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. Subst 27.8.2004.
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
Part 45 rules 4–24, as they apply to a writ for levy of property, also apply to a writ of execution which includes a provision for enforcing the payment of:(a) money required to be paid by the judgment which is to be enforced by the writ, and(b) money recoverable under section 107 (1) of the Service and Execution of Process Act.rule 44.11: Ins 28.5.1982. Am 30.9.1988. Subst 2.4.1993.
Part 45 Levy of property
1 Definitions
In this Part, unless the context or subject matter otherwise indicates or requires:Sheriff includes any person to whom a writ is directed.writ means a writ for levy of property.
2 Name
The writ formerly called a writ of fieri facias shall be called a writ for levy of property.
3 Two or more writs
cf Execution against Property Rules, r 7.
(1) Not more than one writ shall be issued on a judgment, unless the Court otherwise orders.(2) Subrule (1) has effect subject to Part 44 rule 6 (which relates to separate execution for costs).
4 Order of realisation
(1) Where it appears to the Sheriff that the property subject to levy under a writ is more than sufficient to satisfy the money to be levied, he shall first take or realise so much of the property as appears to him to be sufficient.cf EAPR, rr 13, 14, 15.(2) In taking or realising property under subrule (1), the Sheriff shall take or realise the property:(a) in such order as seems to him best for the speedy execution of the writ without undue expense,(b) subject to paragraph (a), in such order as the debtor may direct, and(c) subject to paragraphs (a) and (b), in such order as seems to the Sheriff best for minimising hardship to the debtor and other persons.cf EAPR, rr 13, 14, 15.(3) Land shall not be sold under the writ before all other property liable to sale under the writ has been sold unless:(a) the debtor requests that the land be sold before any other property liable to sale under the writ is sold, or(b) the Sheriff is satisfied, after making reasonable attempts to inquire of the debtor and such other person as the Sheriff thinks fit, that the sale of the land before the sale of all other property liable to sale under the writ would minimise hardship to the debtor and other persons.cf District Court Act 1973, s 110 (2).(4) This rule does not affect any liability of the Sheriff to the execution creditor.rule 45.4: Am 28.5.1982.
5 Time of sale
cf EAPR, r 16 (1).
Subject to rule 4, the Sheriff shall put up for sale all property liable to sale under the writ as early as may be with due regard to the interests of the parties and to the avoidance of sacrifice of the reasonable value of the property.
(1) Where the nature and apparent value of property, other than land, to be sold under a writ are such that it is, in the opinion of the Sheriff, reasonable to do so, the Sheriff may appoint an auctioneer to sell the property, where necessary being a person who holds an appropriate licence under the Property, Stock and Business Agents Act 1941.(2) An auctioneer appointed to sell any property under a writ shall, as soon as practicable after the Sheriff advises him that his services will not be required in respect of the writ, or otherwise requests an account of his charges, advise the Sheriff of the amount of those charges to date.(3) An auctioneer appointed by the Sheriff to sell any property under a writ shall as soon as practicable after receipt by him of any moneys under the writ, pay those moneys to the Sheriff, less the amount of any charges payable to the auctioneer in respect of the writ.rule 45.6: Subst 30.9.1988. Am 26.2.1993.
7 Place of sale
cf EAPR, r 17.
The Sheriff shall put up for sale property liable to sale under a writ at the place which seems to him best for a beneficial realisation of the property.rules 45.7, 45.8: Subst 30.9.1988.
8 Advertisement of sale
(1) The Sheriff shall, before putting property up for sale under a writ, give notice of the time and place of sale and of particulars of the property in the manner which seems to him best to give due publicity to the sale.cf EAPR, r 18.(2) An auctioneer appointed by the Sheriff under rule 6 (1) to sell property may, with the approval of the Sheriff, give such notice, by advertisement in a newspaper or otherwise, as appears to him necessary to give due publicity to the sale.cf DCR 1973, Pt 35, r 4 (5).rules 45.7, 45.8: Subst 30.9.1988.
9 Approximate value of property
cf DCR 1973, Pt 35, r 7 and Pt 36, r 5.
(1) The Sheriff shall, before proceeding to sale under a writ, fix, so far as he can do so by the exercise of diligence which is, having regard to all the circumstances of the case, reasonable, the approximate market value of the property, but need not communicate the value so fixed to any person before the sale.(2) Without limiting the generality of subrule (1), for the purpose of fixing a value under that subrule a Sheriff may if he thinks fit require the creditor to furnish to him any information known to, or reasonably capable of ascertainment by, the creditor in respect of the property, and where the creditor unreasonably fails to furnish any information so required the Sheriff shall report the failure to the registrar, and may refuse to proceed further towards the sale of the property.(3) Without limiting the generality of subrule (1), for the purpose of fixing a value under that subrule, where the nature and apparent value of the property concerned are such that it is, in the opinion of the Sheriff, reasonable to do so, the Sheriff may engage a suitable qualified and experienced valuer to provide him with an opinion as to the value sought to be fixed.(4) The Sheriff or an auctioneer shall not under a writ sell property by public auction for a price substantially below the approximate market value of the property fixed by the Sheriff under subrule (1).rules 45.9–45.12: Ins 28.5.1982. Subst 30.9.1988.
10 Sale of property
cf DCR 1973, Pt 35, r 5 and Pt 36, r 11.
Subject to the rules, property sold under a writ shall be sold by public auction to the highest bidder.rules 45.9–45.12: Ins 28.5.1982. Subst 30.9.1988.
11 Sale of property by private treaty
cf DCR 1973, Pt 35, r 8 and Pt 36, r 11A.
(1) Where at a public auction in respect of property to be sold under a writ the highest bid is substantially below the approximate market value of the property fixed by the Sheriff under rule 9 (1), the Sheriff, or, where an auctioneer was appointed by the Sheriff to sell the property, the auctioneer with the approval of the Sheriff, or either of them, may sell the property under the writ by private treaty.(2) The Sheriff shall not sell, nor approve a sale of, property under subrule (1) at a price substantially below a fair value determined by the Sheriff.(3) In determining a fair value in respect of any property for the purposes of subrule (2), the Sheriff:(a) shall take into account all the relevant circumstances, including but not limited to:(i) the approximate market value of the property fixed by the Sheriff under rule 9 (1),(ii) the amount of the highest bid for the property at the public auction, and(iii) the likelihood or otherwise of there being a higher bid if the property were again put up for sale by public auction, and(b) shall not determine a fair value that is substantially below the amount of the highest bid for the property at public auction.rules 45.9–45.12: Ins 28.5.1982. Subst 30.9.1988.
12 Postponement: sale of property
cf DCR 1973, Pt 35, r 6 and Pt 36, r 10.
(1) The Sheriff may, notwithstanding Part 62 rule 3, from time to time postpone or require any auctioneer to postpone any sale of property under a writ, if the Sheriff thinks it proper to postpone the sale to avoid a sacrifice of the reasonable value of the property or to comply with a request by the creditor for the postponement.(2) Any postponement under subrule (1) shall have the effect of continuing the validity of the writ until the sale, notwithstanding Part 44 rule 8.rules 45.9–45.12: Ins 28.5.1982. Subst 30.9.1988.
13 Conditions of sale of property
cf DCR 1973, Pt 35, r 9 and Pt 36, r 11B.
(1) Subject to subrule (2), the Sheriff shall sell property under a writ, or require any auctioneer appointed by him to sell the property:(a) on terms as to payment that the purchaser shall pay:(i) an amount equal to at least 10% of the purchase price by way of deposit immediately upon the sale, and(ii) the balance of the purchase price:(A) in the case of land, within such period not exceeding six weeks after the sale, andas the Sheriff may determine prior to the sale, or(B) in any other case, within such period not exceeding two working days after the sale,(b) on terms as to payment that the purchaser shall pay the whole of the purchase price immediately upon the sale.(2) Where a sale of property under a writ is partly of land and partly of other property, the other property may be sold on the same terms as to payment as the land.(3) The Sheriff shall require payment for property sold under a writ to be in cash, by bank draft or, if the Sheriff so approves, by credit card.(4) Where payment is made by credit card, any charge made to the Sheriff or the auctioneer in respect of the payment shall form part of the costs of the execution.rule 45.13: Ins 28.5.1982. Subst 30.9.1988; 24.7.1992.
14 Account
cf EAPR r 20.
The Sheriff shall give to any party interested an account of all proceeds of sale and other money received by him under a writ and of his charges and the manner of disposal of the money.rule 45.14: Ins 28.5.1982. Subst 30.9.1988.
15 Notice to debtor: sale of land
cf DCR 1973, P 36, r 2.
(1) The creditor may file an affidavit verifying the registration, or recording of particulars, of a writ at the Registrar-General’s Department and the receipt by the creditor of advice from the Sheriff to the effect that the Sheriff cannot obtain satisfaction of the writ by proceeding further against the goods of the debtor.(2) On filing an affidavit mentioned in subrule (1) the creditor may lodge with the registrar in duplicate, and the registrar shall seal, a notice in Form 57A advising the debtor of:(a) the registration or recording of particulars of the writ,(b) the creditor’s intention to proceed to the sale of the land of the debtor after the lapse of four weeks,(c) the debtor’s right to effect his own disposition of the land and the conditions pertaining thereto, and(d) the debtor’s right to make an application for a stay of execution.(3) The creditor shall cause any notice sealed under subrule (2) to be served on the debtor personally.rule 45.15: Ins 28.5.1982. Subst 30.9.1988. Am 23.2.1990.
16 Disposition of land by debtor
cf DCR 1973, Pt 36, r 3.
(1) The prescribed period for the purposes of section 98A (2) of the Act is the period commencing on the filing of the notice of consent under section 98A (2) (c) and expiring:(a) where notice under rule 15 (2) has been served on the judgment debtor before the endorsing of the notice of consent with the Sheriff’s certificate, on a day two weeks before the expiration, orof a period of three months after the registration, or recording of particulars, of the writ at the Registrar-General’s Department.(b) where notice under rule 15 (2) has not been so served, on a day six weeks before the expiration,(2) Where in respect of a writ money is paid to the Sheriff under section 98A (3) (c) of the Act, the Sheriff shall:(a) retain from that money:(i) the amount due under the judgment, including interest,(iA) any money recoverable in the proceedings under section 107 (1) of the Service and Execution of Process Act,(ii) subject to Part 52A rule 46, the costs of the execution then known to the Sheriff including any fees payable in respect of the execution to any auctioneer, andand shall pay any balance of that money to the debtor, and(iii) subject to Part 52A rule 46, an amount as security for the creditor’s costs of the execution other than those retained under subparagraph (ii),(b) as soon as practicable advise any auctioneer appointed for the purposes of the writ, of the payment.rule 45.16: Ins 28.5.1982. Subst 30.9.1988. Am 2.4.1993; 24.6.1994.
17 Creditor’s application for sale of land
cf DCR 1973, P 36, r 4.
(1) Where a creditor:(a) files an affidavit of service of a notice under rule 15 (2) in respect of the writ,(b) files a notice of sale and lodges with the registrar six copies of the notice, andthe Sheriff may proceed to sell the land or, where the nature and apparent value of the property are such that it is, in the opinion of the Sheriff, reasonable to do so, appoint an auctioneer to sell the land, being a person who holds an appropriate licence under the Property, Stock and Business Agents Act 1941.(c) furnishes to the Sheriff such information as he has in his possession, or can reasonably obtain, which is relevant to the ascertainment of the value of the interest to be sold, including particulars of the value most recently assigned by the Valuer General to the land the subject of the interest and particulars of the title to that land as revealed by a recent search at the office of the Registrar-General,(2) The Sheriff or auctioneer selling land under the writ shall:(a) fix a date for the sale, which date shall be not less than four weeks after the service on the debtor of the notice mentioned in rule 15 (2), and(b) insert the date so fixed in each copy of the notice of sale lodged with the registrar under subrule (1) (b) and forward two sealed copies of the notice so completed to the creditor.rule 45.17: Ins 28.5.1982. Subst 30.9.1988. Am 26.2.1993.
18 Further notice to debtor: sale of land
cf DCR 1973, P 36, r 6.
The creditor shall endorse on a sealed copy of the notice of sale forwarded to him under rule 17 (2) (b) a memorandum in Form 57B reminding the debtor of his right to make an application to stay execution and shall cause the copy so endorsed to be served on the debtor at least one week before the date fixed for the sale.rule 45.18: Ins 28.5.1982. Subst 30.9.1988. Am 23.2.1990.
19 Satisfaction by debtor: sale of land
cf DCR 1973, P 36, r 7.
Where a debtor, before or at the time fixed for the sale of his land under the writ, indicates to the Sheriff or auctioneer his intention of satisfying the writ, he shall pay to the Sheriff or auctioneer:(a) the amount due under the judgment, including interest,(a1) any money recoverable under section 107 (1) of the Service and Execution of Process Act,(b) subject to Part 52A rule 46, the costs of the execution then known to the Sheriff or auctioneer, including any fees payable in respect of the execution to an auctioneer, andand the Sheriff or auctioneer shall, on receipt of those moneys, cancel the sale and the Sheriff shall return the writ to the registrar.(c) subject to Part 52A rule 46, an amount as security for the creditor’s costs of the execution other than those mentioned in paragraph (b),rule 45.19: Ins 30.9.1988. Am 2.4.1993; 24.6.1994.
20 Advertisement: sale of land
cf DCR 1973, P 36, r 8.
(1) The Sheriff or auctioneer selling land under the writ shall cause notice of any such sale, including a full description of the property to be sold, to appear by way of advertisement in the Gazette, and in a newspaper circulating in the district in which the land is situated, at least one week before the date fixed for the sale.(2) The sale of any land under the writ may, in addition to being advertised under subrule (1), be further advertised by the Sheriff or auctioneer if the further advertisement is approved by the registrar.rules 45.20–45.23: Ins 30.9.1988.
21 Proof of service and publication: sale of land
cf DCR 1973, P 36, r 9.
(1) Before the sale of any land takes place under the writ the creditor shall lodge with the Sheriff an affidavit or affidavits as to the service on the debtor of the notice, duly endorsed, required under rule 18 to be served, and as to the date and particulars of publication of every advertisement of the sale.(2) When making his return to the writ, the Sheriff shall attach thereto any affidavit lodged with him under subrule (1) in respect of the writ.rules 45.20–45.23: Ins 30.9.1988.
22 Sheriff’s assurance: sale of land
cf DCR 1973, Pt 36, r 11B (7).
The purchaser of land sold under a writ of execution shall take at his own expense the Sheriff’s assurance of the interest sold.rules 45.20–45.23: Ins 30.9.1988.
23 Sheriff to report: sale of land
cf DCR 1973, P 36, r 12.
Where land is sold under a writ, the Sheriff shall, as soon as practicable after the sale has been completed, make a report to the registrar as to:(a) the approximate market value of the land fixed by the Sheriff under rule 9 (1),(b) the amount of the highest bid at the sale,(c) whether or not the debtor was identified to the Sheriff or auctioneer conducting the sale as being present at the sale,(d) the amount of the auctioneer’s charges, and(e) any other matter which the Sheriff or auctioneer considers should be reported to the registrar.rules 45.20–45.23: Ins 30.9.1988.
24 Payment to debtor: sale of land
cf DCR 1973, Pt 36, r 13.
(1) A creditor at whose request a writ has issued shall, within two months after the receipt, in respect of the writ, by the Sheriff of:(a) the proceeds of a sale of any land, being an amount greater than the amount necessary to satisfy the judgment debt, including interest,(b) any money under section 98A (3) (c) of the Act, oror within such later time as may be consented to in writing by the debtor, file:(c) any money under rule 19,(d) evidence of an agreement with the debtor as to the amount of the creditor’s costs of the execution, or(e) a bill of those costs for taxation or an application for assessment of those costs, as the case requires.(1A) The court may, on the application of a creditor at whose request a writ of execution has issued, order that the debtor pay the creditor’s costs of the execution.(2) Where the judgment creditor complies with subrule (1) the Sheriff shall as soon as practicable pay to the debtor any money mentioned in subrule (1) and held by the Sheriff over and above the amount necessary to satisfy the writ.(3) Where the creditor does not comply with subrule (1), and does not within the time for that compliance advise the Sheriff of any consent by the debtor to extend that time, the Sheriff may pay to the debtor any moneys mentioned in subrule (1) and held by the Sheriff over and above the total of the amount necessary to satisfy the judgment, including interest, any money recoverable under section 107 (1) of the Service and Execution of Process Act and the costs of the execution, other than solicitor’s profit costs, then known to the Sheriff.(4) The Sheriff shall pay to the creditor any moneys referred to in this rule which the Sheriff is not by this rule required to pay to the debtor.(5) Nothing in this rule affects the right of the creditor to recover against the debtor his costs of the execution.rule 45.24: Ins 30.9.1988. Am 2.4.1993; 24.6.1994 (see erratum 1.7.1994).
Part 46 Garnishment
1 Definitions
cf RSC (Rev) 1965, O 49, r 1 (1).
In this Part, unless the context or subject matter otherwise indicates or requires:garnishee means a person from whom a judgment creditor claims that a debt is due or accruing to the judgment debtor.judgment creditor means a person entitled to enforce a judgment or order for the payment of money (not into Court).judgment debtor means a person required by a judgment or order to pay money (not into Court).
2 (Repealed)
rule 46.2: Rep 1.5.1987.
3 Garnishment notice
(1) A judgment creditor may, with the leave of the Court, but subject to any Act, file and serve on the garnishee a garnishment notice:(a) of attachment, to the extent of an amount specified in the notice, of debts due or accruing to the judgment debtor from the garnishee, and(b) of motion for payment under this Part.cf RSC (Rev) 1965, O 49, r 1 (1) (2).(2) A judgment creditor may move for leave under subrule (1) without filing or serving notice of the motion.cf RSC (Rev) 1965, O 49, r 2.(3) The Court shall not give leave under subrule (1) unless it appears to the Court that:(a) the judgment or order is unsatisfied, and(b) there is a debt due or accruing to the judgment debtor from the garnishee.cf RSC (Rev) 1965, O 49, r 2.(4) The Court shall, in giving leave under subrule (1), fix the amount for specification in the garnishment notice pursuant to subrule (1) (a).cf RSC (Rev) 1965, O 49, r 1 (1).(5) The amount to be fixed by the Court for specification in the garnishment notice shall be the sum of:(a) the amount due under the judgment or order on the date on which leave is given,(b) such amount as the Court may determine having regard to:(i) interest on the judgment debt accruing after the date on which leave is given, or(ii) costs of the garnishment proceedings, and(c) any money recoverable under section 107 (1) of the Service and Execution of Process Act.cf RSC (Rev) 1965, O 49, r 1 (1).(6) A garnishment notice shall include such particulars of the debt attached as are known to, or reasonably capable of ascertainment by, the judgment creditor and as are necessary to enable the garnishee to identify the debt, including, where the garnishee is a deposit-taking institution, as defined in rule 10A (1), or other person carrying on business at more than one place, the place of keeping of account on which the debt is due or accruing, so far as that place is known to, or reasonably capable of ascertainment by, the judgment creditor.rule 46.3: Am 1.5.1987; 2.4.1993.
4 Service of garnishment notice
(1) Subject to subrule (2), the judgment creditor shall, not less than three days before the date fixed by the garnishment notice for the motion for payment under this Part, serve the garnishment notice and each affidavit used on the motion for leave under rule 3 on the garnishee personally and on the judgment debtor.cf RSC (Rev) 1965, O 49, r 3 (1).(2) Service on a garnishee under subrule (1) may not be effected outside the State.cf RSC (Rev) 1965, O 49, rr 1 (1), 2 (b).
5 Attachment of debts
(1) A garnishment notice shall take effect upon its being served on the garnishee and upon its being so served shall operate to attach in the hands of the garnishee, to the extent of the amount specified in the notice, all debts which are due or accruing from the garnishee to the judgment debtor at the time of service of the notice (whether or not they were so due or accruing at the time when leave was granted under rule 3 (1)).cf Act No 9, 1973, s 97 (2) (a).(2) Where, after service of a garnishment notice on the garnishee, the garnishee acts with reasonable diligence for the purpose of giving effect to the attachment but nevertheless pays to the judgment debtor the whole or any part of the debt attached or otherwise deals with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or any part of the debt attached, the Court may order that for the purposes of the garnishee proceedings the debt attached be reduced to the extent of the payment or satisfaction.cf RSC (Rev) 1965, O 49, rr 1 (2), 3 (2).rule 46.5: Am 1.5.1987.
6 Payment into Court
(1) A garnishee may pay into Court all debts attached under this Part to the extent of the attachment.cf Act No 21, 1899, s 183.(2) If a garnishee pays money into Court pursuant to subrule (1) before the day fixed by the garnishment notice for the motion for payment under this Part:(a) he may retain out of the debts attached the amount prescribed in item 3 of Schedule G1 for his costs, and(b) he shall not, unless he takes some further step in the proceedings, be liable for any costs of the garnishee proceedings.(3) For the purposes of subrule (2), a garnishee shall be taken to pay money into Court pursuant to subrule (1) notwithstanding that the amount paid in is calculated on the footing that the amount of the debts attached is reduced by the prescribed sum for his costs.rule 46.6: Am 6.3.1992.
7 Payment out of Court
Subject to rules 9 and 10, where a garnishee pays money into Court, the Court shall, on motion pursuant to the garnishment notice, order payment out of Court to the judgment creditor of the money paid in or so much of that money as is required to satisfy the judgment or order out of which the garnishee proceedings arise together with interest, any money recoverable under section 107 (1) of the Service and Execution of Process Act and such costs of the garnishee proceedings as may be payable to the judgment creditor out of the debt attached.rules 46.7, 46.8: Am 2.4.1993.
8 Payment to judgment creditor
cf RSC (Rev) 1965, O 49, r 4 (1).
Subject to rules 9 and 10, the Court may, on motion pursuant to the garnishment notice, order the garnishee to pay to the judgment creditor the debt attached to the extent specified in the garnishment notice or so much of the debt attached to the extent so specified as is required to satisfy the judgment or order on which the garnishee proceedings are taken together with interest, any money recoverable under section 107 (1) of the Service and Execution of Process Act and such costs of the garnishee proceedings as may be payable to the judgment creditor out of the debt attached.rules 46.7, 46.8: Am 2.4.1993.
9 Dispute of liability by garnishee
cf RSC (Rev) 1965, O 49, r 5; Act No 9, 1973, s 102 (3).
On the hearing of a motion by the judgment creditor pursuant to the garnishment notice, the Court may hear and determine any question in dispute concerning the liability of the garnishee to pay the debt attached and give such judgment, or make such order, as the nature of the case requires.rule 46.9: Subst 1.5.1987. Am 30.3.1990.
10 Claim by other person
cf RSC (Rev) 1965, O 49, r 6.
Where it appears to the Court that any person other than the judgment debtor is, or claims to be, entitled to money paid into Court under rule 6 or to the debt attached or to any charge or lien on, or other interest in that money or debt, the Court may make orders for giving to that person notice of the proceedings and may hear and determine his claim and may give such judgment, or make such order in respect of the claim, as the nature of the case requires.rule 46.10: Am 30.3.1990.
10A Bank, building society and credit union accounts
cf Act No 9, 1973, s 103.
(1) In this rule, except in so far as the context or subject-matter otherwise indicates or requires:account includes:(a) a deposit account or withdrawable share account, andbut does not include an account or a record which is prescribed by regulations made under section 103 (10) of the District Court Act 1973 as exempt from the operation of section 103 of that Act.(b) any record of deposit or of subscription for withdrawable shares,bank means:(a) a bank within the meaning of the Banking Act 1959 of the Commonwealth, as amended and in force for the time being, or(b) a person who carries on State banking within the meaning of section 51 (xiii) of the Constitution of the Commonwealth.building society means:(a) a society registered under the Permanent Building Societies Act 1967,(b) a Starr-Bowkett society or a non-terminating building society registered under the Co-operation Act 1923,(c) a society mentioned in the Second Schedule to the Co-operation Act 1923, or(d) a body in respect of which an exemption is in force:(i) under section 35 of the Permanent Building Societies Act 1967, or(ii) in the case of a Starr-Bowkett society or a non-terminating building society, under section 61 of the Co-operation Act 1923.credit union means:(a) a credit union registered under the Credit Union Act 1969, or(b) a body in respect of which an exemption is in force under section 28 of that Act.deposit-taking institution means a bank, building society or credit union.(2) For the purpose of determining whether an amount standing to the credit of a judgment debtor in an account in a deposit-taking institution is attachable as a debt due or accruing to the judgment debtor, the following conditions shall be disregarded:(a) a condition that a demand must be made before any money or share is withdrawn,(b) a condition relating to the manner in which or the place at which any such demand is to be made,(c) a condition that a passbook, receipt or other document must be produced before any money or share is withdrawn,(d) a condition that notice is required before any money or share is withdrawn,(e) except in the case of an account in a Starr-Bowkett society, a condition that any money or share must not be withdrawn for any specified period,(f) a condition prescribing a minimum amount in respect of any withdrawal from the account,(g) a condition that a minimum balance must be maintained in the account,(h) a condition relating to an account prescribed by regulations for the purposes of section 103 (2) of the District Court Act 1973.(3) So much of the amount standing to the credit of a judgment debtor in a withdrawable share account in a building society or credit union as is the minimum amount that must be maintained in the account in order that the judgment debtor retains membership of the building society or credit union is not attachable.(4) Where an amount standing to the credit of a judgment debtor in an account in a deposit-taking institution is attached, the garnishment notice shall be deemed to operate as a notice of withdrawal or demand for payment under the contract between the garnishee and judgment debtor in respect of the account, and that notice or demand is, while the garnishment notice remains in force, irrevocable and shall be deemed to have been received by the garnishee:(a) on the date of service of the garnishment notice, or(b) where the judgment debtor is not entitled under the contract to give a notice of withdrawal or make a demand for payment on the date of service of the garnishment notice—on the date on which the judgment debtor would, but for the garnishment notice, have become so entitled.(5) Any charge on an amount standing to the credit of a judgment debtor in an account in a building society or credit union (being a charge created by an Act under which the building society or credit union is registered or regulated or by the rules of the building society or credit union) shall be disregarded for the purposes of a garnishment notice, but nothing in the foregoing affects the rights of the building society or credit union to set off or appropriate the whole or any part of that amount.(6) Where:(a) after service of a garnishment notice on a deposit-taking institution with respect to an amount standing to the credit of a judgment debtor in an account, and before the date specified in the garnishment notice for payment under this Part, the garnishee pays the debt attached to the extent of the attachment, andthe garnishee may, at the time of payment of that amount into Court, by instrument in writing signed by an officer of the deposit-taking institution, require the Court to retain the amount so paid for any specified period not exceeding 2 months commencing on the date of that payment.(b) one of the conditions applicable to the account is that a passbook must be produced before any money or share is withdrawn,(7) Where:(a) the Court is required under subrule (6) by a garnishee to retain an amount for a period specified under that subrule, andthe Court may, if it thinks fit, order the payment out of the Court of that amount or any part of that amount to the garnishee.(b) the garnishee during that period makes an application for an order under this subrule on the ground that the garnishee has acted with reasonable diligence in relation to the garnishment notice but nevertheless because of the production of a current passbook relating to that amount or any part of that amount, has (whether during or before that period) paid to the judgment debtor the whole or any part of the debt attached or otherwise dealt with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or any part of the debt attached,(8) Where the Court is required under subrule (6) by a garnishee to retain an amount for a period specified under that subrule, the Court shall not order payment out of that amount or any part of that amount to the judgment creditor:(a) until after:(i) the garnishee, by instrument in writing signed by an officer of the deposit-taking institution, informs the Court that, or the Court has other information satisfying it that, a current passbook relating to that amount or any part of that amount has, during that period, come into the possession of the garnishee at the place of keeping of the account to the credit of which that amount was standing, orwhichever first occurs, and(ii) the expiration of that period,(b) unless the Court is satisfied, on such information as is available to it, that no application made during that period by the garnishee for an order under subrule (7) in relation to that amount or any part of that amount is still pending.(9) If an amount referred to in subrule (8) or any part of such an amount is ordered to be repaid to the garnishee under subrule (7), the balance (if any) only is payable to the judgment creditor.rule 46.10A: Ins 4.4.1975. Subst 1.5.1987.
11 Discharge of garnishee
(1) Where:(a) a garnishee pays money into Court under this Part,(b) a garnishee pays money in compliance with an order made in the garnishment proceedings, orthe payment or levy shall, subject to subrule (4), be a discharge of the liability of the garnishee to the judgment debtor to the extent of the amount paid or levied.(c) execution is levied against a garnishee in pursuance of an order made in the garnishment proceedings,cf RSC (Rev) 1965, O 49, r 8.(2) Subrule (1) shall have effect notwithstanding that the garnishment proceedings are subsequently set aside or that the judgment or order from which the garnishment proceedings arise is subsequently reversed.cf RSC (Rev) 1965, O 49, r 8.(3) Subrule (1) does not apply to a payment or levy on account of costs which the garnishee is ordered to pay.(4) Where any amount is ordered to be paid out of Court to a garnishee under rule 10A (7):(a) the payment of that amount by the garnishee does not, and shall be deemed never to have, satisfied the judgment debt, and(b) this Part applies to and in respect of the judgment debt as if the garnishee had never made that payment.rule 46.11: Am 4.4.1975; 1.5.1987.
12 Costs
(1) The costs of the judgment creditor of garnishment proceedings shall, unless the Court otherwise directs, be payable by the judgment debtor to the judgment creditor and shall be retained by the judgment creditor out of the money recovered by him in the garnishment proceedings and in priority to:(a) the debt under the judgment or order from which the garnishment proceedings arise, and(b) any money recoverable under section 107 (1) of the Service and Execution of Process Act.cf RSC (Rev) 1965, O 49, r 10.(2) Where the garnishee incurs trouble or expense in giving effect to the attachment of a debt under this Part, or in doing anything required of or permitted to the garnishee in the garnishment proceedings:(a) the Court may order the judgment creditor to pay to the garnishee such sum as the Court thinks fit by way of recompense for the trouble or expense, and(b) any sum paid by the judgment creditor under paragraph (a) shall, unless the Court otherwise orders, be included in the costs of the judgment creditor of the garnishment proceedings.(3) Subrule (2) does not limit the general powers of the Court in relation to costs.(4) This rule is subject to Part 52A rule 46 (which relates to a certificate filed under section 208J (3) of the Legal Profession Act 1987).rule 46.12: Am 2.4.1993; 24.6.1994.
Part 47 Charging and stop orders
1 Charge on stock etc
An application under Part 5 of the Judgment Creditors’ Remedies Act 1901 (which relates to charging orders on stock, shares and other interests) by a creditor under a judgment or order in proceedings in the Court shall be made by motion in the proceedings.
1A Charging orders and Pt 54, r 1
Part 54 rule 1 (which relates to proceedings in lieu of statutory orders to show cause etc) does not apply to section 28 of the Judgment Creditors’ Remedies Act 1901 (which section relates to an order charging stock, shares or deposit).rule 47.1A: Ins 30.3.1973.
2 Charge on partnership interest
(1) An application under section 23 of the Partnership Act 1892 (which relates to procedure against partnership property by a judgment creditor of a partner) shall be made:(a) if the judgment is a judgment in proceedings in the Court, by motion on notice in the proceedings, or(b) if the judgment is not a judgment in proceedings in the Court, by summons joining the judgment debtor and his partners as defendants.cf RSC (Rev) 1965, O 81, r 10 (1).(2) An application under that section made by a partner of the judgment debtor in consequence of an application by the judgment creditor shall be made by motion on notice in the proceedings in which the judgment creditor applies.cf RSC (Rev) 1965, O 81, r 10 (1).(3) A summons or notice of motion filed under this rule and an order made on an application under that section shall be served on the following persons (other than the applicant):(a) the judgment creditor,(b) the judgment debtor, and(c) such of the partners of the judgment debtor as are within the State.cf RSC (Rev) 1965, O 81, r 10 (3) (4).(4) A summons, notice of motion or order served in accordance with this rule shall have effect as if served on all the partners.cf RSC (Rev) 1965, O 81, r 10 (5).
3 Stop orders
cf Supreme Court Funds Rules, 1927 (Eng), r 3 (1).
(1) Where there are funds in Court and:(a) the interest of any person in the funds has been mortgaged, charged or assigned, orthe Court may, on application by the mortgagee, chargee, assignee or creditor under the judgment or order, make an order prohibiting the transfer, sale, delivery out, payment or other dealing with the whole or any part of the funds or of the income of the funds, without notice to the applicant.(b) a person having an interest in the funds is a debtor under a judgment or order of the Court,cf RSC (Rev) 1965, O 50, r 10 (1).(2) An application under subrule (1) shall be made:(a) if there are any proceedings in the Court relating to the funds in Court, by motion on notice in the proceedings, or(b) if there are no proceedings in the Court relating to the funds in Court, by summons joining as defendants all persons whose interests may be affected by the application.cf RSC (Rev) 1965, O 50, r 10 (2) (3).(3) The notice of motion or summons:(a) shall be served on each person whose interest may be affected by the application; but(b) shall not be served on any other person.cf RSC (Rev) 1965, O 50, r 10 (3).(4) The Court may, on terms, dispense with the joinder of any person as defendant and dispense with service on any person.(5) The Court may order the applicant for an order under subrule (1) to pay the costs of any party to any proceedings in which the funds are in Court, or of any person interested in the funds.(6) Subrule (5) does not affect the general powers of the Court as to costs.cf RSC (Rev) 1965, O 50, r 10 (4).(7) In this rule, funds includes effects.
Part 48 Accounts and inquiries: general
1 Account: summary order
(1) Subject to subrule (2), where a party claims an account or makes a claim which involves taking an account, the Court may, on application by that party at any stage of the proceedings:(a) order that an account be taken, and(b) order that any amount certified on taking the account to be due to any party be paid to him.cf RSC (Rev) 1965, O 43, r 1 (1) (3).(2) The Court shall not make an order under subrule (1) (a):(a) as against a defendant who has not filed an appearance unless he is in default of appearance, or(b) if it appears that there is some preliminary question to be determined.cf RSC (Rev) 1965, O 43, r 1 (1) (3).
2 Account or inquiry at any stage
cf RSC (Rev) 1965, O 43, r 2 (1).
The Court may, on application by a party at any stage of proceedings, make orders for the taking of any account or the making of any inquiry.
3 Account: directions
cf RSC (Rev) 1965, O 43, r 3.
Where the Court makes an order for the taking of an account, the Court, by the same or a subsequent order:(a) may give directions concerning the manner of taking or vouching the account, and(b) without limiting paragraph (a), may direct that in taking the account the relevant books of account shall be evidence of the matters contained in them.
4 Account: form and verification
(1) The items on each side of an account shall be numbered consecutively.cf RSC (Rev) 1965, O 43, r 4 (2).(2) An accounting party shall, unless the Court otherwise orders, verify his account by affidavit and the account shall be made an exhibit to the affidavit.cf RSC (Rev) 1965, O 43, r 4 (1).
5 Account: filing and service
cf RSC (Rev) 1965, O 43, r 4 (3).
An accounting party shall, unless the Court otherwise orders:(a) file his account and verifying affidavit,(b) serve the account and affidavit on each other party on the date of filing.
6 Account: notice of charge or error
(1) Where a party seeks to charge an accounting party with an amount beyond that of which the accounting party by his account admits receipt, he shall give to the accounting party notice of the charge, stating, so far as he is able, the amount which he seeks to charge, with brief particulars.cf RSC (Rev) 1965, O 43, r 5.(2) Where a party alleges that any item in the account of an accounting party is erroneous in amount or otherwise, he shall give to the accounting party notice of the allegation, stating the grounds for alleging the error.cf RSC (Rev) 1965, O 43, r 5.
7 Account: allowances
cf RSC (Rev) 1965, O 43, r 6.
In taking an account under a judgment or order, all just allowances shall be made.
8 Delay
cf RSC (Rev) 1965, O 43, r 7 (1).
Where it appears to the Court that there is delay in the prosecution of any account, inquiry or other matter under a judgment or order, the Court may make such orders as it thinks fit for staying or expediting the proceedings or for the conduct of the proceedings.
Part 49 Accounts, inquiries, etc: Equity Division
Division 1 General
1 Application
(1) This Part applies only to proceedings in the Equity Division and does not apply to proceedings entered in the Commercial List, the Technology and Construction List or the Admiralty List or to which Part 76 or Part 78 applies.(2) This Part applies to accounts, inquiries and other matters under an order as it applies to accounts, inquiries and other matters under a judgment.cf RSC (Rev) 1965, O 44, r 1.(3) In the application of this Part to accounts, inquiries and other matters under an order:(a) references in this Part to a judgment extend to an order, and(b) references in this Part to the giving of judgment extend to the making of an order.cf RSC (Rev) 1965, O 44, r 1.rule 49.1: Am 30.3.1990; 7.8.1998; 23.10.1998; 19.2.1999; 25.6.1999; 19.10.2001 (see also 26.10.2001).
2 Motion to proceed
cf RSC (Rev) 1965, O 44, r 2.
Where a judgment contains directions as to any account, inquiry or other matter under the judgment, any party may, after entry of the judgment, move the Court to proceed under the judgment.
3 Notice of judgment
(1) This rule applies to a judgment in proceedings for:(a) the administration of the estate of a deceased person,(b) the execution of a trust, or(c) the sale of property.cf RSC (Rev) 1965, O 44, r 3 (1).(2) Where the Court gives a judgment:(a) affecting the rights or interests of a person who is not a party, orthe Court may, by the judgment or by subsequent order:(b) for the taking of an account or the making of an inquiry:(c) give directions for service of notice of the judgment on any person interested, or(d) if it appears to be impracticable to serve notice of the judgment on any person interested, dispense with service on him.cf RSC (Rev) 1965, O 44, r 3 (1) (2).(3) Without limiting subrule (2) (c), the Court may direct that notice be served personally or in some other manner.cf RSC (Rev) 1965, O 44, r 3 (2).(4) Where, under this rule, notice of a judgment is served on a person, or the Court dispenses with service of notice of a judgment on a person:(a) subject to paragraph (b), he shall be bound by the judgment to the same extent as if he were a party at the time when the judgment was given, except where the judgment has been obtained by fraud or non-disclosure of material facts,(b) the Court may, on application by him on notice of motion filed within the time limited by subrule (5), discharge or vary the judgment or order,(c) he may attend the accounts, inquiries or other matters under the judgment.cf RSC (Rev) 1965, O 44, r 3 (1) (4) (5) (6).(5) Notice of a motion under subrule 4 (b) must be filed:(a) if notice of the judgment has been served on the applicant, within 28 days after the date of service, and(b) if the Court has dispensed with service of notice of the judgment on him, within 28 days after the date of the order dispensing with service.cf RSC (Rev) 1965, O 44, r 3 (5).rule 49.3: Am 30.3.1990.
4 Directions
cf RSC (Rev) 1965, O 44, r 4 (1).
The Court shall, on the hearing of a motion to proceed under a judgment, give directions as to the conduct of the proceedings, including directions as to the material which may be used as evidence.
5 Representation of parties
cf RSC (Rev) 1965, O 44, rr 5, 6.
The Court may, on the hearing of a motion to proceed under a judgment or subsequently:(a) require parties whose interests are similar to be represented by the same solicitor and nominate a solicitor to represent them, or(b) require that parties represented by the same solicitor be separately represented.
6 Costs of attendance
cf RSC (Rev) 1965, O 44, r 7.
The Court may order, on terms, that the costs to be incurred by any party of and incidental to his attendance on the account, inquiry or other matter under the judgment shall be paid out of the estate or property to which the proceedings relate.
7 Settlement of instrument
cf RSC (Rev) 1965, O 44, r 8.
Where the judgment directs the settlement of an instrument, the Court may give directions for the preparation and service of a draft instrument and of objections to the draft.
8 Interest on debts
(1) This rule applies to the taking of an account of the debts of a deceased person pursuant to a direction in a judgment.cf RSC (Rev) 1965, O 44, r 18 (1).(2) Where any of the debts carries interest at any rate, interest shall be allowed on that debt at that rate.cf RSC (Rev) 1965, O 44, r 18 (1) (a).(3) In the case of a debt to which subrule (2) does not apply, interest shall be allowed on the debt in respect of the period mentioned in column 1 of Schedule J at the rate per cent yearly mentioned in column 2 of that Schedule from the date when the judgment takes effect on so much of the debt as is from time to time unpaid.(4) Subrules (2) and (3) do not apply where the estate is insolvent or where the Court otherwise orders.cf RSC (Rev) 1965, O 44, r 18 (1).(5) Where a creditor establishes his debt and the debt does not carry interest, interest shall be allowed on the debt in respect of the period mentioned in column 1 of Schedule J at the rate per cent yearly mentioned in column 2 of that Schedule from the date when the judgment takes effect, on so much of the debt as is from time to time unpaid, out of any assets which may remain after satisfying:(a) the costs of the proceedings,(b) the debts which have been established,(c) the interest on such of those debts as by law carry interest.rule 49.8: Am 6.9.1974; 8.10.1982; 9.12.1983; 21.12.1984; 20.12.1985; 27.6.1986; 20.3.1987; 24.8.1990.
9 Interest on legacies
cf RSC (Rev) 1965, O 44, r 19.
(1) Where an account of legacies is directed by any judgment, interest shall, subject to section 84A of the Wills, Probate and Administration Act 1898, be allowed at the rate prescribed for the purposes of subsection (1) of that section from a date of one year after the testator’s death.(2) Subrule (1) has effect subject to any directions in the will and unless the Court otherwise orders.rule 49.9: Am 6.9.1974; 23.12.1977.
Division 2 Administration accounts and inquiries, etc
10 Application
(1) This Division applies where, in proceedings for the administration of the estate of a deceased person, the Court by judgment directs:(a) the taking of any account of debts or other liabilities of the estate of the deceased, or(b) the making of any inquiry for persons entitled to any interest in the estate on intestacy or otherwise.cf RSC (Rev) 1965, O 44, r 9 (a).(2) This Division applies where, in proceedings for the execution of a trust, the Court by judgment directs:(a) the taking of any account of debts or other liabilities of the trust, or(b) the making of any inquiry for persons entitled to any interest in the trust property.cf RSC (Rev) 1965, O 44, r 9 (b).(3) Subject to subrules (1) and (2), this Division applies with the necessary modifications, where, in any proceedings, the Court by judgment directs:(a) the taking of any account of debts or other liabilities of the trust, or(b) the making of any inquiry.cf RSC (Rev) 1965, O 44, r 9.
11 Advertisements
(1) On the hearing of the motion to proceed or subsequently the Court may direct the issue of advertisements for creditors and other claimants.cf RSC (Rev) 1965, O 44, r 10 (1).(2) The Court shall, for the purposes of determining what direction, if any, to make under subrule (1), have regard to any advertisement previously issued.cf RSC (Rev) 1965, O 44, r 10 (1).(3) Where the Court directs the issue of advertisements for creditors or other claimants, the Court shall specify the time within which, and the person on whom, a claimant must serve particulars of his claim.cf RSC (Rev) 1965, O 44, r 10 (3).(4) An advertisement for creditors or other claimants shall state the time and name of the person specified under subrule (3) and an address for service of that person and shall contain such other matters as the Court may direct.cf RSC (Rev) 1965, O 44, r 10 (3).(5) An advertisement for creditors or other claimants shall be prepared by the party prosecuting the judgment and shall be signed by the registrar.cf RSC (Rev) 1965, O 44, r 10 (2).
12 Particulars of claim
(1) Subject to such provisions as may appear in the advertisement, particulars of a claim served in response to an advertisement shall specify the nature and extent of the claim, and full particulars of it, and shall state the name and an address for service of the claimant.cf RSC (Rev) 1965, O 44, rr 10 (3), 11.(2) A claimant who does not serve particulars of claim, in accordance with the advertisement and in accordance with subrule (1), on the person and within the time stated in the advertisement shall not be entitled to prove his claim except with the leave of the Court.cf RSC (Rev) 1965, O 44, r 11.(3) The Court may give leave under subrule (2) on terms.cf RSC (Rev) 1965, O 44, r 11.
13 Notice of judgment
(1) Where a claimant serves particulars of his claim in response to an advertisement under a judgment, the person on whom it is served shall, within 7 days after service of the particulars of claim, serve notice of the judgment on the claimant.cf RSC (Rev) 1965, O 44, r 15 (1).(2) Upon service of notice of a judgment under subrule (1), subrules (4) and (5) of rule 3 shall apply as if the notice had been served under rule 3.cf RSC (Rev) 1965, O 44, r 15 (2)–(4).
14 Examination of claims
cf RSC (Rev) 1965, O 44, r 12 (1) (2).
The Court may:(a) appoint a person to examine and list claims for the purposes of an account or inquiry under a judgment, and(b) fix a date for adjudication on the claims.
15 Account: list of claims
(1) In the case of an account of debts or other liabilities, the person appointed under rule 14 shall:(a) examine the claim of each claimant and consider whether it ought to be allowed, and(b) at least 7 days before the date for adjudication on the claims, file lists of:(i) claims served in response to any advertisement,(ii) other claims received by any of the personal representatives or trustees concerned, and(iii) debts and liabilities for which claims have not been received but which are or may still be due and which have come to the knowledge of any of the personal representatives or trustees concerned.cf RSC (Rev) 1965, O 44, r 12 (1).(2) A list filed under subrule (1) shall specify, in relation to each alleged debt or liability included in the list, whether, in the belief of the party making the list, the debt or liability ought to be allowed, and the reasons for the belief.cf RSC (Rev) 1965, O 44, r 12 (3).
16 Inquiry: list of claims
(1) In the case of an inquiry for persons entitled to any interest in the estate of a deceased person on intestacy or otherwise, or entitled to any interest in trust property, the person appointed under rule 14 shall:(a) examine the claim of each claimant and consider whether it is valid, and(b) at least 7 days before the date for adjudication on the claims, file lists of:(i) claims served in response to any advertisement, and(ii) other claims received by, or which have come to the knowledge of, any of the personal representatives or trustees concerned.cf RSC (Rev) 1965, O 44, r 12 (2).(2) A list filed under subrule (1) shall specify, in relation to each claim included in the list, whether, in the belief of the party making the list, the claim is valid, and the reasons for the belief.
17 Verification of list
cf RSC (Rev) 1965, O 44, r 12.
The Court may direct a person appointed under rule 14, and any of the personal representatives or trustees concerned, to verify by affidavit a list filed under rule 15 or rule 16.
18 Adjudication
(1) The Court may, on the adjudication on the claims:(a) allow any claim, with or without proof,(b) direct that any claim be investigated in such manner as the Court thinks fit,(c) require any claimant to attend and prove his claim or to furnish further particulars or evidence of his claim or to produce any security relating to his claim,(d) disallow any claim.cf RSC (Rev) 1965, O 44, r 13 (1) (6).(2) A claimant need not make an affidavit or attend in support of his claim, unless the Court so directs under subrule (1) (c).cf RSC (Rev) 1965, O 44, r 13 (5).(3) A party shall, if the Court so directs, file a list of the claims allowed.cf RSC (Rev) 1965, O 44, r 16 (2).(4) In this rule, claim includes part of a claim.cf RSC (Rev) 1965, O 44, r 13 (7).
19 Notice to prove claim
(1) This rule applies where the Court requires a claimant to attend and prove his claim pursuant to rule 18 (1) (c).cf RSC (Rev) 1965, O 44, r 13 (2).(2) The Court shall appoint a party to give notice in accordance with subrule (3) and shall determine the times and documents to be specified in the notice.(3) The party appointed under subrule (2) shall serve on the claimant a notice requiring him:(a) to serve on the party serving the notice an affidavit in support of his claim within such time, not less than 7 days after the date of service of the notice, as may be specified in the notice,(b) to attend before the Court for adjudication on the claim at such time as may be specified in the notice, and(c) to produce to the Court at such time as may be specified in the notice such documents as may be specified or described.cf RSC (Rev) 1965, O 44, r 13 (2) (4).(4) Where a claimant does not comply with a notice served on him under subrule (3), the Court may disallow his claim.cf RSC (Rev) 1965, O 44, r 13 (3).(5) In this rule, claim includes part of a claim.cf RSC (Rev) 1965, O 44, r 13 (7).rule 49.19: Am 26.9.1986.
Part 50 Funds in Court
1 Deposit
(1) Subject to rule 5 and rule 6A, where money is paid into Court, the registrar shall, within one day after the date of payment into Court, deposit the money to the credit of the Treasurer in such bank as the Governor may appoint.cf Consolidated Equity Rules of 1902, r 286.(2) Money deposited under subrule (1) shall be deposited at such rate of interest (if any) as may be arranged between the Chief Justice and the Treasurer.cf CER, r 286.(3) Separate arrangements may be made under subrule (2) for money paid into the Court in any Division or for money paid into Court in specified classes of circumstances.(4), (5) (Repealed)rules 50.1, 50.3: Am 21.12.1979.
2 Authority for withdrawal
cf CER, r 288; RSC (Rev) 1965, O 22, r 8 (1).
Money deposited in a bank under rule 1 or interest on money so deposited shall not be withdrawn or paid from the Treasury or from the bank on account of the Treasury except by the authority of the rules or of a judgment or order.rules 50.1, 50.3: Am 21.12.1979.
3 Withdrawal
cf CER, r 288 proviso; and r 290 proviso.
(1) Money deposited in a bank under rule 1 or interest on money so deposited shall not be withdrawn or paid from the Treasury or from the bank on account of the Treasury except by authority of a direction in accordance with subrule (2).cf CER, rr 289, 290.(2) A direction under subrule (1):(a) may be in the form of a cheque,(b) shall be for payment to the order of a specified person, and(c) shall be signed by two officers of the Court nominated by the Prothonotary.(3) Notwithstanding subrules (1) and (2) a bank or the Treasurer shall not be bound to inquire whether the requirements of rule 2 or of subrule (2) (c) have been satisfied.rules 50.1, 50.3: Am 21.12.1979.
4 Account
cf CER, r 291.
Where money is deposited in a bank under rule 1 in any proceedings, the registrar shall keep an account in the proceedings of the deposit and of all withdrawals (including withdrawals of interest) from the bank or from the Treasury in the proceedings.
5 Investment
cf Act No 14, 1925, s 14 (2); CER, r 286.
The Court may direct that funds paid into Court be invested:(a) in any public funds or government stock or government securities of the Commonwealth or of any State or Territory of the Commonwealth,(b) in any debentures, stock or securities guaranteed by the Government,(c) in any debentures, stock or securities of any council constituted under the Local Government Act 1993,(d) in any public funds or parliamentary stocks or government securities of the United Kingdom of Great Britain,(e) in mortgage of land in the State, or(f) on interest bearing deposit in:(i) a bank authorised to carry on the business of banking under any law of the Commonwealth or of a State or Territory of the Commonwealth,(ii) a building society, or(iii) a credit union.rule 50.5: Am 19.7.1996.
5A Interest—money paid into Court as security for costs or as security on an appeal
(1) If money is paid into Court as security for costs or as security on an appeal, or is paid into Court pursuant to Part 72A Division 2 (which relates to money paid into Court in an arbitration), interest on the money is not to be paid to any party.(2) Subrule (1) does not apply to interest accruing on money paid to the Public Trustee under rule 6A.rule 50.5A: Ins 28.11.2003.
6 Interest—money paid into Court to abide the decision in proceedings
(1) This rule applies if money is paid into Court pursuant to an order, to abide the decision in the proceedings, and the money is invested under rule 5 or is paid to the Public Trustee as referred to in rule 6A.(2) The Court may, on application by a party or by its own motion, order the payment of interest to any party.(3) Despite subrule (2), if the Court makes an order that the whole of the money be paid to one or more parties and the order does not expressly provide for the payment (or non-payment) of any interest accruing on the money, any interest accruing on the money is to be paid to the party or parties.(4) The interest paid to a party under subrule (3) is to bear the same proportion to the total interest accruing on the total amount of money paid into Court as the money paid to the party bears to the total amount of money paid into Court, unless the Court orders otherwise.(5) In this rule:interest accruing on money means any interest accruing on the money as a result of its investment under rule 5 or payment to the Public Trustee under rule 6A.rule 50.6: Am 25.3.1977; 21.12.1979; 12.7.1985; 23.6.1989. Subst 28.11.2003.
6A Payment to the Public Trustee
(1) Subject to any order of the Court, the registrar may pay money paid into Court to the Public Trustee for the purpose of payment into the Public Trustee’s common fund.(2) The registrar shall, when making payment to the Public Trustee for the purpose of payment into the Public Trustee’s common fund, give particulars of the payment, including a statement that it is made under section 36G (1) of the Public Trustee Act 1913 and the Public Trustee shall, when making a repayment with interest to the registrar under subsection (2) of that section, give particulars of the payment and the interest.(3) The Court may direct the registrar:(a) to pay money paid into Court to the Public Trustee for the purpose of payment into the Public Trustee’s common fund, or(b) to demand repayment by the Public Trustee to the registrar of money so paid.rule 50.6A: Ins 21.12.1979.
6AA Non-attendance of parties following notice by Court
(1) If the Court has given notice to parties of its intention to order the payment to a party or parties of money paid into Court or any interest accruing on that money and one or more of those parties fails or fail to attend Court as directed in the notice, the Court may:(a) order the payment of the money or any interest accruing on that money (or both) to one or more parties, in such proportions as the Court thinks fit, or(b) direct the registrar to pay the money or interest accruing on the money (or both) to the Treasurer for the purpose of paying the money and any interest on the money to the Consolidated Fund, or(c) determine not to make any order.(2) In this rule:interest accruing on money means any interest accruing on the money as a result of its investment under rule 5 or payment to the Public Trustee under rule 6A.rule 50.6AA: Ins 28.11.2003.
6B Unclaimed funds
(1) Where funds paid into Court or interest accruing on those funds have remained unclaimed for six years, the registrar shall refer the matter to the Court for a direction under subrule (2).cf Dormant Funds Rules.(1A) For the purposes of subrule (1), funds or interest are unclaimed if:(a) the funds or interest have not been paid to the Treasurer pursuant to a direction made under rule 6AA (1) (b), and(b) judgment has been entered on a matter in relation to which funds have been paid into Court, and(c) the whole or any part of those funds is unclaimed within 6 years of either of the following:(i) the making of an order for the payment of the whole of the funds (or any part that is unclaimed),(ii) if no such order is made—the date of judgment.(2) The Court may direct the registrar to pay the funds together with interest on the funds to the Treasurer for the purpose of carrying the funds and interest on the funds to the Consolidated Fund.(3) The Court may, on the application of a person entitled, direct the Treasurer to pay into Court the amount paid to the Treasurer under subrule (2) for payment out to the person entitled.(4) The Court may, on the application of a person entitled, order the Treasurer to pay into Court funds paid before 21 December 1979 to the Treasurer under the Dormant Funds Rules, for payment out to the person entitled.(5) Where the Court is satisfied that the failure to make an application under subrule (3) or subrule (4) was due to the fact that the person entitled was a disable person or the fact that the funds could not be dealt with until the happening of some event subsequent to the order made under subrule (2), the Court may also order the Treasurer to pay into Court for payment out to the person entitled an amount equivalent to the interest (if any) which would have been payable if any arrangement referred to in subrule (2) or subrule (3) of rule 1 had applied to the money paid to the Treasurer pursuant to a direction given under subrule (2) between the date of payment to the Treasurer pursuant to that direction and the date of payment by the Treasurer pursuant to the order made under subrule (3) or subrule (4).(6) This rule applies subject to the provisions of any Act except section 14 (2), (3) and (4) of the Public Finance and Audit Act 1983.(7) In this rule:interest accruing on funds means any interest accruing on the funds as a result of its investment under rule 5 or payment to the Public Trustee under rule 6A.rule 50.6B: Ins 21.12.1979. Am 20.2.1987; 28.11.2003.
7 Authority of recipient
cf RSC (Rev) 1965, O 22, r 10 (2).
Subject to the rules, funds in Court shall not be paid out of Court except to the party entitled or, on his written authority or by order of the Court, to his solicitor.
8 Discharge of registrar
(1) Any direction, cheque or other document for the payment of money out of Court shall, when signed by the payee, be a discharge to the registrar for the money.cf CER, r 295.(2) Nothing in subrule (1):(a) shall prevent the registrar from requiring a receipt for any payment by him, or(b) affects the Stamp Duties Act 1920 or the Duties Act 1997.cf CER, r 295 proviso.rule 50.8: Am 20.10.2000.
9 Death of payee
(1) Where, by any judgment or order, the Court directs the payment to any person of any funds in Court and it appears to the registrar that that person has died after the date on which the judgment or order took effect and that probate of his will or letters of administration of his estate have been granted to an executor or administrator, then, unless the judgment or order otherwise directs, the registrar may pay the funds in Court to the executor or administrator.cf CER, r 296; Supreme Court Funds Rules, 1927, r 62.(2) Where the person to whom the funds in Court are payable is entitled under a direction for payment to creditors, shareholders or debenture holders as such, the registrar may pay as mentioned in subrule (1) notwithstanding that it appears to him that that person died on or before the date on which the judgment or order took effect.cf CER, r 296; SCFR, r 62.(3) Subject to subrule (4) this rule does not authorise payment where the person to whom payment is directed appears to the registrar to have been entitled as trustee, executor, administrator or otherwise not in his own right and for his own use.cf CER, r 296; SCFR, r 62.(4) The registrar may, under this rule, pay funds in Court to an executor of the will of the person to whom payment is directed if it appears to the registrar that the person was entitled as sole or sole surviving executor.cf SCFR, r 62.
10 Payment to partners
cf CER, r 297; SCFR, r 63 (1).
Where, by any judgment or order, the Court directs the payment of money in Court to any persons described in the order, or in a certificate of a master, as partners, or as trading or carrying on business in the name of a firm, the registrar may, unless the judgment or order otherwise directs, pay the money to any one or more of those persons or to the survivor of them.rule 50.10: Am 21.2.1992.
11 Payment to executors or administrators
Where, by any judgment or order, the Court directs the payment of funds in Court to persons described in the judgment or order, or in a certificate of a master, as executors or administrators, the registrar may, unless the judgment or order otherwise directs:(a) if it appears to him that any of them died after the date on which the judgment or order took effect, pay the funds in Court to the survivor of them,cf CER, r 298; SCFR, r 64.(b) if it appears to him that any of them died on or before the date on which the judgment or order took effect, but they are described in the judgment, order or certificate as executors of the will or administrators of the estate of a creditor, shareholder or debenture holder, pay the funds in Court to the survivor of them, and(c) if the funds in Court are money not exceeding $200, pay the money to any of them.
12 Payment by post
(1) Where any person is entitled to payment of any money in Court, he may give to the registrar a request to send to him by post at a specified address a cheque for the money in a specified form.cf CER, r 300.(2) Where the registrar sends a cheque in accordance with a request under subrule (1), payment of the cheque shall be a discharge to the registrar.cf CER, r 300.
Part 51 Court of Appeal
pt 51: Ins 23.5.1997.
Division 1 Preliminary
pt 51, div 1: Ins 23.5.1997.
1 Application
This Part applies to proceedings commenced in the Court of Appeal on or after 1 September 1997.rule 51.1: Ins 23.5.1997.
2 Interpretation
(1) In this Part, unless the context or subject matter otherwise indicates or requires:court below means, in relation to an appeal or application for leave to appeal from a decision in any proceedings, the court in which, or the judge, Magistrate or other person before whom, the proceedings were heard.decision includes a judgment, order, verdict, opinion, decision, direction or determination.exhibit includes a document or thing marked for identification, notwithstanding that it is not admitted in evidence.interested party means a non-submitting party who has an address for service in the proceedings.material date, in relation to an appeal or an application for leave to appeal, means:(a) in the case of a judgment given in proceedings in the Court, the date on which the judgment is given,(b) in the case of any other judgment in proceedings in the Court, the date of entry,(c) in the case of an order in proceedings in the Court, the date on which the order is made,(d) in the case of a verdict in proceedings in the Court, the date on which the verdict is given, and(e) in the case of any other decision, whether in proceedings in the Court or not, the date on which the decision is pronounced or given.necessary party, in relation to service in proceedings in the Court of Appeal, means a person (other than the party effecting service) who is a party to, or who is required by rule 9 to be joined as a party to, the proceedings.verdict includes a finding or assessment.(2) In this Part, unless the context or subject matter otherwise indicates or requires, appeal includes:(a) an appeal from a decision in proceedings in the Court,(b) an appeal from a specified tribunal within the meaning of section 48 (1) (a) of the Act.(3) (Repealed)(4) Notwithstanding subrule (2), in this Part appeal does not include:(a) proceedings to which Part 31 (which relates to the separate decision of questions) or Part 32 (which relates to stated cases) applies, except an appeal to the Court of Appeal from the decision of the Court in a Division in proceedings to which Part 31 or Part 32 applies,(b) an application for the variation or discharge of an order of a Judge of Appeal or of the registrar.rule 51.2: Ins 23.5.1997. Am 5.12.1997; 24.12.1999; 29.8.2003.
3 Rules generally
(1) The provisions of Parts other than this Part apply, so far as applicable, to proceedings in the Court of Appeal.(2) For the purposes of subrule (1):(a) a person who commences proceedings in the Court of Appeal, as appellant or otherwise, shall be a plaintiff,(b) a person against whom proceedings are commenced in the Court of Appeal, as respondent to an appeal or otherwise, shall be a defendant, and(c) a notice of appeal shall be an originating process.(3) Without limiting the generality of subrule (1), Part 34 rule 6AA applies, making such changes as are necessary, to proceedings in the Court of Appeal.rule 51.3: Ins 23.5.1997. Am 20.4.2000.
Division 2 Appeals
pt 51, div 2: Ins 23.5.1997.
4 Institution of application for leave
(1) An application for leave to appeal to the Court of Appeal shall be made by filing and serving on each necessary party within 28 days after the material date:(a) an ordinary summons in Form 59, or(b) a holding summons in Form 59A.(2) An application for leave to cross-appeal to the Court of Appeal shall be made:(a) if an ordinary summons for leave to appeal or a notice of appeal with appointment has been filed in the proceedings—by filing an ordinary summons in Form 59 in the proceedings and serving it on each necessary party within 28 days of the date of:(i) service of the ordinary summons for leave to appeal, oron the applicant, whichever is the earlier, or(ii) service of the notice of appeal with appointment,(b) otherwise—by filing a holding summons in Form 59A in the proceedings and serving it on each necessary party within 28 days of the date of:(i) service of the holding summons for leave to appeal, oron the applicant, whichever is the earlier.(ii) service of the notice of appeal without appointment,(3) A claimant who files a holding summons for leave to appeal shall within:(a) 3 months after serving the summons on all necessary parties, orfile and serve on each necessary party an ordinary summons in Form 59. Part 2 rule 5 shall not apply to the calculation of the period of 3 months under paragraph (a).(b) such shorter period as the Court of Appeal may in special circumstances order,(4) A claimant who files a holding summons for leave to cross-appeal shall within:(a) 28 days after service on the claimant of an ordinary summons for leave to appeal or a notice of appeal with appointment, whichever is the earlier, orfile and serve on each necessary party an ordinary summons in Form 59.(b) such shorter period as the Court of Appeal may in special circumstances order,(5) The court below may extend time under subrule (1) only within 28 days after the material date or on a notice of motion or other application filed and served on each necessary party within 28 days after the material date.(6) The Court of Appeal may extend time under subrule (1), (2), (3) or (4) at any time.(7) A party applying for an extension of time under subrule (6) may include that application in an ordinary summons for leave to appeal or cross-appeal.rule 51.4: Ins 23.5.1997. Subst 5.12.1997.
4A Discontinuance of application for leave
(1) The claimant for leave to appeal or to cross-appeal may discontinue the application by filing a notice of discontinuance in Form 60C and serving it on each opponent who has been served with the summons.(2) If the claimant fails to comply with rule 4 (3) or (4), the application shall thereupon be taken to be discontinued.(3) If:(a) an application for leave to appeal is discontinued, andthe application for leave to cross-appeal shall thereupon be taken to be discontinued.(b) an opponent who has applied for leave to cross-appeal has been served with neither an ordinary summons nor a notice of appeal with appointment in the proceedings,(4) The discontinuance of an application for leave to appeal in proceedings in which an ordinary summons or a notice of appeal with appointment has been filed shall not affect any application for leave to cross-appeal by an opponent on whom the summons or notice has been served.rules 51.4A–51.4D: Ins 5.12.1997.
4B Claimant’s summary of argument etc
(1) A claimant for:(a) leave to appeal, orshall file, in triplicate, with an ordinary summons a folder (the white folder) containing:(b) leave to cross-appeal in proceedings in which no application for leave to appeal (other than a discontinued application) has been served on the claimant,(c) a copy of the summons,(d) a summary of the claimant’s argument in accordance with subrule (2),(e) the reasons for judgment (if any) or the summing up (if any) in the court below, certified by the proper officer of the court below,(f) a draft notice of appeal or cross-appeal,(g) if the summary contains a statement under subrule (3) (g)—the necessary documents for the appeal or cross-appeal, unless the registrar gives leave to defer filing them, andand serve the white folder with the summons.(h) any other documents other than documents to be filed by the opponent, that are necessary for disposal of the application,(2) The summary of argument shall not exceed 10 pages in length, shall be signed by the barrister or solicitor who prepares it or, where it is not prepared by a barrister or solicitor, by or on behalf of the party on whose behalf it is signed, and:(a) the name of the signatory,(b) a telephone number at which the signatory can be contacted, andshall be typed or printed in a neat and legible manner under his or her signature.(c) if available, the signatory’s facsimile number,(3) The summary of argument shall state:(a) the nature of the claimant’s case,(b) the questions involved,(c) briefly, the claimant’s argument,(d) the reasons why leave should be granted,(e) any reasons why an order for costs should not be made in favour of the opponent if the application is refused,(f) whether the claimant consents to the application for leave being determined or dealt with in the absence of the public and without any attendance by or on behalf of any person,(g) where applicable—that, and the reasons why, it is suitable for oral argument of the appeal or cross-appeal to proceed concurrently with the leave application (the appeal or cross-appeal being subject to the granting of the application), and(h) in tabular form, a list of relevant authorities and legislation.(4) Each folder shall:(a) be white in colour,(b) be approximately A4 in size,(c) be covered with a clearview PVC (or similar) binder capable of holding an A4 insert,(d) be 38 mm wide and contain 2 D rings, to hold documents, and(e) contain labelled dividers separating the contents in a convenient way, including dividers to receive the opponent’s documents and the claimant’s reply.rules 51.4A–51.4D: Ins 5.12.1997.
4C Opponent’s response
(1) Subject to subrule (3), an opponent (which expression in this rule includes an opponent to an application for leave to cross-appeal), shall, within 28 days after service of the white folder or the documents referred to in subrule (3) on him or her, file and serve the opponent’s response on each interested party.(2) A response shall:(a) state that the opponent:(i) consents to the leave sought,(ii) submits to the orders of the Court of Appeal, or(iii) submits to the orders of the Court of Appeal save as to costs, or(b) state:(i) briefly, the opponent’s argument,(ii) the reasons why leave should or should not be granted,(iii) whether the opponent consents to the application for leave being determined or dealt with in the absence of the public and without any attendance by or on behalf of any person,(iv) any other relevant matters, including terms to which leave should be subject and contentions concerning costs, and(v) in tabular form, a list of relevant authorities and legislation.(3) If the opponent applies for leave to cross-appeal, the opponent shall file and serve with the response:(a) a copy of the summons for leave to cross-appeal,(b) a summary of the opponent’s argument in favour of leave to cross-appeal,(c) a draft notice of cross-appeal,(d) if the summary of the opponent’s argument contains a statement under subrule (5) (g)—the necessary documents for the cross-appeal, unless the registrar gives leave to defer filing them, and(e) any other documents, not already filed, other than documents to be filed by the other party, that are necessary for disposal of the application for leave to cross-appeal.(4) The response, and the summary referred to in subrule (3) (if any), shall each:(a) not exceed 10 pages in length,(b) be signed by the barrister or solicitor who prepares it or, where it is not prepared by a barrister or solicitor, by or on behalf of the party on whose behalf it is signed, and:(i) the name of the signatory,(ii) a telephone number at which the signatory can be contacted, andshall be typed or printed in a neat and legible manner under his or her signature, and(iii) if available, the signatory’s facsimile number,(c) be hole punched for insertion in the white folder.(5) The summary referred to in subrule (3) shall state:(a) the nature of the opponent’s case,(b) the questions involved,(c) briefly, the opponent’s argument,(d) the reasons why leave to cross-appeal should be granted,(e) any reasons why an order for costs should not be made in favour of the claimant for leave to appeal if the application for leave to cross-appeal is refused,(f) whether the opponent consents to the application for leave to cross-appeal being determined or dealt with in the absence of the public and without any attendance by or on behalf of any person,(g) where applicable—that, and the reasons why, it is suitable for oral argument of the cross-appeal to proceed concurrently with the leave application (the cross-appeal being subject to the granting of the application), andand shall contain labelled dividers separating the contents in a convenient way including, if application is made for leave to cross-appeal, a divider to receive the claimant’s response and the opponent’s reply.(h) in tabular form, a list of relevant authorities and legislation,rules 51.4A–51.4D: Ins 5.12.1997.
4D Determination of application for leave without attendance
(1) An application for leave to appeal or to cross-appeal that is not opposed in accordance with the rules may be determined or dealt with by the Court of Appeal in the absence of the public and without any attendance by or on behalf of any person.(2) An application for leave to appeal or to cross-appeal to which subrule (1) does not apply may, with the consent of each party who has an address for service in the proceedings and has not:(a) filed a submitting appearance, orbe determined or dealt with by the Court of Appeal in the absence of the public and without any attendance by or on behalf of any person.(b) consented or submitted to the application under rule 4C (2) (a),rules 51.4A–51.4D: Ins 5.12.1997.
5 Time for appeal
(1) Subject to subrule (2), an appeal must be instituted within 28 days after the material date or within such extended time as the court below or the Court of Appeal may fix.(2) An appeal by leave must be instituted within 14 days after leave is given or within such extended or abridged time as the Court of Appeal may fix.(3) The court below may extend time under subrule (1) only within 28 days after the material date or on a notice of motion or other application filed and served on each necessary party within 28 days after the material date.(4) The Court of Appeal may extend time under subrule (1) or under subrule (2) at any time.(5) A party applying to the Court of Appeal for an extension of time under subrule (1) or subrule (2) shall lodge and serve with the notice of motion a draft, completed as far as possible, of the notice of appeal to be filed if an extended time is fixed.rules 51.5, 51.6: Ins 23.5.1997. Am 5.12.1997.
6 Institution and discontinuance of appeal
(1) An appeal to the Court of Appeal shall be instituted by filing in the registry of the Court of Appeal and serving on each necessary party:(a) where the appeal is instituted pursuant to leave to appeal—a notice of appeal with appointment in Form 60, or(b) otherwise:(i) a notice of appeal without appointment in Form 60A, or(ii) a notice of appeal with appointment in Form 60.(2) An appellant who files a notice of appeal without appointment shall within:(a) 3 months after filing the notice of appeal, orfile and serve on each necessary party a notice of appeal with appointment in Form 60. Part 2 rule 5 shall not apply to the calculation of the period of 3 months under paragraph (a).(b) such shorter period as the Court of Appeal may in special circumstances order,(3) The appellant shall, on filing a notice of appeal with appointment:(a) obtain from the proper officer in the registry a date for the appeal to be called over, and(b) subscribe it to the notice.(4) If the appellant fails to comply with subrule (2), the appeal shall thereupon be taken to be discontinued.(5) The appellant may discontinue the appeal by filing a notice of discontinuance in Form 60C and serving it on each respondent who has been served with the notice of appeal.(6) The discontinuance of an appeal shall not affect any cross-appeal.rules 51.5, 51.6: Ins 23.5.1997. Am 5.12.1997.
7 Applications
cf RSC (Rev) 1965, O 59, rr 14 (3), 15 (1).
Notwithstanding anything in these rules, where an application made under subrule (2) of Part 19 rule 2 for any of the forms of relief specified in Part 28 rule 1, rule 2 and rule 3 has been refused, an application for a similar purpose may be made to the Court of Appeal within seven days of the refusal, or within such extended time as the Court of Appeal may within such seven days allow, without service of any notice of appeal, summons or notice of motion.rule 51.7: Ins 23.5.1997.
8 Appeals as of right
Where an appeal to the Court of Appeal is restricted by reference in any Act to a specified amount or value, the appellant shall, within the time limited for instituting the appeal, file and serve on each necessary party an affidavit stating facts which show that the restriction does not apply.rules 51.8–51.11: Ins 23.5.1997. Am 5.12.1997.
9 Parties
(cf Pt 52A, rr 12 & 13: costs)
(1) Each party to the proceedings in the court below who is affected by the relief sought by a notice of appeal or is interested in maintaining the decision under appeal shall be joined as a party appellant or respondent to the appeal.(2) The Court of Appeal may order the addition or removal of any person as a party appellant or respondent to an appeal.(3) A person shall not be made an appellant without his consent.(4) An appellant who considers that respondents need not be separately represented on the appeal may notify such respondents that objection will be taken to more than one set of costs being allowed between them.(5) An appellant who considers that a respondent should enter a submitting appearance and take no further active part in the proceedings may notify that respondent that objection will be taken to any order for costs, incurred after that date, other than for costs as a submitting party, being made in favour of that respondent.(6) The failure by:(a) an appellant to give notice under subrules (4) or (5), ordoes not limit the powers of the Court with respect to the costs of the proceedings.(b) a claimant to give a corresponding notice pursuant to subrule (7),(7) This rule applies, making such changes as are necessary, to an application for leave to appeal or to cross-appeal.rules 51.8–51.11: Ins 23.5.1997. Am 5.12.1997.
10 Service
(1) The Court of Appeal may direct that any notice of appeal or cross-appeal be served on any person whether or not a party to the proceedings in which the decision under appeal was given.(2) Where the Court of Appeal makes an order granting leave to appeal or to cross-appeal or an extension of time for appealing or for cross-appealing or for applying for leave to appeal or to cross-appeal, the Court of Appeal may, at the same time or afterwards, give directions for service other than personal service of any notice of appeal or of cross-appeal or summons by which, pursuant to the order, proceedings are commenced for an appeal or for leave to appeal or to cross-appeal, and of any other document in the proceedings so commenced.rules 51.8–51.11: Ins 23.5.1997. Am 5.12.1997.
11 Notice of appeal: contents
(1) A notice of appeal with appointment shall state:(a) whether it is filed pursuant to leave, and the date leave was given,(b) whether the appeal is from the whole or part only, and what part, of the decision in the court below,(c) briefly, but specifically the grounds relied upon in support of the appeal, and(d) what judgment, order, verdict or determination the appellant seeks in place of the decision in the court below.(2) Unless the respondent has filed a summons in the proceedings, the notice of appeal shall bear a note that before taking any step in the proceedings the respondent must enter an appearance, or file a summons, in the proceedings in the registry.rules 51.8–51.11: Ins 23.5.1997. Am 5.12.1997.
12 Judiciary Act 1903 of the Commonwealth (s 78B)
Where a ground of appeal involves a matter arising under the Constitution of the Commonwealth or involves its interpretation:(a) the statement of the ground in a notice of appeal shall indicate that it involves a matter within section 78B of the Judiciary Act 1903 of the Commonwealth, and(b) the appellant shall, forthwith after obtaining an appointment under rule 6 (3), give the notices required by that section and promptly file an affidavit of service of the notices.rule 51.12: Ins 23.5.1997.
13 Intervention by ASIC
(1) Where a ground of appeal involves a matter arising under the Corporations Law and ASIC did not intervene in the proceedings in the court below, the Court of Appeal or a Judge of Appeal may direct service of a copy of the notice of appeal or cross-appeal on ASIC.(2) A party directed to serve a copy of a notice under subrule (1) shall:(a) serve the copy, endorsed “Served pursuant to SCR Pt 51 r 13 (2)” and marked for the attention of its General Counsel for New South Wales, on ASIC, and(b) promptly file an affidavit of service of the copy.(3) The copy notice may be served on ASIC by leaving it, addressed to ASIC, in an exchange box of ASIC in a document exchange of Australian Document Exchange Pty Limited or at another exchange box for transmission to that exchange box.(4) ASIC may intervene under section 1330 (1) of the Corporations Law in an appeal by filing, before the date of call-over subscribed to the notice of appeal, a notice of appearance that includes a statement that ASIC intervenes under the section.(5) Upon complying with subrule (4), ASIC shall be added as a respondent.rule 51.13: Ins 23.5.1997. Am 23.10.1998.
14 Notice of appeal or summons for leave to appeal or cross-appeal: filing or lodgment with court below
An appellant who files:(a) a notice of appeal with or without appointment, or(the initiating document) in the registry of the Court of Appeal shall:(b) an ordinary or a holding summons for leave to appeal or to cross-appeal,(c) in the case of an appeal from a decision in proceedings in a Division—on the day of filing the initiating document, file a copy thereof in the registry of the Division, or(d) in any other case:(i) file a copy of the initiating document in the registry or office of the court below, or(ii) if compliance with subparagraph (i) is not in accordance with the practice or organisation of the court below, lodge a copy of the initiating document with an officer of the court below concerned with its records or process.rule 51.14: Ins 23.5.1997. Subst 5.12.1997.
15 Stay
(1) An application for leave to appeal to the Court of Appeal or an appeal to the Court of Appeal shall not:(a) operate as a stay of execution or of proceedings under the decision of the court below,except so far as the Court of Appeal may direct or, subject to any direction of the Court of Appeal, as the court below may direct.(b) invalidate any intermediate act or proceeding,(2) An applicant for a stay of execution or of proceedings under the decision of the court below shall serve the application and the order determining the application on each necessary party and:(a) file copies thereof in the registry or office of the court below, or(b) if compliance with paragraph (a) is not in accordance with the practice or organisation of the court below—lodge copies thereof with an officer of the court below concerned with its records or process.rule 51.15: Ins 23.5.1997. Am 20.2.1998.
16 Security for costs
(1) Where a notice of appeal with appointment has been filed under rule 6, the Court of Appeal may, in special circumstances, order that such security as the Court of Appeal thinks fit be given for the costs of the appeal.cf RSC (Rev) 1965, O 59, r 10 (5).(2) Subject to subrule (1), no security for the costs of an appeal to the Court of Appeal shall be required.(3) Subrules (1) and (2) do not affect the powers of the Court under Part 53 Division 1 (which relates to security for costs).rule 51.16: Ins 23.5.1997.
17 Amendment of notice of appeal
A notice of appeal may, before the date of call-over, be amended without leave by filing, and serving on all necessary parties, a supplementary notice.rule 51.17: Ins 23.5.1997. Subst 5.12.1997.
18 Cross-appeal
(1) Where a respondent to an appeal from any decision wishes to cross-appeal from the whole or any part of the decision and is entitled to do so as of right, he or she shall file and serve on each necessary party a notice of cross-appeal.(2) A notice of cross-appeal must be filed and served by a respondent within the earlier of:(a) 14 days after service on the respondent of a notice of appeal with or without appointment,(b) 14 days after leave to cross-appeal is given, or(c) such extended or abridged time as the Court of Appeal may fix.(3) Subject to subrules (1), (2), (4) and (5), the provisions of these rules relating to a notice of appeal apply to a notice of cross-appeal.(4) Rules 5 and 6 (2)–(4) do not apply to a cross-appeal.(5) Times in rule 42 (4) and (5) and rule 47 (1) shall run from the date of filing of the notice of appeal with appointment rather than the date of filing of the notice of cross-appeal with appointment.rule 51.18: Ins 23.5.1997. Am 5.12.1997; 20.4.2000; 30.6.2000.
19 Further evidence on appeal
(1) This rule applies to any application to the Court of Appeal to receive evidence in proceedings on an appeal additional to evidence in the court below.(2) This rule applies unless the Court of Appeal otherwise directs.(3) The application shall be made by motion on the hearing of the appeal without filing or serving notice of the motion.(4) The grounds of the application shall be stated in an affidavit.(5) Any evidence necessary to establish the grounds of the application, and the evidence which the applicant wants the Court of Appeal to receive shall be given by affidavit.(6) The applicant shall file any affidavit not later than 21 days before the hearing of the appeal.(7) The evidence of any other party to the appeal shall be given by affidavit filed not later than 14 days before the hearing of the appeal.(8) A party to the appeal shall, not later than the time limited for him or her to file an affidavit under this rule:(a) lodge as many copies of the affidavit as the registrar may direct, and(b) serve three copies of the affidavit on each other interested party.rules 51.19–51.21: Ins 23.5.1997. Am 5.12.1997.
20 Submitting appearance
(cf Pt 52A, r 12: costs)
A respondent to an appeal or an opponent to proceedings commenced by summons, other than under rule 4, who wishes to submit to the orders of the Court of Appeal, save as to costs, may file a notice of appearance with a statement that the party submits to the orders of the Court, save as to costs.rules 51.19–51.21: Ins 23.5.1997. Am 5.12.1997.
21 Notice of contention
cf RSC (Rev) 1965, O 59, r 6 (2).
(1) Where a respondent to an appeal wishes to contend that the decision of the court below should be affirmed on grounds other than those relied upon by the court below, but does not seek a discharge or variation of any part of the decision of the court below, the respondent need not file a notice of cross-appeal but he or she must, within 14 days after service on him or her of the notice of appeal with or without appointment, file and serve on each other interested party notice of that contention stating briefly but specifically, the grounds relied upon in support of the contention.(2) Where a ground relied on in support of the contention involves a matter arising under the Constitution of the Commonwealth or involves its interpretation:(a) the statement of the ground shall indicate that it involves a matter within section 78B of the Judiciary Act 1903 of the Commonwealth, and(b) the respondent shall, forthwith after filing the notice of contention, give the notices required by that section and promptly file an affidavit of service of the notices.rules 51.19–51.21: Ins 23.5.1997. Am 5.12.1997.
22 Notice of appeal etc not to limit powers
(1) In an appeal from any decision, the Court of Appeal may exercise its powers under the Act and under these rules notwithstanding:(a) that there is no appeal from some part of the decision,(b) that any party to the proceedings in the court below has not appealed,(c) that any ground for allowing or dismissing the appeal or varying the decision is not stated in any notice of appeal, notice of cross-appeal or notice of contention, or(d) that there has been no appeal from some other decision in the proceedings.cf RSC (Rev) 1965, O 59, r 10 (4), (6).(2) Where a person is not a party to the proceedings in which the decision under appeal is given, but is served with a notice of appeal with appointment pursuant to a direction of the Court of Appeal, the Court of Appeal may give such decision as might have been given in the court below if the person served had been a party to the proceedings in the court below.cf RSC (Rev) 1965, O 59, r 8 (3) (b).(3) In any appeal the Court of Appeal may, on terms, make any order to ensure the determination on the merits of the real question in controversy.cf RSC (Rev) 1965, O 59, r 10 (4).(4) The Court of Appeal may, in any appeal, make any order which the Court of Appeal might make on an application for a new trial or for the setting aside of a verdict or judgment.cf RSC (Rev) 1965, O 59, r 11 (1).(5) This rule applies subject to the provisions of any Act.rules 51.22–51.26: Ins 23.5.1997.
23 New trial
(1) The Court of Appeal shall not order a new trial:(a) on the ground of misdirection, non-direction or other error of law,(b) on the ground of the improper admission or rejection of evidence,(c) where there has been a trial before a jury, on the ground that the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to the jury, orunless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned.(d) on any other ground,cf RSC (Rev) 1965, O 59, r 11 (2).(2) The Court of Appeal may order a new trial on any question without interfering with the decision on any other question.cf RSC (Rev) 1965, O 59, r 11 (3); Act No 21, 1899, s 160 (b).(3) Where it appears to the Court of Appeal that some ground for a new trial affects part only of the matter in controversy, or one or some only of the parties, the Court of Appeal may order a new trial as to that part only, or as to that party or those parties only.cf RSC (Rev) 1965, O 59, r 11 (3); Act No 21, 1899, s 160 (b).(4) Where the Court of Appeal makes an order under subrule (2) or subrule (3), the Court of Appeal may give such judgment or make such order as the nature of the case requires for the disposal of the remainder of the appeal.cf RSC (Rev) 1965, O 59, r 11 (3).(5) Where the Court of Appeal orders a new trial, the Court of Appeal may:(a) impose conditions on any party for the purposes of the new trial,(b) direct admissions to be made by any party for the purpose of the new trial,(c) order that the testimony of any witness examined at the former trial may be read from the notes of the testimony, instead of the witness being again examined, and(d) for the purposes of subparagraphs (a) to (c) from time to time make such orders as the Court of Appeal thinks fit.cf Act No 21, 1899, s 160.rules 51.22–51.26: Ins 23.5.1997.
24 Time: want of prosecution
Where an appellant has not done any act required to be done by or under these rules, or otherwise has not prosecuted his appeal with due diligence, the Court of Appeal may on application by any party or of its own motion:(a) order that the appeal shall be dismissed for want of prosecution,(b) fix a time peremptorily for the doing of the act and:(i) in the event of non-compliance, subsequently order that it be so dismissed, or(ii) in special circumstances order that in the event of non-compliance the appeal be dismissed, or(c) make such further or other order as in the circumstances may seem just.rules 51.22–51.26: Ins 23.5.1997.
25 Competency
(1) A respondent who objects to the competency of an appeal shall, by motion on notice filed and served on all other parties to the appeal within 21 days after service upon the respondent of the notice of appeal with appointment, apply to the Court of Appeal for an order striking out the appeal as incompetent.(2) If the respondent fails to comply with subrule (1), but the appeal nevertheless is dismissed as incompetent, he shall not, unless the Court of Appeal otherwise orders, receive any costs of the appeal, and the Court of Appeal may order that he pay to the appellant any costs of the appeal proving useless or unnecessary.rules 51.22–51.26: Ins 23.5.1997.
26 Reinstatement and restitution
Where any step has been taken for the enforcement of a judgment or order and the Court of Appeal varies or sets aside the judgment or order, the Court of Appeal may make such orders for reinstatement or restitution as the Court of Appeal thinks fit.rules 51.22–51.26: Ins 23.5.1997.
27 Unopposed application for expedition etc
(1) Subject to rule 28, a party to an appeal who seeks an order expediting the appeal, or shortening time under rule 4 or rule 6 (2), may:(a) serve on each other interested party:(i) notice of motion for the order, being a notice which does not state the date or time when, or the place where, the motion is to be made, and(ii) the affidavits in support of the motion, and(b) file:(i) the documents referred to in paragraph (a), and(ii) a notice of non-objection, in Form 61AA, by each party referred to in paragraph (a).(2) An application made in accordance with subrule (1) may be determined or dealt with by a Judge of Appeal in the absence of the public and without any attendance by or on behalf of any person.(3) Where an application is determined or dealt with in accordance with subrule (2), reasons for the decision need not be given.(4) This rule does not restrict any other power of the Court of Appeal to order that an appeal be expedited.rule 51.27: Ins 23.5.1997. Am 5.12.1997 (see erratum 16.1.1998).
28 Unopposed application for expedition at call-over
(1) A party to an appeal who:(a) seeks an order expediting the appeal, andshall apply for the order by motion on notice returnable at the call-over.(b) has, not less than 3 days prior to the call-over, obtained a notice of non-objection, in Form 61AA, by each interested party,(2) The applicant shall:(a) serve notice of the motion, affidavits in support and the notices of non-objection upon each interested party, and(b) file:(i) the documents referred to in paragraph (a), and(ii) the notices of non-objection referred to in subrule (1) (b).rule 51.28: Ins 23.5.1997. Am 5.12.1997.
Division 3 Appeal book
pt 51, div 3: Ins 23.5.1997.
