.12.1984.
Division 2 Particular judgments and orders
pt 40, div 2: Ins 4.5.1973.
11 Possession of land
cf General Rules of the Court, O 21, r 7 (c).
Unless the Court otherwise orders, judgment for possession of land shall not be given or entered against a defendant in his or her absence, unless the plaintiff files an affidavit:(a) showing whether any and, if so, what persons, other than parties to the proceedings, were in occupation of the whole or any part of the land:(i) if the originating process was amended to include the claim for possession—at the time of making the amendment, or(ii) otherwise—at the time of filing the originating process,(b) proving, as to each of those persons (other than any person whose occupation the plaintiff does not seek to disturb), either that the originating process and a notice pursuant to Part 7 rule 8 (1) (b) has been served on him or her within the time prescribed by the rules or that he or she has ceased to be in occupation of any part of the land,(c) where the plaintiff claims possession by reason of default in the payment of money, setting out particulars of the default.rule 40.11: Ins 4.5.1973. Am 20.12.1974; 23.3.1984; 22.3.1985; 30.3.1990; 24.2.1995; 24.11.1995; 19.12.1997. Subst 24.4.1998. Am 24.7.1998.
12 Certificate under s 208J or s 208JA or s 208KF or s 208KH of the Legal Profession Act 1987
(1) A certificate filed in the Court under section 208J (3) or section 208JA (4) or section 208KF (2) (b) or section 208KH (6) of the Legal Profession Act 1987 shall be filed:(a) where the certificate relates to costs of proceedings in the Court—in the proceedings, or(b) otherwise—in the Common Law Division.(2) Notwithstanding Part 41 rule 13 (3), where:(a) the certificate, and(b) an affidavit, sworn not earlier than 14 days before it is filed, stating:(i) if the affidavit is filed with the certificate—how much of the amount of costs included in the certificate has not been paid, andare filed in the Court, the registrar may file and seal a minute of the resulting judgment without a direction of the Court or request of a party.(ii) otherwise—the amount of the costs included in the certificate that, at the time the certificate was filed, had not been paid,(3) A document filed in the Court relating to:(a) the certificate, orshall be entitled between:(b) judgment entered in relation to the certificate,(c) as plaintiff, the person to whom the costs included in the certificate are payable, and(d) as defendant, the person by whom the costs are payable.rule 40.12: Ins 23.3.1984. Rep 22.3.1985. Ins 24.6.1994. Subst 23.5.1997. Am 21.8.1998.
Part 41 Judgments and orders: minutes, entry and copies
pt 41, Heading: Am 22.5.1992.
Division 1
1 (Repealed)
pt 41, div 1: Rep 30.3.1990.
rule 41.1: Am 24.4.1986. Rep 30.3.1990.
Division 2 Settlement generally
2 (Repealed)
rule 41.2: Am 23.6.1972. Rep 30.3.1990.
3 Lodgment
(1) Where the entry of a judgment or order is authorised by the rules or by a direction of the Court, a party may lodge a draft minute of the judgment or order with the registrar.(2) Unless entry is authorised by the rules, the party lodging the draft minute shall, not less than two days beforehand, serve the draft on each party affected by the judgment or order.rule 41.3: Am 30.3.1990.
4 Summary settlement or appointment for settlement
(1) Where the party lodges a draft minute of a judgment or order with the registrar, the registrar may:(a) settle the draft without an appointment for attendance of the parties, or(b) appoint a time and place of attendance of the parties on settlement of the draft and notify the appointment to the party lodging the draft minute.(2) The party lodging the draft minute shall, not less than two days before the appointed date, serve notice of the appointment on the other party.rule 41.4: Subst 30.3.1990.
5 (Repealed)
rule 41.5: Rep 30.3.1990.
6 Procedure on appointment
(1) Where a party has been served with notice of an appointment to settle a draft minute of a judgment or order, but does not attend on the appointment, or where the party lodging the draft does not attend on the appointment, the registrar may settle the draft minute in the absence of that party.(2) The registrar shall, on or after the appointment, settle the draft minute.
7 Settlement without lodgment
(1) Where the entry of a judgment or order is authorised by the rules or by a direction of the Court, the registrar may draw and settle a minute of the judgment or order.(2) The registrar may exercise his powers under subrule (1):(a) notwithstanding that no party has lodged a minute or draft minute with him, and(b) without appointing any time or place for attendance of the parties on settlement.(3), (4) (Repealed)rule 41.7: Am 30.3.1979; 30.3.1990.