29 Retention of exhibits
(1) Where an appeal from a decision in any proceedings lies, by leave or without leave, to the Court of Appeal, the officer of the court below who has custody of the exhibits in the proceedings shall, unless the court below otherwise orders, retain the exhibits for:(a) 28 days after the material date, or(b) if a holding summons for leave to appeal or to cross-appeal, or a notice of appeal without appointment, is filed or lodged under rule 14—three months after the filing of the summons or notice.(2) Upon filing or lodgment under rule 14 of a copy of a notice of appeal with appointment, the proper officer of the court below shall make out and certify a list of the exhibits.(3) Where an exhibit is not available for delivery to the registry of the Court of Appeal, the officer certifying under subrule (2) shall, in the certificate, state the circumstances and give such information as he can to enable the registrar to cause the exhibits to be available to the Court of Appeal.rule 51.29: Ins 23.5.1997. Am 5.12.1997.
30 Collection of papers (appeals commencing on or after 1 June 2000)
(1A) This rule applies to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Upon the filing of notice of appeal with appointment, the registrar:(a) may obtain from the Court Reporting Branch the original of the transcript (if any) of the proceedings in the court below, and(b) shall obtain from the proper officer of the court below:(i) the exhibits,(ii) the list of exhibits and certificate under rule 29,(iii) all the other documents before the court below, together with a list of them, certified by the proper officer of the court below, and(iv) the reasons for judgment (if any) or the summing up (if any) in the court below certified by the proper officer of the court below.(2) Where oral evidence was given in the court below but was not transcribed in the Court Reporting Branch:(a) if notes of the evidence were taken by or for the judge, justice or other person presiding in the court below, the appellant shall, subject to any direction in the court below, obtain a copy of the notes and deliver the copy to the registry, or(b) if notes of the evidence are not obtainable pursuant to paragraph (a), the registrar shall obtain a report of the evidence from the associate or other proper officer of the court below.(3) The registrar shall retain the documents obtained under subrules (1) and (2) and shall, unless the appeal book is prepared by the registrar, allow the party who is required to prepare the appeal book to have custody of such of those documents as are necessary for that purpose.(4) The party having custody of documents pursuant to subrule (3) shall return them intact to the registrar upon completion of the Red Book, whereupon the registrar shall make them available to the other interested parties for the purpose of preparing written submissions and chronologies.(5) Where pursuant to subrule (4) documents are to be made available to more than one party, they shall be made available in accordance with a schedule of access agreed to by all parties entitled to access or, failing agreement, determined by the registrar.(6) Subject to subrule (3), the registrar shall retain the documents obtained under subrule (1) until disposal of the appeal and shall thereupon return them to the offices or persons from whom he or she obtained them.rule 51.30: Ins 20.4.2000.
30A Collection of papers (appeals commencing before 1 June 2000)
(1A) This rule does not apply to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Upon the filing of notice of appeal with appointment, the registrar:(a) may obtain from the Court Reporting Branch the original of the transcript (if any) of the proceedings in the court below, and(b) shall obtain from the proper officer of the court below:(i) the exhibits,(ii) the list of exhibits and certificate under rule 29,(iii) all the other documents before the court below, together with a list of them, certified by the proper officer of the court below, and(iv) the reasons for judgment (if any) or the summing up (if any) in the court below certified by the proper officer of the court below.(2) Where oral evidence was given in the court below but was not transcribed in the Court Reporting Branch:(a) if notes of the evidence were taken by or for the judge, justice or other person presiding in the court below, the appellant shall, subject to any direction in the court below, obtain a copy of the notes and deliver the copy to the registry, or(b) if notes of the evidence are not obtainable pursuant to paragraph (a), the registrar shall obtain a report of the evidence from the associate or other proper officer of the court below.(3) The registrar shall retain the documents obtained under subrules (1) and (2) and shall, unless the appeal book is prepared by the registrar, allow the party who is required to prepare the appeal book to have custody of such of those documents as are necessary for that purpose.(4) The party having custody of documents pursuant to subrule (3) shall return them intact to the registrar upon completion of the appeal book.(5) Subject to subrule (3), the registrar shall retain the documents obtained under subrule (1) until disposal of the appeal and shall thereupon return them to the offices or persons from whom he obtained them.rule 51.30A (previously Rule 51.30): Ins 23.5.1997. Am 20.4.2000. Renumbered 20.4.2000.
31 Preparation of appeal book
(1) The appeal book shall, unless a Judge of Appeal or the registrar otherwise directs, be prepared by the appellant in accordance with this rule.(2) It shall be printed or reproduced by a photocopying, roneograph, or some other multi-graphic process which gives uniform copies of pages in a clear and legible type.(3) It shall be divided into sections in accordance with rule 32 or rule 32A, as the case requires.(4) The pages in each section shall be numbered consecutively and, where a section exceeds 300 pages, it shall be bound in separate volumes of not more than 250 pages.(5) The contents shall be printed, or otherwise reproduced, with a 50 millimetres margin on the right hand side of each page and evenly marked in the margin with the letters “A” to “Z”.(6) Each section shall have a title page setting out the full and correct title of the proceedings, including the title of the court below, names of the solicitors for each party, the address for service for each party, and the telephone, telex, facsimile and reference number of each party.(7) The index shall follow, showing the page number where each document is reproduced and, in the case of exhibits, the page of the appeal book containing the transcript where the exhibit was admitted or marked.(8) Where a section is bound in 2 or more volumes, each volume shall contain, at the beginning, an index of the entire section, unless otherwise directed by the registrar.(9) One or more sections may be in a lever arch folder.rule 51.31: Ins 23.5.1997. Am 20.4.2000.
32 Division of appeal book (appeals commencing on or after 1 June 2000)
(1A) This rule applies to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Subject to subrule (2), the appeal book shall be divided into the following 4 sections:(a) the formal section which shall be bound in a red cover (the Red Book),(b) the transcript section which shall be bound in a black or grey cover (the Black Book),(c) the document (section) which shall be bound in a blue cover (the Blue Book), and(d) the submissions and chronology section which shall be bound in an orange cover (the Orange Book).(2) If the total number of pages to be contained in the Black and Blue Books would not exceed 300, those pages may be combined in one book with a black or grey cover (the Combined Book).(3) The party filing the Orange Book shall include in it a consolidated index of all Books. The Court may direct that a separate Book incorporating the consolidated index be filed, in which case it shall be in a green cover (the Green Book).rule 51.32: Ins 23.5.1997. Am 23.10.1998. Subst 20.4.2000.
32A Division of appeal book (appeals commencing before 1 June 2000)
(1A) This rule does not apply to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Subject to subrule (2), the appeal book shall be divided into the following 3 sections:(a) the formal section which shall be bound in a red cover (the Red Book),(b) the transcript section which shall be bound in a black or grey cover (the Black Book), and(c) the document section which shall be bound in a blue cover (the Blue Book).(2) If the total number of pages to be contained in the Black and Blue Books would not exceed 300, those pages may be combined in one book with a black or grey cover (the Combined Book).(3) The party filing the Black and Blue Books shall include in the Black Book a consolidated index of all Books. The Court may direct that a separate Book incorporating the consolidated index be filed, in which case it shall be in a green cover (the Green Book).rule 51.32A: Ins 20.4.2000.
33 Red Book
The Red Book shall contain:(a) an index of its contents,(b) the process and pleadings of every party as last amended at the trial and any intermediate versions that are relevant to the grounds of appeal, cross-appeal or contention,(c) the reasons for judgment or summing up of the primary Judge or court,(d) unless the terms of the judgment or award of the primary Judge or court are clearly stated in the reasons—a duly authenticated minute of the judgment or award,(e) the notice of appeal, and any notice of cross-appeal and notice of contention,(f) the transcript of the application for leave to appeal or to cross-appeal if applicable,(f1) any affidavit filed pursuant to rule 8 of this Part,(g) any submitting appearance,(h) in proceedings in which a notice of appeal with appointment is not filed on or after 1 June 2000:(i) any schedule filed pursuant to rule 40, and(ii) any document filed pursuant to rule 41.(i) (Repealed)rule 51.33: Ins 23.5.1997. Am 24.9.1999; 20.4.2000; 11.5.2001.
34 Black Book
(1) Subject to subrule (2), the Black Book shall contain an index of its contents, which shall include reference to:(a) the evidence of each witness in chief,(b) cross-examination,(c) re-examination,(d) submissions,(e) addresses,(f) the transcript of the hearing including, where the trial is with a jury, the return of the jury’s verdict, and(g) any written questions submitted to the jury for their determination.(2) Only such of the transcript as is necessary for the hearing or determination of the appeal, cross-appeal and notice of contention shall be included in the Black Book and, if there is no such transcript, no Black Book shall be prepared.rules 51.34, 51.35: Ins 23.5.1997.
35 Blue Book
(1) Subject to subrule (4), the Blue Book shall contain:(a) an index of its contents which:(i) in the case of affidavits or statements:(A) shall include reference to each annexure thereto including the first page at which it appears in the book, and(B) indicate which parts of affidavits, statements and annexures were rejected, not read, or admitted for a limited purpose,(ii) in the case of exhibits—shall:(A) give the date of each exhibit and indicate whether or not its text is reproduced in the appeal book,(B) arrange the exhibits in the order in which they have been lettered or numbered, and(C) refer to the pages of the transcript where the exhibits were admitted or marked,(b) all documents before the court appealed from (other than those contained in the Red and Black Books) that are relevant and necessary for the hearing or determination of the appeal, cross-appeal or contention.(2) Where the text of affidavits or statements is reproduced, pages or annexures not admitted in evidence shall be excluded, unless relevant to a ground of appeal, cross-appeal or contention.(3) The following provisions apply to exhibits:(a) exhibits shall be arranged, not in the order in which they have been lettered or numbered as exhibits, but in chronological order according to the dates borne by the documents or, in the case of manifestly or admittedly misdated documents, their known date,(b) if a document is undated, it shall be placed in the sequence contended for by the appellant, but the appellant shall inform the respondent of the position or order proposed for the document and the respondent may require that a “date or order disputed” be inserted in the index against the document,(c) if the exhibits include correspondence between, or among, 2 or more persons that should be read consecutively and not interspersed among other documents, the documents forming the correspondence may be arranged in chronological order and given a position together, at a convenient place, in relation to the other exhibits,(d) if the exhibits include medical reports by a group of doctors, or by 1 doctor, tendered on behalf of a party that should be read consecutively and not interspersed among other documents, those medical reports may be arranged in chronological order and given a position together, at a convenient place, in relation to the other exhibits,(e) any photographs and plans, shall be included unless irrelevant to the proposed grounds of appeal, cross-appeal or contention and if possible shall be reduced in size if necessary for including in the appeal book, and(f) interrogatories, answers and affidavits of documents shall not be included, except so far as they were put in evidence.(4) Only such of the documents described in this rule as are relevant to or necessary for the hearing or determination of the appeal shall be included in the Blue Book and, if there are no such documents, no Blue Book shall be prepared.rules 51.34, 51.35: Ins 23.5.1997.
35A Orange Book (appeals commencing on or after 1 June 2000)
The Orange Book (which is required to be filed in proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000) shall contain:(a) the consolidated index or, if applicable, an index of its contents,(b) submissions and chronology in their final form with references substituted by the appellant where necessary to comply with rule 46 (1) (b),(c) the submissions and chronologies served on the appellant by other parties in their final form, and(d) any amended notices of appeal or cross-appeal or of contention, in their final form.rule 51.35A: Ins 20.4.2000.
36 Disputes as to contents of appeal book
(1) A party who:(a) objects to the inclusion of material in the appeal book on the ground that it is unnecessary or irrelevant, orshall, within 7 days of service of the appeal book upon the party, serve a written notice containing the party’s objection or assertion on any other interested party.(b) asserts that further material should be included,(2) The party preparing the appeal books may, with the consent of all other parties other than a submitting respondent, add pages to, or delete pages from, the appeal book at any time at least 14 days prior to the hearing of the appeal or after that time with the leave of the Court or the registrar. If an appeal book is so amended, the index to the relevant section and the consolidated index are to be amended accordingly.(3) A party who asserts that additional material should be included in the appeal book shall, unless all other parties who have not submitted have agreed to the inclusion, at least 7 days prior to the hearing lodge 4 copies of the additional material and serve 3 copies on each other interested party. The additional material shall be indexed and, if it consists of more than 30 pages, bound as a supplementary Black Book or Blue Book, as the case requires.rule 51.36: Ins 23.5.1997. Am 5.12.1997; 20.4.2000.
37 Filing, lodgment and service of appeal book (appeals commencing on or after 1 June 2000)
(1A) This rule applies to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) The appellant shall:(a) within 6 weeks of filing a notice of appeal with appointment:(i) file a copy of the Red Book, and(ii) serve 3 copies thereof on each other interested party, and(b) not less than 4 weeks before the date fixed for hearing of the appeal, lodge a further 3 copies of the Red Book with the registrar.(2) The appellant shall not less than 10 weeks before the date fixed for the hearing of the appeal:(a) serve on each other interested party 3 copies of:(i) the Blue Book or, if the Black and Blue Books are combined, the Combined Book, and(ii) the Green Book, if applicable, and(b) if there is a Black Book—serve 3 copies on any other party who has, not later than 7 days after the date of call-over, required the same.(3) The appellant shall not less than 4 weeks before the date fixed for the hearing of the appeal:(a) file a copy of:(i) the Black and Blue Books or, if those books are combined, the Combined Book, and(ii) the Green Book, if applicable, and(iii) the Orange Book,(b) lodge 3 copies with the registrar, and(c) serve on each other interested party 3 copies of the Orange Book.rule 51.37: Ins 23.5.1997. Am 5.12.1997. Subst 20.4.2000.
37AA Filing, lodgment and service of appeal book (appeals commencing before 1 June 2000)
(1A) This rule does not apply to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) The appellant shall:(a) within 8 weeks of filing a notice of appeal with appointment:(i) file a copy of the Red Book, and(ii) serve 3 copies thereof on each other interested party, and(b) not less than one month before the date fixed for hearing of the appeal, lodge a further 3 copies of the Red Book with the registrar.(2) The appellant shall not less than one month before the date fixed for the hearing of the appeal:(a) file a copy of:(i) the Black and Blue Books or, if those books are combined, the Combined Book, and(ii) the Green Book, if applicable,(b) lodge 3 copies with the registrar,(c) serve 3 copies of the Blue Book or the Combined Book on each other interested party, and(d) if there is a Black Book—serve 3 copies on any other party who has, not later than 7 days after the date of call-over, required the same.rules 51.37AA, 51.37A: Ins 20.4.2000.
37A Overriding obligation to file Orange Book on time (appeals commencing on or after 1 June 2000)
(1A) This rule applies to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) The appellant must ensure that the Orange Book is filed in accordance with rule 37 (3) and, in so far as may be necessary as a result of any default or need to accommodate cross-appeals or additional matters, must arrange to have the time table prescribed by this part varied by consent, or by direction of the registrar, in order to achieve this overriding obligation.(2) All other parties must cooperate with the appellant to enable the appellant to comply with subrule (1).(3) If any default by another party prevents, or is likely to prevent, the appellant from complying with subrule (1), the appellant must apply promptly for a directions hearing.rules 51.37AA, 51.37A: Ins 20.4.2000.
38 Dispensation with Rules
Without limiting the generality of Part 1 rule 12, a Judge of Appeal may dispense with or vary any of the rules in this Division.rule 51.38: Ins 23.5.1997.
Division 3A Damages appeals (appeals commencing before 1 June 2000)
pt 51, div 3A, hdg: Ins 23.5.1997. Subst 20.4.2000.
pt 51, div 3A: Ins 23.5.1997.
39 Application
This Division applies to an appeal solely on the issue of the amount of damages claimed or awarded in respect of the death of or bodily injury to a person that is commenced on or after 1 January 1995 and in which a notice of appeal with appointment is not filed on or after 1 June 2000.rule 51.39: Ins 23.5.1997. Subst 20.4.2000.
40 Documents to be filed with notice of appeal
An appellant must file and serve with the notice of appeal with appointment a schedule, signed by counsel (if any), or solicitor (if any), or by the appellant, in Form 61B:(a) setting out the manner in which the damages were assessed, or in the case of trial by jury, may be supposed to have been assessed,(b) indicating the items which are challenged in the appeal,(c) containing a brief but specific statement of the basis of the challenge,(d) where applicable—showing the alternative assessment contended for, and(e) containing an estimate of the likely length of hearing.rules 51.40, 51.41: Ins 23.5.1997. Am 5.12.1997.
41 Documents to be filed in reply
The respondent must, within 28 days of the date of service on the respondent of a notice of appeal with appointment and the other documents required by rule 40, where applicable file and serve on each other interested party a document, signed by counsel (if any), or solicitor (if any), or by the respondent, and headed “Notice of Intention to Challenge or Support Judgment”, indicating the extent, if any, to which the judgment will be challenged or supported by cross-appeal or contention, any alternative assessment sought, with a brief but specific statement of the basis for it, and the respondent’s estimate of the likely length of hearing.rules 51.40, 51.41: Ins 23.5.1997. Am 5.12.1997.
Division 3B Call-over and lists
pt 51, div 3B: Ins 23.5.1997.
42 Call-over (appeals commencing on or after 1 June 2000)
(1A) This rule applies to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Unless a Judge of Appeal or the registrar otherwise directs, all appeals will be called over on a date fixed by the registrar and subscribed to the notice of appeal.(2) The call-over must be attended by:(a) if a party is represented—the party’s counsel or solicitor, or(b) otherwise—the party.(3) At the call-over appeals will be assigned to one of the lists referred to in rule 43.(4) Within 6 weeks of the notice of appeal with appointment being filed, the appellant shall file and serve on each other interested party, a notice containing:(a) an estimate of the likely length of hearing of the appeal, divided into time for:(i) the submissions of the appellant, and(ii) the submissions of all other parties,(b) any proposed amendments to the appeal,(c) any proposed variation to the time table otherwise prescribed by the rules for the filing and service of the appeal books, and(d) if the full appeal book has not been filed—a brief description of what the appellant contends should constitute the appeal book, indicating as far as possible how many volumes the appellant anticipates will constitute each section of the appeal book.(5) Any party who takes issue with any matter set out in the appellant’s notice under subrule (4), and any respondent or cross-appellant who proposes to amend their notice of cross-appeal or contention, shall within 10 weeks of the notice of appeal with appointment being filed, file and serve on each other interested party, a notice particularising the matter in issue or the proposed amendment.(6) Without in any way limiting the power of the Judge or the registrar on call-over to make such orders as are appropriate, the Judge or the registrar may:(a) assign the appeal to a list,(b) fix a timetable,(c) fix a date for hearing of the appeal,(d) stand over the appeal for further call-over at a later date,(e) order a party to pay the costs of the call-over,(f) determine any dispute concerning the accuracy of the transcript,(g) give directions as to the contents of the appeal book, and(h) dispense with compliance with the rules, and in particular with any specific rules relating to the appeal books.rule 51.42: Ins 20.4.2000.
42A Call-over (appeals commencing before 1 June 2000)
(1A) This rule does not apply to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Unless a Judge of Appeal or the registrar otherwise directs, all appeals will be called over on a date fixed by the registrar and subscribed to the notice of appeal.(2) The call-over must be attended by:(a) if a party is represented—the party’s counsel or solicitor, or(b) otherwise—the party.(3) At the call-over appeals will be assigned to one of the lists referred to in rule 43.(4) At least 3 days before the day fixed for call-over, the appellant shall file and serve on each other interested party, a notice containing:(a) an estimate of the likely length of hearing of the appeal, divided into time for:(i) the submissions of the appellant, and(ii) the submissions of all other parties,(b) any proposed amendments to the appeal,(c) any proposed variation to the time table otherwise prescribed by the rules for the filing and service of the appeal books, and(d) if the full appeal book has not been filed—a brief description of what the appellant contends should constitute the appeal book, indicating as far as possible how many volumes the appellant anticipates will constitute each section of the appeal book.(5) Any party who takes issue with any matter set out in the appellant’s notice under subrule (4), and any respondent or cross-appellant who proposes to amend their notice of cross-appeal or contention, shall:(a) serve on each other interested party, at least 1 day prior to the call-over, a notice particularising the matter in issue or the proposed amendment, and(b) file a notice at the call-over.(6) Without in any way limiting the power of the Judge or the registrar on call-over to make such orders as are appropriate, the Judge or the registrar may:(a) assign the appeal to a list,(b) fix a timetable,(c) fix a date for hearing of the appeal,(d) stand over the appeal for further call-over at a later date,(e) order a party to pay the costs of the call-over,(f) determine any dispute concerning the accuracy of the transcript,(g) give directions as to the contents of the appeal book, and(h) dispense with compliance with the rules, and in particular with any specific rules relating to the appeal books.rule 51.42A (previously Rule 51.42): Ins 23.5.1997. Am 5.12.1997; 20.4.2000. Renumbered 20.4.2000.
43 Lists
(1) Appeals will be assigned to one of the following lists:(a) damages appeals list,(b) Compensation Court appeals list,(c) short appeals list,(d) expedited appeals list,(e) long appeals list,(f) general list, or(g) such other list as the President shall from time to time decide.(2) The damages appeal list will consist of appeals in which the sole issue is the amount of damages awarded, or which should have been awarded, in respect of the death of, or bodily injury to, a person.(3) The Compensation Court appeals list will consist of appeals from the Compensation Court.(4) The short appeals list will consist of appeals estimated to require no more than 2 hours’ hearing time.(5) The expedited appeals list will consist of appeals expedited at the call-over, or by the Judge of Appeal acting as Expedition Judge or by the Court.(6) The long specially fixed appeals list will consist of appeals expected to require 3 days’ or more hearing time.(7) The general list shall consist of all appeals not assigned to any other list.(8) Notwithstanding subrules (2) to (7), a Judge of Appeal may, at any time, assign or re-assign any appeal to any list and, in particular, may assign or re-assign any appeal to the general list.rule 51.43: Ins 23.5.1997. Am 20.4.2000.
Division 4 Written submissions and chronologies
pt 51, div 4, hdg: Ins 23.5.1997. Am 30.6.2000.
pt 51, div 4: Ins 23.5.1997.
44 Filing written submissions and chronology (appeals commencing on or after 1 June 2000)
(1A) This rule applies to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Each non-submitting party shall, unless otherwise directed, file written submissions, and the appellant shall file a chronology. The respondent may file an alternative or supplementary chronology.(2) A party who files written submissions may file one set of amended submissions:(a) if the amendment is of a minor or formal nature or consists of the insertion of appeal book references or of an omission—without leave, or(b) otherwise—by leave of a Judge of Appeal or the registrar or with the consent of all other interested parties.rule 51.44: Ins 23.5.1997. Subst 5.12.1997; 20.4.2000; 30.6.2000.
44A Filing written submissions and chronology (appeals commencing before 1 June 2000)
(1A) This rule does not apply to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Each non-submitting party shall, unless otherwise directed, file written submissions, and the appellant shall file a chronology. The respondent may file an amended or supplementary chronology.rule 51.44A: Ins 20.4.2000. Am 30.6.2000.
45 Appellant’s chronology
The appellant’s chronology shall comprise a list of the principal events leading up to the litigation and, where appropriate, events during the litigation, numbered consecutively with the date, a short description of each event, and appropriate references to the appeal book including exhibit marks where applicable.rule 51.45: Ins 23.5.1997.
46 Preparation (appeals commencing on or after 1 June 2000)
(1A) This rule applies to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Written submissions:(a) shall be divided into paragraphs numbered consecutively,(b) shall, if the appeal book is accessible to the party preparing the submissions, so far as practicable, refer to matter in the appeal book by section name, volume number (if any), page number and letter, and shall not extract that matter,(c) shall, so far as practicable, where an authority is cited, not extract matter in the authority, and(d) shall be signed by the barrister or solicitor who prepares them or, where they are not prepared by a barrister or solicitor, by or on behalf of the party on whose behalf they are signed, and:(i) the name of the signatory,(ii) a telephone number at which the signatory can be contacted, andshall be typed or printed in a neat and legible manner under his signature.(iii) if available, the signatory’s facsimile number,(2) In appeals raising substantial challenges to findings of fact, the submissions of the party making those challenges shall include a statement in narrative form setting out the findings challenged, those contended for, the reasons why the Court of Appeal should substitute those findings and supporting references to the transcript and other evidence.(3) Where the amount of damages claimed or awarded, or which should have been awarded, in respect of the death of, or bodily injury to, a person is an issue:(a) the appellant’s written submissions shall state:(i) the manner in which the damages were assessed, or in the case of trial by jury, may be supposed to have been assessed,(ii) the amounts of damages that are in issue in the appeal,(iii) briefly but specifically, the basis of the challenge,(iv) where applicable—the alternative assessment contended for, and(v) an estimate of the likely length of hearing, and(b) the respondent’s written submissions shall state:(i) the extent to which the assessment will be challenged or supported by cross-appeal or contention,(ii) any alternative assessment sought, and briefly but specifically, the basis for it, and(iii) the respondent’s estimate of the likely length of hearing.rule 51.46: Ins 23.5.1997. Am 5.12.1997. Subst 20.4.2000.
46A Preparation (appeals commencing before 1 June 2000)
(1A) This rule does not apply to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Written submissions:(a) shall be divided into paragraphs numbered consecutively,(b) shall, so far as practicable, refer to matter in the appeal book by section name, volume number (if any), page number and letter, and shall not extract that matter,(c) shall, so far as practicable, where an authority is cited, not extract matter in the authority, and(d) shall be signed by the barrister or solicitor who prepares them or, where they are not prepared by a barrister or solicitor, by or on behalf of the party on whose behalf they are signed, and:(i) the name of the signatory,(ii) a telephone number at which the signatory can be contacted, andshall be typed or printed in a neat and legible manner under his signature.(iii) if available, the signatory’s facsimile number,(2) In appeals raising substantial challenges to findings of fact, the submissions of the party making those challenges shall include a statement in narrative form setting out the findings challenged, those contended for, the reasons why the Court of Appeal should substitute those findings and supporting references to the transcript and other evidence.rule 51.46A: Ins 20.4.2000.
47 Filing and lodgment (appeals commencing on or after 1 June 2000)
cf r 37A as to the overriding obligation to ensure that the Orange Book is filed on time.
(1A) This rule applies to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Written submissions shall be filed as follows:(a) by the appellant—within 6 weeks of the notice of appeal with appointment being filed, and(b) by the respondent—within 10 weeks of the notice of appeal with appointment being filed.(2) Chronologies and amended written submissions shall be filed as follows:(a) by the appellant—not less than 10 weeks before the hearing date of the appeal, and(b) by the respondent—not less than 8 weeks before the hearing date of the appeal.(3) Compliance with subrules (1) or (2) does not excuse compliance with rule 35A (b) or (c).rule 51.47: Ins 23.5.1997. Am 19.12.1997. Subst 20.4.2000. Am 30.6.2000.
47A Filing and lodgment (appeals commencing before 1 June 2000)
(1A) This rule does not apply to proceedings in which a notice of appeal with appointment is filed on or after 1 June 2000.(1) Written submissions and chronologies shall be filed as follows:(a) by the appellant—not later than 9 days before the date fixed for hearing, andby placing 4 copies in the box marked “Appeal Submissions” located on the 12th Level of the Law Courts Building.(b) by the respondent—not later than 4 days before the date fixed for the hearing,(2) Where the period in subrule (1) (a) would include a day or part of a day on which the registry is closed, that day shall be excluded from the calculation of the 9 day period.rule 51.47A: Ins 20.4.2000.
48 Service
A party who files a chronology or original or amended written submissions shall, on the day of filing, serve 3 copies on every other interested party.rule 51.48: Ins 23.5.1997. Am 5.12.1997. Subst 20.4.2000; 30.6.2000.
48A (Repealed)
rule 51.48A: Ins 20.4.2000. Rep 30.6.2000.
Division 5 General
pt 51, div 5: Ins 23.5.1997.
49 Motions
(1) Subject to the rules and in particular rule 4, but notwithstanding rule 50, any application to the Court of Appeal or to a Judge of Appeal in or for the purposes of or in relation to proceedings in the Court shall be made by motion in the proceedings.(2) In proceedings on a motion in the Court of Appeal (except a motion in proceedings commenced in the Court of Appeal by summons or in proceedings for leave to appeal or to cross-appeal from a decision in proceedings in the Court), the party applying shall be called the claimant and any other party shall be called an opponent and documents in the proceedings on that motion (except any minute of order) shall be entitled accordingly.rule 51.49: Ins 23.5.1997.
50 Summons
(1) Subject to the rules and in particular rule 4 (1) (b) and (2) (b) and rule 57, proceedings (except appeals) in the Court of Appeal are to be commenced by summons under Part 5 rule 3.(2) Proceedings referred to in paragraph (h) of section 48 (2) of the Act (which paragraph relates to a stated case) shall be commenced by summons in Form 62A.(3) In proceedings to which subrule (2) applies:(a) (Repealed)(b) the registrar shall give notice of hearing to the parties, subject to any direction of the Court of Appeal.(4) A party claiming relief by summons in the Court of Appeal shall be called a claimant.(5) A party against whom relief is claimed by summons in the Court of Appeal shall be called an opponent.rule 51.50: Ins 23.5.1997. Am 5.12.1997; 13.6.2003.
51 Proceedings other than appeals
(1) A claimant in proceedings commenced by summons in the Court of Appeal, other than proceedings commenced under rule 4, shall file with the summons an affidavit in support of the claim for relief.(2) Where a ground on which relief is claimed involves a matter arising under the Constitution of the Commonwealth or involves its interpretation:(a) the statement of the ground in the affidavit or in the summary of argument shall indicate that it involves a matter within section 78B of the Judiciary Act 1903 of the Commonwealth, and(b) the claimant shall, forthwith after filing the summons and affidavit in support or the white folder, give the notices required by that section and promptly file an affidavit of service of the notices.(3) Where the proceedings are for relief of the nature referred to in section 48 (2) (b), (c), (d), (e) or (g) of the Act, the affidavit in support of the summons shall conclude with a brief but specific statement of the grounds on which relief is claimed.(4) Rule 9 applies, making such changes as are necessary, to proceedings of the kind referred to in subrule (3).rule 51.51: Ins 23.5.1997. Am 5.12.1997.
52 Hearing in fixed vacation
(1) An application for an order under Part 1A rule 2 (4) that an appeal or other proceeding in the Court of Appeal be heard during the fixed vacation shall, unless the Court otherwise orders, be made by filing:(a) an affidavit showing the grounds upon which the application is based,(b) a draft order, and(c) where applicable—a draft of the summons, notice of appeal, or notice of motion proposed to be filed.(2) The applicant may proceed without service of the documents on any party.(3) The registrar shall deliver the documents to the vacation Judge of Appeal for determination of the application.(4) The application may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of any person.rules 51.52–51.56: Ins 23.5.1997.
53 Consent adjournments of matters in Monday motions list
(1) Where:(a) a motion or summons is returnable in a Monday motions list,(b) the counsel or solicitor for each party who is not a submitting party signs a consent (which need not be in the form of a Court document) to the motion or summons being adjourned to a specified Monday on which the Court of Appeal will be taking a motions list, andthe registrar shall adjourn the proceedings to the agreed date.(c) each consent is filed, or a copy of it is produced in the Sydney Registry by a facsimile transmission machine, before 1 pm on the Friday preceding the hearing date,(2) Costs of the adjournment shall be costs in the proceedings unless all parties other than submitting parties have otherwise agreed.rules 51.52–51.56: Ins 23.5.1997.
54 Papers
(1) A person filing a document in the registry shall, in addition, lodge so many copies of the document as the registrar may direct.(2) The provisions of Division 3 (which relates to appeal books) shall, if the registrar so directs, apply to any proceedings in the Court of Appeal, with such modification as the registrar may direct.rules 51.52–51.56: Ins 23.5.1997.
55 Consent orders
Any judgment or order which may be made by a Judge of Appeal by consent of the parties may be made by the registrar.rules 51.52–51.56: Ins 23.5.1997.
56 Review of order of Judge of Appeal
An application to the Court of Appeal for the variation or discharge of an order of a Judge of Appeal shall not be made except on notice of motion filed within 14 days after the date on which the order is made or within such extended time as the Court of Appeal may fix.rules 51.52–51.56: Ins 23.5.1997.
57 Forms
A summons, other than a summons under rule 50 (2), or notice of motion in proceedings in the Court of Appeal, shall:(a) notwithstanding subrules (2) and (3) of Part 65 rule 1 (which relates to the title), where the claimant is proceeding under an Act, be entitled “In the matter of” together with a reference to the Act and section of it under which the claimant is proceeding,(b) unless the grounds of the application are stated in an affidavit or summary of argument—state those grounds.rule 51.57: Ins 23.5.1997. Am 5.12.1997.
58 Powers of the registrar
(1) Subject to subrule (1A), the registrar may exercise the powers of a Judge of Appeal under section 46 (1) and (2) of the Act.(1A) The registrar shall not grant a stay or an injunction in exercising the powers granted under:(a) subrule (1), except in respect of Part 40 rule 8, or(b) Part 44 rule 5, except in respect of a judgment or order of the Court of Appeal.(2) The registrar shall, on the direction of the President or the Judge for the time being responsible for the Court of Appeal’s list, refer any motion to the Court of Appeal or a Judge of Appeal.rule 51.58: Ins 23.5.1997.
59 Short reasons for decision
The Court of Appeal may, when dismissing an appeal, exercise its power under section 45 (4) of the Act to give reasons for its decision in short form by stating them in the prescribed form.rule 51.59: Ins 24.7.1998.
Part 51AA Court of Appeal
pt 51AA (previously Part 51): Renumbered 23.5.1997.
pt 51AA, notes: Am 23.12.1994.
Division 1 Preliminary
1A Application
This Part applies to proceedings commenced in the Court of Appeal before 1 September 1997.rule 51AA.1A: Ins 23.5.1997.
1 Interpretation
(1) In this Part, unless the context or subject matter otherwise indicates or requires:court below means, in relation to an appeal or application for leave to appeal from a decision in any proceedings, the court in which, or the judge, Magistrate or other person before whom, the proceedings were taken.decision includes a judgment, order, verdict, opinion, decision, direction or determination.exhibit includes a document or thing marked for identification, notwithstanding that it is not admitted in evidence.material date, in relation to an appeal or an application for leave to appeal, means:(a) in the case of a judgment given in proceedings in the Court, the date on which the judgment is given,(b) in the case of any other judgment in proceedings in the Court, the date of entry,(c) in the case of an order in proceedings in the Court, the date on which the order is made,(d) in the case of a verdict in proceedings in the Court, the date on which the verdict is given, and(e) in the case of any other decision, whether in proceedings in the Court or not, the date on which the decision is pronounced or given.verdict includes a finding or assessment.(2) In this Part, unless the context or subject matter otherwise indicates or requires, appeal includes:(a) an appeal from a decision in proceedings in the Court,(b) an appeal from a specified tribunal within the meaning of section 48 (1) (a) of the Act.(c) (Repealed)(2A) (Repealed)(3) Notwithstanding subrule (2), in this Part appeal does not include:(a) proceedings to which Part 31 (which relates to the separate decision of questions) or Part 32 (which relates to stated cases) applies, except an appeal to the Court of Appeal from the decision of the Court in a Division in proceedings to which Part 31 or Part 32 applies,(b) an application for the variation or discharge of an order of a Judge of Appeal or of the registrar.rule 51AA.1: Am 2.6.1972; 4.5.1973; 24.8.1973; 19.10.1979; 19.12.1986; 30.3.1990; 24.12.1999; 29.8.2003.
2 Rules generally
(1) The provisions of Parts other than this Part apply, so far as applicable, to proceedings in the Court of Appeal.(2) For the purposes of subrule (1):(a) a person who commences proceedings in the Court of Appeal, as appellant or otherwise, shall be a plaintiff,(b) a person against whom proceedings are commenced in the Court of Appeal, as respondent to an appeal or otherwise, shall be a defendant, and(c) a notice of appeal shall be an originating process.rule 51AA.2: Am 2.6.1972; 22.3.1996.
Division 2 Appeals
3 Leave to appeal or cross-appeal
rule 51AA.3, hdg: Am 25.2.1994.(1) An application for leave to appeal, and subject to subrule (1A), to cross-appeal to the Court of Appeal, shall be made by summons.(1A) A party served with a summons for leave to appeal who wishes to apply for leave to cross-appeal may do so by motion on the hearing of the summons, supported by an affidavit stating the questions involved and the reasons why leave should be given, without filing or serving a summons or notice of the motion.(2) (Repealed)(3) The summons for leave to appeal shall be filed within 14 days after the material date.(3A) A summons for leave to cross-appeal shall be filed within 14 days after service of the notice of appeal, or the summons for leave to appeal.(4) The court below may extend time under subrule (3) only within 14 days after the material date or on a notice of motion or other application filed within 14 days after the material date.(5) The Court of Appeal may extend time under subrule (3) or (3A) at any time.(6) (Repealed)(7) The applicant shall file with or subscribe to the summons a statement of:(a) the nature of the case,(b) the questions involved, and(c) the reasons why leave should be given.(8) Unless the registrar otherwise directs, the applicant for leave to appeal shall, not later than three days before the date fixed for the hearing of the application for leave to appeal, file four copies of the reasons for decision in the court below.(9) The Court of Appeal may give leave to appeal or to cross-appeal on terms.(10) A party applying for an extension of time under subrule (5) may include that application in the summons for leave to appeal or cross-appeal.rule 51AA.3: Am 2.6.1972; 28.7.1978; 24.11.1978; 23.5.1980; 25.2.1994; 23.12.1994; 22.9.1995.
4 Time for appeal
(1) Subject to subrule (2), an appeal must be instituted within 28 days after the material date or within such extended time as the court below or the Court of Appeal may fix.(2) An appeal by leave must be instituted within 14 days after leave is given or within such extended or abridged time as the Court of Appeal may fix.(3) The court below may extend time under subrule (1) only within 28 days after the material date or on a notice of motion or other application filed within 28 days after the material date.(4) The Court of Appeal may extend time under subrule (1) or under subrule (2) at any time.(5) A party applying to the Court of Appeal for an extension of time under subrule (1) or subrule (2) shall lodge with the notice of motion a draft, completed as far as possible, of the notice of appeal to be filed if an extended time is fixed.rule 51AA.4: Am 2.6.1972; 28.7.1978; 23.12.1994.
5 Institution and discontinuance of appeal
See Pt 52A, r 14 as to costs.
(1) An appeal to the Court of Appeal shall be instituted by filing in the registry of the Court of Appeal:(a) where the appeal is instituted pursuant to leave to appeal—a notice of appeal with appointment in Form 60, or(b) otherwise:(i) a notice of appeal without appointment in Form 60A,(ii) where the appeal is not subject to Division 3A—a notice of appeal with appointment in Form 60, or(iii) where the appeal is subject to Division 3A—a notice of appeal with hearing date in Form 60B.(2) An appellant who files a notice of appeal without appointment shall within:(a) 3 months after filing the notice of appeal, orfile:(b) such shorter period as the Court of Appeal may in special circumstances order,(c) where the appeal is not subject to Division 3A—a notice of appeal with appointment in Form 60, or(d) where the appeal is subject to Division 3A—a notice of appeal with hearing date in Form 60B.(3) The appellant shall, on filing a notice of appeal with appointment or hearing date:(a) obtain from the proper officer in the registry, as the case may require:(i) an appointment to settle the appeal papers, or(ii) a hearing date which will be a Monday of a particular week, and(b) subscribe it to the notice.(4) If the appellant fails to comply with subrule (2), the appeal shall thereupon be taken to be discontinued.(5) The appellant may discontinue the appeal by filing a notice of discontinuance in Form 60C and serving it on each respondent who has been served with the notice of appeal.(6) The discontinuance of an appeal shall not affect any cross-appeal.rule 51AA.5: Subst 2.6.1972; 3.9.1993. Am 23.12.1994.rule 51AA.5, footnote: Am 24.6.1994.
5A Applications
cf RSC (Rev) 1965, O 59, rr 14 (3), 15 (1).
Notwithstanding anything in these rules, where an application made under subrule (2) of Part 19 rule 2 for any of the forms of relief specified in Part 28 rule 1, rule 2 and rule 3 has been refused, an application for a similar purpose may be made to the Court of Appeal within seven days of the refusal, or within such extended time as the Court of Appeal may within such seven days allow, without service of any notice of appeal, summons or notice of motion.rule 51AA.5A: Ins 2.6.1972. Am 23.12.1994.
5B Appeals as of right
Where an appeal to the Court of Appeal is restricted by reference in any Act to a specified amount or value, the appellant shall, within the time limited for instituting the appeal, file an affidavit stating facts which show that the restriction does not apply.rule 51AA.5B: Ins 20.12.1974.
6 Parties
(cf Pt 52A, rr 12 & 13: costs)
rule 51AA.6, hdg: Subst 16.8.1991. Am 24.6.1994.(1) Each party to the proceedings in the court below who is affected by the relief sought by a notice of appeal or is interested in maintaining the decision under appeal shall be joined as a party appellant or respondent to the appeal.(2) The Court of Appeal may order the addition or removal of any person as a party appellant or respondent to an appeal.(3) A person shall not be made an appellant without his consent.(4) An appellant who considers that respondents need not be separately represented on the appeal may notify such respondents that objection will be taken to more than one set of costs being allowed between them.(5) An appellant who considers that a respondent should enter a submitting appearance and take no further active part in the proceedings may notify that respondent that objection will be taken to any order for costs, incurred after that date, other than for costs as a submitting party, being made in favour of that respondent.(6) The failure by:(a) an appellant to give notice under subrules (4) or (5), ordoes not limit the powers of the Court with respect to the costs of the proceedings.(b) a claimant to give a corresponding notice pursuant to subrule (7),(7) Subrules (4) and (5) apply, making such changes as are necessary, to a claimant who applies for leave to appeal and to the opponents in the proceedings.rule 51AA.6: Am 16.8.1991; 23.12.1994.
7 Service
(1) A notice of appeal, a notice of cross-appeal and an affidavit referred to in rule 5B shall, on the day of filing, be served on each party mentioned in rule 6 (1).(2) The Court of Appeal may direct that any notice of appeal or cross-appeal be served on any person whether or not a party to the proceedings in which the decision under appeal was given.(3) Where the Court of Appeal makes an order granting leave to appeal or to cross-appeal or an extension of time for appealing or for cross-appealing or for applying for leave to appeal or to cross-appeal, the Court of Appeal may, at the same time or afterwards, give directions for service other than personal service of any notice of appeal or of cross-appeal or summons by which, pursuant to the order, proceedings are commenced for an appeal or for leave to appeal or to cross-appeal, and of any other document in the proceedings so commenced.rule 51AA.7: Subst 2.6.1972. Am 20.12.1974; 25.2.1994.
8 Notice of appeal: contents
(1) A notice of appeal with appointment shall state:(a) whether it is filed pursuant to leave, and the date leave was given,(b) whether the appeal is from the whole or part only, and what part, of the decision in the court below,(c) briefly, but specifically the grounds relied upon in support of the appeal, and(d) what judgment, order, verdict or determination the appellant seeks in place of the decision in the court below.(2) The notice of appeal shall bear a note that before taking any step in the proceedings the respondent must enter an appearance in the registry.(3) (Repealed)rule 51AA.8: Am 2.6.1972; 16.8.1991; 3.9.1993; 24.6.1994; 23.12.1994; 22.9.1995.
8A Judiciary Act 1903 of the Commonwealth (s 78B)
Where a ground of appeal involves a matter arising under the Constitution of the Commonwealth or involves its interpretation:(a) the statement of the ground in a notice of appeal shall indicate that it involves a matter within section 78B of the Judiciary Act 1903 of the Commonwealth, and(b) the appellant shall, forthwith after obtaining an appointment under rule 5 (3), give the notices required by that section and promptly file an affidavit of service of the notices.rule 51AA.8A: Ins 24.6.1994.
8B Intervention by ASIC
(1) Where a ground of appeal involves a matter arising under the Corporations Law and ASIC did not intervene in the proceedings in the court below, the Court of Appeal or a Judge of Appeal may direct service of a copy of the notice of appeal or cross-appeal on ASIC.(2) A party directed to serve a copy of a notice under subrule (1) shall:(a) serve the copy, endorsed “Served pursuant to SCR Pt 51AA r 8B (2)” and marked for the attention of its General Counsel for New South Wales, on ASIC, and(b) promptly file an affidavit of service of the copy.(3) The copy notice may be served on ASIC by leaving it, addressed to ASIC, in an exchange box of ASIC in a document exchange of Australian Document Exchange Pty Limited or at another exchange box for transmission to that exchange box.(4) ASIC may intervene under section 1330 (1) of the Corporations Law in an appeal by filing, before the date of the appointment to settle the index to the appeal papers, a notice of appearance that includes a statement that ASIC intervenes under the section.(5) Upon complying with subrule (4), ASIC shall be added as a respondent.rule 51AA.8B: Ins 19.8.1994. Am 23.10.1998.
9 Notice of appeal: filing or lodgment with court below
An appellant who files a notice of appeal, with or without appointment, in the registry of the Court of Appeal shall:(a) in the case of an appeal from a decision in proceedings in a Division—on the day of filing the notice of appeal, file a copy of the notice of appeal in the registry of the Division, or(b) in any other case:(i) file a copy of the notice of appeal in the registry or office of the court below, or(ii) if compliance with subparagraph (i) is not in accordance with the practice or organisation of the court below, lodge a copy of the notice of appeal with an officer of the court below concerned with its records or process.rule 51AA.9: Am 2.6.1972. Subst 3.9.1993. Am 24.9.1993.
10 Stay
An application for leave to appeal to the Court of Appeal or an appeal to the Court of Appeal shall not:(a) operate as a stay of execution or of proceedings under the decision of the court below,except so far as the Court of Appeal may direct or, subject to any direction of the Court of Appeal, as the court below may direct.(b) invalidate any intermediate act or proceeding,rule 51AA.10: Am 19.10.1979.
11 Security for costs
(1) Where a notice of appeal with appointment has been filed under rule 5, the Court of Appeal may, in special circumstances, order that such security as the Court of Appeal thinks fit be given for the costs of the appeal.cf RSC (Rev) 1965, O 59, r 10 (5).(2) Subject to subrule (1), no security for the costs of an appeal to the Court of Appeal shall be required.(3) Subrules (1) and (2) do not affect the powers of the Court under Part 53 Division 1 (which relates to security for costs).rule 51AA.11: Am 3.9.1993.
12 Amendment of notice of appeal
(1) A notice of appeal may, before the date of any appointment made under rule 5 (3), be amended without leave by filing a supplementary notice.(2) A party who files a supplementary notice under subrule (1) must serve it on the other parties.rule 51AA.12: Am 3.9.1993; 23.12.1994.
13 Cross-appeal
(1) Where a respondent to an appeal from any decision wishes to cross-appeal from the whole or any part of the decision and is entitled to do so as of right, he shall file a notice of cross-appeal.(2) A notice of cross-appeal must be filed within:(a) 28 days after service of a notice of appeal with or without appointment or with a hearing date,(b) 14 days after leave to cross-appeal is given, or(c) such extended or abridged time as the Court of Appeal may fix.(3) Subject to subrules (1), (2) and (4), the provisions of these rules relating to a notice of appeal apply to a notice of cross-appeal.(4) Rules 4 and 5 (2)–(4) do not apply to a cross-appeal.(5) Where a notice of cross-appeal is filed in proceedings in which a notice of appeal with hearing date has been filed, the notice of cross-appeal shall contain the following note near its foot, namely, “A notice of appeal with hearing date has been filed in these proceedings”.rule 51AA.13: Am 26.8.1988; 3.9.1993; 25.2.1994; 23.12.1994.
13A Further evidence on appeal
(1) This rule applies to any application to the Court of Appeal to receive evidence in proceedings on an appeal additional to evidence in the court below.(2) This rule applies unless the Court of Appeal otherwise directs.(3) The application shall be made by motion on the hearing of the appeal without filing or serving notice of the motion.(4) The grounds of the application shall be stated in an affidavit.(5) Any evidence necessary to establish the grounds of the application, and the evidence which the applicant wants the Court of Appeal to receive shall be given by affidavit.(6) The applicant shall file any affidavit not later than 21 days before the hearing of the appeal.(7) The evidence of any other party to the appeal shall be given by affidavit filed not later than 14 days before the hearing of the appeal.(8) A party to the appeal shall, not later than the time limited for him to file an affidavit under this rule:(a) lodge as many copies of the affidavit as the registrar may direct, and(b) serve three copies of the affidavit on each other party to the appeal.rule 51AA.13A: Ins 5.12.1975.
13B Submitting appearance
(cf Pt 52A, r 12: costs)
A respondent to an appeal or an opponent to proceedings commenced by summons who wishes to submit to the orders of the Court of Appeal, save as to costs, may file a notice of appearance with a statement that the party submits to the orders of the Court, save as to costs.rule 51AA.13B, hdg: Am 24.6.1994.rule 51AA.13B: Ins 16.8.1991. Am 23.12.1994.
14 Notice of contention
cf RSC (Rev) 1965, O 59, r 6 (2).
(1) Where a respondent to an appeal wishes to contend that the decision of the court below should be affirmed on grounds other than those relied upon by the court below, but does not seek a discharge or variation of any part of the decision of the court below, he need not file a notice of cross-appeal but he must, within 28 days after service of the notice of appeal with or without appointment or with a hearing date, file notice of that contention stating briefly but specifically, the grounds relied upon in support of the contention.(2) Where a ground relied on in support of the contention involves a matter arising under the Constitution of the Commonwealth or involves its interpretation:(a) the statement of the ground shall indicate that it involves a matter within section 78B of the Judiciary Act 1903 of the Commonwealth, and(b) the respondent shall, forthwith after filing the notice of contention, give the notices required by that section and promptly file an affidavit of service of the notices.rule 51AA.14: Subst 5.12.1975. Am 30.4.1976; 24.11.1978; 26.8.1988; 16.8.1991; 3.9.1993; 23.12.1994.
15 Notice of appeal etc not to limit powers
(1) In an appeal from any decision, the Court of Appeal may exercise its powers under the Act and under these rules notwithstanding:(a) that there is no appeal from some part of the decision,(b) that any party to the proceedings in the court below has not appealed,(c) that any ground for allowing or dismissing the appeal or varying the decision is not stated in any notice of appeal, notice of cross-appeal or notice of contention, or(d) that there has been no appeal from some other decision in the proceedings.cf RSC (Rev) 1965, O 59, r 10 (4), (6).(2) Where a person is not a party to the proceedings in which the decision under appeal is given, but is served with a notice of appeal with appointment pursuant to a direction of the Court of Appeal, the Court of Appeal may give such decision as might have been given in the court below if the person served had been a party to the proceedings in the court below.cf RSC (Rev) 1965, O 59, r 8 (3) (b).(3) In any appeal the Court of Appeal may, on terms, make any order to ensure the determination on the merits of the real question in controversy.cf RSC (Rev) 1965, O 59, r 10 (4).(4) The Court of Appeal may, in any appeal, make any order which the Court of Appeal might make on an application for a new trial or for the setting aside of a verdict or judgment.cf RSC (Rev) 1965, O 59, r 11 (1).(5) This rule applies subject to the provisions of any Act.rule 51AA.15: Am 22.12.1978; 3.9.1993.
16 New trial
(1) The Court of Appeal shall not order a new trial:(a) on the ground of misdirection, non-direction or other error of law,(b) on the ground of the improper admission or rejection of evidence,(c) where there has been a trial before a jury, on the ground that the verdict of the jury was not taken upon a question which the trial judge was not asked to leave to the jury, orunless it appears to the Court of Appeal that some substantial wrong or miscarriage has been thereby occasioned.(d) on any other ground,cf RSC (Rev) 1965, O 59, r 11 (2).(2) The Court of Appeal may order a new trial on any question without interfering with the decision on any other question.cf RSC (Rev) 1965, O 59, r 11 (3); Act No 21, 1899, s 160 (b).(3) Where it appears to the Court of Appeal that some ground for a new trial affects part only of the matter in controversy, or one or some only of the parties, the Court of Appeal may order a new trial as to that part only, or as to that party or those parties only.cf RSC (Rev) 1965, O 59, r 11 (3); Act No 21, 1899, s 160 (b).(4) Where the Court of Appeal makes an order under subrule (2) or subrule (3), the Court of Appeal may give such judgment or make such order as the nature of the case requires for the disposal of the remainder of the appeal.cf RSC (Rev) 1965, O 59, r 11 (3).(5) Where the Court of Appeal orders a new trial, the Court of Appeal may:(a) impose conditions on any party for the purposes of the new trial,(b) direct admissions to be made by any party for the purpose of the new trial,(c) order that the testimony of any witness examined at the former trial may be read from the notes of the testimony, instead of the witness being again examined, and(d) for the purposes of subparagraphs (a) to (c) from time to time make such orders as the Court of Appeal thinks fit.cf Act No 21, 1899, s 160.(6) (Repealed)rule 51AA.16: Am 30.4.1976; 30.3.1990; 23.12.1994; 24.2.1995.
17 Time: want of prosecution
Where an appellant has not done any act required to be done by or under these rules, or otherwise has not prosecuted his appeal with due diligence, the Court of Appeal may on application by any party or of its own motion:(a) order that the appeal shall be dismissed for want of prosecution,(b) fix a time peremptorily for the doing of the act and:(i) in the event of non-compliance, subsequently order that it be so dismissed, or(ii) in special circumstances order that in the event of non-compliance the appeal be dismissed, or(c) make such further or other order as in the circumstances may seem just.rule 51AA.17: Subst 2.6.1972; 23.12.1994. Am 25.10.1996.
17A Competency
(1) A respondent who objects to the competency of an appeal shall, by motion on notice filed and served on all other parties to the appeal within 21 days after service upon the respondent of the notice of appeal with appointment, apply to the Court of Appeal for an order striking out the appeal as incompetent.(2) If the respondent fails to comply with subrule (1), but the appeal nevertheless is dismissed as incompetent, he shall not, unless the Court of Appeal otherwise orders, receive any costs of the appeal, and the Court of Appeal may order that he pay to the appellant any costs of the appeal proving useless or unnecessary.rule 51AA.17A: Ins 2.6.1972. Subst 24.7.1992. Am 3.9.1993.
18 Reinstatement and restitution
Where any step has been taken for the enforcement of a judgment or order and the Court of Appeal varies or sets aside the judgment or order, the Court of Appeal may make such orders for reinstatement or restitution as the Court of Appeal thinks fit.rule 51AA.18, hdg: Subst 22.9.1995.rule 51AA.18: Am 23.12.1994.
18A Unopposed application for expedition etc
(1) A party to an appeal who seeks an order expediting the appeal, or shortening time under rule 5 (2), may:(a) serve on each other party to the appeal whose notice of appearance does not contain a statement under rule 13B (which relates to a submitting appearance):(i) notice of motion for the order, being a notice which does not state the date or time when, or the place where, the motion is to be made, and(ii) the affidavits in support of the motion, and(b) file:(i) the documents referred to in paragraph (a), and(ii) a notice of non-objection, in Form 61AA, by each party referred to in paragraph (a).(2) An application made in accordance with subrule (1) may be determined or dealt with by a Judge of Appeal in the absence of the public and without any attendance by or on behalf of any person.(3) Where an application is determined or dealt with in accordance with subrule (2), reasons for the decision need not be given.(4) This rule does not restrict any other power of the Court of Appeal to order that an appeal be expedited.rule 51AA.18A: Ins 3.9.1993.
Division 3 Appeal papers in appeals other than those within Division 3A
pt 51AA, div 3, hdg: Am 23.12.1994.
18B Application
Subject to Division 3A, this Division does not apply to appeals to which Division 3A applies.rule 51AA.18B: Ins 23.12.1994.
19 Retention of exhibits
(1) Where an appeal from a decision in any proceedings lies, by leave or without leave, to the Court of Appeal, the officer of the court below who has custody of the exhibits in the proceedings shall, unless the court below otherwise orders, retain the exhibits for:(a) 28 days after the material date, or(b) if a notice of appeal without appointment is filed or lodged under rule 9—three months after the filing of the notice.(2) Upon filing or lodgment under rule 9 of a copy of a notice of appeal with appointment, the proper officer of the court below shall make out and certify a list of the exhibits.(3) Where an exhibit is not available for delivery to the registry of the Court of Appeal, the officer certifying under subrule (2) shall, in the certificate, state the circumstances and give such information as he can to enable the registrar to cause the exhibits to be available to the Court of Appeal.rule 51AA.19: Am 3.9.1993.
20 Collection of papers
(1) Upon the filing of notice of appeal with appointment, the registrar:(a) may obtain from the Court Reporting Branch the original of the transcript (if any) of the proceedings in the court below, and(b) shall obtain from the proper officer of the court below:(i) the exhibits,(ii) the list of exhibits and certificate under rule 19,(iii) all the other documents before the court below, together with a list of them, certified by the proper officer of the court below, and(iv) the reasons for judgment (if any) or the summing up (if any) in the court below certified by the proper officer of the court below.(2) Where oral evidence was given in the court below but was not transcribed in the Court Reporting Branch:(a) if notes of the evidence were taken by or for the judge, Magistrate or other person presiding in the court below, the appellant shall, subject to any direction in the court below, obtain a copy of the notes and deliver the copy to the registry, or(b) if notes of the evidence are not obtainable pursuant to paragraph (a), the registrar shall obtain a report of the evidence from the associate or other proper officer of the court below.(3) The registrar shall retain the documents obtained under subrules (1) and (2) and subrule 14 (1) (c) until the settlement of the appeal index and shall, unless the appeal book is prepared by the registrar, thereupon allow the party who is required to prepare the appeal book to have custody of such of those documents as are necessary for that purpose.(4) The party having custody of documents pursuant to subrule (3) shall return them intact to the registrar upon completion of the appeal book.(5) Subject to subrule (3), the registrar shall retain the documents obtained under subrule (1) until disposal of the appeal and shall thereupon return them to the offices or persons from whom he obtained them.(6), (7) (Repealed)rule 51AA.20: Rep 3.9.1993.rule 51AA.20 (previously rule 21): Am 21.12.1979. Subst 14.12.1990. Am 3.9.1993. Renumbered 23.12.1994. Am 23.12.1994; 29.8.2003.
21 Draft index
(1) The appellant shall, not later than 7 days before the appointment, file and serve on every party other than a submitting respondent a draft index of the proposed contents of the appeal book in Form 61A.(2) If the appellant is not represented by a solicitor the registrar, without being obliged to do so, may prepare the draft index.(3) The draft index shall consist of a list of the documents contained in the record of the Court below and the relevant documents in the Court of Appeal.(4) Subject to subrule (7) the draft index shall list the documents referred to in rule 24 (8) in the order there specified.(5) In the case of affidavits or statements the draft index shall indicate which parts were rejected, not read, or admitted for a limited purpose. Each annexure shall be listed separately.(6) The draft index shall give the date of each document and indicate whether or not the appellant intends that its text be reproduced in the appeal book and the appellant shall endeavour to exclude from the appeal book material that is unnecessary or irrelevant.(7) In the draft index the exhibits shall be arranged in the order in which they have been lettered or numbered with references to the pages of the transcript where they were admitted or marked.(8) A respondent who objects to the inclusion of material in the appeal book on the ground that it is unnecessary or irrelevant or who wishes the draft index to include further material relevant only to its cross-appeal or notice of contention shall, at least one day before the appointment, file and serve on the appellant, and any respondent who has not submitted, a written notice containing the respondent’s objections or a draft supplementary index, as the case may be.(9) The appellant or respondent, as the case may be, shall ensure, prior to the appointment, that all relevant documents are held by the registrar or by one of the parties, and that their descriptions in the draft or supplementary index are accurate.rule 51AA.21: Ins 23.12.1994.
22 Settlement of index
(1) The registrar in settling the index:(a) shall have regard to the issues of fact and law in the grounds of appeal cross-appeal or contention,(b) shall endeavour to exclude from the appeal book documents that are merely formal irrelevant or unnecessary, and(c) shall exclude from the appeal book documents relevant only to issues such as damages or liability where they are not in dispute on the appeal or, where the appeal is limited to questions of law, relate only to questions of fact not in dispute on the appeal.(2) If an appellant fails to file and serve a draft index, appear at an appointment, comply with any directions by the registrar, or otherwise proceed with the preparation and settlement of the draft index with due diligence, the registrar may give a notice to the appellant requiring the necessary steps to be taken within 28 days.(3) Where an appellant fails to comply with a notice under subrule (2), orders may be made under rule 17.(4) With the consent of all parties other than a submitting respondent, an index may be settled by the registrar in the absence of the parties, and shall be settled notwithstanding the absence of any party, unless the registrar otherwise directs.(5) An appellant, who has filed and served a draft index and appeared at the appointment when the index was settled, shall file a clean copy of the index as settled and serve a copy on every party other than a submitting respondent.(6) Where the index has been settled in the absence of the appellant, the registrar shall serve a copy of the index on every party other than a submitting respondent.rule 51AA.22: Am 21.12.1979. Subst 14.12.1990. Am 24.6.1994. Subst 23.12.1994.
23 Directions at appointment
(1) At the appointment the registrar may:(a) enquire whether there is likely to be any amendment to the grounds of appeal, cross-appeal or contention,(b) ascertain whether any cross-appeal or notice of contention has been or is likely to be filed,(c) clarify any grounds of appeal, cross-appeal or contention which appear to be unclear or irrelevant,(d) ascertain whether any other appeal or cross-appeal has been or is likely to be brought against:(i) the decision in question, orand, where consented to or not opposed by the parties present, order that the appeal and any other such appeal or cross-appeal be consolidated,(ii) the decision in any other proceedings heard with the proceedings in which the decision in question was made,(e) ensure that all necessary parties have been joined as appellants or respondents and served with the notice of appeal with appointment or cross-appeal as the case may be,(f) extend the time for filing or serving, or grant leave to amend, the notice of appeal, cross-appeal or contention where this is consented to or not opposed by the parties present, in which case the settled index shall note the extension or amendment,(g) determine the number of copies of the appeal books, and(h) where the appeal books are to be prepared in the registry, obtain from the appellant an order for that number of copies.(2) The registrar may give directions and fix times in relation to any of the matters in subrule (1).(3) The registrar shall note any correction to the transcript or notes or report of evidence, unless objected to by any party.(4) If any party objects to a proposed correction of the transcript, the registrar shall refer the question to the associate or other proper officer of the court below for the directions of the judge, justice or other person presiding in the court below.(5) Where one party objects to the inclusion of material on the ground that it is unnecessary or irrelevant and another party insists upon it being included, it shall be included but the index shall identify such material and the parties objecting to and insisting on its inclusion.(6) The registrar shall endeavour to satisfy himself that the appeal and any cross-appeal are competent and may refer the question to the Court or decline to proceed unless and until an application for leave to appeal or an application to strike out the notice of appeal or cross-appeal has been determined.(7) The appeal papers shall include any additional evidence or exhibits relevant only to any cross-appeal or notice of contention and not otherwise required to be included. In that event the respondent shall make such provisional contribution to the cost of printing the appeal books as the registrar may direct.rule 51AA.23: Subst 14.12.1990. Am 3.9.1993. Subst 23.12.1994.
24 Preparation of appeal books
(1) The appeal book shall, unless a Judge of Appeal or the registrar otherwise directs, be prepared by the appellant in accordance with this rule.(2) It shall be printed or reproduced by a photocopying, roneograph, or some other multi-graphic process which gives uniform copies of pages in a clear and legible type.(3) The pages shall be numbered consecutively and, where the book exceeds 300 pages, it shall be bound in separate volumes of not more than 250 pages.(4) The contents shall be printed, or otherwise reproduced, with a 50 millimetres margin on the left hand side of each page and evenly marked in the margin with the letters “A” to “Z”. The book may be bound by means of either a flexibinding or spiral binding process.(5) It shall have a title page setting out the full and correct title of the proceedings, including the title of the court below, names of the solicitors for each party, the address for service for each party, and the telephone, telex, facsimile and reference number of each party.(6) The index shall follow as settled under rule 22 showing the page number where each document is reproduced, and in the case of exhibits the page of the appeal book containing the transcript where the exhibit was admitted or marked.(7) Where it is bound in 2 or more volumes, each shall contain, at the beginning, an index of the entire book, unless otherwise directed by the registrar.(8) The documents shall be arranged in the following order:(a) the process and pleadings of every party as last amended at the trial and any intermediate versions which are relevant to the grounds of appeal, cross-appeal or contention,(b) other documents before the court below,(c) where the text of affidavits or statements is reproduced, pages or annexures not admitted in evidence shall be excluded, unless such material is relevant to a ground of appeal, cross-appeal or contention,(d) any oral evidence, including where the trial is with a jury, the transcript of the return of the jury’s verdict,(e) any written questions submitted to the jury for their determination,(f) exhibits:(i) exhibits shall be arranged, not in the order in which they have been lettered or numbered as exhibits, but in chronological order according to the dates borne by the documents, or in the case of manifestly or admittedly misdated documents, their known dates,(ii) if a document is undated it shall be placed in the sequence contended for by the appellant, but the appellant shall inform the respondent of the position or order proposed for the document and the respondent may require that a “date and order disputed” be inserted in the index against the document,(iii) if the exhibits include correspondence between, or among, two or more persons which should be read consecutively and not interspersed among other documents, the documents forming the correspondence may be arranged in chronological order and given a position together, at a convenient place, in relation to the other exhibits,(iv) if the exhibits include medical reports by a group of doctors or by one doctor tendered on behalf of a party which should be read consecutively and not interspersed among other documents, those medical reports may be arranged in chronological order and given a position together, at a convenient place, in relation to the other exhibits,(v) any photographic exhibits unless irrelevant to the proposed grounds of appeal, cross-appeal or contention,(vi) any plans, unless irrelevant to the proposed grounds of appeal cross-appeal or contention and if possible such plans shall be reduced in size so as to be included in the appeal book,(vii) interrogatories, answers and affidavits of documents shall not be copied, except so far as they were put in evidence,(g) the reasons for judgment or summing up of the primary judge or court,(h) the formal judgment of the primary judge or court,(i) the notice of appeal, notice of cross-appeal or notice of contention,(j) order of the Court granting leave to appeal or to cross-appeal if applicable,(k) any submitting appearance.(9) The appeal book shall be prepared and produced in a manner satisfactory to the registrar.rule 51AA.24: Am 24.11.1978; 21.12.1979. Subst 14.12.1990. Am 24.9.1993; 25.2.1994. Subst 23.12.1994.
25 Filing lodgment and service
The appellant shall:(a) within 42 days of the settlement of the index or within such extended or abridged time as the registrar directs:(i) file a copy of the appeal book, and(ii) serve 3 copies on every party other than a submitting respondent, and(b) within 7 days of receipt of a notice of callover or notice of listing, file a further 3 copies of the appeal book.rule 51AA.25: Subst 24.11.1978. Am 14.12.1990. Subst 23.12.1994. Am 24.2.1995.
Division 3A Appeal papers in appeals with hearing dates
pt 51AA, div 3A (rules 25A–25H): Ins 23.12.1994.
25A Application
(1) This Division applies to an appeal solely on the issue of the amount of damages claimed or awarded in respect of the death of or bodily injury to a person that is commenced on or after 1 January, 1995.(2) Rules 19 and 20 shall apply to proceedings to which this Division applies.
25B Documents to be filed with notice of appeal
An appellant must file with the notice of appeal with hearing date:(a) a draft index in accordance with rule 21,(b) a schedule, signed by counsel (if any), or solicitor (if any), or by the appellant, in Form 61B:(i) setting out the manner in which the damages were assessed, or in the case of trial by jury, may be supposed to have been assessed,(ii) indicating the items which are challenged in the appeal,(iii) containing a brief but specific statement of the basis of the challenge,(iv) where applicable—showing the alternative assessment contended for, and(v) containing an estimate of the likely length of hearing, and(c) where applicable—a letter notifying the registrar that the transcript of the hearing and judgment is not yet available to the appellant.
25C Incorrect commencement of appeal
(1) Where:(a) a notice of appeal with hearing date is filed without the documents referred to in rule 25B, orthe appeal shall be validly commenced but the registrar shall:(b) a notice of appeal with appointment is filed,(c) vacate the hearing date or appointment, as the case may be,(d) inform the parties, and(e) shall give notice to the appellant requiring a notice of appeal with an appropriate hearing date and, if necessary, the documents required by rule 25B, to be filed and served within 28 days after service of the notice.(2) In the event of non-compliance with the registrar’s notice, orders may be made under rule 17.
25D Documents to be filed in reply
The respondent must, within 28 days of the date of service of a notice of appeal with hearing date and the other documents required by rule 25B, where applicable file and serve:(a) a document, signed by counsel (if any), or solicitor (if any), or by the respondent, and headed “Notice of Intention to Challenge or Support Judgment”, indicating the extent, if any, to which the judgment will be challenged or supported by cross-appeal or contention, any alternative assessment sought, with a brief but specific statement of the basis for it, and the respondent’s estimate of the likely length of hearing, and(b) a written notice containing the objections to the appellant’s draft index.
25E Vacation of hearing date
If the respondent files a cross-appeal which raises questions of liability, the registrar shall vacate the hearing date and fix an appointment to settle the appeal papers and the appeal and cross-appeal shall proceed under Division 3 accordingly.
25F Index
(1) The appellant’s draft index will stand as the index to the appeal book unless a respondent files a notice of objection under rule 25D.(2) If a notice of objection is filed, rule 22 (1) shall apply and the registrar shall promptly settle the index without the attendance of the parties.(3) Where the index has been settled pursuant to subrule (2), the registrar shall serve a copy of the index on each party within 2 days of the settlement of the index.
25G Filing appeal books
The appellant shall file and serve appeal books in accordance with rule 25:(a) where the draft index is not objected to—within 14 days of the expiration of the period for objection, or(b) where the draft index is objected to—within 14 days of receipt of the copy index settled by the registrar.
25H Fixing of hearing date
Unless the Court of Appeal otherwise orders, the registrar shall, after consultation with the parties, fix the hearing for a day within the week commencing on the Monday nominated in the Notice of Appeal.
Division 4 Written submissions
26 Written submissions and chronology
Each party, other than a submitting respondent, shall, unless otherwise directed, file and serve written submissions, and the appellant shall file and serve a chronology. The respondent may file and serve an amended or supplementary chronology.rule 51AA.26: Subst 24.11.1978 (see erratum 8.12.1978); 23.12.1994.
27 Appellant’s chronology
The appellant’s chronology shall comprise a list of the principal events leading up to the litigation and, where appropriate, events during the litigation, numbered consecutively with the date, a short description of each event, and appropriate references to the appeal book including exhibit marks where applicable.rule 51AA.27: Subst 24.11.1978; 23.12.1994.
28 Preparation
(1) Written submissions:(a) shall be divided into paragraphs numbered consecutively,(b) shall, so far as practicable, refer to matter in the appeal book by volume number (if any), page number and letter, and shall not extract that matter,(c) shall, so far as practicable, where an authority is cited, not extract matter in the authority, and(d) shall be signed by the barrister or solicitor who prepares them or, where they are not prepared by a barrister or solicitor, by or on behalf of the party on which behalf they are signed, and(i) the name of the signatory,(ii) a telephone number at which the signatory can be contacted, andshall be typed or printed in a neat and legible manner under his signature.(iii) if available, the signatory’s facsimile number,(2) In appeals raising substantial challenges to findings of fact, the submissions of the party making those challenges shall include a statement in narrative form setting out the findings challenged, those contended for, the reasons why the Court of Appeal should substitute those findings and supporting references to the transcript and other evidence.rule 51AA.28: Subst 24.11.1978. Am 15.2.1991; 23.12.1994.
29 Filing and lodgment
Written submissions and chronologies shall be filed as follows:(a) by the appellant—not later than 4 days before the date fixed for hearing, andby placing 4 copies in the box marked “Appeal Submissions” located on the 12th Level of the Law Courts Building.(b) by the respondent—not later than 2 days before the date fixed for the hearing,rule 51AA.29: Subst 24.11.1978. Am 15.2.1991. Subst 23.12.1994.
30 Service
A party who files his written submissions and chronology shall, on the day of filing, serve 3 copies on every party to the appeal other than a submitting respondent.rule 51AA.30: Subst 24.11.1978; 23.12.1994.
Division 5 General
31 Motions
(1) Subject to the rules and in particular rule 3, but notwithstanding rule 32, any application to the Court of Appeal or to a Judge of Appeal in or for the purposes of or in relation to proceedings in the Court shall be made by motion in the proceedings.(2) In proceedings on a motion in the Court of Appeal (except a motion in proceedings commenced in the Court of Appeal by summons or in proceedings for leave to appeal or to cross-appeal from a decision in proceedings in the Court), the party applying shall be called the claimant and any other party shall be called an opponent and documents in the proceedings on that motion (except any minute of order) shall be entitled accordingly.rule 51AA.31: Am 2.6.1972; 16.1.1981; 25.2.1994.
32 Summons
(1) Subject to the rules, proceedings (except appeals) in the Court of Appeal shall be commenced by summons under Part 5 rule 4A (as in force at the relevant time before 1 September 1997).(2) Proceedings referred to in paragraph (h) of section 48 (2) of the Act (which paragraph relates to a stated case) shall be commenced by summons in Form 62A.(3) In proceedings to which subrule (2) applies:(a) Part 5 rules 4, 4C and 5 (as in force at the relevant time before 1 September 1997) shall not apply, and(b) the registrar shall give notice of hearing to the parties, subject to any direction of the Court of Appeal.(4) A party claiming relief by summons in the Court of Appeal shall be called a claimant.(5) A party against whom relief is claimed by summons in the Court of Appeal shall be called an opponent.rule 51AA.32: Subst 2.6.1972. Am 22.8.1975; 19.10.1979; 23.5.1980; 13.6.2003; 29.8.2003.
32A Proceedings other than appeals
(1) A claimant in proceedings commenced by summons in the Court of Appeal shall file with the summons an affidavit in support of the claim for relief.(2) Where a ground on which relief is claimed involves a matter arising under the Constitution of the Commonwealth or involves its interpretation:(a) the statement of the ground shall indicate that it involves a matter within section 78B of the Judiciary Act 1903 of the Commonwealth, and(b) the claimant shall, forthwith after filing the summons and affidavit in support, give the notices required by that section and promptly file an affidavit of service of the notices.(3) Where the proceedings are for relief of the nature referred to in section 48 (2) (b), (c), (d), (e) or (g) of the Act, the affidavit in support of the summons shall conclude with a brief but specific statement of the grounds on which relief is claimed.(4) Rule 6 applies, making such changes as are necessary, to proceedings of the kind referred to in subrule (3).rule 51AA.32A: Ins 16.8.1991.
32B Hearing in fixed vacation
(1) An application for an order under Part 1A rule 2 (4) that an appeal or other proceeding in the Court of Appeal be heard during the fixed vacation shall, unless the Court otherwise orders, be made by filing:(a) an affidavit showing the grounds upon which the application is based,(b) a draft order, and(c) where applicable—a draft of the summons, notice of appeal, or notice of motion proposed to be filed.(2) The applicant may proceed without service of the documents on any party.(3) The registrar shall deliver the documents to the vacation Judge of Appeal for determination of the application.(4) The application may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of any person.rule 51AA.32B: Ins 24.6.1994.
32C Consent adjournments of matters in Monday motions list
(1) Where:(a) a motion or summons is returnable in a Monday motions list,(b) the counsel or solicitor for each party who is not a submitting party signs a consent (which need not be in the form of a Court document) to the motion or summons being adjourned to a specified Monday on which the Court of Appeal will be taking a motions list, andthe registrar shall adjourn the proceedings to the agreed date.(c) each consent is filed, or a copy of it is produced in the Sydney Registry by a facsimile transmission machine, before 1 pm on the Friday preceding the hearing date,(2) Costs of the adjournment shall be costs in the proceedings unless all parties other than submitting parties have otherwise agreed.rule 51AA.32C: Ins 24.6.1994. Am 19.8.1994.
33 Papers
(1) A person filing a document in the registry shall, in addition, lodge so many copies of the document as the registrar may direct.(2) The provisions of Division 3 (which relates to appeal papers) shall, if the registrar so directs, apply to any proceedings in the Court of Appeal, with such modification as the registrar may direct.
33A Consent orders
Any judgment or order which may be made by a Judge of Appeal by consent of the parties may be made by the registrar.rule 51AA.33A: Ins 23.12.1994. Am 24.2.1995.
34 Review of order of Judge of Appeal
An application to the Court of Appeal for the variation or discharge of an order of a Judge of Appeal shall not be made except on notice of motion filed within 14 days after the date on which the order is made or within such extended time as the Court of Appeal may fix.rule 51AA.34: Am 2.6.1972.
35 Forms
A summons or notice of motion in proceedings in the Court of Appeal, shall:(a) notwithstanding subrules (2) and (3) of Part 65 rule 1 (which relates to the title), where the claimant is proceeding under an Act, be entitled “In the matter of” together with a reference to the Act and section of it under which the claimant is proceeding,(b) unless the grounds of the application are stated in an affidavit and, except in a summons under rule 32 (2), state those grounds.rule 51AA.35: Ins 2.6.1972. Am 22.8.1975; 23.5.1980; 16.1.1981.
36 Powers of the registrar
(1) Subject to subrule (1A), the registrar may exercise the powers of a Judge of Appeal under section 46 (1) and (2) of the Act.(1A) The registrar shall not grant a stay or an injunction in exercising the powers granted under:(a) subrule (1), except in respect of Part 40 rule 8, or(b) Part 44 rule 5, except in respect of a judgment or order of the Court of Appeal.(2) The registrar shall, on the direction of the President or the Judge for the time being responsible for the Court of Appeal’s list, refer any motion to the Court of Appeal or a Judge of Appeal.rule 51AA.36: Ins 19.7.1996. Am 21.3.1997.
37 Short reasons for decision
The Court of Appeal may, when dismissing an appeal, exercise its power under section 45 (4) of the Act to give reasons for its decision in short form by stating them in the prescribed form.rule 51AA.37: Ins 24.7.1998.
Part 51A Appeals to the Court (except the Court of Appeal)
pt 51A: Ins 30.6.1972.
pt 51A, div 1, hdg: Rep 23.2.1990.
1 Application
Subject to any Act, Part applies to an appeal to the Court except:(a) the Court of Appeal,(b) the proceedings to which Part 32 (which relates to stated cases) applies,(c) any appeal to which, by or under any Act, any of the provisions of Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 applies, or(d) any appeal to which the provisions of Part 80A rule 32 (1) or rule 14.1 of the Supreme Court (Corporations) Rules 1999 apply.rule 51A.1: Ins 30.6.1972. Am 25.10.1974; 25.3.1977; 25.5.1990; 10.12.1993; 24.2.1995; 19.2.1999; 24.12.1999; 29.8.2003; 19.12.2003.
2 Definitions
In this Part, unless the context or subject matter otherwise indicates or requires:tribunal below means, in relation to an appeal to the Court, the court in which, or the person whose decision is under appeal.decision includes a judgment, order, opinion, direction or determination.material date in relation to an appeal means:(a) where the appeal is from the decision of a court, the date on which the decision is pronounced or given, and(b) where the appeal is from any other person, the date on which notice of the decision was given to the person who wishes to appeal by or on behalf of the person who made the decision.rule 51A.2: Ins 30.6.1972. Am 25.10.1974; 30.8.1985; 10.12.1993.
2A Leave to appeal or cross-appeal
cf Pt 51, r 3.
(1) An application for leave to appeal and, subject to subrule (2), to cross-appeal shall be made by summons.(2) A party served with a summons for leave to appeal who wishes to apply for leave to cross-appeal may do so by motion on the hearing of the summons, supported by an affidavit stating the questions involved and the reasons why leave should be given, without filing or serving a summons or notice of the motion.(3) The summons for leave to appeal shall be filed within 14 days after the material date or within such extended time as the Court may fix.(4) A summons for leave to cross-appeal shall be filed within 14 days after service of the summons instituting the appeal, or the summons for leave to appeal, or within such further time as the Court may fix.(5) The Court may extend time under subrule (3) or (4) at any time.(6) The applicant shall file with or subscribe to the summons a statement of:(a) the nature of the case,(b) the questions involved, and(c) the reasons why leave should be given.(7) The applicant for leave to appeal shall, not later than 3 days before the date fixed for the hearing of the application for leave to appeal, file a copy of the reasons for decision in the tribunal below unless:(a) the registrar otherwise directs, or(b) the tribunal below has not given, and does not intend to give, written reasons.(8) The Court may give leave to appeal or to cross-appeal on terms.(9) A party applying to the Court for an extension of time under subrule (3) or (4) shall lodge with his or her notice of motion or summons a draft, completed as far as possible, of the summons under subrule (1) and the statement under subrule (7), to be filed if an extended time is fixed.rule 51A.2A: Ins 24.6.1994.
3 Time for appeal
(1) Subject to any provisions made by or under any Act, an appeal must be instituted within 28 days after the material date or within such extended time as the Court may fix.(2) Where an appeal is instituted pursuant to leave to appeal, the appeal must be instituted within 14 days after the leave is given or within such extended or abridged time as the Court may fix.(3) The Court may extend time under subrule (1) at any time.rule 51A.3: Ins 30.6.1972. Am 24.6.1994.
4 Institution of appeal
An appeal to the Court shall be instituted by filing a summons claiming the judgment, order or determination which the party instituting the appeal seeks in place of the decision of the tribunal below.rule 51A.4: Ins 30.6.1972.
5 Statement of ground
The plaintiff shall file and serve with or subscribe to the summons instituting the appeal a brief but specific statement of the grounds relied upon in support of the appeal and as to whether the appeal is from the whole or part only and what part of the decision in the tribunal below.rules 51A.5, 51A.6: Ins 30.6.1972. Am 24.6.1994.
6 Parties
(1) Each person who is directly affected by the relief sought in the appeal or is interested in maintaining the decision under appeal shall be joined as a defendant to the appeal.(2) Subject to subrule (3) the tribunal below shall be joined as a defendant.(3) Subrule (2) shall not apply where the tribunal below is a court.(4) The Court may order the addition or removal of any person as a party to an appeal.(5) A person shall not be made a plaintiff without his consent.rules 51A.5, 51A.6: Ins 30.6.1972. Am 24.6.1994.
6A Directions for service
Where the Court makes an order granting:(a) leave to appeal or to cross-appeal, orthe Court may, at the same time or afterwards, give directions for service other than personal service of any summons or notice of cross-appeal by which, pursuant to the order, proceedings are commenced for an appeal or for leave to appeal or to cross-appeal, and of any other document in the proceedings so commenced.(b) an extension of time for:(i) appealing or cross-appealing, or(ii) applying for leave to appeal or to cross-appeal,rule 51A.6A: Ins 24.6.1994.
7 Filing with tribunal below
(1) Where the tribunal below is a court, the plaintiff shall, on the date of instituting the appeal, file a copy of the summons instituting the appeal in the registry or office of that court.(2) If compliance with subrule (1) is not in accordance with the practice or organisation of that court, the plaintiff shall lodge a copy of the summons with an officer of that court concerned with its records or process.rules 51A.7–51A.11: Ins 30.6.1972.
8 Stay
An appeal to the Court shall not:(a) operate as a stay of proceedings under the decision of the tribunal below,except so far as the Court may direct or, subject to any direction of the Court, as the tribunal below may direct.(b) invalidate any intermediate act or proceedings,rules 51A.7–51A.11: Ins 30.6.1972.
9 Security for costs
(1) The Court may, in special circumstances, order that such security as the Court thinks fit be given of the costs of an appeal to the Court.(2) Subject to subrule (1), no security for the costs of an appeal to the Court shall be required.(3) Subrules (1) and (2) do not affect the powers of the Court under Part 53, Division 1 (which relates to security for costs).rules 51A.7–51A.11: Ins 30.6.1972.
10 Date of hearing of appeal
cf RSC (Rev) 1965, O 55, r 5.
Unless the Court otherwise orders, the appeal shall not be heard before 21 days after service of the summons by which the appeal is instituted.rules 51A.7–51A.11: Ins 30.6.1972.
11 Amendment
(1) The summons by which the appeal is instituted and any statement under rule 5 may be amended by the plaintiff without leave by filing a supplementary notice not less than 7 days before the day appointed for hearing.cf RSC (Rev) 1965, O 55, r 6.(2) The plaintiff must, on the day of filing the supplementary notice, serve it on the other parties and must file or lodge a copy of it in accordance with rule 7 as if it were a summons.(3) Subrule (1) does not affect the powers of the Court under Part 20 (which relates to amendment).rules 51A.7–51A.11: Ins 30.6.1972.
11A
(Renumbered as rule 12)
11B (Repealed)
rule 51A.11B: Ins 30.8.1985. Rep 24.6.1994.
pt 51A, div 2: Ins 25.10.1974. Rep 23.2.1990.
12 Cross-appeal
(1) Where a defendant wishes to appeal from the whole or part of a decision, the defendant shall file a notice of cross-appeal.(2) The defendant must file the notice of cross-appeal within 28 days after service of the summons instituting the appeal on the defendant or within 14 days after leave to cross-appeal is given.(3) Subject to subrules (1), (2) and (4), the provisions of this Part relating to an appeal and a summons apply to the cross-appeal and a notice of cross-appeal.(4) Part 6 and rule 3 (which relates to time for appeal) do not apply to a cross-appeal or notice of cross-appeal.rule 51A.12: Ins 25.10.1974. Rep 23.2.1990.rule 51A.12 (previously rule 11A): Ins 30.8.1985. Am 26.8.1988; 24.6.1994. Renumbered 24.6.1994.
13 Notice of contention
Where a defendant wishes to contend that the decision of the tribunal below should be affirmed on grounds other than those relied upon by the tribunal below but does not seek a discharge or variation of any part of the decision of the tribunal below, the defendant need not file a notice of cross-appeal but, not later than:(a) 28 days after service of the summons instituting the appeal on the defendant, orthe defendant must:(b) 14 days after leave to cross-appeal is given,(c) file notice of that contention stating, briefly but specifically, the grounds relied upon in support of the contention, and(d) serve the notice of contention on each other party to the appeal.rule 51A.13: Ins 25.10.1974. Rep 23.2.1990. Ins 24.6.1994.
Part 51B Appeals to the Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001
pt 51B: Ins 19.2.1999.
pt 51B, Heading: Ins 19.2.1999. Am 29.8.2003.
1 Application
This Part applies to an appeal to the Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001.rule 51B.1: Ins 19.2.1999. Am 19.3.1999. Subst 29.8.2003.
2 Assignment of business
Proceedings to which this Division applies shall be commenced in the Common Law Division.rule 51B.2: Ins 19.2.1999.
3 Definitions
In this Part, unless the context or subject matter otherwise indicates or requires:decision includes a conviction, order or sentence, judgment, opinion, direction or determination.informant includes a complainant, the Director of Public Prosecutions and any other person responsible for the conduct of a prosecution.material date in relation to an appeal means:(a) where the appeal is from the decision of a court, the date on which the decision is pronounced or given, and(b) where the appeal is from any other person, the date on which notice of the decision was given to the person who wishes to appeal by or on behalf of the person who made the decision.tribunal below means, in relation to an appeal to the Court, the court or the person whose decision is under appeal.rule 51B.3: Ins 19.2.1999. Am 19.3.1999.
4 (Repealed)
rule 51B.4: Ins 19.2.1999. Rep 19.3.1999.