8 Signature
The registrar shall, on settling a draft minute of a judgment or order, sign the draft or a fair copy of it.
Division 3 Review
9 Review
(1) Where the registrar has signed a minute of a judgment or order, but the judgment or order has not been entered, the Court may review the minute and give such directions as it thinks fit for varying the form and content of the minute.cf CAR, r 50.(2) Where the Court of Appeal gives a judgment, or makes an order, the powers of the Court under subrule (1) in respect of a minute of the judgment or order shall not be exercised by the Court of Appeal.rules 41.9, 41.10: Am 30.3.1990.
Division 4 Entry
10 (Repealed)
rules 41.9, 41.10: Am 30.3.1990.
11 Judgments and orders: where entry required
cf RSC (Rev) 1965, O 44, r 20 (2).
(1) Any judgment or order given or made shall, subject to subrules (3) and (4), be entered.(2) (Repealed)(3) Subrule (1) does not apply to an order which (in addition to any provision as to costs) merely:(a) makes an extension or abridgment of time, or(b) grants leave or makes a direction:(i) to amend any document other than a minute of a judgment or order,(ii) to file any document, or(iii) to do any act to be done by an officer of the Court, or(c) gives directions concerning the conduct of proceedings.cf RSC (Rev) 1965, O 42, r 4 (2) (3).(4) Subrule (1) does not apply to any order which directs that proceedings in the Court be removed to the Court of Appeal or referred, removed or remitted to the Court constituted by a Judge or master, whether or not it also determines any question arising in the proceedings, gives any directions or makes any provision as to costs.rule 41.11: Am 7.12.1984; 30.3.1990; 21.5.1999.
12 (Repealed)
rule 41.12: Rep 30.3.1990.
13 Manner of entry
(1) Where the entry of a judgment or order is authorised by the rules or a judgment or order is given or made, a party or, subject to subrule (3), the registrar, may file a minute of it signed by the registrar or by the Judge or master by whom the judgment or order is given or made.(2) The judgment or order is entered when the registrar seals the minute so signed and filed.(3) Subject to Part 40 rule 12 (2), Part 74 rule 1A, Part 76 rule 7, Part 77 rule 141 (3), Part 80 rule 6, Part 80A rule 6 and subrule (3A), the registrar shall not file or seal the minute in proceedings in a Division unless the Court so directs or a party so requests.(3A) The registrar may, in proceedings under the Corporations Law, file or seal a minute of a judgment or order without a direction of the Court or request of a party.(4) Where, in proceedings on a claim for damages or other money, the solicitors for the parties have signed an agreement showing the terms in which judgment may be entered, the agreement may be filed and judgment may, on the production of a minute of judgment bearing the signed consents of the solicitors, be entered accordingly.rule 41.13: Am 30.3.1979. Subst 30.3.1990. Am 25.2.1994; 24.5.1996; 23.5.1997; 23.7.1999; 24.12.1999 (see also 25.2.2000).
14 (Repealed)
rule 41.14: Rep 30.3.1990.
Division 5 Copies and service
15 Copies of judgments and orders of the Court
(1) The registrar shall, upon payment of the prescribed fee, furnish to any party to any proceedings a certified or office copy of the minute of any judgment or order entered in the proceedings.(2) The registrar may, upon payment of the prescribed fee, furnish to any person appearing to have a sufficient interest in any judgment or order entered in any proceedings a certified or office copy of the minute of the judgment or order.(3) Notwithstanding subrules (1) and (2), the registrar shall not, unless the Court otherwise orders, furnish a copy of a minute of an adoption order made in proceedings under the Adoption Act 2000 to any person except the plaintiff in those proceedings.rule 41.15, headnote: Subst 22.5.1992.rule 41.15: Am 2.6.1972; 24.4.2003.