5 Leave to appeal or cross-appeal
(1) An application for leave to appeal and, subject to subrule (2), to cross-appeal must be made by summons under Part 5 rule 3.(2) A party served with a summons for leave to appeal who wishes to apply for leave to cross-appeal may do so by motion on the hearing of the summons, supported by an affidavit stating the matters set out in subrule (7), without filing or serving a summons or notice of the motion.(3) Subject to subrules (3A), (5) and (5A), the summons for leave to appeal shall be filed within 28 days after the material date.(3A) If an application is made to a Local Court under Part 2 of the subject Act, the time for filing a summons for leave to appeal does not start to run until the application under Part 2 is finally disposed of.(4) A summons for leave to cross-appeal shall be filed within 28 days after service of the summons instituting the appeal, or the summons for leave to appeal, or within such further time as the Court may fix.(5) The Court may, at any time, extend the time fixed by subrule (3) or (4).(5A) Where the decision appealed from is that of a magistrate, the tribunal below may, within the time fixed by subrule (3) for filing a summons for leave to appeal (as extended by subrule (3A)) or on application filed within that time, extend the time fixed by subrule (3).(6) The summons for leave to appeal or to cross-appeal shall include a claim for the decision which the party instituting the appeal seeks in place of the decision of the tribunal below.(7) The applicant shall file and serve with or subscribe to the summons a brief but specific statement of:(a) the grounds relied upon in support of the appeal and, in particular, the grounds upon which it is contended that there is any error of law,(b) as to whether the appeal is from the whole or part only and what part of the decision in the tribunal below,(c) the nature of the case,(d) the questions involved, and(e) the reasons why leave should be given.(8) The applicant for leave to appeal shall, unless the Court otherwise directs, not later than 3 days before the date fixed for the hearing of the application for leave to appeal, file an affidavit exhibiting:(a) a copy of the transcript of the proceedings in the tribunal below, unless a transcript cannot be obtained in respect of proceedings of that type, and(b) a copy of the reasons for decision in the tribunal below, unless the tribunal below has not given, and does not intend to give, written reasons.(9) Where an application for leave to appeal or to cross-appeal has been granted:(a) the summons for leave to appeal shall be deemed a summons instituting an appeal in respect of the grounds upon which the Court has granted such leave, and(b) the summons, or the affidavit under subrule (2), for leave shall be deemed a notice of cross-appeal instituting a cross-appeal in respect of the grounds upon which the Court has granted such leave.(10) A party applying to the Court for an extension of time under subrule (3) or (4) shall:(a) include that application in the summons for leave to appeal or cross-appeal, or(b) lodge with his or her notice of motion or summons a draft, completed as far as possible, of the summons under subrule (1) and the statement under subrule (7), to be filed if an extended time is fixed.rule 51B.5: Ins 19.2.1999. Am 19.3.1999; 13.6.2003; 29.8.2003.
6 Time for appeal
(1) Subject to subrules (1A) and (2) and any provisions made by or under any Act, an appeal must be instituted within 28 days after the material date.(1A) If an application is made to a Local Court under Part 2 of the subject Act, the time for instituting an appeal does not start to run until the application under Part 2 is finally disposed of.(2) Time fixed by subrule (1) may be extended:(a) by the Court at any time, or(b) where the decision appealed from is that of a magistrate—by the tribunal below, but only within the time fixed by subrule (1) for instituting an appeal (as extended by subrule (1A)) or on application filed within that time.(3) A party applying to the Court for an extension of time under subrule (2) (a) shall:(a) include that application in the summons instituting the appeal, or(b) lodge with his or her notice of motion or summons a draft, completed as far as possible, of the summons under rule 7 and the statement under rule 8, to be filed if an extended time is fixed.rule 51B.6: Ins 19.2.1999. Subst 19.3.1999 (see erratum 9.4.1999). Am 29.8.2003.
7 Institution of appeal
Subject to rule 5, an appeal to the Court is to be instituted by filing a summons under Part 5 rule 3 that claims the decision that the party instituting the appeal seeks in place of the decision of the tribunal below.rule 51B.7: Ins 19.2.1999. Subst 13.6.2003.
8 Statement of ground
The plaintiff shall file and serve with or subscribe to the summons instituting the appeal a brief but specific statement:(a) of the grounds relied upon in support of the appeal and, in particular, the grounds upon which it is contended that there is any error of law, and(b) as to whether the appeal is from the whole or part only and what part of the decision in the tribunal below.rules 51B.8–51B.18: Ins 19.2.1999.
9 Transcript and reasons for decision
The plaintiff shall, unless the Court otherwise directs, not later than 3 days before the date fixed for the hearing of the summons, file an affidavit exhibiting:(a) a copy of the transcript of the proceedings in the tribunal below, unless a transcript cannot be obtained in respect of proceedings of that type, and(b) a copy of the reasons for decision in the tribunal below, unless the tribunal below has not given, and does not intend to give, written reasons.rules 51B.8–51B.18: Ins 19.2.1999.
10 Parties
(1) Any informant and each person who is directly affected by the relief sought in the appeal or is interested in maintaining the decision under appeal shall be joined as a defendant to the appeal.(2) Subject to subrule (3), the tribunal below shall be joined as a defendant.(3) Subrule (2) shall not apply where the tribunal below is a court.(4) The Court may order the addition or removal of any person as a party to an appeal.(5) A person shall not be made a plaintiff without his consent.rules 51B.8–51B.18: Ins 19.2.1999.
11 Service
(1) Subject to subrule (2), the plaintiff shall, on the day of filing a summons instituting an appeal or for leave to appeal, or as soon as practicable thereafter, subject to Part 9 rule 8, serve the summons on the defendant personally.(2) When the summons contains an application for extension of time, service shall be effected on the day when the application is granted, or as soon as practicable thereafter.rules 51B.8–51B.18: Ins 19.2.1999.
12 Directions for service
Where the Court makes an order granting:(a) leave to appeal or to cross-appeal, or(b) an extension of time for:(i) appealing or cross-appealing, orthe Court may, at the same time or afterwards, give directions for service other than personal service of any summons or notice of cross-appeal by which, pursuant to the order, proceedings are commenced for an appeal or for leave to appeal or to cross-appeal, and of any other document in the proceedings so commenced.(ii) applying for leave to appeal or to cross-appeal,rules 51B.8–51B.18: Ins 19.2.1999.
13 Filing with tribunal below
(1) Where the tribunal below is a court, the plaintiff shall, on the date of instituting the appeal, file a copy of the summons instituting the appeal in the registry or office of that court.(2) For the purposes of subrule (1), the date of instituting the appeal shall:(a) if the summons instituting the appeal contains an application for extension of time—the day the application is granted, or(b) if a summons for leave is deemed by rule 5 (9) to be the summons instituting the appeal—the day when the summons is so deemed.(3) If compliance with subrule (1) is not in accordance with the practice or organisation of that court, the plaintiff shall lodge a copy of the summons with an officer of that court concerned with its records or process.rules 51B.8–51B.18: Ins 19.2.1999.
14 Security for costs
(1) The Court may, in special circumstances, order that such security as the Court thinks fit be given of the costs of an appeal to the Court.(2) Subject to subrule (1), no security for the costs of an appeal to the Court shall be required.(3) Subrules (1) and (2) do not affect the powers of the Court under Part 53, Division 1 (which relates to security for costs).rules 51B.8–51B.18: Ins 19.2.1999.
15 Date of hearing of appeal
Unless the Court otherwise orders, the appeal shall not be heard before 21 days after service of the summons by which the appeal is instituted.rules 51B.8–51B.18: Ins 19.2.1999.
16 Amendment
(1) The summons by which the appeal is instituted and any statement under rule 8 may be amended by the plaintiff without leave by filing a supplementary notice not less than 7 days before the day appointed for hearing.(2) The plaintiff must, on the day of filing the supplementary notice, serve it on the other parties and must file or lodge a copy of it in accordance with rule 13 as if it were a summons.(3) Subrule (1) does not affect the powers of the Court under Part 20 (which relates to amendment).rules 51B.8–51B.18: Ins 19.2.1999.
17 Cross-appeal
(1) Where a defendant wishes to appeal from the whole or part of a decision, the defendant shall file a notice of cross-appeal.(2) The defendant must file the notice of cross-appeal within the later of:(a) 28 days after service of the summons instituting the appeal on the defendant, and(b) 14 days after leave to appeal or to cross-appeal is given.(3) Subject to subrules (1), (2) and (4), the provisions of this Part relating to an appeal and a summons apply to the cross-appeal and a notice of cross-appeal.(4) Part 6 and rule 6 (which relates to time for appeal) do not apply to a cross-appeal or notice of cross-appeal.rules 51B.8–51B.18: Ins 19.2.1999.
18 Notice of contention
Where a defendant wishes to contend that the decision of the tribunal below should be affirmed on grounds other than those relied upon by the tribunal below but does not seek a discharge or variation of any part of the decision of the tribunal below, the defendant need not file a notice of cross-appeal but, within the time limited by rule 17 (2), the defendant must:(a) file notice of that contention stating, briefly but specifically, the grounds relied upon in support of the contention, and(b) serve the notice of contention on each other party to the appeal.rules 51B.8–51B.18: Ins 19.2.1999.
Part 52 Costs
Division 1 Preliminary
1 Application
(1) This Part shall have no further operation after 30 June 1994 except:(a) as provided by the Legal Profession Act 1987 or the regulations made under it,(b) as provided by subrule (2), or(c) as otherwise ordered by the Court in relation to particular proceedings.(2) This rule shall not effect any right, privilege, obligation, liability or disentitlement acquired, accrued or incurred on or before 30 June 1994.(3) Subject to subrules (1) and (2), the provisions of this Part apply, subject to their terms, to and in respect of:(a) costs payable or to be taxed under any order of the Court or under the rules, and(b) costs to be taxed in the Court under any Act.rule 52.1: Ins 24.6.1994.
1A Interpretation—general
cf RSC (Rev) 1965, O 62, r 1 (1).
In this Part, unless the context or subject matter otherwise indicates or requires:bill means bill of costs.certificate includes allocatur.contentious business has the same meaning as it has in section 173 of the Legal Profession Act 1987.non-contentious business has the same meaning as it has in section 173 of the Legal Profession Act 1987.taxed costs means:(a) costs taxed in accordance with this Part, and(b) costs certified pursuant to rule 50A (7).trustee includes an executor of a will and an administrator of the estate of a deceased person.rule 52.1A (previously rule 1): Am 2.10.1992; 26.2.1993. Renumbered 24.6.1994.
1B Application of Part to conveyancers
Subject to any order of the Court, this Part applies, making such changes as it is necessary to make, to costs to which Division 5 of Part 11 of the Legal Profession Act 1987 applies by virtue of section 23 (5) of the Conveyancers Licensing Act 1992.rule 52.1B (previously rule 1A): Ins 27.11.1992. Renumbered 24.6.1994.
2 Interpretation—“fund”
cf RSC (Rev) 1965, O 62, r 1 (2).
In this Part:(a) a reference to a fund, being a fund out of which costs are to be paid, or being a fund held by a trustee, extends to any property held for the benefit of any person or class of persons, or held on trust for any purpose, and(b) a reference to a fund held by a trustee extends to any property to which he is entitled as trustee, whether alone or together with any other person and whether the property is for the time being in the possession of the trustee or not.
3 (Repealed)
rule 52.3: Rep 24.6.1994.
4 Powers of the Court generally
(1) The powers and discretions of the Court under section 76 of the Act (which relates to costs generally) shall be exercised subject to and in accordance with this Part.cf RSC (Rev) 1965, O 62, r 2 (4).(2) Subject to subrule (5), the Court shall not, in the exercise of its powers and discretions under section 76 of the Act, make any order for costs against a person who is not a party.(3) Subject to subrule (4), a person shall not be made a party for the purpose of making an application for costs against the person.(4) Subrule (3) shall not apply:(a) where the person is otherwise a proper party, or(b) to a claim for relief against the person under section 78 of the Act.(5) Subrule (2) shall not limit the power of the Court to make any order:(a) under Part 42 rule 7 (f) or Part 52 rule 66,(b) for payment by a relator in proceedings of the whole or any part of the costs of a party to the proceedings,(c) for payment by a person who:(i) is bound by an order made, or judgment given, by the Court in proceedings or is bound by an undertaking given to the Court in proceedings, andof the whole or any part of the costs of a party to the proceedings occasioned by the failure or the breach,(ii) fails to comply with the order or the judgment or breaches the undertaking,(d) for payment by a person who has committed contempt of court or an abuse of process of the Court of the whole or any part of the costs of a party to proceedings occasioned by the contempt or abuse of process,(e) in exercise of its supervisory jurisdiction over its own officers, including solicitors, barristers and court appointed liquidators, or(f) against a person who purports without authority to conduct proceedings in the name of another person.(6) Save as mentioned in subrules (1) to (5), this Part has effect subject to the Act and to the rules and subject to any other Act.rule 52.4: Am 25.6.1993; 19.7.2002.
5 Time for dealing with costs
cf RSC (Rev) 1965, O 14, r 7 (1); O 62, r 4 (1).
The Court may, in any proceedings, exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings.rule 52.5: Am 19.6.1987.
6 Taxed costs and other provision
(1) Subject to this Part, where, by or under these rules, or any order of the Court, costs are to be paid to any person, that person shall be entitled to his taxed costs.cf RSC (Rev) 1965, O 62, r 9 (1).(2) Where the Court orders that costs be paid to any person, the Court may, at any time, further order that, as to the whole or any part (specified in the order) of the costs, instead of taxed costs, that person shall be entitled to:(a) a proportion specified in the order of the taxed costs,(b) the taxed costs from or up to a stage of the proceedings specified in the order,(c) a gross sum specified in the order instead of the taxed costs, or(d) a sum in respect of costs to be ascertained in such manner as the Court may direct.cf RSC (Rev) 1965, O 62, r 9 (4).rule 52.6: Am 9.12.1983 (see erratum 13.1.1984).
7 Costs in other courts
cf RSC (Rev) 1965, O 62, r 4 (3).
Where, in proceedings remitted, removed or otherwise transferred to or into the Court, or in proceedings on an appeal to the Court, the Court makes an order as to the costs of proceedings before another court or before a tribunal, the Court may:(a) specify the amount of the costs to be allowed,(b) order that the costs be taxed in accordance with this Part, or(c) make orders for the ascertainment of the costs by taxation or otherwise in that other court or that tribunal.rule 52.7: Am 4.9.1987.
8 Order for payment
cf RSC (Rev) 1965, O 62, r 3 (1).
Subject to this Part, a party to the proceedings in the court shall not be entitled to recover any costs of or incidental to the proceedings from any other party to the proceedings except under an order of the Court.
9 Order for taxation—when not required
(1) Where:(a) an order of the Court directs the payment of costs,(b) proceedings are dismissed with costs,(c) a motion is refused with costs,(c1) a party may tax costs under rule 11A (1A), rule 11C (3), rule 14 (1) or rule 15 (1) after the conclusion of the proceedings,(d) a party may tax costs under rule 16 on the discontinuance of proceedings,(e) a party may tax costs under rule 17 (1) on the acceptance of an offer of compromise,(f) a party may tax costs under rule 18 on dismissal, orthe costs may be taxed without any order directing taxation.(g) an applicant mentioned in section 366 (2) of the Companies (New South Wales) Code or section 466 (2) of the Corporations Law is entitled to reimbursement of his taxed costs on the making of the winding up order,cf Costs Rules, r 55; cf RSC (Rev) 1965, O 62, r 11 (1).(2) Where proceedings are dismissed with costs and the costs are not paid within 4 days after the signing of a certificate of taxation of the costs, a party to whom the costs are payable may enter judgment for the taxed costs.rule 52.9: Am 22.10.1982; 12.7.1985; 19.6.1987; 23.6.1989; 27.3.1992; 2.10.1992; 3.9.1993; 25.2.1994.
9A Order for costs: when to be taxed
(1) Where, before the conclusion of any proceedings, the Court makes an order for the payment of costs or a motion is refused with costs, a party may not, except with the leave of the Court, make an application to proceed with the taxation of the costs until after the conclusion of the proceedings.cf RSC (Rev) 1965, O 62, r 8 (1) after S 1 1986 No 632.(2) Where, in any proceedings, it appears to a taxing officer, on application, that there is no likelihood of any further order being made in the proceedings, the taxing officer may tax any costs ordered to be paid.cf RSC (Rev) 1965, O 62, r 8 (9), after S 1. 1986 No 632.rule 52.9A: Ins 19.6.1987.
10 Default judgment
(1) Where judgment is entered for costs under Part 17 (which relates to judgment on default of appearance or of defence) the costs shall not be taxed costs but shall be in accordance with the prescribed scale.cf RSC (Rev) 1965, O 26, r 9 (3).(2) Subrule (1) does not apply to a judgment given under Part 17 rule 9.rule 52.10: Am 30.3.1990.
Division 2 Entitlement
11 Following the event
cf RSC (Rev) 1965, O 62, r 3 (2).
If the Court makes any order as to costs, the Court shall, subject to this Part, order that the costs follow the event, except where it appears to the Court that some other order should be made as to the whole or any part of the costs.
11A Submitting appearance (Court of Appeal)
(1) Subject to rule 11C, where a respondent or opponent adds to that party’s notice of appearance a statement pursuant to Part 51 rule 13B (which relates to a submitting appearance) and takes no active part in the proceedings, the appellant or claimant shall, unless the Court otherwise orders, pay the respondent’s or the opponent’s costs as a submitting party.(1A) A party whose costs are payable under subrule (1) may tax the costs after the conclusion of the proceedings and, if the taxed costs are not paid within 4 days after the signing of a certificate of the taxation, may enter judgment for the taxed costs.(2) Any costs that an appellant or claimant is liable to pay pursuant to subrule (1) to a submitting party properly joined in proceedings shall, unless the Court otherwise orders, be included in any costs payable by any other respondent or opponent to the appellant or claimant in respect of those proceedings.rule 52.11A: Ins 16.8.1991. Subst 13.12.1991 (see erratum 16.10.1992). Am 2.10.1992; 3.9.1993.
11B Common representations
Where in proceedings in the Court of Appeal:(a) respondent to an appeal,(b) opponents to an application for leave to appeal, orhave arranged common representation and they are entitled to recover their costs from another party, those costs shall include the costs of arranging the common representation.(c) opponents to proceedings commenced by summons claiming relief under section 48 (2) (b), (c), (d), (e) or (g) of the Act,rule 52.11B: Ins 16.8.1991.
11C Discontinuance of appeal
(1) Where an appeal is taken to be discontinued under Part 51 rule 5 (4), the appellant shall, unless the Court of Appeal otherwise orders, pay the respondent’s costs of the appeal.(2) The costs payable under subrule (1) shall not include the costs of any work which could reasonably have awaited the filing of a notice of appeal with appointment, unless the Court of Appeal otherwise orders.(3) A party whose costs are payable under subrule (1) may tax the costs after the conclusion of the proceedings and, if the taxed costs are not paid within 4 days after the signing of a certificate of the taxation, may enter judgment for the taxed costs.rule 52.11C: Ins 3.9.1993.
12 Amendment of pleading etc without leave
cf RSC (Rev) 1965, O 62, r 3 (3).
Where a party amends a pleading, summons or cross-claim to which Part 6 Division 3 applies without leave, he shall, unless the Court otherwise orders, pay the costs of and occasioned by the amendment.rule 52.12: Am 16.3.1990.
12A Interlocutory application
Subject to this Part the costs of any application or other step in any proceedings shall, unless the Court otherwise orders, be paid and otherwise dealt with in accordance with the provisions of this Part or the provisions of any order relating to the general costs of the proceedings.rule 52.12A: Ins 2.6.1972.
13 Extension of time
cf RSC (Rev) 1965, O 62, r 3 (4).
Where a party applies for an extension of time, he shall, unless the Court otherwise orders, pay the costs of and occasioned by the application, or any order made on or in consequence of the application.
13A Defence of tender
Where it is a fact that the defendant has paid money into Court under Part 15 rule 24, the Court may, in exercising its discretion as to costs, take into account that fact and the amount of the money paid into Court.rule 52.13A: Ins 23.6.1989.
14 Non-admission of fact
cf RSC (Rev) 1965, O 62, r 3 (5).
(1) Where a party to any proceedings (in this rule called the disputing party) serves a notice disputing a fact under Part 18 rule 2 (2) and afterwards that fact is:(a) proved in the proceedings, orthe disputing party shall, unless the Court otherwise orders, pay the costs of the party upon whom the notice is served, taxed on an indemnity basis, occasioned by:(b) admitted for the purpose of the proceedings by the disputing party,(c) proof of the fact, or(d) preparation for the purpose of proving the fact, as the case may be.(2) An entitlement to costs under this rule shall not be affected by any order as to costs unless that order refers to the notice by the disputing party giving rise to the entitlement.(3) Subject to subrule (4), a party whose costs are payable under subrule (1) may tax the costs and, if the taxed costs are not paid within 4 days of the signing of the certificate of taxation, may enter judgment for the taxed costs.(4) A party may not, except with the leave of the Court, make an application to proceed with the taxation of the costs until after the conclusion of the proceedings.(5) This rule has effect notwithstanding rules 13A, 16, 17, 18, 21B, 21D, and 21E (4) and (5).rules 52.14, 52.15: Subst 27.3.1992.
15 Non-admission of document
cf RSC (Rev) 1965, O 62, r 3 (6).
(1) Where a party to any proceedings (in this rule called the disputing party) serves a notice disputing the authenticity of a document under Part 18 rule 4 (2) or under Part 18 rule 5 (2), and afterwards the authenticity of a document is:(a) proved in the proceedings, orthe disputing party shall, unless the Court otherwise orders, pay the costs of the party upon whom the notice is served, taxed on an indemnity basis, occasioned by:(b) admitted for the purpose of the proceedings by the disputing party,(c) proof of the authenticity of the document, oras the case may be.(d) preparation for the purpose of proving the authenticity of a document,(2) An entitlement to costs under this rule shall not be affected by any order as to costs unless that order refers to the notice by the disputing party giving rise to the entitlement.(3) Subject to subrule (4), a party whose costs are payable under subrule (1) may tax the costs and, if the taxed costs are not paid within 4 days of the signing of the certificate of taxation, may enter judgment for the taxed costs.(4) A party may not, except with the leave of the Court, make an application to proceed with the taxation of the costs until after the conclusion of the proceedings.(5) This rule has effect notwithstanding rules 13A, 16, 17, 18, 21B, 21D, and 21E (4) and (5).rules 52.14, 52.15: Subst 27.3.1992.
16 Discontinuance
(1) Where, pursuant to Part 21 rule 2, a party to any proceedings discontinues the proceedings without leave as to the whole or any part of the relief claimed by him against any other party, the discontinuing party shall, unless:(a) the Court otherwise orders, orpay the costs of the party against whom the discontinued claim is made, occasioned by the discontinued claim and incurred before service of notice of the discontinuance.(b) the notice of discontinuance contains a statement under Part 21 rule 5 (3),cf RSC (Rev) 1965, O 62, rr 3 (7), 10 (1).(2) A party whose costs are payable under subrule (1) may tax the costs and, if the taxed costs are not paid within 4 days after the signing of a certificate of the taxation, may enter judgment for the taxed costs.cf RSC (Rev) 1965, O 62, r 10 (1).rule 52.16: Am 2.4.1993.
17 Offer of compromise
(1) Upon the acceptance of an offer of compromise in accordance with Part 22 rule 3 (5), the plaintiff may, unless the Court otherwise orders, tax his costs in respect of the claim against the defendant up to and including the day the offer was accepted and, if the costs are not paid within 4 days after the signing of a certificate of the taxation, enter judgment against that defendant for the taxed costs.(2) If a notice of offer contains a term which purports to negative or limit the operation of subrule (1), that offer shall be of no effect for any purpose under Part 22 or this rule.(3) Subrules (4)–(6) apply to an offer which has not been accepted at the time prescribed by Part 22 rule 3 (8).(4) Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall, subject to rule 24, be entitled to an order against the defendant for his costs in respect of the claim from the day on which the offer was made, taxed on an indemnity basis in addition to his costs incurred before and on that day, taxed on a party and party basis.(4A) For the purpose of subrule (4), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the Court otherwise orders, the plaintiff shall be entitled to his costs in respect of the claim from 11 a.m. on the day following the day on which the offer was made, taxed on an indemnity basis, in addition to his costs incurred before that time, taxed on a party and party basis.(5) Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall, subject to rule 24, be entitled to an order against the defendant for his costs in respect of the claim up to and including the day the offer was made, taxed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for his costs in respect of the claim thereafter, taxed on a party and party basis.(6) For the purpose of subrule (5), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the Court otherwise orders, the plaintiff shall be entitled to his costs in respect of the claim up to 11 a.m. on the day following the day on which the offer was made, taxed on a party and party basis, and the defendant shall be entitled to his costs in respect of the claim thereafter, taxed on a party and party basis.(7) Where a plaintiff obtains an order or judgment for the payment of a debt or damages and:(a) the amount payable under the order or for which judgment is given includes interest or damages in the nature of interest, orthen, for the purpose of determining the consequences as to costs referred to in subrules (4) and (5), the Court shall disregard so much of the interest as relates to the period after the day the offer was made.(b) by or under any Act the Court awards the plaintiff interest or damages in the nature of interest in respect of the amount,(8) For the purpose only of subrule (7), the Court may be informed of the fact that the offer was made, and of the date on which it was made, but shall not be informed of its terms.(9) Subrules (4) and (5) shall not apply unless the Court is satisfied by the party making the offer that the party was at all material times willing and able to carry out what the party offered.rule 52.17: Am 31.8.1984. Subst 23.6.1989. Am 20.4.1990; 16.11.1990; 14.12.1990; 24.9.1993.
18 Dismissal
(1) Where a party makes a claim for relief and the Court orders that the claim be dismissed under Part 34 rule 6A (which relates to dismissal on the plaintiff’s application) or Part 34 rule 7 (which relates to dismissal on the defendant’s application), he shall pay the costs of the party against whom the dismissed claim is made, occasioned by the dismissed claim.(2) A party whose costs are payable under subrule (1) may tax the costs and, if the taxed costs are not paid within 4 days after the signing of a certificate of the taxation, may enter judgment for the taxed costs.rule 52.18: Am 12.7.1985.
19 Offer to contribute
The Court may take an offer to contribute into account in determining whether it should order that the offeree should pay the whole or part of:(a) the costs of the offeror,(b) any costs which the offeror is liable to pay to the plaintiff.rule 52.19: Am 29.3.1974. Subst 23.6.1989.
20 Disobedience to rule, judgment or order
Where any person fails to comply with any provision of the rules or any judgment or order of the Court, the Court may order him to pay the costs of any other person occasioned by the failure.
21 Discovery before suit
The Court may, in proceedings in respect of any claim for relief, include in any order for costs the costs of a party to the proceedings of proceedings under Part 3 in respect of that claim for relief including payments of conduct money and payments on account of expenses and loss under that Part.
21A Injunction
cf 42 WN (NSW) 26.
Where the Court grants an interlocutory injunction and afterwards grants a further interlocutory injunction continuing the first injunction with or without modification an order as to the costs of the further injunction shall, unless the Court otherwise orders, include the costs of the first injunction.rule 52.21A: Ins 2.6.1972.
21B Patents, trade marks and designs
cf RSC (Rev) 1965, O 62, App 2, Part 7, para 4 (3).
Where:(a) an action or counterclaim for infringement of a patent, of a registered trade mark, or of the monopoly in a registered design,(b) an application or counterclaim for revocation of a patent, orproceeds to hearing, costs shall not be allowed to the parties delivering any particulars of breaches or of objections in respect of any issues raised in those particulars and relating to that patent, trade mark or design except in so far as those issues or particulars are certified by the Court to have been proved or to have been reasonable and proper.(c) an application for cancellation of the registration of a design or counter-claim for the rectification of the Register of Designs,rule 52.21B: Ins 30.8.1985. Am 10.12.1993.
21C (Repealed)
rule 52.21C: Ins 30.8.1985. Rep 10.12.1993.
21D Gift to interested witness
Where a beneficial gift is, by reason of the Court’s satisfaction under section 13 (2) (c) of the Wills, Probate and Administration Act 1898, not void, the applicant for relief shall, unless the Court otherwise orders, pay the costs of and occasioned by the application and any order made on or in consequence of the application.rule 52.21D: Ins 25.8.1989. Am 25.8.1995.
21E Arbitration (Civil Actions) Act 1983 (cf P 72B)
(1) Where proceedings are heard and determined under section 18 (3) (b) of the Arbitration (Civil Actions) Act 1983 (the subject Act) and the determination of the Court is substantially more favourable to the applicant for the order for rehearing (the applicant) than is the determination of the arbitrator, the Court may order that the fee paid by the applicant for filing the application be refunded to the applicant wholly or to the extent specified by the Court.(2) Where a party is required to pay the costs of another party in respect of a rehearing under section 18 (3) (b) of the subject Act, those costs shall not include the fee paid for filing the application for the order for the rehearing unless the Court so directs.(3) The Court shall not give a direction under subrule (2) unless it is of opinion that the party ordered to pay the costs unreasonably caused the making of the application for the order for the rehearing.(4) Subject to subrule (5), where proceedings are heard and determined under section 18 (3) (b) of the subject Act, and the determination of the Court is not substantially more favourable to the applicant than is the determination of the arbitrator, the Court:(a) shall not make any order for the payment by any other party of the applicant’s costs incurred by reason of the rehearing, and(b) shall order the applicant to pay the costs of every other party incurred by reason of the rehearing.(5) The Court may in respect of a rehearing certify that the special circumstances of the case require the Court:(a) to make an order referred to in subrule (4) (a), in which case the Court may make that order, or(b) to refrain from making an order referred to in subrule (4) (b), in which case the Court may refrain from making that order.(6) Where, by operation of section 18 (5) (a) or (b) of the subject Act, an order for rehearing of proceedings ceases to have effect, the applicant shall pay the costs of every other party incurred by reason of the order for rehearing, unless the Court otherwise orders.rule 52.21E: Ins 22.12.1989. Am 15.2.1991; 22.4.1994.
Division 3 Party and party basis
22 Application
cf RSC (Rev) 1965, O 62, r 28 (1).
This Division applies to costs which by or under any Act or the rules or any order of the Court are to be paid to a party to any proceedings either by another party to the proceedings or out of a fund.
23 Party and party basis
(1) Costs shall be taxed on a party and party basis unless the costs are to be taxed on the indemnity basis pursuant to rule 28A, the common fund basis pursuant to rule 30 or on the trustee basis pursuant to rule 31.cf RSC (Rev) 1965, O 62, r 28 (2).(2) On a taxation on a party and party basis there shall be allowed all such costs as were necessary or proper for the attainment of justice or for enforcing or defending the rights of the party whose costs are being taxed.cf Costs Rules, r 23; RSC (Rev) 1965, O 62, r 28 (2).(3) On a taxation on a party and party basis, the costs of briefing more than one counsel may be allowed notwithstanding that none is one of Her Majesty’s counsel.cf Costs Rules, r 30.(4) Subject to subrule (2), on taxation on a party and party basis, a retaining fee to more than one counsel shall not be allowed.cf Costs Rules, r 32.rule 52.23: Am 23.6.1989.
24 Claims for money
(1) This rule:(a) applies to proceedings in the Common Law Division or the Commercial Division on a claim for debt, damages or other money,(b) (Repealed)(c) does not apply:(i) where the claim is not only for debt, damages or other money but also for possession of land or delivery of goods,(ii) where the proceedings can be brought only in the Court,(iii) (Repealed)(iv) to proceedings remitted, removed or otherwise transferred to or into the Court.(v) (Repealed)cf 7 & 8 Eliz 2, c 22, s 47 (1).(2) Where:(a) in proceedings commenced on or before 28 September 1973, a plaintiff recovers a sum not more than $300,(b) in proceedings commenced after 28 September 1973 but on or before 31 October 1980, a plaintiff recovers a sum not more than $1,000,(c) in proceedings commenced after 31 October 1980, but on or before 31 March 1983, a plaintiff recovers a sum not more than $3,000,(d) in proceedings commenced after 31 March 1983, but on or before 30 June 1993, a plaintiff recovers a sum not more than $10,000, orhe shall not be entitled to payment of his costs of the proceedings unless, it appearing to the Court that he had sufficient reason for commencing or continuing proceedings in the Court, the Court makes an order for payment.(e) in proceedings commenced after 30 June 1993, a plaintiff recovers a sum not more than $75,000,cf Act No 21, 1899, s 267.(2A) Without limiting the generality of subrule (2), it shall be taken to be a sufficient reason if the plaintiff had reasonable grounds at the relevant time for expecting that he would recover an amount in excess of the amount prescribed by that subrule.(3) Subject to subrule (4), where, by or under the rules or any order of the Court, the plaintiff is entitled to his costs of any proceedings to which this rule applies, the amount of costs payable to him shall:(a) in respect of proceedings commenced on or before 28 September 1973:(i) where he recovers a sum more than $300 but not more than $1,000, be only one third of the amount (the whole amount) which would be payable to him apart from this subrule,(ii) where he recovers a sum more than $1,000 but not more than $2,000, be only two thirds of the whole amount,(b) in respect of proceedings commenced after 28 September 1973 and on or before 31 October 1980:(i) where he recovers a sum more than $1,000 but not more than $3,000, be only a quarter of the whole amount,(ii) where he recovers a sum more than $3,000 but not more than $5,000, be only a half of the whole amount,(iii) where he recovers a sum, in respect of damages for personal injuries, more than $5,000 but not more than $7,500, be only three quarters of the whole amount,(c) in respect of proceedings commenced after 31 October 1980, but on or before 31 March 1983:(i) where he recovers a sum more than $3,000 but not more than $6,000, be only a half of the whole amount,(ii) where he recovers a sum, in respect of damages for personal injuries, more than $6,000 but not more than $7,500, be only three-quarters of the whole amount,(d) in respect of proceedings commenced after 31 March 1983, but on or before 30 June 1993, where he recovers a sum more than $10,000 but not more than $50,000, be only a half of the whole amount, and(e) in respect of proceedings commenced after 30 June 1993, where he recovers a sum more than $75,000 but not more than $150,000, be only a half of the whole amount.cf Costs Rules, r 6.(4) In a case to which subrule (3) applies, if it appears to the Court that the plaintiff had sufficient reason for commencing or continuing proceedings in the Court, the Court may order that the amount of costs payable to the plaintiff be some greater part or the whole of the amount which would be payable to him apart from that subrule.cf Costs Rules, r 6.(4A) Without limiting the generality of subrule (4), it shall be taken to be a sufficient reason if the plaintiff had reasonable grounds at the relevant time for expecting that he would recover an amount in excess of the amount prescribed by that subrule.(5) Where:(a) in proceedings commenced on or before 28 September 1973, the plaintiff recovers a sum not more than $2,000,(b) in proceedings commenced after 28 September 1973, but on or before 31 March 1983, the plaintiff recovers a sum not more than $7,500,(c) in proceedings commenced after 31 March 1983, but on or before 30 June 1993, the plaintiff recovers a sum not more than $50,000, orand, by or under the rules or any order of the Court, the plaintiff is entitled to his costs of the proceedings, the costs of briefing more than one counsel for the plaintiff shall not be allowed unless the Court or the taxing officer otherwise orders.(d) in proceedings commenced after 30 June 1993, the plaintiff recovers a sum not more than $150,000,cf Costs Rules, r 31.(6) Where:(a) before 1 May 1973 or, unless the claim is for unliquidated damages, on or before 28 September 1973, the plaintiff claimed a sum not more than $2,000,(b) unless the claim is for unliquidated damages, after 28 September 1973, but on or before 31 March 1983, the plaintiff claims a sum not more than $7,500,(c) after 31 March 1983, but on or before 30 June 1993, the plaintiff claims a sum not more than $50,000, orand the Court makes an order for the payment of the defendant’s costs of the proceedings, the costs of briefing more than one counsel for the defendant shall not be allowed unless the Court or the taxing officer otherwise orders.(d) after 30 June 1993, the plaintiff claims a sum not more than $150,000,(7) For the purposes of this rule, a plaintiff shall be treated as recovering the full amount recoverable in respect of his claim without regard to any deduction made in respect of contributory negligence on his part or in respect of any cross-claim by a defendant or otherwise in respect of matters not falling to be taken into account in determining whether the action should have been commenced in the Supreme Court.cf 7 & 8 Eliz 2, c 22, s 47 (1).(8), (9) (Repealed)rule 52.24: Subst 28.9.1973. Am 29.3.1974; 27.5.1977; 24.10.1980; 24.12.1982; 31.8.1984; 24.4.1986; 4.9.1987; 23.6.1989; 20.4.1990; 16.11.1990; 26.2.1993; 21.5.1993; 6.8.1993.
Where the plaintiff commences proceedings in the Court for an order or relief under the De Facto Relationships Act 1984 and the Court:(a) in relation to property, declares a right or adjusts an interest, orof a value or amount which does not exceed the amount prescribed at the time of commencement of the proceedings by section 12 of the Local Courts (Civil Claims) Act 1970:(b) makes an order for maintenance,(c) the plaintiff shall not be entitled to payment of his costs of the proceedings unless the Court otherwise orders, and(d) where the Court makes an order for the payment of the defendant’s costs of the proceedings and the costs are taxed on a party and party basis or an indemnity basis under rule 17 (4), the costs of briefing more than one counsel for the defendant shall not be allowed unless the Court or the taxing officer otherwise orders.rules 52.24A, 52.24B: Ins 20.4.1990.
24B Orders for non-application of rules 24 and 24A
(1) The Court may, on the application of any person, order that rule 24 (2), (3), (5) and (6) or rule 24A shall not apply in respect of proceedings to be commenced or commenced in the Court.(2) Where an order is made under subrule (1) in respect of proceedings to be commenced, the originating process by which the proceedings are later commenced shall bear a note of the order made.rules 52.24A, 52.24B: Ins 20.4.1990.
25 Refreshers
(1) Where counsel is briefed to appear on a trial or hearing, and the trial or hearing occupies more than 5 hours, and costs are taxed on a party and party basis, the taxing officer may allow refresher fees in such amount as he thinks fit for every 5 hours occupied by the trial or hearing after the first 5 hours and for the remaining duration of the trial or hearing.cf Costs Rules, r 34.(2) The taxing officer may allow refreshers under subrule (1) whether or not witnesses are examined at the trial or hearing.cf Costs Rules, r 34.
26 Absence of counsel
(1) Where counsel is briefed to appear on a trial or hearing, and costs are taxed on a party and party basis, counsel’s fee on the brief shall not be allowed unless:(a) he is present at the trial or hearing for a substantial part of the relevant period,(b) he gives substantial assistance during the relevant period in the conduct of the proceedings, or(c) the Court otherwise orders.(2) In subrule (1) relevant period means the period of the trial or hearing or, if the trial or hearing lasts more than 5 hours, the first 5 hours.cf Costs Rules, r 35.(3) Where counsel is briefed to appear on a trial or hearing, a refresher fee to him shall not be allowed to him for any period unless:(a) he is present at the trial or hearing for a substantial part of that period,(b) he gives substantial assistance during that period in the conduct of the proceedings, or(c) the Court otherwise orders.cf Costs Rules, r 35.
27 Five hour periods
cf Costs Rules, r 34.
In reckoning the 5 hour periods mentioned in rules 25 and 26, the mid-day adjournment and any other adjournment shall not be included unless the Court or the taxing officer otherwise orders.
28 Counsel before registrar etc
cf Costs Rules, r 23 (f).
(1) On a taxation on a party and party basis, costs in respect of counsel attending before a registrar or taxing or other officer shall not be allowed unless the registrar or other officer certifies the attendance to be proper or the Court otherwise orders.cf Prothonotary (Chamber Work) Rules, r 4; RSC (Rev) 1965, O 62, App 2, Pt X, 2 (3).(2) Subrule (1) does not apply to costs in respect of counsel attending before a master.(3) In respect of proceedings before a registrar or other officer in the Probate Division, the Family Law Division, the Administrative Law Division or the Commercial Division, subrule (1) shall apply in respect of Her Majesty’s Counsel but, in respect of other counsel, such costs as the taxing officer thinks fit shall be allowed, unless the registrar or officer before whom the proceedings were held otherwise directs or the Court otherwise orders.rule 52.28: Am 20.10.1972; 1.6.1973; 29.4.1977; 24.4.1986.
28A Indemnity basis
cf RSC (Rev) 1965, O 62, r 12 (2).
On a taxation on the indemnity basis, all costs shall be allowed except in so far as they are of an unreasonable amount or have been unreasonably incurred and any doubts which the taxing officer may have as to whether the costs were reasonably incurred or were reasonable in amount shall be resolved in favour of the receiving party.rule 52.28A: Ins 23.6.1989.
Division 4 Common fund and trustee bases
29 Application
cf RSC (Rev) 1965, O 62, r 28 (1).
This Division applies to costs which by or under the rules or any order of the Court are to be paid to a party to any proceedings either by another party to the proceedings or out of a fund.
30 Common fund basis
(1) The Court may order that costs be taxed on the common fund basis.cf RSC (Rev) 1965, O 62, r 28 (3).(2) The common fund basis is a more generous basis than the party and party basis.cf RSC (Rev) 1965, O 62, r 28 (4).(3) On a taxation on the common fund basis:(a) there shall be allowed a reasonable amount in respect of all costs reasonably incurred; and accordingly:(b) the ordinary rules applied on a taxation as between solicitor and client where the costs are to be paid out of a common fund in which the client and others are interested shall be applied, whether or not the costs are in fact to be so paid.cf RSC (Rev) 1965, O 62, r 28 (4).
31 Trustee basis
(1) Where a person who is or has been a party to proceedings in the capacity of trustee is entitled to be paid costs out of any fund which he holds in that capacity, the costs shall be taxed on the trustee basis.cf RSC (Rev) 1965, O 62, r 31 (1).(2) Where the Court makes an order for the payment to a person of costs out of a fund, the Court may order that the costs be taxed on the trustee basis and as if he were a trustee of the fund.cf RSC (Rev) 1965, O 62, r 28 (5) (a).(3) Where the Court makes an order for the payment to a person of costs and he is or was a party to the proceedings in the capacity of trustee, the Court may order that the costs be taxed on the trustee basis and as if the costs were to be paid out of a fund held by him.cf RSC (Rev) 1965, O 62, r 28 (5) (a).(4) On a taxation on the trustee basis, no costs shall be disallowed, except in so far as those costs or any part of their amount should not, in accordance with the duty of the trustee as trustee, have been incurred or paid, and should for that reason be borne by him personally.cf RSC (Rev) 1965, O 62, r 31 (2).
Division 5 Solicitor and client basis
32 Application
(1) Subject to subrule (2), this Division applies to any taxation under Part 11 Division 5 of the Legal Profession Act 1987.cf RSC (Rev) 1965, O 62, r 29 (1).(2) This Division applies to the taxation of a bill for non-contentious business but applies subject to any determination made by the Legal Fees and Costs Board under section 179 of the Legal Profession Act 1987.rule 52.32: Am 22.9.1989; 26.2.1993.
33 Solicitor and client basis
(1) All costs shall be allowed except as mentioned in the following subrules.cf RSC (Rev) 1965, O 62, r 29 (1).(2) Costs shall not be allowed in so far as they are of any unreasonable amount, unless the amount has been approved by the client.cf RSC (Rev) 1965, O 62, r 29 (1), (2).(3) Costs shall not be allowed in so far as they are unreasonably incurred, unless incurred with the approval of the client.cf RSC (Rev) 1965, O 62, r 29 (1), (2).(4) Notwithstanding subrules (2) and (3), where costs are incurred which in the circumstances of the case are of an unusual nature and such that they would not be allowed on a taxation of costs on a party and party basis pursuant to rule 23, the costs shall not be allowed, unless it is shown:(a) that the costs were reasonably incurred, or(b) that before the costs were incurred the solicitor expressly warned the client that the costs might not be allowed on a taxation of costs on a party and party basis.cf Costs Rules, r 25; RSC (Rev) 1965, O 62, r 29 (3).(5) An approval for the purposes of this rule may be express or implied.cf RSC (Rev) 1965, O 62, r 29 (2).(6) Where the client is a disable person, references to the client in subrules (2), (3) and (4), shall be read as references to his tutor.cf RSC (Rev) 1965, O 62, r 29 (4).
Division 6 Taxing officers
34 Taxing officer
cf Costs Rules, r 11.
(1) A registrar is a taxing officer.(2) The Chief Justice may appoint as many officers of the Court (other than registrars) as he thinks fit to be taxing officers.rule 52.34: Subst 23.5.1980; 22.4.1983.
35 (Repealed)
rule 52.35: Rep 23.5.1980.
36 Assistance
cf Costs Rules, r 12; RSC (Rev) 1965, O 62, r 15 (2).
The taxing officers shall be assistant to each other.
37 General powers
cf Costs Rules, rr 13, 17 pro. (b); RSC (Rev) 1965, O 62, rr 14, 26 (2).
A taxing officer may, in the discharge of his functions with respect to the taxation of costs or any other functions under this Part:(a) dispense with the filing or service of notice of a motion to proceed with taxation,(b) require any party represented jointly with any other party in any proceedings before him to be separately represented,(c) take evidence by the examination of witnesses or otherwise,(d) direct the production of any document,(e) adjourn any proceedings before him, and(f) do such other things as the Court may by order direct.
38 Time
cf RSC (Rev) 1965, O 62, r 16.
A taxing officer may exercise the powers of the Court to extend times under Part 2 rule 3 and to fix times under Part 2 rule 4, in relation to the commencement of a taxation and in relation to the doing of any thing in or in connection with proceedings before him.
39 Absence of party
cf RSC (Rev) 1965, O 26, r 1.
Where a party entitled to attend any matter before a taxing officer has had due notice of the time appointed for the matter, or where notice to a party has been dispensed with under rule 37, the taxing officer may proceed in his absence.
40 Costs of proceedings before taxing officer
(1) Subject to subrule (2) and to Part 22 rule 11, costs to be taxed under the rules or an order shall, unless the rules or the order otherwise provide, include the costs of the taxation.(2) Where, under Part 22 rule 10, a successful costs offer has been made for the purposes of this rule in respect of costs the subject of a taxation, the taxing officer may award the costs, or any part of the costs, of the taxation to the defendant.(2A) Where:(a) rule 50A applies to the application to proceed with a taxation, andany prescribed fee payable in respect of a taxation shall not be allowed unless the Court or the taxing officer otherwise orders.(b) the sum of the amount taxed off exceeds one quarter of the amount the subject of the taxation,(2B) For the purposes of subrule (2A), the costs of the taxation incurred after service of the bill and the amount claimed in respect of an item solely for skill, care and responsibility shall not be taken into account in calculating the sum referred to in subrule (2A) (b) or the amount the subject of the taxation.(3) Subject to subrules (1), (2), (2A) and (4) and subject to any order of the Court, a taxing officer may make orders as to the costs of or incidental to any proceedings before him and shall include in his certificate the amount of those costs and a statement of the persons to whom and by whom those costs are to be paid or the fund out of which those costs are to be paid.(3A) (Repealed)(4) Subrules (1) and (3) apply subject to any Act and subject to rule 56 (2).rule 52.40: Am 23.6.1989; 2.10.1992; 23.4.1993; 10.12.1993 (see errata 24.12.1993).
41 Motion before taxing officer
On a motion before a taxing officer, the powers of the Court under Part 19 (which relates to motions) shall be exercisable by the taxing officer.rule 52.41: Am 2.6.1972; 23.12.1977; 30.3.1979.
Division 7 Taxation
42 Order subject to appeal etc
cf Costs Rules, r 18.
Where an order is made for the payment of costs, and the costs are to be taxed, or a bill is referred for taxation, the costs may, unless the Court otherwise orders, be taxed, notwithstanding that the order for payment of costs or order of reference is liable to be set aside, varied or discharged on appeal or otherwise.
43 Party costs
(1) This rule applies to costs of or incidental to proceedings in the Court, including:(a) in the case of an appeal to the Court, the costs of or incidental to the proceedings giving rise to the appeal, andbut does not apply to the taxation of costs for any business done by a solicitor being a taxation under Part 11 Division 5 of the Legal Profession Act 1987.(b) in the case of proceedings transferred to or removed into the Court, the costs of or incidental to the whole proceedings, both before and after removal,(2) Where, in any proceedings, by or under:(a) these rules, orcosts are to be taxed and are to be paid to any party either by another party to the proceedings or out of a fund, an application to proceed with the taxation shall be made to a taxing officer by motion in the proceedings by the party to whom the costs are payable.(b) an order of the Court,(3) (Repealed)rule 52.43: Am 22.9.1989; 2.10.1992.
44 Costs in account
(1) Where the Court orders that an account be taken and the account consists in part of costs, the Court may, by the same or a later order, direct that those costs be taxed by a taxing officer.cf RSC (Rev) 1965, O 62, r 19 (1); Costs Rules, r 57.(2) Where, in any proceedings, the Court makes an order under subrule (1), an application to proceed with the taxation shall be made to a taxing officer by motion in the proceedings.cf RSC (Rev) 1965, O 62, r 19 (2); Costs Rules, r 57.
45 Proceedings for reference or order
(1) This rule applies to:(a) proceedings for reference by the Court of a bill of costs for taxation under section 199 (3) of the Legal Profession Act 1987, except an application to which rule 46 applies, and(b) proceedings for a reference by or order of the Court for taxation of costs under any Act or under the inherent jurisdiction of the Court, except the taxation of costs to which any of rules 43, 44, 46 and 47 applies.(2) Proceedings for the reference or order and incidental orders shall be commenced by summons.(3) Upon a reference or order for taxation being made in proceedings commenced pursuant to this rule, an application to proceed with the taxation shall be made to a taxing officer by motion in the proceedings.rules 52.45, 52.46: Am 22.9.1989.
46 Reference in proceedings for recovery
(1) Where proceedings have been commenced in the Court for the recovery of costs for business done by a solicitor, an application by a party to the proceedings for reference by the Court of a bill of those costs for taxation under section 199 (3) of the Legal Profession Act 1987 and incidental orders shall be made by motion in the proceedings.(2) Upon a reference for taxation being made on motion under subrule (1), an application to proceed with the taxation shall be made to a taxing officer by motion in the proceedings.rules 52.45, 52.46: Am 22.9.1989.
47 Arbitrator’s fee and expenses
Upon an order for taxation being made under section 35 (1) (b) of the Commercial Arbitration Act 1984 (which section relates to an arbitrator’s fees, etc), an application:(a) to proceed with the taxation, or(b) for taxation under section 35 (2) of that Act, shall be made to a taxing officer by motion in the proceedings in which the order is made.rule 52.47: Subst 3.5.1974; 26.4.1985.
(1) An application for an order under section 17 of the Drug Trafficking (Civil Proceedings) Act 1990 may be made by motion in the proceedings for the restraining order.(2) Upon an order being made under section 17 of that Act, an application to proceed with the taxation shall be made to a taxing officer by motion in the proceedings.rule 52.47A: Ins 20.7.1990.
48 Proceedings for taxation without order or reference
cf Costs Rules, r 10.
(1) This rule applies to:(a) proceedings for taxation of costs pursuant to section 199 of the Legal Profession Act 1987,(b) (Repealed)(c) proceedings for taxation of costs under any other Act under which costs may be taxed in the Court without an order of or reference by the Court for taxation, except the taxation of costs to which rule 43 applies,(d) an application for taxation:(i) of costs under section 34 (2) of the Commercial Arbitration Act 1984, and(ii) of fees or expenses under section 35 (2) of that Act, otherwise than upon an order mentioned in rule 47.(2) Proceedings for the taxation shall be commenced by summons under Part 5 rule 3.(3) In proceedings commenced under this rule, the powers of the Court under Part 5 (which relates to proceedings by summons), except the powers conferred by rules 8, 9, 11 and 12 of Part 5, shall be exercisable by the taxing officer.(4) The taxation shall, unless the taxing officer proceeds under rule 50B (1) (b) or otherwise orders, commence on the date appointed for the hearing of the summons.(5) Where a person is entitled to be paid costs and is entitled to commence proceedings for taxation under this rule, but does not commence proceedings within two months after service on him of a request in writing to do so by a person liable for the costs, the person entitled may nevertheless commence the proceedings, but shall not serve the summons on the person giving the notice, except with the leave of a taxing officer.rule 52.48: Am 3.5.1974; 30.3.1979; 24.2.1984; 26.4.1985; 22.9.1989; 13.6.2003.
49 Bill
(1) A bill shall contain:(a) in short items, a chronological description of the work done by the solicitor, his servants and agents,(b) beside each item, the costs claimed for the work described in the item,(c) where an amount is claimed for skill, care and responsibility, in short paragraphs, a description (having regard to the matters mentioned in rule 67 (3) and to the provisions of any applicable determination made under section 179 or section 180 of the Legal Profession Act 1987) of work done justifying the allowance of the amount, and(d) disbursements made, andin or to the effect of Form 62AAA.(e) where the amount to be paid, in respect of the costs the subject of the bill, is reduced by rule 24 (3) or by an order under rule 6 (2) (a) or by an order under rule 24 (4)—a statement at the end of the bill, which identifies the rule or order and includes a calculation giving effect to it,(1A) Where rule 50A applies to the application to proceed with taxation of a bill, no costs of the taxation, which would be incurred only if a notice of objection is filed, shall be shown in the bill.(1B) A bill shall bear a note on the first page which:(a) identifies the provision of rule 9 which applies to allow taxation of the bill without any order directing taxation, and(b) where the bill is to be taxed by or under an order of the Court, states the date of the order.(2) Where it is a clerk who does any work included in a bill and that fact is relevant to the amount of costs allowable for the work, the name and position of the clerk shall be stated in the bill.cf Costs Rules, r 8.(3) Where a liability to make a disbursement has been incurred or a fee to counsel has been incurred and the disbursement or fee would be properly included in a bill if paid:(a) the disbursement or fee may be included in the bill notwithstanding that it has not been paid,(b) the bill shall state that the disbursement or fee has not been paid, and(c) subject to subrule (3A), on taxation, the disbursement or fee shall not be allowed unless paid before the taxation is completed.cf 5 & 6 Eliz 2, c 27, s 66; Costs Rules, rr 38, 39.(3A) Subrule (3) (c) shall not apply where, before a certificate of taxation is made, the solicitor signs an undertaking in Form 62A.(3B) A signatory mentioned in Part 66 rule 9 (1) (e) (which relates to a clerk of a solicitor) may not sign an undertaking mentioned in subrule (3A).(4) Where a bill includes charges for work done by a lawyer practising in a place outside the State:(a) the charges shall be shown as a disbursement, and(b) so far as practicable, the charge shall, if allowed, be allowed in an amount appropriate to the place where he practises.cf Costs Rules, r 9.(5) The Court or a taxing officer may give leave, on terms, for the amendment of a bill.(6) Where the parties agree in writing that part of the costs to be taxed may be allowed at a specified amount and the agreement, unless it is subscribed to the bill, is filed:(a) subrules (1) and (2) shall not apply to what is agreed unless the Court or the taxing officer so directs, and(b) subrules (3) (a) and (b), subrule (4) and, subject to subrule (3A), subrule (3) (c) apply to the agreement as they apply to a bill.rule 52.49: Am 2.6.1972; 7.7.1972; 30.3.1979; 19.8.1983; 9.12.1983; 20.4.1990; 2.10.1992; 26.2.1993; 23.4.1993.
50 Filing and service
(1) A party may move to proceed with taxation of a bill by filing the bill, or, if the bill has previously been filed in the proceedings, by requesting the taxing officer to proceed with the taxation, in either case, without filing or serving notice of the motion.cf Costs Rules, rr 15, 17.(2) A party commencing proceedings for taxation pursuant to rule 48 (which relates to proceedings for taxation without an order or reference) shall, on the date of filing his summons, file the bill.(3) A party moving under subrule (1) shall, on so moving, lodge such documents in his custody as will be required for the purpose of evidence on the taxation.(4) This rule applies unless the Court otherwise orders.(5)–(9) (Repealed)rule 52.50: Subst 30.3.1979. Am 23.5.1980; 23.12.1983; 2.10.1992.
50A Party and party taxation: notice to file objections
(1) This rule applies to an application to which rule 43 applies but does not apply where:(a) a person liable to pay the costs the subject of the application is a disable person, or(b) the costs the subject of the application are to be paid out of a fund.(2) An application to which this rule applies shall be made in accordance with this rule and not otherwise, unless the Court or a taxing officer otherwise orders.(3) A party wishing to proceed with the taxation of a bill (in this rule called the applicant) shall serve the bill on each other party interested in the taxation (in this rule called an interested party) and any party who does not have an address for service shall be served personally.(4) A notice in Form 62AC to serve objections shall be attached to or subscribed to the bill.(5) An interested party may, within the time limited by the notice to serve objections, serve a notice of objection in Form 62AD upon the applicant.(6) Where the time limited for serving a notice of objection has expired and none of the interested parties has served a notice of objection on the applicant, the applicant may:(a) file an affidavit which:(i) verifies service of the bill,(ii) states that the time limited for serving a notice of objection has expired,(iii) states that a notice of objection has not been served within that time by an interested party on the applicant, and(iv) states that:(A) rule 49 (1) (e) has been complied with, or(B) rule 49 (1) (e) does not apply to the costs the subject of the bill, and(b) lodge with the registrar a draft certificate of taxation for filing together with any additional copies required by the applicant.(7) Where:(a) the affidavit referred to in subrule (6) has been filed, andan officer of the Court shall make a certificate in the amount of the costs claimed in the bill in Form 62AE.(b) a draft certificate of taxation has been lodged with the registrar,(8) Where, within the time limited for serving a notice of objection, an interested party serves a notice of objection on the applicant:(a) if any interested party has not within that time served a notice of objection on the applicant, the applicant may file an affidavit which:(i) verifies service of the bill,(ii) states that the time limited for serving a notice of objection has expired, and(iii) states that no notice of objection, other than the notice or notices of objection a copy of which is annexed to the affidavit, has been served within that time by an interested party on the applicant, and(b) the applicant may:(i) complete the notice of objection in accordance with the requirements of Form 62AD,(ii) file the completed notice of objection,(iii) where every interested party has served a notice of objection on the applicant, file the bill,(iv) not later than 7 days after filing the completed notice of objection, serve it on each interested party, and(v) file an affidavit of service of the completed notice of objection.(9) Where, within the time limited for serving a notice of objection, an interested party serves a notice of objection on the applicant:(a) if subrule (8) (a) applies, the affidavit referred to in that subrule has been filed,(b) the completed notice of objection has been filed,(c) if rule (8) (b) (iii) applies, the bill has been filed, andthe taxing officer shall:(d) the affidavit referred to in subrule (8) (b) (v) has been filed,(e) amend the bill in accordance with concessions marked on the notice of objection,(f) tax any items to which objection is taken in the notice of objection and which are not marked on the notice of objection as fully conceded, and(g) allow the items which are not taxed.(10) Where an affidavit of service of a bill of costs is filed under this rule, the rules, other than this rule, shall apply as if the bill were also filed at the time of filing the affidavit.rule 52.50A: Ins 23.12.1983. Am 4.9.1987. Subst 15.3.1991; 2.10.1992.
50B Taxation generally
(1) Where a request is made under rule 50 (1) or a bill is filed, a taxing officer may, except where rule 50A (7) applies, either:(a) give the party who filed the bill an appointment for hearing of the motion or summons before him, or(b)(i) note on the bill what he proposes to allow and to disallow,(iA) where rule 49 (1) (e) applies:(A) if the rule has not been complied with, ornote on the bill a statement required by that rule,(B) the statement made under the rule will cease to be correct if the proposals are carried out,(ii) serve on the party who filed the bill and on each other party the bill, so noted, with a notice attached to or endorsed on the bill stating that the taxing officer will make decisions in accordance with the proposals and conclude the taxation if the party does not, within 14 days after service of the notice upon the party, file a notice in the prescribed form requesting an appointment for hearing before a taxing officer and stating the items or other matter with which the party disagrees,(iii) where none of the parties served files, within the time limited in the notice under sub-paragraph (ii), a notice requesting an appointment for hearing, make his decision in accordance with his proposals, note the date of his decision and conclude the taxation without appointing a date for hearing.(2) Where the taxing officer gives an appointment for hearing before him under subrule (1) (a) or pursuant to a request under subrule (1) (b) (ii), the party who filed the bill shall, on the day on which he obtains the appointment, serve a notice of appointment for hearing and, subject to subrule (3), the bill, on each other party.(3) A bill need not be served under subrule (2) on a solicitor whose bill it is or on a party served under subrule (1) (b) (ii).(4) In this rule, the expression each other party means each party (if any) interested in the taxation who has an address for service in the proceedings, other than the party who filed the bill.(5) This rule applies unless the Court otherwise orders.(6) Part 2 rule 3 (3) (which relates to extending time by consent) shall not apply to the time fixed by subrule (1) (b) (ii) except with the consent of a taxing officer.rule 52.50B: Ins 23.12.1983. Am 2.10.1992.
51 Attendance of parties
(1) The taxing officer may:(a) arrange and direct what parties should attend before him on any taxation, and(b) disallow the costs of attendance of any party whose attendance he considers unnecessary.cf Costs Rules, r 14.(2) Notwithstanding subrule (1), any party interested may attend any taxation appointed for hearing before a taxing officer.rule 52.51: Am 30.3.1979.
52 Notice of adjournment
cf Costs Rules, r 19.
Where a taxing officer adjourns a taxation, he may order any party attending before him to serve notice of the adjournment on any absent party.
53 Costs out of a fund: notice to persons interested
(1) Where costs are payable out of a fund, a taxing officer taxing a bill of the costs may:(a) adjourn the taxation to a specified date, and(b) order the solicitor whose bill it is or the party to whom the costs are payable to send to any person interested in the fund, free of charge to that person, a copy of the whole or any part of the bill and a letter in accordance with subrule (2).cf Costs Rules, r 22; RSC (Rev) 1965, O 62, r 27 (2).(2) A letter ordered to be sent under subrule (1) shall state:(a) that the costs are payable out of the fund (identifying it) and that the bill is being taxed,(b) the name and address of the taxing officer,(c) the adjourned date for further proceedings with the taxation, and(d) such other information as the taxing officer may direct.cf Costs Rules, r 22; RSC (Rev) 1965, O 62, r 27 (2).
54 Reference to Court
cf Costs Rules, r 20A.
A taxing officer may, of his own motion, refer any question arising in a taxation for the direction of the Court.
54A Interest on costs
Where the Court makes an order for the payment of the costs of a party and his costs are taxed, the taxing officer may exercise the powers of the Court under section 95 (1) of the Act to make orders for interest to be payable:(a) at the rate prescribed by Part 40 rule 7 (2) or ordered, otherwise than by the taxing officer, under section 95 (1) of the Act,(b) on any amount paid before the conclusion of the taxation by the successful party to his solicitor for or on account of the costs to be payable,(c) as of the date on which the amount was paid.rule 52.54A: Ins 9.12.1983.
55 Default of party entitled
(1) Where a party is entitled to costs and is entitled to move to proceed with taxation under this Part, but does not within a reasonable time after service on him of a request in writing by any other party, comply with rule 50 (1) (which relates to filing a bill or a request to proceed), a taxing officer may fix a time for compliance.cf Costs Rules, r 10; cf RSC (Rev) 1965, O 62, r 7 (4), (5).(2) Where a party entitled to costs fails to comply with rule 50 (2) or rule 50B (2), a taxing officer may fix a time for compliance.(3) Where a party entitled to costs fails to comply with rule 50 (1) or (2) or rule 50B (2) within a time fixed under this rule, a taxing officer may certify the failure and may disallow the costs of the party entitled or allow them at such amount as he thinks fit.(4) Where a party entitled to costs defaults by failing to proceed with taxation, the taxing officer may, for the purpose of preventing any other party being adversely affected by the default, certify the default and may:(a) disallow the costs of the defaulting party or allow them at such amount as he thinks fit, and(b) certify the costs of the other parties.cf RSC (Rev) 1965, O 62, r 7 (5).rule 52.55: Am 30.3.1979; 24.2.1984.
56 Disallowance of fees for taxation
(1) Where a solicitor:(a) fails to file a bill for taxation within the time fixed by or under this Part, orthe solicitor shall not, unless the taxing officer otherwise orders, be allowed the fees to which, apart from this subrule, the solicitor would be entitled for drawing and copying the bill of costs and for attending the taxation.(b) otherwise delays or impedes the taxation,cf RSC (Rev) 1965, O 62, r 8 (6).(2) If, on the taxation of costs to be paid out of a fund, one-sixth or more of the amount of the bill for these costs is taxed off, the solicitor whose bill it is shall not, unless the taxing officer otherwise orders, be allowed the fees to which, apart from this subrule, the solicitor would be entitled for drawing and copying the bill and for attending the taxation.cf RSC (Rev) 1965, O 62, r 8 (7).rule 52.56: Am 20.9.1991.
57 Liability of solicitor
cf RSC (Rev) 1965, O 62, r 8 (6).
Where, in any proceedings before a taxing officer, a solicitor for any party:(a) is guilty of neglect or delay, orthe taxing officer may order the solicitor to pay costs to any party.(b) puts any other party to unnecessary expense,
58 Cross costs
(1) Where a party entitled to be paid costs is also liable to pay costs, the taxing officer may:(a) tax the costs which that party is liable to pay and set off the amount allowed against the amount he is entitled to be paid and certify the amount of the balance and the parties by and to whom the balance is payable, or(b) withhold his certificate for the costs which that party is entitled to be paid until that party has paid or tendered the amount he is liable to pay.cf RSC (Rev) 1965, O 62, r 18.(2) Costs in any proceedings may be set off under subrule (1) (a) notwithstanding that a solicitor for a party to the proceedings has a lien for costs in the proceedings.cf Costs Rules, r 46.
59 Certificate
(1) A taxing officer may make separate and interim certificates.cf Costs Rules, r 13; RSC (Rev) 1965, O 62, r 17 (1).(2) Where, in the course of the taxation of a solicitor’s bill to the solicitor’s own client, it appears to the taxing officer that in any event the solicitor will be liable in connection with the bill to pay money to the client, he may make an interim certificate specifying an amount which in his opinion is payable by the solicitor to the client.cf RSC (Rev) 1965, O 62, r 17 (2).(3) A taxing officer shall, after the conclusion of the taxation of any bill, upon payment of any prescribed fee in respect of a taxation, make a final certificate of:(a) his disallowance of the costs in the bill or of the amount at which he allows the costs, and(b) the amount to be paid after taking into account any reduction required by rule 24 (3) or by an order under rule 6 (2) (a) or by an order under rule 24 (4).(4) Where a taxing officer gives an appointment for a hearing under rule 50B (1) (a) or pursuant to a request under rule 50B (1) (b) (ii) and decides:(a) to allow or disallow, wholly or in part, any item in a bill,(b) to allow some amount in respect of any item, orhe shall not, except with the consent of the parties interested, make a certificate dealing finally with that item, until the expiry of 14 days after the date of the decision.(c) to make a note under rule 50B (1) (b) (iA),(5) A certificate made by a taxing officer in any proceedings shall, unless made on a filed bill, be filed in the proceedings.(6) On the making of a certificate made under subrule (2) the Court may order the amount specified in the certificate to be paid to the client or into Court.cf RSC (Rev) 1965, O 62, r 17 (3).(7) A taxing officer may make a separate or interim certificate in respect of any item in a bill notwithstanding an objection under rule 60 to his decision on any other item in the bill, or any reconsideration or review consequent on such an objection.cf RSC (Rev) 1965, O 62, r 33 (5).(8) The Court may set aside or vary a certificate made pursuant to rule 50A (7).(9) Subrule (8) shall not affect any other power of the Court to set aside or vary a certificate.(10) A taxing officer may postpone the making of a certificate of taxation until after all documents lodged for the purposes of the taxation by the party filing the bill have been uplifted.rule 52.59: Am 23.5.1980; 23.12.1983; 24.2.1984; 20.9.1991; 25.10.1991; 2.10.1992.
60 Objection
(1) Where a taxing officer gives an appointment for a hearing under rule 50B (1) (a) or pursuant to a request under rule 50B (1) (b) (ii) and decides:(a) to allow or disallow, wholly or in part, any item in a bill,(b) to allow some amount in respect of any item, ora party to the taxation proceedings who objects to the decision may apply to the taxing officer to reconsider the decision.(c) to make a statement under rule 50B (1) (b) (iA),cf RSC (Rev) 1965, O 62, r 33 (1).(2) An application under subrule (1) shall be made by motion to the taxing officer.(3) Notice of the motion shall be filed within 14 days after the date of the decision.cf RSC (Rev) 1965, O 62, r 33 (2).(4) The applicant shall file with or subscribe to the notice a statement of his objections.(5) A statement of objections shall specify by a list the items or other matter as to which the applicant objects to the decision of the taxing officer and must state briefly, but specifically, the nature and grounds of each objection.cf RSC (Rev) 1965, O 62, r 33 (3).(6) An applicant under subrule (1) shall, on the date of filing the notice of motion and statement of objections, serve the notice and statement on each party interested.cf RSC (Rev) 1965, O 62, r 33 (3).rule 52.60: Am 2.6.1972; 23.5.1980; 24.2.1984; 2.10.1992.
61 Reconsideration
(1) Upon motion made under rule 60, the taxing officer:(a) shall reconsider the decision to which objection is made and shall make his certificate in accordance with his decision on reconsideration, and(b) shall, upon request by any party, state, in his certificate or some other document, and by reference to the objections to his previous decision, his reasons for his decision on reconsideration.cf RSC (Rev) 1965, O 62, r 34 (1) (4).(2) On the reconsideration, a party shall not, unless the taxing officer otherwise directs, raise any ground of objection not stated in a statement of objection.(3) A request under subrule (1) (b) shall be made within 14 days after the date of the decision on reconsideration to which the request relates.cf RSC (Rev) 1965, O 62, r 34 (4).rule 52.61: Am 2.10.1992.
62 Review
(1) Where a taxing officer makes a certificate in accordance with his decision on reconsideration under rule 61 and pursuant to that rule a party requests the taxing officer to state his reasons for the decision, the Court shall, on motion by any party interested, review the decision of the taxing officer on reconsideration.cf RSC (Rev) 1965, O 62, r 35 (1).(2) Where, during the time within which a request may be made under rule 61, it becomes impracticable to make the request by reason of the death or incapacity of, or other matter personal to, the taxing officer, subrule (1) shall apply notwithstanding that a request under rule 61 has not been made.(3) Notice of motion shall be filed within 28 days after the certificate is made or within such extended time as the taxing officer or the Court may fix.(3A) The taxing officer may extend time under subrule (3) only within 28 days after the certificate is made or on a notice of motion filed within 28 days after the certificate is made.(3B) The Court may extend time under subrule (3) at any time.cf RSC (Rev) 1965, O 62, r 35 (2).(4) On the review, unless the Court by order otherwise directs:(a) further evidence shall not be received, and(b) a party shall not raise any ground of objection not either stated in a statement of objection or raised before the taxing officer.cf RSC (Rev) 1965, O 62, r 35 (4) (6).(5) Subject to subrule (4), on the review, the Court may:(a) exercise all the powers and discretions of the taxing officer in relation to the subject matter of the review,(b) make orders for the alteration of the certificate,(c) make orders for the remission of any item to the same or any other taxing officer for taxation, and(d) make such other orders as the nature of the case requires.rule 52.62: Am 23.9.1988; 2.10.1992.
63 Judgment
Where the amount of any costs has been certified under this Part, the Court may, on motion by a party, give such judgment for the costs as the nature of the case requires.rule 52.63: Am 30.3.1990.
Division 8 General
64 Costs of solicitor appointed as tutor
cf Costs Rules, r 47.
Where the Court appoints a solicitor to be tutor of a disable person who is a party to any proceedings, the Court may:(a) order that the costs to be incurred in performance of the duties of tutor be paid:(i) by the parties to the proceedings or any of them, or(ii) out of any fund in Court in which the disable person is interested, and(b) make orders for the repayment or allowance of the costs as the nature of the case may require.
65 Trustee or mortgagee
(1) Where a person is or has been a party to any proceedings in the capacity of trustee or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of the proceedings out of the fund held by the trustee or out of the mortgaged property, as the case may be, in so far as the costs are not paid by any other person.cf RSC (Rev) 1965, O 62, r 6 (2).(2) The Court may otherwise order pursuant to subrule (1) only where:(a) the trustee or mortgagee has acted unreasonably, or(b) in the case of a trustee, he has in substance acted for his own benefit rather than for the benefit of the fund.cf RSC (Rev) 1965, O 62, r 6 (2).
66 Liability of solicitor
(1) Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a solicitor is responsible (whether personally or through a servant or agent), the Court may, after giving the solicitor a reasonable opportunity to be heard:(a) disallow the costs as between the solicitor and the solicitor’s client,(b) direct the solicitor to repay to the client costs which the client has been ordered to pay to any other party, and(c) direct the solicitor to indemnify any party other than the client against costs payable by the party indemnified.(2) Without limiting the generality of subrule (1), a solicitor is responsible for default for the purposes of that subrule where any proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the solicitor:(a) to attend in person or by a proper representative,(b) to file any document which ought to have been filed,(c) to deliver any document which ought to have been delivered for the use of the Court,(d) to be prepared with any proper evidence or account, or(e) otherwise to proceed.(3) The Court may, before making an order under subrule (1), refer the matter to a taxing officer for enquiry and report.(4) The Court may order that notice of any proceedings or order against a solicitor under this rule shall be given to the solicitor’s client in such manner as may be specified in the order under this subrule.(5) This rule is in addition to and is intended to operate independently of the provisions of section 76C of the Act and does not apply in circumstances where section 76C of the Act applies.rule 52.66: Subst 16.8.1991. Am 20.9.1991.
66A Opportunity for solicitor to be heard
The Court shall, before making an order under section 76C of the Act in respect of a solicitor, give the solicitor a reasonable opportunity to be heard.rule 52.66A: Ins 16.8.1991.
67 Scale of costs
(1) Subject to this rule, the provisions of Schedule G or of any costs determination, as the case requires, shall apply to the taxation of costs incurred in relation to proceedings commenced in the Court after the commencement of these rules or in respect of business done in any proceedings in the Court after the Act applies to the proceedings.cf RSC (Rev) 1965, O 62, r 32; cf Costs Rules, r 4.(2) On a taxation:(a) to which Division 4 (Common fund and trustee bases) and Division 5 (Solicitor and client basis) applies, andcosts may, at the discretion of the taxing officer, be allowed:(b) in any other special case,(i), (ii) (Repealed)(c) in relation to items not mentioned in, or(d) of an amount higher than that prescribed by,Tables 1 and 2 of Schedule G or the equivalent part or parts of any costs determination, as the case requires.(3) Discretionary costs A taxing officer, when exercising his discretion under subrule (2), or in respect of any item marked “discretionary” in Schedule G or in any costs determination, as the case requires, shall have regard to:(a) the complexity of the item or of the proceedings in which it arose and the difficulty or novelty of the question involved,(b) the skill, specialised knowledge and responsibility required of and the time spent and work done by the solicitor or counsel,(c) the number and importance of the documents (however brief) prepared or perused,(d) the place and circumstances in which the business involved was transacted,(e) the importance of the proceedings to the client,(f) where money or property was involved, its amount or value,(g) any other fees and allowances payable to the solicitor or counsel in respect of other items in the same proceedings, but only where work done in relation to those items has reduced the work which would otherwise have been necessary in relation to the item in question.cf RSC (Rev) 1965, O 62, App 2, Part X, para 1.(4) (Repealed)(5) Costs shall, unless the Court otherwise orders, be allowed in the cases to which Table 2 of Schedule G or the equivalent part of any costs determination, as the case requires, applies in accordance with the provisions of that Table and not in accordance with Table 1 of Schedule G or the equivalent part of any costs determination, as the case requires.(6) Subrule (1) does not apply to proceedings under the Matrimonial Causes Act 1959.(7) Pending proceedings On a taxation of costs under the Costs Rules:(a) the professional charges set out in the Fourth Schedule to the Costs Rules, excluding items 82 to 88 inclusive (which Schedule relates to business done after 1 October 1961) shall:(i) in respect of business done after 8 February 1974 and on or before 1 August 1975—be increased by 138 per cent,(ii) in respect of business done after 1 August 1975 and on or before 23 September 1977—be increased by 214 per cent,(iii) in respect of business done after 23 September 1977 and on or before 31 October 1980—be increased by 267 per cent,(iv) in respect of business done after 31 October 1980 and on or before 16 April 1982—be increased by 355 per cent,(v) in respect of business done after 16 April 1982 and on or before 31 December 1983—be increased by 469 per cent, and(vi) in respect of business done after 31 December 1983—be increased by 590 per cent.(b) allowances to witnesses shall be made in accordance with Table 3 of Schedule G or the equivalent part of any costs determination, as the case requires, and not in accordance with items 91 to 94 inclusive of the Fourth Schedule to the Costs Rules,(c) allowances in respect of medical examinations and reports shall be made in accordance with Table 4 of Schedule G or the equivalent part of any costs determination, as the case requires, and not in accordance with item 96 of the Fourth Schedule of the Costs Rules.rule 52.67: Ins 7.7.1972. Am 11.8.1972; 22.8.1975; 23.9.1977; 24.10.1980; 16.4.1982; 23.12.1983; 26.2.1993.
68 Probate
(1) Table 5 of Schedule G or in any costs determination, as the case requires, shall apply to proceedings for probate or administration or for resealing of probate or letters of administration where no contention has arisen.cf Probate Rules, r 79 (3) to (10).(2) Unless under Table 5 of Schedule G, the value of the estate or unadministered assets exceeds $4,000, a solicitor may not, without the leave of the Court, file the solicitor’s bill for taxation.(3) If the amount allowed on a taxation to which subrule (2) applies, does not exceed the amount allowable applying Table 5 of Schedule G or the equivalent part of any costs determination, as the case requires, the solicitor whose bill it is shall not, unless the taxing officer otherwise orders, be allowed the costs to which, apart from this subrule, the solicitor would be entitled for drawing and copying the bill and for attending the taxation.(4) Subrule (3) does not affect the operation of subrule (2) of rule 56.(5) Where in contentious proceedings the Court directs the taxation of costs in connection with the obtaining of probate or administration or resealing of probate or letters of administration, the costs prescribed in Table 5 of Schedule G or the equivalent part of any costs determination, as the case requires, may, unless the Court otherwise orders, be allowed separately and in addition to the costs incurred in the contentious proceedings.(6) A bill for taxation under this rule shall bear a note of the value of the estate or the unadministered assets, whichever is appropriate.(7) A bill, either for taxation or moderation shall be served on each executor, administrator or trustee before it is filed.(8) A request for either taxation or moderation shall be endorsed on the bill in the prescribed form and signed by each executor, administrator and trustee.rule 52.68: Ins 7.7.1972. Am 20.9.1991; 26.2.1993.
69 Applications for adoption of children
cf Adoption of Children Rules, r 16.
(1) Subject to subrule (2), a solicitor shall not charge more than the prescribed amount in respect of work done relating to an application for an adoption order under the Adoption Act 2000.(2) In any case where the work is of exceptional length or difficulty, the Court may by its order authorise the solicitor to submit a bill for taxation and may direct that the sum certified to be due upon taxation be paid to him.rule 52.69: Ins 7.7.1972. Am 20.9.1991; 24.4.2003.
70 Certificate and copy of a judgment of this Court
The costs of obtaining under section 13 (1) of the Foreign Judgments Act 1973 a certified copy of a judgment and a certificate shall be assessed by the Court but shall not exceed the prescribed amount.rule 52.70: Ins 5.10.1973. Am 23.12.1988.
71 Companies Act 1961 and the Companies (New South Wales) Code: winding up
(1) This rule applies where, in proceedings under the Companies Act 1961, the Companies Code or the Corporations Law, a party obtains an order appointing a provisional liquidator or a winding up order or both orders and is entitled to taxed costs incurred by him in the proceedings.(2) The applicant may, if he wishes to do so, claim in the bill for the work described in item 41A of Table 1 of Schedule G or the equivalent item in any costs determination, as the case requires, whichever amount or amounts of costs prescribed in that item is or are applicable, instead of claiming other amounts in that Table or the equivalent part of any costs determination.(3) Where an amount is claimed under subrule (2), particulars of the work done shall, for the purposes of rule 49 (1) (a), be sufficiently contained in the bill if stated in the terms appearing beside that amount in the item.(4) Where a claim is made and stated under this rule and vouchers for each disbursement made are lodged before the taxation, no attendance before the taxing officer is necessary unless the taxing officer so directs.rule 52.71: Ins 23.7.1976. Am 21.12.1979; 30.6.1982; 25.2.1994.
Part 52A Costs
pt 52A: Ins 24.6.1994.
Division 1 Preliminary
1 Application
(1) The provisions of this Part apply, subject to their terms, to and in respect of:(a) costs payable or to be assessed under any order of the Court or under the rules, and(b) costs to be:(i) taxed in the Court, orunder any Act.(ii) assessed,(2) The application of this Part is subject to the Legal Profession Act 1987 (the subject Act), and the regulations made under it.rule 52A.1: Ins 24.6.1994.
2 Interpretation—general
cf RSC (Rev) 1965, O 62, r 1 (1).
In this Part, unless the context or subject matter otherwise indicates or requires:non-contentious business has the same meaning as it has in section 173 of the subject Act.party and party basis means the basis of assessment set out in Division 6 of Part 11 of the subject Act.trustee includes an executor of a will and an administrator of the estate of a deceased person.rule 52A.2: Ins 24.6.1994. Am 25.11.1994; 21.8.1998.
3 Interpretation—“fund”
cf RSC (Rev) 1965, O 62, r 1 (2).
In this Part:(a) a reference to a fund, being a fund out of which costs are to be paid, or being a fund held by a trustee, extends to any property held for the benefit of any person or class of persons, or held on trust for any purpose, and(b) a reference to a fund held by a trustee extends to any property to which he or she is entitled as trustee, whether alone or together with any other person and whether the property is for the time being in the possession of the trustee or not.rule 52A.3: Ins 24.6.1994.
4 Powers of the Court generally
(1) The powers and discretions of the Court under section 76 of the Act (which relates to costs generally) shall be exercised subject to and in accordance with this Part.cf RSC (Rev) 1965, O 62, r 2 (4).(2) Subject to subrule (5), the Court shall not, in the exercise of its powers and discretions under section 76 of the Act, make any order for costs against a person who is not a party.(3) Subject to subrule (4), Part 4 rule 4A and Part 11 rule 1A, a person shall not be made a party for the purpose of making an application for costs against the person.(4) Subrule (3) shall not apply:(a) where the person is otherwise a proper party, or(b) to a claim for relief against the person under section 78 of the Act.(5) Subrule (2) shall not limit the power of the Court to make any order:(a) under rule 43 or Part 42 rule 7 (f),(b) for payment by a relator in proceedings of the whole or any part of the costs of a party to the proceedings,(c) for payment by a person who:(i) is bound by an order made, or judgment given, by the Court in proceedings or is bound by an undertaking given to the Court in proceedings, and(ii) fails to comply with the order or the judgment or breaches the undertaking, of the whole or any part of the costs of a party to the proceedings occasioned by the failure or the breach,(d) for payment by a person who has committed contempt of court or an abuse of process of the Court of the whole or any part of the costs of a party to proceedings occasioned by the contempt or abuse of process,(e) in exercise of its supervisory jurisdiction over its own officers, including solicitors, barristers and court appointed liquidators,(f) against a person who purports without authority to conduct proceedings in the name of another person, or(g) against a person who commences, carries on, enters an appearance in, or defends proceedings as the authorised director of a corporation, or purports to do so.(6) Save as mentioned in subrules (1) to (5), this Part has effect subject to the Act and to the rules and subject to any other Act.rule 52A.4: Ins 24.6.1994. Am 23.5.1997; 19.7.2002.
5 Time for dealing with costs
cf RSC (Rev) 1965, O 14, r 7 (1); O 62, r 4 (1).
The Court may, in any proceedings, exercise its powers and discretions as to costs at any stage of the proceedings or after the conclusion of the proceedings.rules 52A.5–52A.8: Ins 24.6.1994.
6 Assessed costs and other provision
(1) Subject to this Part, where, by or under these rules, or any order of the Court, costs are to be paid to any person, that person shall be entitled to assessed costs.cf RSC (Rev) 1965, O 62, r 9 (1).(2) Where the Court orders that costs be paid to any person, the Court may, at any time prior to the costs being referred by the registrar for assessment, further order that, as to the whole or any part (specified in the order) of the costs, instead of assessed costs, that person shall be entitled to:(a) a proportion specified in the order of the assessed costs,(b) the assessed costs from or up to a stage of the proceedings specified in the order, or(c) a gross sum specified in the order instead of the assessed costs.cf RSC (Rev) 1965, O 62, r 9 (4).rules 52A.5–52A.8: Ins 24.6.1994.
7 Costs in other courts
Where, in proceedings remitted, removed or otherwise transferred to or into the Court, or in proceedings on an appeal to the Court, the Court makes an order as to the costs of proceedings before another court or before a tribunal, the Court may:(a) specify the amount of the costs to be allowed, or(b) order that the costs be assessed.rules 52A.5–52A.8: Ins 24.6.1994.
8 Order for payment
cf RSC (Rev) 1965, O 62, r 3 (1).
Subject to this Part, a party to the proceedings in the Court shall not be entitled to recover any costs of or incidental to the proceedings from any other party to the proceedings except under an order of the Court.rules 52A.5–52A.8: Ins 24.6.1994.
9 Order for costs—when payable
(1) Where before the conclusion of any proceedings, other than proceedings entered in the Commercial List or the Technology and Construction List, the Court makes an order for the payment of costs or a motion is refused with costs, the costs shall not, unless the Court otherwise orders, be payable until the conclusion of the proceedings.cf RSC (Rev) 1965, O 62, r 8 (1), after S 1 1986 No 632.(2) Where, in any proceedings, it appears to a registrar, on application, that there is no likelihood of any further order being made in the proceedings, the registrar may order that any costs ordered to be paid shall be payable forthwith.cf RSC (Rev) 1965, O 62, r 8 (9), after S 1 1986 No 632.(3) Where in any proceedings:(a) it appears to the Court that:(i) a party has been subject to unreasonable delay or default on the part of any other party,(ii) the proceedings are unreasonably protracted, or(ii) justice otherwise demands it, orthe Court may order that costs, or a specified amount on account of costs, be payable forthwith.(b) a costs order is made under rule 43 or rule 43A,rule 52A.9: Ins 24.6.1994. Am 22.3.1996; 7.8.1998; 28.1.2000; 19.10.2001 (see also 26.10.2001).
10 Default judgment
(1) Where judgment is entered for costs under Part 17 (which relates to judgment on default of appearance or of defence) the costs shall not be assessed costs but shall be in accordance with the prescribed scale.cf RSC (Rev) 1965, O 26, r 9 (3).(2) Subrule (1) does not apply to a judgment given under Part 17 rule 9.rules 52A.10, 52A.11: Ins 24.6.1994.
Division 2 Entitlement
11 Following the event
cf RSC (Rev) 1965, O 62, r 3 (2).
If the Court makes any order as to costs, the Court shall, subject to this Part, order that the costs follow the event, except where it appears to the Court that some other order should be made as to the whole or any part of the costs.rules 52A.10, 52A.11: Ins 24.6.1994.
11A Costs of separate issues
(1) When making a costs order, the Court may take into account any non-compliance with Part 15A rule 1 insofar as it is relevant to the order.(2) Where a certificate is granted under Part 15A rule 4, unless the Court otherwise orders, the party specified in the certificate as acting contrary to Part 15A rule 1 shall pay the costs of the issue to which the certificate relates, on an indemnity basis, of the party in whose favour the certificate is granted.(3) An entitlement to costs under subrule (2) shall not be affected by any order as to costs unless that order refers to the certificate giving rise to the entitlement.(4) Subrule (2) has effect notwithstanding rules 18, 21, 22, 23, 28, 29, and 30 (4) and (5).rule 52A.11A: Ins 28.1.2000.
12 Submitting appearance (Court of Appeal)
(1) Subject to rule 14, where a respondent or opponent adds to that party’s notice of appearance a statement pursuant to Part 51 rule 20 and Part 51AA rule 13B (which relate to a submitting appearance) and takes no active part in the proceedings, the appellant or claimant shall, unless the Court otherwise orders, pay the respondent’s or the opponent’s costs as a submitting party.(2) Any costs that an appellant or claimant is liable to pay pursuant to subrule (1) to a submitting party properly joined in proceedings shall, unless the Court otherwise orders, be included in any costs payable by any other respondent or opponent to the appellant or claimant in respect of those proceedings.rule 52A.12: Ins 24.6.1994. Am 23.5.1997.
13 Common representations
Where in proceedings in the Court of Appeal:(a) respondents to an appeal,(b) opponents to an application for leave to appeal, orhave arranged common representation and they are entitled to recover their costs from another party, those costs shall include the costs of arranging the common representation.(c) opponents to proceedings commenced by summons claiming relief under section 48 (2) (b), (c), (d), (e) or (g) of the Act,rule 52A.13: Ins 24.6.1994.
14 Discontinuance of appeal
(1) Where an appeal is taken to be discontinued under Part 51 rule 6 (4) or Part 51AA rule 5 (4) or is discontinued under Part 51 rule 6 (5) or under Part 51AA rule 5 (5), the appellant shall, unless the Court of Appeal otherwise orders, pay the respondent’s costs of the appeal.(2) The costs payable under subrule (1) shall not include the costs of any work which could reasonably have awaited the filing of a notice of appeal with appointment, unless the Court of Appeal otherwise orders.rule 52A.14: Ins 24.6.1994. Am 23.12.1994; 23.5.1997.
15 Amendment of pleading etc without leave
cf RSC (Rev) 1965, O 62, r 3 (3).
Where a party amends a pleading, summons or cross-claim to which Part 6 Division 3 applies without leave, unless the Court otherwise orders, he or she shall, after the conclusion of the proceedings, pay the costs of and occasioned by the amendment.rules 52A.15–52A.17: Ins 24.6.1994.
16 Interlocutory application
Subject to this Part the costs of any application or other step in any proceedings shall, unless the Court otherwise orders, be paid and otherwise dealt with in accordance with the provisions of this Part or the provisions of any order relating to the general costs of the proceedings.rules 52A.15–52A.17: Ins 24.6.1994.
17 Extension of time
cf RSC (Rev) 1965, O 62, r 3 (4).
Where a party applies for an extension of time, unless the Court otherwise orders, he or she shall, after the conclusion of the proceedings, pay the costs of and occasioned by the application, or any order made on or in consequence of the application.rules 52A.15–52A.17: Ins 24.6.1994.
18 Defence of tender
Where it is a fact that the defendant has paid money into Court under Part 15 rule 24 (1), the Court may, in exercising its discretion as to costs, take into account that fact and the amount of the money paid into Court.rule 52A.18: Ins 24.6.1994. Am 26.4.1996.
19 Non-admission of fact
cf RSC (Rev) 1965, O 62, r 3 (5).
(1) Where a party to any proceedings (in this rule called the disputing party) serves a notice disputing a fact under Part 18 rule 2 (2) and afterwards that fact is:(a) proved in the proceedings, orunless the Court otherwise orders, the disputing party shall, after the conclusion of the proceedings, pay the costs of the party upon whom the notice is served, assessed on an indemnity basis, occasioned by:(b) admitted for the purpose of the proceedings by the disputing party,(c) proof of the fact, oras the case may be.(d) preparation for the purpose of proving the fact,(2) An entitlement to costs under this rule shall not be affected by any order as to costs unless that order refers to the notice by the disputing party giving rise to the entitlement.(3) This rule has effect notwithstanding rules 11A, 18, 21, 22, 23, 28, 29, and 30 (4) and (5).rules 52A.19, 52A.20: Ins 24.6.1994. Am 28.1.2000.
20 Non-admission of document
cf RSC (Rev) 1965, O 62, r 3 (6).
(1) Where a party to any proceedings (in this rule called the disputing party) serves a notice disputing the authenticity of a document under Part 18 rule 4 (2) or under Part 18 rule 5 (2), and afterwards the authenticity of a document is:(a) proved in the proceedings, orunless the Court otherwise orders, the disputing party shall, after the conclusion of the proceedings, pay the costs of the party upon whom the notice is served, assessed on an indemnity basis, occasioned by:(b) admitted for the purpose of the proceedings by the disputing party,(c) proof of the authenticity of the document, oras the case may be.(d) preparation for the purpose of proving the authenticity of a document,(2) An entitlement to costs under this rule shall not be affected by any order as to costs unless that order refers to the notice by the disputing party giving rise to the entitlement.(3) This rule has effect notwithstanding rules 11A, 18, 21, 22, 23, 28, 29, and 30 (4) and (5).rules 52A.19, 52A.20: Ins 24.6.1994. Am 28.1.2000.
21 Discontinuance
cf RSC (Rev) 1965, O 62, rr 3 (7), 10 (1).
Where, pursuant to Part 21 rule 2, a party to any proceedings discontinues the proceedings without leave as to the whole or any part of the relief claimed by him against any other party, the discontinuing party shall, unless:(a) the Court otherwise orders, orpay the costs of the party against whom the discontinued claim is made, occasioned by the discontinued claim and incurred before service of notice of the discontinuance.(b) the notice of discontinuance contains a statement under Part 21 rule 5 (3),rule 52A.21: Ins 24.6.1994.
22 Offer of compromise
(1) Upon the acceptance of an offer of compromise in accordance with Part 22 rule 3 (5), the defendant shall, unless the Court otherwise orders, pay the costs in respect of the claim by the plaintiff against the defendant up to and including the day the offer was accepted.(2) If a notice of offer contains a term which purports to negative or limit the operation of subrule (1), that offer shall be of no effect for any purpose under Part 22 or this rule.(3) Subrules (4)–(6) apply to an offer which has not been accepted at the time prescribed by Part 22 rule 3 (8).(4) Where an offer is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains an order or judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall, subject to rule 33, be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim from the day on which the offer was made, assessed on an indemnity basis in addition to his costs incurred before and on that day, assessed on a party and party basis.(5) For the purpose of subrule (4), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the Court otherwise orders, the plaintiff shall be entitled to the plaintiff’s costs in respect of the claim from 11 a.m. on the day following the day on which the offer was made, assessed on an indemnity basis, in addition to the plaintiff’s costs incurred before that time, assessed on a party and party basis.(6) Where an offer is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains an order or judgment on the claim to which the offer relates not more favourable to him than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall, subject to rule 33, be entitled to an order against the defendant for the plaintiff’s costs in respect of the claim up to and including the day the offer was made, assessed on a party and party basis, and the defendant shall be entitled to an order against the plaintiff for the defendant’s costs in respect of the claim thereafter assessed on a party and party basis.(7) For the purpose of subrule (6), where the offer was made on the first or a later day of the trial of the proceedings, then, unless the Court otherwise orders, the plaintiff shall be entitled to his costs in respect of the claim up to 11 a.m. on the day following the day on which the offer was made, assessed on a party and party basis, and the defendant shall be entitled to his costs in respect of the claim thereafter, assessed on a party and party basis.(8) Where a plaintiff obtains an order or judgment for the payment of a debt or damages and:(a) the amount payable under the order or for which judgment is given includes interest or damages in the nature of interest, orthen, for the purpose of determining the consequences as to costs referred to in subrules (4) and (6), the Court shall disregard so much of the interest or damages in the nature of interest as relates to the period after the day the offer was made.(b) by or under any Act the Court awards the plaintiff interest or damages in the nature of interest in respect of the amount,(9) For the purpose only of subrule (8), the Court may be informed of the fact that the offer was made, and of the date on which it was made, but shall not be informed of its terms.(10) If, a reasonable time before the Court makes an order under subrule (4) or subrule (6), the party to whom the offer is made requests the party making the offer to satisfy the Court that the party making the offer was at all material times willing and able to carry out the offer:(a) if the Court is so satisfied—the party making the request shall pay the costs of the party to whom the request is made occasioned by the request, orunless the Court otherwise orders.(b) otherwise:(i) subrules (4) and (6) shall not apply, and(ii) the party to whom the request is made shall pay the costs of the party making the request occasioned by the request,(11) Unless the Court otherwise orders, any application for an order for costs under subrule (4) or subrule (6) must be made immediately after the order or judgment giving rise to the entitlement to the order for costs is made or given.(12) This rule is subject to section 151 of the Motor Accidents Compensation Act 1999.rule 52A.22: Ins 24.6.1994. Am 25.10.1996; 19.11.1999.
23 Dismissal
(1) Where proceedings are dismissed under Part 32A rule 2 (1), unless the Court otherwise orders:(a) the plaintiff shall pay the costs of the defendant in the proceedings, and(b) if there is a cross-claim in the proceedings—the cross-claimant shall pay the costs of the cross-defendant in respect of the cross-claim.(2) Where a party makes a claim for relief and the Court orders that the claim be dismissed under Part 34 rule 6A (which relates to dismissal on the plaintiff’s application) or Part 34 rule 7 (which relates to dismissal on the defendant’s application), he or she shall pay the costs of the party against whom the dismissed claim is made, occasioned by the dismissed claim.rule 52A.23: Ins 24.6.1994. Am 21.8.1998.
24 Offer to contribute
The Court may take an offer to contribute into account in determining whether it should order that the offeree should pay the whole or part of:(a) the costs of the offeror,(b) any costs which the offeror is liable to pay to the plaintiff.rule 52A.24: Ins 24.6.1994.
25 Disobedience to rule, judgment, order or direction
Where any person fails to comply with any provision of the rules or any judgment or order or direction of the Court, the Court may order that person to pay the costs of any other person occasioned by the failure.rule 52A.25: Ins 24.6.1994. Subst 28.1.2000 (see also 25.2.2000).
26 Discovery before suit
The Court may, in proceedings in respect of any claim for relief, include in any order for costs the costs of a party to the proceedings of proceedings under Part 3 in respect of that claim for relief including payments of conduct money and payments on account of expenses and loss under that Part.rules 52A.26–52A.28: Ins 24.6.1994.
27 Injunction
cf 42 WN (NSW) 26.
Where the Court grants an interlocutory injunction and afterwards grants a further interlocutory injunction continuing the first injunction with or without modification, an order as to the costs of the further injunction shall, unless the Court otherwise orders, include the costs of the first injunction.rules 52A.26–52A.28: Ins 24.6.1994.
28 Patents, trade marks and designs
cf RSC (Rev) 1965, O 62, App 2, Part 7, para 4 (3).
Where:(a) an action or counterclaim for infringement of a patent, of a registered trade mark, or of the monopoly in a registered design,(b) an application or counterclaim for revocation of a patent, orproceeds to hearing, costs shall not be allowed to the parties delivering any particulars of breaches or of objections in respect of any issues raised in those particulars and relating to that patent, trade mark or design except in so far as those issues or particulars are certified by the Court to have been proved or to have been reasonable and proper.(c) an application for cancellation of the registration of a design or counter-claim for the rectification of the Register of Designs,rules 52A.26–52A.28: Ins 24.6.1994.
29 Gift to interested witness
Where a beneficial gift is, by reason of the Court’s satisfaction under section 13 (2) (c) of the Wills, Probate and Administration Act 1898, not void, the applicant for relief shall, unless the Court otherwise orders, pay the costs of and occasioned by the application and any order made on or in consequence of the application.rule 52A.29: Ins 24.6.1994. Am 25.8.1995.
30 Arbitration (Civil Actions) Act 1983 (cf P 72B)
(1) Where proceedings are heard and determined under section 18B of the Arbitration (Civil Actions) Act 1983 (the Arbitration Act) and the determination of the Court is substantially more favourable to the applicant for the order for rehearing (the applicant) than is the determination of the arbitrator, the Court may order that the fee paid by the applicant for filing the application be refunded to the applicant wholly or to the extent specified by the Court.(2) Where a party is required to pay the costs of another party in respect of a rehearing under section 18B of the Arbitration Act, those costs shall not include the fee paid for filing the application for the order for the rehearing unless the Court so directs.(3) The Court shall not give a direction under subrule (2) unless it is of opinion that the party ordered to pay the costs unreasonably caused the making of the application for the order for the rehearing.(4) Subject to subrule (5), where proceedings are heard and determined under section 18B of the Arbitration Act, and the determination of the Court is not substantially more favourable to the applicant than is the determination of the arbitrator, the Court:(a) shall not make any order for the payment by any other party of the applicant’s costs incurred by reason of the rehearing, and(b) shall order the applicant to pay the costs of every other party incurred by reason of the rehearing.(5) The Court may in respect of a rehearing certify that the special circumstances of the case require the Court:(a) to make an order referred to in subrule (4) (a), in which case the Court may make that order, or(b) to refrain from making an order referred to in subrule (4) (b), in which case the Court may refrain from making that order.(6) Where, by operation of section 18B (1) and (2) (a) or (b) of the subject Act, an order for rehearing of proceedings ceases to have effect, the applicant shall pay the costs of every other party incurred by reason of the order for rehearing, unless the Court otherwise orders.rule 52A.30: Ins 24.6.1994. Am 22.12.1995; 21.8.1998.
Division 3 Party and party basis
31 Application
cf RSC (Rev) 1965, O 62, r 28 (1).
This Division applies to costs which by or under any Act or the rules or any order of the Court are to be paid to a party to any proceedings either by another party to the proceedings or out of a fund.rules 52A.31, 52A.32: Ins 24.6.1994.
32 Party and party basis
Costs payable by or under the rules or any order of the Court shall be payable on a party and party basis unless the rules or an order provide that they are payable on an indemnity basis.rules 52A.31, 52A.32: Ins 24.6.1994.
33 Claims for money
(1A) Where the application of any provision of this rule to proceedings depends upon whether the proceedings include a motor accident claim, motor accident claim shall have the same meaning in the provision that it had in the District Court Act 1973:(a) in the case of subrule (8)—at the date of the making of the order therein referred to, or(b) in any other case—at the date of commencement of the proceedings.(1) This rule:(a) applies to proceedings in the Common Law Division or entered into the Commercial List on a claim for debt, damages or other money,(b) does not apply:(i) where the claim is not only for debt, damages or other money but also for possession of land or delivery of goods,(ii) where the proceedings can be brought only in the Court,(iii) to proceedings remitted, removed or otherwise transferred to or into the Court,(iv) to proceedings that have been considered by the Court under section 143 (5) of the District Court Act 1973 and have not been ordered to be transferred to the District Court under section 143 of that Act,(v) to proceedings for defamation.(2) Where:(a) in proceedings commenced on or before 28 September 1973, a plaintiff recovers a sum not more than $300,(b) in proceedings commenced after 28 September 1973 but on or before 31 October 1980, a plaintiff recovers a sum not more than $1,000,(c) in proceedings commenced after 31 October 1980, but on or before 31 March 1983, a plaintiff recovers a sum not more than $3,000,(d) in proceedings commenced after 31 March 1983, but on or before 30 June 1993, a plaintiff recovers a sum not more than $10,000,(e) in proceedings commenced after 30 June 1993, but on or before 1 October 1997, a plaintiff recovers a sum not more than $75,000, orthe plaintiff shall not be entitled to payment of his or her costs of the proceedings unless, it appearing to the Court that the plaintiff had sufficient reason for commencing or continuing proceedings in the Court, the Court makes an order for payment.(f) in proceedings commenced after 1 October 1997, where a plaintiff recovers:(i) in the case of proceedings that include a motor accident claim—a sum not more than $500,000, or(ii) in any other case—a sum not more than $225,000,cf Act No 21, 1899, s 267.(3) Without limiting the generality of subrule (2), it shall be taken to be a sufficient reason if the plaintiff had reasonable grounds at the relevant time for expecting that he would recover an amount in excess of the amount prescribed by that subrule.(4) Subject to subrule (5), where, by or under the rules or any order of the Court, the plaintiff is entitled to his or her costs of any proceedings to which this rule applies, the amount of costs payable to him or her shall:(a) in respect of proceedings commenced on or before 28 September 1973:(i) where he or she recovers a sum more than $300 but not more than $1,000, be only one third of the amount (the whole amount) which would be payable to him or her apart from this subrule,(ii) where he or she recovers a sum more than $1,000 but not more than $2,000, be only two thirds of the whole amount,(b) in respect of proceedings commenced after 28 September 1973 and on or before 31 October 1980:(i) where he or she recovers a sum more than $1,000 but not more than $3,000, be only a quarter of the whole amount,(ii) where he or she recovers a sum more than $3,000 but not more than $5,000, be only a half of the whole amount,(iii) where he or she recovers a sum, in respect of damages for personal injuries, more than $5,000 but not more than $7,500, be only three quarters of the whole amount,(c) in respect of proceedings commenced after 31 October 1980, but on or before 31 March 1983:(i) where he or she recovers a sum more than $3,000 but not more than $6,000, be only a half of the whole amount,(ii) where he recovers a sum, in respect of damages for personal injuries, more than $6,000 but not more than $7,500, be only three-quarters of the whole amount,(d) in respect of proceedings commenced after 31 March 1983, but on or before 30 June 1993, where he or she recovers a sum more than $10,000 but not more than $50,000, be only a half of the whole amount,(e) in respect of proceedings commenced after 30 June 1993, but on or before 1 October 1997, where he or she recovers a sum more than $75,000 but not more than $150,000, be only a half of the whole amount, and(f) in respect of proceedings commenced after 1 October 1997, where he or she recovers:(i) in the case of proceedings that include a motor accident claim—a sum more than $500,000 but not more than $750,000, orbe only a half of the whole amount.(ii) in any other case—a sum more than $225,000 but not more than $450,000,cf Costs Rules, r 6.(5) In a case to which subrule (4) applies, if it appears to the Court that the plaintiff had sufficient reason for commencing or continuing proceedings in the Court, the Court may order that the amount of costs payable to the plaintiff be some greater part or the whole of the amount which would be payable to him or her apart from that subrule.cf Costs Rules, r 6.(6) Without limiting the generality of subrule (5), in a case referred to in subrule (4) (f) (ii) it shall be taken to be a sufficient reason if the plaintiff had reasonable grounds at the relevant time for expecting to recover an amount in excess of the amount prescribed by that subrule.(7) Where:(a) in proceedings commenced on or before 28 September 1973, the plaintiff recovers a sum not more than $2,000,(b) in proceedings commenced after 28th September 1973, but on or before 31 March 1983, the plaintiff recovers a sum not more than $7,500,(c) in proceedings commenced after 31 March 1983, but on or before 30 June 1993, the plaintiff recovers a sum not more than $50,000,(d) in proceedings commenced after 30 June 1993, but on or before 1 October 1997, the plaintiff recovers a sum not more than $150,000, orand, by or under the rules or any order of the Court, the plaintiff is entitled to his or her costs of the proceedings, the costs of briefing more than one counsel for the plaintiff shall not be allowed unless the Court or the assessor otherwise orders.(e) in proceedings commenced after 1 October 1997, the plaintiff recovers:(i) in the case of proceedings that include a motor accident claim—a sum not more than $750,000, or(ii) in any other case—a sum not more than $450,000,cf Costs Rules, r 31.(8) Where:(a) before 1 May 1973 or, unless the claim is for unliquidated damages, on or before 28 September 1973, the plaintiff claimed a sum not more than $2,000,(b) unless the claim is for unliquidated damages, after 28th September 1973, but on or before 31 March 1983, the plaintiff claims a sum not more than $7,500,(c) after 31 March 1983, but on or before 30 June 1993, the plaintiff claims a sum not more than $50,000,(d) after 30 June 1993, but on or before 1 October 1997, the plaintiff claims a sum not more than $150,000, orand the Court makes an order for the payment of the defendant’s costs of the proceedings, the costs of briefing more than one counsel for the defendant shall not be allowed unless the Court or the assessor otherwise orders.(e) after 1 October 1997, in a case other than the case of proceedings that include a motor accident claim, the plaintiff claims a sum not more than $450,000,(9) For the purposes of this rule, a plaintiff shall be treated as recovering the full amount recoverable in respect of his or her claim without regard to any deduction made in respect of contributory negligence on his or her part or in respect of any cross-claim by a defendant or otherwise in respect of matters not falling to be taken into account in determining whether the action should have been commenced in the Supreme Court.cf 7 & 8 Eliz 2, c 22, s 47 (1).(10) Where proceedings commenced on or after 1 October 1997 that include a motor accident claim are transferred to the District Court, the defendant shall be entitled to an order against the plaintiff for the defendant’s costs thrown away as a result of the commencement in the Court and the transfer to the District Court of the proceedings, unless the Court otherwise orders.rule 52A.33: Ins 24.6.1994. Am 15.8.1997 (see erratum 5.9.1997); 20.2.1998; 7.8.1998; 19.9.2003.
Where the plaintiff commences proceedings in the Court for an order or relief under the Property (Relationships) Act 1984 and the Court:(a) in relation to property, declares a right or adjusts an interest, orof a value or amount which does not exceed the amount prescribed at the time of commencement of the proceedings by section 12 of the Local Courts (Civil Claims) Act 1970:(b) makes an order for maintenance,(c) the plaintiff shall not be entitled to payment of his or her costs of the proceedings unless the Court otherwise orders, and(d) where the Court makes an order for the payment of the plaintiff’s costs of the proceedings and the costs are assessed on a party and party basis or an indemnity basis under rule 22 (4), the costs of briefing more than one counsel for the plaintiff shall not be allowed unless the Court or the assessor otherwise orders.rule 52A.34: Ins 24.6.1994. Am 20.8.1999.
35 Orders for non-application of rules 33 and 34
(1) The Court may, on the application of any person, order that rule 33 (2), (4), (7) and (8) or rule 34 shall not apply in respect of proceedings to be commenced or commenced in the Court.(2) Where an order is made under subrule (1) in respect of proceedings to be commenced, the originating process by which the proceedings are later commenced shall bear a note of the order made.rule 52A.35: Ins 24.6.1994.
35A Power to order maximum costs
(1) The Court may by order, of its own motion or on the application of a party, specify the maximum costs that may be recovered by one party from another.(2) A maximum amount specified in an order under subrule (1) shall not include an amount that a party is ordered to pay because the party:(a) has failed to comply with an order or with any of these rules,(b) has sought leave to amend its pleadings or particulars,(c) has sought an extension of time for complying with an order or with any of these rules, or(d) has otherwise caused another party to incur costs that were not necessary for the just, quick and cheap:(i) progress of the proceedings to trial or hearing, or(ii) trial or hearing of the proceedings.(3) An order under subrule (1) may include such directions as the Court considers necessary to effect the just, quick and cheap:(a) progress of the proceedings to trial or hearing, or(b) trial or hearing of the proceedings.(4) If, in the Court’s opinion, there are special reasons, and it is in the interests of justice to do so, the Court may vary the specification of maximum recoverable costs ordered under subrule (1).rule 52A.35A: Ins 28.1.2000.
36 (Repealed)
rule 52A.36: Ins 24.6.1994. Rep 19.7.1996.
37 Indemnity costs
Where, in any proceedings, costs are payable to a person by or under the rules or any order of the Court on an indemnity basis:(a) if that person is a party to the proceedings in the capacity of trustee, legal representative of a deceased estate or other fiduciary and the costs are payable out of property held or controlled by that person in that capacity—all costs incurred by that person shall be allowed except to the extent that it appears that they were incurred in breach of that person’s duty in that capacity, and(b) otherwise all costs incurred by that person shall be allowed except to the extent that it appears that they are of an unreasonable amount or have been unreasonably incurred.rule 52A.37: Ins 24.6.1994. Subst 23.12.1994. Am 20.6.1997.
Division 4 General
38 Costs in account
cf RSC (Rev) 1965, O 62, r 19 (1); Costs Rules, r 57.
Where the Court orders that an account be taken and the account consists in part of costs, the Court may, by the same or a later order, direct the registrar to refer those costs for assessment.rule 52A.38: Ins 24.6.1994.
An application for an order under section 17 of the Criminal Assets Recovery Act 1990 may be made by motion in the proceedings for the restraining order.rule 52A.39: Ins 24.6.1994. Am 19.3.1999.
40 Proper officer
The Manager, Costs Assessment is the proper officer of the Court for the purposes of Division 6 of Part 11 of the Legal Profession Act 1987.rule 52A.40: Ins 24.6.1994. Am 23.5.1997; 25.7.1997; 19.12.1997; 27.7.2001.
41 Costs of solicitor appointed as tutor
cf Costs Rules, r 47.
Where the Court appoints a solicitor to be tutor of a disable person who is a party to any proceedings, the Court may:(a) order that the costs to be incurred in performance of the duties of tutor be paid:(i) by the parties to the proceedings or any of them, or(ii) out of any fund in Court in which the disable person is interested, and(b) make orders for the repayment or allowance of the costs as the nature of the case may require.rules 52A.41, 52A.42: Ins 24.6.1994.
42 Trustee or mortgagee
(1) Where a person is or has been a party to any proceedings in the capacity of trustee or mortgagee, he shall, unless the Court otherwise orders, be entitled to the costs of the proceedings out of the fund held by the trustee or out of the mortgaged property, as the case may be, in so far as the costs are not paid by any other person.cf RSC (Rev) 1965, O 62, r 6 (2).(2) The Court may otherwise order pursuant to subrule (1) only where:(a) the trustee or mortgagee has acted unreasonably, or(b) in the case of a trustee, he has in substance acted for his own benefit rather than for the benefit of the fund.cf RSC (Rev) 1965, O 62, r 6 (2).rules 52A.41, 52A.42: Ins 24.6.1994.
43 Liability of solicitor
(1) Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a solicitor is responsible (whether personally or through a servant or agent), the Court may, after giving the solicitor a reasonable opportunity to be heard:(a) disallow the costs as between the solicitor and the solicitor’s client, including disallowing the costs for any step in the proceedings,(b) direct the solicitor to repay to the client costs which the client has been ordered to pay to any other party, and(c) direct the solicitor to indemnify any party other than the client against costs payable by the party indemnified.(2) Without limiting the generality of subrule (1), a solicitor is responsible for default for the purposes of that subrule where any proceedings cannot conveniently proceed, or can proceed only with the incurring of extra costs or with the inconvenience of the Court or another party to the proceedings, because of the failure of the solicitor:(a) to attend in person or by a proper representative,(b) to file any document which ought to have been filed,(c) to deliver any document which ought to have been delivered for the use of the Court,(d) to be prepared with any proper evidence or account,(e) to comply with any provision of the rules or any judgment or order or direction of the Court, or(f) otherwise to proceed.(3) The Court may, before making an order under subrule (1), refer the matter to a Registrar for inquiry and report.(4) The Court may order that notice of any proceedings or order against a solicitor under this rule shall be given to the solicitor’s client in such manner as may be specified in the order under this subrule.(5) The Court may give ancillary directions in order to give full effect to a costs order, including directing a solicitor to provide to the Court or a party to the proceedings a bill of costs in assessable form.(6) This rule is in addition to and is intended to operate independently of the provisions of section 76C of the Act and does not apply in circumstances where section 76C of the Act applies.rule 52A.43: Ins 24.6.1994. Subst 28.1.2000.
43A Liability of barrister
(1) Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Court that a barrister is responsible (whether personally or through a servant or agent), the Court may, after giving the barrister a reasonable opportunity to be heard:(a) disallow the costs as between the barrister and his or her instructing solicitor or as between the barrister and the client, including disallowing the costs for any step in the proceedings,(b) direct the barrister to repay to the client costs which the client has been ordered to pay to any other party, and(c) direct the barrister to indemnify any party other than the client against costs payable by the party indemnified.(2) Without limiting the generality of subrule (1), a barrister is responsible for default for the purposes of that subrule where any proceedings cannot conveniently proceed, or can proceed only with the incurring of extra costs or with the inconvenience of the Court or another party to the proceedings, because of the failure of the barrister:(a) to attend in person or by a proper representative,(b) to file any document which ought to have been filed,(c) to deliver any document which ought to have been delivered for the use of the Court,(d) to be prepared with any proper evidence or account,(e) to comply with any provision of the rules or any judgment or order or direction of the Court, or(f) otherwise to proceed.(3) The Court may, before making an order under subrule (1), refer the matter to a registrar for enquiry and report.(4) The Court may order that notice of any proceedings or order against a barrister under this rule shall be given to the barrister’s instructing solicitor or client in such manner as may be specified in the order under this subrule.(5) The Court may give ancillary directions in order to give full effect to a costs order, including directing a barrister to provide to the Court or a party to the proceedings a bill of costs in assessable form.rule 52A.43A: Ins 23.9.1994. Subst 28.1.2000.
44 Opportunity for solicitor to be heard
The Court shall, before making an order under section 76C of the Act in respect of a solicitor, give the solicitor a reasonable opportunity to be heard.rules 52A.44, 52A.45: Ins 24.6.1994.
45 Probate
(1) A bill for moderation shall be served on each executor, administrator or trustee before it is filed.(2) A request for moderation shall be endorsed on the bill in the prescribed form and signed by each executor, administrator and trustee.rules 52A.44, 52A.45: Ins 24.6.1994.
46 Certificate of determination
(1) A person shall not be entitled to his or her costs of proceedings in the Court (including costs of execution) to recover payment of costs included in 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 unless:(a) at the time of filing the certificate the amount of unpaid costs included in the certificate exceeds $150,000, or(b) it appearing to the Court that the person had sufficient reason for filing the certificate in the Court, the Court otherwise orders.(2) A party may apply for an order under subrule (1) without serving notice of the motion.(3) Where the applicant for an order under subrule (1) adds to the motion a request that the application be granted under this subrule, the Court may make the order in the absence of the public and without any attendance by or on behalf of the applicant.(4) A person shall not be entitled to his or her costs of filing the certificate in the Court.rule 52A.46, headnote: Ins 24.6.1994. Subst 21.7.1995.rule 52A.46: Ins 24.6.1994. Am 21.7.1995; 21.8.1998.
47 Certificate and copy of judgment of this court
The costs of obtaining under section 13 (1) of the Foreign Judgments Act 1973 a certified copy of a judgment and a certificate shall be assessed by the Court.rules 52A.47–52A.50: Ins 24.6.1994.
48 Costs order to confirm earlier costs orders
An order as to costs made in proceedings after 30 June 1994 shall, unless the Court otherwise orders, be taken to expressly confirm all earlier orders as to costs made in the proceedings.rules 52A.47–52A.50: Ins 24.6.1994.
49 Order confirming rule as to payment of costs
(1) Where a party to proceedings in the Court has become liable under a rule or section to which this rule applies to pay any of the costs of the proceedings of any other party, the Court may order the party so liable to pay those costs.(2) This rule applies to rules 12 (1), 14 (1), 17, 19 (1), 20 (1), 21, 22 (1), 23, 29 and 42 (1) and to Part 52 rules 11A (1), 11C (1), 13, 14 (1), 15 (1), 16, 17 (1), 18 (1), 21D, 65 (1) and to section 366 (2) of the Companies Code and section 466 (2) of the Corporations Law.rules 52A.47–52A.50: Ins 24.6.1994.
50 Execution
The amount to be allowed for the costs of a writ of execution (as defined in Part 44 rule 1) shall be the amount equal to the amount fixed by a costs determination in force on 30 June 1994, notwithstanding the repeal of the costs determination.rules 52A.47–52A.50: Ins 24.6.1994.
Part 53 Security
Division 1 Security for costs
1 Interpretation
cf RSC (Rev) 1965, O 23, r 1 (3).
In this Division:(a) references to a plaintiff extend to any person who makes a claim for relief in any proceedings, and(b) references to a defendant extend to any person against whom a claim for relief is made in any proceedings.
2 Cases for security
cf RSC (Rev) 1965, O 23, r 1 (2).
(1) Where, in any proceedings, it appears to the Court on the application of a defendant:(a) that a plaintiff is ordinarily resident outside the State,(b) that a plaintiff is suing, not for his own benefit, but for the benefit of some other person and there is reason to believe that that plaintiff will be unable to pay the costs of the defendant if ordered to do so,(c) subject to subrule (2), that the address of a plaintiff is not stated or is mis-stated in his originating process,(d) that a plaintiff has changed his address after the commencement of the proceedings with a view to avoiding the consequences of the proceedings, orthe Court may order that plaintiff to give such security as the Court thinks fit for the costs of the defendant of and incidental to the proceedings and that the proceedings be stayed until the security is given.(e) that there is reason to believe that a plaintiff being a body corporate will be unable to pay the costs of the defendant if ordered to do so,(2) The Court shall not order a plaintiff to give security by reason only of subrule (1) (c) if it appears to the Court that the failure to state his address or the mis-statement of his address was made without intention to deceive.rule 53.2: Am 24.5.1991.
3 Manner of giving security
cf RSC (Rev) 1965, O 23, r 2.
(1) Where the Court orders a plaintiff to give security for costs, the security shall be given in such manner, at such time, and on such terms (if any) as the Court may by order direct.(2) Subject to subrule (1), security for costs may be given by a deed in Form 64B.rule 53.3: Am 25.5.1990.
4 Failure to give a security
cf General Rules of the Court, O 15, r 7.
Where a plaintiff fails to comply with an order under this Division, the Court may, on terms, order that the proceeding on any claims by the plaintiff for relief in the proceedings be dismissed.
5 Saving
cf RSC (Rev) 1965, O 23, r 3.
This Division does not affect the provisions of any Act under which the Court may require security for costs to be given.
Division 2 Security for future conduct, bonds and recognizances
pt 53, div 2, hdg: Am 25.5.1990.
6 Security for future conduct
(1) Where, for the purpose of security for future conduct, the Court:(a) requires any person to pay money into Court or otherwise to deposit money,(b) puts any person on terms of payment into Court or other deposit of money, orthe Court shall, by order, specify the events in which the money so paid or deposited is to be forfeited, returned or otherwise disposed of.(c) puts any person on terms of procuring payment into Court or other deposit of money by some other person,(2) Where, for the purpose of security for future conduct, the Court:(a) requires any person to submit to an order for the payment of money,(b) puts any person on terms of submitting to an order for the payment of money, orthe Court shall, by order, specify the events in which the order for the payment of money may be made and may, by order, specify the manner in which the submission is to be made.(c) puts any person on terms of procuring some other person to submit to an order for the payment of money,
6A Bonds
(1) In this rule, bond means an instrument or memorandum of acknowledgment by the terms of which a person is bound in a sum of money to be paid on the non-observance of a specified condition.(2) Subject to any Act, the Court shall not require any person to give a bond and shall not put any person on terms of giving or procuring a bond.(3) Where, but for subrule (2), the Court might have required a person to give a bond or put a person on terms of giving, or procuring a bond, the Court may, subject to subrule (2), require the person to promise by deed to pay the sum on the non-observance of the specified condition or, as the case may be, put the person on terms of promising or procuring another person to promise by deed to pay the sum on the non-observance of the specified condition.rule 53.6A: Ins 25.5.1990.
7 Restriction as to recognizances
(1) In this rule recognizance means an instrument or memorandum of acknowledgment by the terms of which any sum of money may be made or levied by execution on any property, except execution by way of enforcement of a judgment or order of the Court.(2) Subject to any Act, the Court shall not require any person to give a recognizance and shall not put any person on terms of giving or procuring a recognizance.(3) Where, but for subrule (2), the Court might have required a person to give a recognizance or put a person on terms of giving or procuring a recognizance, the Court may, subject to subrule (2) and to rule 6, require that person to give such security for future conduct as the Court may by order direct or, as the case may be, put him on terms of giving or procuring such security for future conduct as the Court may by order direct.
8 Forfeited recognizance
(1) Execution shall not be levied on a forfeited recognizance except upon an order for payment made under subrule (3).(2) Where it appears to the Court that the amount of a recognizance has been deposited with any justice or other person, and the Court forfeits the recognizance, the Court shall order that the amount so deposited be paid into the Consolidated Revenue Fund.(3) Subject to subrule (2), where the Court forfeits a recognizance, the Court shall order the recognizor to pay the amount of the recognizance to the registrar.(4) Where the Court forfeits a recognizance in the absence of the recognizor, the registrar shall post to the recognizor notice of the forfeiture and of the order made under subrule (2) or subrule (3).cf Fines and Forfeited Recognizances Rules, r 5.(5) Where the Court forfeits a recognizance in the absence of the recognizor, the Court, on application by the recognizor, may, by order, revoke the forfeiture and vary or discharge any order made under subrule (2) or subrule (3).cf FFRR, form 2.(6) The recognizor may apply for orders under subrule (5) by filing an affidavit of the facts on which he relies and, if the recognizor does so apply, the registrar shall deliver the affidavit to the Court for determination of the application.cf FFRR, form 2.(7) An application for orders under subrule (5) shall not be made except on a notice of motion or affidavit filed within 28 days after the date of posting of a notice under subrule (4).cf FFRR, form 2.(8) The registrar shall not, unless the Court otherwise orders, take any step for the enforcement of an order made under subrule (3) until the expiration of 28 days after posting of a notice under subrule (4) or, if in the meantime an application is made under subrule (5), until the application is disposed of.(9) The registrar shall pay into the Consolidated Revenue Fund all moneys received by him under an order for payment of a forfeited recognizance.cf FFRR, form 4.
Part 54 Prerogative and other orders
Division 1 Proceedings in lieu of statutory orders nisi etc
1 Substituted procedure
Where, under any Act in force immediately before the commencement of the Act, the Court is authorised to grant make or issue a rule or order nisi or a rule, summons or order to show cause why some order should not be made or some act should not be done:(a) no proceedings shall be taken for a rule or order nisi or for a rule, summons or order to show cause as the case may be; but(b) proceedings may be taken for, and the Court may grant by way of judgment or order, all such relief as formerly might have been granted on an application for a rule or order absolute or on the return of a rule, summons or order to show cause.
2 Limitation
(1) Where an Act to which rule 1 applies fixes a time for an application for a rule or order nisi or for a rule, summons or order to show cause, proceedings under rule 1 in substitution for such an application must, subject to any provision for extension of the time so fixed, be commenced within that time.(2) Part 1 rule 12 (which enables the Court to dispense with compliance with the rules) and Part 2 rule 3 (which enables the Court to extend or abridge times fixed by the rules) do not apply to subrule (1).
Division 2 General
3 Application
(1) This Division applies to:(a) proceedings for any relief or remedy which formerly would have been granted by writ, whether of prohibition, mandamus, certiorari or of any other description,(b) proceedings for an injunction under section 70 of the Act (which relates to ouster of officer),(c) proceedings on an application for a writ of habeas corpus ad subjiciendum, and(d) proceedings under Division 1.(2) In subrule (1) (a), writ does not include:(a) the writ of habeas corpus ad subjiciendum,(b) any writ of execution for the enforcement of a judgment or order of the Court, or(c) any writ in aid of any such writ of execution.rule 54.3: Am 18.12.1987.
4 Commencement of proceedings
Proceedings to which this Division applies shall be commenced by summons.
Division 3 Production of inmates
pt 54, div 3, hdg: Ins 2.6.1972. Am 21.2.1997 (see erratum 28.2.1997).
5 Production of inmates
(1) Where the Attorney-General or the Minister of Justice seeks an order to any person as Commissioner of Corrective Services or as governor of any correctional centre or as Sheriff to bring any person alleged to be an inmate under the Correctional Centres Act 1952 before any court, judge or justice to be examined or to answer a charge or otherwise to take part in any proceedings or matter before any court, judge or justice, the Court may make the order on production of a minute of the order signed in the margin by the Crown Solicitor or one of his assistants or by the Clerk of the Peace or his deputy.cf GRC, O 29, r 10.(2) An order under subrule (1) need not be entered.rule 54.5, headnote: Ins 2.6.1972. Am 21.2.1997.rule 54.5: Ins 2.6.1972. Subst 20.10.1972. Am 21.2.1997 (see erratum 28.2.1997).
Division 4
6 (Repealed)
pt 54, div 4: Ins 6.9.1974. Rep 29.8.2003.
rule 54.6: Ins 6.9.1974. Subst 21.9.1979. Am 19.2.1999. Rep 29.8.2003.
Part 55 Contempt
Division 1 Preliminary
1 Interpretation
In this Part contemnor means a person guilty or alleged to be guilty of contempt of the Court or of any other court.
Division 2 Contempt in the face or hearing of the Court
2 Arrest
cf High Court Rules, O 56, r 1 (1).
Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court, committed in the face of the Court or in the hearing of the Court, the Court may:(a) by oral order direct that the contemnor be brought before the Court, or(b) issue a warrant for the arrest of the contemnor.rule 55.2: Am 2.6.1972.
3 Charge, defence and determination
cf HCR, O 56, r 1 (2).
Where the contemnor is brought before the Court, the Court shall:(a) cause him to be informed orally of the contempt with which he is charged,(b) require him to make his defence to the charge,(c) after hearing him, determine the matter of the charge, and(d) make an order for the punishment or discharge of the contemnor.
4 Interim custody
(1) The Court may, pending disposal of the charge:(a) direct that the contemnor be kept in such custody as the Court may determine, or(b) direct that the contemnor be released.cf HCR, O 56, r 1 (3).(2) The Court may make a direction under subrule 1 (b) on terms, which may include a requirement that the contemnor give security, in such sum as the Court directs, for his appearance in person to answer the charge.cf HCR, O 56, r 1 (3).
Division 3 Motion or proceedings for punishment
5 Application
cf HCR, O 56, r 2.
This Division does not apply to a case in which the Court proceeds under Division 2.
6 Procedure generally
(1) Where contempt is committed in connection with proceedings in the Court, an application for punishment for the contempt must be made by motion on notice in the proceedings, but, if separate proceedings for punishment of the contempt are commenced, the proceedings so commenced may be continued unless the Court otherwise orders.(2) Where contempt is committed, but not in connection with proceedings in the Court, proceedings for punishment of the contempt must be commenced by summons, but, if an application for punishment of the contempt is made by motion on notice in any proceedings, the application may be heard and disposed of in the latter proceedings, unless the Court otherwise orders.
7 Statement of charge
cf HCR, O 56, r 3 (a).
A statement of charge, that is, a statement specifying the contempt of which the contemnor is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or summons.
8 Evidence
(1) Subject to subrule (2), the evidence in support of the charge shall be by affidavit.(2) The Court may, on terms, permit evidence in support of the charge to be given otherwise than by affidavit.
9 Service
cf HCR, O 56, rr 4, 5.
The notice of motion or summons, the statement of charge, and the affidavits shall be served personally on the contemnor.
10 Arrest
cf HCR, O 56, r 6.
Where:(a) notice of a motion for punishment of a contempt has been filed or proceedings have been commenced for punishment of a contempt, andthe Court may issue a warrant for the arrest of the contemnor and his detention in custody until he is brought before the Court to answer the charge, unless he, in the meantime, gives security in such manner and in such sum as the Court directs, for his appearance in person to answer the charge and to submit to the judgment or order of the Court.(b) it appears to the Court that the contemnor is likely to abscond or otherwise withdraw himself from the jurisdiction of the Court,
11 Motion or proceedings by the registrar
(1) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court or of any other court, the Court may, by order, direct the registrar to apply by motion for, or to commence proceedings for, punishment of the contempt.(2) Subrule (1) does not affect such right as any person other than the registrar may have to apply by motion for, or to commence proceedings for, punishment of contempt.(3) Where:(a) it appears to the District Court on its own view that a person is guilty of contempt of court, whether committed in the face or hearing of the District Court or not, and the District Court refers the matter to the Court for determination under section 203 (1) of the District Court Act 1973,(b) (Repealed)the registrar must commence proceedings for punishment of the contempt, and no direction from the Court shall be necessary to enable the registrar to do so.(c) it appears to a Local Court on its own view that a person is guilty of contempt of the Local Court, whether during a proceeding before the Local Court or otherwise, and the court refers the matter to the Court for determination under section 27B of the Local Courts Act 1982,(4) Subrule (3) does not affect such right as any person other than the registrar may have to commence proceedings for punishment of the contempt prior to the commencement of proceedings by the registrar.(5) Subrule (3) does not apply in the event that a person other than the registrar commences proceedings for punishment of the contempt prior to the commencement of proceedings by the registrar.(6) Subject to the rules and to any Act, where, pursuant to a power conferred by or under an Act, a court or other body or person refers or reports a matter to the Court with a view to the Court dealing with a possible contempt of the court, body or person, the registrar shall:(a) take advice from the Crown Solicitor as to whether the registrar should take proceedings for contempt in respect of the matter,(b) unless the Court otherwise orders, act in accordance with the advice, and(c) inform the Attorney-General of the matter.rule 55.11: Am 16.8.1991; 30.10.1992; 24.9.1993; 20.2.1998; 20.8.1999; 29.8.2003.
Division 4 General
12 Warrant
cf HCR, O 56, r 7.
A warrant for the arrest or detention under this Part of a contemnor shall be addressed to the Sheriff and may be issued under the hand of the Judge or officer presiding in the Court directing the arrest or detention.
13 Punishment
(1) Where the contemnor is not a corporation, the Court may punish contempt by committal to a correctional centre or fine or both.cf HCR, O 56, r 9.(2) Where the contemnor is a corporation, the Court may punish contempt by sequestration or fine or both.(3) The Court may make an order for punishment on terms, including a suspension of punishment or a suspension of punishment in case the contemnor gives security in such manner and in such sum as the Court may approve for good behaviour and performs the terms of the security.rules 55.13, 55.14: Am 21.2.1997.
14 Discharge
cf HCR, O 56, r 11.
Where a contemnor is committed to a correctional centre for a term, the Court may order his discharge before the expiry of the term.rules 55.13, 55.14: Am 21.2.1997.
15 (Repealed)
rule 55.15: Ins 2.6.1972. Rep 28.4.1978.
Part 56 Interpleader
Division 1 Preliminary
1 Definitions
cf RSC (Rev) 1965, O 17, r 1 (2).
In this Part, unless the context or subject matter otherwise indicates or requires:claimant means a person making a claim to property in dispute.execution creditor means a person on whose behalf process is issued.process means process for execution issued by or under the authority of the Court.property in dispute means any debt or property which is the subject of proceedings under this Part.sheriff includes any officer charged with the execution of process.stakeholder means an applicant under rule 2.
Division 2 Stakeholder’s interpleader
2 Case for relief
cf RSC (Rev) 1965, O 17, r 1 (1) (a).
Where:(a) a person is under a liability (otherwise than as a sheriff) in respect of a debt or other personal property, andthe Court may, on application by him, grant relief by way of interpleader.(b) he is sued, or expects to be sued, in any court, for or in respect of the debt or property by two or more persons making adverse claims to the debt or property,
3 Application in pending proceedings
cf RSC (Rev) 1965, O 17, r 3 (1).
(1) Where a stakeholder has, in proceedings in the Court, been sued for or in respect of the property in dispute, the application shall be by motion in the proceedings.(2) A stakeholder applying pursuant to subrule (1):(a) shall serve notice of the motion on each party to the proceedings who claims any interest in the property in dispute, and(b) shall serve notice of the motion personally on each claimant who is not a party to the proceedings.
4 Procedure
cf RSC (Rev) 1965, O 17, r 3 (1).
(1) In a case to which rule 3 does not apply, a stakeholder applying for relief by way of interpleader shall commence proceedings by summons, joining each claimant as a defendant.(2) In a case to which rule 3 does not apply, proceedings by a stakeholder applying for relief by way of interpleader may be assigned to any Division.rule 56.4: Am 2.6.1972.
Division 3 Sheriff’s interpleader
5 Notice of claim
(1) Where a sheriff takes or intends to take any personal property in execution under process, a person making a claim to or in respect of the property or the proceeds or value of the property may give notice of his claim to the sheriff.cf RSC (Rev) 1965, O 17, r 2 (1).(2) A notice of claim given under this rule shall:(a) specify the claim,(b) state the name and place of abode of the claimant,(c) state an address for service, and(d) be accompanied by a copy of the notice.cf RSC (Rev) 1965, O 17, r 2 (1).(3) Where a person who is entitled to give notice under this rule does not, within a reasonable time after having knowledge of the facts, give notice under this rule, the Court may, on application by the sheriff, restrain the commencement or stay or restrain the continuance by that person of proceedings in any court against the sheriff for or in respect of anything done by the sheriff in execution of the process after the time when that person might reasonably have given notice under this rule.(4) Subject to subrule (5), a sheriff may apply for an order under subrule (3) by motion in the proceedings in which the process is issued and, if he so applies, he shall serve notice of the motion personally on the person against whom the order is sought.(5) If proceedings to which subrule (3) applies are brought in the Court against a sheriff, an application by him for an order under that subrule restraining the continuance of those proceedings shall be made by motion in those proceedings.
6 Notice to execution creditor
(1) A sheriff shall, on being given notice of claim under rule 5, serve the notice on the execution creditor.cf RSC (Rev) 1965, O 17, r 2 (2).(2) The execution creditor may serve on the sheriff notice that he admits the claim.cf RSC (Rev) 1965, O 17, r 2 (2).
7 Admission of claim
(1) Where an execution creditor admits a claim by notice under rule 6:(a) he shall not be liable to the sheriff for any fees or expenses incurred by the sheriff under the process after the notice under rule 6 is given,(b) the sheriff shall withdraw from possession of the property claimed,(c) the Court may, on application by the sheriff, restrain the commencement or stay or restrain the continuance by the person whose claim is admitted of proceedings in any court against the sheriff for or in respect of anything done by the sheriff in execution of the process.cf RSC (Rev) 1965, O 17, r 2 (2) (3) (4).(2) If proceedings to which subrule (1) (c) applies are brought in the Court against the sheriff, an application by him for an order under that paragraph restraining the continuance of those proceedings shall be made by motion in those proceedings.(3) Subject to subrule (2), a sheriff may apply for an order under subrule (1) (c) by motion in the proceedings in which the process is issued.
8 Interpleader motion
(1) Where a sheriff has, under rule 6, served a notice of claim on the execution creditor and the execution creditor does not, within 4 days after service of the notice under rule 6, serve on the sheriff notice that he admits the claim, and the claim has not been withdrawn, the Court may, on application by the sheriff, grant relief by way of interpleader.(2) An application of the sheriff under this rule shall be by motion in the proceedings in which the process is issued.(3) A sheriff moving pursuant to this rule shall serve notice of the motion on each party to the proceedings who claims any interest in the property in dispute and on each claimant.
Division 4 General
9 Powers generally
cf RSC (Rev) 1965, O 17, rr 5 (1) (2), 6, 7, 8.
On application for relief by way of interpleader:(a) the Court may make such orders and directions as it thinks fit for the hearing and determination of all matters in dispute, and(b) without limiting the generality of paragraph (a), the Court may,(i) where proceedings in the Court are pending in which the applicant is sued for or in respect of any of the property in dispute, order that any claimant be added as a defendant in those proceedings in addition to or in substitution for the applicant, or order that those proceedings be stayed or dismissed,(ii) where proceedings in any other court are pending in which the applicant is sued for or in respect of any of the property in dispute, restrain the further continuance of those proceedings,(iii) order the applicant to pay or transfer any or all of the property in dispute into Court or otherwise to dispose of any or all of the property in dispute,(iv) where a claimant claims to be entitled by way of security for debt to any or all of the property in dispute, make orders for the sale of any or all of the property in dispute and for the application of the proceeds of sale,(v) on request by any party, summarily determine any or all questions of fact or law in which the requesting party is interested arising on the application,(vi) make orders for the settlement and trial of issues, and(vii) make such order, or give such judgment, as the nature of the case requires.rule 56.9: Am 30.3.1990.
10 Default by claimant
(1) Where:(a) a claimant has been given due notice of the hearing of an application for relief by way of interpleader and does not appear at the hearing, orthe Court may, subject to subrule (2), order that the claimant and those claiming under him be barred from prosecuting his claim against the applicant and those claiming under him.(b) a claimant does not comply with an order made in the proceedings on such an application,cf RSC (Rev) 1965, O 17, r 5 (3).(2) An order under subrule (1) shall not affect the rights of the claimants amongst themselves.cf RSC (Rev) 1965, O 17, r 5 (3).
11 Neutrality of applicant
(1) Where a stakeholder applies for relief by way of interpleader, the Court may dismiss the application or give judgment against the applicant unless the Court is satisfied on the following matters:(a) that the applicant claims no interest in the property in dispute except for charges or costs,(b) that the applicant does not collude with any claimant.cf RSC (Rev) 1965, O 17, r 3 (4).(2) Where a sheriff applies for relief by way of interpleader, the Court may require the sheriff to satisfy the Court on the matters mentioned in subrule (1) and the Court may, if not satisfied on those matters, dismiss the application.cf RSC (Rev) 1965, O 17, r 3 (5).(3) Nothing in this rule affects the power of the Court in other cases to dismiss the application or to give judgment against the applicant.rule 56.11: Am 30.3.1990.
12 Order in several proceedings
(1) Where an application for relief by way of interpleader is made and several proceedings are pending in the Court for or in respect of any or all of the property in dispute, the Court may make an order in any two or more of those several proceedings.cf RSC (Rev) 1965, O 17, r 9.(2) A minute of an order made pursuant to subrule (1) shall be entitled in all the proceedings in which it is made and the order shall be binding on all the parties to them.cf RSC (Rev) 1965, O 17, r 9.
13 Trial
cf RSC (Rev) 1965, O 17, r 11 (1).
Where, in proceedings for relief by way of interpleader, the Court directs the trial of any issue, Part 34 shall, with the necessary modifications, but subject to such directions as the Court may give, apply to the trial.
14 Disposal
cf RSC (Rev) 1965, O 17, r 11 (2).
The Court before which an issue is tried under this Part may give such judgment, or may make such order, as the nature of the case requires, including a judgment or order finally disposing of all questions arising in the proceedings.rule 56.14: Am 30.3.1990.
Part 57 Service of external process
1 Application
cf RSC (Rev) 1965, O 69, rr 2 (1), 3 (1).
This Part applies to the service in the State of any document required in connection with civil or commercial proceedings pending before a court or other tribunal in a place outside the State, where a letter of request from the court or tribunal is received by the registrar and:(a) the request is for service pursuant to a convention, or(b) the Attorney-General certifies that effect ought to be given to the request.rules 57.1–57.4: Am 1.4.1977.
2 Requisite documents
cf RSC (Rev) 1965, O 69, rr 2 (2), 3 (2).
In order that service may be effected in accordance with this Part, there must be delivered to the registrar, unless he otherwise directs:(a) the document to be served and two copies of it,(b) a copy of the letter of request,(c) if either the document to be served or the letter of request is not in English, a translation in English of the document or letter as the case may be and a copy of the translation.rules 57.1–57.4: Am 1.4.1977.
3 Service
(1) The registrar shall request the Sheriff or some other person to serve the document.(2) The document may be served in any manner in which originating process in proceedings in the Court may be served, including substituted service pursuant to Part 9 rule 10.cf RSC (Rev) 1965, O 69, rr 2 (3) (4), 3 (3).(3) Proceedings for an order for substituted service shall be commenced by the Attorney-General by summons in the Common Law Division and the summons shall not join any person as a defendant.rules 57.1–57.4: Am 1.4.1977.
4 Affidavit of service
cf RSC (Rev) 1965, O 69, rr 2 (5), 3 (4).
After the document has been served or attempts to serve the document have failed, the process server shall file an affidavit made by the person who served or attempted to serve the document stating when, where and how he did so and stating the costs incurred and shall lodge a copy of the affidavit with the registrar.rules 57.1–57.4: Am 1.4.1977.
5 Certificate
(1) Where the request for service is made pursuant to a convention, the registrar shall give either:(a) a certificate:(i) certifying that the document or a copy of it, as the case may be, was served on the person, at the time, and in the manner, specified in the certificate or, if attempts to effect service failed, certifying the failure and the reasons for the failure, and(ii) certifying the amount of the costs incurred, or(b) such other certificate as is appropriate to the terms of the relevant convention.cf RSC (Rev) 1965, O 69, r 3 (5).(2) Where the request for service is not made pursuant to a convention, the registrar shall give either:(a) a certificate:(i) annexing the letter or request, a copy of the document to be served and of any translation, and a copy of the affidavit under rule 4,(ii) identifying the annexures,(iii) certifying that the manner of service of the document and the proof of service are such as are required by the rules of the Court regulating the service of originating process of the Court in the State or, if attempts to effect service failed, certifying the failure and the reasons for the failure, and(iv) certifying the amount of the costs incurred, or(b) such other certificate as is appropriate to the terms of the letter of request.cf RSC (Rev) 1965, O 69, r 2 (6).(3) The certificate shall be sealed with the seal of the Court.cf RSC (Rev) 1965, O 69, rr 2 (7), 3 (6).(4) The registrar shall send the certificate to the Director-General of the Attorney General’s Department or, if the letter of request or any relevant convention so requires, to the appropriate consul or other authority.cf RSC (Rev) 1965, O 69, rr 2 (7), 3 (6).rule 57.5: Am 1.4.1977; 20.7.1990; 21.7.1995.
Part 58 Taking evidence for foreign and Australian courts and tribunals
pt 58, Heading: Subst 19.5.1989.
1 Procedure
(1) Proceedings for orders under section 33 of the Evidence on Commission Act 1995 (the subject Act) in relation to a matter pending before a requesting court:(a) may be commenced by a person nominated for that purpose by the requesting court or, if no person is so nominated, by the Attorney-General,(b) shall be commenced by summons not joining any person as a defendant, and(c) shall be commenced in the Common Law Division.cf RSC (Rev) 1965, O 70, r 2 (1).(2) Where proceedings have been commenced in accordance with subrule (1) in relation to a matter pending before a requesting court, an application for a further order in relation to the same matter shall be made by motion in the proceedings.cf RSC (Rev) 1965, O 70, r 2 (3).(3) Rules 2 to 5 have effect unless the Court otherwise orders.cf RSC (Rev) 1965, O 70, rr 4 (2), 5.rule 58.1: Am 28.10.1977; 19.5.1989; 17.11.1989; 21.7.1995.
2 Provisions of Part 27 applied
cf RSC (Rev) 1965, O 70, r 4 (2).
Subject to rules 3, 4, 5 and 6 of this Part, rules 3 to 11 of Part 27 (which relates to taking evidence otherwise than at the trial) apply to an examination pursuant to an order under this Part as if the matter pending before the requesting court were proceedings in the Court and as if the order were made under Part 27 rule 1A in those proceedings and as if, where a Judge, master or registrar is appointed under section 33 of the subject Act, orders were made under Part 27 rule 1A for the examination of a person on oath before a Judge, master or registrar.rule 58.2: Am 23.5.1980; 19.5.1989; 24.11.2000.
3 Attendance of applicant
The person commencing proceedings under this Part may attend and take part in the examination.
4 Deposition and exhibits
cf Convention Rules, r 5 (h); Foreign Tribunals Evidence and Service of Process Rules, r 5.
(1) Subrules (5) and (6) of rule 9 of Part 27 do not apply to an examination under this Part.(2) The examiner shall send the deposition and any document which constitutes a recording under Part 27 rule 8A (which relates to videotape, etc) to the registrar.cf RSC (Rev) 1965, O 70, r 5.(3) Where the examiner receives an exhibit on production by any person the examiner shall, on the conclusion of the examination, return the exhibit to the person producing it unless that person consents to the retention of the exhibit.(4) Where the examiner retains an exhibit pursuant to subrule (3), he shall send the exhibit to the registrar together with the deposition.rules 58.4, 58.5: Am 1.4.1977; 19.5.1989.
5 Certificate
cf RSC (Rev) 1965, O 70, r 5.
Upon receipt of a deposition taken under this Division, the registrar shall:(a) give a certificate sealed with the seal of the Court annexing and identifying the request, the order of the Court for examination, the deposition, any document which constitutes a recording under Part 27 rule 8A and the exhibits (if any) received from the examiner, and(b) send the certificate and the annexures to the Attorney-General or, where the request was sent to the registrar by some other person pursuant to a convention, to that other person.rules 58.4, 58.5: Am 1.4.1977; 19.5.1989.
6 Privilege of witness
cf RSC (Rev) 1965, O 70, r 6.
(1) This rule applies where a claim by a witness to be exempt from giving any evidence on the ground specified in section 34 (1) (b) of the subject Act is not supported or conceded as mentioned in section 34 (2) of that Act.(2) The examiner may require the witness to give the evidence to which the claim relates and, if the examiner does not do so, the Court may do so on the application, not joining any person as a defendant, of the person who obtained the order under section 33 of the subject Act.(3) If the evidence is taken:(a) it must be contained in a document separate from the remainder of the deposition of the witness,(b) the examiner shall send to the registrar with the deposition a statement signed by the examiner setting out the claim and the ground on which it was made,(c) on receipt of the statement the registrar shall, despite rule 4, retain the document containing the part of the witness’s evidence to which the claim relates and shall send the statement and a request to determine the claim to the requesting court with the documents mentioned in rule 4,(d) the registrar shall:(i) if the claim is rejected by the requesting court—send to that court the document containing that part of the witness’s evidence to which the claim relates, orand notify the witness and the person who obtained the order of the requesting court’s determination.(ii) if the claim is upheld by the requesting court—send the document to the witness,rule 58.6: Ins 19.5.1989. Am 21.7.1995; 22.9.1995.
pt 59, Heading: Subst 2.10.1992.
1 Interpretation
In this Part, unless the context or subject matter otherwise indicates or requires, each of the expressions:judgment,judgment creditor, andjudgment debtor,in its application to proceedings under Part 2 of the Administration of Justice Act 1924 (the 1924 Act) has the meaning which it has in that Part of that Act and, in its application to proceedings under the Foreign Judgments Act 1973 (the 1973 Act), has the meaning which it has in that Act.rule 59.1: Am 5.10.1973; 23.12.1988.
1A Saving
The purposes for which these rules are made include the purposes of Part 2 of the 1973 Act and, so far as they are made for the purposes of Part 2 of the 1973 Act, shall have effect in relation to any judgment registered or sought to be registered under the 1973 Act, subject to any such provisions contained in orders made under section 5 of that Act as are declared by those orders to be necessary for giving effect to any agreement made by or on behalf of the Government of the State in relation to matters with respect to which there is power to make rules for the purposes of Part 2 of that Act.rule 59.1A: Ins 5.10.1973. Am 8.10.1982.
2 Commencement of proceedings
(1) Proceedings for registration of a judgment under Part 2 of the 1924 Act or Part 2 of the 1973 Act shall be commenced in the Common Law Division by summons joining the judgment creditor as plaintiff and the judgment debtor as defendant.cf RSC (Rev) 1965, O 71, r 2 (1), (2).(2) The judgment creditor may, unless the Court otherwise orders, proceed without service of the summons on the judgment debtor.cf foreign Judgments Enforcement Rules, r 2; RSC (Rev) 1965, O 71, r 2.(3) Where the judgment creditor adds to the summons a request that the application be granted under this rule, the Court may make the order in the absence of the public and without any attendance by or on behalf of the judgment creditor.rule 59.2: Am 5.10.1973; 26.8.1988; 2.10.1992.
3 Evidence
(1) The evidence in support of an application for registration of a judgment shall include:(a) the judgment or a verified or certified or otherwise duly authenticated copy of the judgment,(b) where the judgment is not in English, a translation of the judgment in English, certified by a notary public or authenticated by evidence,(c) evidence showing:(i) the name and trade or business, and the usual or last known place of abode or of business, of the judgment creditor and of the judgment debtor so far as known to the deponent or witness giving the evidence,(ii) where the application is made under the 1973 Act, which, if some only, provisions of the judgment are the subject of the application, and(iii) the amount originally payable under the judgment,(d) evidence, to the best of the information or belief of the deponent or witness giving the evidence, showing:(i) that the judgment creditor is entitled to enforce the judgment,(ii) the extent to which the judgment is unsatisfied, and(iii) where the application is made under the 1924 Act, that the judgment does not fall within section 5 (2) of that Act, and(e) where the application is made under the 1973 Act, evidence, to the best of the information or belief of the deponent or witness giving the evidence, showing:(i) that, at the date of the application, the judgment can be enforced by execution in the country of the original court and that, if it were registered in the Court, the registration would not be, or be liable to be, set aside under section 8 of that Act, and(ii) where interest is payable by the law of the country of the original court on any money which is payable under the judgment:(A) the rate of interest,(B) the amount of interest which has become due under the judgment up to the time of application for registration, and(C) the daily amount of interest which, subject to any future payment on account of the judgment, will accrue after the date of the application, and(f) where the application is made under the 1973 Act, such other evidence as may be required having regard to any order made under section 5 of that Act applying that Act to the country of the original court,(g) where proceedings for registration are not commenced within the period mentioned in section 5 (1) of the 1924 Act or in section 6 (1) of the 1973 Act, whichever Act is applicable, the reasons why a longer period should be allowed.cf FJER, r 3; RSC (Rev) 1965, O 71, r 3 (1), (2).(2) The evidence referred to in subrule (1) shall relate to those provisions of the judgment which are the subject of the application.(3) All amounts of money referred to in this rule shall be expressed:(a) in the currency in which the judgment is expressed, and(b) as an equivalent amount in Australian currency based on the rate of exchange prevailing on the date of the judgment.rule 59.3: Am 2.6.1972; 5.10.1973; 2.10.1992.
3A Security for costs
cf RSC (Rev) 1965, O 71, r 4.
For the purposes of proceedings under the 1924 Act or the 1973 Act, the Court may make an order under Part 53 rule 2 (1) (which relates to orders to give security for costs) otherwise than on the application of the judgment debtor.rule 59.3A: Ins 5.10.1973. Am 2.10.1992.
4 Order for registration
(1) Where the Court orders that a judgment be registered, the Court shall fix a time within which the judgment debtor may file notice of a motion for an order setting aside the registration.cf Foreign Judgments Enforcement Rules, r 4; RSC (Rev) 1965, O 71, r 5 (3).(2) The time fixed under subrule (1) shall not, save in exceptional circumstances, be less than 14 days after service on the judgment debtor of notice of the registration.cf FJER, r 4.(3) An order under the 1924 Act for registration of a judgment shall specify the amount (exclusive of costs of and incidental to the registration of the judgment) for which the judgment may be enforced.cf FJER, r 4 Form 1.(4) An order under the 1973 Act for registration of a judgment shall specify the extent to which the judgment may be enforced.rule 59.4: Am 2.10.1992.
5 Registration
(1) A register of judgments under the 1924 Act and a register of judgments under the 1973 Act shall be kept in the registry of the Common Law Division.cf RSC (Rev) 1965, O 71, r 6.(2) On entry of an order under the 1924 Act for registration of a judgment, the judgment shall be entered in the appropriate register.(3) On entry of an order under the 1973 Act for registration of a judgment, entries shall be made in the appropriate register in accordance with the order.rule 59.5: Am 5.10.1973; 2.10.1992.
6 Notice of registration
(1) Notice of registration of a judgment shall be served on the judgment debtor.cf FJER, r 5; RSC (Rev) 1965, O 71, r 7 (1).(2) Service of the notice must be personal except where:(a) the judgment debtor has entered an appearance or is in default of appearance, or(b) the Court otherwise orders.cf FJER, r 5; RSC (Rev) 1965, O 71, r 7 (1), (2).(3) The notice of registration shall state:(a) particulars of the judgment and of the order for registration,(b) the right of the judgment debtor to apply for an order setting aside the registration, and(c) the time within which the judgment debtor may file notice of a motion for an order setting aside the registration.cf FJER, r 5 Form 2; RSC (Rev) 1965, O 71, r 7 (3).(4) Where the summons has not been served on the judgment debtor, the notice of registration shall also state the address for service of the judgment creditor.cf FJER, r 5 Form 2; RSC (Rev) 1965, O 71, r 7 (3).
7 Setting aside registration
(1) The Court may, before the expiry of time fixed by an order for registration or by an order under this subrule as the time within which the judgment debtor may file the notice of a motion for an order setting aside the registration, extend the time so fixed.cf RSC (Rev) 1965, O 71, r 5 (4).(2) Subject to subrule (3), the Court may, on motion by the judgment debtor, make an order setting aside the registration.cf RSC (Rev) 1965, O 71, r 9 (3).(3) Notice of motion for the order must be filed within the time fixed under rule 4 (1) or under subrule (1).rule 59.7: Am 2.10.1992.
8 Enforcement
(1) Subject to this rule, upon registration of a judgment, the judgment may, to the extent to which the judgment may be enforced as specified in the order for registration, be enforced as a judgment of the Court in the proceedings in which the judgment is registered.cf Sheriff’s Rules, r 7; SR & O 1920 (Eng) No 1250.(2) The judgment creditor shall not take any step for enforcement of the judgment until an affidavit of service of the notice of registration is filed or the Court is otherwise satisfied that the requirements of these rules as to service of the notice of registration have been fulfilled.cf FJER, r 11; RSC (Rev) 1965, O 71, r 10 (3).(3) During the period before the expiry of the time fixed under rule 4 (1) or under rule 7 (1) within which the judgment debtor may file notice of a motion for an order setting aside the registration:(a) the judgment creditor shall not apply for the issue of a writ for levy of property or for a writ of sequestration,(b) the judgment creditor shall not move for payment pursuant to a garnishment notice under Part 46,(c) the judgment creditor shall not take any proceedings to have the benefit of a charge arising under an order made under section 27 (1) of the Judgment Creditors’ Remedies Act 1901, and(d) the judgment creditor shall not, except by leave of the Court, take any other step for enforcement of the judgment.cf FJER, r 7 (1); RSC (Rev) 1965, O 71, r 10 (1).(4) Where the judgment debtor files, within the time fixed under rule 4 (1) or under rule 7 (1), notice of a motion for an order setting aside the registration, the judgment creditor shall not apply for the issue of a writ for levy of property or for a writ of sequestration nor, except by leave of the Court, take any other step for enforcement of the judgment until after the disposal of the motion.(5) Neither of subrules (3) and (4) limits the operation of the other subrule.rule 59.8: Am 5.10.1973; 2.10.1992.
Part 59A Foreign Judgments Act 1991 of the Commonwealth
pt 59A (Rules 59A.1–59A.9): Ins 2.10.1992.
1 Foreign judgments
In this Part, unless the context or subject matter otherwise indicates or requires each of the expressions:judgment,judgment creditor,judgment debtor, andmoney judgment,has the meaning which it has in the Foreign Judgments Act 1991 of the Commonwealth (the subject Act).pt 59A (Rules 59A.1–59A.9): Ins 2.10.1992.
2 Commencement of proceedings
(1) Proceedings for registration of a judgment under Part 2 of the subject Act shall be commenced in the Common Law Division by summons joining the judgment creditor as plaintiff and the judgment debtor as defendant.(2) The judgment creditor may, unless the Court otherwise orders, proceed without service of the summons on the judgment debtor.(3) Where the judgment creditor adds to the summons a request that the application be granted under this rule, the Court may make the order in the absence of the public and without any attendance by or on behalf of the judgment creditor.pt 59A (Rules 59A.1–59A.9): Ins 2.10.1992.
3 Evidence
(1) The evidence in support of an application for registration of a judgment shall include:(a) the judgment or a verified or certified or otherwise duly authenticated copy of the judgment,(b) where the judgment is not in English, a translation of the judgment in English, certified by a notary public or authenticated by evidence,(c) evidence showing:(i) the name and trade or business, and the usual or last known place of abode or of business, of the judgment creditor and of the judgment debtor so far as known to the deponent or witness giving the evidence,(ii) which, if some only, provisions of the judgment are the subject of the application,(iii) where it is a money judgment, the amount originally payable under the judgment, and(iv) that the Court is the appropriate court under section 6 (1) of the subject Act,(d) evidence to the best of the information or belief of the deponent or witness giving the evidence showing:(i) that the judgment creditor is entitled to enforce the judgment,(ii) that, at the date of the application, the judgment can be enforced by execution in the country of the original court and that, if it were registered in the Court, the registration would not be, or be liable to be, set aside under section 7 of the subject Act,(iii) where interest is payable by the law of the country of the original court on any money which is payable under the judgment:(A) the rate of interest,(B) the amount of interest which has become due under the judgment up to the time of application for registration, and(C) the daily amount of interest which, subject to any future payment on account of the judgment, will accrue after the date of the application, and(iv) the extent to which the judgment is unsatisfied, and(e) such other evidence as may be required having regard to any regulations made under the subject Act.(2) The evidence referred to in subrule (1) shall relate to those provisions of the judgment which are the subject of the application.(3) All amounts of money referred to in this rule shall be expressed:(a) in the currency in which the judgment is expressed, and(b) where the judgment creditor has not made a statement under section 6 (11) (a) of the subject Act, as an equivalent amount in Australian currency based on the rate of exchange prevailing on the day of the application for registration.pt 59A (Rules 59A.1–59A.9): Ins 2.10.1992.
4 Security for costs
For the purposes of proceedings under the subject Act, the Court may make an order under Part 53 rule 2 (1) (which relates to orders to give security for costs) otherwise than on the application of the judgment debtor.pt 59A (Rules 59A.1–59A.9): Ins 2.10.1992.
5 Order for registration
(1) The time fixed under section 6 (4) of the subject Act shall not, save in exceptional circumstances, be less than 14 days after service on the judgment debtor of notice of the registration.(2) An order for registration of a judgment shall specify the extent to which the judgment may be enforced.pt 59A (Rules 59A.1–59A.9): Ins 2.10.1992.
6 Registration
(1) A register of judgments under the subject Act shall be kept in the registry of the Common Law Division.(2) On entry of an order for registration of a judgment, entries shall be made in the register in accordance with the order.pt 59A (Rules 59A.1–59A.9): Ins 2.10.1992.
7 Notice of registration
(1) Notice of registration of a judgment shall be served on the judgment debtor.(2) Service of the notice must be personal except where:(a) the judgment debtor has entered an appearance or is in default of appearance, or(b) the Court otherwise orders.(3) The notice of registration shall state:(a) particulars of the judgment and of the order for registration,(b) the right of the judgment debtor to apply for an order:(i) setting aside the registration, and(ii) staying enforcement of the judgment, and(c) the time within which the judgment debtor may file notice of a motion for an order setting aside the registration.(4) Where the summons has not been served on the judgment debtor, the notice of registration shall also state the address for service of the judgment creditor.pt 59A (Rules 59A.1–59A.9): Ins 2.10.1992.
8 Setting aside registration
(1) The Court may, before the expiry of time fixed by an order for registration or by an order under this subrule as the time within which the judgment debtor may file the notice of a motion for an order setting aside the registration, extend the time so fixed.(2) Subject to subrule (3), the Court may, on motion by the judgment debtor, make an order setting aside the registration.(3) Notice of motion for the order must be filed within the time fixed under section 6 (4) of the subject Act or under subrule (1).pt 59A (Rules 59A.1–59A.9): Ins 2.10.1992.
9 Enforcement
(1) Subject to this rule, upon registration of a judgment, the judgment may, to the extent to which the judgment may be enforced as specified in the order for registration, be enforced as a judgment of the Court in the proceedings in which the judgment is registered.(2) The judgment creditor shall not take any step for enforcement of the judgment until an affidavit of service of the notice of registration is filed or the Court is otherwise satisfied that the requirements of these rules as to service of the notice of registration have been fulfilled.(3) During the period before the expiry of the time fixed under section 6 (4) of the subject Act or under rule 8 (1) within which the judgment debtor may file notice of a motion for an order setting aside the registration:(a) the judgment creditor shall not apply for the issue of a writ for levy of property or for a writ of sequestration,(b) the judgment creditor shall not move for payment pursuant to a garnishment notice under Part 46,(c) the judgment creditor shall not take any proceedings to have the benefit of a charge arising under an order made under section 27 (1) of the Judgment Creditors’ Remedies Act 1901, and(d) the judgment creditor shall not, except by leave of the Court, take any other step for enforcement of the judgment.(4) Where the judgment debtor files, within the time fixed under section 6 (4) of the subject Act or under rule 8 (1), notice of a motion for an order setting aside the registration, the judgment creditor shall not apply for the issue of a writ for levy of property or for a writ of sequestration nor, except by leave of the Court, take any other step for enforcement of the judgment until after the disposal of the motion.(5) Neither of subrules (3) and (4) limits the operation of the other subrule.pt 59A (Rules 59A.1–59A.9): Ins 2.10.1992.
Part 60 Masters
Division 1 General
1 Interpretation
In this Part decision includes a judgment, order, opinion, direction, determination or certificate.rule 60.1: Ins 23.9.1988.
1A Powers
(1) A master may exercise the powers of the Court:(a) under the provisions of the Acts and regulations and Acts and regulations of the Commonwealth mentioned in column 1 of Part 1 of Schedule D,(b) subject to subrule (4), under any of the provisions of the rules or of the Supreme Court (Corporations) Rules 1999,(c) in respect of the matters mentioned in Part 3 of Schedule D and in Part 2 of Schedule E.(2) The matter in column 2 of Parts 1 and 2 of Schedule D is inserted for convenience of reference only and does not affect the operation of the rules.(3) In relation to any provision mentioned in column 1 of Part 1 of Schedule D, subrule (1) (a) has effect subject to the restriction (if any) appearing beside that provision in column 3.(4) A master may not exercise the powers of the Court under any of the provisions of the rules mentioned in column 1 of Part 2 of Schedule D except to the extent (if any) specified opposite that provision in column 3.(4A) In intellectual property cases (within the meaning of Part 81 rule 2 (b)), a master may, by consent of the parties, give any direction under Part 26.(5) In proceedings commenced before 1 July 1972, a master may exercise any power formerly exercisable by the Prothonotary.(6) A master may exercise the powers of the Court for the purposes of, and in respect of all matters incidental to, the exercise of his powers under subrule (1) or under any Act or regulation or under any other provision of the rules.(7) The generality of the powers granted by subrule (6) shall not be restricted by reason of the grant under subrule (1) of specific powers.rule 60.1A (previously Rule 60.1): Subst 20.10.1972. Am 24.8.1973; 22.7.1977; 28.10.1977; 30.6.1982; 30.8.1985; 25.9.1987. Renumbered 23.9.1988. Am 27.3.1992; 31.3.1994; 24.12.1999; 19.12.2003.
2 Distribution of business
Where there are two or more masters in a Division, the distribution of business amongst the masters shall, subject to any direction of the Court, be by direction of the senior master present.
3 Judgment or order
A master shall, on the disposal of any matter before him, give such judgment or make such order as the nature of the case requires, except where, by the rules or by any judgment or order, he is required to state his determination in a certificate or in some other manner.rule 60.3: Am 30.3.1990.
4 Certificate
(1) A master may give a certificate as to any matter arising or decision made in the course of proceedings before him.(2) Where proceedings are before a master pursuant to a judgment or order, the certificate of the master shall refer to so much only of the judgment or order as is necessary to show upon what the determination of the master is founded.cf RSC (Rev) 1965, O 44, r 21 (2).(3) The certificate of a master shall not refer to documents or evidence except so far as is necessary to show upon what the determination of the master is founded.cf RSC (Rev) 1965, O 44, r 21 (2).(4) The certificate of a master shall not, except where necessary, set out the reasons for the determination of the master.cf RSC (Rev) 1965, O 44, r 21 (2).(5) The certificate of a master as to an account taken under a judgment or order shall:(a) specify, by reference to the numbers of the items in the account, the items (if any) disallowed or varied, and(b) specify the additions (if any) by way of surcharge or otherwise.cf RSC (Rev) 1965, O 44, r 21 (3).(6) This rule does not apply where any proceedings, question or issue are or is referred to a master under Part 72 rule 2 (which relates to reference to an arbitrator etc).rule 60.4: Am 22.11.1985.
Division 2 Reference and removal to Judge
5 Interpretation
In this Division, Court means the Court constituted by a Judge.
6 Reference
cf Prothonotary (Chamber Work) Rules, r 8; RSC (Rev) 1965, O 32, r 12.
A master may, of his own motion or on application by a party, refer any proceedings before him to the Court.
7 Removal
cf Act No 24, 1901, s 80 (1); RSC (Rev) 1965, O 44, r 20 (1).
The Court, before the conclusion of any proceedings before a master, may, on application by a party, order that the proceedings be removed into the Court.
8 Disposal
cf P (CW) R, r 8; RSC (Rev) 1965, O 32, r 12.
Upon the reference of any proceedings to the court under rule 6, or the removal of any proceedings into the Court under rule 7, the Court may:(a) hear and determine any matter in the proceedings in respect of which matter the proceedings were before the master, or(b) determine any question arising in the proceedings and remit the proceedings to the master with such directions as the Court thinks fit.rule 60.8: Am 7.12.1984.
Division 3 Appeal to Judge
9 Interpretation
In this Division, Court means the Court constituted by a Judge.
10 Right of appeal
cf Act No 24, 1901, s 80 (1); P (CW) R, r 9; RSC (Rev) 1965, O 44, r 23, O 58, r 1.
An appeal shall lie to the Court from any decision of a master, except in any case where an appeal lies to the Court of Appeal pursuant to rule 17.rule 60.10: Am 23.9.1988; 24.6.1994.
11 Institution of appeal
(1) An appeal under this Division shall be instituted by filing a notice of appeal.(2) The appeal shall be instituted within 28 days after the material date or within such extended time as the master or the Court may fix.(3) The master may extend time under subrule (2) only within 28 days after the material date or on a notice of motion filed within 28 days after the material date.(4) The Court may extend time under subrule (2) at any time.(5) For the purposes of this rule the material date is:(a) in the case of an appeal from a judgment given by the master—the date on which the judgment was given,(b) in the case of an appeal from an order of a master—the date of the order, and(c) in any other case—the date of the decision under appeal.rule 60.11: Am 2.6.1972; 23.9.1988; 30.3.1990.
12 Notice of motion for appeal—contents
cf Court of Appeal Rules, r 3 (2).
A notice of appeal under this Division shall state:(a) whether the notice of appeal is from the whole or part only, and what part, of the decision of the master,(b) briefly, but specifically, the grounds relied upon in support of the notice of appeal,(c) what judgment, order or determination the appellant seeks in place of the decision of the master.(d) (Repealed)rule 60.12: Am 2.6.1972; 20.10.1972; 19.7.1985.
13 Service and additional filing
(1) On the date of instituting an appeal, the appellant shall:(a) serve the notice of appeal on each respondent, and(b) file a copy of the notice of appeal.(2) The copy filed under subrule (1) (b) shall be for the use of the master.rule 60.13: Am 2.6.1972.
14 Stay and reinstatement
(1) An appeal under this Division shall not:(a) operate as a stay of execution or of proceedings under the decision of the master,except so far as the Court may direct or, subject to any direction of the Court, as the master may direct.(b) invalidate any intermediate act or proceedings,cf CAR, r 11; P (CW) R, r 14.(2) Where any step has been taken for the enforcement of a judgment or order and the Court varies or sets aside the judgment or order on appeal under this Division, the Court may make such orders for reinstatement as the Court thinks fit.cf CAR, r 11 (2).rule 60.14: Am 25.10.1991.
14A Cross-appeal
(1) Where a respondent to an appeal from any decision wishes to appeal from the whole or any part of the decision, he shall file a notice of cross-appeal.(2) A notice of cross-appeal by a respondent must be filed within 28 days after service of the notice of appeal on him.(3) Subject to subrules (1), (2) and (4), the provisions of these rules relating to a notice of appeal apply to a notice of cross-appeal.(4) Rule 11 does not apply to a cross-appeal.rule 60.14A: Ins 23.9.1988.
15 Evidence
(1) (Repealed)(2) Oral evidence shall not be adduced on an appeal under this Division except by leave of the Court.(3) An appellant who proposes to adduce further evidence on an appeal shall:(a) if the evidence is to be by affidavit on each respondent, ornot more than 7 days after the date of institution of the appeal.(b) if the evidence is to be adduced orally, serve on each respondent a statement of the general nature of the evidence,rule 60.15: Am 2.6.1972.
15A Notice of contention
Where a respondent to an appeal wishes to contend that the decision of the master should be affirmed on grounds other than those relied upon by the master, but does not seek a discharge or variation of any part of the decision of the master, he need not file a notice of cross-appeal but he must, within 28 days after service of the notice of appeal on him:(a) file notice of that contention stating briefly but specifically, the grounds relied upon in support of the contention, and(b) serve the notice on each other party to the appeal.rule 60.15A: Ins 23.9.1988.
16 (Repealed)
rule 60.16: Rep 2.6.1972.
Division 4 Appeal to the Court of Appeal
17 Cases for appeal
An appeal shall lie to the Court of Appeal in accordance with section 101 and 103 of the Act, subject however to the leave of the Court of Appeal in any case to which subsections (2) and (4) of section 101 apply, from any decision of the Court in a Division constituted by a master:(a) upon a trial pursuant to Schedule D Part 3 paragraphs 1, 2, 3, 3A, 4 (a), 8, 9, 17, 17A, 24, 25, 26, 27 and 28,(a1) in proceedings referred pursuant to Schedule D Part 3 paragraphs 5, 5A and 5B,(b) in proceedings under the provisions (except sections 13 to 21 inclusive, which relate to guardianship) of the Testator’s Family Maintenance and Guardianship of Infants Act 1916,(c) in proceedings under section 14 or section 22 of the Married Persons (Property and Torts) Act 1901,(d) in proceedings under the Family Provision Act 1982,(e) in proceedings under the Property (Relationships) Act 1984,(f) in proceedings on an application for review of taxation of costs,(g) in proceedings under section 208L or section 208M or section 208N of the Legal Profession Act 1987,(h) in proceedings under section 13 of the Married Persons (Equality of Status) Act 1996,(i) in proceedings determining a question of costs with respect to a matter that has been otherwise finalised,(j) on an application to extend a period of limitation, fixed by or under an enactment, within which original proceedings must be brought, or(k) where the decision of the master is a final decision other than:(i) a decision on an application for a summary judgment, or(ii) a decision on an application for a summary dismissal of proceedings.rule 60.17: Am 20.10.1972; 15.12.1972; 23.2.1973; 1.6.1973; 23.7.1976; 29.4.1977; 28.10.1977; 25.9.1981; 30.10.1981; 8.7.1983; 23.9.1988; 20.10.1989; 20.4.1990; 20.7.1990; 24.6.1994; 23.5.1997; 21.5.1999; 20.8.1999; 21.7.2000; 29.11.2002; 5.9.2003; 28.11.2003; 27.8.2004.
Part 61 Registrars and chief clerk
pt 61, Heading: Am 30.3.1979.
Division 1 Registrars
1 Powers
(1) A registrar may exercise the powers of the Court:(a) under the provisions of these rules mentioned in column 1 of Part 1 of Schedule E, and(b) in respect of the matters mentioned in Part 2 of Schedule E.(2) The matter in column 2 of Parts 1 and 2 of Schedule E is inserted for convenience of reference only and does not affect the operation of the rules.(3) In relation to any provision mentioned in column 1 of Part 1 of Schedule E, subrule (1) has effect subject to the restriction (if any) appearing beside that provision in column 3.(3A) In intellectual property cases (within the meaning of Part 81 rule 2 (1) (b)), a registrar may, by consent of the parties, give any direction under Part 26.(4) A registrar may exercise the powers of the Court for the purposes of, and in respect of all matters incidental to, the exercise of his powers under subrule (10) or under any Act or under any other provision of the rules.(5) On a motion before a registrar, the powers of the Court under Part 19 (which relates to motions) shall be exercisable by the registrar.(6) A registrar may exercise the powers and perform the duties of any other registrar.(7) A registrar may exercise the powers and perform the duties of the Court under the Mutual Recognition Act or under the Trans-Tasman Mutual Recognition Act.rule 61.1: Subst 20.10.1972. Am 2.11.1973; 28.4.1978; 30.8.1985; 25.9.1987; 23.4.1993; 10.12.1993; 24.4.1998.
2 Mandatory order
cf Act No 23, 1912, s 147.
The Court may by order direct a registrar to do, in any proceedings, any act relating to the duties of his office.
2A Reference to Court
A registrar may, of his own motion, or on application by a party, refer any question arising in any proceedings before him for the direction of the Court.rules 61.2A, 61.2B: Ins 2.11.1973.