15A Copies of judgments etc registered or filed in the Court
(1) In this rule:(a) external judgment means a judgment or order of a court, other than the Court, registered or filed in the Court under any Act or Commonwealth Act, and(b) subject certificate means a certificate filed in the Court under section 21B (3) of the Crimes Act 1914 of the Commonwealth.(2) In this rule a reference to a judgment or order shall include a reference to:(a) an amendment of or to a judgment or order, and(b) a certificate of a judgment or order.(3) The registrar shall, upon payment of the prescribed fee, furnish a certified or office copy of an external judgment or subject certificate:(a) where the external judgment is registered or filed pursuant to an order of the Court—to any party to the proceedings in which the order for registration was made,(b) where the external judgment is registered otherwise than pursuant to an order of the Court—to the person on whose application registration was effected, and(c) where the external judgment or the subject certificate is filed in the Court—to any person who filed the external judgment or the subject certificate.(4) The registrar may furnish, upon payment of the prescribed fee, a certified or office copy of an external judgment or a subject certificate to any person appearing to have a sufficient interest in the external judgment or the subject certificate.(5) Where, under subrules (3) or (4), the registrar furnishes a certified or office copy of an external judgment or a subject certificate, he shall endorse, on the copy which he furnishes, a statement:(a) identifying the provision under which registration or filing was effected,(b) of the date of registration or filing,(c) where registration or filing was effected by means of a facsimile copy—that registration or filing was so effected, and(d) where registration or filing has been cancelled or has ceased to have effect—the date of cancellation or cessation.rule 41.15A: Ins 22.5.1992.
15B Copies in aid of enforcement outside of Australia
(1) This rule applies to an application under:(a) section 6 (1) of the Administration of Justice Act 1924 (which subsection relates to the issue of a certified copy of a judgment of the Court), or(b) section 13 (1) of the Foreign Judgments Act 1973 or section 15 (1) of the Foreign Judgments Act 1991 of the Commonwealth (which subsections relate to the issue of a certificate and a certified copy of a judgment of the Court).cf RSC (Rev) 1965, O 71, r 13 (3) (5).(2) The applicant may, on payment of the fees fixed under the Act, apply for the copy by filing an affidavit stating the facts on which he relies and, in respect of an application under:(a) the Foreign Judgments Act 1973, orfacts sufficient to enable a certificate to be given in the prescribed form.(b) the Foreign Judgments Act 1991 of the Commonwealth,(3) The applicant need not, unless the Court otherwise orders, file or serve notice of motion for the issue of the copy or of any certificate.rule 41.15B (previously Rule 41.15A), headnote: Subst 22.5.1992.rule 41.15B (previously Rule 41.15A): Ins 5.10.1973. Am 23.12.1988. Renumbered 22.5.1992. Am 2.10.1992.
16 Service
A minute of a judgment or order need not be served unless the rules require service or the Court directs service.
Part 42 Judgments and orders: enforcement
1 Interpretation
cf RSC (Rev) 1965, O 45, r 1 (4).
In this Part, unless the context or subject matter otherwise indicates or requires:(a) judgment includes an order, and(b) a reference to a writ or other means for the enforcement of a judgment extends to any further writ or other means in aid of the firstmentioned writ or means.
2 Payment of money
(1) A judgment for the payment of money (not for the payment of money into Court) may be enforced by one or more of the following means:(a) levy of property,(b) attachment of debts,(c) charging order,(d) appointment of a receiver, and(e) in a case in which rule 6 applies, but subject to rule 8:(i) committal, and(ii) sequestration.cf RSC (Rev) 1965, O 45, r 1 (1).(2) A judgment for the payment of money into Court may be enforced by one or more of the following means:(a) appointment of a receiver, and(b) in a case in which rule 6 applies, but subject to rule 8:(i) committal, and(ii) sequestration.cf RSC (Rev) 1965, O 45, r 1 (2).(3) Subrules (1) and (2) do not affect any other means for enforcement of a judgment for the payment of money.cf RSC (Rev) 1965, O 45, r 1 (3).(4) This rule is subject to Part 2 of the Fines Act 1996.rule 42.2: Am 19.12.1997.
3 Payment to the registrar
(1) Notwithstanding rule 2 (2), a judgment for the payment of money to the registrar may be enforced by any of the means mentioned in rule 2 (1).(2) Subject to subrule (3), the registrar may take all such steps for the enforcement of a judgment for the payment of money to the registrar as a party may take for the enforcement of a judgment for the payment of money to that party.(3) A judgment for the payment of money to the registrar shall not be enforced otherwise than by levy of property, without the leave of the Court.(4) The registrar shall take such steps authorised by this rule as the Court may by order direct for the enforcement of any judgment for the payment of money to the registrar.(5) Where the sheriff is required to pay money to the registrar, he may pay the money into the Consolidated Revenue Fund or to the registrar.(6) This rule is subject to Part 2 of the Fines Act 1996.rule 42.3: Am 22.8.1975; 19.12.1997.
4 Possession of land
(1) A judgment for possession of land may be enforced by one or more of the following means:(a) writ of possession, and(b) in a case in which rule 6 applies, but subject to rule 8:(i) committal, and(ii) sequestration.(1A) Where a plaintiff claims possession of land against more than one defendant, judgment entered against a defendant in his absence shall not, unless the Court otherwise orders, be enforced against any defendant until judgment for possession of the land is entered against each defendant against whom the claim is made.cf RSC (Rev) 1965, O 13, r 4 (2); O 19, r 5 (2).(2) A writ of possession to enforce a judgment for possession of land shall not be issued without the leave of the Court.cf RSC (Rev) 1965, O 45, r 3 (2).(2A) A person may move for leave for the purposes of this rule without filing or serving notice of the motion.(2B) (Repealed)(3) An application for leave for the issue of a writ of possession must show who was in occupation of each part of the land at the time of the commencement of the proceedings and who has been served with notice under Part 7 rule 8.cf RSC (Rev) 1965, O 45, r 3 (3) (a).(4) Where a person is, at the time of commencement of proceedings for possession of land, in occupation of the whole or any part of the land and he is not a party to the proceedings and notice under Part 7 rule 8 is not served on him, the Court shall, when giving leave for the issue of a writ of possession, direct that the writ be restricted so as not to authorise disturbance of the occupation of that person.(4A) If an originating process is amended by the addition of a claim for possession of land, the time at which proceedings for possession of that land are commenced shall, for the purposes of subrules (3) and (4), be taken to be the time at which the amendment is made.(5) A writ of possession may include provision for enforcing the payment of:(a) money required to be paid by the judgment to be enforced by the writ, and(b) money recoverable under section 107 (1) of the Service and Execution of Process Act.cf RSC (Rev) 1965, O 45, r 3 (4).rule 42.4: Am 20.10.1972; 4.5.1973; 2.4.1993; 19.12.1997.
5 Delivery of goods
(1) In this rule, writ of specific delivery means a writ of delivery without alternative provision for recovery of the assessed value of the goods.cf RSC (Rev) 1965, O 45, r 4 (1) (a).(2) A judgment for the delivery of goods which does not give a person bound the alternative of paying the assessed value of the goods may be enforced by one or more of the following means:(a) writ of specific delivery, and(b) in a case in which rule 6 applies, but subject to rule 8:(i) committal, and(ii) sequestration.(3) A judgment for the delivery of goods or payment of their assessed value may be enforced by one or more of the following means:(a) writ of delivery to recover the goods or their assessed value,(b) with the leave of the Court, writ of specific delivery, and(c) in a case in which rule 6 applies, but subject to rule 8, sequestration.cf RSC (Rev) 1965, O 45, r 4 (2).(4) A writ of specific delivery, and a writ of delivery to recover goods or their assessed value, may include provision for enforcing the payment of:(a) money required to be paid by the judgment to be enforced by the writ, and(b) money recoverable under section 107 (1) of the Service and Execution of Process Act.cf RSC (Rev) 1965, O 45, r 4 (3).(5) A judgment for the payment of the assessed value of goods may be enforced by the same means as any other judgment or order for the payment of money (other than a judgment for the payment of money into Court).cf RSC (Rev) 1965, O 45, r 4 (4).rule 42.5: Am 2.4.1993.