2B Certificate
(1) A registrar shall give a certificate as to the result of any account passed by him.(2) For the purposes of subrule (1), subrules (2), (3), (4) and (5) of Part 60 rule 4 (which relates to a certificate of a master) apply to a registrar and a certificate of a registrar as they apply to a master and a certificate of a master.(3) Subrules (1) and (2) do not apply in relation to accounts referred to in section 85 of the Wills, Probate and Administration Act 1898 or in Part 76 rule 37 (which relates to Protective Business).rules 61.2A, 61.2B: Ins 2.11.1973.
3 Review
(1) Where a registrar gives a direction or certificate or makes an order or decision or does any other act in any proceedings, the Court may, on motion by any party to the proceedings or application as the case may be, review the direction, certificate, order, decision or act and may make such order by way of confirmation, variation, discharge or otherwise as the Court thinks fit.(2) For the purpose of this rule, the material date is the date of the direction, certificate, order, decision or act to be reviewed.(3) Notice of the motion shall be filed within 28 days after the material date or within such extended time as the registrar or the Court may fix.(4) The registrar may extend time under subrule (3) only within 28 days after the material date or on a notice of motion filed within 28 days after the material date.(5) The Court may extend time under subrule (3) at any time.(6) This rule does not apply to:(a) an order to which Part 80 rule 23A (1) or Part 80A rule 21 (1) or rule 16.1 of the Supreme Court (Corporations) Rules 1999 (which relate to an order for the winding up of a company) applies, or(b) a direction, order, decision or other Act of a registrar in relation to the functions of the Court under the Mutual Recognition Act or under the Trans-Tasman Mutual Recognition Act.rule 61.3: Am 28.7.1978. Subst 23.9.1988. Am 25.10.1991; 23.4.1993; 10.12.1993; 25.2.1994; 25.8.1995; 24.4.1998; 24.12.1999; 19.12.2003.
4 Court of Appeal
The powers of the Court under this Part may, in respect of the registrar of the Court of Appeal, be exercised by a Judge of Appeal.
4A Practice in registries outside Sydney
The practice of the Sydney registry shall, so far as practicable, be followed in any other registry.rule 61.4A: Ins 6.7.1979. Am 14.11.1980.
Division 2 Chief clerk
pt 61, div 2: Ins 30.3.1979.
5 Powers
(1) The chief clerk may exercise the powers of a registrar:(a) under Part 41 (which relates to minutes and entry of judgments and orders),(b) under Part 74 rule 1A (which relates to minutes of judgment etc transferring proceedings between courts), Part 80 rule 6 (which relates to minutes of judgment etc under the Companies Code) or Part 41 rule 13 (3A) or Part 80A rule 6 (which relate to minutes of judgment etc under the Corporations Law),(c) under Schedule E Part 2 paragraphs 5 and 6 (which relates to certificates with respect to judgments and orders etc).(2) The word registrar in Part 41 rule 9 and Part 61 rules 2, 2A, 3 and 4 includes the chief clerk.rule 61.5: Ins 30.3.1979. Am 30.6.1982. Subst 30.3.1990. Am 22.5.1992; 25.2.1994; 24.5.1996; 24.12.1999 (see also 25.2.2000).
Part 62 Sheriff
Division 1 General
1 Definitions
In this Part, unless the context or subject matter otherwise indicates or requires:bill means bill of fees of the Sheriff.fees includes charges and poundage.person interested in relation to the fees of the Sheriff in respect of the service or execution of any process, means:(a) a party who lodges the process with the Sheriff for service or execution,(b) a solicitor who gives an undertaking to pay the fees or is otherwise liable to pay the fees, or(c) in the case of a writ of execution authorising the Sheriff to levy the fees on any property, the person upon whose property the levy is authorised.process includes a writ.
2 Service and execution at a distance
cf Sheriff’s Rules, r 11.
Where the service or execution of any process would require the Sheriff or his officer to go more than 60 kilometres from the nearest headquarters to any of his officers, the Sheriff shall not be compellable to serve or execute the process.rule 62.2: Am 1.10.1976.
3 Suspension of execution
(1) The Sheriff shall not suspend the execution of any process, except upon an absolute instruction in writing to that effect lodged with him by the party by whom the process is lodged.cf Sheriff’s Rules, r 13; RSC (Vic), O 67 (A), r 8.(2) A party who has lodged an instruction to suspend the execution of any process may withdraw the instruction by lodging with the Sheriff an instruction to execute the process.cf Sheriff’s Rules, r 13; RSC (Vic), O 67 (A), r 8.(3) Subrules (1) and (2) apply unless the Court otherwise orders.rule 62.3: Am 28.5.1982.
4 Default
(1) Where the Sheriff defaults by not executing any process according to its tenor, he shall be liable to punishment as if in contempt of Court.(2) Part 55 (which relates to contempt) applies to the punishment of the Sheriff under this rule as if his default were contempt of Court.
4A Reference to Court
The Sheriff may, of his own motion or on application by a party, refer any question relating to his powers or duties in any proceedings for the direction of the Court.rule 62.4A: Ins 28.5.1982.
Division 2 Fees
5 Security
(1) Where a party to any proceedings lodges any process with the Sheriff for service or execution, the Sheriff may, upon lodgment and from time to time after lodgment:(a) require the party to deposit with him money in an amount fixed by him to be applied in or towards satisfaction of his fees, or(b) as to the whole or any part of the fees, take an undertaking by the party’s solicitor to pay them instead of requiring a deposit.cf Sheriff’s Rules, r 3.(2) Where a party required to make a deposit under subrule (1) objects to the amount fixed by the Sheriff, the Court, on motion by the party, may, by order, fix the amount to be deposited.(3) The Sheriff may defer service or execution of any process until a deposit is made or an undertaking is given in accordance with this rule.cf Sheriff’s Rules, r 3.(4) Where it appears that the amount deposited under this rule exceeds the fees of the Sheriff, the Sheriff shall repay the excess to the party depositing the money or to his solicitor.cf Sheriff’s Rules, r 4.
6 Liability of solicitor
Where a party, by his solicitor, lodges with the Sheriff any process for service or execution the solicitor shall be liable for the fees of the Sheriff, whether or not the solicitor has given an undertaking pursuant to rule 5 (1) (b).
7 Bill
(1) The Sheriff shall, on the request of a person interested, furnish him with a bill.(2) The Sheriff may serve a bill on any person interested.
8 Taxation
(1) Subject to subrule (2), the Court may, on motion by a person interested, determine the amount of fees payable to the Sheriff.cf Sheriff’s Rules, r 7; SR & O 1920 (Eng) No 1250.(2) Where a bill has been served on or furnished to a person interested, a person may not apply for an order under this rule, except upon notice of motion filed within 7 days after the date of service or furnishing of the bill.(3) The notice of motion shall be served on the Sheriff and every other person interested.(4) Division 6 of Part 52 and rules 51, 52, 54, 57, 59, 60, 61 and 62 of that Part apply to a taxation under this rule as they apply to a taxation of costs and as if the Sheriff were a party.rules 62.8, 62.9: Am 24.6.1994.
9 Determination
(1) Where a bill is served on or furnished to a person interested by the Sheriff, the amount of fees shown in the bill shall, unless the Court otherwise orders, be binding as between the Sheriff and the person interested unless the person interested obtains an order under rule 8.(2) Where the fees are determined pursuant to an application by a person interested under rule 8, the amount determined shall, subject to any alteration on appeal, be binding as between the Sheriff and all persons interested.rules 62.8, 62.9: Am 24.6.1994.
10 Default by solicitor
cf Sheriff’s Rules, r 8.
Where in any proceedings a solicitor has given an undertaking to pay, or is otherwise liable to pay, any fees of the Sheriff, and the solicitor does not pay the fees within 7 days after the amount has become binding under rule 9 as between the solicitor and the Sheriff, the Court may, on motion in the proceedings by the Sheriff, order the solicitor to pay the fees to the Sheriff.
Part 63 Disability
1 Reference to tutor
Where it is necessary to refer to the office of a tutor, he shall be described as a tutor unless it is necessary to distinguish between the offices of next friend and guardian ad litem.
2 Need for tutor
(1) Subject to subrule (3), a disable person may not, except by his next friend, bring or make a claim or carry on any proceedings for relief in the Court.cf RSC (Rev) 1965, O 80, r 2 (1).(2) Subject to subrule (3), a disable person may not, except by his guardian ad litem:(a) defend any proceedings,(b) intervene in any proceedings, or(c) appear in any proceedings under a judgment or order.cf RSC (Rev) 1965, O 80, r 2 (1).(3) Where, in any proceedings, a disable person has a tutor, the disable person may, by his tutor, commence, carry on or defend any claim in those proceedings for relief under section 78 of the Act.cf RSC (Rev) 1965, O 80, r 2 (1).
3 Conduct of proceedings by tutor
(1) Subject to the rules, where a disable person is a party to any proceedings, anything which would, if he were not a disable person, be required or authorised by these rules to be done by him shall or may be done by his tutor.cf RSC (Rev) 1965, O 80, r 2 (2).(2) A tutor must act by a solicitor.cf RSC (Rev) 1965, O 80, r 2 (3).
4 Appointment of tutor generally
(1) Subject to subrule (5) and subject to rules 5 and 7, an order appointing a tutor is not necessary.cf RSC (Rev) 1965, O 80, r 3 (2).(2) A disable person may not be a tutor and a corporation may not be a tutor, but otherwise, and subject to subrule (3), any person may be a tutor.(3) A person may not be a tutor of a disable person in any proceedings in which he has an interest adverse to the interest of the disable person.cf RSC (Rev) 1965, O 80, r 3 (8) (c) (iii).(4) A person shall not be made a tutor without his consent.cf RSC (Rev) 1965, O 80, r 3 (8) (a).(5) Where a person has been or is tutor for a disable person in any proceedings, no other person may, except on appointment by the Court, act as tutor for the disable person in those proceedings.cf RSC (Rev) 1965, O 80, r 3 (4).(6) A person shall not take any step in any proceedings as tutor for a disable person unless beforehand there have been filed:(a) his consent to act, and(b) a certificate by his solicitor that the tutor has no interest in the proceedings adverse to that of the disable person.cf RSC (Rev) 1965, O 80, r 3 (8) (a).rule 63.4: Am 2.6.1972; 24.7.1998.
5 Appointment of tutor of incompetent person
(1) Where an incompetent person has a curator and the curator has or may be given authority, under the Protected Estates Act 1983, to bring or defend proceedings on behalf of the incompetent person, a person other than the curator shall not, unless the Court otherwise orders, act as tutor of the incompetent person in proceedings which the curator has or may be given authority to bring or defend.cf RSC (Rev) 1965, O 80, r 3 (3).(1A) (Repealed)(2) Where, after the commencement of proceedings, a party becomes an incompetent person, no step in the proceedings shall be taken by or against the incompetent person until a tutor for him has been appointed by the Court.cf RSC (Rev) 1965, O 80, r 3 (5).(3) A person shall not take any step in any proceedings as tutor for an incompetent person unless he has been appointed tutor by the Court or unless there has been filed (in addition to the documents mentioned in rule 4 (6)):(a) in a case to which subrule (1) applies, a certificate by the tutor that he is a curator for the incompetent person and specifying the date on which and the manner by which he became curator, or(b) in a case to which subrule (1) does not apply, a certificate by his solicitor that the solicitor knows or that he believes that subrule (1) does not apply and giving the grounds of his knowledge or belief.cf RSC (Rev) 1965, O 80, r 3 (8) (b) (c).rule 63.5: Am 28.6.1974; 29.6.1984; 20.9.1991; 10.12.1993; 22.5.1998.
6 Non-appearance by disable person
(1) Where originating process in any proceedings is served on a disable person and an appearance is required to be entered by the disable person within a limited time but no appearance is entered within that time, a party to the proceedings shall not take any step in the proceedings affecting the disable person until an appearance is entered by a tutor for the disable person.cf RSC (Rev) 1965, O 80, r 6 (4).(2) Where, in proceedings in the Equity Division (other than proceedings entered in the Commercial List, the Technology and Construction List or the Admiralty List or to which Part 76 or Part 78 applies), notice of a judgment or order is served on a disable person and an appearance is not entered for the disable person, the Court may stay proceedings under the judgment or order until an appearance is entered by a tutor for the disable person.cf RSC (Rev) 1965, O 80, r 6 (4).(3) (Repealed)rule 63.6: Am 2.6.1972; 28.6.1974; 7.8.1998; 23.10.1998; 19.2.1999; 25.6.1999; 19.10.2001 (see also 26.10.2001).
7 Appointment by the Court
(1) The Court may, on motion by a party to proceedings or any other person, appoint a tutor for a disable person for the purposes of the proceedings.cf RSC (Rev) 1965, O 80, rr 3 (4) (5), 6.(1A) A person moving for an appointment under this rule shall, unless the Court otherwise orders, serve notice of the motion on the disable person.cf RSC (Rev) 1965, O 80, r 6 (5) (d) (6).(2) The evidence on a motion for an appointment under subrule (1) shall include evidence:(a) that the person for whom the tutor is proposed to be appointed is a disable person,(b) that the proposed tutor:(i) consents to act,(ii) is a proper person for appointment, and(iii) has no interest in the proceedings adverse to the interest of the disable person,(c) that the disable party is in default of appearance, if that is the fact.cf RSC (Rev) 1965, O 80, r 6 (5) (7).rule 63.7: Am 28.6.1974.
8 Removal
(1) The Court may, on motion by a party to proceedings or by any other person or of its own motion:(a) remove a tutor, and(b) stay the proceedings until appointment of a tutor in place of the tutor removed.(2) A person moving for an order under this rule shall, unless the Court otherwise orders, serve notice of the motion on the tutor whose removal is sought and on the disable person for whom he is tutor.
9 No imputed admission on pleadings
cf RSC (Rev) 1965, O 80, r 8.
Part 15 rule 20 (1) does not apply to an opposite party who is a disable person.
10 Discovery and interrogatories
cf RSC (Rev) 1965, O 80, r 9.
Parts 23 and 24 apply to a disable person and to his tutor.
11 Compromise etc of matter suit
(1) Where proceedings have been commenced, and afterwards an agreement is made by the tutor in the proceedings of a disable person for the compromise or settlement of any matter in dispute in the proceedings, the Court may approve or disapprove the agreement.cf RSC (Rev) 1965, O 80, r 10.(2) An agreement approved by the Court under subrule (1) is binding on the disable person as if the disable person were not a disable person and his tutor were his agent to make the agreement.(3) An agreement disapproved by the Court under subrule (1) is not binding on the disable person.(4) This rule does not apply to an agreement for a compromise or settlement to which the Damages (Infants and Persons of Unsound Mind) Act 1929 applies.
12 (Repealed)
rule 63.12: Rep 23.6.1989.
13 Compromise etc before suit
(1) Where a claim enforceable by proceedings in the Court is made by or on behalf of, or against, a disable person and, before proceedings are commenced to enforce the claim, an agreement is made by or on behalf of the disable person for the compromise or settlement of the claim, the Court may approve or disapprove the agreement.cf RSC (Rev) 1965, O 80, r 11 (1) (5).(2) An agreement approved by the Court under subrule (1) is binding on the disable person by or on whose behalf it is made as if the disable person were not a disable person and, where the agreement is made by another person on behalf of the disable person as if that other person were his agent to make the agreement.(3) An agreement disapproved by the Court under subrule (1) is not binding on a disable person by or on whose behalf it is made.(4) Notwithstanding Part 4 rule 2 (which relates to cases where a statement of claim is required), a person may commence proceedings by summons for approval of an agreement under this rule and may, by summons, seek enforcement of the claim in case the Court does not approve the agreement.cf RSC (Rev) 1965, O 80, r 11 (1).(5) Where, in proceedings by summons under this rule, a claim is made under the Compensation to Relatives Act of 1897, the plaintiff shall file and serve with the summons a full particular of the matters specified in section 6 of that Act.cf RSC (Rev) 1965, O 80, r 11 (2).(6) (Repealed)rule 63.13: Am 23.3.1984.
14 Terms of approval
(1) The Court may give its approval under rule 11 or rule 13 on terms.(2) Without affecting the generality of subrule (1), the Court:(a) may, as a term of its approval, require that any money or other property payable or applicable to or for the benefit of a disable person be dealt with by way of settlement or otherwise as the Court thinks fit for the benefit of the disable person, and(b) may make such orders as it thinks fit for the carrying out of its requirements under paragraph (a).
15 Service
(1) This rule applies where, in any proceedings, a document is required to be served personally on a disable person.cf RSC (Rev) 1965, O 80, r 16 (1).(2) Personal service on a disable person shall not be effected otherwise than in accordance with this rule.(3) Where the disable person has a tutor in the proceedings, the document may be served on the tutor.(4) The document may be served on any person (including the disable person) whom the Court may, before or after service, approve.cf RSC (Rev) 1965, O 80, r 16 (3).(5) Where the person to be served is a minor, and has no tutor in the proceedings, the document may be served:(a) if he is aged 16 years or upwards, on him,(b) on a parent of his or a guardian of his person or of his estate, or(c) if he has no parent and has no guardian of his person or of his estate, on a person with whom he resides or in whose care he is.cf RSC (Rev) 1965, O 80, r 16 (2) (a).(6) Where the person to be served is an incompetent person and has no tutor in the proceedings, the document may be served:(a) if he has a curator, on the curator, or(b) if he has no curator, on a person with whom he resides or in whose care he is.cf RSC (Rev) 1965, O 80, r 16 (2) (b).(7) A document served pursuant to any of subrules (3) to (6) must be served in the manner required by the rules with respect to the document.cf RSC (Rev) 1965, O 80, r 16 (2).(8) A judgment or order requiring a disable person to do, or refrain from doing, any act, a notice of motion for the committal of a disable person, and a subpoena addressed to a disable person, must, in addition to any other service required by these rules, and notwithstanding anything in subrules (3) to (6), be served personally on the disable person.cf RSC (Rev) 1965, O 80, r 16 (4).(9) Subrule (8) does not apply to an order for interrogatories or for discovery or inspection of documents.cf RSC (Rev) 1965, O 80, r 16 (4).(10) This rule does not extend the jurisdiction of the Court over a disable person absent from the State.rule 63.15: Am 23.5.1980; 29.6.1984.
16 Delegation by Protective Commissioner
(1) Where, in proceedings in the Court, a person (the delegate) signs a document in exercise of a function delegated to the delegate under section 5A of the Protected Estates Act 1983, the delegate shall include in the document a statement:(a) of the delegate’s name and position,(b) that the document is signed in exercise of a function delegated under that section, and(c) if the delegate has not himself or herself previously signed such a document in the proceedings—a statement as to whether he or she has an interest in the proceedings adverse to that of the disable person.(2) The delegate shall, upon request by the Court, the registrar or a party to the proceedings, furnish to the person making the request a photocopy of the delegation certified by the delegate as being a true copy.rule 63.16: Ins 22.5.1998.
Part 64 Business names
1 Definitions
cf Act No 11, 1962, ss 4 (1), 5 (1) (a).
In this Part:business name means a name, style, title or designation under which a person carries on a business, not being a name consisting of the name of that person and the name of each other person, if any, in association with whom that person carries on business, without any addition.registered office, in relation to a limited partnership, means the registered office of the limited partnership for the time being shown in the register kept under the Partnership Act 1892.rule 64.1: Subst 21.2.1992.
2 Proceedings in business name
(1) Where a claim for relief is made against any person in respect of anything done or omitted or suffered in the course of, or otherwise relating to, a business carried on within the State by that person under a business name and that business name is not, on the date on which proceedings in the Court for that relief are commenced:(a) registered under and for the purposes of the Business Names Act 1962 in relation to that person, orthen, subject to this Part:(b) the firm-name of a limited partnership, within the meaning of Part 3 of the Partnership Act 1892, in which that person is a partner,(c) the proceedings may be commenced and prosecuted against that person in that business name,(d) that business name shall, for the purpose of the proceedings, be a sufficient designation of that person in any process or other legal document or instrument, and(e) any judgment given or order made in the proceedings may be enforced against that person or, where there are two or more such persons, against any of them.(2) Section 14 (3) of the Business Names Act 1962 (which subsection relates to proceedings in a business name) does not apply to proceedings in the Court.rule 64.2: Am 21.2.1992.
3 Service where unregistered business name
(1) Where a claim for relief is made against any person in respect of anything done or omitted or suffered in the course of, or otherwise relating to, a business carried on within the State by that person under a business name which is not:(a) registered under and for the purposes of the Business Names Act 1962 in relation to that person, orany originating process or other document in or relating to proceedings in the Court for that relief may be served on that person:(b) the firm-name of a limited partnership, within the meaning of Part 3 of the Partnership Act 1892, in which that person is a partner,(c) by leaving a copy of it at a place within the State where the business is carried on with some person apparently engaged (whether as servant or otherwise) in the business and apparently of or above the age of 16 years, or(d) by sending a copy of it by certified mail addressed to the business name or to the person to be served and addressed to a place within the State where the business is carried on.cf Act No 11, 1962, s 31 (2).(2) Subrule (1) applies whether the person to be served is sued in his own name or in a business name.(3) Service in accordance with subrule (1) shall have effect as personal service.cf Act No 11, 1962, s 31 (2).(4) Where a document is served in accordance with either of paragraph (a) and (b) of subrule (1), the place of service shall, for the purpose of the proceedings, be the place mentioned in that paragraph, wherever (whether within the State or not) the person served may be at the time of service.(4A) Where in any proceedings a copy of an originating process or other document is sent in accordance with subrule (1) (b), the time of service of the originating process or other document shall, for the purpose of the proceedings, be seven days after the copy is so sent.(5) This rule does not limit the operation of section 31 (2) of the Business Names Act 1962 or of any other Act or any rule or regulation relating to service.rule 64.3, headnote: Subst 21.2.1992.rule 64.3: Am 28.6.1974; 21.2.1992.
3A Service upon limited partnership
Where a claim for relief is made against any person in respect of anything done or omitted or suffered in the course of, or otherwise relating to, a business carried on within the State by a limited partnership, within the meaning of Part 3 of the Partnership Act 1892, in which that person is a partner, any originating process or other document in or relating to proceedings in the Court for that relief may be served on that person by leaving a copy of it at the registered office of the limited partnership or by sending a copy of it by certified mail addressed to the firm-name of the limited partnership at the registered office of the limited partnership.rule 64.3A: Ins 21.2.1992.
4 Appearance
(1) Where any person is sued in a business name, he shall not enter an appearance except in his own name.cf GRC, O 28, rr 10, 17.(2) Where any person enters an appearance in proceedings in which he is sued in a business name, he shall file and serve with his notice of appearance a statement of the names and places of residence of all the persons carrying on business under that business name on the date of commencement of the proceedings.cf RSC (Rev) 1965, O 81, r 2 (1) (3).(3) Where a person fails to comply with subrule (2), the Court may order that his appearance be struck out.
5 Amendment as to parties
(1) Where proceedings are commenced against any person in a business name, the plaintiff shall, as soon as practicable, take all reasonable steps (whether by way of discovery of documents, interrogatories or otherwise) for the purpose of ascertaining the name of the defendant and shall, so far as practicable, make amendments so that the proceedings are continued against the person sued in his own name and not in his business name.(2) Where proceedings are commenced against any person in a business name, the plaintiff shall not, without the leave of the Court, take any step in the proceedings, except in respect of service of the originating process and except for the purpose of compliance with subrule (1), until amendments are made in accordance with subrule (1).(3) Where an amendment is made under this rule, the mode of amendment and service after amendment shall be in accordance with rules 7, 8 and 9 of Part 20.(4) A party may make any amendment pursuant to rule 2 of Part 20 notwithstanding that he has made an amendment under this rule.rule 64.5: Am 2.6.1972.
6 Execution
(1) Where proceedings against a person in a business name are continued by leave given under rule 5, a judgment or order against that person in the business name shall not be enforced by execution except as mentioned in this rule.cf RSC (Rev) 1965, O 81, rr 5, 9.(2) A judgment or order against a person in a business name may be enforced by execution against any property of the business carried on under that name and where the judgment or order is against partners, against any other property which is property of the partnership.cf RSC (Rev) 1965, O 81, rr 5, 9.(3) In subrule (2), the expression property of the business, in relation to a judgment or order against a person in a business name, means all property and rights and interests in property, originally brought into the business carried on under that name or acquired, whether by purchase or otherwise, on account of the business, or for the purposes and in the course of the business, being property rights or interests of that person.cf RSC (Rev) 1965, O 81, rr 5, 9; 55 Vic No 12, s 20 (1).
7 Variation of judgment or order
(1) Notwithstanding rule 6, the Court may vary a judgment or order against a person in a business name so as to make it a judgment or order against that person in his own name and, when so varied, the judgment or order may be enforced accordingly.(2) Notice of a motion for a variation of a judgment or order under subrule (1) shall be served personally on the person against whom the judgment was given or the order was made, and rule 3 shall not apply to that service.
8 Discovery in aid of rules 5 and 7
(1) Where it appears to the Court that some person has or may have knowledge of facts, or has or may have in his possession, custody or power any document or thing, tending to assist in the ascertainment of the identity or description, of a defendant sued in a business name, the Court may, for the purpose of enabling amendments to be made under rule 5 or variation of a judgment or order to be made under rule 7:(a) order that person to attend before the Court or an officer of the Court and be orally examined on any matter relating to the identity or description of the defendant,(b) order that person to produce any document or thing in his possession custody or power relating to the identity or description of the defendant, and(c) if that person is a corporation, 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 defendant.(2) In subrule (1), description, in relation to a defendant, includes the name, place of residence, place of business, occupation and sex of the defendant.(3) Part 3 rule 2 (2), 3 and 4 (which relate to service conduct money, and expense and loss) apply in relation to an order under this rule as they apply in relation to an order under Part 3 rule 1.rule 64.8: Am 25.10.1974.
Part 65 Documents
1 First page of a document
(1A) In proceedings to which the Supreme Court (Corporations) Rules 1999 apply, this rule is subject to rule 1A.(1) A document in any proceedings shall be headed “In the Supreme Court of New South Wales” together with a reference to the appropriate Division or to the Court of Appeal and shall show the serial number of the proceedings.(2) A document in any proceedings between parties shall be entitled between the parties, and not otherwise.(2A) The description of any party as “plaintiff”, “defendant”, “cross-claimant” or “cross-defendant”, or as the case may be, shall not be preceded by any number other than (if so desired) a number corresponding to the actual position of that party in the group of parties in which that party is included.(3) A document in any proceedings in which there is no defendant shall be entitled “The application of” together with the name of the plaintiff, and not otherwise.(4) Except in the case of an originating process, a cross-claim, a document to be served on a person not a party to the proceedings or a minute of a final judgment or final order, a document may bear an abbreviation of the title of the proceedings sufficient to identify proceedings.cf Consolidated Equity Rules of 1902, r 4A.(5) The registrar may add to the title of any document filed or lodged in any proceedings in the Court any matter which he requires to add for the purpose of any record, search of which he permits.(6) The first page of a document prepared by a party for use in the Court shall be set out in the prescribed form.(7) At the foot of the left hand side of the first page of a document prepared by a party for use in the Court there shall be shown the name, address and telephone number of the solicitor for the party and, if the solicitor acts in the proceedings by an agent, the name, address and telephone number of the agent, and, where the address for service of the party is the office of a solicitor who has an exchange box in a document exchange of Australian Document Exchange Pty Limited, the solicitor’s exchange box number.(8) Where the party preparing a document for use in the Court is not represented by a solicitor, subrule (7) shall not apply but the document shall show the name and address for service of the party at the foot of the left hand side of the first page of the document.rule 65.1: Am 2.6.1972; 30.9.1977; 23.12.1977; 21.9.1979; 25.8.1995; 20.4.2000; 19.12.2003.
1A Proceedings to which the Supreme Court (Corporations) Rules 1999 apply
rule 65.1A, hdg: Ins 20.4.2000. Subst 24.11.2000. Am 19.12.2003.(1) Subject to subrule (2), in proceedings to which the Supreme Court (Corporations) Rules 1999 apply:(a) rule 1 (6) shall not apply, and(b) a document prepared by a party for use in the Court shall have a horizontal line drawn at the foot of the first page below which shall be shown the information required by rule 1 (7) or rule 1 (8).(2) In proceedings to which the Supreme Court (Corporations) Rules 1999 apply by reason of express application by these rules:(a) a form prescribed by the Supreme Court (Corporations) Rules 1999 shall be adapted to render it compatible with these rules, and(b) subrule (1) shall not apply.rule 65.1A: Ins 20.4.2000. Subst 24.11.2000. Am 19.12.2003.
2 Paper and writing
cf Court of Appeal Rules, r 42 (1) (a).
(1) This rule applies to a document prepared by a party for use in the Court, except to the extent that the nature of the document renders compliance impracticable.cf RSC (Rev) 1965, O 66, rr 1, 2 (1).(2) A document shall be on paper of durable quality, capable of receiving ink writing, and measuring about 297 millimetres long and 210 millimetres wide.cf RSC (Rev) 1965, O 66, r 1; High Court Rules, O 61, r 4 (1) (c).(3) Subject to the rules:(a) the writing on a document may be on:(i) only one face of the paper, orbut shall not, so far as practicable, be on:(ii) both faces of the paper,(iii) only one face of some of the paper, and(iv) both faces of some of the paper,(b) a document shall be securely fastened:(i) along the left hand side, orwithout obscuring the writing or the margin,(ii) where there is writing on only one face of the paper—at the top left hand corner,(c) on each face of the paper which bears writing, a margin of not less than 25 millimetres shall be kept clear on the left hand side, and(d) the pages of a document, and of an affidavit with an annexure or annexures, shall be consecutively numbered.cf HCR, O 61, r 4 (1) (d).(4) There shall be a space of not less than 3 millimetres between the lines of writing.cf HCR, O 61, r 4 (1) (d).(5) The writing shall be clear, sharp, legible and permanent.(6) A carbon copy shall not be filed.(7) A document shall not be filed if it bears any blotting, erasure, or such alteration as to cause material disfigurement.rule 65.2: Am 25.10.1974; 23.7.1976; 2.4.1982; 24.12.1982; 24.9.1993.
3 (Repealed)
rule 65.3: Am 2.6.1972; 21.10.1977. Rep 23.12.1977.
4 Numbers
cf RSC (Rev) 1965, O 41, r 1 (7).
Dates, sums and other numbers shall be expressed in figures and not in words.
5 Scandal etc
cf RSC (Rev) 1965, O 18, r 19 (1); O 41, r 6.
The Court may order to be struck out of any document any matter which is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive.
6 Charge of documents and records
(1) The registrar of each Division shall have charge of the documents in proceedings in the Division and of the records of the Division.(2) The registrar of the Court of Appeal shall have charge of the documents filed in proceedings in the Court of Appeal and of the records of the Court of Appeal.
7 Search
(1) A person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the Court.cf GRC, O 28, r 8.(2) Subject to subrules (2A) and (3), subrule (1) does not apply to a party to the proceedings or to the Registrar General or the Registrar of Births, Deaths and Marriages.cf GRC, O 28, r 8.(2A) A party must not search in the registry for or inspect any document in relation to an application under section 9 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth except with the leave of the Court.(3) A party may not search in the registry for or inspect any document in any proceedings for orders under Part 23 rule 6A (which relates to privilege from production) or Part 36 rule 13A (3) (which relates to experts’ reports) or under Part 36 rule 4A (9) (which relates to witness statements) except with the leave of the Court.(3A) Subject to subrule (3B), a person may not, except with the leave of the Court, inspect any order filed in the Court:(a) made by:(i) the Professional Standards Board under section 149, orof the Legal Profession Act 1987 as in force from time to time prior to 1 July 1994, or(ii) the Disciplinary Tribunal under section 154 (1),(b) made by the Legal Services Tribunal under section 171C of the Legal Profession Act 1987.(3B) Any person may inspect any order filed in the Court:(a) made by the Disciplinary Tribunal under section 163 of the Legal Profession Act 1987 as in force from time to time prior to 1 July 1994, or(b) made by the Legal Services Tribunal under section 171C of the Legal Profession Act 1987, if the order involves a finding of professional misconduct within the meaning of:(i) that Act, or(ii) the Conveyancers Licensing Act 1995.(4) A person to whom any document or thing is produced by the Court for inspection may make copies of or take extracts from the document or thing.rule 65.7: Am 7.12.1973; 13.6.1975; 30.4.1976; 1.7.1977; 6.7.1979; 2.4.1982; 24.12.1982; 26.9.1986; 22.9.1989; 24.6.1994; 23.2.1996; 1.3.1996; 19.7.1996.
8 Signing documents
A pleading, summons, notice of appearance, notice of motion, notice of appeal, statement, request, requisition, undertaking, list, account, note or other notice to be filed or served by a party or other person in any proceedings shall be signed by his solicitor or by him, if he has no solicitor.rule 65.8: Ins 2.6.1972. Am 26.3.1976; 30.4.1976; 26.9.1986.
Part 65A Legal profession
pt 65A: Ins 22.9.1989.
1 (Repealed)
rule 65A.1, hdg: Am 24.6.1994. Rep 24.7.1998.
rule 65A.1: Ins 22.9.1989. Am 24.6.1994. Rep 24.7.1998.
2 Assignment of business
(1) There are assigned to the Court of Appeal proceedings in the Court in the exercise of the disciplinary powers of the Court with respect to legal practitioners and interstate legal practitioners.(2) Proceedings in the Court under the Legal Profession Act 1987 (other than proceedings assigned to the Court of Appeal) are assigned to the Common Law Division.rule 65A.2: Ins 22.9.1989. Am 24.6.1994; 23.2.1996; 24.7.1998.
3 Removal or suspension elsewhere
(1) Any legal practitioner:(a) whose name is removed from a roll kept outside the State that corresponds to the Roll of Legal Practitioners in the Court,(b) who is prohibited (whether conditionally or unconditionally) from reinstatement to such a roll, orby reason of misconduct, is suspended from practice:(c) who is:(i) suspended from practising, oras a lawyer (whether known as a barrister, a solicitor, a barrister and solicitor, an attorney, a legal practitioner or otherwise) outside the State,(ii) prohibited (whether conditionally or unconditionally) from resuming practice,(d) in the case of removal—unless the Court otherwise orders,(e) in the case of suspension or prohibition—during the period of suspension or prohibition, unless the Court otherwise orders.(2) This rule does not apply to a cancellation or suspension:(a) in Australia under the Mutual Recognition Act, or(b) in New Zealand under the Trans-Tasman Mutual Recognition Act.rule 65A.3: Ins 22.9.1989. Am 21.5.1993; 24.6.1994; 24.4.1998; 24.12.1999.
4 (Repealed)
rule 65A.4: Ins 22.9.1989. Subst 24.6.1994. Rep 24.11.1995.
5 Appeal: practising certificate
(1) The Court may, on the application of a person who intends to appeal to the Court under section 38B of the Legal Profession Act 1987, make such orders as the nature of the case requires as if the person had instituted the appeal and the application were made in the proceedings on the appeal.(2) Notwithstanding Part 65 rule 1 in the title of a document in proceedings on the application or the appeal, the plaintiff may, subject to any order of the Court, be shown as “A solicitor”, without the plaintiff’s name.rule 65A.5: Ins 22.9.1989. Am 24.6.1994.
6 Furnishing information
The registrar shall furnish information that is required by section 48Y of the Legal Profession Act 1987 to be furnished by the Court.rules 65A.6, 65A.7: Ins 21.2.1997.
7 Removal from Roll pursuant to s 48Z (5) of the Legal Profession Act 1987
Unless the Court otherwise orders, the Prothonotary shall, pursuant to an order under section 48Z (5) of the Legal Profession Act 1987, remove from the Roll of Legal Practitioners in the Court the name of a legal practitioner upon the expiration of 10 days after a copy of the order is filed, being a copy that:(a) if the regulatory authority making the order is a tribunal—is signed by a member of the tribunal,(b) if the regulatory authority is a court—is signed by a Judge or Registrar of the Court, or(c) in any case—is sealed with the seal of the regulatory authority.rules 65A.6, 65A.7: Ins 21.2.1997.
Part 65B
1 (Repealed)
pt 65B (Rule 65B.1): Ins 22.9.1989. Rep 20.8.1993.
Part 65C Admission as legal practitioner
pt 65C: Ins 20.7.1990. Subst 24.6.1994.
Division 1 Application for admission
pt 65C, div 1, hdg: Ins 21.3.1997.
1 Application by person approved by a Board
A person who has been approved by:(a) the former Barristers Admission Board or the former Solicitors Admission Board as a suitable candidate for admission as a barrister or as a solicitor, ormay, unless the Court otherwise orders, apply for admission without having filed any originating process in the Court.(b) the Legal Practitioners Admission Board as a suitable candidate for admission as a legal practitioner,rules 65C.1, 65C.2: Ins 20.7.1990. Subst 24.6.1994. Am 19.12.1997.
2 Admission, other than of interstate applicant
(1) This rule applies to an application for admission as a legal practitioner other than an application to which rule 3 or rule 4 applies.(2) Every person applying for admission as a legal practitioner shall personally attend in Court and shall on such admission:(a) take the oath of office as a legal practitioner, andand shall be entitled to receive a certificate bearing the seal of the Court.(b) sign the Roll of Legal Practitioners in the Court,rules 65C.1, 65C.2: Ins 20.7.1990. Subst 24.6.1994. Am 19.12.1997.
3 Interstate applicant, other than under the Mutual Recognition Act
(1) This rule applies to an application for admission as a legal practitioner by a person whose name is on the Roll of Barristers, the Roll of Solicitors, the Roll of Barristers and Solicitors or the Roll of Legal Practitioners of the Supreme Court of any other State or Territory of Australia.(2) An application to which this rule applies may, at the request of the applicant, be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant.(3) A request under subrule (2) may be included in the applicant’s form of application for admission under the Legal Practitioners Admission Rules 1994.(4) Where the applicant makes a request under subrule (2) and the applicant is admitted, he or she shall, at the request of this Court, attend at the office of the Supreme Court of his or her State or Territory and:(a) take the oath of office as a Legal Practitioner in Form 70AA, and(b) sign a Roll of Legal Practitioners (being a Roll kept in the office of that court for the purpose of this rule).(5) When this Court has received from the other court:(a) the form of oath of office duly completed, andthen:(b) notification of the signing of a Roll under subrule (4) (b),(c) the Prothonotary shall enter or cause to be entered the name of the person admitted in the Roll of Legal Practitioners in this State, and(d) the person admitted shall be entitled to receive a certificate bearing the seal of this Court.(6) This rule does not apply to proceedings commenced by notice under Section 19 (1) of the Mutual Recognition Act.rule 65C.3, headnote: Ins 20.7.1990. Am 21.5.1993. Subst 24.6.1994.rule 65C.3: Ins 20.7.1990. Am 21.5.1993. Subst 24.6.1994.
4 Application under the Mutual Recognition Act or the Trans-Tasman Mutual Recognition Act
(1) This rule applies to proceedings commenced by notice under section 19 (1) of the Mutual Recognition Act or under section 18 (1) of the Trans-Tasman Mutual Recognition Act.(2) The notice must, unless the Court otherwise orders:(a) be lodged by filing it in the registry at Sydney,(b) show the name, residential address and business address of the applicant,(c) where the applicant is represented by a solicitor show:(i) the name, address and telephone number of the solicitor, and(ii) if that solicitor has another solicitor as agent in the proceedings—the name, address and telephone number of the agent,(d) show an address for service,(e) be dated not more than 14 days before the date on which it is filed, and(f) be accompanied by a certificate which:(i) evidences the existing registration which gives rise to the entitlement of the applicant to entry in the Roll of Legal Practitioners,(ii) is given by the proper officer:(A) of the Supreme Court of the State or Territory where such registration occurred or, where applicable, of the High Court of New Zealand, or(B) of a body, having functions similar to the Legal Practitioners Admission Board, of the State or Territory where such existing registration occurred or, where applicable, of New Zealand, andunless the document mentioned in section 19 (3) of the Mutual Recognition Act or section 18 (3) of the Trans-Tasman Mutual Recognition Act, accompanying the notice, fulfils the requirements of this paragraph.(iii) is dated not more than 28 days before the date on which it is filed,(3) The applicant shall, on or before the day of filing, serve the notice and accompanying documents on the Legal Practitioners Admission Board, the New South Wales Bar Association, and the Law Society of New South Wales and shall file an affidavit of service within 14 days of filing the notice.(4) The applicant shall:(a) prior to, orfiling the notice attend:(b) within 14 days after,(c) at a registry of the Court,(d) at the office of the Supreme Court of his or her State or Territory, orand take the oath of office as a legal practitioner in Form 70AA, and cause the certificate included in that Form to be completed and shall:(e) where application is made under the Trans-Tasman Mutual Recognition Act—a person in New Zealand authorised under New Zealand law to take oaths,(f) at the time of, orfiling the notice, file the form of oath and the certificate.(g) within 14 days after,(5) Notwithstanding Part 36 rule 3:(a) the statements and other information in the notice which are verified by statutory declaration,(b) the document mentioned in:(i) section 19 (3) of the Mutual Recognition Act, certified under section 19 (4) of that Act, oraccompanying the notice, and(ii) section 18 (3) of the Trans-Tasman Mutual Recognition Act, certified under section 18 (4) of that Act,are admissible in evidence and, unless the Court otherwise orders, shall not be the subject of oral evidence by the applicant.(c) the certificate referred to in subrule (2) (f),(6) Part 4, rules 1 to 3 and Part 7, rule 6 shall not apply to proceedings to which this rule applies unless the Court otherwise orders.(7) The application for enrolment made by the notice may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant.(8) If the Court is satisfied that the applicant is entitled to enrolment, it shall order that the applicant be admitted as a legal practitioner and:(a) the Prothonotary shall enter or cause to be entered the name of the person admitted in the Roll of Legal Practitioners, and(b) the person admitted shall be entitled to receive a certificate bearing the seal of the Court.rule 65C.4, headnote: Am 24.4.1998.rule 65C.4: Ins 20.7.1990. Subst 21.5.1993. Am 22.4.1994. Subst 24.6.1994 (see erratum 1.7.1994). Am 23.2.1996; 19.12.1997; 24.4.1998.
5 Administering oaths for other courts
(1) A registrar may administer the oath of office of a Supreme Court of another State or Territory of Australia to a New South Wales legal practitioner who is required to take the oath for the purpose of being admitted as a lawyer by that court.(2) In subrule (1) “oath of office” and “oath” include any affirmation or declaration that may be taken in lieu of the oath of office.rule 65C.5: Ins 22.9.1995.
Division 2 Referral under s 13A of the Legal Profession Act 1987
pt 65C, div 2: Ins 21.3.1997.
6 Commencement of proceedings
(1) An application is referred to the Court under section 13A of the Legal Profession Act 1987 by filing it.(2) Proceedings on a referral (the proceedings) shall be entitled “The Application of” followed by the full name of applicant.rule 65C.6: Ins 21.3.1997 (see erratum 27.3.1997).
7 Application of rules
These rules shall apply to the proceedings as if the applicant were the plaintiff in the proceedings.rules 65C.7–65C.10: Ins 21.3.1997.
8 Rights of professional bodies
(1) The Legal Practitioners Admission Board shall notify the applicant, the New South Wales Bar Association and the Law Society of New South Wales of a referral within 5 days of filing it.(2) The New South Wales Bar Association and the Law Society of New South Wales shall be entitled with the leave of the Court to be joined as a party in the proceedings.rules 65C.7–65C.10: Ins 21.3.1997.
9 Directions
(1) Following commencement, the proceedings shall be listed before the Court for directions.(2) The Court may, at any stage of the proceedings, direct that any person be added as a party or substituted for another party or a former party or that notice of the proceedings be served on any person in addition to or instead of the defendant.(3) Subrule (2) does not affect the powers of the Court under Part 8 (which relates to joining parties).rules 65C.7–65C.10: Ins 21.3.1997.
10 Evidence
Part 36 rule 3 shall apply to evidence in the proceedings, including evidence as to character.Note—Part 36 rule 3 would apply even in the absence of this rule.rules 65C.7–65C.10: Ins 21.3.1997.
Part 66 Solicitors as representatives in proceedings in the Court
pt 66, Heading: Am 22.9.1989.
1 Power to act by solicitor
(1) Every matter or thing which under the Act or the rules or otherwise by law is required or allowed to be done by a party may be done by his solicitor.cf GRC, O 4, r 1.(2) Subrule (1) does not apply where the context or subject matter otherwise indicates or requires.
1A Unrepresented litigants
(1) An issuing officer may not issue a subpoena, without the leave of the Court, unless the issuing party is represented by a solicitor in the proceedings concerned.(2) The Court or a Judge may give leave to issue a subpoena:(a) generally or in relation to a particular subpoena or subpoenas, and(b) unconditionally or subject to conditions.(3) In this rule, issuing officer and issuing party have the same meanings as they have in Part 37.rule 66.1A: Ins 26.3.2004. Am 28.5.2004.
2 Adverse parties
cf Solicitors Practices Rules, r 18.
Where a solicitor or a partner of the solicitor acts as solicitor for any party to any proceedings, or is a party to any proceedings, that solicitor shall not, without leave of the Court, act for any other party to the proceedings not in the same interest.rules 66.2, 66.7: Am 20.9.1991.
3 Change of solicitor
cf RSC (Rev) 1965, O 67, r 1 (1), (3), (4).
(1) Where a solicitor acts for a party in any proceedings, the party may change his solicitor.cf RSC (Rev) 1965, O 67, r 1 (1).(2) Where a party changes his solicitor, he shall file notice of the change and serve the notice on the other parties and, where practicable, his former solicitor.rules 66.2, 66.7: Am 20.9.1991.
4 Change of agent
cf RSC (Rev) 1965, O 67, r 2.
Where a solicitor (in this rule called the principal solicitor) acts for a party in any proceedings and another solicitor acts as agent for the principal solicitor in the proceedings and the principal solicitor changes the solicitor acting as agent, the party shall file notice of the change and serve the notice on the other parties and on the former agent solicitor.rules 66.2, 66.7: Am 20.9.1991.
5 Appointment of solicitor
cf RSC (Rev) 1965, O 67, r 3.
Where a party acts for himself in any proceedings and afterwards appoints a solicitor to act for him in the proceedings, the party shall file notice of the change and serve the notice on the other parties.rules 66.2, 66.7: Am 20.9.1991.
6 Removal of solicitor
(1) Where a solicitor acts for a party in any proceeding and afterwards the party determines the authority of the solicitor to act for him in the proceedings:(a) the party shall file notice of the change and serve the notice on the other parties and on his former solicitor, and(b) the former solicitor may file notice of the change and serve the notice on the parties.cf RSC (Rev) 1965, O 67, r 4.(2) Subrule (1) does not apply to a case to which rule 3 applies.rules 66.2, 66.7: Am 20.9.1991.
7 Withdrawal of solicitor
(1) Where a solicitor acts for a party to any proceedings and afterwards ceases to act, the solicitor may, subject to subrule (2), file notice of the change and serve the notice on the parties.cf GRC, O 4, r 5 (1).(2) A solicitor shall not file or serve notice of a change under subrule (1) without leave of the Court unless the solicitor has, not less than seven days before doing so, served on the former client notice of intention to file and serve the notice of change.cf GRC, O 4, r 5 (1).(3) A solicitor filing notice of change under subrule (1) shall, except where the notice is filed with the leave of the Court, file and serve with the notice an affidavit showing service in compliance with subrule (2).cf GRC, O 4, r 5 (1).(4) A solicitor may serve a notice under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.cf GRC, O 4, r 5 (2).rules 66.2, 66.7: Am 20.9.1991.
8 Effect of change
cf RSC (Rev) 1965, O 67, r 1 (1).
A change of which notice is required or permitted to be filed under any of rules 3, 4, 5, 6, and 7 shall not have effect as between a party or solicitor to which the change relates on the one hand and the Court or any other party on the other hand until notice of the change is filed and, as regards any other party, served on that other party.
9 Signature for solicitor
(1) Where any signature by a solicitor (the Solicitor) is required or permitted for the purpose of any proceedings, the signature for the Solicitor by any of the following persons shall, as well as the signature of the Solicitor, be sufficient:(a) a solicitor who is a partner of the Solicitor,(b) a solicitor who is agent of the Solicitor for the purpose of the proceedings,(c) a solicitor who is a partner of the agent,(d) a solicitor employed by:(i) the Solicitor,(ii) the agent of the Solicitor,(iii) the Solicitor’s employer, or(iv) the firm in which the Solicitor or the agent is a partner, and(e) a signatory authorized under subrule (2).(1A) Anything that is required or permitted for the purpose of any proceedings to be signed by a solicitor is to be taken to have been signed by the solicitor (being a solicitor corporation) if:(a) it is signed by a solicitor and it has the corporation’s seal affixed to it, or(b) it is signed by a solicitor who is a director, officer or employee of the corporation.cf GRC, O 9, r 1.(2) The registrar of any Division or of the Court of Appeal may authorise a clerk of a solicitor to be a signatory for the purposes of subrule (1) (e) in all or in any class of proceedings in the Division or in the Court of Appeal, as the case may be, for his master and for any solicitor of whom his master is agent and may revoke any authority given under this rule.(3) A signature made pursuant to this rule shall be accompanied by a statement of the capacity in which the signature is made.rule 66.9: Am 8.7.1983; 21.6.1991; 20.9.1991; 25.10.1996; 28.11.2003.
10 Actions by a solicitor corporation
Where, by or under these rules:(a) any act, matter or thing is authorised or required to be done by a solicitor for a person,(b) the solicitor is a solicitor corporation, andthe act, matter or thing may be done by a solicitor who is a director, officer or employee of the corporation.(c) the act, matter or thing can, in the circumstances of the case, only be done by a natural person,rule 66.10: Ins 20.9.1991. Am 28.11.2003.
Part 66A Court appointed referral for legal assistance
pt 66A: Ins 27.11.1992. Subst 20.4.2000.
1 Objectives
rule 66A.1, hdg: Ins 27.11.1992. Am 24.6.1994. Rep 24.7.1998. Ins 20.4.2000.(1) In the interpretation of this Part, preference must be given to a construction that will promote, and be consistent with, the purpose in subrule (2) and the statements in subrules (3) and (4).(2) The purpose of this Part is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance.(3) The provision of legal assistance under this Part is not intended to be a substitute for legal aid.(4) A referral under this Part is not an indication that the Court has formed an opinion on the merits of a litigant’s case.(5) Nothing in this Part requires the Court to make a referral, or to consider a litigant’s case for referral, under this Part.rule 66A.1: Ins 27.11.1992. Am 24.6.1994; 23.2.1996. Rep 24.7.1998. Ins 20.4.2000.
2 Definitions
In this Part, unless the context or subject matter otherwise indicates or requires:litigant, in proceedings, means a person who is a party to the proceedings or who has been served with a subpoena in the proceedings or who has applied to be joined in the proceedings.Pro Bono Panel means the list of barristers and solicitors referred to in rule 3.scheme means the scheme for the provision of legal assistance to litigants under this Part.rule 66A.2: Ins 27.11.1992. Subst 23.2.1996; 20.4.2000.
3 Pro Bono Panel
The Principal Registrar may maintain a list of persons:(a) who are barristers or solicitors, and(b) who have agreed to participate in the scheme.rule 66A.3: Ins 27.11.1992. Rep 23.2.1996. Ins 20.4.2000.
4 Referral to a barrister or solicitor
(1) The Court may, if it is in the interests of the administration of justice, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.(2) For the purposes of subrule (1), the Court may take into account:(a) the means of the litigant,(b) the capacity of the litigant to obtain legal assistance outside the scheme,(c) the nature and complexity of the proceedings, and(d) any other matter that the Court considers appropriate.(3) The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.(4) A referral to the registrar is effected by the issue of a Referral Certificate in accordance with the prescribed form in relation to the litigant.(5) If a Referral Certificate has been issued, the registrar must attempt to arrange for the legal assistance mentioned in the certificate to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.(6) The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.(7) A referral to a barrister shall not prevent a referral also being made to a solicitor and a referral to a solicitor shall not prevent a referral also being made to a barrister.rules 66A.4–66A.10: Ins 20.4.2000.
5 Kind of assistance
A referral may be made for the following kinds of assistance:(a) advice in relation to the proceedings,(b) representation on directions hearing, interlocutory or final hearing, arbitration or mediation,(c) drafting or settling of documents to be filed or used in the proceedings,(d) representation generally in the conduct of the proceedings or of part of the proceedings.rules 66A.4–66A.10: Ins 20.4.2000.
6 Provision of assistance by barrister or solicitor
Subject to rule 7, if a barrister or solicitor agrees to accept a referral, he or she must provide assistance to the litigant in accordance with the referral.rules 66A.4–66A.10: Ins 20.4.2000.
7 Cessation of assistance
(1) A barrister or solicitor who has agreed to accept a referral may cease to provide legal assistance to the litigant only:(a) in the circumstances set out in any practice rules governing professional conduct that apply to the barrister or solicitor,(b) with the written agreement of the litigant, or(c) with the leave of the registrar.(2) If a barrister or solicitor ceases to provide legal assistance to a litigant, the barrister or solicitor must inform the registrar in writing within 7 days of so ceasing.rules 66A.4–66A.10: Ins 20.4.2000.
8 Application for leave
(1) An application by a barrister or solicitor to the registrar for leave to cease to provide legal assistance must be in writing and must briefly state the reasons for the application.(2) A copy of the application for leave must be served on the litigant.(3) An application for leave may be heard by the registrar in the absence of the public and without any attendance by or on behalf of any person.(4) In deciding whether to grant leave under this rule, the registrar must consider:(a) whether the barrister or solicitor would be likely to be able to cease to provide legal assistance to the litigant under any practice rules governing professional conduct that apply to the barrister or solicitor,(b) any conflict of interest that the barrister or solicitor may have,(c) whether there is a substantial disagreement between the barrister or solicitor and the litigant in relation to the conduct of the litigation,(d) any view of the barrister or solicitor:(i) that the litigant’s case is not well founded in fact or law, or(ii) that the litigant’s prosecution of the litigation is an abuse of process, and(e) whether the barrister or solicitor lacks the time to provide adequate legal assistance to the litigant because of other professional commitments,(f) whether the litigant has refused or failed to pay any disbursements requested under rule 10,(g) whether it is unfair to the barrister or solicitor to require him or her to continue to provide legal assistance under the scheme, and(h) any other matter that the registrar considers relevant.(5) An application for leave under this rule and any related correspondence:(a) is confidential,(b) is not part of the proceedings in relation to which the referral was made, and(c) does not form part of the Court file in relation to those proceedings.rules 66A.4–66A.10: Ins 20.4.2000.
9 Costs
(1) Subject to subrules (2) and (3) and rule 10, a barrister or solicitor who provides legal assistance to a litigant under the scheme must not seek or recover any costs for the legal assistance.(2) If an order for costs is made in favour of a litigant who is assisted under the scheme, the barrister or solicitor who has provided the legal assistance is entitled to recover the amount of costs that another person is required to pay under the order.(3) A barrister or solicitor shall account to the litigant for any money received by the barrister or solicitor in respect of disbursements that were paid by the litigant.rules 66A.4–66A.10: Ins 20.4.2000.
10 Disbursements
A barrister or solicitor who provides legal assistance to a litigant under the scheme may request the litigant to pay any disbursements reasonably incurred, or reasonably to be incurred, by the barrister or solicitor on behalf of the litigant in connection with the legal assistance.rules 66A.4–66A.10: Ins 20.4.2000.pt 67, div 1, hdg: Ins 3.5.1974. Rep 21.7.2000.pt 67, div 1: Rep 23.9.1988.
Part 67 Defamation
1–8 (Repealed)
rule 67.1: Subst 3.5.1974. Rep 23.9.1988.
rule 67.1A: Ins 21.4.1978. Rep 23.9.1988.
rules 67.2–67.7: Rep 23.9.1988.
rule 67.8: Rep 24.10.1980.
pt 67, div 2, hdg: Ins 3.5.1974. Rep 21.7.2000.
pt 67, div 2: Ins 3.5.1974.
9 Application
This Part applies to proceedings for defamation.rule 67.9: Ins 3.5.1974. Subst 21.7.2000.
10 Interpretation
(1) In this Division, unless the context or subject matter otherwise indicates or requires, defence includes any matter of privilege, protection, justification or excuse.(2) In this Division, imputation in question, in relation to any defence, means the imputation as to which the defence is pleaded.rule 67.10: Ins 3.5.1974.
11 Statement of claim
(1) A statement of claim shall not include any allegation that the matter complained of or its publication was false, malicious or unlawful.(2) A statement of claim:(a) shall, subject to subrule (3), specify each imputation on which the plaintiff relies, and(b) shall allege that the imputation was defamatory of the plaintiff.(3) A plaintiff shall not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same report, article, letter, note, picture, oral utterance or thing, unless the imputations differ in substance.(4), (5) (Repealed)rule 67.11: Ins 3.5.1974. Am 21.4.1978; 23.2.1990; 21.7.2000; 30.7.2004.
11A (Repealed)
rule 67.11A: Ins 21.4.1978. Subst 21.7.2000. Rep 1.11.2002.
11B Directions
Without limiting the generality of Part 26, the Court may, where the proceedings are before it for directions:(a) abridge, extend or fix the time for filing a defence or the time for the doing of any other thing,(b) where Part 2A of the Defamation Act 1974 (which deals with offers of amends) applies, exercise its powers under that Part,(c) make orders pursuant to Part 31 rule 2,(d) set the proceedings down for trial.(e) (Repealed)rule 67.11B: Ins 21.4.1978. Am 23.3.1984; 21.9.1984; 21.7.2000; 1.11.2002; 30.7.2004.
11C Pleadings
On the filing of a statement of claim, all times for pleading shall, unless the Court otherwise orders, cease to run and no pleadings shall thereafter be filed or served except so far as the Court may direct.rule 67.11C: Ins 24.4.1986. Am 1.11.2002.
12 Particulars: publication and innuendo
(1) The particulars required by Part 16 rule 1 in relation to a statement of claim shall include:(a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified,(b) particulars of any publication, circulation or distribution of the matter complained of or copy of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified,(c) where the plaintiff alleges that the matter complained of had a defamatory meaning other than its ordinary meaning—particulars of the facts and matters on which the plaintiff relies to establish that defamatory meaning, including:(i) full and complete particulars of the facts and matters relied upon to establish a true innuendo, and(ii) by reference to name or class, the identity of those to whom those facts and matters were known,(d) where the plaintiff is not named in the matter complained of—particulars of identification of the plaintiff together with, by reference to names and addresses or class of persons, the identity of those to whom any such particulars were known, and(e) particulars of the part or parts of the matter complained of relied upon by the plaintiff in support of each pleaded imputation.(2) There shall be filed and served with the statement of claim and any amended statement of claim and referred to in it, where applicable:(a) a legible photocopy of the original publication or, in the case of an internet, e-mail or other computer displayed publication, a printed copy,(b) a typescript, with numbered lines, of:(i) if the original publication is in English—the text of the original publication, or(ii) otherwise—a translation of the text of the original publication, and(c) a description of any other written material other than words.(3) Subrule (2) (b) shall be complied with in respect of radio and television publications.rule 67.12: Ins 3.5.1974. Am 6.9.1974; 23.3.1984; 23.9.1988. Subst 21.7.2000.
12A Disputes
(1) A defendant, not less than 7 days before the return date of the notice of motion filed under rule 11A, must file and serve on each other party who has an address for service in the proceedings a notice of the subject of any objection or other dispute in relation to any matter pleaded or particularised in the Statement of Claim, identifying with particularity the nature of the objection or other dispute and providing an outline of submissions in relation to it.(2) A plaintiff who is served with a notice under subrule (1) must, not less than 2 days before the return date of the notice of motion, file and serve on each other party who has an address for service in the proceedings a notice stating its position in relation to the objection or matter in dispute and providing an outline of submissions in relation to it.rule 67.12A: Ins 21.7.2000.
13 Defence generally
(1) Subject to rules 14 to 17, a defendant shall plead any defence specifically.(2) Where two or more imputations are complained of, a defence under section 15 (2) or section 16 (2) of the Defamation Act 1974 shall specify to what alleged imputation or imputations it is pleaded.rule 67.13: Ins 3.5.1974. Am 21.12.1979; 21.7.2000.
14 Truth generally
Subject to rule 13 (2), a defence under section 15 (2) of the Defamation Act 1974 is sufficiently pleaded if it alleges:(a) that the imputation in question was a matter of substantial truth, and(b) either:(i) that the imputation in question related to a matter of public interest, or(ii) that the imputation in question was published under qualified privilege.rule 67.14: Ins 3.5.1974.
15 Truth: contextual imputations
Subject to rule 13 (2), a defence under section 16 of the Defamation Act 1974 is sufficiently pleaded if it:(a) alleges either:(i) that the imputation in question related to a matter of public interest, or(ii) that the imputation in question was published under qualified privilege,(b) specifies one or more imputations on which the defendant relies as being contextual to the imputation in question,(c) as to each imputation on which he so relies:(i) alleges either that it related to a matter of public interest or that it was published under qualified privilege, and(ii) alleges that it was a matter of substantial truth, and(d) alleges that, by reason that the imputations on which the defendant so relies are matters of substantial truth, the imputation in question did not further injure the reputation of the plaintiff.rule 67.15: Ins 3.5.1974. Am 21.7.2000.
16 Qualified privilege
(1) This rule applies:(a) to a defence under Division 4 of Part 3 of the Defamation Act 1974, and(b) subject to subrule (2), to any other defence of qualified privilege.(2) This rule does not apply to a defence under Division 5 of Part 3 of that Act (which Division relates to protected reports etc) or under Division 6 of that Part (which Division relates to court notices, official notices etc) or under Division 7 of that Part (which Division relates to comment).(3) A defence is sufficiently pleaded if it alleges that the matter complained of was published under qualified privilege.rule 67.16: Ins 3.5.1974. Am 21.12.1979.
17 Comment
(1) This rule applies to a defence under Division 7 of Part 3 of the Defamation Act 1974.(2) A defence is sufficiently pleaded if, as to the matter it alleges was comment, it:(a) either:(i) alleges that that matter was comment based on proper material for comment and upon no other material, or(ii) alleges that that matter was comment based to some extent on proper material for comment and represented an opinion which might reasonably be based on that material to the extent to which it was proper material for comment,(b) alleges that that matter related to a matter of public interest, and(c) either:(i) alleges that that matter was the comment of the defendant,(ii) alleges that that matter was the comment of a servant or agent of the defendant, or(iii) alleges that that matter was not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.(3) The particulars required by Part 16 rule 1 shall include:(a) particulars identifying the material upon which it is alleged that that matter alleged to be comment was comment and identifying to what extent that material is alleged to be proper material for comment,(b) as to material alleged to be proper material for comment, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation.(4) (Repealed)(5) Where a defendant relies on a defence under section 33 of the Defamation Act 1974 (which section relates to comment of a servant or agent of the defendant), the particulars required by Part 16 rule 1 shall include particulars identifying the servant or agent of the defendant whose comment it is alleged to be.(6) Subrules (3) and (5) do not limit the operation of rule 18.rule 67.17: Ins 3.5.1974. Am 21.12.1979; 21.7.2000.
18 Particulars of defence
(1) The particulars of defence required by Part 16 rule 1 shall, unless the Court otherwise orders, include particulars of the facts, matters and circumstances on which the defendant relies to establish:(a) that any imputation, notice, report, comment or other material was or related to a matter of public interest,(b) that any imputation or matter was published under qualified privilege,(c) that any imputation or contextual imputation was true or was a matter of substantial truth,(d) that any material being proper material for comment was a matter of substantial truth.(2) Where a defendant intends to make a case in mitigation of damages by reference to:(a) the circumstances in which the publication complained of was made,(b) the reputation of the plaintiff,(c) any apology for, or explanation or correction or retraction of, any imputation complained of,the defendant shall give particulars of the facts, matters and circumstances on which the defendant relies to make that case.(d) any recovery, proceedings, receipt or agreement to which section 48 of the Defamation Act 1974 applies,(3) Where a defendant intends to show, in mitigation of damages, that any imputation complained of was true or was a matter of substantial truth, the defendant shall give particulars identifying the imputation, stating that intention, and of the facts, matters and circumstances the defendant relies upon to establish that the imputation was true or was a matter of substantial truth.(4) The particulars required by subrules (2) and (3) shall be set out in the defence, or, if that is inconvenient, shall be set out in a separate document, referred to in the defence and that document shall be filed and served with the defence.rule 67.18: Ins 3.5.1974. Am 21.12.1979; 26.9.1986; 23.12.1988. Subst 21.7.2000.
19 Malice etc: reply and particulars
(1) Where a plaintiff intends to meet any defence:(a) by alleging that the defendant was actuated by express malice in the publication of the matter complained of,then:(b) by relying on any matter which, under the Defamation Act 1974, defeats the defence,(c) the plaintiff shall plead that allegation or matter of defeasance by way of reply, and(d) the particulars required by Part 16 rule 1 in relation to the reply shall include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that allegation or matter of defeasance.(2) The plaintiff must give:(a) particulars of facts, matters and circumstances upon which the plaintiff will rely in support of a claim for aggravated damages, and(b) particulars of any claim the plaintiff makes by way of:(i) special damages, or(ii) any claim for general loss of business or custom, or cognate claim.(3) The particulars required by subrule (2) shall be set out in the reply, or, if that is inconvenient, shall be set out in a separate document, referred to in the reply, and that document shall be filed and served with the reply.rule 67.19: Ins 3.5.1974. Subst 21.7.2000.
20 (Repealed)
rule 67.20: Ins 3.5.1974. Rep 24.10.1980.
21 Statement in open Court
Where proceedings for defamation are settled, a party may, with the leave of the Court, make in open Court a statement approved by the Court in private.rule 67.21: Ins 3.5.1974. Am 23.6.1989; 21.7.2000.
22 Offer of amends: determination of questions
The Court may hear an application and determine any question pursuant to section 9F (2) of the Defamation Act 1974 in the absence of the public.rule 67.22: Ins 3.5.1974. Am 21.7.2000; 30.7.2004.
Part 68 Administration of estates; execution of trusts
1 Definitions
cf RSC (Rev) 1965, O 85, r 1.
In this Part:administration proceedings means proceedings for the administration of an estate or the execution of a trust under the direction of the Court.estate means estate of a deceased person.
2 Relief without general administration
(1) Proceedings may be brought for any relief which could be granted in administration proceedings.cf RSC (Rev) 1965, O 85, r 2 (1).(2) Proceedings may be brought for the determination of any question which could be determined in administration proceedings, including any question:(a) arising in the administration of an estate or in the execution of a trust,(b) as to the composition of any class of persons having a claim against an estate or a beneficial interest in an estate or in property subject to a trust, or(c) as to the rights or interests of a person claiming to be:(i) a creditor of an estate,(ii) entitled under the will or on the intestacy of a deceased person, or(iii) beneficially entitled under a trust.cf RSC (Rev) 1965, O 85, r 2 (1) (2).(3) Proceedings may be brought for an order directing any executor, administrator or trustee:(a) to furnish accounts,(b) to verify accounts,(c) to pay funds of the estate or trust into Court, or(d) to do or abstain from doing any act.cf RSC (Rev) 1965, O 85, r 2 (3) (a) (b) (c).(4) Proceedings may be brought for:(a) an order approving any sale, purchase, compromise or other transaction by an executor, administrator or trustee, or(b) directing any act to be done in the administration of an estate or in the execution of a trust which the Court could order to be done if the estate were being administered, or the trust were being executed, under the direction of the Court.cf RSC (Rev) 1965, O 85, r 2 (3) (d) (e).(5) None of subrules (1) to (4) limits the operation of any other of them.cf RSC (Rev) 1965, O 85, r 2 (2) (3).(6) In proceedings brought pursuant to this rule a claim need not be made for the administration of the estate, or the execution of the trust, under the direction of the Court.cf RSC (Rev) 1965, O 85, r 2 (1).
3 Application of rules 4 to 9
Rules 4 to 9 apply to administration proceedings and to proceedings brought pursuant to rule 2.
4 Parties: executors etc
(1) In proceedings relating to an estate, all the executors of the will of the deceased, or all the administrators of the estate, must be parties.cf RSC (Rev) 1965, O 85, r 3 (1).(2) In proceedings relating to a trust, all the trustees must be parties.cf RSC (Rev) 1965, O 85, r 3 (1).(3) Where proceedings are brought by executors, administrators or trustees, any executor, administrator or trustee who does not consent to being joined as a plaintiff shall be made a defendant.cf RSC (Rev) 1965, O 85, r 3 (1).
5 Parties: beneficiaries and claimants
(1) In proceedings relating to an estate, all the persons having a beneficial interest in or claim against the estate need not be parties.cf RSC (Rev) 1965, O 85, r 3 (2).(2) In proceedings relating to a trust, all the persons having a beneficial interest under the trust need not be parties.cf RSC (Rev) 1965, O 85, r 3 (2).(3) In proceedings relating to an estate or a trust, the plaintiff may make parties such as he thinks fit of the persons mentioned in subrules (1) and (2).cf RSC (Rev) 1965, O 85. r 3 (2).(4) This rule has effect notwithstanding rule 3 of Part 8 (which Part relates to causes of action and parties), but does not limit the powers of the Court under that Part.cf RSC (Rev) 1965, O 85. r 3 (2).
6 Claim under judgment
cf RSC (Rev) 1965, O 85. r 3 (3).
Where, in the taking of an account of debts or liabilities under an order in proceedings relating to an estate or trust, a person not a party makes a claim:(a) a party other than the executors or administrators of the estate or trustees under the trust shall not be entitled to appear in relation to that claim except by leave of the Court, and(b) the Court may, on terms, direct or allow any party to appear either in addition to or in substitution for the executors, administrators or trustees.rule 68.6: Am 30.3.1990.
7 Relief in proceedings by summons
(1) The Court may make any certificate or order and grant any relief to which the plaintiff is entitled by reason of any breach of trust, wilful default or other misconduct of a defendant notwithstanding that the proceedings were commenced by summons.cf RSC (Rev) 1965, O 85. r 4.(2) Subrule (1) does not affect the power of the Court under Part 5 rule 11 (which relates to the continuation on pleadings of proceedings commenced by summons).cf RSC (Rev) 1965, O 85. r 4.
8 General administration
(1) The Court need not make an order for the administration of an estate or the execution of a trust under the direction of the Court unless the order is necessary for the determination of the questions arising between the parties.cf RSC (Rev) 1965, O 85. r 5 (1).(2) When it appears to the Court that an order for the administration of an estate or the execution of a trust under the direction of the Court is necessary to prevent proceedings by creditors of the estate or by persons claiming to be entitled under the will or on the intestacy of the deceased or to be beneficially entitled under the trust, the Court:(a) may make the order, and(b) may further order that no steps shall be taken under the order, or under any account or inquiry directed, without the leave of the Court.cf RSC (Rev) 1965, O 85. r 5 (2) (b).rule 68.8: Am 30.3.1990.
9 Conduct of sale
cf RSC (Rev) 1965, O 85. r 6.
Where the Court makes an order for the sale of property comprised in an estate, or of trust property, the executors or administrators, or the trustees, as the case may require, shall, unless the Court otherwise orders, have the conduct of the sale.
Part 69 Infants’ Custody and Settlements Act rules
1 Custody etc
cf CER, r 319.
(1) This rule applies to an application for an order under section 5 of the Infants’ Custody and Settlements Act of 1899 in respect of any minor.cf Consolidated Equity Rules of 1902, r 319.(2) Where proceedings under that section in respect of the minor are pending in the Court:(a) the application shall be made by motion in the proceedings, and(b) notice of the motion shall, unless the Court otherwise orders, be served on his parents or on the guardian of his person.(3) Where no proceedings under that section in respect of the minor are pending in the Court:(a) proceedings for the order shall be commenced by summons, and(b) his parents or the guardian of his person shall, unless the Court otherwise orders, be made defendants.rule 69.1: Am 2.6.1972; 15.12.1972.
2 Assignment of business
Proceedings for orders under Part 1 of the Infants’ Custody and Settlements Act 1899 shall be commenced in the Equity Division.rule 69.2: Am 2.6.1972. Subst 15.12.1972. Am 1.6.1973; 29.4.1977.
Part 70 Trustee Act rules
Division 1
1, 2 (Repealed)
pt 70, div 1: Rep 23.3.1984.
rule 70.1: Subst 29.9.1972. Am 30.3.1973; 28.4.1978; 24.11.1978; 24.7.1981. Subst 9.12.1983. Rep 23.3.1984.
rule 70.2: Subst 29.9.1972. Rep 23.3.1984.
Division 2 Judicial advice
3 Statement
(1) A statement under section 63 of the Trustee Act 1925 shall:(a) be divided into paragraphs numbered consecutively,(b) state the facts concisely, and(c) state the question for opinion, advice or direction.cf CER, r 310 (2).(2) Notwithstanding Part 7 rule 1 (2), the originating process in proceedings under section 63 of the Trustee Act 1925 need not state the question for opinion, advice or direction.
4 Order
cf CER, r 311.
An opinion, advice or direction under section 63 of the Trustee Act 1925 shall be given by order.
5 Application by beneficiary
cf CER, r 312.
The time for an application under section 63 (10) of the Trustee Act 1925 shall, subject to that subsection, be 28 days after the date of receipt by the applicant of notice under section 63 (8) of that Act or the date of entry of the order containing the opinion, advice or direction, whichever date is the later.
6 Appeal
cf CER, r 313 (1).
An appeal shall lie to the Court of Appeal from an opinion, advice, direction or order under section 63 of the Trustee Act 1925, including an opinion, advice, direction or order given or made by a master.
Division 3 New trustees
7 Application
cf CER, r 314 (1).
This Division applies to an application for the appointment of a new trustee under Part 3 of the Trustee Act 1925.
8 Evidence generally
The evidence in support of the application shall show:(a) the nature of the trusts still subsisting,(b) the nature and value of the trust property,(c) whether any and, if so, what part of the trust property is subject to the Real Property Act 1900,(d) the person beneficially entitled,(e) the fitness of the proposed new trustee, and(f) the consent of the proposed new trustee.
9 Fitness of new trustee
(1) Only one affidavit of the fitness of a proposed new trustee shall be required, unless the Court otherwise orders.cf CER, r 314 (3).(2) An affidavit of the fitness of a new trustee shall set out:(a) his position in life,(b) how long the deponent has known him,(c) that he is, to the knowledge of the deponent, of good credit, and(d) that he is, to the best of the information and belief of the deponent, of good character, repute and business habits.cf CER, r 314 (3).
Division 4 Payment into Court
10 Application
This Division applies to the payment of funds into Court under Part 4 of the Trustee Act 1925 and to proceedings arising out of payment into Court under that Part.
11 Cases where proceedings required
(1) A person wishing to transfer funds (other than money) into Court shall commence proceedings by summons for directions in relation to the transfer and shall transfer the funds into Court in the proceedings in accordance with the directions of the Court.cf CER, r 304 (2).(2) A person wishing to pay funds into Court and to obtain any order in relation to the funds shall commence proceedings by summons for the order and shall pay the funds into Court in the proceedings.(3) A person commencing proceedings pursuant to this rule shall not, unless the Court otherwise orders, join any person as a defendant in the proceedings.
12 Payment into Court without proceedings
(1) Subject to rule 11, a person wishing to pay funds into Court need not commence any proceedings in relation to the payment.(2) The affidavit required by rule 13 and any other document filed in relation to the funds paid into Court shall, subject to subrule (3), be entitled in the matter of the trust concerned, describing the trust so as to be distinguishable, and shall be assigned a serial number under Part 1 rule 10 as though the filing of the affidavit were the commencement of proceedings.cf CER, r 303.(3) Where funds have been paid into Court without the commencement of proceedings and afterwards proceedings are commenced for any order in relation to the funds:(a) documents in the proceedings shall be entitled in accordance with the rules but shall bear the serial number assigned pursuant to subrule (2), and(b) the affidavit filed under rule 13 may be used as if filed in the proceedings.cf CER, rr 308, 309.
13 Affidavit
cf CER, r 303; RSC (Rev) 1965, O 92, r 2 (1).
(1) A person paying funds into Court shall file an affidavit in accordance with this rule.cf CER, r 303.(2) The affidavit must be made by the person paying the funds into Court or, if that person is a corporation, by an officer of the corporation.(3) The affidavit shall set out:(a) a short description of the trust and of the instrument creating it or, as the case may be, of the circumstances in which the trust arose,(b) the amount and description of the funds,(c) the names and addresses, so far as known to the person paying the funds into Court, of the person interested in or entitled to the funds,(d) where any person interested in or entitled to the funds is a minor, the name and address, so far as known to the person paying the funds into Court, of a parent or guardian of his person or estate or, failing these, of a person with whom he resides or in whose care he is,(e) where any person interested in or entitled to the funds, is an incompetent person, the name and address, so far as known to the person paying the funds into Court, of his curator (if any) or, if he has no curator, of a person with whom he resides or in whose care he is,(f) the name of the person paying the funds into Court and his address for service.rule 70.13: Am 1.10.1976; 29.6.1984.
14 Notice
cf CER, r 305.
A person paying funds into Court shall, unless the Court otherwise orders, post, not more than one day after the date of payment into Court, notice of the payment into Court to each person whose name and address is set out in the affidavit under rule 13 pursuant to paragraphs (c), (d) and (e) of rule 13 (3).
15 Inquiries
cf CER, r 303 (6).
A person paying funds into Court shall answer all such inquiries relating to the application of the funds as the Court may make or direct.
Division 5 Distribution after notice
pt 70, div 5: Ins 19.3.1999.
16 Notice of intended distribution
(1) This subrule applies to a notice under section 60 (1) of the Trustee Act 1925 relating to a trust that arose in respect of a deceased estate in which probate or letters of administration has or have been:(a) granted by the Court, or(b) sealed under s 107 of the Wills, Probate and Administration Act 1898.(2) A notice to which subrule (1) applies:(a) shall be published:(i) if the deceased was resident at the date of death in the State—in a newspaper circulating in the district where the deceased resided, or(ii) otherwise—in a Sydney daily newspaper, and(b) may be in or to the effect of Form 121.(3) A notice under section 60 (1) of the Trustee Act 1925 to which subrule (1) does not apply:(a) shall be published in a Sydney daily newspaper, and(b) may be in or to the effect of Form 121A.(4) This rule is subject to section 60 (8) of the Trustee Act 1925.rule 70.16: Ins 19.3.1999. Am 25.6.1999.
Part 71
1–8 (Repealed)
pt 71: Ins 2.6.1972 (see also 9.6.1972). Rep 23.2.2001.
pt 71, Heading: Am 2.4.1993. Rep 23.2.2001.
rule 71.1: Ins 2.6.1972. Am 2.10.1992. Rep 23.2.2001.
rule 71.1A: Ins 2.10.1992. Rep 23.2.2001.
rule 71.2: Ins 2.6.1972. Am 2.4.1993. Rep 23.2.2001.
rule 71.3: Ins 2.6.1972. Am 6.3.1992; 2.4.1993. Rep 23.2.2001.
rule 71.4: Ins 2.6.1972. Rep 22.5.1992.
rule 71.5: Ins 2.6.1972. Am 22.5.1992. Rep 23.2.2001.
rule 71.6: Ins 2.6.1972. Subst 2.10.1992. Rep 23.2.2001.
rule 71.7: Ins 2.10.1992. Am 2.4.1993. Rep 23.2.2001.
rule 71.8: Ins 2.10.1992. Rep 23.2.2001.
Part 71A Service and Execution of Process Act 1992 (Commonwealth)
pt 71A: Ins 2.4.1993.
1 Interpretation
(1) In this Part, unless the context or subject matter otherwise indicates or requires, each of the expressions:court of rendition,enforcement,judgment, andplace of rendition,has the meaning which it has in the Service and Execution of Process Act.(2) For the purposes of the application of the rules, unless the context or subject matter otherwise indicates or requires, defendant includes the respondent under section 86 or section 90 of the Service and Execution of Process Act.rule 71A.1: Ins 2.4.1993.
2 Commencement of proceedings
(1) Proceedings in the Court:(a) on an appeal under section 101 of the Service and Execution of Process Act against the decision of magistrate, orshall be commenced in the Common Law Division.(b) under section 105 of the Service and Execution of Process Act,(2) Proceedings in the Court under section 105 (4) of the Service and Execution of Process Act shall be commenced by summons.(3) Proceedings in the Court on an application under section 57 (1), section 67 (1), section 76 (1), section 79 (1) or section 93 (1) of the Service and Execution of Process Act shall be commenced by summons in the Common Law Division.(4) Proceedings in the Court on an application under section 72 (1) or section 86 of the Service and Execution of Process Act shall be commenced:(a) where the application is in or for the purposes of or in relation to proceedings in the Court—by motion on notice in those proceedings, or(b) otherwise—by summons in the Common Law Division.rule 71A.2: Ins 2.4.1993. Subst 28.4.1995.
3 Title and parties
(1) A document in any proceedings in the Court under Part 6 of the Service and Execution of Process Act shall be entitled between:(a) as plaintiff, the person in whose favour judgment was given or order made, and(b) as defendant:(i) the person against whom execution is issued or other proceedings taken upon the judgment registered under that Act, or(ii) the applicant for a stay under section 106 of that Act.(2) In proceedings under section 57 (1), section 67 (1), section 76 (1), section 79 (1) or section 93 (1) of the Service and Execution of Process Act, no person shall be joined as a defendant.rules 71A.3–71A.7: Ins 2.4.1993.
4 Where service not required
Process by which application is made under section 57 (1), section 67 (1), section 76 (1), section 79 (1), section 93 (1) or section 105 (4) of the Service and Execution of Process Act need not, unless the Court otherwise orders, be served on any person.rules 71A.3–71A.7: Ins 2.4.1993.
5 Where attendance not required
Where, in proceedings for an order under section 57 (1), section 76 (1) or section 79 (1) of the Service and Execution of Process Act, the plaintiff adds to the summons a request that the application be granted under this rule, the Court may hear the proceedings in the absence of the public and without any attendance by or on behalf of the plaintiff.rules 71A.3–71A.7: Ins 2.4.1993.
6 Enforcement proceedings
(1) A person proceeding for enforcement of a judgment registered under the Service and Execution of Process Act shall file an affidavit, sworn not more than 14 days before proceedings are taken, stating:(a) that the judgment is capable of being enforced, andin or by:(b) the extent to which the judgment is capable of being enforced,(c) the court of rendition, or(d) a court in the place of rendition.(2) The Court may notify the Sheriff of any change in the rate of interest payable on the judgment in the court of rendition.rules 71A.3–71A.7: Ins 2.4.1993.
7 Costs and expenses of registration etc
(1) The costs and expenses referred to in section 107 (1) of the Service and Execution of Process Act shall be assessed by the Court.(2) An application for assessment of costs and expenses under subrule (1) shall be made by filing an affidavit:(a) which contains particulars of the costs and expenses claimed, and(b) states the basis upon which the costs and expenses are claimed.(3) The plaintiff may proceed without service of the affidavit on any party.(4) The Court may make an assessment in the absence of the public and without any attendance by or on behalf of the plaintiff.rules 71A.3–71A.7: Ins 2.4.1993.
8 Facsimile number and e-mail address
An application made to the Court under a provision of the Service and Execution of Process Act:(a) if made by facsimile transmission—must be transmitted to transmission number (02) 9230 8628, or(b) if made by electronic mail—must be transmitted to the following address:supremecourt@agd.nsw.gov.aurule 71A.8: Ins 2.4.1993. Am 11.5.2001.
Part 72 Reference by the Court to referee
pt 72, hdg: Subst 26.4.1985.
pt 72: Ins 2.6.1972. Subst 22.11.1985.
pt 72, Heading: Am 22.9.1989.
1 Interpretation
In this Part, unless the context or subject-matter otherwise indicates or requires, question includes any question or issue arising in any proceedings, whether of fact or law or both and whether raised by pleadings, agreement of parties or otherwise.rule 72.1: Ins 2.6.1972. Subst 22.11.1985; 22.9.1989.
2 Order referring
(1) The Court may, in any proceedings in the Court, subject to this rule, at any stage of the proceedings, on application by a party or of its own motion, make orders for reference to a referee appointed by the Court for inquiry and report by the referee on the whole of the proceedings or any question or questions arising in the proceedings.(2) The Court shall not make an order under subrule (1) in respect of a question to be tried with a jury.(3) In respect of a question which may, under section 86 of the Act, be tried with a jury, the Court shall not, before the expiry of the time prescribed by Part 34 rule 3 (which relates to a requisition for trial with a jury), make an order under subrule (1), unless the Court also makes an order under section 89 (1) of the Act (which section relates to trial without a jury).rule 72.2: Ins 2.6.1972. Subst 22.11.1985. Am 22.9.1989.
3 Appointees
(1) Subject to this rule, the Court may appoint any person as a referee.(2) A Judge, master, registrar or other officer of the Court may not act as a referee otherwise than with the concurrence of the Chief Justice.rules 72.3, 72.4: Ins 2.6.1972. Subst 22.11.1985.
4 Two or more referees
(1) Where the Court appoints two referees and a decision to be made in the course of proceedings under the reference is not agreed, the decision:(a) where a Judge or Master is a referee—of the Judge or Master, andshall be binding.(b) in any other case—of the referee appointed by the Court to be senior referee,(2) Where the Court appoints three or more referees, any decision to be made in the course of proceedings under the reference may be made by a majority of the referees and, failing a majority, the decision:(a) where a Judge or Master is a referee—of the Judge or Master, andshall be binding.(b) in any other case—of the referee appointed by the Court to be senior referee,rules 72.3, 72.4: Ins 2.6.1972. Subst 22.11.1985.
5 Inquiry and report
(1) Where the Court makes orders under rule 2 the Court may, at any time and from time to time:(a) authorise the referee to inquire into and report upon any facts relevant to the inquiry and report on the matter referred,(b) direct the referee to make a further or supplemental report or inquiry and report,(c) give such instructions as the Court thinks fit relating to the inquiry or report.(2) Instructions pursuant to subrule (1) (c) may include provision concerning any experiment or test for the purposes of any inquiry or report of a referee.rule 72.5: Ins 2.6.1972. Subst 22.11.1985. Am 22.9.1989.
6 Remuneration of referee
(1) The Court may:(a) determine the amount of the fees to be paid to a referee,(b) direct how, when and by whom the whole or any part of any such fees are to be payable,(c) determine the consequences of failure to comply with a direction under paragraph (b).(2) Subrule (1) does not affect the powers of the Court as to costs.rules 72.6, 72.7: Ins 2.6.1972. Subst 22.11.1985.
7 Court rooms etc
The Court may give directions for the provision:(a) of services of officers of the Court, andfor the purpose of any reference under rule 2.(b) of court rooms and other facilities,rules 72.6, 72.7: Ins 2.6.1972. Subst 22.11.1985.
8 Conduct of proceedings under the reference
(1) Where the Court makes an order under rule 2, the Court may give directions with respect to the conduct of proceedings under the reference.(2) Subject to any direction under subrule (1):(a) the referee may conduct the proceedings under the reference in such manner as the referee thinks fit,(b) the referee, in conducting proceedings under the reference, is not bound by rules of evidence but may inform himself or herself in relation to any matter in such manner as the referee thinks fit.(3) Evidence before the referee:(i) may be given orally or in writing, and(ii) shall, if the referee so requires, be given on oath or affirmation or by affidavit.(4) A referee may take the examination of any person.(5) Each party shall, within a time fixed by the referee but in any event before the conclusion of evidence on the inquiry, give to the referee and each other party a brief statement of the findings of fact and law for which the party contends.(6) The parties shall at all times do all things which the referee requires to enable a just opinion to be reached and no party shall wilfully do or cause to be done any act to delay or prevent an opinion being reached.rule 72.8: Ins 2.6.1972. Subst 22.11.1985. Am 22.9.1989.