6 Doing or abstaining from doing an act
(1) This rule applies:(a) where:(i) a judgment requires a person to do an act within a time specified in the judgment, and(ii) he refuses or neglects to do the act within that time or, if that time has been extended or abridged under Part 2 rule 3, within that time as so extended or abridged, and(b) where a judgment requires a person to do an act forthwith or forthwith upon a specified event and he refuses or neglects to do the act as the judgment requires, and(c) where:(i) a judgment requires a person to abstain from doing an act, and(ii) he disobeys the judgment.cf RSC (Rev) 1965, O 45, r 5 (1).(2) In a case in which this rule applies, a judgment may, subject to rule 8, be enforced by one or more of the following means:(a) committal of the person bound,(b) sequestration of the property of the person bound, and(c) where the person bound is a corporation:(i) committal of any officer of the person bound, and(ii) sequestration of the property of any officer of the person bound.cf RSC (Rev) 1965, O 45, r 5 (1).(3) Subrule (2) has effect subject to section 98 of the Act (which restricts the enforcement, by attachment or committal, of a judgment for the payment of money) and Part 2 of the Fines Act 1996.cf RSC (Rev) 1965, O 45, r 5 (1) (b) (iii).(4) Where there is a judgment for the delivery of goods or payment of their assessed value:(a) the judgment shall not be enforced by committal under subrule (2), and(b) the Court may order the person bound to deliver the goods within a specified time, and(c) an order under paragraph (b) may be enforced by committal under subrule (2).cf RSC (Rev) 1965, O 45, r 5 (3).rule 42.6: Am 12.7.1985; 19.12.1997.
7 Attendance
(1) Where the Court by subpoena or otherwise, makes an order in any proceedings for the attendance of a person:(a) for the purpose of giving evidence,(b) for the production of any document or thing,(c) to answer a charge of contempt, orand the person defaults in attendance in accordance with the order, the Court may, on application by a party or of its own motion:(d) for any other purpose,(e) issue, or make an order for the issue of, a warrant to the Sheriff or such other person as the Court may appoint for the arrest of the person in default and for the production of the person in default before the Court or before an examiner or other person for the purpose of the proceedings and for his detention in custody in the meantime, and(f) order the person in default to pay any costs occasioned by the default.cf Act No 11, 1898, s 13 (1) (a); Act No 25, 1900, s 136 (3); High Court Rules, O 56, rr 1 (1) (3), 6.(2) Where:(a) the Court, by subpoena or otherwise, makes an order in any proceedings for the production by a corporation of any document or thing,(b) the order is served in accordance with the rules, andthe Court may, on application by a party or of its own motion:(c) the corporation defaults in producing the document or thing in accordance with the order,(d) issue, or make an order for the issue of, a warrant to the Sheriff or such other person as the Court may appoint for the arrest of any officer of the corporation for the production of that officer before the Court or before an examiner or other person for the purpose of the proceedings and for his detention in custody in the meantime, and(e) order the corporation to pay any costs occasioned by the default.(3) Neither subrule (1) nor subrule (2) affects:(a) the power of the Court to punish for contempt, or(b) the provisions of Part 55 (which relates to contempt).rule 42.7: Am 2.4.1982.
8 Service before committal or sequestration
(1) Subject to the rules, a judgment shall not be enforced by committal or sequestration unless:(a) a minute of the judgment is served personally on the person bound, and(b) if the judgment requires the person bound to do an act within a specified time, the minute is so served before that time expires.cf RSC (Rev) 1965, O 45, r 7 (1) (2).(2) Subject to the rules, where the person bound by a judgment is a corporation the judgment shall not be enforced by committal of an officer of the person bound or by sequestration of the property of an officer of the person bound unless, in addition to service under subrule (1) on the person bound:(a) a minute of the judgment is served personally on the officer, and(b) if the judgment requires the person bound to do an act within a specified time, the minute is so served before that time expires.cf RSC (Rev) 1965, O 45, r 7 (1) (3).(3) A minute of a judgment served under this rule must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property if:(a) where the judgment requires the person bound to do an act within a specified time, the person bound refuses or neglects to do the act within that time, or(b) where the judgment requires the person bound to do an act forthwith or forthwith upon a specified event and the person bound refuses or neglects to do the act as the judgment requires, or(c) where the judgment requires the person bound to abstain from doing an act, the person bound disobeys the judgment.cf RSC (Rev) 1965, O 45, r 7 (4).(4) Subject to the rules where:(a) a judgment required the person bound to do an act, and(b) an order is made:(i) under Part 40 rule 4, requiring the person bound to do the act within a specified time, or(ii) under rule 6 (4) (b) requiring the person bound to deliver goods within a specified time, anda minute of the judgment mentioned in paragraph (a) must be served on that person before the expiry of that time.(c) a minute of the order mentioned in paragraph (b) is served on a person pursuant to this rule,cf RSC (Rev) 1965, O 45, r 7 (5).(5) Subject to the rules, where:(a) a judgment requires the person bound to do an act within a specified time,(b) an order is made under Part 2 rule 3 extending or abridging that time, anda minute of the order under Part 2 rule 3 must be served on that person before the expiry of that time as so extended or abridged.(c) a minute of the judgment mentioned in paragraph (a) is served on a person pursuant to this rule,cf RSC (Rev) 1965, O 45, r 7 (5).(6) Where a person liable to committal or sequestration of his property by way of enforcement of a judgment has notice of the judgment:(a) by being present when the judgment is directed to be entered or when the order is made, orthe judgment may be enforced by committal of that person or by sequestration of his property notwithstanding that service has not been effected in accordance with this rule.(b) by being notified of the terms of the judgment whether by telephone, telegram or otherwise,cf RSC (Rev) 1965, O 45, r 7 (6) as amended 1967.(7) The Court may dispense with service under this rule.cf RSC (Rev) 1965, O 45, r 7 (7) as amended 1967.rule 42.8: Am 2.6.1972; 12.7.1985; 20.10.1989; 30.3.1990.
9 Substituted performance
(1) Where a judgment requires the person bound to do an act and the person bound does not do the act, the Court may:(a) direct that the act be done by a person appointed by the Court, and(b) order the person bound to pay the costs incurred pursuant to the direction.cf RSC (Rev) 1965, O 45, r 8.(2) Subrule (1) does not affect:(a) the powers of the Court under section 100 of the Act (which relates to the execution of instruments by order of the Court), or(b) the powers of the Court to punish for contempt.cf RSC (Rev) 1965, O 45, r 8.
10 Enforcement by or against non-party
(1) Where, in any proceedings, a person who is not a party obtains an order, or an order is made in favour of a person who is not a party, he may enforce the order by the same means as if he were a party.cf RSC (Rev) 1965, O 45, r 9 (2).(2) Where, in any proceedings, obedience to a judgment may be enforced against a person who is not a party, the judgment may be enforced against him by the same means as if he were a party.cf RSC (Rev) 1965, O 45, r 9 (2).(3) Where, in any proceedings, obedience to a judgment may be enforced against a corporation which is not a party, an officer of the corporation shall be liable to the same process of enforcement as if the corporation were a party.
11 Non-performance of condition
cf RSC (Rev) 1965, O 45, r 10.
Where a person is entitled under a judgment subject to the fulfilment of a condition, and there is a failure to fulfil the condition, then, unless the Court otherwise orders:(a) he shall lose the benefit of the judgment, and(b) any other person interested may take any steps which:(i) are warranted by the judgment, or(ii) might have been taken if the judgment had not been entered or the order had not been made.
12 Matters occurring after judgment
(1) A person bound by a judgment may move the Court for a stay of execution of the judgment, or for some other order, on the ground of matters occurring after the date on which the judgment takes effect and the Court may, on terms, make such order as the nature of the case requires.cf RSC (Rev) 1965, O 45, r 11.(2) Subrule (1) does not affect the powers of the Court under Part 44 rule 5 (which relates to stay of execution).cf RSC (Rev) 1965, O 45, r 11.
13 Committal
A person shall not be committed except by or under an order of the Court stating why he is being committed.rule 42.13: Am 28.7.1978.
Part 43 Discovery in aid of enforcement
1 Order for examination or production
(1) The Court may, on motion by a person entitled to enforce a judgment or order, order a person bound by the judgment or order to:(a) attend before an officer of the Court and be orally examined on the material questions, and(b) produce any document or thing in the possession, custody or power of the person bound relating to the material questions.cf RSC (Rev) 1965, O 48, rr 1 (1), 2.(2) For the purposes of subrule (1), the material questions are:(a) as to so much of a judgment or order as requires the person bound to pay money:(i) whether any and, if so, what debts are owing to the person bound, and(ii) whether the person bound has any and, if so, what other property or means of satisfying the judgment or order, and(b) as to so much of the judgment or order as does not require the person bound to pay money, such questions concerning or in aid of the enforcement or satisfaction of the judgment or order as may be specified in the order for examination or production.cf RSC (Rev) 1965, O 48, rr 1 (1), 2.