9 Interlocutory directions
The Court may, at any time and from time to time, on motion of the referee or of a party, give directions with respect to any matter arising in proceedings under the reference.rule 72.9: Ins 2.6.1972. Subst 22.11.1985.
10 Setting aside or variation of reference
(1) The Court may, of its own motion or on application by a referee or a party set aside or vary any order made under rule 2.(2) Nothing in this rule affects any other power of the Court to set aside or vary an order made under rule 2.rule 72.10: Ins 2.6.1972. Subst 22.11.1985. Am 22.9.1989.
11 Report
The referee shall, unless the Court otherwise orders, make a report to the Court, in writing, on the matter referred to the referee annexing the statements given under rule 8 (5) and stating:(a) the referee’s opinion on the matter, and(b) the reasons for the opinion.rule 72.11: Ins 2.6.1972. Subst 22.11.1985; 22.9.1989.
12 Service of report
On receipt of the report, the Court shall serve it on the parties.rule 72.12: Ins 2.6.1972. Subst 22.11.1985.
13 Proceedings on the report
(1) Where a report is made, the Court may, of its own motion, after notice to the parties, or on application by any party, on a matter of fact or law or both:(a) adopt, vary or reject the report in whole or in part,(b) require an explanation by way of report from the referee,(c) on any ground, remit for further consideration by the referee the whole or any part of the matter referred for a further report,and shall give such judgment or make such order as the Court thinks fit.(d) decide any matter on the evidence taken before the referee, with or without additional evidence,(2) Evidence additional to the evidence taken before the referee may not be adduced before the Court except with the leave of the Court.rule 72.13: Ins 22.11.1985. Subst 22.9.1989. Am 30.3.1990.
Part 72A Commercial Arbitration Act 1984
pt 72A: Ins 26.4.1985.
Division 1 General
pt 72A, div 1, hdg: Ins 12.7.1985.
1 Definitions
In this Part, unless the context or subject matter otherwise indicates or requires:arbitrator includes an umpire.subject Act means the Commercial Arbitration Act 1984.rule 72A.1: Ins 26.4.1985.
1A Assignment of business
(1) Proceedings on an application or appeal under the subject Act or for a declaration of right that an award is not binding on a party are assigned to the Equity Division for entry:(a) where the arbitration proceedings are proceedings to which Part 14A rule 2 (which relates to the Technology and Construction List) applies—in the Technology and Construction List,(b) in any other case—in the Commercial List.(2) This rule does not apply to:(a) proceedings on an application under section 53 of the subject Act (which sections relate to a stay of court proceedings), or(b) proceedings to which Part 12 rule 4 (j) (which relates to the Agricultural Tenancies Act 1990) applies.rule 72A.1A: Ins 24.4.1986. Am 23.2.1990; 15.3.1991; 25.10.1996; 7.8.1998; 25.6.1999; 19.10.2001 (see also 26.10.2001).
2 Commencement of applications under the subject Act
Proceedings on an application under the subject Act shall, subject to this Part, be commenced by summons.rules 72A.2–72A.4: Ins 26.4.1985.
3 Preliminary point of law
(1) Proceedings on an application to the Court for a determination under section 39 (1) of the subject Act shall be commenced within 14 days after the date on which the consent or all the consents in writing was or were given to the party who wishes to apply to the Court under that subsection or within such extended time as the Court may fix.cf RSC (Rev) 1965, O 73, r 5.(2) A decision to entertain or not to entertain an application under section 39 (1) (a) of the subject Act with respect to a question of law shall be given by order.cf (Eng) 1979, c 42, s 2 (3).rules 72A.2–72A.4: Ins 26.4.1985.
4 Interlocutory orders
In proceedings on an application for an order under section 47 of the subject Act, the Court may refuse to make the order where the Court considers that the arbitrator has power to make the order.rules 72A.2–72A.4: Ins 26.4.1985.
5 Time for applications and appeals
(1) In this rule material date means:(a) in respect of an award which, by agreement by the parties to the arbitration agreement, may be made with reasons later—the date on which notice of the reasons is given by the arbitrator to the person who wishes to apply or appeal to the Court,(b) in respect of any other award—the date on which notice of the award is given by the arbitrator to the person who wishes to apply or appeal to the Court.(2) Notwithstanding Part 51A rule 3 (which relates to time for an appeal) an appeal to which section 38 (4) (a) of the subject Act applies (which paragraph relates to an appeal with the consent of the parties) must be instituted not later than 28 days after the material date or within such extended time as the Court may fix.(3) Proceedings on an application to the Court:(a) for an order under section 38 (4) (b) of the subject Act (which paragraph relates to leave to appeal),(b) for an order under section 42 of the subject Act (which section relates to setting aside an award),shall be commenced within 28 days after the material date or within such extended time as the Court may fix.(c) for an order under section 43 of the subject Act (which section relates to remitting an award),(4) (Repealed)rule 72A.5: Ins 26.4.1985. Am 24.6.1994.
5A Application of Part 51A rule 2A
Part 51A rule 2A shall not apply to an application for leave under section 38 (4) (b) of the subject Act.rule 72A.5A: Ins 24.6.1994.
6 Application for leave under s 38 (4) (b) to appeal
cf P 51, r 3 (7).
The plaintiff shall file with or subscribe to the summons by which proceedings on an application for leave under section 38 (4) (b) of the subject Act are commenced a statement:(a) describing the nature of the case with particularity sufficient for an understanding of the matters in subparagraphs (b), (c), (d) and (e),(b) identifying the question of law,(c) of the circumstances and manner in which the determination of the question of law could substantially affect the rights of one or more parties to the arbitration agreement,(d) where applicable—of the manifest error of law on the face of the award, and(e) where applicable—of the error of law made by the arbitrator and of why the determination of the question may add, or be likely to add, substantially to the certainty of commercial law.rule 72A.6: Ins 26.4.1985. Am 24.9.1993.
7 Subpoena
(1) Part 37 (except Part 37 rules 2 (2), 3A, 4, 7 (4), 7A) applies in relation to the issue of a subpoena under section 17 (1) of the subject Act as it applies in relation to the issue of a subpoena in proceedings in the Court.(1A) A subpoena for production before an arbitrator may, with the leave of Court or the arbitrator, require production on any day.(2) A subpoena requiring production of any document or thing before an arbitrator shall, unless the Court otherwise orders, permit the person named to produce the document or thing to a person, and at a place, nominated in writing by the arbitrator and stated in the subpoena by hand or by post, in either case so that the person nominated receives it not later than two days before the first date on which production before the arbitrator is required instead of attending and producing it before the arbitrator.(3) Where a document or thing is produced to the person nominated pursuant to subrule (2) the person nominated shall:(a) if required to do so, give a receipt to the person producing the document or thing, and(b) produce the document or thing as the nature of the case requires or as the arbitrator may direct.(4) Subrule (2) does not apply to so much of a subpoena as requires a person to attend to give evidence.rule 72A.7: Ins 26.4.1985. Am 23.9.1988; 16.3.1990.
8 Order for examination of witness (cf P 27)
cf Act No 29, 1902, ss 21 and 23 and Act No 160, 1984, s 18 (2) and (3).
(1) Part 27 rule 1 applies for the purpose of an arbitration to which the subject Act applies as it applies for the purpose of proceedings in the Court.(2) Where any order is made pursuant to subrule (1), Part 27 rules 2–12 apply as if:(a) a reference in Part 27 to proceedings included a reference to the arbitration proceedings,(b) Part 27 rule 9 (5), (6) and (7) were omitted.(3) The examiner shall, unless the Court otherwise orders, send the deposition, a copy of the deposition, any document which constitutes a recording under Part 27 rule 8A (which relates to videotape, etc) and the exhibits to the registrar.(4) The registrar shall, on receiving the copy of the deposition, file it in the proceedings on the examination.(5) The Court may make orders for the transmission to the arbitrator of the deposition, document, any exhibit or copy of any exhibit and any such deposition, document, exhibit or copy shall be deemed to have been taken or received (as the case requires) in the course of the arbitration proceedings.rule 72A.8: Ins 26.4.1985. Am 19.5.1989.
9 Leave to enforce award
(1) The summons commencing proceedings for leave under section 33 of the subject Act shall join the party who seeks enforcement of the award as plaintiff and the party against whom the enforcement is sought as defendant.(2) Section 9 of the Arbitration (Foreign Awards and Agreements) Act 1974 of the Commonwealth (the Commonwealth Act) (which section relates to evidence of an award) applies in proceedings in which a person seeks leave under section 33 of the subject Act to enforce an award as it applies in proceedings in which a person seeks the enforcement of a foreign award by virtue of the Commonwealth Act.rule 72A.9: Ins 26.4.1985. Am 2.12.1988; 25.10.1996.
10 Leave to appeal to the Court of Appeal
cf Act No 160, 1984, s 49; Act No 52, 1970, s 101 (2) (i).
An appeal shall not lie to the Court of Appeal, except by leave of the Court of Appeal, from a direction or decision in proceedings in the Court under the subject Act.rule 72A.10: Ins 26.4.1985. Subst 24.10.1986.
Division 2 Offer of compromise
pt 72A, div 2: Ins 12.7.1985. Subst 24.9.1993.
11 Application of Division
This Division applies except so far as is otherwise agreed in writing by the parties to the arbitration agreement.rules 72A.11–72A.20: Ins 12.7.1985. Subst 24.9.1993.
12 Interim awards
(1) In arbitration proceedings the arbitrator shall, unless the parties otherwise request, make an interim award dealing with all questions of liability and the relief to be granted and, before making any provision in an award with respect to the costs of the arbitration, give the parties an opportunity to be heard on the question of the costs of the arbitration.(2) Subrule (1) shall not apply where an offer has been accepted in accordance with this Division.rules 72A.11–72A.20: Ins 12.7.1985. Subst 24.9.1993.
13 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 be in writing and bear a statement to the effect that the offer is made in accordance with this Division.rules 72A.11–72A.20: Ins 12.7.1985. Subst 24.9.1993.
14 Application
Any party may make to any other party an offer to compromise any claim to which the arbitration agreement applies on the terms specified in the notice of offer.rules 72A.11–72A.20: Ins 12.7.1985. Subst 24.9.1993.
15 Time for making or accepting offer
(1) An offer may be made at any time before the time prescribed by subrule (8) in respect of the claim to which it relates.(2) A party may make more than one offer.(3) An offer may be expressed to be limited as to the time it is open to be accepted but the time expressed shall not be less than 28 days after it is made.(4) An offeree shall, within 3 days after service, serve a written acknowledgment of receipt on the offeror.(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.(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 rule 19 (1) and (2) is after the arbitrator has:(a) made decisions on all questions of liability and the relief to be granted in respect of the claim to which the offer relates, and(b) communicated the decisions to one or more of the parties.rules 72A.11–72A.20: Ins 12.7.1985. Subst 24.9.1993.
16 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.rules 72A.11–72A.20: Ins 12.7.1985. Subst 24.9.1993.
17 Withdrawal of acceptance
(1) A party who accepts an offer may, by serving a notice of withdrawal on the offeror, withdraw the acceptance 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 the act is not done within 28 days after acceptance of the offer or within such other time as the offer provides.(2) On withdrawal of an acceptance all steps in the arbitration taken in consequence of the acceptance shall have such effect only as the arbitrator may direct.(3) On withdrawal of an acceptance the arbitrator may:(a) give directions under subrule (2),(b) give directions for restoring the parties as nearly as may be to their positions at the time of the acceptance, and(c) give directions for the further conduct of the arbitration.rules 72A.11–72A.20: Ins 12.7.1985. Subst 24.9.1993.
18 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.rules 72A.11–72A.20: Ins 12.7.1985. Subst 24.9.1993.
19 Disclosure of offer to arbitrator
(1) No statement of the fact that an offer has been made shall be contained in any document delivered to the arbitrator before the time prescribed by rule 15 (8).(2) Where an offer has not been accepted, no communication with respect to the offer shall be made to the arbitrator before the time prescribed by rule 15 (8).(3) Subrules (1) and (2) shall not apply where a notice of offer provides that the offer is not made without prejudice.rules 72A.11–72A.20: Ins 12.7.1985. Subst 24.9.1993.
20 Failure to comply with accepted offer
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 on application to the Court 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 claimant, an order that the arbitration be stayed and, where the party in default is opposing the claim, an order declaring the compromise constituted by the acceptance of the offer to be of no effect and that the claimant be at liberty to proceed with the arbitration.rules 72A.11–72A.20: Ins 12.7.1985. Subst 24.9.1993.
21 Costs where offer not accepted
In any exercise of discretion as to costs the arbitrator shall consider whether the offeror was at all material times willing and able to carry out the offeror’s part of what was proposed in the offer.rule 72A.21: Ins 24.9.1993.
Part 72B Arbitration under the Arbitration (Civil Actions) Act 1983
pt 72B: Ins 22.12.1989.
1 Reference to arbitration
(1) For the purposes of section 76B (3) (d) of the Act the class of proceedings that may not be referred for determination pursuant to the Arbitration (Civil Actions) Act 1983 (the subject Act) are proceedings in the Equity Division in which the Court considers that the total value of all relief sought is likely to exceed $750,000.(2) An order under section 76B (1) of the Act shall be an order for reference to a single arbitrator.(3) An order under section 76B (1) of the Act shall be an order for reference to an arbitrator sitting, with the approval of the Court, on the date specified in the order and need not further specify the arbitrator.(4) An arbitrator shall, if he is not prepared to hear and determine the proceedings, so inform the Court as soon as practicable, specifying his reasons.(5) Where an arbitrator declines or fails to hear and determine the proceedings, the Court shall revoke the order referring the proceedings to the arbitrator and may make another order referring the proceedings to an arbitrator.(6) An arbitrator may from time to time adjourn the arbitration of any proceedings which he has commenced to hear.(7) Subject to subrule (6), an arbitrator shall, on the date specified in the order referring the proceedings or to which the arbitration has been adjourned under subrule (6), hear, or continue to hear, and determine the proceedings, whether or not in the absence of the parties.rule 72B.1: Ins 22.12.1989. Am 24.9.1993; 24.9.1999; 20.10.2000; 24.11.2000.
2 Medical reports
(1) In this rule, medical expert includes dentist, medical practitioner, occupational therapist, physiotherapist and psychologist.cf Pt 25, r 1 (2).(2) A party seeking to adduce on any issue at an arbitration any evidence of a medical expert as to the past, present or probable future physical or mental condition of a person shall obtain from the practitioner a written report containing the substance of the matters sought to be adduced in evidence, and shall, not later than 21 days before the date specified for the arbitration, serve the report on each party who has separately pleaded in the proceedings.(3) The report shall be admissible as evidence of the matters contained in it unless the Court or the arbitrator otherwise orders.(4) A party shall not be entitled to adduce before an arbitrator oral evidence of a medical expert as to any of the matters mentioned in subrule (1) unless the Court or the arbitrator so directs or the parties consent.rules 72B.2–72B.4: Ins 22.12.1989.
3 Award of arbitrator
(1) The award of an arbitrator may be in or to the effect of Form 71C.(2) The reasons for the award of an arbitrator may be in Form 71D.(3) The reasons of the arbitrator for his award shall, for the purposes of section 15 (1) of the subject Act be specified to the extent that, in his opinion, they make the parties aware of his view of the case made by each of them.(4) Where a party fails to attend a hearing before an arbitrator, the arbitrator shall add to his reasons for award a statement that the party failed to attend and state any information known to the arbitrator relating to reasons for the failure.(5) The registrar shall, forthwith after receiving the award of an arbitrator, serve on each of the parties the award, on copies of which he has endorsed the date of sending and, unless the award was made with the consent of all parties, the registrar’s notice in Form 71C.(6) For the purposes of subrule (5), date of sending means the date of leaving, sending, transmitting or otherwise serving copies of the award under Part 9 rule 4 (1).rules 72B.2–72B.4: Ins 22.12.1989.
4 Time after which award taken to be a judgment
(1) For the purposes of section 76B (5) of the Act, the time prescribed is:(a) in relation to an award expressed to be made with the consent of all parties—the period ending on the date endorsed under rule 3 (5), oror such extended time as the Court may fix.(b) in any other case—28 days from the date so endorsed,(2) The Court may extend time under subrule (1) at any time.rules 72B.2–72B.4: Ins 22.12.1989.
5 Rehearing
(1) An application for an order under section 18 of the subject Act shall be made by the aggrieved party:(a) where a statement under rule 3 (4) is not added to the reasons for the award—by filing a notice in or to the effect of Form 71E and lodging as many copies thereof as there are parties who have separately pleaded,(b) where a statement under that subrule is so added—by motion on notice.(2) The registrar shall, as soon as practicable after the filing of a notice referred to in subrule (1) (a), complete the notice and serve it on each party who has separately pleaded.(3) Before the record of any proceedings is brought before the Court for a rehearing, the registrar shall seal within the record all information as to the nature and quantum of the award of the arbitrator but the Court shall not disqualify itself from rehearing the proceedings because it becomes aware in any manner of that information.rule 72B.5: Ins 22.12.1989. Am 21.8.1998.
6 Costs on rehearing
Part 52A rule 30 shall apply.rule 72B.6: Ins 22.12.1989. Am 24.6.1994.
7 Application for order under section 18D (2) (c)
An application for an order under section 18D (2) (c) of the subject Act may be made by any party and, subject to Part 19, at any time.rule 72B.7 and hdg: Ins 22.4.1994. Am 21.8.1998.
8 Application for order under section 18D (3)
An application under section 18D (3) of the subject Act may be made by motion on notice in the discontinued proceedings.rule 72B.8: Ins 21.8.1998.
Part 72C Mediation
pt 72C: Ins 21.10.1994.
pt 72C, Heading: Ins 21.10.1994. Subst 19.12.2003.
1 Directions
The Court may give directions for regulating and prescribing the practice and procedure to be followed in a mediation, including the preparation and service of documents.rules 72C.1, 72C.2: Ins 21.10.1994. Am 19.12.2003.
2 Agreement for referral
On the first occasion when proceedings are before the Court for directions, each party who has an address for service in the proceedings shall state:(a) whether the party consents to referral of a matter arising in the proceedings for mediation,(b) whether the parties agree as to who is to be the mediator, and(c) whether the parties agree as to the proportions in which the costs of mediation shall be borne, and the terms of their agreement.rules 72C.1, 72C.2: Ins 21.10.1994. Am 19.12.2003.
3 Appointments and directions by mediator
A person to whom a matter is referred for mediation:rule 72C.3, hdg: Ins 21.10.1994. Am 19.12.2003.(a) shall, within 7 days of being notified of the referral, in writing appoint a time for the mediation,(b) may appoint a preliminary meeting of the parties, and(c) may give directions relating to preparations for and conduct of the mediation.rules 72C.3, 72C.4: Ins 21.10.1994. Am 19.12.2003.
4 Completion of referral
The parties and the mediator shall conduct the referral with the object, so far as practicable, of completing the referral within 28 days.rules 72C.3, 72C.4: Ins 21.10.1994. Am 19.12.2003.
5 (Repealed)
rule 72C.5: Ins 21.10.1994. Rep 19.12.2003.
6 Mediation session procedure
Unless the mediator otherwise directs:(a) a mediation session shall be attended:(i) subject to subparagraph (ii), by each party or, where a party is a company, by an officer of the company having authority to settle the proceedings, or(ii) if the conduct of the proceedings by a party is controlled by an insurer—by an officer of the insurer having authority to settle the proceedings, and(b) a party may be accompanied by that party’s counsel or solicitor at a mediation session.rule 72C.6: Ins 21.10.1994.
7 Notification by mediator of conclusion of mediation
The mediator shall, within 7 days of the conclusion of the mediation, advise the Court of the fact that the mediation has been concluded.rule 72C.7, hdg: Am 19.12.2003.rule 72C.7: Ins 21.10.1994. Am 19.12.2003.
Part 73 Adoption of Children
pt 73: Ins 2.6.1972. Subst 24.4.2003.
pt 73, div 1, hdg: Ins 19.4.1991. Rep 24.4.2003.
1 Interpretation
(1) In this Part:Adoption Act means the Adoption Act 2000.Adoption Regulation means the Adoption Regulation 2002.(2) Unless the context indicates otherwise, words and expressions used in this Part have the same meanings as they are given by the Dictionary to the Adoption Act.(3) Unless the context indicates otherwise, references in this Part to sections are references to sections in the Adoption Act and references in this Part to clauses are references to clauses in the Adoption Regulation.rule 73.1: Ins 2.6.1972. Am 19.4.1991. Subst 24.4.2003.
2 Assignment of business
Proceedings in the Court under the Adoption Act are assigned to the Equity Division.rule 73.2: Ins 2.6.1972. Am 15.12.1972; 1.6.1973; 29.4.1977. Subst 24.4.2003.
3 Duty to make full and frank disclosure
Each party to proceedings in the Court under the Adoption Act has a duty to the Court to make known fully and frankly all matters relevant to the making of an adoption order, whether those matters tend to support or tend not to support making the order.rule 73.3: Ins 2.6.1972. Am 18.12.1987. Subst 24.4.2003.
4 Commencement of proceedings
(1) Proceedings in the Court under the Adoption Act, other than an application for an adoption order:(a) may be commenced by summons under Part 5, or(b) may be made by notice of motion in any earlier proceedings under the Adoption Act relating to the child.(2) Unless there have been earlier proceedings in the Court under the Adoption Act relating to the child, an application for an adoption order is to be made by filing a summons not joining any person as defendant. The summons may be in Form 72 with such adaptations as the case may require.(3) If there have been earlier proceedings in the Court under the Adoption Act relating to the child, an application for an adoption order may be made by notice of motion in the proceedings.(4) Applications for adoption orders for 2 or more children may be joined in one summons if the same person is the proposed adoptive parent, or the same persons are the proposed adoptive parents, of all the children.(5) An application for a preliminary hearing under section 80 (2) (which relates to placement for adoption of an Aboriginal child or of a Torres Strait Islander child):(a) may be made by summons, or(b) if there have been earlier proceedings under the Adoption Act relating to the child, may be made by notice of motion in the proceedings.(6) Despite Part 5, a summons commencing proceedings under the Adoption Act is not to state a return day for the proceedings. However, nothing in this subrule affects any requirement under rule 8 to state an appointment for a preliminary hearing in the summons.(7) The Court may, of its own motion, appoint a date for the hearing of proceedings under the Adoption Act commenced by summons.(8) If the Court appoints a date for hearing of proceedings commenced by summons, the Court must give the parties, or ensure that the parties are given, notice of the appointment at least 5 days before the date appointed. Any such notice must be in writing or by email or facsimile transmission.(9) If the Court makes an appointment for hearing under this rule, the Court may give directions for service of notice of the appointment or for otherwise notifying the parties of the appointment.rule 73.4: Ins 2.6.1972. Subst 24.4.2003. Am 13.6.2003.
5 Form of summons
(1) A summons is to bear, above the title, the word “Child” followed by the child’s given names and surname or, if unnamed, the word “Unnamed”. A summons is to also bear, above the title, the words and figures “Adoption Act 2000”.(2) A summons commencing proceedings under the Adoption Act is to contain the following statement:“The proceedings commenced by this summons will be dealt with by a Judge out of court unless the Court directs otherwise.”rule 73.5: Ins 2.6.1972. Am 23.12.1977; 27.3.1987. Subst 24.4.2003. Am 13.6.2003.
5A (Repealed)
rule 73.5A: Ins 15.12.1972. Rep 23.12.1977. Ins 27.3.1987. Rep 24.4.2003.
6 How application for adoption order is to be dealt with
(1) Unless the Court directs otherwise, an application for an adoption order is to be dealt with and determined by the Court in the absence of the public and without any attendance by or on behalf of the plaintiff.(2) If it is not appropriate for an application for an adoption order to be dealt with without the attendance by and on behalf of the plaintiff, the plaintiff must, in the summons, apply for a preliminary hearing and for directions relating to the hearing.rules 73.6, 73.7: Ins 2.6.1972. Subst 24.4.2003.
7 Adoption order to be in prescribed form
An adoption order must be in Form 74 with such adaptations as the case may require. The plaintiff must either lodge with the summons, or produce at the preliminary hearing, a minute of the proposed order.rules 73.6, 73.7: Ins 2.6.1972. Subst 24.4.2003.
7A (Repealed)
rule 73.7A: Ins 17.11.1989. Rep 24.4.2003.
8 Preliminary hearing
(1) The plaintiff may, in the summons, apply for a preliminary hearing and, if the plaintiff does so, the summons must contain an appointment for a preliminary hearing.(2) A party may obtain a preliminary hearing by filing a notice of motion.(3) The party applying for a preliminary hearing must state shortly in the summons or notice of motion the terms, or the effect, of any order or direction for which the party will apply at the preliminary hearing.(4) A person other than a party may apply, by notice of motion, for a preliminary hearing and must, in the notice of motion, seek the approval of the Court pursuant to clause 41 (b).(5) The Court may, if it thinks fit, grant approval pursuant to clause 41 (b) upon perusal of the notice of motion and the evidence filed in support of the notice, before hearing the notice of motion and without affording to any person other than the applicant an opportunity to be heard.rule 73.8: Ins 2.6.1972. Subst 24.4.2003.
8A (Repealed)
rule 73.8A: Ins 27.3.1987. Rep 24.4.2003.
9 Proceedings appropriate to commence by summons or notice of motion
Proceedings appropriate to commence by summons, or by notice of motion in any earlier proceedings under the Adoption Act relating to the child, include an application relating to:(a) a consent dispense order,(b) the registration of an adoption plan,(c) the review of an adoption plan,(d) a child of whom the Director-General is guardian, where a report is required under section 78 (1) about the child,(e) placement of a child with a prospective adoptive parent (other than an Aboriginal or Torres Strait Islander child), where a preliminary hearing is required under section 80 (2),(f) dispensing with notice under section 88 (4),(g) a declaration under section 110 that an adoption is not recognised,(h) terminating a legal relationship under section 111,(i) a declaration of validity under section 117.rule 73.9: Ins 2.6.1972. Subst 24.4.2003.
9A, 9B (Repealed)
rules 73.9A, 73.9B: Ins 27.3.1987. Rep 24.4.2003.
10 Applications appropriate for preliminary hearing
(1) Applications appropriate for a preliminary hearing are applications for any order or direction that the Court should determine before the Court determines the application for an adoption order or other principal application.(2) Applications appropriate for a preliminary hearing include an application relating to the following:(a) joinder of a party in accordance with section 118, including joinder of a non-consenting father,(b) giving notice of proceedings to any person,(c) appointing a guardian ad litem in accordance with section 123 or guardian ad litem or amicus curiae in accordance with section 124,(d) a consent dispense order,(e) the placement for adoption of an Aboriginal or Torres Strait Islander child, where a preliminary hearing is required by section 80 (2),(f) the adoption of an Aboriginal or Torres Strait Islander child,(g) the registration of an adoption plan,(h) dispensing with notice under section 88 (4),(i) the revocation of a consent dispense order.rule 73.10: Ins 2.6.1972. Subst 24.4.2003.
11 Application for further orders
(1) If there have been proceedings under the Adoption Act relating to a child, and an adoption order or other final order has been made, an application for any further order under the Adoption Act relating to the child may be made by notice of motion in those proceedings.(2) Applications appropriate to be dealt with in this way include an application relating to the following:(a) the discharge of an adoption order,(b) the discharge of an interim order,(c) the review of an adoption plan,(d) the registration of an adoption plan.rule 73.11: Ins 2.6.1972. Am 27.6.1986. Subst 24.4.2003.
12 Filing of report in accordance with section 91
A plaintiff applying for an adoption order must, when filing the summons or, if there is a preliminary hearing, before the preliminary hearing, file a report made under section 91.rule 73.12: Ins 2.6.1972. Am 15.12.1972. Rep 1.6.1973. Ins 29.4.1977. Subst 24.4.2003.
13 Evidence in support of application for adoption order
(1) Evidence in support of an application for an adoption order must include evidence of the following:(a) the matters specified in section 90,(b) the facts and circumstances that give the Court jurisdiction in accordance with section 23, 106 or 107,(c) the date and place of the child’s birth,(d) the names of the child, including all names that the child has or has had, and the facts relating to any change of the child’s name,(e) the names that it is proposed the child should have on the making of the adoption order, showing separately the proposed given name or names and the proposed surname, and all facts relating to any consent required under section 101 (4) and any relevant special reasons under section 101 (5),(f) the name, place of residence and occupation of each person with whom the child resides or who has the child in that person’s care or custody,(g) the name, place of residence, age and occupation of each proposed adoptive parent,(h) if it is proposed that there be one adoptive parent, the facts and circumstances that show that an order may be made having regard to the provisions of section 27,(i) if it is proposed that a couple be the adoptive parents, the facts and circumstances that show that an order may be made having regard to the provisions of section 28,(j) the following matters relating to consents under the Act or Adoption Regulation:(i) the facts and circumstances relating to which persons’ consents are necessary,(ii) the provisions of the Adoption Act or Regulation that make the consents necessary,(iii) consents that have been obtained,(iv) notice or advice to the birth father under section 56,(v) consents for which there is a consent dispense order,(vi) consents for which it is contended that the court should make a consent dispense order,(k) whether there is, or has been, an adoption plan, the facts and circumstances relating to the making of any adoption plan, whether the adoption plan has been registered and the terms of any adoption plan that remains in effect,(l) the opinions, and reasons for those opinions, of persons who are not related to the proposed adoptive parent or parents relating to the adoptive parent’s or parents’ character and suitability to be an adoptive parent or adoptive parents,(m) the facts and circumstances relating to the principles stated in section 8 (1) and the matters to which the Court is to have regard in accordance with section 8 (2),(n) the facts and circumstances relied on to show that the best interests of the child will be promoted by the adoption,(o) the facts and circumstances relied on to show that the wishes and feelings of the child have been ascertained and that due consideration has been given to those wishes and feelings,(p) whether there have been any proceedings relating to the interests, welfare or adoption of the child under the law of New South Wales or of the Commonwealth or any other place, whether any orders relating to the interests, welfare or adoption of the child have been made in any such proceedings, the terms of those orders and whether they remain in effect,(q) whether the child is, or has ever been, an immigrant and whether the Minister administering the Immigration (Guardianship of Children) Act 1946 of the Commonwealth has consented to the making of the application for adoption,(r) whether the child is a non-citizen child, showing whether the child is a non-citizen child from a Convention country or from another country outside Australia,(s) whether a proposed adoptive parent is a step-parent or relative of the child,(t) if a proposed adoptive parent is a step-parent of the child, whether leave of the Family Court of Australia has been obtained under section 60G of the Family Law Act 1975 of the Commonwealth,(u) whether any notice has been given to persons notice to whom is referred to in section 88 (which relates, among other persons, to person whose consent is required and has not been given and has not been dispensed with).rule 73.13: Ins 2.6.1972. Subst 24.4.2003.pt 73, div 2, hdg: Ins 19.4.1991. Rep 24.4.2003.
14 Form of consent and witnessing of consent
The Court may take notice, without verification, of an instrument of consent:(a) that appears on its face to have been given in accordance with section 61, and(b) that appears on its face to have been witnessed in accordance with section 62,(c) that is accompanied by statements that on their face appear to have been made in accordance with sections 61 and 62.rules 73.14, 73.15: Ins 19.4.1991. Subst 22.11.1996; 24.4.2003.
15 Notice to be given to Director-General
(1) Notice must be given to the Director-General of any application for the discharge of an adoption order, declaration of validity, declaration that an adoption is not recognised or an order terminating a legal relationship.(2) The Court must not determine any application referred to in subrule (1) unless the Director-General has had a reasonable opportunity to become a party to the proceedings.(3) Despite subrule (2), the Court may determine an application referred to in subrule (1) without the Director-General having a reasonable opportunity to become a party to the proceedings if the Court considers it necessary in the circumstances.rules 73.14, 73.15: Ins 19.4.1991. Subst 22.11.1996; 24.4.2003.
16 Proper officer of the Court
For section 143 (3), a Registrar of the Court is a proper officer of the Court.rule 73.16: Ins 19.4.1991. Am 25.6.1993. Subst 22.11.1996; 24.4.2003.
17 Access to Court records
(1) An application under section 143 (2) may be addressed to the Registrar of the Equity Division.(2) The Court or a Registrar of the Court may deal with an application for the supply of information from records of proceedings in the Court informally by correspondence or upon the personal attendance of the applicant without conducting a formal hearing.(3) A person applying for information under section 143 must fulfil such reasonable requirements as may be made by a Registrar of the Court as to:(a) the verification of facts on which the application is based, and(b) identification of the proceedings in the Court to which the application relates, and(c) giving notice to any person, and(d) compliance with the requirements of the Adoption Act and the Adoption Regulation, and(e) any other matter.rule 73.17: Ins 22.4.1994. Rep 22.11.1996. Ins 24.4.2003.
18 Continued effect of former Pt 73
An application for an adoption order pending before the commencement of the Adoption Act is to continue to be dealt with under the provisions of Part 73 as in force before the commencement of Supreme Court Rules (Amendment No 373) Rule 2003 despite the repeal of that Part.rule 73.18: Ins 24.4.2003.
Part 74 Transfers of proceedings; cross-vesting laws
pt 74: Ins 2.6.1972. Subst 31.8.1984.
pt 74, Heading: Am 4.5.1973. Subst 31.8.1984. Am 17.6.1988.
Division 1 General
1 Proceedings after transfer etc to the Court
(1) In this rule:court includes a tribunal.transfer includes remit and remove.(2) Where proceedings are transferred to or into the Court from any other court:(a) subject to the Act or Commonwealth Act under which the transfer was made or any order of the Court:(i) the registrar or clerk of the court from which the proceedings are transferred shall send the record of the proceedings to the Court, and(ii) the Court shall proceed as if the proceedings had been originally commenced in the Court and as if the same steps had been taken in the Court as have been taken in any other court or courts in which the proceedings were for the time being pending and as if any order made by any other court or courts in which the proceedings were for the time being pending had been made by the Court,(b) the proceedings shall be assigned to the Division to which they would have been assigned if they had been commenced in the Court,(c) the plaintiff shall, within 28 days of the transfer, move the Court for directions under Part 26.(3) Subrule (2) (c) shall not apply to proceedings to which rule 3 or Division 3 (which relates to cross-vesting laws) applies.(4) This rule shall not apply to a stated case.(5) Where proceedings are transferred by agreement pursuant to an Act that allows transfer by agreement, the parties shall reduce the agreement to writing and it shall be included with the record of the proceedings.rule 74.1: Ins 2.6.1972. Am 4.5.1973. Subst 31.8.1984. Am 1.11.1985; 17.6.1988; 24.4.1998. Subst 21.5.1999. Am 20.8.1999.
1A Order transferring proceedings
Notwithstanding Part 41 rule 13 (3), the registrar may, without a direction of the Court or a request of a party, file and seal a minute of an order that proceedings or part of proceedings be removed or otherwise be transferred:(a) to the Court from another court, or(b) from the Court to another court.rule 74.1A: Ins 24.5.1996.
Division 2 Applications for transfer etc to the Court
2 Application for removal
Proceedings on an application to the Court under any Act or Commonwealth Act for an order removing to the Court proceedings pending in any other court or any tribunal shall be commenced by summons.rule 74.2: Ins 2.6.1972. Subst 31.8.1984; 17.6.1988.
3 Directions and service of order
Where the Court makes an order under section 145 of the District Court Act 1973, section 10B of the Infants’ Custody and Settlements Act 1899, section 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth, section 8 of the Jurisdiction of Courts (Cross-vesting) Act 1987, section 41 (3) of the Minors (Property and Contracts) Act 1970, or section 14E (2) of the Motor Vehicles (Third Party Insurance) Act 1942, of removal or transfer of proceedings into or to the Court:(a) the proceedings shall be before the Court for directions under Part 26,(b) the registrar shall serve a minute of the order:(i) where the proceedings were pending in a court—on the registrar of that court, or(ii) otherwise—on the officer of the tribunal concerned with its records or process.rule 74.3: Ins 2.6.1972. Subst 28.7.1978; 31.8.1984. Am 14.2.1986; 17.6.1988; 23.8.1996.
Division 3 Cross-vesting laws
pt 74, div 3: Ins 17.6.1988.
4 Definitions
(1) In this Division, unless the context or subject matter otherwise indicates or requires, subject Act means the Jurisdiction of Courts (Cross-vesting) Act 1987 or the Jurisdiction of Courts (Cross-vesting) Act 1987 of the Commonwealth.(2) Expressions used in this Division shall have, unless the contrary intention appears, in relation to proceedings under a subject Act, the same meaning as in that subject Act.(3) In this Division a reference to an application to the Court under a subject Act includes a reference to a request under section 6 (6) of that subject Act.rule 74.4: Ins 2.6.1972. Rep 31.8.1984. Ins 17.6.1988.
5 Mode of application
Any application for an order under any provision (except section 8) of a subject Act shall be made by motion in the proceedings pending in the Court.rule 74.5: Ins 17.6.1988.
6 Addition above title
Where a party to any proceeding in the Court intends to contend that:(a) the Court should exercise jurisdiction pursuant to any provision of a subject Act or any law of the Commonwealth or a State relating to cross-vesting of jurisdiction, orthe party shall add “Jurisdiction of Courts (Cross-vesting) Acts 1987” above the title of the first document filed by that party.(b) that the Court should transfer the proceeding to another Court pursuant to any such provision or law,rule 74.6: Ins 17.6.1988. Subst 23.9.1988.
7 Attorney-General
If an application for the transfer of proceedings pending in the Court is made by the Attorney-General of the Commonwealth or a State or Territory under a subject Act, the Attorney-General shall not, by reason of the application, become a party to those proceedings.rules 74.7–74.9: Ins 17.6.1988.
8 Application relating to transfer
Where a party to any proceeding in the Court intends to contend that:(a) the Court should exercise jurisdiction pursuant to any provision of a subject Act or any law of the Commonwealth or a State relating to cross-vesting of jurisdiction, orthe party shall, on or as soon as practicable after commencement of the proceedings, apply to the Court for a determination of the question whether or not the proceeding should be transferred to another Court.(b) that the Court should transfer the proceeding to another Court pursuant to any such provision or law,rules 74.7–74.9: Ins 17.6.1988.
9 Application of other laws or rules
(1) Where a party wishes to contend that the Court should, under section 11 (1) (b) or (c) of a subject Act, apply the written law of another State or Territory or the rules of evidence or procedure other than those applied in the State, the party shall, as soon as practicable:(a) file notice of the contention, specifying the law or rules and stating the grounds relied upon in support of the contention,(b) forthwith after filing the notice, serve it on each other party.(2) The Court may, on the application of a party to a proceeding or of its own motion, give directions in relation to the application of a law or rule under section 11 (1) (b) or (c) of a subject Act.rules 74.7–74.9: Ins 17.6.1988.
Part 75 Criminal proceedings
pt 75: Ins 2.6.1972.
pt 75, Heading: Am 21.12.1973.
Division 1 General
1 Application
Subject to section 17 of the Act and except as provided in this Part, the rules do not apply to any of the proceedings in the Court which are specified in the Third Schedule to the Act.rule 75.1: Ins 2.6.1972.
1A Criminal Appeal Rules
The Criminal Appeal Rules remain in force.rule 75.1A: Ins 25.3.1988.
2 Rules applicable
(1) The following rules apply, so far as applicable, to proceedings which are specified in the Third Schedule (except clause (d) of the Schedule, which clause relates to proceedings in the Court under the Criminal Appeal Act 1912) to the Act and to proceedings to which Division 2 applies:(a) subject to subrule (3), Part 1 (preliminary matters),(b) Part 1A (sittings and vacations),(c) Part 2 (time),(d) (Repealed)(e) Part 34 rule 9 (associate keeping record of trial),(f) (Repealed)(g) Part 36 (evidence: general) rules 6B, 9, 10, 12, 13BB and 13BC,(h) Part 37 (subpoenas), other than:(i) rules 3 (8), 6 (1) and 7, and(ii) if the issuing party is the Crown, rules 2 (3), 5 and 11,(i) Part 38 (affidavits),(j) Part 40 rule 6, except in proceedings to which Division 2 applies (payment of fine to registrar),(k) (Repealed)(l) Part 42 rule 7 (order for arrest),(m) Part 53 rule 8 (forfeited recognizance),(n) Part 55 (procedure for punishment for contempt),(o) Part 61 rules 1 (4), (5) and (6), 2 and 3 (registrars),(p) Part 63 rule 15 (service on disable person),(q) subject to subrule (2), Part 65 (documents),(r) Schedule F, forms 74AA, 74AB, 74AC and 74AD (subpoenas),(s) Part 77 rule 129 (application for declaration of satisfaction that the Sheriff is interested in a trial).(2) Part 65 rule 6 does not, in its application to proceedings to which this rule applies, apply to documents or records of the Crown.(3) (Repealed)(4) Part 9 rules 1–11, 13 and 14 apply, so far as applicable:(a) in proceedings in the Court which are specified in the Third Schedule to the Act (except clause (d) of the Schedule),(b) in proceedings to which Division 2 applies, and(c) to service of a notice of listing under clause 10 (2) of the Criminal Procedure Regulation 1987.(5) For the purposes of subrule (4), the address contained in a notice filed in the registry under clause 6 (1) of the Criminal Procedure Regulation 1987 of an accused person’s solicitor is an address for service of an accused person under Part 9 rule 6.(6) Part 36 rule 13D applies to proceedings which are specified in the Third Schedule (except clause (d) of the Schedule) and to proceedings to which Division 2 applies as if the time fixed for giving notice for the purposes of sections 67 and 99 respectively were not later than 21 days before the date fixed for hearing, instead of the time fixed by rule 13D (1).(7) Subject to subrule (8), Part 36 rule 2A applies to proceedings which are specified in the Third Schedule (except clause (d) of the Schedule) and to proceedings to which Division 2 applies.(8) Directions may not be given under Part 36 rule 2A:(a) in respect of the evidence given by a person against whom the proceedings are brought (an accused), orwithout the consent of that accused.(b) that prevent an accused from attending any part of the proceedings,rule 75.2: Ins 2.6.1972. Am 23.2.1973. Subst 29.6.1984. Am 24.10.1986; 25.3.1988; 20.10.1989; 22.6.1990; 28.4.1995; 25.8.1995; 22.9.1995; 22.8.1997; 19.12.1997; 24.7.1998; 30.7.2004.
3 Assignment of business
There shall be assigned to the Common Law Division proceedings in the Court:(a) under the following provisions of the Crimes Act 1900:(i) section 172 (which relates to leave to prosecute a fraudulent trustee),(ii) section 474E (which relates to directing an inquiry),(b) under the Mental Health (Criminal Procedure) Act 1990,(c) under section 30 of the Criminal Procedure Act 1986 (which relates to change of venue).rule 75.3: Ins 23.2.1973. Am 21.12.1973. Subst 29.6.1984; 22.8.1986. Am 15.2.1991; 16.8.1991; 13.12.1991; 26.2.1993; 21.5.1993; 10.12.1993; 19.2.1999. Subst 25.2.2000. Am 29.8.2003.
(1) Proceedings in the Court under the Children (Criminal Proceedings) Act 1987 (the subject Act), are assigned to the Common Law Division.(2) Where a case is remitted to the Court under section 44 of the subject Act, Part 74 rule 1 (which relates to proceedings after remittal to the Court) applies as if for a reference to the plaintiff in Part 74 rule 1 (1) (c) there were a reference to the prosecutor.(3) An application to the Court under section 45 (1) of the subject Act shall be made by motion in the proceedings in respect of the offence.rule 75.3A: Ins 6.9.1974. Subst 19.2.1988. Am 19.2.1999.
3B Registrar
The registrar may exercise the powers of the Court under Part 37 rule 2 (1) and rule 6 (1), (2) and (3).rule 75.3B: Ins 29.6.1984. Am 23.9.1988. Subst 19.5.1989.
3C Evidence taken outside the State
Rule 1 shall not apply to proceedings under:(a) Part 2 of the Foreign Evidence Act, or(to which proceedings Part 27 relates).(b) the Evidence on Commission Act 1995,rule 75.3C: Ins 12.9.1986. Am 28.4.1995; 21.7.1995.
3D Form of indictment
(1) An indictment may be in Form 74AE.cf Act No 40, 1900, s 567.(2) No indictment shall be held bad or insufficient for failure to comply with the form prescribed by subrule (1).cf Act No 40, 1900, s 360.(3) The rules, other than this rule and Form 74AE, shall not apply to an indictment in any other Court.rule 75.3D: Ins 31.12.1987.
3E Bail application
An application to the Court:(a) for bail pursuant to section 22 of the Bail Act 1978, where the accused person is not then appearing before the Court, orshall be in the prescribed form.(b) pursuant to Part 6 of the Bail Act 1978, if made by or on behalf of an accused person,rule 75.3E: Ins 25.6.1993. Am 19.11.1993.
3F Acceptable person information
A person who wishes to have a determination made that he or she is an acceptable person, for the purposes of a condition referred to in section 36 (2) (b), (d), (f), or (h) of the Bail Act 1978, must file an information form, verified by statutory declaration, in Form 74AH.rule 75.3F: Ins 19.11.1993.
3FA Objection to confirmation of forfeiture order
An objection under section 53C of the Bail Act 1978 to confirmation of a forfeiture order must be in the prescribed form.rules 75.3FA, 75.3FB: Ins 24.11.2000.
3FB Application to set aside forfeiture order
An application under section 53K of the Bail Act 1978 to set aside a forfeiture order must be in the prescribed form.rules 75.3FA, 75.3FB: Ins 24.11.2000.
3G (Repealed)
rule 75.3G: Ins 19.11.1993. Rep 23.11.2001.
3H Election under s132 of Criminal Procedure Act 1986
rule 75.3H, hdg: Ins 22.9.1995. Subst 29.8.2003.(1) An election under section 132 (1) or (5) of the Criminal Procedure Act 1986 shall:(a) be in the prescribed form,(b) in the case of an election under section 16 (1)—be endorsed with the consent of the Director for Public Prosecutions given under section 16 (3), and(c) be filed before the date fixed for the trial.(2) Consent of the Director of Public Prosecutions may be endorsed under subrule (1) (b) by that Director or an officer authorised in writing by that Director to give such consents.rule 75.3H: Ins 22.9.1995. Am 25.2.2000; 29.8.2003.
3I Return of exhibits
Where proceedings specified in the Third Schedule to the Act or assigned by Part 27 rule 1B (2) or by Part 75 have been concluded and:(a) 28 days have expired since the conclusion, andthe registrar may, unless the Court otherwise orders, return any exhibits in the proceedings still in the custody of the registrar by forwarding them to the Director of Public Prosecutions.(b) there is no undisposed of appeal, or application for leave to appeal, in respect of the proceedings,rule 75.3I: Ins 21.2.1997. Am 19.2.1999.
3J Expert witnesses
(1) This rule and rule 3K apply to all criminal proceedings in the Court (including those specified in the Third Schedule to the Act).(2) For the purposes of this rule and rule 3K: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.(3) Unless the Court otherwise orders:(a) at or as soon as practicable after the engagement of an expert as a witness, whether to give oral evidence or to provide a report for use as evidence, the person engaging the expert must provide the expert with a copy of the code, and(b) unless an expert witness’s report contains an acknowledgment by the expert witness that he or she has read the code and agrees to be bound by it:(i) service of the report by the party who engaged the expert witness is not valid service for the purposes of the rules or of any order or practice note, and(ii) the report is not to be admitted into evidence, and(c) oral evidence is not to be received from an expert witness unless:(i) he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it, and(ii) a copy of the acknowledgment has been served on all parties affected by the evidence.(4) 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.(5) This rule does not apply to an expert engaged before this rule commences.rules 75.3J, 75.3K: Ins 30.8.2002.
3K Conference between experts
(1) The Court may do any or all of the following, with the consent of the parties:(a) direct expert witnesses to confer (whether before or during a trial or other proceedings),(b) specify the matters on which they are to confer,(c) direct that they provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement,(d) 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,(e) give any additional directions as may be considered necessary.(2) An expert who is the subject of an order made under subrule (1) may apply to the Court for further directions.(3) The content of the conference between the expert witnesses is not to be referred to at the hearing or trial unless the parties affected agree.(4) 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.(5) 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.rules 75.3J, 75.3K: Ins 30.8.2002.
Division 2 Summary jurisdiction
pt 75, div 2: Ins 21.12.1973.
4 Application
This Division applies to proceedings in the Court under the Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (in this Division called the subject Act).rule 75.4: Ins 21.12.1973. Am 23.12.1977 (see erratum 23.6.1978); 19.10.1979; 29.8.2003.
5 Interpretation
For the purposes of applying rules other than this Part to proceedings to which this Division applies, unless the context or subject matter otherwise indicates or requires, plaintiff means “prosecutor”.rule 75.5: Ins 21.12.1973. Am 19.10.1979. Subst 29.6.1984. Am 22.8.1997.
5A Assignment of business
Proceedings to which this Division applies are assigned to the Common Law Division.rule 75.5A: Ins 29.6.1984. Am 19.2.1999.
6 Rules applicable
In addition to the rules mentioned in rule 2, the following rules apply, so far as applicable to proceedings to which this Division applies:(a) Part 5 rules 1, 3 (2) and (3) and 5A and Form 74A of Schedule F,(b) Part 7 rule 6,(c) Part 20,(d) Part 36 rule 16, except as if the words “Subject to rule 13, where” read “Where”,(e) Part 40, except, in relation to the penalty referred to in section 15 (1) of the subject Act, Part 40 rule 6, and except Part 40 rule 8,(f) Part 41.rule 75.6: Ins 21.12.1973. Am 23.12.1977 (see erratum 23.6.1978); 19.10.1979. Subst 29.6.1984. Am 30.3.1990; 27.8.1999; 13.6.2003.
7 Commencement of proceedings
Proceedings for an offence under any Act which may be taken before the Court in its summary jurisdiction shall be commenced in the Court by summons claiming an order under section 246 of the subject Act in respect of the offence and claiming that the defendant be dealt with according to law for commission of the offence.rule 75.7: Ins 21.12.1973. Am 29.8.2003.
8 Copies of order
When the prosecutor files the summons, he shall lodge with the registrar two or more copies of a minute of the order which he claims.rule 75.8: Ins 21.12.1973. Am 19.10.1979; 29.6.1984.
9 Service
(1) The summons and any affidavit in support of an application under section 246 of the subject Act shall not, unless the Court so directs, be served before the making of the order but shall be served on the defendant when the minute of order is served on him.(2) Subject to any Act, a minute of any order made under section 246 (1) or section 250 (b) of the subject Act and any affidavits used to obtain either of those orders shall be served personally upon the defendant.rule 75.9: Ins 21.12.1973. Am 29.8.2003.
10 Evidence of service
Evidence of service of any document in any proceedings to which this Division applies may be given by affidavit.rule 75.10: Ins 21.12.1973.
10A Privilege
(1) Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection.(2) Where a question is put to a person in the course of examination, and any person makes and substantiates sufficient lawful objection on grounds of privilege to the question being answered, the Court shall not compel an answer to the question.(3) Subrule (1) applies where an order is made for production to, and subrule (2) applies where a question is put to a person in the course of examination before, the Court or a Judge or any officer of the Court, or any examiner, referee, arbitrator or other person authorised to receive evidence, whether on a trial or hearing or on any other occasion.(3A) Where a party to any proceedings claims privilege from production of any document, the Court may, if it thinks fit:(a) permit evidence in relation to the claim to be given by any other party by affidavit or otherwise, and(b) permit cross-examination on any affidavit used in support of the claim.(4) This rule does not affect any rule of law which authorises or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest.(5) Subrules (1), (2) and (3) do not apply to an objection to produce any document or thing or to answer any question on the ground mentioned in subrule (4).rule 75.10A: Ins 27.8.1999.
11 Pre-trial procedures
(1) The procedures prescribed by this rule shall be complete before the trial of a case commences.(2) This rule does not apply where the person charged with an offence pleads guilty to the offence or where the Judge dismisses the charge under section 249 (1) or 251 of the subject Act.(3) In this rule, trial includes the hearing and determination of the case and the adjudication on the case under section 250 (a) of the subject Act.(4) The Judge may, of his own motion or on the application of a party:(a) make orders and give directions for the just and efficient disposal of the proceedings,(b) without limiting the generality of paragraph (a), make such orders and give such directions as may be appropriate relating to:(i) the giving by the plaintiff to the defendant of particulars or further and better particulars,(ii) the giving by the plaintiff to the defendant of a list of persons who it is expected will be called to give evidence at the trial or, if the Judge thinks fit, who have made statements in writing but who it is expected will not be so called,(iii) the giving by the plaintiff to the defendant of a copy of any statement made in writing by any person whose evidence it is expected will be given at the trial or, if that person has not made a statement in writing or if the Judge thinks fit, of a summary of the evidence which it is expected he will give at the trial,(iv) the giving by the plaintiff to the defendant of a list of documents or things which it is expected will be tendered in evidence at the trial,(v) the giving by the plaintiff to the defendant of copies of documents,(vi) inspection by the defendant of documents or of property,(vii) evidence, including evidence under section 69 of the Evidence Act,(viii) any admission or consent of the defendant under section 184 of the Evidence Act 1995, and(ix) any alibi.(5) The procedures prescribed by this rule are completed when the Judge certifies that in his opinion the pre-trial procedures prescribed by this rule have been completed.rule 75.11: Ins 21.12.1973. Subst 19.10.1979. Am 25.8.1995; 27.8.1999; 25.2.2000; 29.8.2003.
11A Procedure where defendant does not appear
cf Act No 27 of 1902, s 75A.
If a defendant charged with two or more offences, whether of a like or different nature, does not appear at the time and place appointed for the hearing of the charges by the orders relating thereto, the Judge, upon proof in the manner prescribed of the due service of the orders upon him a reasonable time before the time appointed for his appearance, may proceed to hear and determine all or any of the charges together and adjudicate thereon in the absence of the defendant.rule 75.11A: Ins 29.6.1984.
11B Defendant to plead
cf Act No 27 of 1902, s 78.
(1) Where the defendant appears at the hearing and has been provided with a written copy of the charges against him, the substance of the order under section 246 (1) of the subject Act shall be stated to him, and he shall be asked if he has any cause to show why he should not be convicted or why an order should not be made against him.(2) If he thereupon admits the truth of the charges and shows no sufficient cause why he should not be convicted or why an order should not be made against him, the Judge shall convict him or make an order against him accordingly.(3) If he does not admit the truth of the charges, the Judge shall proceed to hear the prosecutor and the witnesses whom he examines and such other evidence as he adduces in support of the charges and to hear the defendant and the witnesses whom he examines and such other evidence as he adduces in his defence.rule 75.11B: Ins 29.6.1984. Am 29.8.2003.
12 (Repealed)
rule 75.12: Ins 21.12.1973. Rep 29.8.2003.
13 Termination of proceedings in a court of petty sessions
(1) A Local Court is notified under section 255 of the subject Act of the commencement of proceedings under the subject Act for an offence when a minute of the order made under section 246 of the subject Act is delivered to a Magistrate or an authorised officer within the meaning of the Criminal Procedure Act 1986 at the Local Court before which the proceedings for that offence are pending.(2) A notice stating that the proceedings in the Local Court for the offence charged in the order have been terminated shall be served on the defendant with the minute of order under section 246 of the subject Act.rule 75.13: Ins 21.12.1973. Subst 19.10.1979. Am 29.8.2003.rules 75.14–75.19: Ins 21.12.1973. Rep 19.10.1979.
Part 76 Protective business
pt 76: Ins 23.6.1972. Subst 29.6.1984.
Division 1 Preliminary
pt 76, div 1: Ins 23.6.1972. Subst 29.6.1984.
1 Interpretation
In this Part, unless the context or subject-matter otherwise indicates or requires:(a) Commissioner means the Protective Commissioner,(b) Court Visitor means any person who is the subject of a direction under section 79 of the subject Act,(c) Guardianship Act means the Guardianship Act 1987,(d) subject Act means the Protected Estates Act 1983,(e) subject person means a person in respect of whom an application is made for the purposes of section 13 of the subject Act.rule 76.1: Ins 23.6.1972. Am 28.6.1974; 24.11.1978; 22.12.1978. Subst 29.6.1984. Am 24.4.1998.
2 Assignment of business
There shall be assigned to the Equity Division:(a) proceedings in the Court in its jurisdiction in lunacy,(b) proceedings in the Court under the subject Act,(c) proceedings in the Court:(i) under Part 16, Division 2 of the Conveyancing Act 1919 (which Division relates to powers of attorney),(ii) under section 281 of the Mental Health Act 1990 (which section relates to appeals from the Tribunal),(iii) under section 285 of that Act (which section relates to discharge etc of a patient),(iv) under section 174 of that Act (which section relates to psychosurgery patients),(v) for any order which the Court might make in proceedings for a writ of habeas corpus ad subjiciendum in respect of a forensic patient, within the meaning given to that expression by section 3 of that Act, or a patient, within either of the meanings given to that word by that section,(vi) under the Guardianship Act.rule 76.2: Ins 23.6.1972. Subst 29.6.1984. Am 23.8.1985; 20.4.1990; 10.12.1993; 24.4.1998; 19.2.1999.
3 Heading and title of documents
Notwithstanding Part 65 rule 1 (2) and (3) (which relate to the heading and title), the word “Protective” and (on the next line) the words “In the matter of” together with the name of the subject person, protected person or patient shall appear on any document in any proceedings referred to in rule 2 above the serial number, in addition to the matter required under Part 65 rule 1.rule 76.3: Ins 23.6.1972. Subst 29.6.1984; 19.2.1999.
4 Commissioner’s powers
The Commissioner may not exercise any powers of the Court to order the committal, attachment or arrest of any person.rule 76.4: Ins 23.6.1972. Subst 28.6.1974. Am 24.11.1978. Subst 29.6.1984.rule 76.4A: Ins 28.6.1974. Rep 29.6.1984.
5 Commencement of proceedings
(1) Proceedings in the Court under the subject Act shall be commenced by summons.(2) Where proceedings have been commenced for a declaration and order under section 13 of the subject Act in respect of any person, any further application in respect of that person or his estate shall be made by motion in the proceedings.(3) Where it is necessary for the Commissioner to apply to the Court he may apply on report and proposal.(4) When giving directions pursuant to rule 17 (2) or (4), the Commissioner may direct that all or any particular applications may in the first instance be made by letter.(5) All applications as to the administration and management of the estates of protected persons shall, unless the Court otherwise orders, be made to the Commissioner and the Commissioner may make such orders in respect thereof and as to the costs of any such proceedings as he may deem fit.rules 76.5, 76.6: Ins 23.6.1972. Subst 29.6.1984.
6 Subpoena issued by Commissioner
(1) Part 37 rules 4, 5, 6 (4), (5), (7) and 7–10 apply, so far as they are capable of application, to a subpoena issued by the Protective Commissioner under section 9 of the subject Act as they apply to a subpoena issued by the Court and to production to a member of the staff referred to in section 5 (2) of the subject Act as they apply to production to a clerk of the Court.(2) The scale prescribed for the purposes of section 9 (4) of the subject Act shall be the scale relating to subpoenas issued by the Court.cf Act No 178 of 1983, s 53 (4).(3) Subrule (2) shall not affect subrule (1) in its application to Part 37 rule 9 (which relates to expense and loss).(4) The manner prescribed for the purposes of section 10 (2) of the subject Act shall be the manner in which costs and expenses of a person to whom a subpoena is addressed under section 9 of the subject Act are determined.(5) A subpoena under section 9 (1) of the subject Act shall be in Form 46, 46A, 47 or 48 as the case requires:(a) omitting “Court” where appearing and inserting instead “Protective Commissioner”, and(b) omitting “By the Court” and inserting instead, under the signature of the person signing, “Protective Commissioner” or “Deputy Protective Commissioner” as the case may require.rules 76.5, 76.6: Ins 23.6.1972. Subst 29.6.1984.
7 Minute of judgment or order
Notwithstanding Part 41 rule 13 (3), the registrar may, in proceedings referred to in rule 2, file or seal a minute of a judgment or order without a direction of the Court or request of a party.rule 76.7: Ins 23.6.1972. Subst 29.6.1984; 30.3.1990. Am 19.2.1999.
Division 2 Applications under section 13 and 68
pt 76, div 2: Ins 23.6.1972. Subst 29.6.1984.
8 Application of Division
This Division applies to an application made under section 13 and section 68 of the subject Act.rules 76.8–76.12: Ins 23.6.1972. Subst 29.6.1984.
9 Parties
The subject person shall be made a defendant.rules 76.8–76.12: Ins 23.6.1972. Subst 29.6.1984.
10 Business in the absence of the parties
Where:(a) the plaintiff claims a declaration and order under section 13 or an order under section 68 of the subject Act,(b) no appearance is entered within the time limited for appearance, andthe Court may determine or deal with the application in the absence of the public and without any attendance by or on behalf of any person.(c) at the time appointed by the summons for the hearing, there is no attendance by any person opposing the claim,rules 76.8–76.12: Ins 23.6.1972. Subst 29.6.1984.
11 Evidence
The evidence shall include:(a) an affidavit or affidavits setting out:(i) the conduct and conversation or conversations claimed to establish that the defendant is incapable of managing his or her affairs,(ii) the nature and amount of the property of the defendant,(iii) the kindred and nearest relatives, so far as the same are known, of the defendant and the attitude of each of them to the application,(iv) the name of and reason for selecting the proposed manager,(b) the affidavits of at least two medical practitioners or persons qualified to give an expert opinion upon the defendant’s condition, each of whom shall set out:(i) his formal qualifications, the extent of his experience in practice and his special qualifications in regard to questions relating to the defendant’s condition,(ii) his diagnosis of the defendant’s condition explained in his own words and set out in his own handwriting,(iii) that in his opinion the defendant is incapable of managing his affairs,(iv) the reasons for that opinion or the tests conducted upon which that opinion is based, set out in his own words and handwriting,(c) except where the proposed manager is the Commissioner, the Public Trustee or a trustee company, the affidavits in the prescribed form of at least two persons of the fitness of a proposed manager,(d) except where the proposed manager is the Commissioner, a consent in the prescribed form, executed by the proposed manager (except where he is also the plaintiff) and an affidavit in the prescribed form verifying the execution of the consent.rules 76.8–76.12: Ins 23.6.1972. Subst 29.6.1984.
12 Several managers
Where it appears that several persons ought to be appointed managers and that it is expedient that one or more of such persons should continue to act after the death or discharge of the others, or other of them, the order appointing the manager may direct that after such death or discharge the surviving or continuing manager or managers shall continue to act.rules 76.8–76.12: Ins 23.6.1972. Subst 29.6.1984.
13 “Usual orders”, s 13
Where, under section 13 of the subject Act, the Court makes a declaration that the defendant is incapable of managing his or her affairs and, with or without further order or orders, makes the usual orders, that expression shall mean orders:(a) that the estate of the defendant be subject to management under the subject Act,(b) that, subject to the giving of security to the satisfaction of the Commissioner, the person proposed in the summons be appointed to be manager of the estate of the defendant to act in relation thereto under the order and direction of the Court or, where the Protective Commissioner is proposed, that the management of the estate be committed to the Protective Commissioner,(c) (where two or more persons are appointed) that on the death or discharge of either (or one or more) of the managers that custody of the estate of the defendant shall continue to the surviving or continuing manager (or managers),(d) that the assessed costs of the plaintiff (and, where the defendant appears, of the defendant) of and incident to these proceedings be paid to the parties entitled thereto out of the estate of the defendant,(e) that all parties be at liberty to apply as they may be advised.rules 76.13, 76.14: Ins 23.6.1972. Subst 29.6.1984 (see erratum 6.9.1985). Am 24.6.1994.
14 “Usual orders”, s 68
Where under section 68 of the subject Act, the Court makes an order that the defendant, being a protected person is, owing to mental illness, incapable of managing his person or her person and, with or without further order, makes the usual orders, that expression shall mean orders:(a) that the person proposed in the summons be appointed guardian of the person of the defendant with, to the exclusion of any other person, all such powers as would be exercisable by him or her in relation to the protected person if he or she were the father or mother of the protected person and the protected person were under the age of 14 years,(b) (where two or more persons are appointed) that, on the death or discharge of either (or one or more) of the guardians, guardianship of the defendant shall continue to the surviving or continuing guardian (or guardians),(c) that the assessed costs of the plaintiff (and, where the defendant appears, of the defendant) of and incident to these proceedings be paid to the parties entitled thereto out of the estate of the defendant,(d) that all parties be at liberty to apply as they may be advised.rules 76.13, 76.14: Ins 23.6.1972. Subst 29.6.1984 (see erratum 6.9.1985). Am 24.6.1994.
Division 2A Directions and security
pt 76, div 2A, hdg: Ins 10.12.1993.
15 Operation of order
(1) The approval of the Commissioner under section 31 (1) of the subject Act may be given by his certificate that the manager has given the security approved by the Commissioner.(2) Security required under section 31 (1) of the subject Act shall be effected at or within such time as the Commissioner appoints, and until such security has been perfected and until the order by which a manager is appointed has been settled and directions given pursuant to rule 17, the manager shall not, unless otherwise ordered, interfere in any manner in the affairs of the protected person.rule 76.15: Ins 23.6.1972. Subst 29.6.1984. Am 10.12.1993.
16 Setting aside or varying order
The Court may set aside or vary any order for the appointment of a manager or for the allowance of maintenance.rule 76.16: Ins 23.6.1972. Subst 29.6.1984.
17 Directions
(1) The party having the carriage of proceedings on the application under section 13 of the subject Act or under section 25E of the Guardianship Act shall, not later than 14 days after the making of:(a) any declaration and order under section 13 of the subject Act, ormove the Court for a hearing for directions.(b) any order under section 25E of the Guardianship Act,(2) Upon the hearing the party having the carriage of the proceedings shall seek such directions as may be necessary regarding the fixing and giving of security, if any, and as may be required in connection with the administration of the estate of the protected person or his maintenance and for such purpose draft directions shall be brought in for settlement, the facts relied upon being set forth in an affidavit to be sworn by the manager and filed in the registry.(3) The affidavit referred to in subrule (2) shall set forth:(a) the facts relating to the matters mentioned in paragraphs (a), (b) and (d) of subrule (4),(b) where directions are sought with respect to the matters mentioned in paragraphs (c), (d) or (f) of subrule (4), the facts relating to those matters,(c) the facts relating to any special directions as to administration and management,(d) a summary of the scheme proposed for the administration and management of the estate of the protected person and for the maintenance of himself and his dependants.(4) The Commissioner may from time to time give such orders and directions and direct such inquiries as he may deem expedient and in particular may direct or make such inquiries as he thinks fit into all or any of the following matters:(a) the assets and liabilities of the protected person; the income or estimated income of his estate,(b) what debts (if any) are due from the protected person; to whom and whether the same or any of them ought to be paid and out of what property he may make orders for the settlement or payment thereof and for the compromise of any disputed claim against the protected person or his estate,(c) in what manner, at what expense, by whom and where he has been maintained; what should be allowed for his past maintenance; what, if anything, is due; to whom in respect thereof; to whom and out of what fund the same ought to be paid,(d) what should be allowed for his future maintenance; the date when the allowance ought to commence; out of what fund it should be paid; the amount thereof,(e) dealings with the protected person’s estate; the application of the same prior to the date of the declaration or order; respecting the state and condition of the protected person at the time of such dealings, whether any such inquiry is pending before him or not,and may make such orders or order in respect thereof as he thinks expedient.(f) as to who are the next of kin of a protected person,(5) Where the manager is required to give security, the Commissioner shall fix the amount and nature of such security.(6) The Commissioner may authorise the manager to give security in whole or in part by paying into Court sufficient funds and he may for that purpose by order give liberty for payment into Court of any funds and direct how the money is to be invested and the dividends applied.(7) Where the Commissioner directs that the manager shall give security by deed:(a) the party having the carriage of the matter shall lodge a draft deed in Form 41 (after omitting “Receiver” where appearing and inserting instead “Manager” and after omitting “Registrar in the Equity Division” and inserting instead “Protective Commissioner”) in the registry and take out an appointment before the Commissioner to settle it, and(b) the draft of the deed and the completed deed shall be lodged in the registry and an appointment taken out before the Deputy Protective Commissioner to have the deed duly executed.(8) The cost of furnishing the required security by the manager, including any premium which he may pay therefor, shall, unless the Commissioner otherwise orders, be allowed as costs of administration.rule 76.17, headnote: Ins 23.6.1972. Subst 29.6.1984; 24.4.1998.rule 76.17: Ins 23.6.1972. Subst 29.6.1984. Am 10.12.1993; 24.4.1998.
18 Variation or vacation of security
(1) The Commissioner may, from time to time as he thinks fit, either increase or reduce the amount of security which any manager has given, or require any such person to give further or other security; and the manager shall give additional or other security, or reduce the amount of the security as the case may be, within such time as the Commissioner directs.(2) The Court may make orders for the vacation of the security.rule 76.18: Ins 23.6.1972. Subst 29.6.1984.
Division 3 Applications under section 35
pt 76, div 3: Ins 23.6.1972. Subst 29.6.1984.
19 Mode of application
This Division applies to applications made under section 35 of the subject Act (which relates to orders when a person is no longer incapable).rule 76.19: Ins 23.6.1972. Subst 29.6.1984. Am 24.4.1998.
20 Evidence
The evidence shall include:(a) the affidavit of at least two medical practitioners, or persons qualified to give an expert opinion upon the defendant’s condition, each of whom shall state:(i) the extent of his experience in practice and his special qualifications in regard to questions relating to the condition of the protected person,(ii) his opinion that the protected person is capable of managing his affairs,(iii) the reasons for that opinion or the tests conducted upon which that opinion is based, set out in his own handwriting,(b) the affidavits of members of the family or other persons, each of whom shall state:(i) what opportunity he has had of assessing whether or not the protected person is capable of managing his affairs,(ii) his assessment and the facts, grounds and circumstances upon which he made his assessment,(iii) any other facts that may be relevant.rules 76.20–76.23: Ins 23.6.1972. Subst 29.6.1984.
21 Notice of motion
(1) The application shall be made by motion in the proceedings in which the declaration and order under section 13 of the subject Act were made.(2) Notice of the motion shall be served on the manager or on the person on whose application the declaration and order were made.rules 76.20–76.23: Ins 23.6.1972. Subst 29.6.1984.
22 Business in the absence of the public
Where, at the time fixed for the hearing of the motion, there is no attendance by any person opposing the claim, the Court may determine or deal with the application in the absence of the public and without any attendance by or on behalf of any person.rules 76.20–76.23: Ins 23.6.1972. Subst 29.6.1984.
23 Form or order
An order under section 35 may be made in the prescribed form.rules 76.20–76.23: Ins 23.6.1972. Subst 29.6.1984.
Division 4 Powers and duties of the Commissioner
pt 76, div 4: Ins 23.6.1972. Subst 29.6.1984.
24 Report under section 31
Where the Commissioner is required pursuant to section 31 (3) of the subject Act (which relates to security to be given by a manager), to report any breach or non-performance of any of the conditions mentioned in that section, he shall make the report to the Court in writing.rules 76.24–76.28: Ins 23.6.1972. Subst 29.6.1984.
25 Inquiry as to appointment of new manager
The Commissioner shall in each of the following cases inquire whether or not it is expedient that a manager or a new manager should be appointed, that is to say:(a) on default of a manager in duly perfecting his security or in duly perfecting a fresh security when required by the Commissioner,(b) on the death or discharge of a manager or one of several managers whether or not the custody or management survives,(c) if a manager becomes bankrupt or compounds with his creditors,(d) if a manager absconds or goes to reside permanently outside the State.rules 76.24–76.28: Ins 23.6.1972. Subst 29.6.1984.
26 Appointment of new managers
If it appears that a manager or a new manager ought to be appointed, the Commissioner may, if he thinks fit, appoint a fit and proper person to be such manager or new manager accordingly; and the Commissioner may make such other order or orders as he deems necessary in the circumstances.rules 76.24–76.28: Ins 23.6.1972. Subst 29.6.1984.
27 Removal of manager
(1) If a manager:(a) fails duly to account for what he has received or become liable to pay or account for, or which, but for his wilful neglect and default, he should have received and accounted for,(b) fails or refuses to carry out or obey the orders or directions of the Commissioner,(c) makes default in filing or vouching the passing of his account,(d) fails, in the opinion of the Commissioner, faithfully and sufficiently to perform the duties required of him as such manager, orthe Commissioner may by order discharge him from the office of manager and may, if he thinks fit, appoint a fit and proper person in his place.(e) otherwise, in the opinion of the Commissioner, is unable or unwilling to carry out his duties satisfactorily,(2) Where, in the opinion of the Commissioner, circumstances exist which place a manager in a position where his personal interest or his interest as the personal representative, attorney or agent of some third person is such that there arises a conflict between such interest and his duty as such manager, the Commissioner may by order discharge him from the office of manager and may, if he thinks fit, appoint a fit and proper person in his place.rules 76.24–76.28: Ins 23.6.1972. Subst 29.6.1984.
28 Reception of deeds and securities
The Commissioner may receive any deed or security belonging to a protected person and may by order give liberty for payment into Court of any funds belonging to such person.rules 76.24–76.28: Ins 23.6.1972. Subst 29.6.1984.
29 Deposit of will with the Commissioner
(1) Any person who has in his custody or control any testamentary paper of a protected person may deposit the same in the registry, there to remain for safe custody.(2) The Commissioner may direct that any person who has in his custody or control any testamentary paper of a protected person or patient shall deposit the same in the registry.rule 76.29: Ins 23.6.1972. Subst 29.6.1984. Am 31.8.2001.
30 Delivery out of funds, documents and effects
After an order revoking any declaration or order made under section 13 of the subject Act or section 25E of the Guardianship Act, the Commissioner may make an order for payment, transfer or delivery of any funds in Court belonging to the protected person or any documents or effects relating to or forming part of his estate deposited in the registry for safe custody to the person entitled thereto.rule 76.30: Ins 23.6.1972. Subst 29.6.1984. Am 10.12.1993; 24.4.1998.
31 Opening and delivery of will
The Commissioner may open and read any document deposited in the registry purporting or alleged to contain any testamentary disposition made by a protected person or patient for the purpose of ascertaining who is therein nominated executor thereof, and whether any direction is contained therein concerning the funeral or place of interment of such person and on being satisfied of the death of a protected person or patient shall then deliver the document to the executor or one of the executors therein named or some other proper person to be dealt with according to law.rule 76.31: Ins 23.6.1972. Subst 29.6.1984.
Division 5 Managers
pt 76, div 5: Ins 23.6.1972. Subst 29.6.1984.
32 Filing and passing accounts
(1) Unless the Court otherwise orders, the manager must file in the registry an account of the manager’s receipts and payments and a statement of the financial position of the estate being administered:(a) within 1 month after the expiration of 12 months from the date of the order appointing the manager and of every subsequent period of 12 months, and within 1 month after the manager’s discharge, or(b) at such other time or times, in respect of such other period or periods, as the Commissioner may direct in a particular case.(2) An account and statement under this rule must be in such form and be filed in such manner as the Commissioner determines from time to time and must be verified by affidavit in a form required by the Commissioner.(3) The manager must, at the request of the Commissioner, take out an appointment to vouch and pass the manager’s account before the Commissioner or another officer of the Court authorised by the Commissioner for the purpose.(4) For the purpose of vouching the account, the manager must furnish whatever may be required and the Commissioner or other authorised officer may at any time require the production of and inspect any books or accounts kept by the manager in relation to the estate being administered.(5) The manager must, unless excused, attend at the appointed time and place to vouch the manager’s account.(6) The passing of the account of a manager is to be signified by a certificate of an officer of the Court authorised by the Commissioner for the purpose. The certificate is to be endorsed at the end of the account.rule 76.32: Ins 23.6.1972. Subst 29.6.1984; 4.5.2001.
33 Evidence relating to surety
The manager shall, on each occasion of passing his account, and also whenever the Commissioner so requires, satisfy the Commissioner that his surety is still in existence and has not become bankrupt, compounded with his creditors or gone into liquidation, or become incapable of managing his affairs, and in default thereof the Commissioner shall require him to enter into fresh security within such time as he fixes.rule 76.33: Ins 23.6.1972. Subst 29.6.1984.
34 Accounting where order under section 35
(1) If on the taking of the account of a manager following upon the making of an order revoking a declaration and order made under section 13 of the subject Act or section 25E of the Guardianship Act, a balance is certified to be due from the manager, the manager shall pay the same to the person declared to be capable of managing his affairs.(2) If, on the taking of the account, a balance is certified to be due to the manager, it shall be paid to the manager by the person declared to be capable of managing his affairs.rule 76.34, headnote: Ins 23.6.1972. Subst 29.6.1984. Am 10.12.1993; 24.4.1998.rule 76.34: Ins 23.6.1972. Subst 29.6.1984. Am 10.12.1993; 24.4.1998.
35 Accounting on discharge of manager
(1) Except as provided in rule 34, if, upon the taking of the account of a manager following upon his discharge, a balance is certified to be due from the manager, he shall pay the balance into Court within such time as the Commissioner directs.(2) If, on the taking of the account, a balance is certified to be due to the manager, it shall be paid to him by the new manager out of the protected person’s estate.rules 76.35–76.39: Ins 23.6.1972. Subst 29.6.1984.
36 Death of manager
(1) Upon the death of a manager the Commissioner shall take his account from the date of his appointment or from the foot of his last account.(2) If a balance is certified to be due from the estate of the manager, his legal personal representative shall pay the balance into Court within such time as the Commissioner directs.(3) If, on the taking of the account, a balance is certified to be due to the manager, it shall be paid to his legal personal representative by the new manager.rules 76.35–76.39: Ins 23.6.1972. Subst 29.6.1984.
37 Death of protected person
(1) Upon the death of a protected person, the manager shall, within one month, file and pass the account as in rule 32 provided.(2) If, on the taking of the account, a balance is certified to be due from the manager, he shall pay the balance to the legal personal representative of the protected person.(3) If a balance is certified to be due to the manager, it shall be paid to him by the legal personal representative of the protected person.rules 76.35–76.39: Ins 23.6.1972. Subst 29.6.1984.
38 Discharge of security
Upon payment of the balance, if any, referred to in rule 34, rule 35, rule 36 or rule 37 or, if no balance is found due or the taking of the account is not required and may, in the opinion of the Commissioner, be properly dispensed with, the security of the manager shall be discharged.rules 76.35–76.39: Ins 23.6.1972. Subst 29.6.1984.
39 Transfers etc following discharge
Where, under these rules or any special order, the security of a manager or a receiver is to be discharged, then, in the case of a bond, the Commissioner shall deliver up the bond to be cancelled, and, in the case of security having been given in whole or part by a sum of money or stock being brought into Court, the Commissioner shall make an order for the payment or transfer, in such manner as the manager or receiver requests and as the Commissioner thinks proper, of the sum of money or stock and the dividends thereon, and shall make such payment or transfer accordingly.rules 76.35–76.39: Ins 23.6.1972. Subst 29.6.1984.
40 Default in accounting
If a manager makes default in bringing in his account or in having the same passed or in paying the balance certified to be due from him or in causing the same or any sum of cash under his control to be laid out, paid, or received pursuant to any certificate or direction in that behalf, the Commissioner may, unless cause be shown to the contrary, disallow his salary or remuneration, if any, and may also charge him with interest at a rate of not more than the rate per cent yearly mentioned in column 2 of Schedule J beside the last period mentioned in column 1 of that Schedule upon any balance or cash for the time during which the same appears to have been improperly retained in hand or uninvested.rule 76.40: Ins 23.6.1972. Subst 29.6.1984. Am 21.12.1984; 20.12.1985; 27.6.1986; 23.10.1987; 19.2.1988; 24.2.1989; 18.8.1989; 24.8.1990.
Division 6 Receivers
pt 76, div 6: Ins 23.6.1972. Subst 29.6.1984.
41 Provisions extended to receivers
The provisions of these rules respecting a manager, his accounts, payments, and allowances, the security to be given and matters of the like nature shall extend, as far as applicable and with the necessary modifications, to a receiver.rule 76.41: Ins 23.6.1972. Subst 29.6.1984.
Division 7 Court Visitor
pt 76, div 7: Ins 23.6.1972. Subst 29.6.1984.
42 Information to Court Visitor
The Commissioner shall furnish the Court Visitor with information as to:(a) the custody of the protected person,(b) the property and the scheme for the maintenance of the protected person to be visited by the Court Visitor,(c) any subsequent change of address or custody of the protected person, and(d) any substantial change which has taken place in the property or the scheme for maintenance.rule 76.42: Ins 23.6.1972. Subst 29.6.1984.
43 Frequency of visits
The Court Visitor shall visit the protected person whenever the Commissioner may direct and in the absence of any special order or direction shall visit the protected person at least once in every six months.rule 76.43: Ins 23.6.1972. Subst 29.6.1984 (see erratum 6.9.1985).
44 Inquiries by Court Visitor
The Court Visitor shall on each occasion of visiting the protected person inquire and examine whether he is maintained in a suitable and proper manner having regard to the existing scheme for his maintenance and also whether, having regard to his mental and bodily health and to his property, it appears expedient that any and what addition should be made to his comforts, or any and what alterations made in the scheme for or manner of his maintenance and report in writing accordingly to the Commissioner.rule 76.44: Ins 23.6.1972. Subst 29.6.1984.
45 Special report by Court Visitor
If the Court Visitor, on such inquiry and examination, considers:(a) that the protected person is not maintained in a suitable manner,(b) that the allowance provided for his maintenance is not duly applied,(c) that any provision in the scheme for his maintenance, either for his personal comfort or enjoyment or otherwise is not duly observed, orhe shall forthwith make a report in writing stating his opinion and the grounds thereof to the Commissioner.(d) that any addition to the comforts of or any alteration in the manner of the maintenance of the protected person should be made which his property is capable of providing,rule 76.45: Ins 23.6.1972. Am 6.9.1974; 8.10.1982; 9.12.1983. Subst 29.6.1984.
46 Investigation of matters in report
(1) The Commissioner shall, on any such report under rule 45 being made, investigate the matters reported upon and may, if he thinks fit, order the manager to attend before him to give explanations thereon, and make such orders as the circumstances require.(2) Any order under subrule (1) shall be communicated to the Court Visitor.rule 76.46: Ins 23.6.1972. Subst 29.6.1984.
47, 48 (Repealed)
rule 76.47: Ins 23.6.1972. Subst 29.6.1984. Am 6.3.1992. Rep 23.2.2001.
rule 76.48: Ins 23.6.1972. Subst 29.6.1984. Rep 23.2.2001.
49 Variation of fees
The Commissioner may direct that any fees directed to be paid to the Court Visitor out of the estate of the protected person shall be increased, reduced or no longer paid.rules 76.49, 76.50: Ins 23.6.1972. Subst 29.6.1984.
50 Collection and transmission of fees
(1) The Commissioner shall collect all fees and expenses directed to be paid to the Court Visitor and transmit them to him.(2) The Commissioner may report to the Court any failure to pay after due request and may commit to the Crown Solicitor the conduct of the matter of enforcing payment.rules 76.49, 76.50: Ins 23.6.1972. Subst 29.6.1984.
Division 8 Appeal, review and referral
pt 76, div 8, hdg: Ins 29.6.1984. Am 24.4.1998.
pt 76, div 8: Ins 29.6.1984.
51 Joinder as party
In respect of an appeal under section 21 of the subject Act against an order made by a magistrate, the magistrate shall, notwithstanding Part 51A rule 6 (3), be joined as a defendant.rule 76.51: Ins 23.6.1972. Subst 29.6.1984. Am 24.4.1998; 23.7.1999.
52 Review under section 6L of the Guardianship Act
(1) An application for review under section 6L of the Guardianship Act shall be made by summons joining as a defendant the enduring guardian.(2) The applicant shall file and serve with the summons an affidavit showing the applicant’s relationship to the appointor and the applicant’s interest in the matter.rule 76.52: Ins 23.6.1972. Am 1.8.1975. Rep 29.6.1984. Ins 24.4.1998.
53 Referral under section 25L of the Guardianship Act
(1) Following a referral under section 25L of the Guardianship Act, the proceedings shall be listed before a Judge for directions.(2) Concurrence shall be given or refused on the first directions hearing, unless the Court otherwise orders.rule 76.53: Ins 23.6.1972. Rep 29.6.1984. Ins 24.4.1998.rules 76.54, 76.55: Ins 23.6.1972. Rep 29.6.1984.rule 76.56: Ins 23.6.1972. Subst 22.12.1978. Rep 29.6.1984.
Part 77 Procedure under various Acts
pt 77: Ins 30.6.1972.
pt 77: Ins 25.9.1987.
pt 77.div 8A (Rules 77.36, 77.36A): Ins 25.9.1987.
pt 77: Ins 22.9.1995.
pt 77.div 26BA (Rules 77.87KA, 77.87KB): Ins 22.9.1995.
pt 77: Ins 19.11.1999.
pt 77.div 30A (Rules 77.95A, 77.95B): Ins 19.11.1999.
pt 77, 77.div 35: Ins 6.3.1992.
pt 77: Ins 6.3.1992.
pt 77.div 77.36 (Rules 77.101, 77.102): Ins 6.3.1992.
pt 77: Ins 21.8.1998.
pt 77.div 50 (Rules 77.131, 77.132): Ins 21.8.1998.
Division 1
1–5 (Repealed)
pt 77, div 1: Ins 30.6.1972. Rep 30.5.1980.
rules 77.1–77.5: Ins 30.6.1972. Rep 30.5.1980.
Division 2 Transport Act 1930
6 Transport Act 1930, section 154 (6)
Application to the Court under section 154 (6) of the Transport Act 1930 (which relates to insurance of motor omnibuses against damage to property) shall be made in the Common Law Division by summons, joining as defendants:(a) each claimant who has obtained judgment against the owner,(b) the Crown Solicitor,(c) any person of whose claim the insurer is aware, and(d) any person who may reasonably be expected to claim.rule 77.6: Ins 30.6.1972.
Division 3 Property, Stock and Business Agents Act 1941
pt 77, div 3, hdg: Am 26.2.1993.
pt 77, div 3: Am 26.2.1993 (“Auctioneers Act” omitted wherever occurring, “subject Act” inserted instead).
7 Assignment of business
Proceedings in the Court under the Property, Stock and Business Agents Act 1941 (the subject Act), are assigned to the Common Law Division.rule 77.7: Ins 30.6.1972. Subst 26.2.1993.
8 Section 64J (7) (b) application
An application to the Court under section 64J (7) (b) of the subject Act (which relates to claims against the Compensation Fund) shall be made by summons joining the Crown as defendant.rule 77.8: Ins 30.6.1972. Am 7.12.1973; 22.4.1983; 20.7.1990; 23.2.1996. Subst 22.8.1997.
9 (Repealed)
rule 77.9: Ins 30.6.1972. Am 20.7.1990; 23.2.1996. Rep 22.8.1997.
10 Section 83B applications
An application to the Court under section 83B of the subject Act (which relates to the appointment of a receiver) shall be made by summons.rules 77.10, 77.11: Ins 30.6.1972.
11 Section 83J applications
(1) An application to the Court under section 83J of the subject Act (which relates to an application for directions) shall be made by motion in the proceedings in which the receiver was appointed.(2) Any person, except the receiver, moving pursuant to this rule shall serve notice of the motion on the receiver.rules 77.10, 77.11: Ins 30.6.1972.
Divisions 4, 5
12–21 (Repealed)
pt 77, div 4 (Rules 77.12–77.16): Ins 30.6.1972. Rep 26.9.1986.
pt 77, div 5: Ins 27.10.1972. Subst 29.3.1974. Rep 19.7.1996.
rule 77.17: Ins 27.10.1972. Subst 29.3.1974. Am 29.4.1977. Rep 19.7.1996.
rules 77.18, 77.19: Ins 27.10.1972. Subst 29.3.1974. Am 1.7.1977. Rep 19.7.1996.
rules 77.20, 77.21: Ins 27.10.1972. Subst 29.3.1974. Rep 19.7.1996.
pt 77, div 6: Ins 4.5.1973.
22 Application
This Division applies to proceedings under the Testator’s Family Maintenance and Guardianship of Infants Act 1916 (the subject Act).rules 77.22, 77.23: Ins 4.5.1973.
23 Assignment of business
Proceedings to which this Division applies are assigned to the Equity Division.rules 77.22, 77.23: Ins 4.5.1973.
24 Commencement of proceedings
(1) Proceedings to which this Division applies may be commenced by summons under Part 5 rule 3 (which relates to a summons stating an appointment for hearing).cf Testator’s Family Maintenance Act Rules, r 1.(2) The summons shall bear, above the title, the words “Estate of”, the full name of the deceased person and the words “deceased and the Testator’s Family Maintenance, etc Act 1916”.rule 77.24: Ins 4.5.1973. Am 18.12.1987; 13.6.2003.
25 Parties
cf TFM Act Rules, r 3.
(1) This rule applies to proceedings for an order under section 3 or section 5 (2A) of the subject Act.(2) In proceedings to which this rule applies, subject to subrule (3), the summons shall join as a defendant every executor or administrator.(3) The summons shall not join as a defendant:(a) any person, where any plaintiff is the sole executor or administrator,(b) an executor or administrator who is a plaintiff, or(c) any person, where there is sufficient reason for not doing so.rules 77.25, 77.26: Ins 4.5.1973.
26 Extension of time for application
A claim for an order under section 5 (2A) of the subject Act may be included in the summons claiming an order under section 3 of that Act.rules 77.25, 77.26: Ins 4.5.1973.
27 Affidavit of executor
cf TFM Act Rules, r 5.
(1) In proceedings for an order under section 3 of the subject Act, the executor or administrator, as the case may be, shall make an affidavit setting out:(a) the nature and value of the assets and liabilities at the date of death,(b) what is or is likely to be the nature and net amount of the distributable estate,(c) such information as is available to the deponent as to the family of the deceased, and(d) the person beneficially entitled.(2) The affidavit mentioned in subrule (1) shall be served within a reasonable time after service of the originating process.rule 77.27: Ins 4.5.1973. Am 14.2.1986.
27A Additional provision
An application for an order under section 6A of the subject Act (which section relates to the making of additional provision) may be made by motion in the proceedings for an order under section 3 of the subject Act.rule 77.27A: Ins 8.7.1983.
28 Directions as to parties and service
cf RSC (Rev) 1965, O 99, r 2 (1).
(1) Notwithstanding rule 25, the Court may, at any stage of the proceedings to which this Division applies, direct that any person be added as a party or substituted for another party or a former party or that notice of the proceedings be served on any person in addition to or instead of the defendant.(2) Subrule (1) does not affect the powers of the Court under Part 8 (which relates to joining parties).rules 77.28–77.31: Ins 4.5.1973.
29 Representative orders
cf RSC (Rev) 1965, O 99, r 2 (2).
Part 8 rule 14 (which relates to representative orders) applies to proceedings under the subject Act as it applies to proceedings mentioned in subrule (1) of that rule.rules 77.28–77.31: Ins 4.5.1973.
30 Certified copies of order
(1) The Court may, but need not, make any direction or requirement under section 6 (3) of the subject Act.(2) Unless the Court otherwise orders, in every case in which provision is made under the subject Act, a certified copy of the minute of the order making the provision shall be made upon the probate, the letters of administration, or a copy of an election under section 18A of the Public Trustee Act 1913, whichever is appropriate.(3) Unless the Court otherwise orders, an executor or administrator shall, within the time prescribed by subrule (4), lodge in the registry:(a) the probate, the letters of administration or the copy of the election, as the case may require, bearing a copy of the minute of order, and(b) a copy of the minute of order.(4) The time prescribed for the purpose of subrule (3) shall be:(a) in any case where an executor or administrator is a defendant—14 days after the date of service of an office copy of the minute of order upon him, and(b) in any other case—28 days after the order is entered.(5) The registrar shall:(a) certify upon each copy that it is a true copy of the minute of order, and(b) send the copy mentioned in subrule (3) (b) to the Registrar in Probate.rules 77.28–77.31: Ins 4.5.1973.
31 Notice of intended distribution
cf Practice Notes, 60 WN (NSW) 123.
A notice under section 11 of the subject Act may be in or to the effect of Form 121 of Schedule F.rules 77.28–77.31: Ins 4.5.1973.
Division 7 Conveyancing Act 1919
pt 77, div 7: Ins 21.12.1973.
32 “Prescribed officer”: s 66G (5) (b), Conveyancing Act 1919
The officer of the Court prescribed pursuant to section 66G (5) (b) of the Conveyancing Act 1919 (which paragraph relates to service of notice where a co-owner is under mental disability) is the Registrar in Equity.rule 77.32: Ins 21.12.1973. Am 19.2.1999.
33 “Prescribed officer”: s 98 (1F), Conveyancing Act 1919
The officer of the Court prescribed pursuant to section 98 (1F) of the Conveyancing Act 1919 (which subsection relates to certificate relating to repayments under mortgages) is the Registrar in Equity.rule 77.33: Ins 21.12.1973.
Division 8 Strata Titles Act 1973
pt 77, div 8: Ins 22.2.1974.
34 Assignment of business
Proceedings under the Strata Titles Act 1973 (the subject Act) are assigned to the Equity Division.rule 77.34: Ins 22.2.1974.
35 Readjustment etc and authorising acts
(1) Proceedings under section 32 (1), section 50 (1), section 51 (1) or section 67 (1) of the subject Act shall be commenced by summons, joining as defendants the persons referred to in section 32 (2), section 50 (2) or section 51 (2) respectively.(2) Notice under section 32 (2), section 50 (2), section 51 (2) or section 67 (2) of the subject Act shall be served by serving the summons.(3) An application under section 50 (10), section 51 (2) or section 67 (2) of the subject Act for variation of an order shall be made by motion in the proceedings for the order.rule 77.35: Ins 22.2.1974. Am 25.9.1987.
Division 8A Strata Titles (Leasehold) Act 1986
36 Assignment of business
Proceedings under the Strata Titles (Leasehold) Act 1986 (the subject Act) are assigned to the Equity Division.rule 77.36: Ins 22.2.1974. Rep 1.8.1975.
36A Readjustment etc and authorising acts
(1) Proceedings under section 37 (4), section 61 (1), section 79 (1), section 80 (1) or section 97 (1) of the subject Act shall be commenced by summons joining as defendants the persons referred to in section 37 (5), section 61 (2), section 79 (2), section 80 (3) or section 97 (2) respectively.(2) Notice under section 37 (5) or (8), section 61 (2), section 79 (2), section 80 (3) or section 97 (2) of the subject Act shall be served by serving the summons by which the application is made.(3) An application under section 37 (13), section 79 (10) or section 80 (13) of the subject Act for variation of an order shall be made by motion in the proceedings for the order.
Division 9 Workers’ Compensation Act 1926
pt 77, div 9: Ins 24.5.1974.
37 Proof of payments
A defendant pleading a defence under section 63 (5) of the Workers’ Compensation Act 1926:(a) need not, in his pleading or in any document filed with his pleading, state the amount of the payments made under the Act,(b) may, by affidavit filed and served in accordance with Part 38 rules 6 and 7 but in any event not later than three days before the date for which the proceedings are set down for trial, adduce evidence of those payments.rule 77.37: Ins 24.5.1974. Am 14.2.1986; 26.9.1986; 23.12.1988.
Division 9A Workers Compensation Act 1987
pt 77, div 9A: Ins 23.10.1987.
37A Proof of payments
A defendant pleading a defence under section 151Z (1) (e) of the Workers Compensation Act 1987 or under section 150 (1) (e) of that Act, as in force immediately prior to its omission by the Workers Compensation (Benefits) Amendment Act 1989:(a) need not, in his pleading or in any document filed with his pleading, state the amount of the payment made under the Act,(b) may, by affidavit filed and served in accordance with Part 38 rules 6 and 7, but in any event not later than three days before the date for which the proceedings are set down for trial, adduce evidence of those payments.rule 77.37A: Ins 23.10.1987. Am 23.2.1996.
37B Assignment of business
Proceedings in the Court under the Workers Compensation Act 1987, shall be assigned to the Common Law Division.rule 77.37B: Ins 23.10.1987.
Division 10 Status of Children Act 1996
pt 77, div 10: Ins 22.8.1975. Subst 21.7.2000.
38 Form of declaration
A declaration under section 21 (2) of the Status of Children Act 1996 (the subject Act) (which subsection relates to a declaration of parentage) shall be in the prescribed form.rule 77.38: Ins 22.8.1975. Subst 1.7.1977. Am 24.12.1981. Subst 21.7.2000.
39 Parentage testing procedure: service of notice of motion on non-party
Where a party moves under section 26 of the subject Act for an order requiring a parentage testing procedure to be carried out on a person who is not a party to the proceedings, notice of the motion shall, unless the Court otherwise orders, be served personally on that person.rules 77.39–77.44: Ins 24.12.1981. Subst 21.7.2000.
40 Service of notice of motion on disable person
Where the notice of motion for an order requiring a parentage testing procedure to be carried out on a person is to be served personally on a disable person and the person served under Part 63 rule 15 does not appear to have the care and control of the disable person, then, unless the Court otherwise orders, the notice shall also be served personally on the person who appears to have that care and control and on such other person as the Court may direct.rules 77.39–77.44: Ins 24.12.1981. Subst 21.7.2000.
41 Service of order on non-party
Where the Court makes an order under section 26 (1) of the subject Act, the registrar shall serve the minute of order on any person on whom a parentage testing procedure is required to be carried out and who is not a party to the proceedings.rules 77.39–77.44: Ins 24.12.1981. Subst 21.7.2000.
42 Disable person
Where the Court makes an order under section 26 (1) of the subject Act, requiring a parentage testing procedure to be carried out on a disable person, the order shall name the person having the care and control of the disable person.rules 77.39–77.44: Ins 24.12.1981. Subst 21.7.2000.
43 Service of order on disable person
Where any minute of order under section 26 (1) of the subject Act is to be served on a disable person and the person served under Part 63 rule 15 is not the person having the care and control of the disable person, then, unless the Court otherwise orders, the minute shall also be served personally on the person having that care and control and on such other person as the Court may direct.rules 77.39–77.44: Ins 24.12.1981. Subst 21.7.2000.
44 Service of report
On receipt of a report under regulation 8 of the Status of Children Regulation 1996, the registrar shall serve the report on the parties to the proceedings and on any person from whom the taking of bodily samples was directed and who is not a party to the proceedings.rules 77.39–77.44: Ins 24.12.1981. Subst 21.7.2000.
Division 11
45 (Repealed)
pt 77, div 11: Ins 25.3.1977. Rep 22.9.1995.
rule 77.45 (previously Rule 77.39): Ins 25.3.1977. Renumbered 24.12.1981. Rep 22.9.1995.
Division 12 Felons (Civil Proceedings) Act 1981
pt 77, div 12: Ins 24.7.1981.
46 Assignment of business
An application for leave under section 4 of the Felons (Civil Proceedings) Act 1981 is assigned to the Division to which the proceedings in respect of which leave is sought are assigned.rule 77.46 (previously Rule 77.40): Ins 24.7.1981. Renumbered 24.12.1981.
47 (Repealed)
rule 77.47 (previously Rule 77.41): Ins 24.7.1981. Renumbered 24.12.1981. Rep 12.9.1986.
Division 12A Prisoners (Interstate Transfer) Act 1982
pt 77, div 12A: Ins 8.7.1983 (see erratum 22.7.1983).
47A Assignment of business
Proceedings in the Court under section 16 of the Prisoners (Interstate Transfer) Act 1982 are assigned to the Common Law Division.rule 77.47A: Ins 8.7.1983 (see erratum 22.7.1983).
47B (Repealed)
rule 77.47B: Ins 8.7.1983 (see erratum 22.7.1983). Rep 12.9.1986.
pt 77, divs 13–15: Ins 30.6.1982.
48 Failure to attend hearing before the Commission
Proceedings under section 10 (8) of the National Companies and Securities Commission (State Provisions) Act 1981 (the subject Act) shall be commenced by summons claiming an inquiry and orders under that subsection.rules 77.48–77.52: Ins 3.6.1982.
49 Assignment of business
Proceedings in the Court under section 10 (8) of the subject Act are assigned to the Equity Division.rules 77.48–77.52: Ins 3.6.1982.
50 Evidence
(1) Subject to subrule (2), the evidence in support of the claims shall be given by affidavit.(2) The Court may, on terms, permit evidence in support of the claim to be given otherwise than by affidavit.rules 77.48–77.52: Ins 3.6.1982.
51 Service
The summons, the certificate given under section 10 (7) of the subject Act and the affidavits shall be served personally on the person in respect of whom the certificate is given.rules 77.48–77.52: Ins 3.6.1982.
pt 77, divs 13–15: Ins 30.6.1982.
52 Failure to attend hearing before the Commission
Rules 48, 49, 50 and 51 apply, making such changes as it is necessary to make, to proceedings under section 39 (8) of the National Companies and Securities Commission Act 1979 of the Commonwealth as they apply to proceedings under section 10 (8) of the National Companies and Securities Commission (State Provisions) Act 1981.rules 77.48–77.52: Ins 3.6.1982.
Division 15 Securities Industry (New South Wales) Code
pt 77, divs 13–15: Ins 30.6.1982.
53 Failure to comply with requirements of inspector
Rules 48, 49, 50 and 51 apply, making such changes as it is necessary to make, to proceedings under section 19 (14) of the Securities Industry (New South Wales) Code as they apply to proceedings under section 10 (8) of the National Companies and Securities Commission (State Provisions) Act 1981.rule 77.53: Ins 30.6.1982 (see erratum 19.8.1983).
Division 16 Family Provision Act 1982
pt 77, div 16: Ins 8.7.1983.
54 Assignment of business
(1) Proceedings in the Court on an application under the Family Provision Act 1982 (the subject Act) are assigned to the Equity Division.(2) (Repealed)rule 77.54: Ins 8.7.1983. Am 19.2.1999.
55 Commencement of proceedings
Proceedings in the Court on an application for relief under the subject Act shall, subject to this Division, be commenced by summons.rules 77.55–77.58: Ins 8.7.1983.
56 Additions to title
A summons in proceedings for relief under the subject Act shall bear, above the title, the words “Estate of”, the full name of the deceased person and the words “deceased and the Family Provision Act 1982”.rules 77.55–77.58: Ins 8.7.1983.
57 Search in index
Any person may, upon payment of the fee (if any) fixed under the Act, search in the index kept in the registry against the name of the deceased person in relation to whom any application for an order under the subject Act has been made.rules 77.55–77.58: Ins 8.7.1983.
58 Extension of time for application for provision
A claim for an order under section 16 (2) or (5) of the subject Act may be included in a claim for an order under section 7 of the subject Act.rules 77.55–77.58: Ins 8.7.1983.
59 Affidavit of administrator
(1) In proceedings for an order under section 7 of the subject Act, the administrator shall make an affidavit setting out:(a) the nature and value of the assets and liabilities at the date of death,(b) what is or is likely to be the nature and value of:(i) any distributed estate,(ii) the net distributable estate,(c) what is the nature and value of any property which, in his opinion, is or may be the subject of any prescribed transaction,(d) the names and addresses of every person who, in his opinion, is or may be:(i) an eligible person (designating as a disable person any eligible person who, in his opinion, is or may be a disable person),(ii) a person beneficially entitled to the distributable estate,(iii) a disponee, within the meaning of section 21 of the subject Act,(iv) a person holding property as a result of a distribution from the estate,(e) the persons to whom notice was given under rule 63 (2).(2) The affidavit mentioned in subrule (1) shall be served within a reasonable time after service of the originating process.rule 77.59: Ins 8.7.1983. Am 25.5.1984; 14.2.1986.
60 Parties
(1) In proceedings on an application by summons for an order under section 7 or section 16 (2) or (5) of the subject Act, the summons shall, subject to subrule (2), join as a defendant every administrator.(2) The summons shall not join as a defendant:(a) any person, where any plaintiff is the sole administrator,(b) any person, where there is sufficient reason for not doing so.rules 77.60–77.62: Ins 8.7.1983.
61 Directions as to parties and service
(1) Notwithstanding rule 60, the Court may, at any stage of the proceedings to which this Division applies, direct that any person be added as a party or substituted for another party or a former party or that notice of the proceedings be served on any person in addition to or instead of the defendant.(2) Subrule (1) does not affect the powers of the Court under Part 8 (which relates to joining parties).rules 77.60–77.62: Ins 8.7.1983.
62 Representative orders
Part 8 rule 14 (which relates to representative orders) applies to proceedings under the subject Act as it applies to proceedings mentioned in subrule (1) of that rule.rules 77.60–77.62: Ins 8.7.1983.
63 Notice to eligible persons
(1) The plaintiff claiming an order under section 7 of the subject Act, shall, unless he is the administrator, when serving the summons, also serve a notice on the administrator showing who, in his opinion, is or may be an eligible person (designating as a disable person any eligible person who, in his opinion, is or may be a disable person).(2) The administrator shall serve a notice in Form 89B on:(i) the surviving spouse (if any) of the deceased person,(ii) every child of the deceased person,(iii) every person not mentioned in subparagraphs (i) or (ii) who is entitled to share in the distributable estate of the deceased person,(iv) any person mentioned by the plaintiff in his notice served under subrule (1) and not mentioned in subparagraphs (i), (ii) or (iii),(v) any other person who, in his opinion, is or may be an eligible person.(3) Where a person to be served under subrule (2) is a disable person, the notice shall be served in accordance with Part 63 rule 15.rule 77.63: Ins 8.7.1983. Am 25.5.1984.
64 Additional provision
An application for an order under section 8 of the subject Act (which section relates to the making of additional provision) shall be made by motion in the proceedings for the order under section 7 of the subject Act.rules 77.64–77.68: Ins 8.7.1983.
65 Certified copies of orders
(1) Where an order is made under section 7 (not being an interim order), 8, 19 (2) or (3) or 30 of the subject Act, an administrator shall, unless the Court otherwise orders, within the time prescribed by subrule (2), lodge in the registry:(a) the probate, letters of administration or copy of election, as the case may require, bearing a copy of the minute of order, and(b) a copy of the minute of order.(2) The time prescribed for the purpose of subrule (1) shall be:(a) where an administrator is a defendant—14 days after the date of service of an office copy of the minute of order upon him, and(b) in any other case—28 days after the order is entered.(3) The Registrar shall, unless the Court otherwise orders:(a) certify upon each copy that it is a true copy of the minute of order, and(b) send the copy mentioned in subrule (1) (b) to the Registrar in Probate.rules 77.64–77.68: Ins 8.7.1983.
66 Revocation etc of order for provision
An application for an order under section 19 (2) of the subject Act shall be made by motion in the proceedings for the order under section 7 of the subject Act.rules 77.64–77.68: Ins 8.7.1983.
67 Discharge of property from liability
An application for an order under section 30 (1) or (2) of the subject Act shall be made by motion in the proceedings in which the order for provision has been, or is proposed to be, made.rules 77.64–77.68: Ins 8.7.1983.
68 Revocation of release
An application for an order under section 31 (8) or (9) of the subject Act shall be made by motion in the proceedings for the order under section 31 (6) of the subject Act.rules 77.64–77.68: Ins 8.7.1983.
69 Notice of intended distribution
(1) A notice under section 35 of the subject Act shall be published:(a) if the deceased person was resident at the date of the deceased person’s death in the State—in a newspaper circulating in the district where the deceased person resided, orand shall be served on all persons of whose intention to bring an application under the subject Act the administrator has notice.(b) otherwise—in a Sydney daily newspaper,(2) The notice may be in or to the effect of Form 121.rule 77.69: Ins 8.7.1983. Subst 19.3.1999.
Division 17 Builders Licensing Act 1971
pt 77, div 17 (Rule 77.70): Ins 7.12.1984.
70 Failure to attend before Board etc
Rules 48, 49, 50 and 51 apply, making such changes as it is necessary to make, to proceedings under section 29 (4) of the Builders Licensing Act 1971 as they apply to proceedings under section 10 (8) of the National Companies and Securities Commission (State Provisions) Act 1981.pt 77, div 17 (Rule 77.70): Ins 7.12.1984.
Division 18 Listening Devices Act 1984
pt 77, div 18: Ins 21.12.1984.
71 Application
This Division applies to proceedings under the Listening Devices Act 1984 (the subject Act).rules 77.71, 77.72: Ins 21.12.1984.
72 Assignment of business
Business under the subject Act shall be assigned to the Common Law Division.rules 77.71, 77.72: Ins 21.12.1984.
73 (Repealed)
rule 77.73: Ins 21.12.1984. Rep 24.7.1998.
Division 19 Property (Relationships) Act 1984
pt 77, div 19, hdg: Ins 5.7.1985. Am 20.8.1999.
pt 77, div 19: Ins 5.7.1985.
74 Assignment of business
Proceedings under the Property (Relationships) Act 1984 (the subject Act) shall be commenced in the Equity Division.rule 77.74: Ins 5.7.1985. Am 20.4.1990; 20.8.1999.
75 Death of party to application (s 24)
(1) The Court may, on application by the legal personal representative mentioned in section 24 (1) of the subject Act or of its own motion, order the substitution of that representative as a party to the application under section 20 of the subject Act and may make orders for the further conduct of the proceedings.(2) Part 8 rule 11 (1) (a), (b), (c), (2) and 3 apply to a case where a party is substituted pursuant to an order under subrule (1) as they apply where a party is substituted pursuant to an order under Part 8 rules 10 and 11 (1) (d).rule 77.75: Ins 5.7.1985.
76 Additions to title
Documents in proceedings under the subject Act shall bear above the title the words “Property (Relationships) Act 1984”.rule 77.76: Ins 5.7.1985. Am 20.4.1990; 20.8.1999.
76A Pleading and particulars
(1) Proceedings in the Court under the subject Act shall be commenced by statement of claim.(2) The material facts required by Part 15 rule 7 in the statement of claim shall include the facts alleged to constitute any contribution within the meaning of section 20 (1) of the subject Act on which the plaintiff relies.(3) The particulars required by Part 16 rule 1 in relation to a statement of claim shall include particulars of:(a) any payment relied on in respect of any contribution,(b) any voucher relied on in respect of any payment.rule 77.76A: Ins 20.4.1990.
Division 20 Trustee Companies Act 1964
pt 77, div 20: Ins 23.8.1985.
77 Assignment of business
(1) Proceedings in the Court under the Trustee Companies Act 1964 are assigned to the Equity Division.(2) (Repealed)rule 77.77: Ins 23.8.1985. Am 19.2.1999.
pt 77, div 21 (Rule 77.78): Ins 23.8.1985. Am 24.7.1992.
78 Manner of application: s 21
An application to the Court under section 21 (2) or (8) of the National Crime Authority (State Provisions) Act 1984 shall be lodged with the Registry of the Court for the purposes of section 21 (13) (c) of that Act by filing the summons by which proceedings on the application are commenced in the Court setting out the grounds required to be set out in it by section 21 (13) (b) of that Act.pt 77, div 21 (Rule 77.78): Ins 23.8.1985. Am 24.7.1992.
Division 22 National Crime Authority Act 1984 (Commonwealth)
pt 77, div 22 (Rule 77.79): Ins 23.8.1985 (see erratum 6.9.1985).
79 Manner of application: ss 32 and 32A
An application to the Court under section 32 (2) or (8) of the National Crime Authority Act 1984 of the Commonwealth shall be lodged with the Registry of the Court for the purposes of section 32 (12) (c) of that Act by filing summons by which proceedings on the application are commenced in the Court setting out the grounds required to be set out in it by section 32 (12) (b) of that Act.pt 77, div 22 (Rule 77.79): Ins 23.8.1985 (see erratum 6.9.1985).
Division 23 Associations Incorporation Act 1984
pt 77, div 23: Ins 20.9.1985.
80 Assignment of business
Proceedings under section 40, section 54, section 55B or section 58 of the Associations Incorporation Act 1984 (the subject Act) shall be commenced in the Equity Division.rule 77.80: Ins 20.9.1985. Am 2.10.1992.
81 Winding up
(cf Part 80 rule 57, Part 80A rule 38 and Supreme Court (Corporations) Rules 1999 rule 10.3)
rule 77.81, hdg: Am 25.2.1994. Subst 24.12.1999.(1) The rules relating to the winding up of bodies other than companies (including, where applicable, the Supreme Court (Corporations) Rules 1999) apply, so far as applicable, to, and in relation to, the winding up by the Court of an incorporated association.(2) Part 80 rule 3 and Part 80A rule 3 (3) (which relate to additions to the title) and the instructions concerning the title of the corporation contained in Form 1 of the Supreme Court (Corporations) Rules 1999 shall not apply to proceedings under the subject Act.(3) Documents in proceedings for relief under section 50, section 51, section 53 or section 58 of the subject Act shall bear above the title, a reference to the name of the incorporated association to which the proceedings relate together with “the Corporations Act 2001 and the Associations Incorporation Act 1984”.rule 77.81: Ins 20.9.1985. Am 2.10.1992; 25.2.1994. Subst 24.12.1999. Am 19.12.2003.
82 Appeal from liquidator etc (s 58)
Without limiting the generality of rule 80, a person mentioned in section 58 of the subject Act, may, on application in writing made to him before the expiration of the time limited by Part 51A rule 3 (1) (other than the time extended by the Court) for instituting an appeal from his act, omission or decision, grant, by notice in writing, an extension of that time and where he does so, he shall deliver the notice to the applicant who shall file the notice with the summons instituting the appeal.rule 77.82: Ins 20.9.1985.
Division 24 Co-operation Act 1923
pt 77, div 24, hdg: Am 25.2.1994.
83 Winding up and dissolution
(1) The provisions of Part 80 relating to the winding up or dissolution of a company formed and registered under the Companies Code or the Corporations Law shall, so far as applicable and making such changes as it is necessary to make, apply to the winding up or dissolution of a society to which section 92 (6) (a) of the Co-operation Act 1923 applies and which is commenced before 1 April 1994, and(2) The provisions of Part 80A relating to the winding up or dissolution of a company formed and registered under the Companies Code or the Corporations Law shall, so far as applicable and making such changes as it is necessary to make, apply to the winding up or dissolution of a society to which section 92 (6) (a) of the Co-operation Act 1923 applies and which is commenced after 31 March 1994 and before the Supreme Court (Corporations) Rules 1999 commence.(3) The provisions of the Supreme Court (Corporations) Rules 1999 relating to the winding up or dissolution of a company registered under the Corporations Law shall, so far as applicable and making such changes as it is necessary to make, apply to the winding up or dissolution of a society to which section 92 (6) (a) of the Co-operation Act 1923 applies and which is commenced after the Supreme Court (Corporations) Rules 1999 commence.rule 77.83: Ins 20.9.1985. Subst 25.2.1994. Am 24.12.1999; 19.12.2003.
Division 24A Co-operatives Act 1992
pt 77, div 24A: Ins 25.6.1993.
83A Assignment of business proceedings
Proceedings in the Court on an application for relief under the Co-operatives Act 1992 (the subject Act) are assigned to the Equity Division.rule 77.83A: Ins 25.6.1993.
83B Applicability of Parts 80A and 80 and the Supreme Court (Corporations) Rules 1999
rule 77.83B, hdg: Ins 25.6.1993. Subst 25.2.1994; 24.12.1999. Am 19.12.2003.(1) The provisions of the Supreme Court (Corporations) Rules 1999 relating to applications under the Corporations Law shall, so far as applicable and making such changes as it is necessary to make, apply to:(a) proceedings under the subject Act commenced in the Court after those rules commence, and(b) applications made under the subject Act in those proceedings.(2) The provisions of Part 80A relating to applications under the Corporations Law shall, so far as applicable and making such changes as it is necessary to make, apply to:(a) proceedings under the subject Act commenced in the Court after 31 March 1994 and before the Supreme Court (Corporations) Rules 1999 commence, and(b) applications made under the subject Act after 31 March 1994 in proceedings in the Court commenced before the Supreme Court (Corporations) Rules 1999 commence.(3) The provisions of Part 80 relating to applications under the Companies Code and under the Corporations Law shall, so far as applicable and making such changes as it is necessary to make, apply to all other proceedings commenced and applications made under the subject Act.rule 77.83B: Ins 25.6.1993. Subst 25.2.1994; 24.12.1999. Am 19.12.2003.
pt 77, div 24B: Ins 20.10.2000.
83C Assignment of business proceedings
Proceedings in the Court on an application for relief under the Co-operative Housing and Starr-Bowkett Societies Act 1998 (the subject Act) are assigned to the Equity Division.rule 77.83C: Ins 20.10.2000.
83D Applicability of the Supreme Court (Corporations) Rules 1999
The provisions of the Supreme Court (Corporations) Rules 1999 relating to applications under the Corporations Act 2001 of the Commonwealth shall, so far as applicable and making such changes as it is necessary to make, apply to applications under the subject Act.rule 77.83D, hdg: Ins 20.10.2000. Am 19.12.2003.rule 77.83D: Ins 20.10.2000. Am 19.12.2003.
Division 25 New South Wales Crime Commission Act 1985
pt 77, div 25, hdg: Ins 20.12.1985. Am 28.4.1995.
pt 77, div 25: Ins 20.12.1985.
84 Review of decision
(1) The appropriate officer for the purposes of section 19 (15) of the New South Wales Crime Commission Act 1985 is the Prothonotary.(2) The appropriate Registry for the purposes of section 19 (15) of the New South Wales Crime Commission Act 1985 is the Registry of the Common Law Division.(3) Proceedings under the New South Wales Crime Commission Act 1985 are assigned to the Common Law Division.rule 77.84: Ins 20.12.1985. Am 28.4.1995; 22.8.1997; 19.2.1999.
Division 25A Criminal Assets Recovery Act 1990
pt 77, div 25A, hdg: Ins 20.7.1990. Am 19.3.1999.
pt 77, div 25A: Ins 20.7.1990.
84A Assignment of business
Proceedings in the Court under the Criminal Assets Recovery Act 1990 (the subject Act) are assigned to the Common Law Division.rule 77.84A: Ins 20.7.1990. Am 21.5.1993; 19.3.1999.
84AA Statement in summons or notice of motion
The applicant for an order under the subject Act shall file with his summons or notice of motion a statement in summary form of the general nature of the facts and circumstances relied on.rule 77.84AA: Ins 21.5.1993.
84B Examination order: prescribed officer (s 12)
An officer prescribed for the purposes of section 12 (1) (b) and (b1) of the subject Act is a master or registrar.rule 77.84B: Ins 20.7.1990. Am 22.8.1997.
84C Information for production order
An information setting out the grounds mentioned in section 33 (1), 44 or 48 (1) may be laid before the Court by filing an affidavit setting out those grounds.rule 77.84C: Ins 20.7.1990. Am 1997 No 68, Sch 2.
Division 26 Confiscation of Proceeds of Crime Act 1989
pt 77, div 26: Ins 23.5.1986. Subst 15.12.1989 (see rescission 14.12.1990); 14.12.1990.
85 Assignment of business
Proceedings in the Court under the Confiscation of Proceeds of Crime Act 1989 (the subject Act) are assigned to the Common Law Division.rule 77.85: Ins 23.5.1986. Subst 15.12.1989 (see rescission 14.12.1990); 14.12.1990. Am 21.5.1993.
86 Statement in summons or notice of motion
(1) The applicant for an order under the subject Act shall file with his summons or notice of motion a statement in summary form of the general nature of the facts and circumstances relied on.(2) This rule shall not apply to an application under section 77 or section 82 of the subject Act.rules 77.86, 77.87: Ins 23.5.1986. Subst 15.12.1989 (see rescission 14.12.1990); 14.12.1990. Am 27.3.1992.
87 Notice of discharge of order (s 26)
Notice of discharge of an order mentioned in section 26 (2) of the subject Act shall be given by the appropriate officer on whose application the order was registered by filing, in the court in which the order was registered, a notice stating that the order was discharged and annexing a sealed copy of the order quashing or discharging on appeal.rules 77.86, 77.87: Ins 23.5.1986. Subst 15.12.1989 (see rescission 14.12.1990); 14.12.1990. Am 27.3.1992.
87A Form of acceptance etc of allegation (s 31)
An allegation may be accepted or a matter may be indicated for the purposes of section 31 (5) (b) in Form 89D or Form 89E whichever is appropriate.rules 77.87A–77.87C: Ins 14.12.1990.
87B Form (s 44 (2))
The form prescribed for the purposes of section 44 (2) of the subject Act is Form 89F.rules 77.87A–77.87C: Ins 14.12.1990.
87C Examination order: prescribed officer (s 45)
An officer prescribed for the purposes of section 45 (1) (c) of the subject Act is a master or a registrar.rules 77.87A–77.87C: Ins 14.12.1990.
87D Notice (s 56 (2))
Notice of an application for the purpose of section 56 (2) shall be given by serving the notice of motion by which the application was made personally upon each other person who is entitled, by virtue of section 45 (3) (a)–(c), to make an application under section 45 in relation to the restraining order.rule 77.87D: Ins 14.12.1990. Am 15.3.1991.
87E Information for production order or search warrant (s 58 (1) and 66 (1))
An information setting out the grounds mentioned in sections 58 (1) or 66 (1) may be laid before the Court by filing an affidavit setting out those grounds.rule 77.87E: Ins 14.12.1990.
87F Registration of interstate orders (s 77)
(1) A register of orders to which section 77 of the subject Act applies (interstate orders) shall be kept in the registry.(2) A copy mentioned in section 77 (2) of the subject Act is registered when it is included in the register.(2A) Proceedings for registration of an interstate order shall be commenced by summons joining as defendant the person against whom the order was made.(2B) The plaintiff may, unless the Court otherwise orders, proceed without service of the summons on the defendant.(2C) Where the plaintiff adds to the summons a request that the application be granted under this subrule, the Court may make the order in the absence of the public and without any attendance by or on behalf of the plaintiff.(2D) Where an order is made for registration of an interstate order, the plaintiff shall forthwith serve a minute of the order and the interstate order on the defendant.(3) The registration of an order mentioned in section 82 (1) of the subject Act is cancelled when the registrar notes its cancellation on the copy order included in the register.rule 77.87F: Ins 14.12.1990. Am 27.3.1992.
87G Certifying facsimile copy (s 85 (1))
A facsimile copy of a sealed copy is certified for the purposes of section 85 (1) of the subject Act if it includes a facsimile copy certificate in Form 89G.rule 77.87G: Ins 14.12.1990.
Division 26A Proceeds of Crime Act 1987 (Commonwealth)
pt 77, div 26A: Ins 14.12.1990.
pt 77, div 26A (Rule 77.94A): Ins 15.12.1989 (see rescission 14.12.1990).
87H Assignment of business
Proceedings in the Court under the Proceeds of Crime Act 1987 (the subject Act) are assigned to the Common Law Division.rule 77.87H: Ins 14.12.1990. Am 21.5.1993.
87I Statement in summons or notice of motion
The applicant for an order under the subject Act shall file with his summons or notice of motion a statement in summary form of the facts and circumstances relied on.rule 77.87I: Ins 14.12.1990.
87J Information for production order or search warrant (s 66 (1) and 71 (1))
An information setting out the grounds mentioned in sections 66 (1) or 71 (1) may be laid before the Court by filing an affidavit setting out those grounds.rule 77.87J: Ins 14.12.1990. Am 15.3.1991.
Division 26BA International War Crimes Tribunals Act 1995
87KA Assignment of business
Proceedings in the Court under the International War Crimes Tribunals Act 1995 of the Commonwealth (the subject Act) are assigned to the Common Law Division.
87KB Registration (s 45)
(1) A register of orders to which section 45 of the subject Act applies shall be kept in the registry.(2) A copy mentioned in section 45 (2) of the subject Act is registered when it is included in the register.(3) Proceedings for registration of an order to which section 45 (1) of the subject Act applies shall be commenced by summons joining as defendant the person against whom the order was made.(4) The plaintiff may, unless the Court otherwise orders, proceed without service of the summons on the defendant.(5) Where the plaintiff adds to the summons a request that the application be granted under this subrule, the Court may make the order in the absence of the public and without any attendance by or on behalf of the plaintiff.(6) The plaintiff shall file with the summons an affidavit setting out such particulars as are necessary to enable the Court to comply with section 45 (1) of the subject Act.(7) Where an order is made under section 45 (1) for registration of an order, the plaintiff shall serve a minute of the order for registration and the registered order on the defendant.
Division 26B Mutual Assistance in Criminal Matters Act 1987 (Commonwealth)
pt 77, div 26B: Ins 20.9.1991.
87K Assignment of business
Proceedings in the Court under the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth (the subject Act) are assigned to the Common Law Division.rule 77.87K: Ins 20.9.1991. Am 21.5.1993.
87L Registration (s 34)
(1) A register of orders to which section 34 of the subject Act applies shall be kept in the registry.(2) A copy mentioned in section 34 (9) of the subject Act is registered when it is included in the register.(2A) Proceedings for registration of an order to which section 34 (1) of the subject Act applies shall be commenced by summons joining as defendant the person against whom the order was made.(2B) The plaintiff may, unless the Court otherwise orders, proceed without service of the summons on the defendant.(2C) Where the plaintiff adds to the summons a request that the application be granted under this subrule, the Court may make the order in the absence of the public and without any attendance by or on behalf of the plaintiff.(2D) The plaintiff shall file with the summons an affidavit setting out such particulars as are necessary to enable the Court to comply with section 23A (2) of the Proceeds of Crime Act 1987 of the Commonwealth.(2E) Where an order is made under section 34 (4) for registration of an order, the plaintiff shall serve a minute of the order for registration and the registered order on the defendant.(3) The registration of an order mentioned in section 34 (13) of the subject Act is cancelled when the Registrar notes its cancellation on the copy order included in the register.rule 77.87L: Ins 20.9.1991. Am 27.3.1992.
Division 26C Crimes (Superannuation Benefits) Act 1989 (Commonwealth)
pt 77, div 26C: Ins 26.2.1993.
87M Assignment of business
Proceedings in the Court under the Crimes (Superannuation Benefits) Act 1989 of the Commonwealth (the subject Act) are assigned to the Common Law Division.rule 77.87M: Ins 26.2.1993. Am 21.5.1993.
87N Statement in summons or notice of motion
The applicant for an order under the subject Act shall file with his summons or notice of motion a statement in summary form of the facts and circumstances relied on.rule 77.87N: Ins 26.2.1993.
Division 27 Coroners Act 1980
pt 77, div 27: Ins 23.5.1986.
88 Service of notice and order
(1) For the purposes of section 47 (2A) of the Coroners Act 1980 the notice of application shall be served by serving the summons by which proceedings on the application are commenced.(2) The plaintiff shall serve the minute of order required to be served under section 47 (2C) of the Coroners Act 1980.rule 77.88: Ins 23.5.1986; 15.12.1989 (see rescission 14.12.1990).
Division 28 Restricted Premises Act 1943
pt 77, div 28, hdg: Ins 13.3.1987. Am 28.5.2004.
pt 77, div 28: Ins 13.3.1987.
89 Commencement of proceedings
Proceedings in the Court under the Restricted Premises Act 1943, (the subject Act) shall be commenced by summons in the Common Law Division.rule 77.89: Ins 13.3.1987; 15.12.1989 (see rescission 14.12.1990). Am 28.5.2004.
90 Application for declaration: s 3 (1)
The Court may make a declaration under section 3 (1) of the subject Act notwithstanding that the summons has not been served on the owner or occupier of the premises.rule 77.90: Ins 13.3.1987; 15.12.1989 (see rescission 14.12.1990).
91 Forms
(1) A minute of order under section 3 (1) of the subject Act may be in Form 89H.(2) A minute of order under section 4 (1) or 14 (3) of the subject Act may be in Form 89I.(3) A notice under section 5 (1) of the subject Act may be in Form 89J or 89K, as appropriate.rule 77.91: Ins 13.3.1987; 15.12.1989 (see rescission 14.12.1990). Subst 23.2.1996; 28.5.2004.
Division 29 Community Welfare Act 1987
pt 77, div 29: Ins 20.5.1988.
92 Assignment of business
Proceedings in the Court on an appeal under section 66 of the Community Welfare Act 1987 are assigned:(a) where the appeal is from a decision under section 112 (1) (e) or (f) of the Children (Care and Protection) Act 1987—to the Equity Division,(b) where the appeal is from any other decision—to the Common Law Division.rule 77.92: Ins 20.5.1988; 15.12.1989 (see rescission 14.12.1990). Am 19.2.1999.
Division 30 Motor Accidents Act 1988
pt 77, div 30: Ins 14.7.1989.
93 Assignment of business
Proceedings in the Court under the Motor Accidents Act 1988 (the subject Act) are assigned to the Common Law Division.rule 77.93: Ins 14.7.1989; 15.12.1989 (see rescission 14.12.1990).
94 (Repealed)
rule 77.94: Ins 14.7.1989; 15.12.1989 (see rescission 14.12.1990). Rep 19.11.1999.
95 Joinder of insurer etc (s 66A)
(1) Notice of motion in any proceedings for an order under section 66A (1) of the subject Act shall be filed:(a) in any case where the Court by notice to the parties fixes a date for determining the date for trial—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 six weeks before the beginning of the sittings at that place, and(c) in any other case—before the date on which the Court determines the date for trial.(2) The applicant shall serve the notice on each other party to the proceedings and on such other person as the Court may direct.rule 77.95: Ins 14.7.1989.
Division 30A Motor Accidents Compensation Act 1999
95A Assignment of business
Proceedings in the Court under the Motor Accidents Compensation Act 1999 (the subject Act) are assigned to the Common Law Division.
95B Joinder of insurer etc (s 137)
(1) Notice of motion in any proceedings for an order under section 119 (1) of the subject Act must be filed:(a) in any case where the Court by notice to the parties fixes a date for determining the date for trial—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 6 weeks before the beginning of the sittings at that place, and(c) in any other case—before the date on which the Court determines the date for trial.(2) The applicant must serve the notice on each other party to the proceedings and on such other person as the Court may direct.
Division 31
96, 97 (Repealed)
pt 77, div 31: Ins 19.4.1991. Rep 30.6.2000.
rule 77.96: Ins 19.4.1991. Am 19.2.1999. Rep 30.6.2000.
rule 77.97: Ins 19.4.1991. Rep 30.6.2000.
pt 77, div 32 (Rule 77.98): Ins 21.6.1991.
98 Certificate
(1) Where a contempt of the Tribunal constituted by the Police Regulation (Allegations of Misconduct) Act 1978 (the subject Act) is punishable by the Court, the Tribunal may present to the Court a certificate setting out the details which the Tribunal considers constitute the contempt.(2) If the Tribunal presents such a certificate to the Court, the practice and procedure under section 18B of the Royal Commissions Act 1923 shall apply in the same way as it does when a Commissioner presents a certificate to the Court under that section.(3) Such a certificate is prima facie evidence of the matters certified.pt 77, div 32 (Rule 77.98): Ins 21.6.1991.
Division 33 Nurses Act 1991
pt 77, div 33: Ins 6.3.1992.
99 Assignment of business
Proceedings in the Court on an appeal under section 67 of the Nurses Act 1991, which are not assigned by section 48 of the Act to the Court of Appeal, are assigned to the Common Law Division.rule 77.99: Ins 6.3.1992. Am 19.2.1999.
Division 34 Chiropractors and Osteopaths Act 1991
pt 77, div 34: Ins 6.3.1992.
100 Assignment of business
Proceedings in the Court on an appeal under section 52 of the Chiropractors and Osteopaths Act 1991, which are not assigned by section 48 of the Act to the Court of Appeal, are assigned to the Common Law Division.rule 77.100: Ins 6.3.1992. Am 19.2.1999.
Division 35 Insurance Act 1902
101 Joinder of insurer etc (s 17A)
(1) Notice of motion in any proceedings for an order under section 17A (1) of the Insurance Act 1902 shall be filed:(a) in any case where the Court by notice to the parties fixes a date for determining the date for trial—before the date fixed by the notice,(b) in any case there the place of trial is a place other than Sydney—not later than six weeks before the beginning of the sitting at that place, and(c) in any other case—before the date on which the Court determines the date for trial.(2) The applicant shall serve the notice on each other party to the proceedings and on such other person as the Court may direct.
Division 36 Oaths Act 1900
102 Fees
A person authorised under section 27 (2) of the Oaths Act 1900 may charge the fees prescribed in item 5 of Schedule G1.
Division 37 Mining Act 1992 (s 319)
pt 77, div 37 (Rule 77.103): Ins 30.10.1992.
103 Entry of order of Warden’s Court
(1) Proceedings for entry in the Court under section 319 of the Mining Act 1992 of an order for the payment of money shall be commenced by summons in the Common Law Division, joining as defendant the person against whom the order was made.(2) The plaintiff may, unless the court otherwise orders, proceed without service of the summons on the defendant.(3) Where the plaintiff adds to the summons a request that the application be granted under this subrule, the Court may make the order for entry in the absence of the public and without any attendance by or on behalf of the plaintiff.(4) Where an order for entry is made in proceedings to which this rule applies, the plaintiff shall forthwith serve on the defendant a minute of:(a) the order for entry, and(b) the order which is the subject of the proceedings.(5) An order mentioned in section 319 of the Mining Act 1992 is entered when a copy of the order (being a copy sealed by the court that made the order) is filed in accordance with an order of the Court.pt 77, div 37 (Rule 77.103): Ins 30.10.1992.
Division 38
104 (Repealed)
pt 77, div 38: Ins 20.8.1993. Rep 25.6.1999.
rule 77.104: Ins 20.8.1993. Am 19.2.1999. Rep 25.6.1999.
Division 39 Community Protection Act 1994
pt 77, div 39 (Rules 77.105–77.107): Ins 24.2.1995.
105 Assignment of business
Proceedings in the Court under the Community Protection Act 1994 (the subject Act) are assigned to the Common Law Division.pt 77, div 39 (Rules 77.105–77.107): Ins 24.2.1995.
106 Application for order under s 6 (1), 7 (1) or 12
An application for an order under section 6 (1), section 7 (1) or section 12 of the subject Act may be included in the summons by which application is made for the relevant preventative detention order.pt 77, div 39 (Rules 77.105–77.107): Ins 24.2.1995.
107 Application to be by motion
Subject to rule 106, an application for an order under the subject Act, other than an application for a preventative detention order, shall be made by motion on notice in the proceedings for the relevant preventative detention order.pt 77, div 39 (Rules 77.105–77.107): Ins 24.2.1995.
Division 40 Witness Protection Act 1995
pt 77, div 40 (Rules 77.108–77.111): Ins 23.2.1996.
108 Assignment of business
Proceedings for an order under section 17, section 19 or section 34 (2) of the Witness Protection Act 1995 (the subject Act) are assigned to the Common Law Division.pt 77, div 40 (Rules 77.108–77.111): Ins 23.2.1996.
109 Section 17 applications
Proceedings for an order under section 17 of the subject Act shall be commenced by summons without joining any person as a defendant.pt 77, div 40 (Rules 77.108–77.111): Ins 23.2.1996.
110 Section 19 (2) applications
Proceedings for an order under section 19 (2) of the subject Act in respect of an entry shall be commenced by summons joining as a defendant the person to whom the entry relates.pt 77, div 40 (Rules 77.108–77.111): Ins 23.2.1996.
111 Section 34 (2) applications
Proceedings for an order under section 34 (2) of the subject Act shall be commenced by summons joining as a defendant the person against whom the order is sought.pt 77, div 40 (Rules 77.108–77.111): Ins 23.2.1996.
Division 41 Professional Standards Act 1994
pt 77, div 41 (Rule 77.112): Ins 24.5.1996.
112 Commencement of proceedings
(1) Proceedings for an order under section 15 of the Professional Standards Act 1994 in respect of a scheme shall be commenced in the Common Law Division by summons joining as a defendant the occupational association on whose application the scheme was approved by the Professional Standards Council.(2) The plaintiff shall, within 1 day of commencing proceedings, lodge a copy of the summons at the office of the Professional Standards Council.pt 77, div 41 (Rule 77.112): Ins 24.5.1996.
Division 42 Forfeiture Act 1995
pt 77, div 42 (Rule 77.113): Ins 19.7.1996.
113 Commencement of proceedings
Proceedings in the Court under the Forfeiture Act 1995 shall be commenced by summons in the Equity Division.pt 77, div 42 (Rule 77.113): Ins 19.7.1996.
Division 43 Electricity Supply Act 1995
pt 77, div 43: Ins 19.7.1996.
114 Assignment of business
Proceedings in the Court under section 95 of the Electricity Supply Act 1995 (the subject Act) are assigned to the Common Law Division.rule 77.114: Ins 19.7.1996. Am 19.2.1999.
115 Service of certificate
The Minister shall serve any certificate made pursuant to section 95 (3) of the subject Act upon the appellant.rule 77.115: Ins 19.7.1996.
Division 44 Gas Supply Act 1996
pt 77, div 44: Ins 19.7.1996.
116 Assignment of business
Proceedings in the Court under section 17 of the Gas Supply Act 1996 (the subject Act) are assigned to the Common Law Division.rule 77.116: Ins 19.7.1996. Am 19.2.1999.
117 Service of certificate
The Minister shall serve any certificate made pursuant to section 17 (3) of the subject Act upon the appellant.rule 77.117: Ins 19.7.1996.
Division 45 Taxation Administration Act 1996
pt 77, div 45: Ins 21.3.1997.
118 Assignment of business
Proceedings in the Court under Part 10 of the Taxation Administration Act 1996 (the subject Act) are assigned to the Equity Division.rule 77.118: Ins 21.3.1997. Am 19.2.1999; 30.6.2000.
119 Evidence of jurisdiction
A plaintiff shall file and serve, with a summons by which application for review is made under section 97 of the subject Act, an affidavit:(a) showing:(i) that the application is made under section 97 (1) (a) of the subject Act, or(ii) that:(A) the application is made under section 97 (1) (b) of the subject Act,(B) the application is not in breach of the time prescribed by section 97 (1) (b), and(C) section 100 (1) of the subject Act has been complied with, and(b) showing that the application is not in breach of section 97 (2) or section 97 (3) of the subject Act.rule 77.119: Ins 21.3.1997. Subst 24.11.2000.
pt 77, div 46: Ins 24.4.1998.
120 Assignment of business
Proceedings in the Court under the Australian Mutual Provident Society (Demutualisation and Reconstruction) Act 1997 (the subject Act) are assigned to the Equity Division.rule 77.120: Ins 24.4.1998.
121 Application of rules
(1) The provisions of Part 80A shall, so far as applicable and making such changes as it is necessary to make, apply to proceedings under the subject Act commenced before the Supreme Court (Corporations) Rules 1999 commence.(2) The provisions of Supreme Court (Corporations) Rules 1999 shall, so far as applicable and making such changes as it is necessary to make, apply to all other proceedings under the subject Act.rule 77.121: Ins 24.4.1998. Subst 24.12.1999. Am 19.12.2003.
Division 47 Friendly Societies (New South Wales) Code
pt 77, div 47: Ins 24.4.1998 (see erratum 1.5.1998).
122 Assignment of business
Proceedings under the Friendly Societies (New South Wales) Code (the Code) are assigned to the Equity Division.rule 77.122: Ins 24.4.1998 (see erratum 1.5.1998).
123 Applicability of Part 80A and the Supreme Court (Corporations) Rules 1999
rule 77.123, hdg: Ins 24.4.1998 (see erratum 1.5.1998). Subst 24.12.1999. Am 19.12.2003.(1) The provisions of Part 80A (which relate to proceedings under the Corporations Law) shall, so far as applicable and making such changes as it is necessary to make, apply to proceedings under the Code commenced before the Supreme Court (Corporations) Rules 1999 commence.(2) The provisions of Supreme Court (Corporations) Rules 1999 shall, so far as applicable and making such changes as it is necessary to make, apply to all other proceedings under the Code.rule 77.123: Ins 24.4.1998 (see erratum 1.5.1998). Subst 24.12.1999. Am 19.12.2003.
124 Disputing amount under s 408 (5)
(1) A person who is notified of an amount under section 405 (3) of the Code may dispute the amount under section 408 (5) by serving a notice disputing the amount (the disputing notice) on the liquidator:(a) if the person is notified under section 408 (3) by a written notice that includes the note set out in subrule (4)—within 28 days after the person was so notified,(b) otherwise—within 6 months after the person was notified, or(c) in any case—within such longer time as the Court may fix.(2) The Court may extend time under subrule (1) (c) at any time.(3) Service of the disputing notice on the liquidator may be effected by leaving it at, or sending it by pre-paid post addressed to the liquidator at, the address given for that purpose in the notice referred to in subrule (1) (a).(4) The note referred to in subrule (1) (a) is to the following effect, namely, “NB You will be bound by my determination set out in this notice of the amount for which the (name of friendly society) has a liability to you in respect of your interest in a benefit fund unless you serve on me, within 28 days of the date of receipt by you of this notice, a notice stating that you dispute the amount. You may serve the notice disputing the amount by leaving it at, or sending it by pre-paid post address to me at, (address).”rule 77.124: Ins 24.4.1998 (see erratum 1.5.1998). Am 22.5.1998.
Division 48 Contractors Debts Act 1997
pt 77, div 48 (Rules 77.125–77.127): Ins 22.5.1998.
125 Application under s 7 (1) or s 14 to be by motion
An application for an order under section 7 (1) or section 14 of the Contractors Debts Act 1997 (the subject Act) shall be made by motion in the proceedings in which judgment is given (the principal proceedings).pt 77, div 48 (Rules 77.125–77.127): Ins 22.5.1998.
126 Application under s 7 (1)
(1) This rule applies where an application for a certificate under section 7 (1) of the subject Act is made otherwise than at the hearing of the principal proceedings.(2) The evidence in support of the application shall include evidence showing:(a) how much of the judgment debt is for work done or for materials supplied (the subject debt),(b) whether the subject debt consists of daily, weekly or monthly wages,(c) if the subject debt so consists—whether the subject debt exceeds 120 days’ wages,(d) if the subject debt so consists and exceeds 120 days’ wages—an amount to be included in the certificate that does not exceed 120 days’ wages, and(e) whether work resulting in the subject debt was done on something moveable and, if so, whether it would be practicable for the applicant to exercise a lien by retaining the thing in the applicant’s possession.(3) The applicant may, unless the Court otherwise orders, proceed without service of notice of the motion or other documents upon any person.(4) The application may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of any person.pt 77, div 48 (Rules 77.125–77.127): Ins 22.5.1998.
127 Application under s 14 (1)
On an application under section 14 (1) of the subject Act the applicant may, unless the Court otherwise orders, proceed without service of notice of the motion or other documents upon any person.pt 77, div 48 (Rules 77.125–77.127): Ins 22.5.1998.
Division 49 Jury Act 1977
pt 77, div 49 (Rules 77.128–77.130): Ins 24.7.1998.
128 Application
This Division applies to an application to the Court under the Jury Act 1977 (the subject Act).pt 77, div 49 (Rules 77.128–77.130): Ins 24.7.1998.
129 Application (s 24)
(1) An application for a declaration of satisfaction that the Sheriff is interested in a trial shall be made a reasonable time before the trial by motion in the proceedings to which the application relates.(2) Notice of the motion shall be served on the Sheriff.(3) The Sheriff shall be entitled to be heard on the application without becoming a party to the proceedings.pt 77, div 49 (Rules 77.128–77.130): Ins 24.7.1998.
130 Application under s 26 (3)
An application to the Court for an order under section 26 (3) of the subject Act shall be made by summons in the Common Law Division without joining any person as a defendant.pt 77, div 49 (Rules 77.128–77.130): Ins 24.7.1998.
Division 50 Legal Profession Act 1987
131 Sealed copy of application under s 208KA
The officer of the Court accepting an application under section 208KA of the Legal Profession Act 1987 shall, on request by the applicant, seal with the seal of the Court a copy of the application provided by the applicant.
132 Affidavit showing compliance with s 208KA
A person applying for a review of a determination under section 208KA of the Legal Profession Act 1987 shall file with the application an affidavit showing compliance with subsection (5) of that section.
Division 51 Evidence (Audio and Audio Visual Links) Act 1998
pt 77, div 51: Ins 19.3.1999.
133 Evidence taken by audio link or audio visual link
(1) An application for a direction under section 5B or section 7 of the Evidence (Audio and Audio Visual Links) Act 1998 (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, including the minimum transmission rate that will be available,(h) that the requirements of section 20A or section 20B of the subject Act are able to be met,(i) an undertaking to pay all appropriate fees/charges for this facility.(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 5B (1) or section 7 (1) of the subject Act, it may direct the registrar to arrange and co-ordinate the appropriate facilities in New South Wales and the other place and may give detailed directions, including a direction that:(a) where applicable—an officer of the Supreme Court of the other State, orbe requested to be present to assist in the transmission of the evidence or submissions and, in particular, to:(b) another person approved by the Court,(c) introduce witnesses to be called and legal representatives,(d) assist with the administration of oaths, if necessary, and(e) assist with the implementation of any directions or requests given or made by the judge or officer hearing the evidence or submissions.rule 77.133: Ins 19.3.1999. Am 30.6.2000.
133A Application that bail proceedings or other preliminary criminal proceedings not be conducted by video link
An application for a direction under section 5BA of the Evidence (Audio and Audio Visual Links) Act 1998 that proceedings relating to bail or other preliminary criminal proceedings before the Court are not to be conducted by video link:(a) must be in form 89KA, and(b) if the application is in relation to bail proceedings and is made by the detained applicant—must be filed with the application, made pursuant to section 22 or 44 of the Bail Act 1978, to which it relates, and(c) may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant.rule 77.133A: Ins 23.11.2001.
134 Subpoenas
(1) This rule applies where a party requests the issue of a subpoena in Form 46 or Form 46A or Form 46B or Form 48, to produce at the place where evidence is to be given, or submissions are to be made, pursuant to the direction under section 5B (1) or section 7 (1) of the subject Act.(2) If the subpoena is in Form 46 or Form 46A or Form 46B, in paragraph (c) (i) of the form, the words “post, in either case so that he receives them—(A) where this subpoena is served within New South Wales—NOT LATER THAN 48 HOURS, andBEFORE THE DATE on which you are required so to attend;”(B) where this subpoena is served out of New South Wales—not later than 24 hours,
shall be replaced by:(a) if service is effected under the Service and Execution of Process Act 1992 of the Commonwealth—“post, PROVIDED THAT in either case he or she receives them not later than 24 hours BEFORE THE DATE on which you are required so to attend;”, or(b) otherwise—“post, PROVIDED THAT in either case he or she receives:(A) them, andNOT LATER THAN 7 days BEFORE THE DATE on which you are required so to attend;”(B) if an officer of the Court considers it appropriate—an amount that the officer considers is sufficient to meet the cost of transmitting them, by a means that the officer considers reasonable, to the place where production is required,(3) If the subpoena is in Form 48, paragraph (c) (iii) of the form shall be replaced by:(iii) you may produce this subpoena and the documents and things described in the schedule to a clerk of the Court at the above place by hand or by post, PROVIDED THAT in either case he or she receives—(A) them, andNOT LATER THAN 7 days before the date on which you are required so to attend.(B) if an officer of the Court considers it appropriate—an amount that the officer considers is sufficient to meet the cost of transmitting them, by a means that the officer considers reasonable, to the place where production is required,(4) The words “PRODUCTION UNDER THE EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) ACT 1998” shall be added immediately under the description of the subpoena on the first page of the subpoena.rule 77.134: Ins 19.3.1999. Am 30.6.2000.
134A Notice to produce
A notice to produce at the place where evidence is to be given, or submissions are to be made, pursuant to a direction under section 7 (1) of the subject Act shall:(a) be served not later than 14 days before the date on which production is required, unless the Court otherwise orders,(b) contain the following note:“You may produce the documents and things described above by hand to a clerk of the Court at the Exhibits Office, Level 4 Queen’s Square, Sydney, or by posting them to:Exhibits Clerk,Prothonotary’s Office, Level 4,Supreme Court of NSW,GPO Box 3,Sydney 2001,PROVIDED THAT in either case he or she receives:(A) them, and(B) if an officer of the Court considers it appropriate—an amount that the officer considers is sufficient to meet the cost of transmitting them, by a means that the officer considers reasonable, to the place where production is required,NOT LATER THAN 7 days before the date on which you are required so to attend.You need not comply with this notice if it is served on you after (date calculated in accordance with paragraph (a)).”,(c) contain the words “PRODUCTION UNDER THE EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) ACT 1998” immediately under the heading “NOTICE TO PRODUCE”.rule 77.134A: Ins 21.5.1999. Am 30.6.2000.
Division 52 Victims Compensation Act 1996
pt 77, div 52: Ins 19.3.1999.
135 Assignment of business
Proceedings in the Court under the Victims Compensation Act 1996 (the subject Act) are assigned to the Common Law Division.rules 77.135–77.137: Ins 19.3.1999.
136 Statement in summons or notice of motion
The applicant for an order under the subject Act shall file with his summons or notice of motion a statement in summary form of the general nature of the facts and circumstances relied on.rules 77.135–77.137: Ins 19.3.1999.
137 Examination order: prescribed officer (s 58H (2) (a))
An officer prescribed for the purposes of section 58H (2) (a) of the subject Act is a master or registrar.rules 77.135–77.137: Ins 19.3.1999.
137A Certificate of amount payable
A certificate issued by the registrar under section 75 or section 77F of the subject Act may be in the prescribed form.rule 77.137A: Ins 25.2.2000.
Division 53 Federal Courts (State Jurisdiction) Act 1999
pt 77, div 53 (Rules 77.138–77.141): Ins 23.7.1999.
138 Interpretation
In this Division, unless the context or subject matter otherwise indicates or requires:ineffective judgment and relevant order shall have, unless the contrary intention appears, in relation to proceedings under the subject Act, the same meaning as in the subject Act.subject Act means the Federal Courts (State Jurisdiction) Act 1999.pt 77, div 53 (Rules 77.138–77.141): Ins 23.7.1999.
139 Application for order under s 7
A person seeking the aid of the Court in respect of a right or liability to which section 7 of the subject Act refers, other than in respect of an appeal, shall commence proceedings:(a) by summons joining as defendants all persons whose interests may be affected by the application,(b) in the Division to which the proceedings, in which the ineffective judgment was given or recorded, would have been assigned if it had been commenced in the Court.pt 77, div 53 (Rules 77.138–77.141): Ins 23.7.1999.
140 Application for order under s 10
An applicant for an order under section 10 of the subject Act shall commence proceedings for the order:(a) by summons joining as defendants all other parties to the proceedings in which the ineffective judgment was given or recorded,(b) in the Division to which the proceedings, in which the ineffective judgment was given or recorded, would have been assigned if it had been commenced in the Court.pt 77, div 53 (Rules 77.138–77.141): Ins 23.7.1999.
141 Application for order under s 11 (2)
(1) An applicant for an order under section 11 (2) of the subject Act (the order) shall commence proceedings for the order by summons, joining as defendants all other parties to the proceeding in which the relevant order was made (the relevant proceedings), in:(a) where the relevant proceedings, if commenced in the Court, would have been commenced in the Court of Appeal—the Court of Appeal, or(b) otherwise—the Division to which the relevant proceedings would have been assigned if they had been commenced in the Court.(2) Where the order is made:(a) subject to any order of the Court:(i) the registrar or clerk of the court in which the relevant proceedings were brought shall send the record of the proceeding to the Court, and(ii) the Court shall proceed as if:(A) the relevant proceedings had been originally commenced in the Court,(B) the same steps had been taken in the Court as have been taken in any other court or courts in which the relevant proceedings were for the time being pending, and(C) any order made by any other court or courts in which the relevant proceedings were for the time being pending had been made by the Court,(b) the plaintiff shall, within 28 days of the order being made, move the Court for directions under Part 26.(3) Notwithstanding Part 41 rule 13 (3), the registrar may, without a direction of the Court or a request of a party, file and seal a minute of the order.(4) The registrar shall serve a minute of the order on the registrar of the court by which the relevant order was made.pt 77, div 53 (Rules 77.138–77.141): Ins 23.7.1999.
pt 77, div 54 (Rules 77.142–77.144): Ins 20.8.1999.
142 Assignment of business
Proceedings in the Court under the Protection of the Environment Operations Act 1997 (the subject Act) are assigned to the Common Law Division.pt 77, div 54 (Rules 77.142–77.144): Ins 20.8.1999.
143 Statement in summons or notice of motion
The applicant under section 232 (1) or section 235 (3) or section 238 (2) or section 239 (1) of the subject Act shall file with his or her summons or notice of motion a statement in summary form of the general nature of the facts and circumstances relied on.pt 77, div 54 (Rules 77.142–77.144): Ins 20.8.1999.
144 Examination order: prescribed officer (s 235 (2) (a))
An officer prescribed for the purposes of section 235 (2) (a) of the subject Act is a master or registrar.pt 77, div 54 (Rules 77.142–77.144): Ins 20.8.1999.
Division 55 The Retirement Villages Act 1999
pt 77, div 55 (Rules 77.145–77.147): Ins 30.6.2000.
145 Assignment
Proceedings under the Retirement Villages Act 1999 (the subject Act), other than proceedings under section 183 (1) (which relates to proceedings for an offence), are assigned to the Equity Division.pt 77, div 55 (Rules 77.145–77.147): Ins 30.6.2000.
146 Consent of administrator
In an application for an order under section 84 of the subject Act, the plaintiff must:(a) file the consent mentioned in section 85 of the subject Act with the application, and(b) serve the consent with the application.pt 77, div 55 (Rules 77.145–77.147): Ins 30.6.2000.
147 Application under s 88 of the subject Act
An application for an order under section 88 of the subject Act revoking or varying an order appointing an administrator may be made by motion in the proceedings in which the order appointing the administrator was made.pt 77, div 55 (Rules 77.145–77.147): Ins 30.6.2000.
Division 56 Offshore Minerals Act 1999
pt 77, div 56: Ins 25.8.2000.
148 Assignment of business
Proceedings under section 49 (2) or section 136 (2) or section 196 (2) or section 351 or section 354 (1) or section 355 (1) of the Offshore Minerals Act 1999 (the subject Act) are assigned to the Equity Division.pt 77, div 57 (Rules 77.148–77.151): Ins 25.8.2000.
149 Commencement of proceedings under s 354
Proceedings for an order under section 354 (1) of the subject Act shall be commenced by summons joining as a defendant the Minister and each person who is directly affected by the relief sought in the proceedings.pt 77, div 57 (Rules 77.148–77.151): Ins 25.8.2000.
Division 57 Offshore Minerals Act 1994 of the Commonwealth
pt 77, div 57 (Rules 77.148–77.151): Ins 25.8.2000.
150 Assignment of business
Proceedings under section 49 (2) or section 136 (2) or section 196 (2) or section 351 or section 354 (1) or section 355 (1) of the Offshore Minerals Act 1994 of the Commonwealth (the subject Act) commenced after 24 August 2000 are assigned to the Equity Division.pt 77, div 57 (Rules 77.148–77.151): Ins 25.8.2000.
151 Commencement of proceedings under s 354
Proceedings for an order under section 354 (1) of the subject Act shall be commenced by summons joining as a defendant the Designated Authority and each person who is directly affected by the relief sought in the proceedings.pt 77, div 57 (Rules 77.148–77.151): Ins 25.8.2000.
Division 58 Retirement Savings Accounts Act 1997 of the Commonwealth
pt 77, div 58 (Rules 77.152–77.155): Ins 20.10.2000.
152 Assignment of business
Proceedings under the following sections of the Retirement Savings Accounts Act 1997 of the Commonwealth (the subject Act) are assigned to the Equity Division, namely, 43, 74, 76 (2), 119, 158 (4), 160 (except where the order is made in existing proceedings), 161 (1) or (8) or (10) (except where the order is made in existing proceedings mentioned in (1) (a) (ii) or (ii)), 161 (2), 162, 163, 166 (except in existing proceedings) and 176.pt 77, div 58 (Rules 77.152–77.155): Ins 20.10.2000.
153 Application by Regulator under s 119 (3)
An application by the Regulator for an inquiry or order under section 119 (3) of the subject Act shall be made by summons, filed with the certificate under section 119 (2), and joining as a defendant the person who is the subject of the certificate.pt 77, div 58 (Rules 77.152–77.155): Ins 20.10.2000.
154 Notice of certain applications to be given to Regulator
Unless the Court otherwise orders, an applicant for an order under section 158 (1) or (4) or section 160 (5) must serve on the Regulator, a reasonable time before the hearing of the application, a copy of the originating process, or interlocutory process, and supporting affidavit in respect of the application.pt 77, div 58 (Rules 77.152–77.155): Ins 20.10.2000.
155 Intervention by Regulator
(1) The Regulator may intervene under section 168 of the subject Act by filing a notice of appearance that includes a statement that the Regulator intervenes under the section.(2) Upon complying with subrule (1), the Regulator shall be added as a defendant.pt 77, div 58 (Rules 77.152–77.155): Ins 20.10.2000.
Part 78 Probate
pt 77, 77.div 35: Ins 6.3.1992.
pt 78: Ins 30.6.1972.
Division 1 Preliminary
1 Interpretation
In this Part, unless the context or subject matter otherwise indicates or requires:administration includes administration with the will annexed, administration de bonis non and limited and special administrations.administrator means a person to whom administration is granted.affected person means a person whose interest in the estate of a deceased might be affected by a declaration by the Court as to whether it is satisfied under section 18A of the Probate Act in respect of an informal testamentary document made by the deceased.de facto spouse has the meaning which it has in section 32G of the Probate Act.estate includes real and personal estate.grant means a grant of probate or administration.informal testamentary document means a document which purports to embody the testamentary intentions of a deceased and has not been executed in accordance with the formal requirements of the Probate Act.registrar has the same meaning as it has in the Probate Act.resealing means sealing, under section 107 of the Probate Act, probate or letters of administration.the Probate Act means the Wills, Probate and Administration Act 1898.will includes codicil.rule 78.1: Ins 30.6.1972. Am 28.4.1978; 13.12.1991; 19.2.1999; 20.8.1999; 24.9.1999; 22.10.1999.
2 Transition
(1) Proceedings for a grant or for resealing to which Division 3 applies, which are commenced before 1 October 1972, may be commenced and may be continued to grant or resealing in accordance with the practice, procedure, requirements and forms in force immediately before the commencement of the Act.(2) Where the proceedings are commenced in accordance with subrule (1), the notice of address filed in the proceedings shall have effect as if it were the applicant’s address for service stated in proceedings commenced by summons in accordance with Division 3.rule 78.2: Ins 30.6.1972.
3 Title
(1) This rule applies to proceedings:(a) to which this Part applies,(b) in the Court under any of the following provisions of the Trustee Companies Act 1964:(i) Section 6 (2) (grant of administration),(ii) Section 15 (appointment of administrator),(iii) Section 18 (3) (review of commission of trustee),(iv) Section 20A (1) (filing accounts relating to an estate),(v) Section 21 (2) (ordering account relating to an estate), and(c) on an application under section 19 (3) of the Family Provision Act 1982.(2) In proceedings to which this rule applies:(a) there shall be added to a document, after the solid line appearing under the name of the filing party, the word “Probate” and (on the next line) the words “The estate of” with a reference to the name, place of residence and occupation of the deceased at the time of the deceased’s death, and(b) if Part 78 Division 3 applies:(i) Part 65 rule 1 (2), (3) and (4) (which relates to heading and title) shall not apply, and(ii) there shall be added to a summons, after the matter referred to in paragraph (a) the words:(A) “Date of death:”, with a reference to the date of the death of the deceased,(B) “Gross value:”, with a reference to the gross value of the estate,(C) “Net value:”, with a reference to the net value of the estate, and(D) “Pages in will:”, with a reference to the number of pages in the will.rule 78.3: Ins 30.6.1972. Am 23.12.1977. Subst 26.4.1996; 19.2.1999.
4 (Repealed)
rule 78.4: Ins 30.6.1972. Rep 26.4.1996.
4A District agents
A registrar of a Local Court in any town beyond the distance from Sydney mentioned in section 98 (1) of the Probate Act, where a Local Court is held, may act as district agent for the registrar for the purpose of receiving applications for probate or administration under Division 4 of Part 2 of the Probate Act.rule 78.4A: Ins 15.12.1972. Am 1.10.1976; 29.8.2003.
4B Public Trustee Act 1913: “prescribed registry”
The registry prescribed pursuant to section 4A of the Public Trustee Act 1913 is the registry of the Equity Division.rule 78.4B: Ins 30.3.1973. Am 19.2.1999.
4C Appointments for hearing for proceedings commenced by summons with no return day
(1) Despite Part 5, a summons commencing proceedings under this Part (other than under rule 69 (2) (b) or 75A) is not to state a return day.(2) A summons commencing proceedings under this Part (other than under rule 69 (2) (b) or 75A) is to contain the following statement:“The proceedings commenced by this summons will be dealt with by a Judge or a registrar out of court. However, the Court may, of its own motion, appoint a date for the hearing in Court of the proceedings.”(3) The Court may, of its own motion, appoint a date for the hearing of proceedings commenced by summons under this Part where a return day has not been appointed.(4) If the Court appoints a date for the hearing of proceedings commenced by summons, the Court must give the parties, or ensure that the parties are given, notice of the appointment at least 5 days before the date appointed. Any such notice must be in writing or by email or facsimile transmission.rule 78.4C: Ins 13.6.2003.
Division 2 Registrar
5 Powers of the registrar
(1) The registrar may exercise the powers of the Court in and about:(a) proceedings to which Division 3 applies (including making a grant on presumption of death and giving leave in the grant to distribute the estate),(b) granting leave to creditors to commence proceedings for a grant of administration,(c) assigning guardians or minors,(d) setting and issuing citations,(e) appointing tutors of disable persons,(f) passing the accounts of executors, administrators and trustees, including the allowing of commission or percentage to executors, administrators and trustees for their pains and trouble and costs in connection with accounts,(g) granting further time to executors, administrators, or trustees to file, or file and pass, or verify and file, or verify, file and pass their accounts or pass accounts filed,(g1) declaring whether it is satisfied under section 18A of the Probate Act where:(i) to the extent that rules 34E (1) or 34E (3) are applicable:(A) those rules have been complied with, orand no appearance has been entered within the time limited for entry of an appearance to a notice served under either of those rules, or(B) the Court has dispensed with compliance with those rules,(ii) the value of the interest in the estate that would be affected by a declaration being made under that section does not exceed $30,000,(g2) dispensing with compliance with the requirements of rule 34E (1) on the grounds mentioned in rule 34E (2),(g3) making orders under rule 34H (4) (b),(g4) granting leave under rule 34H (5),(g5) giving directions under rule 34I (c) (ii),(g6) making orders under rule 69 in relation to caveats lodged under rule 62A,(h) making orders under section 85 (1), (1AA), (1A), (1B), (2), (4) and (5) of the Probate Act,(i) ordering executors, administrators or trustees to show cause before the Court under subsection (2) of section 87 of the Probate Act,(j) ordering executors, administrators or trustees ordered to show cause before the Court under section 87 (2) of the Probate Act to file, or verify and file, an inventory or to file, or file and pass, or verify and file, or verify, file and pass their accounts,(k) issuing documents under section 91 (2) of the Probate Act,(l) barring of claims under section 93 of the Probate Act and the making of any other order that the Court may make under sub-section (2) of that section,(m) withdrawal of caveats under section 148 of the Probate Act,(n) revocation or rescission of grants of probate or administration except where the revocation or rescission is contested or an order for provision under the Family Provision Act 1982 has been made,(o) authorisation of the sale, lease or mortgage of any of the real estate as to which any person dies intestate where the gross value of such real estate does not exceed $60,000, and no objection is raised to the sale, lease or mortgage,(p) orders under section 18 (3) of the Trustee Companies Act 1964 (which subsection relates to the review of Commission),(q) declaring whether it is satisfied under section 13 (2) (c), section 15A (2) (a) or section 29A (1) of the Probate Act where:(i) rule 34C (1) has been complied with and no appearance has been entered by any person cited, or(ii) the value of the interest in the estate that would be effected by a declaration made under that section does not exceed $30,000,(r) making orders under section 150 (1) of the Probate Act,(s) making a declaration under section 21 (2) of the Status of Children Act 1996 where:(i) the person whom it is sought to have declared as a parent (the alleged parent) of the child in question is deceased, and(ii) the registrar makes the declaration at the same time as the registrar makes a finding as to whether the alleged parent is a parent of the child in proceedings to which Division 3 applies for a grant or resealing in respect of the alleged parent’s estate,(t) making an appointment for hearing for a summons under rule 4C (3).(2) Where the Court refers any matter to the registrar for the exercise in respect of that matter of any powers of the Court, the registrar may exercise in respect of that matter that power.(3) In respect of any of the matters referred to in subrule (1) or subrule (2), the registrar may exercise the power of the Court under Part 1 rule 12 (which relates to relief from rules).(4), (5) (Repealed)rule 78.5: Ins 30.6.1972. Am 2.11.1973; 24.12.1981; 25.5.1984; 23.8.1985; 13.12.1991; 26.4.1996; 21.7.2000; 13.6.2003.
6 Application of Part 61
Part 61 rule 3 (which relates to review of a registrar’s direction etc) does not apply in respect of the registrar except where the registrar:(a) declares whether he is satisfied under section 13 (2) (c), section 15A (2) (a), section 18A or section 29A (1) of the Probate Act, or(b) makes an order in proceedings for passing accounts or for passing accounts and for commission.rule 78.6: Ins 30.6.1972. Subst 15.12.1972. Am 23.9.1988. Subst 13.12.1991. Am 26.4.1996.
Division 3 Non-contentious proceedings for grant or resealing
7 Application of Division
This Division applies to proceedings for a grant or for resealing where:(a) there is no defendant, other than a defendant who may take part in the proceedings only to the extent permitted by Part 78 rule 34I (c), and(b) no person is cited to see the proceedings.rule 78.7: Ins 30.6.1972. Am 13.12.1991.
8 Commencement of proceedings
(1) Proceedings for the grant or resealing shall be commenced by summons in Form 90.(2) Notwithstanding subrule (1) of rule 6 of Part 9, the address for service of the plaintiff need not be that of a place within three kilometres of the General Post Office, Sydney, but shall be that of a place within New South Wales.rule 78.8: Ins 30.6.1972. Am 1.10.1976; 13.6.2003.
9 Hearing
(1) The proceedings may be heard:(a) in the absence of the public, and(b) without the appearance before the Court of any person.(2) The proceedings shall be heard without an appointment being obtained for the hearing.(3) Part 5 (which relates to proceedings by summons) does not apply.(4) Subrules (1) and (2) do not apply to any parts of the proceedings in which a person who has entered an appearance under rule 34H (1) may take part.rule 78.9: Ins 30.6.1972. Am 13.12.1991.
10 Publication of notice of intended application
(1) Notice, in the form prescribed, of an intended application for a grant or for resealing shall be published:(a) if the deceased was resident at the date of his death in the State—in a newspaper circulating in the district where the deceased resided, or(b) otherwise—in a Sydney daily newspaper.(2) A notice under subrule (1) shall state the date or dates of any will and each codicil (if any) sought to be proved or where the document bears no date a statement of this fact and of the approximate date, if known.(3) Where it is intended to apply for dispensing with an administration bond, or with one or both of the sureties, or for reduction of the penalty of the bond, the notice under subrule (1) shall require creditors to send in their claims.(4) Subrules (2) and (3) shall not apply in respect of an application for a grant of administration as referred to in section 41A (1) of the Probate Act (which subsection relates to administration for the purposes only of an application under the Family Provision Act 1982).(5) The Court may require further advertisement.rule 78.10: Ins 30.6.1972. Am 1.10.1976; 25.5.1984; 13.12.1991.
11 Delay
(1) Where proceedings for a grant:(a) are not commenced until six months or more after the death of the deceased, andthe plaintiff shall file an affidavit explaining the delay.(b) are the first proceedings for a grant,(2) Subrule (1) shall not apply in respect of proceedings for a grant of administration as referred to in section 41A (1) of the Probate Act (which subsection relates to administration for the purposes only of an application under the Family Provision Act 1982).rule 78.11: Ins 30.6.1972. Am 25.5.1984.
12 Domicile out of New South Wales
Where it appears in proceedings for a grant or for resealing that the deceased was domiciled out of New South Wales, the Court may require evidence of:(a) the domicile of the deceased,(b) the requirements of the law of the domicile as to the validity of any will made by the deceased,(c) the law of the domicile as to the person entitled in distribution of the estate.rules 78.12–78.22: Ins 30.6.1972.
13 Identity
The Court may, in proceedings for a grant, require proof of the identity of the deceased or of the plaintiff.rules 78.12–78.22: Ins 30.6.1972.
14 Renunciation
(1) Where a person has renounced probate or administration, he shall not be granted representation of the deceased in another capacity.(2) A renunciation by an executor of probate may be made in the form prescribed.rules 78.12–78.22: Ins 30.6.1972.
15 Will not sufficiently attested
(1) This rule applies where in proceedings for a grant the plaintiff seeks to prove a will which does not contain a sufficient attestation clause or contains no attestation clause.(2) The plaintiff shall file an affidavit in the form prescribed by one or more of the attesting witnesses as to due execution of the will.(3) Where the plaintiff is unable to comply with subrule (2) he shall file an affidavit explaining the reason for the inability and an affidavit by some person, other than an attesting witness, who was present when the will was executed.(4) Where the plaintiff is unable to comply with subrule (2) or with subrule (3), he shall furnish evidence, on affidavit, of the reason for the inability and of the identity of the signature of the testator and of the attesting witnesses respectively or of any other facts from which it may be inferred that the will was duly executed.rules 78.12–78.22: Ins 30.6.1972.
16 Testator’s knowledge and approval of contents
(1) This rule applies where in proceedings for a grant the plaintiff seeks to prove a will and:(a) the will appears to have been signed by a blind testator,(b) the will appears to have been signed by an illiterate testator,(c) the will appears to have been signed by another person by direction of the testator, or(d) there are circumstances which raise doubt whether the testator, at the time of execution of the will, knew and approved of the contents of it.(2) The plaintiff shall furnish evidence on affidavit which establishes that the testator, at the time of execution of the will, knew and approved of its contents.(3) Where any of the evidence is that of an attesting witness or other person present at the time of execution, his affidavit shall state the manner in which the will was executed.rules 78.12–78.22: Ins 30.6.1972.
17 Further evidence as to execution
Where in proceedings for a grant the plaintiff seeks to prove a will and, notwithstanding that the plaintiff has complied with rules 15 and 16, the Court considers that there is some doubt about the execution of the will or that any circumstance in connection with the execution requires explanation, the Court may require further evidence.rules 78.12–78.22: Ins 30.6.1972.
18 Date of execution
(1) This rule applies where in proceedings for a grant the plaintiff seeks to prove a will and the will is undated or there appears to be doubt as to the date on which it was executed.(2) The Court may require evidence establishing the date of the execution.rules 78.12–78.22: Ins 30.6.1972.
19 Interlineations, obliterations and alterations
(1) This rule applies where in proceedings for a grant the plaintiff seeks to prove a will and:(a) an interlineation, obliteration or alteration appears in the will, and(b) the interlineation, obliteration or alteration has not been duly authenticated or otherwise validated.(2) The Court may require evidence establishing whether the interlineation, obliteration or alteration was made before the execution of the will.rules 78.12–78.22: Ins 30.6.1972.
20 Documents referred to or attached
(1) This rule applies where in proceedings for a grant the plaintiff seeks to prove a will and:(a) the will contains a reference to a document that suggests that the document may be incorporated in the will, or(b) there are marks on the will from which it appears that a document has been attached to it.(2) The Court may require:(a) production of the document, and(b) evidence in regard to it.rules 78.12–78.22: Ins 30.6.1972.
21 Part of will paper torn off or cut off
(1) This rule applies where in proceedings for a grant the plaintiff seeks to prove a will and it appears that part of the paper on which the will was written has been torn off or cut off.(2) The Court may require:(a) production of the part torn off or cut off, and(b) evidence in regard to it.rules 78.12–78.22: Ins 30.6.1972.
22 Burning, tearing or other sign of revocation
(1) This rule applies where in proceedings for a grant the plaintiff seeks to prove a will and:(a) the appearance of the will suggests that there may have been an attempted destruction of it by burning, tearing or otherwise, or(b) there are other circumstances which suggest that the testator may have revoked the will.(2) The circumstances shall be fully explained on affidavit.rules 78.12–78.22: Ins 30.6.1972.
23 Inoperative will
(1) This rule applies where in proceedings for a grant the plaintiff seeks to prove a will and it appears that the will is or may be inoperative or partly inoperative by reason of the executors and beneficiaries all predeceasing the testator or for any other reason.(2) The Court may require evidence:(a) as to matters relevant to whether the will is inoperative or partly inoperative, and(b) showing what persons would be entitled in distribution of the estate upon intestacy and where it is claimed that the whole or part of the estate is required to be held in trust for a de facto wife, de facto husband or de facto spouse of the deceased, showing that the estate or part is required to be held in trust for her or him.rule 78.23: Ins 30.6.1972. Am 23.8.1985; 20.8.1999.
23A Court may require further evidence, documents and notices
On an application under rules 24–26A or rule 28, the Court may require further evidence to be furnished, further documents to be filed, and notices to be given.rules 78.23A, 78.23B: Ins 19.8.1994.
23B Proof of death otherwise than by death certificate
On an application under rules 24–26A or rule 28, the Court may allow a death to be proved otherwise than by means of a death certificate.rules 78.23A, 78.23B: Ins 19.8.1994.
24 Evidence in support of application for probate
(1) An application for probate shall be supported by affidavit:(a) in Form 97,(b) where the deceased died on or after 1 November 1989 and he or she made any informal testamentary document—of the name and address of every person who is an affected person in relation to the estate of the deceased (designating as a disable person any person who, in the plaintiff’s opinion, is or may be a disable person) or, where the name and address of an affected person cannot be ascertained, the best information the plaintiff can give to assist in ascertaining the name, address and identity of the affected person,(c) where the plaintiff relies on section 15A of the Probate Act (relating to termination of marriage)—stating the facts upon which the plaintiff relies, and(d) where the deceased died before 1989—of search in the registry for, and no evidence of any prior application for, any grant or resealing.(2) Where an executor has renounced probate:(a) evidence of the renunciation shall be furnished, and(b) where a renunciation has been signed by the executor—the renunciation shall be filed.(3) Where an executor is not joining in the application and leave is sought to be reserved to him or her to come in and apply for probate, evidence shall be furnished that he or she has been served, not less than 14 days before the proceedings for grant are commenced, with notice of the intended proceedings or that he or she is not in New South Wales or that he or she is a minor.(4) The notice referred to in subrule (3) shall be served personally or by sending the notice by certified mail to the executor and obtaining from the postal authorities a written acknowledgement, purporting to be signed by him or her, of receipt of the certified article.(5) Where the testator died before 31 December 1981:(a) paragraph 10 of Form 97 shall be omitted, and(b) the affidavit required by subrule (1) (a) shall state that the plaintiff will administer the estate of the deceased according to law and will render a just and true account of the administration of it to the Court within 12 months from the date of grant.rule 78.24: Ins 30.6.1972. Am 24.12.1981; 23.8.1985; 20.9.1985; 26.9.1986; 25.8.1989; 13.12.1991. Subst 19.8.1994. Am 25.11.1994; 20.8.1999.