2 Corporation
cf RSC (Rev) 1965, O 48, r 1 (1).
Where the person bound is a corporation the Court may make orders as mentioned in rule 1 for the examination of, or production by, an officer or former officer of the corporation.
3 Procedure
(1) A person may move for an order under rule 1 or rule 2 without filing or serving notice of the motion.cf RSC (Rev) 1965, O 48, r 1 (1).(2) An order under rule 1 or rule 2 must be served personally on the person ordered to attend or to produce any document or thing.cf RSC (Rev) 1965, O 48, r 1 (2).
4 No conduct money
No sum need be paid or tendered to meet the expenses of the person ordered to attend under rule 1.rule 43.4: Am 2.6.1972. Subst 2.4.1982; 19.2.1988.
Part 44 Writs of execution: general
1 Definitions
cf RSC (Rev) 1965, O 46, r 1.
In this Part, unless the context or subject matter otherwise indicates or requires:judgment includes an order.writ of execution means:(a) a writ for levy of property, a writ of possession, a writ of delivery, a writ of sequestration, or(b) a writ in aid of a writ mentioned in paragraph (a).
2 Leave for issue: general
(1) Notwithstanding Part 42, a writ of execution to enforce a judgment shall not be issued without the leave of the Court in the following cases:(a) where 10 years or more have elapsed since the date of taking effect of the judgment,(b) where any change has taken place, whether by assignment, death or otherwise, in the persons entitled or liable to execution under the judgment,(c) where the judgment is against the assets of a deceased person coming to the hands of his executor or administrator after the date of taking effect of the judgment, and the writ is against assets of that description,(d) where under the judgment a person is entitled subject to fulfilment of a condition,(e) where the writ is against property in the hands of a receiver appointed by the Court or of a sequestrator, or(f) where the writ is an aid of another writ of execution.cf RSC (Rev) 1965, O 46, rr 2 (1), 3; cf Act No 21, 1899, s 134 proviso; cf General Rules of the Court, O 19, r 5.(2) Subrule (1) does not affect any provision for the time being made by or under an Act which provision requires leave for the issue of a writ of execution.cf RSC (Rev) 1965, O 46, r 2 (2).(3) A person may, unless the Court otherwise orders, move for leave for the purposes of this rule without filing or serving notice of the motion.cf RSC (Rev) 1965, O 46, r 4 (1).(4) The motion must be supported by evidence showing:(a) where the judgment is for the payment of money, the amount due on the date of the motion,(b) where subrule 1 (a) applies, the reasons for the delay,(c) where subrule 1 (b) applies, the change which has taken place,(d) where subrule (1) (c) or (d) applies, that a demand to satisfy the judgment has been made on the person liable to satisfy it and that he has not satisfied it,(e) that the applicant is entitled to proceed to execution on the judgment, and(f) that the person against whom execution is sought to be issued is liable to execution on the judgment.cf RSC (Rev) 1965, O 46, r 4 (2).
3 Leave for issue: sequestration
(1) Notwithstanding Part 42, a writ of sequestration shall not be issued without the leave of the Court.cf RSC (Rev) 1965, O 45, r 5 (1) (b) (i), (ii); O 46, r 5.(2) An applicant for leave for the purposes of this rule must:(a) file notice of the motion, and(b) serve the notice and any affidavit in support of the motion personally on the person whose property is sought to be sequestrated.cf RSC (Rev) 1965, O 46, r 5 (2).(3) The Court may dispense with service under subrule (2) (b).cf RSC (Rev) 1965, O 46, r 5 (3).
4 Terms of leave
cf RSC (Rev) 1965, O 46, r 4 (3).
The Court may grant leave for the purposes of rule 2 or rule 3 on terms.
5 Stay of execution
cf RSC (Rev) 1965, O 47, r 1 (1) (5).
The Court may, on terms, stay execution of a judgment or order.
6 Separate execution for costs
cf RSC (Rev) 1965, O 47, r 3 (1).
Where:(a) there is a judgment for the payment of money and for the payment of costs (whether the judgment is for any other matter or not), anda person entitled to enforce the judgment may:(b) when the money (other than costs) becomes payable under the judgment the costs have not become payable (because the costs have not been assessed or for any other reason),(c) have execution to enforce payment of the money (other than costs), and(d) when the costs become payable, have execution separately to enforce payment of the costs.rule 44.6: Am 24.6.1994; 21.8.1998.
7 Issue
(1) A person requiring the issue of a writ of execution shall:(a) produce to the registrar a form of the writ,(b) file a copy of the writ, and(c) where the writ is to enforce a judgment for the payment of money, file an affidavit, sworn not more than 14 days before the requirement, containing and verifying a statement of:(i) the date of taking effect of the judgment,(ii) the amount of money originally payable under the judgment,(iii) the date and amount of each payment made on account of the judgment,(iiiA) the date and amount of each payment made on account of costs or expenses recoverable under section 107 (1) of the Service and Execution of Process Act,(iv) the interest (if any) due on the date of swearing of the affidavit,(v) such other particulars as are necessary to calculate the amount payable under the judgment on the date of swearing of the affidavit,(vi) the amount payable under the judgment on the date of swearing of the affidavit, andand containing and verifying a statement:(vii) the daily amount of interest (if any) which (subject to any future payment on account of the judgment) will accrue after the date of swearing of the affidavit,(viii) that the judgment was not entered as a result of the filing of a certificate under section 208J (3) or section 208JA (4) or section 208KF (2) (b) or section 208KH (6) of the Legal Profession Act 1987, or(ix) that the judgment was entered as a result of the filing of a certificate under section 208J (3) or section 208JA (4) or section 208KF (2) (b) or section 208KH (6) of the Legal Profession Act 1987 and that the determination which the certificate sets out is not subject to any suspension under:(A) section 208N (1) of that Act which has not been ended under section 208N (2), or(B) section 208KE (1) of that Act which has not been ended under section 208KE (2).cf RSC (Rev) 1965, O 46, r 6.(2) A writ of execution shall be issued under seal and shall bear the date of its issue.cf RSC (Rev) 1965, O 46, r 6; Execution against Property Rules, r 8.(3) The person to whom a writ is directed shall, upon executing a writ of execution, serve a copy of the affidavit referred to in subrule (1) and of any affidavit filed under Part 71A rule 6 upon the debtor or leave it at the place where the writ is executed.rule 44.7: Am 2.6.1972; 2.4.1993; 24.6.1994; 21.8.1998.
8 Duration
(1) For the purpose of execution, a writ of execution is valid in the first instance for 12 months beginning with the date of its issue.cf RSC (Rev) 1965, O 46, r 8 (1).(2) The Court may, on motion made while a writ of execution is valid for the purpose of execution, from time to time extend the validity of the writ for the purpose of execution for a period of not more than 12 months beginning with the date on which the order is made.cf RSC (Rev) 1965, O 46, r 8 (2).(3) A person may move for an order under subrule (2) without the prior filing or service of notice of the motion.(4) An order under subrule (2) must be entered and a minute of it must be delivered to the Sheriff.cf RSC (Rev) 1965, O 46, r 8 (3).(5) Where the validity of a writ for the purpose of execution has been extended under this rule, the priority of the writ shall be determined by reference to the date on which it was originally delivered to the Sheriff.cf RSC (Rev) 1965, O 46, r 8 (4).
9 Return
cf Sheriff’s Rules, r 9; RSC (Rev) 1965, O 46, r 9 (1).
A person at whose request a writ of execution is issued may deliver a notice to the Sheriff requiring him, within the time specified in the notice, to make on the writ a statement of the manner in which he has executed the writ and to send to that person a copy of the statement.
10 Costs of prior execution etc
cf Execution against Property Rules, r 10.
(1) The amount for which a writ of execution may be issued shall, unless the Court otherwise orders, include:(a) the costs of any prior writ of execution on the same judgment, whether the prior writ was or was not productive, and(b) any money recoverable under section 107 (1) of the Service and Execution of Process Act.(2) The costs referred to in subrule (1) (a) shall not, without the leave of the Court, be included in the amount for which a writ of execution may be issued if a certificate under section 208J (1) or section 208KF (2) of the Legal Profession Act 1987 issues in respect of the costs of the prior writ and that certificate is not filed in the Court.rule 44.10: Subst 2.4.1993. Am 24.6.1994; 21.8.1998.
11 Provision for enforcing payment of money