24A Evidence in support of application for administration
(1) This rule applies to an application for administration of the estate of a deceased who died after the commencement of Schedule 2.25 of the Property (Relationships) Legislation Amendment Act 1999 (other than an application by or on behalf of a de facto spouse or for administration with the will annexed or as referred to in section 41A (1) of the Probate Act, which subsection relates to administration for the purposes only of an application under the Family Provision Act 1982).(2) The application shall be supported by affidavit:(a) in Form 98,(b) where the deceased made any informal testamentary document—of the name and address of every person who is an affected person in relation to the estate of the deceased (designating as a disable person any person who, in the plaintiff’s opinion, is or may be a disable person) or, where the name and address of an affected person cannot be ascertained, the best information the plaintiff can give to assist in ascertaining the name, address and identity of the affected person, and(c) in the prescribed form, showing that the deceased did not leave a person for whom the estate or part is required to be held in trust under section 61B (3A) (a) or (3B) (a) or (b) (ii) of the Probate Act or, by the operation of section 32G (2) of that Act (which provisions relate to a de facto spouse) under any other provision of that Act.(3) Where the grant is applied for by less than all the persons who are in New South Wales and are entitled to a grant of administration, the application must be supported by:(a) the consent, in the form prescribed, of each such person entitled to a grant but not applying for the grant, to the grant being made to the plaintiff, with an affidavit verifying the consent endorsed on the document containing the consent, or(b) an affidavit as to service, not less than 14 days before the proceedings are commenced, upon each of those persons whose consent to the grant is not filed, of notice of intention to make the application.(4) The notice referred to in subrule (3) (b) shall be served:(a) personally, or(b) by sending a copy of the notice:(i) in the case of service within Australia—by certified mail to the person to be served, andand by obtaining from the postal authorities a written acknowledgment, purporting to be signed by that person, of receipt of the certified or registered article.(ii) in the case of service outside Australia—registered post to the person to be served,(5) Subject to subrule (6):(a) an administration bond, in the form prescribed, shall be filed, and(b) except where the bond is given by a guarantee company approved by the Court, there shall be 2 sureties to the bond.(6) The Court may:(a) dispense with the bond,(b) dispense with one or both of the sureties, or(c) reduce the penalty of the bond.(7) Where dispensing with the bond or with one or both of the sureties, or reduction of the penalty of the bond, is sought, an affidavit shall be filed in support of the dispensing or the reduction.(8) Where there is a surety to a bond, an affidavit of justification by the surety, in the form prescribed, shall be filed.rule 78.24A: Ins 20.8.1999.
25 Evidence in support of application for administration
(1) This rule applies to an application for administration of the estate of a deceased who died before the commencement of Schedule 2.25 of the Property (Relationships) Legislation Amendment Act 1999 (other than an application by or on behalf of a de facto wife or de facto husband or for administration with the will annexed or as referred to in section 41A (1) of the Probate Act, which subsection relates to administration for the purposes only of an application under the Family Provision Act 1982).(2) The application shall be supported by affidavit:(a) in Form 98,(b) where the deceased died on or after 1 November 1989 and he or she made any informal testamentary document—of the name and address of every person who is an affected person in relation to the estate of the deceased (designating as a disable person any person who, in the plaintiff’s opinion, is or may be a disable person) or, where the name and address of an affected person cannot be ascertained, the best information the plaintiff can give to assist in ascertaining the name, address and identity of the affected person,(c) where the deceased died before 1 July 1977 without issue—whether he or she was born legitimate,(d) where the deceased died before 1978 and, pursuant to the Probate Act, the estate of the deceased held in statutory trust for issue is divisible into shares—of the particulars and value of any money or property which by way of advancement or on marriage of a child of the deceased has been paid to that child by the deceased for the benefit of that child,(e) where the deceased died before 1989—of search in the registry for, and no evidence of any prior application for, any grant or resealing, and(f) where the deceased died on or after 1 July 1985—in the prescribed form, showing that the deceased did not leave a person for whom the estate or part is required to be held in trust under section 61B (3A) (a) or (3B) (a) or (b) (ii) of the Probate Act or, by the operation of section 32G (2) of that Act (which provisions relate to a de facto wife, etc) under any other provision of that Act.(3) Rule 24A (3)–(8) apply to an application to which this rule applies.(4) Where the deceased died before 31 December 1981:(a) paragraph 9 of Form 98 shall be omitted, and(b) the affidavit required by subrule (2) (a) shall state that the plaintiff will administer the estate of the deceased according to law and will render a just and true account of the administration of it to the Court within 12 months from the date of grant.rule 78.25: Ins 30.6.1972. Am 1.7.1977; 24.12.1981; 25.5.1984; 23.8.1985 (see erratum 6.9.1985); 26.9.1986; 25.8.1989; 13.12.1991. Subst 19.8.1994. Am 25.11.1994; 19.7.1996. Subst 20.8.1999.
25A Evidence in support of application for administration by de facto wife, de facto husband or de facto spouse
(1) This rule applies to an application for administration by or on behalf of a de facto wife, de facto husband or de facto spouse (other than administration as referred to in section 41A (1) of the Probate Act, which subsection relates to administration for the purposes only of an application under the Family Provision Act 1982).(2) The application shall be supported by affidavit:(a) in Form 98,(b) where the deceased died on or after 1 November 1989 and he or she made any informal testamentary document—of the name and address of every person who is an affected person in relation to the estate of the deceased (designating as a disable person any person who, in the plaintiff’s opinion, is or may be a disable person) or, where the name and address of an affected person cannot be ascertained, the best information the plaintiff can give to assist in ascertaining the name, address and identity of the affected person,(c) where the deceased died before 1989—of search in the registry for and no evidence of any prior application for any grant or resealing, andshowing that the estate or part is required to be held in trust for her or him.(d) which:(i) if the deceased died before the commencement of Schedule 2.25 of the Property (Relationships) Legislation Amendment Act 1999—is in Form 103A sworn by the de facto wife or de facto husband,(ii) otherwise—is in Form 103AA sworn by the de facto spouse,(3) The application must be supported by:(a) in the form prescribed, the consent of each person who is not applying for a grant and who is entitled in distribution of the estate or would, if the deceased had not left a de facto wife, de facto husband or de facto spouse, have been so entitled, to the grant being made to the plaintiff, with an affidavit verifying the consent endorsed on the document containing the consent, or(b) an affidavit as to service:(i) within the State—not less than 42 days before proceedings are commenced, orupon each of those persons whose consent to the grant is not filed of:(ii) outside the State—not less than three months before proceedings are commenced,(iii) affidavits required by subrule (2) (a), (b) and (d) duly sworn, and(iv) notice in the prescribed form.(4) The affidavits and notice referred to in subrule (3) (b) shall be served:(a) personally, or(b) by sending copies of them:(i) in the case of service within Australia—by certified mail to the person to be served, andand by obtaining from the postal authorities a written acknowledgment, purporting to be signed by that person, of receipt of the certified or registered article.(ii) in the case of service outside Australia—by registered post to the person to be served,(5) Rule 24A (5)–(8) apply to an application to which this rule applies.rule 78.25A: Ins 23.8.1985. Am 26.9.1986; 25.8.1989; 13.12.1991. Subst 19.8.1994. Am 25.11.1994; 19.7.1996. Subst 20.8.1999.
26 Evidence in support of application for administration with will annexed
(1) An application for administration with the will annexed shall be supported by:(a) the affidavits and documents, so far as appropriate, referred to in rule 24A, 25 or 25A, and(b) the affidavits and documents which, if the application were an application for probate of the will, would be required by rule 24 (1) (a), (b) and (c) and (2).(2) An affidavit of the plaintiff pursuant to subrule (1) shall be in Form 104.(3) Where the executor or the executors named in the will renounces or renounce probate in favour of the Public Trustee, in the form prescribed, administration with the will annexed may be granted to the Public Trustee without the consent or citation of any person.(4) Where the deceased died before 31 December 1981:(a) paragraph 11 of Form 104 shall be omitted, and(b) the affidavit required by subrule (1) shall state that the plaintiff will administer the estate of the deceased according to law and will render a just and true account of the administration of it to the Court within 12 months from the date of grant.rule 78.26: Ins 30.6.1972. Am 24.12.1981; 23.8.1985; 25.8.1989. Subst 19.8.1994; 20.8.1999.
26A Evidence in support of application for administration for the purposes only of the Family Provision Act 1982
(1) An application for a grant of administration as referred to in section 41A (1) of the Probate Act shall be supported by affidavit:(a) in Form 105A,(b) where the plaintiff is aware of any proposal by any other person to make an application for a grant—of service, not later than 14 days before commencement by the plaintiff of the proceedings for a grant, on the other person, of a notice of the plaintiff’s intention to commence the proceedings, and(c) where the deceased died before 1989—in the form prescribed, of search in the registry for and no evidence of any prior application for any grant or resealing.(2) The notice referred to in subrule (1) (b) shall be served:(a) personally, or(b) by sending a copy of the notice:(i) in the case of service within Australia—by certified mail to the person to be served, andand by obtaining from the postal authorities a written acknowledgement, purporting to be signed by that person, of receipt of the certified or registered article.(ii) in the case of service outside Australia—by registered post to the person to be served,rule 78.26A: Ins 25.5.1984. Am 26.9.1986; 25.8.1989; 13.12.1991. Subst 19.8.1994.
27 Notice to Crown Solicitor of application for administration
(1) Where the deceased was illegitimate and dies before 1 January 1955, notice of an application for administration shall be served upon the Crown Solicitor if the deceased:(a) was a bachelor or spinster,(b) was a widower or widow without issue, or(c) left a widow or widower but no issue and the net value of the estate is sworn to be in excess of $2,000.(2) Where the deceased was illegitimate and died after 1 January 1955 and before 1 July 1977 without leaving his mother surviving, notice of an application for administration shall be served upon the Crown Solicitor if the deceased:(a) was a bachelor, or(b) was a spinster, widower or widow and died without issue.(3) Where the deceased died on or after 1 July 1977 without leaving any next of kin surviving, notice of an application for administration (except administration with the will annexed) shall be served upon the Crown Solicitor.rule 78.27: Ins 30.6.1972. Am 1.7.1977; 20.4.1990.
28 Evidence in support of application for resealing
(1) An application for resealing shall be supported by affidavits:(a) in Form 106,(b) where the deceased died on or after 1 November 1989 and made any informal testamentary document—of the name and address of every person who is an affected person in relation to the estate of the deceased (designating as a disable person any person who, in the plaintiff’s opinion, is or may be a disable person) or, where the name and address of an affected person cannot be ascertained, the best information the plaintiff can give to assist in ascertaining the name, address and identity of the affected person,(c) annexing certified copies of any relevant documents, and(d) where the deceased died before 1989—of search in the registry for and no evidence of any prior application for any grant or resealing.(2) Subrules (5), (6), (7) and (8) of rule 24A apply as if the application were an application for administration.(3) A copy of the document sought to be sealed, certified by the Court or by the court which made the grant, must be filed.(4) All relevant original documents must be produced.(5) (Repealed)rule 78.28: Ins 30.6.1972. Am 24.12.1981; 23.8.1985; 26.9.1986; 13.12.1991. Subst 19.8.1994. Am 20.8.1999; 21.7.2000.
28A Affidavit of additional assets: cf s 81A (2) of the Probate Act
An executor, administrator or trustee of the estate of a person who dies on or after 31 December 1981 shall disclose assets or liabilities pursuant to section 81A (2) of the Probate Act (which subsection relates to disclosing assets not previously disclosed) by filing an affidavit in the prescribed form.rule 78.28A: Ins 24.12.1981.
Division 4 Administration during minority
29 Administration during minority
(1) The Court may grant administration during minority, for the use and benefit of minors, to:(a) the legal or testamentary guardian of the minors,(b) a guardian elected as provided by rule 30, or(c) a guardian of the minors assigned, on his application, by the Court.(2) A grant of administration during minority shall be subject to such limitations and conditions as the Court thinks fit.rules 78.29–78.34: Ins 30.6.1972.
30 Elected guardians
(1) A minor who is aged 16 years or upwards may elect a guardian for the purpose of applying for a grant of administration.(2) The elected guardian may act also for minors who are less than 16 years of age but who are in the same family as the minor who elected.(3) Notwithstanding the election of a guardian the Court may grant administration to any person who is referred to in paragraphs (a) or (c) of subrule (1) or rule 29 and whom it considers to be more appropriate or better fitted to act as guardian.(4) A grant shall not be made to an elected guardian unless evidence of his election and of his appropriateness and fitness to be guardian is furnished.rules 78.29–78.34: Ins 30.6.1972.
31 Assigned guardian
(1) Application by a person for an order assigning him as the guardian of minors for the purpose of applying for administration shall be made by summons.(2) There shall be no defendant in the proceedings.(3) The proceedings may be heard:(a) in the absence of the public, and(b) without the appearance before the Court of any person.(4) The proceedings shall be heard without an appointment being obtained for the hearing.(5) The application shall be supported by evidence of the relationship, if any, of the proposed guardian to the minors and of his appropriateness and fitness to act as guardian.(6) A draft minute of the order sought shall be lodged with the registrar.(7) The order shall be entered.(8) The order may be entered at any time after the minute of it is signed.rules 78.29–78.34: Ins 30.6.1972.
Division 5 Applications by creditors for administration
32 Leave to commence proceedings
(1) A creditor shall not, without the leave of the Court, commence proceedings for a grant of administration.(2) The Court may, if it thinks fit, refuse or withhold a grant to a creditor, notwithstanding that he has obtained leave to commence proceedings for the grant.rules 78.29–78.34: Ins 30.6.1972.
33 Citations
(1) Where a creditor desires to commence proceedings for a grant of administration and the deceased left a will, he shall:(a) where an executor is appointed by the will and has not renounced probate, serve upon the executor a citation to take probate, and(b) if the executor fails to comply with the citation to take probate, serve upon the widow or widower of the deceased and upon every beneficiary under the will and, where there is a partial intestacy, upon every person entitled in administration of the estate upon intestacy, a citation to pray for administration.(2) Where the executor has been served with a citation to take probate and has failed to comply with the citation, it is not necessary, unless the Court otherwise directs, to serve him a citation to pray for administration.(3) Where an executor is appointed by the will and has not renounced probate, the creditor shall not serve a citation to pray for administration unless he has complied with paragraph (a) of subrule (1) and the executor has failed to comply with a citation to take probate.(4) Where a creditor desires to commence proceedings for a grant of administration and the deceased did not leave a will, he shall serve upon the widow or widower of the deceased and upon every person entitled in administration of the estate upon intestacy a citation to pray for administration.rules 78.29–78.34: Ins 30.6.1972.
34 Proceedings for leave
(1) Proceedings for an order that a creditor have leave to commence proceedings for a grant of administration shall be commenced by summons.(2) There shall be no defendant in the proceedings.(3) The proceedings may be heard:(a) in the absence of the public, and(b) without the attendance before the Court of any person.(4) The proceedings shall be heard without an appointment being obtained for the hearing.(5) The creditor shall file:(a) an affidavit in proof of the debt to him,(b) an affidavit of compliance with rule 33 and that none of the persons cited has complied with the citation,(c) an administration bond in the form prescribed, and(d) an affidavit of justification, in the form prescribed, of any surety to the bond.(6) Except where the bond is given by a guarantee company approved by the Court, there shall be two sureties to the bond.(7) A draft minute of the order sought shall be lodged with the registrar.(8) The order shall be entered.(9) The order may be entered at any time after the minute of it is signed.(10) The Court may require further evidence to be furnished, further documents to be filed, further citations to be served, and notices to be given.rules 78.29–78.34: Ins 30.6.1972.
Division 5A Proceedings under sections 13, 15A and 29A of the Probate Act
pt 78, div 5A, hdg: Am 13.12.1991.
pt 78, div 5A: Ins 25.8.1989.
34A Form of consent
(1) A consent mentioned in section 13 (2) (b) of the Probate Act may be given in the form prescribed with an affidavit verifying the consent added to the form of consent.(1A) A consent to an order referred to in rule 34C (1) shall be in the form prescribed with an affidavit verifying the consent added to the form of consent.(2) The consent shall be filed in the registry.rule 78.34A, headnote: Ins 25.8.1989. Am 26.4.1996.rule 78.34A: Ins 25.8.1989. Am 26.4.1996.
34B Plaintiff sole executor etc (s 13)
(1) The originating process on an application for an order under section 13 (2) (c) of the Probate Act shall not join as a defendant:(a) any person, where any plaintiff is the sole executor or administrator,(b) any person, where there is sufficient reason for not doing so.(2) Notwithstanding subrule (1), the Court may, at any stage of the proceedings, direct that any person be added as a party or substituted for another party or a former party or that notice of the proceedings be served on any person in addition to or instead of the defendant.(3) Subrule (2) does not affect the powers of the Court under Part 8 (which relates to adding or joining parties).(4) Part 8 rule 14 (which relates to representative orders) applies to proceedings for an order under section 13 (2) (c) of the Probate Act as it applies to proceedings mentioned in subrule (1) of that rule.rule 78.34B: Ins 25.8.1989.
34C Citations etc (ss 13, 15A and 29A)
(1) A person whose interests would be adversely affected by an order under section 13 (2) (c), section 15A (2) (a) or section 29A (1) of the Probate Act shall, within 14 days of commencement of proceedings for the order, be cited to see the proceedings unless the person has consented as prescribed by rule 34A.(2) On an application for any order mentioned in subrule (1), the applicant for the grant shall file an affidavit showing the persons whose interests would be adversely affected if the order was made.rule 78.34C, headnote: Am 13.12.1991.rule 78.34C: Ins 25.8.1989. Am 13.12.1991; 26.4.1996.
34D Notice of intention to distribute (s 13 (3))
A notification under section 13 (3) of the Probate Act may be in the form prescribed.rule 78.34D: Ins 25.8.1989.
Division 5B Proceedings under section 18A of the Probate Act
pt 78, div 5B (Rules 78.34E–78.34J): Ins 13.12.1991.
34E Consent of or notice to affected persons
(1) Subject to rule 34J, an applicant for a grant in relation to an estate shall, in respect of any person whose interest in the estate might be affected by a declaration by the Court as to whether the Court is satisfied under section 18A of the Probate Act in respect of an informal testamentary document made by the deceased:(a) if the affected person is not a disable person—file a consent, in the form prescribed, of the affected person, orin respect of the informal testamentary document.(b) serve notice, in the form prescribed, on the affected person,(2) The grounds on which the Court may dispense with compliance with any of the requirements of subrule (1) include that:(a) the affected person is a disable person,(b) the affected person cannot be ascertained or cannot readily be ascertained,(c) the affected person, though ascertained, cannot be found, and(d) though the affected person 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 dispense with compliance for the purpose of saving expense.(3) The applicant for the grant shall serve notice, in the form prescribed, on each person who has lodged a caveat under rule 62A which is in force.pt 78, div 5B (Rules 78.34E–78.34J): Ins 13.12.1991.
34F Consenting or notified person to be bound by declaration
A person:(a) whose consent is filed under rule 34E (1) (a),(b) upon whom notice is served under rule 34E (1) (b) or rule 34E (3), orshall be bound by a declaration made by the Court as to whether it is satisfied under section 18A of the Probate Act in respect of any informal testamentary document referred to in the consent, or in the notice, to the same extent as if the person were a party at the time when the declaration was made, except where the declaration has been obtained by fraud or non-disclosure of material facts.(c) in respect of whom the Court has dispensed with compliance with the requirements of rule 34E (1) or rule 34E (3),pt 78, div 5B (Rules 78.34E–78.34J): Ins 13.12.1991.
34G Service of notice
(1) This rule applies to notices to be served under rule 34E.(2) A notice may be served outside the State.(3) Part 10 (which relates to service outside the State) does not apply to service of a notice.(4) A notice shall be served:(a) personally, or(b) where the person upon whom the notice is to be served is not a disable person, by sending the notice:(i) in the case of service within Australia—by certified mail to the person to be served, andand by obtaining from the postal authorities a written acknowledgement, purporting to be signed by that person, of receipt of the certified or registered article.(ii) in the case of service outside Australia—by registered post to the person to be served,(5) Service of a notice on a disable person shall not take effect before the appointment of a tutor for the disable person.pt 78, div 5B (Rules 78.34E–78.34J): Ins 13.12.1991.
34H Appearance by person upon whom notice is served
(1) A person upon whom a notice is served under rule 34E may enter an appearance in the proceedings.(2) Subject to subrule (3), Part 11 (which relates to appearance) applies to appearance by a person upon whom the notice is served as if that person were a defendant in the proceedings.(3) Part 11 rule 6 (which relates to a late appearance) and rule 8 (which relates to setting aside originating process, etc) shall not apply.(4) The time to be limited by the notice for the person upon whom it is served to enter an appearance, shall be in the case of service:(a) within the State or the Australian Capital Territory—not less than 14 days after service, or(b) elsewhere—not less than 28 days after service or such other time as the Court may order.(5) An appearance shall not be entered after the expiration of the time limited except by the leave of the Court.pt 78, div 5B (Rules 78.34E–78.34J): Ins 13.12.1991.
34I Person appearing becomes party
Where a person enters an appearance under rule 34H (1) in any proceedings within the time limited for filing an appearance in respect of a notice served on him under rule 34E in the proceedings:(a) that notice, and any notice served on the person under rule 34E in the proceedings after the entry of the appearance, is in this rule called a contested notice,(b) the person shall, upon entering the appearance, become a defendant in the proceedings and the proceedings shall continue as if he were joined as a defendant by the originating process and as if he were served with the originating process on the day on which he was served with the notice,(c) the person shall take part only in such parts of the proceedings:(i) as relate to the Court declaring whether it is satisfied under section 18A of the Probate Act in respect of each informal testamentary document to which a contested notice served under rule 34E (1) relates, or(ii) as the Court directs, and(d) the person shall cease to be a defendant in the proceedings upon the conclusion of those parts of the proceedings referred to in paragraph (c).pt 78, div 5B (Rules 78.34E–78.34J): Ins 13.12.1991.
34J Defended proceedings
Where there is a defendant to any proceedings for a grant the applicant for the grant:(a) shall not comply with rule 34E in respect of the defendant, and(b) shall serve on the defendant a copy of any informal testamentary document made by the deceased.pt 78, div 5B (Rules 78.34E–78.34J): Ins 13.12.1991.
Division 6 Contentious proceedings for grant or resealing
35 Application of Division
This Division applies to applications for a grant or for resealing where:(a) there is a defendant, other than a defendant who may take part in the proceedings only to the extent permitted by Part 78 rule 34I (c), or(b) a person is cited to see the proceedings.rule 78.35: Ins 30.6.1972. Am 13.12.1991.
36 Commencement of proceedings
(1) Where there is a defendant the proceedings shall be commenced by statement of claim.(2) Where there is no defendant the proceedings shall be commenced by summons.rules 78.36, 78.37: Ins 30.6.1972.
37 Admissions
Part 18 rule 3 (which relates to judgment or order on admissions) does not apply to proceedings to which this Division applies.rules 78.36, 78.37: Ins 30.6.1972.
37A Interest suits
cf RSC (Rev) 1965, O 76, r 9 (1) and (2).
(1) Where a defendant opposes a grant and the plaintiff disputes the standing of the defendant to do so, the plaintiff shall, in his statement of claim, allege the absence of standing.(2) Where a party claims a grant of administration and another party alleges absence of title of the claimant to do so, the party alleging absence of title shall allege facts which, if proved, will show that he has title to claim the grant.rule 78.37A: Ins 26.10.1979.
Division 7 Proceedings for revocation of grant
38 Deposit of grant
Where proceedings have been commenced for revocation of a grant the Court may on the application of the plaintiff, or of its own motion, order the executor or administrator to deposit the grant in the registry.rules 78.38, 78.39: Ins 30.6.1972.
39 Order before commencement of proceedings
In an urgent case, the Court may, on the application of a person who intends to commence proceedings for revocation of a grant, order the executor or administrator to deposit the grant in the registry to the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings.rules 78.38, 78.39: Ins 30.6.1972.
40 Commencement of non-contentious proceedings
Proceedings for revocation of a grant shall, where there is no defendant, be commenced by summons.rule 78.40: Ins 30.6.1972. Am 13.6.2003.
An application for revocation or rescission of a grant shall be supported by an affidavit of search in the registry of the Equity Division against the name of the deceased, showing whether or not any order for provision under the Family Provision Act 1982 has been made.rule 78.40A: Ins 25.5.1984.
41 Hearing
(1) Where there is no defendant, proceedings may be heard:(a) in the absence of the public, and(b) without the appearance before the Court of any person.(2) The proceedings shall be heard without an appointment being obtained for the hearing.rules 78.41, 78.42: Ins 30.6.1972.
42 Minute of order
(1) A draft minute of the order sought shall be lodged with the registrar before any order is made on the summons.(2) The order shall be entered.(3) The order may be entered at any time after the minute of it is signed.rules 78.41, 78.42: Ins 30.6.1972.
43 Commencement of contentious proceedings
Proceedings for revocation of a grant shall, where there is a defendant, be commenced by statement of claim which shall allege facts which, if proved, will show that the plaintiff has standing to claim revocation of the grant.rule 78.43: Ins 30.6.1972. Am 26.10.1979.
Division 8 Contentious proceedings generally
44 Cross-claims
(1) A party in proceedings may cross-claim for a grant or for resealing notwithstanding that notice of the intended application has not been published in compliance with section 42 of the Probate Act.(2) Where such notice of the intended application has not been published, the party shall, within 30 days of filing the cross-claim, cause notice of the intended application to be published in the manner and, with such variations as the circumstances require, in the form required by rule 10.rules 78.44–78.52: Ins 30.6.1972.
45 Intervention
(1) An application to intervene in proceedings for a grant shall be by motion on notice in the proceedings for an order that the person applying be added as a party.(2) Before filing the notice of motion the person applying shall enter an appearance in the proceedings.rules 78.44–78.52: Ins 30.6.1972.
Division 9 Citations
46 Request for issue
(1) Application for issue of a citation shall be made by filing a request in the form prescribed.(2) The person requesting issue of a citation shall:(a) file an affidavit verifying the averments contained in the proposed citation, and(b) lodge two copies of the proposed citation.rules 78.44–78.52: Ins 30.6.1972.
47 Citation to be settled
A citation must be settled by the Court before it is issued.rules 78.44–78.52: Ins 30.6.1972.
48 Seal
A citation shall be under seal.rules 78.44–78.52: Ins 30.6.1972.
49 Registrar to file copy
Where a citation is issued the registrar shall file a copy of it.rules 78.44–78.52: Ins 30.6.1972.
50 Citation to bring in abolished
(1) A citation to bring in a grant, will or other document shall not be issued.(2) This rule does not limit the power of the Court to order a person to deposit in the registry a grant, will or other document.rules 78.44–78.52: Ins 30.6.1972.
51 Citation to pray for administration
(1) A requirement under section 63 of the Probate Act of a person to pray for administration shall be by citation which may be in the form prescribed.(2) An answer to a citation to pray for administration shall be in the form prescribed.rules 78.44–78.52: Ins 30.6.1972.
52 Citation to take probate
(1) A requirement under section 69 of the Probate Act of an executor named in a will to take probate shall be by citation which may be in the form prescribed.(2) An answer to a citation to take probate shall be in the form prescribed.rules 78.44–78.52: Ins 30.6.1972.
53 Citation to see proceedings
(1) On the application of any party to proceedings to which Division 6 applies a citation may be issued against any person who is not a party to the proceedings but who has an adverse interest to the applicant notifying him that if he does not answer the citation by entering an appearance in the proceedings, the proceedings may be heard and determined in his absence.(2) A citation to see proceedings may be in the form prescribed.(3) Where a person cited to see proceedings has entered an appearance in the proceedings, he shall be entitled to such notice of the hearing or trial of the proceedings as if he were a defendant in the proceedings.rule 78.53: Ins 30.6.1972. Am 25.8.1989.
54 Time for answer to a citation
(1) This rule applies to any citation other than a citation to see proceedings.(2) In settling the citation the Court shall fix the time limited by the citation for answer to it.(3) Subject to subrule (4) the time limited by the citation for answer to it shall be:(a) in the case of service within the State—14 days,(b) in the case of service outside the State—three months.(4) The Court may, in settling the citation, fix shorter or longer periods, than the periods referred to in subrule (3).(5) Where the applicant for issue of the citation wishes shorter or longer periods to be fixed, he shall include in his request for issue of the citation a statement of the period or periods which he requests be fixed and file an affidavit in support of that period or those periods being fixed.rule 78.54: Ins 30.6.1972.
55 Service
(1) A citation shall be served personally upon the person cited.(2) A citation may be served outside the State.(3) Part 10 (which relates to service outside the State) does not apply.(4) Service of a citation on a disable person shall not be effected otherwise than in accordance with subrules (5) to (8).(5) Where the person to be served is a minor, the citation may be served:(a) if he is aged 16 years or upwards, on him,(b) on a parent of his or a guardian of his person or of his estate, or(c) if he has no parent and has no guardian of his person or of his estate, on a person with whom he resides or in whose care he is.(6) Where the person to be served is a incompetent person, the citation may be served:(a) if he has a curator, upon the curator, or(b) if he has no curator, on a person with whom he resides or in whose care he is.(7) The citation may be served on any person (including the disable person) who the Court may, before or after the service, approve.(8) A citation served pursuant to any of subrules (5) to (7) must be served in the manner required by the rules with respect to personal service of a document.rule 78.55: Ins 30.6.1972. Am 13.12.1991.
56 Appearance by person cited to see proceedings
(1) Subject to subrule (2), Part 11 (which relates to appearance) applies to appearance by a person cited to see proceedings as if the person cited were a defendant in the proceedings.(2) Part 11 rule 8 (which relates to setting aside originating process, etc) shall not apply.rule 78.56: Ins 30.6.1972. Am 23.12.1988.
57 Election to be a defendant
(1) A person cited to see proceedings may, except where he has lodged a caveat requiring proof in solemn form of a will to which the proceedings relate, include in his notice of appearance a statement that he elects to be a defendant in the proceedings.(2) Where the person cited elects under subrule (1) to be a defendant in the proceedings he shall thereupon become a defendant in the proceedings and the proceedings shall continue as if he were joined as a defendant by the originating process and he were served with the originating process on the day on which he was served with the citation to see the proceedings.(3) Where the person cited has lodged a caveat requiring proof in solemn form of a will to which the proceedings relate he may, after entering an appearance in the proceedings, apply for an order adding him as a party in the proceedings.rule 78.57: Ins 30.6.1972.
58 Disable persons
(1) This rule applies where a citation is served upon a disable person.(2) Service of the citation shall not take effect before the appointment of a tutor for the disable person.(3) The disable person may answer the citation by his tutor but not otherwise.(4) Part 63 (which relates to disability) does not apply to appointment of a tutor for the disable person.(5) Application for the appointment of a tutor for the disable person shall be by summons.(6) There shall be no defendant in the proceedings for appointment of the tutor.(7) The proceedings for appointment of the tutor shall be heard without an appointment being obtained for the hearing.(8) The proceedings for appointment of the tutor may be heard:(a) in the absence of the public, and(b) without the appearance before the Court of any person.(9) A draft minute of the order sought shall be lodged with the registrar before any order is made on the summons.(10) The order shall be entered.(11) The order may be entered at any time after the minute of it is signed.(12) Where an incompetent person has a curator who has or may be given authority, under the Protected Estates Act 1983, to answer the citation on behalf of the incompetent person, no person other than the curator shall, unless the Court otherwise orders, act as tutor.(12A) (Repealed)(13) A tutor shall not be appointed unless:(a) he is the person applying for appointment, or(b) evidence of his consent to act as tutor is furnished.(14) Where a citation to see proceedings has been served upon a disable person and a tutor of the disable person is appointed to answer the citation, the appointment shall extend to the tutor electing on behalf of the disable person to become a defendant in the proceedings in which the citation was served and defending those proceedings (including cross-claiming in them).rule 78.58: Ins 30.6.1972. Am 28.6.1974; 29.6.1984; 22.5.1998.
59 Application of Part 63 where disable person cited elects to become a defendant
Where a disable person elects by his tutor to become a defendant in the proceedings in which the citation was served, Part 63 (which relates to disability) applies as if his tutor had been appointed as provided by that Part.rule 78.59, headnote: Am 25.8.1989.rule 78.59: Ins 30.6.1972.
60 Proof of service of citation to see
A party at whose request a citation to see proceedings has been issued shall not, without the leave of the Court, be entitled to be heard at the hearing or trial of the proceedings unless:(a) the person cited has entered an appearance in the proceedings, or(b) where the person cited has not entered an appearance in the proceedings, the party at whose request the citation has been issued has filed:(i) an affidavit of service of the citation on the party cited, or(ii) an affidavit stating that the citation has not been served on the party cited and explaining why it has not been served.rule 78.60: Ins 30.6.1972. Subst 13.12.1991.
Division 10 Caveats
61 Caveat in respect of grant
(1) A person claiming to have an interest in an estate may lodge in the registry a caveat in the form prescribed in respect of any grant or reseal being made in the estate.(2) The caveat shall state fully the nature of the interest claimed by the caveator and an address for service.(3) Where a person, to the knowledge of the caveator, is making or is intending to make application for a grant or resealing in the estate, the caveator shall, within 7 days of the lodging of the caveat, serve a copy of the caveat on him.rules 78.61, 78.62: Ins 30.6.1972.
62 Caveat for solemn form
(1) A person having an interest in an estate may lodge in the registry a caveat in the form prescribed requiring proof in solemn form of any will.(2) The caveat shall state fully the nature of the interest of the caveator and an address for service.(3) Where a person, to the knowledge of the caveator, is making or intending to make application for a grant or reseal in the estate, the caveator shall, within 7 days of the lodging of the caveat, serve a copy of the caveat on him.rules 78.61, 78.62: Ins 30.6.1972.
62A Caveat in respect of informal testamentary document
(1) A person, who claims to be an affected person in relation to an estate and who is not a defendant to proceedings for a grant in relation to the estate, may:(a) prior to service on that person of a notice under rule 34E in relation to that estate, orlodge in the registry a caveat in the form prescribed in respect of any grant being made in the estate unless the caveator is given an opportunity to be heard on the question of whether the Court should be satisfied under section 18A of the Probate Act in respect of a document made by the deceased.(b) by leave of the Court, at any time before grant,(2) The caveat shall state fully the nature of the interest claimed by the caveator and an address for service.(3) Where a person, to the knowledge of the caveator, is making or is intending to make application for a grant in the estate, the caveator shall, within 7 days of the lodging of the caveat, serve a copy of the caveat on the person.(4) A caveat lodged under subrule (1) shall cease to have effect:(a) where the caveator is served with a notice under rule 34E (3) in respect of the estate to which the caveat relates—upon the expiration of the time limited for filing an appearance, orwhichever first occurs.(b) where the caveator is made a defendant in the proceedings for a grant in respect of the estate to which the caveat relates—when the caveator is made a defendant,rule 78.62A: Ins 13.12.1991.
63 Duration
(1) A caveat shall take effect as of the date of lodgment and shall, unless the Court otherwise orders, remain in force for 6 months.(2) The Court may extend the period of duration of a caveat.rules 78.63–78.68: Ins 30.6.1972.
64 Leave to withdraw caveat—no proceedings for grant
(1) This rule applies to an application for leave to withdraw a caveat where there are no proceedings for a grant or resealing in the estate.(2) The application shall be made by summons.(3) There shall be no defendant in the proceedings for leave.(4) A draft minute of the order sought shall be lodged with the registrar before any order is made on the summons.(5) The order shall be entered.(6) The order may be entered at any time after the minute of it is signed.rules 78.63–78.68: Ins 30.6.1972.
65 Leave to withdraw caveat—proceedings for grant
(1) This rule applies to an application for leave to withdraw a caveat where there are proceedings for a grant or resealing in the estate.(2) Where the caveator has not entered an appearance in the proceedings for grant or resealing, he shall do so.(3) The application for leave to withdraw the caveat shall be made by motion on notice in the proceedings.rules 78.63–78.68: Ins 30.6.1972.
66 Withdrawal
(1) Where leave is given to withdraw a caveat, the caveator may withdraw it by himself or his solicitor writing in the margin of the caveat “I withdraw this caveat” and dating and signing the endorsement.(2) Where a caveator withdraws a caveat he shall, within 7 days of the withdrawal, serve notice of the withdrawal upon any person who, to the knowledge of the caveator, is making or intending to make application for a grant or for resealing in the estate.rules 78.63–78.68: Ins 30.6.1972.
67 Recoupment of costs
Where a caveat is withdrawn, and the person on whose application a grant or resealing is made is unable to recover from the caveator costs which the caveator has been ordered to pay to him, that person shall be entitled to be recouped by the estate the amount of the costs properly incurred by him in addition to other costs to which he is entitled out of the estate.rules 78.63–78.68: Ins 30.6.1972.
68 Citation of caveator to see proceedings
Where there is in force a caveat requiring proof of a will in solemn form the caveator shall, in proceedings for a grant or for resealing in which the plaintiff seeks to prove a will to which the caveat relates, be cited to see the proceedings.rules 78.63–78.68: Ins 30.6.1972.
69 Order that caveats cease to be in force
(1) Where a person has applied or intends to apply for:(a) a grant and there is in force a caveat, or more than one caveat, in respect of any grant being made in the estate, orthat person may apply for an order that the caveat, or each of the caveats, cease to be in force in respect of the application or the intended application.(b) a reseal and there is in force a caveat, or more than one caveat, in respect of a reseal being made in the estate,(2) The application shall be made:(a) where the person has commenced proceedings for a grant or resealing—by motion in the proceedings, or(b) otherwise—by summons.(3) The caveator, or each of the caveators, shall be a defendant in the proceedings.(4) Where in respect of the caveat, or any of the caveats, the Court considers that the evidence does not show:(a) that the caveator has an interest in the estate or has a reasonable prospect of establishing such an interest, andthe Court may order that that caveat cease to be in force in respect of the intended application.(b) some matter occasioning doubt as to whether the grant ought to be made,(5) Part 13 (which relates to summary disposal) does not apply to the proceedings.(6) Where the Court does not, pursuant to subrule (4) order that the caveat, or each of the caveats, cease to be in force in respect of the intended application, the Court may give such directions as appear best adapted for the just, quick and cheap determination of what grant or resealing, if any, should be made in the estate and of related matters.(7) Directions which the Court may give pursuant to subrule (6) include a direction to a caveator to commence proceedings.(8) Where the Court, pursuant to subrules (6) and (7) directs a caveator to commence proceedings, it may order that if the caveator does not commence the proceedings within such time as the Court fixes, the caveat shall cease to be in force in respect of the intended application referred to in subrule (1) or generally.(9) An order under subrule (8) may be made at the time the caveator is directed to commence proceedings or at any subsequent time.rule 78.69: Ins 30.6.1972. Am 13.12.1991; 22.5.1992.
70 Proceedings by statement of claim
(1) Where there is in force a caveat under rule 61 (1) in respect of any grant or resealing being made in an estate, proceedings for a grant or for resealing in the estate shall be commenced by statement of claim.(2) Unless the Court otherwise directs, the caveator shall be a party in the proceedings.rule 78.70: Ins 30.6.1972. Am 13.12.1991.
Division 11 Accounts and commission
71 Time for filing etc accounts
(1) An executor or administrator of the estate of a person who died before 31 December 1981 shall file his accounts within 12 months after grant or resealing.(2) Any person who is required to comply with section 85 (1AA) of the Probate Act (which section relates to certain executors or administrators of the estates of persons who die on or after 31 December 1981) shall verify and file or verify, file and pass his accounts within 12 months after grant or resealing.rule 78.71: Ins 30.6.1972. Subst 24.12.1981.
72 Service of notice or order under s 87
A notice or order under section 87 of the Probate Act may be served by sending it by pre-paid post to the executor, administrator or trustee at his address for service stated in the originating process for the grant or resealing.rules 78.72, 78.73: Ins 30.6.1972.
73 Extension of time
(1) An executor or administrator may, in the proceedings for the grant or the resealing, move for any order extending the period referred to in rule 71, including an order extending the period until the further order of the Court, without the prior filing or service of notice of the motion.(2) Where an order has been made under section 87 of the Probate Act requiring an executor, administrator or trustee to show cause, any application for an order extending the period referred to in rule 71 shall be made on the day appointed for showing cause.(3) Except where subrule (2) applies, a draft minute of the order sought shall be lodged with the registrar before any order is made on the motion.(4) An order extending the period referred to in rule 71 must be entered.(5) The order may be entered at any time after the minute of it is signed.rules 78.72, 78.73: Ins 30.6.1972.
74 Order to file etc accounts
Proceedings for an order that an executor, administrator or trustee of the estate of a deceased person:(a) file an inventory,(b) verify and file an inventory,(c) file accounts,(d) verify and file accounts,(e) file and pass accounts,(f) verify, file and pass accounts, orshall be commenced by summons.(g) pass accounts filed,rule 78.74: Ins 30.6.1972. Subst 24.12.1981.
75 Commencement of proceedings for passing accounts or for commission
Proceedings by an executor, administrator or trustee for:(a) an order passing accounts, orshall be commenced by summons.(b) an order passing accounts and for commission,rule 78.75: Ins 30.6.1972. Am 19.8.1994. Subst 22.11.1996.
75A Excessive commission
Proceedings for an order under section 86A of the Probate Act (which subsection relates to excessive commission, etc) shall be commenced by summons.rule 78.75A: Ins 24.12.1981.
76 Notice to be published
(1) At least 14 days before filing the summons under rule 75, the plaintiff shall cause to be published a notice in the form prescribed of:(a) the filing of the accounts, and(b) the order or orders claimed in the proceedings.(2) The notice shall be published:(a) if the deceased was resident at the date of his or her death in the State—in a newspaper circulating in the district where the deceased resided, or(b) otherwise—in a Sydney daily newspaper.(3) The plaintiff shall file an affidavit of compliance with this rule.rule 78.76: Ins 30.6.1972. Am 1.10.1976; 19.8.1994; 22.11.1996.
77 Sureties
(1) At least 14 days before filing the summons under rule 75 the plaintiff shall serve upon any surety to any administration bond in the estate a copy of the notice referred to in subrule (1) of rule 76.(2) The plaintiff shall file an affidavit of compliance with subrule (1).(3) Instead of or in addition to complying with subrules (1) and (2) in respect of any surety, the plaintiff may file the consent in the form prescribed of that surety to an order passing the accounts and an affidavit in the form prescribed verifying the consent.rule 78.77: Ins 30.6.1972. Am 22.11.1996.
77A Objection prior to proceedings
(1) Any person (the objector) may, prior to the filing of a summons under rule 75, by filing a notice in the form prescribed give notice of his or her intention to object to the passing of accounts or the allowance of commission.(2) The address for service shown in the notice shall be the objector’s address for service in any proceedings to which the notice relates.(3) The registrar shall serve the notice on any person who is or becomes an applicant for or has obtained a grant or resealing in respect of the deceased to whom the notice relates.(4) As soon as practicable after commencing proceedings under rule 75, the plaintiff shall serve the summons on the objector.rule 78.77A: Ins 22.11.1996.
78 Inspection and appearance
(1) Where proceedings have been commenced for:(a) an order passing accounts, orand the hearing of the proceedings has not been completed:(b) an order passing accounts and for commission,(c) any person may, unless the registrar otherwise directs, inspect the accounts without the leave of the Court, and(d) any person who seeks to object to the passing of the accounts or the allowance of commission shall, at any time before completion of the hearing, enter an appearance in the proceedings.(2) A person entering an appearance under subrule (1) shall be a defendant in the proceedings.rule 78.78: Ins 30.6.1972. Subst 19.8.1994. Am 22.11.1996.
79 Vouching
Unless the Court otherwise directs, the accounts shall be vouched:(a) in the absence of the public,(b) without the appearance before the Court of any person, and(c) without an appointment being obtained for the vouching.rules 78.79, 78.80: Ins 30.6.1972. Subst 19.8.1994; 22.11.1996.
80 Court may require further evidence, documents and notices
On an application under rule 75, the Court may require further evidence to be furnished, further documents to be filed, and notices to be given.rules 78.79, 78.80: Ins 30.6.1972. Subst 19.8.1994; 22.11.1996.
81 Certificate
(1) Upon the conclusion of the vouching the registrar shall inform the plaintiff of matters necessary for preparation by the plaintiff of a draft minute of a certificate by the registrar of the vouching of the accounts.(2) The certificate vouching the accounts shall certify as to:(a) the correctness of the accounts,(b) the balance of the accounts, and(c) such other information as the registrar may direct.(3) Where the plaintiff seeks commission, the certificate shall in addition certify as to:(a) the amount of capital realised,(b) the amount of income collected,(c) the value of any assets transferred to beneficiaries, andduring the period of the accounts.(d) where a business was carried on—the gross receipts and net profit earned or loss incurred,(4) The plaintiff shall lodge the draft minute with the registrar.(5) The registrar shall sign a correct minute of his or her certificate.(6) The registrar may of his or her own motion set aside or vary the certificate.rule 78.81: Ins 30.6.1972. Subst 19.8.1994.
82 (Repealed)
rule 78.82: Ins 30.6.1972. Rep 19.8.1994.
83 Order passing accounts
(1) This rule applies where:(a) there is no defendant in the proceedings,(b) the plaintiff does not seek commission, and(c) the registrar has signed a certificate under rule 81.(2) The plaintiff shall file a draft minute of order passing the accounts.(3) The Court may make the order passing the accounts without the appearance before it of any person.rule 78.83: Ins 30.6.1972. Subst 19.8.1994; 22.11.1996.
84 (Repealed)
rule 78.84: Ins 30.6.1972. Rep 19.8.1994.
85 Commission
(1) Where the plaintiff seeks commission he or she shall file with the draft minute of certificate referred to in rule 81:(a) an affidavit in support of the application, and(b) where the accounts were not filed within the time fixed by the rules or any order of the Court—an affidavit explaining the delay.(2) Upon signing a correct minute of his or her certificate pursuant to rule 81, the registrar may give an appointment for hearing of the application.rule 78.85: Ins 30.6.1972. Subst 19.8.1994.
86 Renunciation
(1) Where the plaintiff files a renunciation of commission, the accounts shall be allowed in accordance with the indemnity under section 86 of the Probate Act.(2) The renunciation shall be filed not later than a reasonable time before the hearing of the proceedings.rules 78.86, 78.87: Ins 30.6.1972.
87 Notice
The Court may order the plaintiff to give notice of the proceedings to any person.rules 78.86, 78.87: Ins 30.6.1972.
88 (Repealed)
rule 78.88: Ins 30.6.1972. Subst 23.9.1988. Rep 13.12.1991.
Division 12 Acknowledgments
89 Form of acknowledgment
An acknowledgment for the purposes set out in section 83 of the Probate Act shall be in the form prescribed.rules 78.89, 78.90: Ins 30.6.1972.
Division 13 Delegation
90 Forms
(1) Notice of appointment of the Public Trustee or a trustee company by an executor or administrator pursuant to the provisions of section 75A of the Probate Act shall be in the form prescribed.(2) A deed of appointment of the Public Trustee or a trustee company by an executor or administrator pursuant to the provisions of section 75A of the Probate Act shall be in the form prescribed.(3) Notice of objection to the appointment of the Public Trustee or a trustee company pursuant to the provisions of section 75A of the Probate Act shall be in the form prescribed.rules 78.89, 78.90: Ins 30.6.1972.
Division 14 Distribution of assets
pt 78, div 14: Ins 13.12.1991.
91 Notice of intended distribution
cf Practice Note, 60 WN (NSW) 123.
(1) A notice under section 92 of the Probate Act shall be published:(a) if the deceased was resident at the date of his death in the State—in a newspaper circulating in the district where the deceased resided, or(b) otherwise—in a Sydney daily newspaper.(2) The notice may be in or to the effect of Form 121 of Schedule F.rule 78.91: Ins 4.5.1973. Subst 13.12.1991.
Part 79 Court of Disputed Returns
pt 77, 77.div 35: Ins 6.3.1992.
Division 1 General
1 Application of Part
This Part applies to proceedings in the Court in the exercise of its jurisdiction as the Court of Disputed Returns.rules 79.1–79.19: Ins 27.5.1977.
2 Interpretation
In this Part, unless the subject matter otherwise indicates or requires:Electoral District means the Electoral District for which the election was held, andsubject Act means the Parliamentary Electorates and Elections Act 1912.rules 79.1–79.19: Ins 27.5.1977.
3 Assignment of business
Proceedings to which this Part applies are assigned to the Common Law Division.rules 79.1–79.19: Ins 27.5.1977.
The rules, other than this Part, so far as applicable and not inconsistent with the subject Act and this Part, apply to proceedings to which this Part applies.rules 79.1–79.19: Ins 27.5.1977.
5 Appointment of solicitor
cf Pt 66, r 5.
Where, after consent or leave is given to a party pursuant to section 171 of the subject Act to be represented by a solicitor and the party appoints a solicitor to act for him in the proceedings, the party shall file notice of the appointment and serve the notice on all other parties.rules 79.1–79.19: Ins 27.5.1977.
Division 2 Disputed elections and returns
6 Application of Division
This Division applies to proceedings under Division 1 of Part 6 of the subject Act.rules 79.1–79.19: Ins 27.5.1977.
7 Interpretation
For the purposes of rule 4, unless the context or subject matter otherwise indicates or requires:plaintiff means petitioner, anddefendant means respondent.rules 79.1–79.19: Ins 27.5.1977.
8 Commencement of proceedings
Proceedings in the Court shall be commenced by petition in the prescribed form, joining as respondent every person the validity of whose election or return is disputed.rules 79.1–79.19: Ins 27.5.1977.
9 Publication
cf HCR, O 68, r 3.
The petitioner shall, forthwith after filing the petition:(a) publish it in the Gazette, and(b) publish a notice in the prescribed form in a newspaper circulating in the Electoral District.rules 79.1–79.19: Ins 27.5.1977.
10 Service of petition
(1) The petitioner shall:(a) at the request of the Electoral Commissioner, serve the petition on the Electoral Commissioner personally,(b) within seven days after filing the petition, serve the petition on each respondent, other than the Electoral Commissioner, personally.cf HCR, O 68, r 4.(2) The request of the Electoral Commissioner under subrule (1) may be added to his notice of appearance.rules 79.1–79.19: Ins 27.5.1977.
11 Death of party
(1) Where a sole petitioner dies before the trial, his solicitor or, if he had no solicitor, the respondent on learning of his death, shall file notice of the death.cf HCR, O 68, r 12.(2) Where a respondent (other than the Electoral Commissioner) dies before the trial, his solicitor or, if he had no solicitor, the petitioner on learning of his death, shall file notice of the death.cf Representation of the People Act, 1949 (Eng), s 134 (1) and Election Petition Rules, 1960 (Eng), r 16.(3) The Prothonotary shall publish notice of the death in a newspaper circulating in the Electoral District.(4) The notice shall add a statement to the effect that any person who might have been a petitioner may, not later than 28 days after the publication of the notice, apply by motion to the Court at such time and place as the Court may appoint, to be substituted as a petitioner or as a respondent as the case may require.rules 79.1–79.19: Ins 27.5.1977.
12 Respondent not opposing petition
(1) Where, before the trial of a petition, a respondent (other than the Electoral Commissioner) files a notice that he does not intend to oppose a petition, he shall serve the notice on the petitioner and publish the notice in a newspaper circulating in the Electoral District.cf Representation of the People Act, 1949 (Eng), s 134 (1), and Election Petition Rules, 1960 (Eng), rr 15, 16.(2) A notice under subrule (1) shall add a statement to the effect that any person who might have been a petitioner may, not later than 28 days after the publication of the notice, apply by motion to the Court at such time and place as the Court may appoint to be substituted as a respondent.(3) A respondent who has filed a notice under subrule (1) shall not be allowed to appear or act as a party against the petition.(4) Where a respondent files a notice under subrule (1), the Prothonotary shall report that fact to the Clerk of the Legislative Assembly.rules 79.1–79.19: Ins 27.5.1977.
13 Substitution of petitioner or respondent
(1) The Court may, on application by a person who might have been a petitioner, order that that person be substituted as a petitioner or as a respondent, as the case may require, and may make further orders for the conduct of the proceedings which may include orders relating to:(a) service of the order and other documents in the proceedings,(b) amendment, and(c) the sum required under section 158 of the subject Act as security for costs.cf HCR, O 68, r 11 and Representation of the People Act, 1949 (Eng), ss 127 (1), 134 (1).(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 dispense with entry of appearance by the new.cf Part 8, r 11 (2).rules 79.1–79.19: Ins 27.5.1977.
14 Electoral Commissioner
The Electoral Commissioner may apply to the Court under section 160 of the subject Act (which section relates to leave to enter an appearance) by motion in the proceedings.rules 79.1–79.19: Ins 27.5.1977.
15 Time limited for entry of appearance
cf Pt 7, r 5.
The time limited for entry of an appearance is:(a) in the case of the Electoral Commissioner, subject to any order of the Court—14 days after leave is granted to him to enter an appearance,(b) in the case of a respondent (other than the Electoral Commissioner)—14 days after service of the petition upon him,(c) in the case of any other person who might have been a petitioner—14 days after the publication of the petition in the Gazette.rules 79.1–79.19: Ins 27.5.1977.
16 No step without appearance
cf Pt 11, r 22.
A person, other than a petitioner or the Electoral Commissioner, shall not, except by leave of the Court, take any step in any proceedings unless, before taking the step, he has filed a petition under the subject Act or has entered an appearance in the proceedings.rules 79.1–79.19: Ins 27.5.1977.
17 Particulars
cf HCR, O 68, r 9.
The Court may order any party to file and serve on any other party particulars or further and better particulars of any matter alleged by him.rules 79.1–79.19: Ins 27.5.1977.
18 Motions
cf Pt 19, r 1.
An interlocutory or other application, in or for the purposes of or in relation to the proceedings, shall be made by motion under the rules.rules 79.1–79.19: Ins 27.5.1977.
19 Discontinuance
cf Representation of the People Act, 1949 (Eng), s 128.
(1) Proceedings may not be discontinued without the leave of the Court.cf HCR, O 68, r 11.(2) Where there are two or more petitioners, an application for leave under subrule (1) may not be made, except with the consent of all the petitioners.cf Pt 21, rr 1, 4.(3) The Court may give leave under subrule (1) on terms.(4) An application under subrule (1) should be made by motion at such time and place as the Court appoints.(5) The notice of motion for leave under subrule (1) shall state the grounds on which the application is made and add a statement to the effect that, on the hearing of the motion, any person who might have been a petitioner in respect of the election may apply to the Court to be substituted as a petitioner.(6) Not less than 14 days before the day appointed under subrule (4), the petitioner shall publish the notice of motion in a newspaper circulating in the Electoral District.(7) Evidence on an application for leave under subrule (1) shall include evidence denying, subject to any specified exceptions:(a) that any agreement or terms of any kind whatsoever has or have been made, andin relation to the discontinuance in respect of which leave is sought.(b) that any undertaking has been entered into,rules 79.1–79.19: Ins 27.5.1977.
20 Lists of objections to votes
(1) This rule applies where the petition (not being a petition merely claiming a fresh count of the votes counted at the election) claims the seat for a person not returned, alleging that that person had a majority of valid votes.cf HCR, O 68, r 7.(2) Each party shall, not later than 14 days before the day appointed for the trial, serve on the opposite party a list of the votes or class of votes which he contends were improperly admitted or improperly rejected, stating, in respect of each, the grounds of the contention.cf Election Petition Rules, 1960 (Eng), r 10 (1).(3) A contention under subrule (2) by a party shall not be entertained upon a ground not specified in his list, except with the leave of the Court.(4) The Court may give leave under subrule (3) on terms.rules 79.20, 79.21: Ins 27.5.1977. Am 26.9.1986.
21 Respondent’s contention of undue election
cf HCR, O 68, r 8.
Where a petition claims a seat for a person not returned and a respondent wishes to contend, upon a ground not mentioned in rule 20 (2), that that person was not duly elected, he shall, not later than 14 days before the day appointed for the trial, serve on the petitioner a statement of the facts upon which he intends to rely and the grounds of the contention.rules 79.20, 79.21: Ins 27.5.1977. Am 26.9.1986.
22 Trial
(1) The trial shall be held at a time and place to be appointed by the Court at the request of a party.cf HCR, O 68, r 10 (2).(2) Not less than 14 days’ notice of the time and place appointed shall:(a) be given by the party obtaining the order to the other parties, and(b) be published by the party obtaining the order in a newspaper circulating in the Electoral District.(3) The time and place of trial may be varied from time to time by the Court.(4) This rule does not affect the powers of the Court as to adjournment.rules 79.22–79.31: Ins 27.5.1977.
23 Evidence generally
Part 36 (which relates to evidence generally) applies on the trial of a petition as it applies on a trial in proceedings commenced by statement of claim.rules 79.22–79.31: Ins 27.5.1977.
Division 3 Qualifications and vacancies
24 Application
This Division applies to proceedings on a reference under Division 2 of Part 6 of the subject Act.rules 79.22–79.31: Ins 27.5.1977.
25 Interpretation
In this Division, unless the context or subject matter otherwise indicates or requires, subject statement means a statement mentioned in section 175C of the subject Act.rules 79.22–79.31: Ins 27.5.1977.
26 Application of rules
For the purposes of rule 4, the expression stated case in the rules, except Part 32 rule 2 (which relates to commencement of proceedings), includes the subject statement.rules 79.22–79.31: Ins 27.5.1977.
27 Transmitting of documents
(1) The subject statement is transmitted to the Court under section 175C of the subject Act by filing it in the registry.(2) Proceedings, papers, reports or documents are transmitted under section 175C of the subject Act by lodging them in the registry.rules 79.22–79.31: Ins 27.5.1977.
28 Referring of question
A question is referred under Division 2 of Part 6 of the subject Act when the Speaker files with the subject statement a summons claiming the determination of the question stated for determination in the subject statement.rules 79.22–79.31: Ins 27.5.1977.
29 Parties
The summons shall join the Speaker as plaintiff and, where the matter of the subject statement concerns an election or return or the qualification of a member of the Legislative Assembly, the person whose election or return is disputed or the member, as the case may be, as defendant.rules 79.22–79.31: Ins 27.5.1977.
30 Service
The Prothonotary shall serve the subject statement with the summons.rules 79.22–79.31: Ins 27.5.1977.
31 Publication
cf Court of Disputed Returns Rules, r (7).
The Prothonotary shall, forthwith after the summons and subject statement are filed:(a) publish them in the Gazette, and(b) where the matter of the subject statement concerns an election or return, publish a notice in the prescribed form in a newspaper circulating in the Electoral District.rules 79.22–79.31: Ins 27.5.1977.
Part 80 Companies (New South Wales) Code and Corporations Law
pt 77, 77.div 35: Ins 6.3.1992.
pt 80: Ins 30.6.1982.
pt 80, Heading: Am 21.12.1990.
Schedule 1: Ins 30.6.1982 (see erratum 9.7.1982).
Division 1 Preliminary
1 Interpretation
cf Companies Rules, 1968, r 4.
In this Part, unless the contrary intention appears:corporation has the same meaning as it has in section 5 (1) of the Code.Companies Regulations means the Companies (New South Wales) Regulations.liquidator includes a provisional liquidator.officer in relation to a corporation, has the same meaning as it has in section 5 (1) of the Code.prescribed newspaper means:(i) where the proceedings relate to a corporation the prescribed office of which is, or, where the corporation does not have a prescribed office, the principal place of business of which is, or the last known principal place of business of which was, situated within 50 kilometres of the General Post Office, Sydney—a daily newspaper circulating generally in Sydney,(ii) where the proceedings relate to any other corporation—a newspaper circulating generally in the district in which the prescribed office of the corporation is situated or, where the corporation does not have a prescribed office, in which the principal place of business of which is, or the last known principal place of business of which was, situated.prescribed office means:(a) where the corporation is a company—its registered office for the purposes of section 528 (1) of the Code,(b) where the corporation is a recognised company or a recognised foreign company—its principal office for the purposes of section 529 (1) of the Code,(c) where the corporation is a registered foreign company—its registered office for the purposes of section 530 (1) of the Code.the Code means the Companies (New South Wales) Code.the Company means the company in respect of which any proceedings are taken in the Court under the Code.
Subject to any order of the Court and subject to Part 80A rule 2 and the Supreme Court (Corporations) Rules 1999, this Part applies, making such changes as it is necessary to make, to proceedings under the Corporations Law as it applies to proceedings under the Companies (New South Wales) Code.rule 80.1A: Ins 21.12.1990. Am 10.12.1993; 24.12.1999; 19.12.2003.
1B Corporations Law: affidavit (s 459E (3))
An affidavit referred to in Section 459E (3) of the Corporations Law must:(a) be made:(i) by the person serving the demand,(ii) where the demand is served by more than one person—by one of those persons,(iii) where the, or a, person serving the demand is a corporation—by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation, or(iv) where the person serving the demand is the Crown—by an officer of the Crown having knowledge of the facts so far as they are known to the Crown,(b) set out the facts entitling the deponent under paragraph (a) to make the affidavit,(c) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,(d) state that the deponent believes those matters to be true, and(e) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.rules 80.1B, 80.1C: Ins 21.5.1993.
1C Corporations Law: affidavit (s 459Q (c))
An affidavit referred to in Section 459Q (c) of the Corporations Law must:(a) be made:(i) by the plaintiff,(ii) where there is more than one plaintiff—by one of them,(iii) where the, or a, plaintiff is a corporation by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation, or(iv) where the plaintiff is the Crown—by an officer for the Crown having knowledge of the facts so far as they are known to the Crown,(b) set out the facts entitling the deponent under paragraph (a) to make the affidavit,(c) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,(d) state that the deponent believes those matters to be true, and(e) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.rules 80.1B, 80.1C: Ins 21.5.1993.
1D Corporations Law: affidavit (s 596C)
(1) An affidavit referred to in section 596C of the Corporations Law must set out:(a) the facts relied on to establish that the applicant is an eligible applicant for the purposes of section 596B,(b) the facts relied on to establish the matters referred to in section 596B (1) (b), and(c) if production of books is to be required—the deponent’s belief that the books, the production of which is sought, are reasonably required for the purposes of the examination, and the grounds for that belief.(2) A summons under section 596A or 596B of the Corporations Law shall be in Form 154A.rule 80.1D: Ins 2.7.1993.
Division 2 Proceedings under the Code generally
2 Commencement of proceedings
(1) Proceedings in the Court on an application for relief under the Code shall be commenced by summons under Part 5 rule 3.cf CR 1968, r 23.(2) Nothing in subrule (1) prevents an application for relief under the Code being made by motion in existing proceedings.rule 80.2: Ins 30.6.1982. Am 25.6.1993; 13.6.2003.
3 Additions above title
cf CR 1968, r 7.
A summons in proceedings for relief under the Code shall bear, above the title, a reference to the name of the corporation to which the proceedings relate together with “and the Companies Code”.rules 80.3–80.5: Ins 30.6.1982.
4 Directing notice of any application etc
cf CR 1968, r 22 (a).
(1) The Court may, at any stage of proceedings under the Code, direct that notice of anything be given to any person or that any document be served on any person and give such further directions with respect to those matters or documents as it thinks fit.(2) This rule does not limit any other powers of the Court.rules 80.3–80.5: Ins 30.6.1982.
5 Leave to creditor etc to be heard etc
(1) In any proceedings under the Code, the Court may, on terms, grant to any person who is, or claims to be, a creditor, contributory or officer of the company or an officer of a creditor or contributory of the company, leave to be heard in the proceedings without becoming a party, and may at any time revoke leave so granted.(2) In any proceedings under the Code, the Court may, on terms, order that any person who is or claims to be a creditor, contributory or officer of the company be added as a defendant, and make orders for the further conduct of the proceedings.(3) Leave may be granted to a person under subrule (1) and an order may be made adding a person under subrule (2) on application by the person or by any party or of the Court’s own motion.(4) This rule does not affect the powers of the Court under Part 8 rule 8.rules 80.3–80.5: Ins 30.6.1982.
6 Minute of judgment or order
cf CR 1968, r 17 (1).
Notwithstanding Part 41 rule 13 (3), the registrar may, in proceedings under the Code, file or seal a minute of a judgment or order without a direction of the Court or request of a party.rule 80.6: Ins 30.6.1982. Subst 30.3.1990.
7 Inquiry as to creditors
cf CR 1968, r 14, 22 (c).
(1) The Court may direct an inquiry as to any debts, claims or liabilities or class thereof of or affecting any corporation to which any proceedings under the Code relate.(2) Where the Court directs an inquiry under subrule (1), rule 10 applies, with the necessary modifications, as it applies where the Court directs that a list of creditors be settled.rule 80.7: Ins 30.6.1982.
8 Registrar furnishing copy of summons etc
cf CR 1968, r 17 (5).
The registrar shall, upon payment of the fee (if any) fixed under the Act, furnish to any person claiming to be a contributory, creditor or officer of the Company, an office copy of the summons and affidavits which are in the custody of the registrar and are filed by by the plaintiff in support of an application for the winding up of the Company.rule 80.8: Ins 30.6.1982. Am 14.2.1986; 20.2.1987.
Division 2A Part II of the Code
pt 80, div 2A (Rule 80.8A): Ins 22.10.1982. Am 20.10.1989; 15.12.1989.
8A Appeal from Board (s 30R)
cf CR 1968, r 39.
The Companies Auditors and Liquidators Disciplinary Board may, on application in writing made to it before the expiration of the time limited by Part 51A rule 3 (1) (other than the time extended by the Court) for instituting an appeal from its decision under section 30R of the Code, grant, by notice in writing, an extension of that time and where it does so, it shall deliver the notice to the applicant who shall file the notice with the summons instituting the appeal.pt 80, div 2A (Rule 80.8A): Ins 22.10.1982. Am 20.10.1989; 15.12.1989.
Division 3 Parts III–XI of the Code
9 Applications under ss 73, 118, 122, 123, 125, 133 and 175
cf CR 1968, r 29.
(1) This rule applies to an application for an order under any of the provisions of the Code referred to in column 1 of the Table below:Table
10 Reduction of capital (s 123)
cf CR 1968, r 31.
(1) This rule applies where, on an application for an order under section 123 (5) of the Code, the Court fixes a date under section 123 (3) (a) of the Code.(2) Within seven days after the date fixed under section 123 (3) (a) of the Code, the Company shall:(a) make out a list of creditors, and(b) file an affidavit in Form 127 verifying the list.(3) Copies of the list shall be kept at the registered office of the Company and be available for inspection there at all times when the office is required to be open and accessible to the public.(4) Within seven days after the date of filing the affidavit under subrule (2) (b), the Company shall:(a) publish once in the Government Gazette and once in a prescribed newspaper a notice in Form 126, and(b) serve on each creditor whose name is entered on the list mentioned in subrule (2) (a) a notice in Form 128.(5) Within seven days after the expiry of the time fixed by the Court for creditors to send particulars of their claims to the solicitor for the Company, the Company shall file an affidavit in Form 129.(6) Where the Company contends that a person is not entitled to be entered on the list or disputes the amount of a debt or claim claimed by a person, the Company shall, unless the Company is willing to appropriate, as the Court directs, the full amount of the debt or claim, serve on the person a notice in Form 130.(7) The Court may, on the adjudication of claims:(a) allow any claim and fix the amount allowed,(b) direct that any claim be investigated in such manner as the Court thinks fit,(c) require any claimant to furnish particulars or evidence of his claim or produce any security relating to his claim, or(d) disallow any claim.(8) Where a claimant does not comply with a notice served on him under subrule (6), the Court may disallow his claim.(9) In subrules (7) and (8), claim includes part of a claim.rules 80.10–80.17: Ins 30.6.1982.
11 Reduction of capital: appointment for hearing (s 123)
cf CR 1968, r 32.
Where the Court settles the list under section 123 (3) (b) of the Code, the Court shall appoint a date for hearing of the proceedings on the application for the order under section 123 (5) of the Code.rules 80.10–80.17: Ins 30.6.1982.
12 Registration of transfer of shares etc (s 184)
(1) An application to the Court for an order for the issue of a summons under section 184 (3) of the Code may be made without serving the summons by which the application is made on any person.(2) A summons under section 184 (3) of the Code may be in Form 131.rules 80.10–80.17: Ins 30.6.1982.
13 Failure to comply with requirements of inspector (s 297)
cf CR 1968, r 209.
Part 77 rules 48, 49, 50 and 51 apply, making such changes as it is necessary to make, to proceedings under section 297 (2) of the Code as they apply to proceedings under section 10 (8) of the National Companies and Securities Commission (New South Wales) Act 1981.rules 80.10–80.17: Ins 30.6.1982.
14 Compromise with creditors etc (ss 315, 317)
cf CR 1968, r 23 (i).
(1) An application for relief under a subsection of section 315 of the Code, (which section relates to a compromise with creditors etc) other than under subsection (1) of that section, shall be made by motion in the proceedings on the application for the order under subsection (1) of that section.(2) Rule 9 applies to an application for an order under section 315 (4) or section 317 (1) of the Code as it applies to an application for an order under the provisions of the Code mentioned in rule 9 (1).(3) The Court may, on the application of any person whose rights are affected by a compromise or arrangement approved under section 315 (4) of the Code, fix or review the remuneration of the person appointed to administer the compromise or arrangement.rules 80.10–80.17: Ins 30.6.1982.
15 Oppression or injustice (s 320 (2))
Rules 18, 19, 20, 21 and 22 apply to an application for an order under section 320 (2) of the Code as they apply to an application for an order under section 364 (1) of the Code and as if for the reference in rule 18 (3) (e) to a paragraph of section 364 (1) of the Code there were a reference to a subparagraph of section 320 (1) (a) of the Code.rules 80.10–80.17: Ins 30.6.1982.
16 Release of official manager (s 355)
cf CR 1968, r 216.
A person applying for an order under section 355 (19) or section 355 (20) of the Code shall give notice of his application:(a) to every creditor who has proved his debt, and(b) to any creditor mentioned in the report referred to in section 335 (4) of the Code who has not proved his debt.rules 80.10–80.17: Ins 30.6.1982.
Division 4 Part XII of the Code (winding up)
17 Company Index: search (s 363)
cf CR 1968, r 44 (1).
Any person may, upon payment of the fee (if any) fixed under the Act, search in the Company Index kept in the registry against the name of the Company which is the subject of a winding up application or which is in the course of being wound up.rules 80.10–80.17: Ins 30.6.1982.
18 Application for a winding up order under s 364 (1)
(1) This rule applies to an application for an order under section 364 (1) of the Code.(2) The summons claiming the order may be in Form 132.(3) The evidence in support of the application shall include:(a) a statement of the statute under which the Company was incorporated,(b) a statement of the date of incorporation,(c) unless the Company is the plaintiff or has entered an appearance, proof of:(i) the address of its registered office at the date of search made under this subrule, being the latest address disclosed in a notice or annual return lodged with the Commission under section 84 (2) (b) (ia), section 85 (4) (fa), section 217 (1) or (3) or section 263 (1) of the Code,as ascertained by search made not earlier than three days before:(ii) the date of lodgment of the notice or return disclosing that address,(iii) if the summons was served on the Company by post—the date of posting, or(iv) if the summons was served otherwise—the date of service,(d) unless the Company is the plaintiff, the capacity in which the plaintiff makes the application,(e) the grounds of the application and a reference to the paragraph of section 364 (1) of the Code under which the plaintiff is proceeding.(4) Unless the Court otherwise orders, notice in Form 126 of the application shall, not earlier than three days after the date of service on the Company of the summons claiming the order and not later than seven days before the date of hearing, be published once in the Government Gazette and once in a prescribed newspaper.rule 80.18: Ins 30.6.1982. Am 22.10.1982; 12.7.1985; 20.4.1990.
19 Serial number: winding up
cf CR 1968, r 43.
The serial number assigned to the summons claiming an order for the winding up of the Company shall be borne by every document filed in proceedings in the winding up of the Company after the winding up order is made.rule 80.19: Ins 30.6.1982.
20 Notice of intention to appear
cf CR 1968, r 27, 28.
(1) This rule applies in proceedings on an application for a winding up order under the Code.(2) Where a person on whom the summons has not been served intends to appear on the hearing of the application, he shall add to his notice of appearance a note in Form 133.(3) The notice shall be served on the plaintiff before 1 in the afternoon of a day (being a day on which the registry is open for business) before the date appointed for hearing.(4) Where the plaintiff has received any notice mentioned in subrule (2) he shall, at or before the hearing, file a notice in Form 134.rule 80.20: Ins 30.6.1982 (see erratum 9.7.1982). Am 22.10.1982.
21 Substituted plaintiff in winding up application
cf CR 1968, r 52.
(1) Where a plaintiff, in proceedings on an application for a winding up order:(a) fails to take all the steps prescribed by these rules preliminary to the hearing,(b) seeks the leave of the Court to discontinue the proceedings,(c) consents to the proceedings being dismissed,(d) does not appear when the proceedings are called on for hearing,(e) does not claim the order at the hearing, orthe Court may, at any time, on terms, subject to the Code, on application of any person, make orders for the further conduct of the proceedings, including an order in Form 135 substituting that person for the former plaintiff.(f) does not obtain the order at the hearing,(2) Subrule (1) does not limit the powers of the Court under Part 8 rules 8–11.rules 80.21, 80.22: Ins 30.6.1982.
22 Discontinuance
Part 21 rule 2 (b) does not apply to proceedings on an application for a winding up order.rules 80.21, 80.22: Ins 30.6.1982.
22A Notice to liquidator of appointment
(1) Where an order for the winding up of a Company is made, the plaintiff shall:(a) complete two forms of notice in Form 135A,(b) leave a copy with, and obtain a sealed copy from, the proper officer of the Court,(c) serve the sealed copy on the liquidator appointed:(i) where the order is made before noon—before 5 in the afternoon,(ii) where the order is made in the afternoon—before noon of the following day.(2) A sealed copy is sufficiently served on a liquidator within the time prescribed in subrule (1) (c) if the information contained in the copy is transmitted to the liquidator’s facsimile transmission number by a means that reproduces, in the hands of the liquidator, that information as it appears in the copy.rule 80.22A: Ins 14.2.1986. Am 16.3.1990.
23 Form of winding up order
cf CR 1968, r 58.
A minute of a winding up order may be in Form 136.rule 80.23: Ins 30.6.1982.
23A Appeal from Registrar: winding up order
(1) An appeal shall lie to the Court from a winding up order made by a registrar.(2) Part 60 rules 9 and 11 to 15A shall apply, making such changes as it is necessary to make, to an appeal under subrule (1) as they apply to an appeal under Part 60 Division 3 (which relates to an appeal from a master to a Judge).(3) For the purpose of the application of subrule (2), Part 60 rules 9 and 11 to 15A shall be read as if:(a) “registrar” were substituted for “master”, andwhere appearing in those rules.(b) “Part 80 rule 23A” were substituted for “this Division”,rule 80.23A: Ins 25.10.1991.
24 Stay of proceedings against company (s 367)
Where an action or other civil proceeding against a company is pending in the Court in a Division, an application to the Court for an order under section 367 (6) of the Code may be made by motion in the action or proceeding in that Division.rule 80.24: Ins 30.6.1982.
24A Validation of dispositions of property etc (s 368)
An application for an order under section 368 (2) of the Code (which subsection relates to the validation of dispositions of property etc) shall be made by motion in the proceedings for the winding up order.rule 80.24A: Ins 22.10.1982.
25 Proceedings against a Company after a winding up order (s 371)
An application for leave under section 371 (2) of the Code may, where the proceedings in respect of which leave is sought have been commenced in a Division, be made by motion in those proceedings in that Division.rule 80.25: Ins 30.6.1982.
26 Appointment of provisional liquidator (s 372)
cf CR 1968, r 50 (3).
(1) An application for the appointment of a provisional liquidator under section 372 (2) of the Code shall be made by motion in the proceedings for the winding up order.(2) Any party obtaining an order under section 372 (2) of the Code shall:(a) complete two forms of notice in Form 136A,(b) leave a copy with, and obtain a sealed copy from the proper officer of the Court,(c) serve the sealed copy on the provisional liquidator appointed:(i) where the order is made before noon—before 5 in the afternoon,(ii) where the order is made in the afternoon—before noon of the following day,(d) publish once in the Government Gazette and once in a prescribed newspaper a notice in Form 137, and(e) serve an office copy of the minute of order on the provisional liquidator.(3) A sealed copy is sufficiently served on a provisional liquidator within the time prescribed in subrule (2) (c) and an office is sufficiently served under subrule (2) (e) if the information contained in the copy is transmitted to the provisional liquidator’s facsimile transmission number by a means that reproduces, in the hands of the provisional liquidator, that information as it appears in the copy.rule 80.26: Ins 30.6.1982. Subst 22.10.1982. Am 20.4.1990.
27 Notice to liquidator of appointment
cf CR 1968, r 55.
The registrar shall, forthwith after a person has been appointed liquidator or provisional liquidator, give notice to that person of his appointment.rules 80.27–80.33: Ins 30.6.1982.
28 Notice of appointment of liquidator
cf CR 1968, r 57.
Where the Court makes an order for the winding up of the Company and appoints a liquidator, the liquidator shall, not later than seven days after the order is made, publish a notice in Form 138 once in the Government Gazette and once in a prescribed newspaper.rules 80.27–80.33: Ins 30.6.1982.
29 Provisional liquidator (s 372)
cf CR 1968, r 50 (5).
(1) Subject to the Code and the rules and subject to any directions of the Court, a liquidator appointed provisionally under section 372 (2) of the Code shall have power to carry on the business of the Company and the powers specified in section 377 (2) (a)–(k) of the Code.(2) For the purpose of enabling the provisional liquidator to take out letters of administration or recover money as mentioned in section 377 (2) (h) of the Code, the money due shall be deemed to be due to the provisional liquidator himself.(3) The exercise by the provisional liquidator of the powers conferred by this rule is subject to the control of the Court, and any creditor or contributory may apply to the Court with respect to any exercise or proposed exercise of any of those powers.rules 80.27–80.33: Ins 30.6.1982.
30 Filling vacancy in office of liquidator (s 373)
cf CR 1968, r 89 (5).
A person applying to the Court for an order under section 373 (7) of the Code shall, not later than seven days before the date appointed for hearing, publish, in a prescribed newspaper, a notice of his intention to apply to the Court for the order.rules 80.27–80.33: Ins 30.6.1982.
31 Copy of report under s 375 (7) (a)
cf CR 1968, r 66.
The copy of the report required to be filed with the Court under section 375 (7) (a) of the Code shall be a copy certified in writing by the liquidator of the Company to be a true copy of the original report.rules 80.27–80.33: Ins 30.6.1982.
32 List of contributories (s 378 (1) (a))
cf CR 1968, r 140.
Where, in a winding up by the Court, a liquidator has settled a list or supplementary list of contributories, he shall, within 14 days after certifying it, file a copy of it and the certificate.rules 80.27–80.33: Ins 30.6.1982.
33 Liquidator to file resolutions
cf CR 1968, r 100.
(1) The liquidator appointed by the Court shall, after the passing of any resolution of a meeting of creditors, of contributories, of both or of the committee of inspection, file a copy certified by him of the resolution.(2) The certificate may be in Form 139.rules 80.27–80.33: Ins 30.6.1982.
34 (Repealed)
rule 80.34: Ins 30.6.1982. Subst 22.10.1982. Rep 24.2.1984.
35 Release of liquidator (s 381)
(1) A summons by which an application is made under section 381 (c) or section 381 (d) of the Code for an order that the liquidator be released shall bear a note “Section 382 (3) of the Companies (New South Wales) Code provides” and state the provisions of the subsection.(2) The liquidator shall file with a summons claiming an order mentioned in section 381 (c) or section 381 (d) of the Code a summary of receipts and payments in the winding up and a statement showing the position of the Company at the date of filing the summons.(3) The liquidator shall give notice of the application and copies of the summary and the statement:(a) to every creditor who has proved his debt, and(b) to every contributory.cf CR 1968, r 206.(4) The evidence in support of the application shall include statements in an affidavit by the liquidator to the following effect:(a) “To the best of my belief there has been no act done or default made by me in the administration of the affairs of the company or otherwise in relation to my conduct as liquidator which is likely to give rise to any liability to the company or any creditor or contributory (where applicable add except as disclosed in this affidavit)”,(b) “I am not aware of any claim made by any person that there has been any such act or default (where applicable add except as disclosed in this affidavit)”.rule 80.35: Ins 30.6.1982. Am 15.12.1989.
36 Report by the liquidator to the Court: stay of winding up (s 383)
cf CR 1968, r 73 (1); (As to s 384 of the Code (delivery of property to liquidator and calls), see rules 40–45.)
A report by the liquidator to the Court under section 383 (2) of the Code may be furnished to the Court by filing it in Form 140.rule 80.36: Ins 30.6.1982.
37 Special manager (s 385)
cf CR 1968, r 61.
(1) This rule applies to proceedings in the Court under section 385 of the Code (which section relates to a special manager).(2) The liquidator may file an unverified statement in support of the application, instead of an affidavit.(3) Security is sufficiently given if it is given for any winding up in which the person giving security is appointed a special manager.(4) The Court may at any time and from time to time give directions for the giving of security in a different amount to the amount for which security was previously given.(5) Where security is given to the satisfaction of a master he shall give a certificate to that effect.rule 80.37, reference, before hdg to: Ins 22.10.1982.rules 80.37–80.45: Ins 30.6.1982.
38 Accounting by special manager
cf CR 1968, r 62.
(1) Subject to any order of the Court under section 385 (2) (a) of the Code, the special manager shall furnish his accounts to the liquidator.(2) The accounts shall be verified by affidavit.(3) The affidavit may be in Form 141 and subscribed to the accounts.(4) When the accounts are approved by the liquidator, the totals of the receipts and payments shall be included by the liquidator in his accounts.rules 80.37–80.45: Ins 30.6.1982.
39 Default of special manager
cf CR 1968, r 64.
(1) Where any special manager is required by the rules or any direction of the Court to do anything and does not carry out the requirement, the liquidator shall apply to the Court for directions in respect of the default and the Court may make such orders and give such directions as the Court thinks fit.(2) Without limiting subrule (1), where a special manager is required by the rules or by any order or direction of the Court to pay into Court any sum shown by his account as due from him, and he does not comply with the requirement, the Court may charge him with interest at the rate prescribed for payment of interest by a receiver under Part 29 rule 5 (2) on that sum while in his possession as special manager.(3) This rule does not limit the powers of the Court as to the enforcement of orders or as to the punishment of contempt.rules 80.37–80.45: Ins 30.6.1982.
40 Requirement by liquidator to pay money etc (ss 384 (1) and 389)
cf CR 1968, r 136.
A requirement by a liquidator under section 384 (1) of the Code may be in Form 142.rules 80.37–80.45: Ins 30.6.1982.
41 Calls: sanction of committee of inspection (ss 384 (3), 389)
cf CR 1968, r 145 (1).
(1) In a winding up by the Court the liquidator shall, for the purpose of obtaining the sanction of the committee of inspection under section 389 (2) (a) of the Code:(a) convene a meeting of the committee by serving notice in Form 143 on every member of the committee so as to reach him not later than seven days before the date appointed for the meetings,(b) serve on every member of the committee, with the notice mentioned in paragraph (a), a statement in Form 144, and(c) publish notice of the meeting in Form 145 once in the Government Gazette and once in a prescribed newspaper or as the Court may direct.(2) The committee shall, before sanctioning the proposed call, consider representations (if any) made by any contributory to the liquidator or any member of the committee in writing before or at, or orally at, the meeting.(3) A resolution of the committee of inspection sanctioning a call may be in Form 146.rules 80.37–80.45: Ins 30.6.1982.
42 Application for leave to make a call (ss 384 (3), 389)
cf CR 1968, r 146.
(1) This rule applies to proceedings on an application for an order under section 389 (2) (a) of the Code (which section relates to leave to make a call).(2) The summons may be in Form 147.(3) The affidavit in support of the application may be in Form 148.(4) Subject to subrule (5), the summons shall be served on each contributory on whom it is proposed the call should be made.(5) The summons need not be served on the contributories where the Court directs that notice of the proposed call may be given by advertisement.(6) The advertisement may be in Form 149.(7) The copy of the summons served on a contributory may show only the amount claimed to be owing by him.(8) The order granting leave may be in Form 150.rules 80.37–80.45: Ins 30.6.1982.
43 Filing notice of amount of call per share (ss 384 (3), 389)
cf CR 1968, r 146.
Where in a winding up by the Court the liquidator is authorised under section 389 (2) (a) of the Code to make a call, he shall file a notice in Form 151 showing the amount of the call per share.rules 80.37–80.45: Ins 30.6.1982.
44 Call on contributories (ss 384 (3), 389)
cf CR 1968, r 147.
(1) In a winding up by the Court, the liquidator shall make a call on a contributory by serving a notice in Form 152 or Form 153 as the case may require, on the contributory.(2) The Court may direct that notice of the order granting leave to make the call or of the resolution sanctioning the making of the call be advertised.rules 80.37–80.45: Ins 30.6.1982.
45 Application for order for payment of call (s 384 (3) (b))
cf CR 1968, r 148; (As to s 385 of the Code (special manager), see rules 37–39.)
Evidence in support of an application for an order under section 384 (3) (b) of the Code (which relates to an order for payment of a call) shall include an estimate of the amount owing by each contributory (if more than one) in respect of the costs of the application and of carrying it into effect and a statement that the estimate is based on an apportionment of the costs of the application equally among the contributories who have not paid the call.rules 80.37–80.45: Ins 30.6.1982.
46 Powers of liquidator (s 389)
Subject to the Code, the rules and the Companies Regulations, the powers and duties conferred or imposed on the Court by Part XII of the Code in respect of:(a) the holding and conducting of meetings to ascertain the wishes of creditors and contributors,(b) the paying, delivering, conveyance, surrender or transfer of money, property or books to the liquidator,(c) the making of calls and the adjusting of the rights of contributories among themselves and the distribution of any surplus among the persons entitled to it, andmay be exercised and shall be performed by the liquidator as an officer of the Court and subject to the control of the Court.(d) the fixing of a time within which debts and claims must be proved,rule 80.46, reference, before hdg to: Ins 22.10.1982.rules 80.46–80.50: Ins 30.6.1982.
47 Proceedings against company after voluntary winding up (ss 401, 402)
An application for leave under section 401 (2) or section 402 (2) of the Code may, where the proceedings in respect of which leave is sought have been commenced in a Division, be made by motion in the proceedings.rules 80.46–80.50: Ins 30.6.1982.
48 Complaints concerning liquidator (s 420 (1))
A complaint to the Court under section 420 (1) of the Code shall be filed with the summons claiming an inquiry under the subsection in respect of the matter complained of.rules 80.46–80.50: Ins 30.6.1982.
49 Report concerning liquidator (s 420 (2))
cf CR 1968, r 211.
(1) A report to the Court by the Commission under section 420 (2) of the Code shall be filed with the summons claiming orders under the subsection in respect of the matter reported.(2) A report made under section 420 (2) of the Code shall not be inspected or used except by leave of the Court.rules 80.46–80.50: Ins 30.6.1982.
50 Resignation of liquidator (s 421)
cf CR 1968, r 89 (1).
Where, in a winding up by the Court, the liquidator resigns, he shall, within the time prescribed by section 421 (2) of the Code, file a copy of the notice of the resignation in the form prescribed by the Companies Regulations.rules 80.46–80.50: Ins 30.6.1982.
51 (Repealed)
rule 80.51: Ins 30.6.1982. Rep 22.10.1982.
52 Report by the chairman to the Court: meeting of creditors etc (s 431)
cf CR 1968, r 73 (1).
A report by the chairman to the Court under section 431 (1) of the Code may be made by filing a report in Form 140.rules 80.52–80.59: Ins 30.6.1982.
53 Committee of inspection (s 432)
cf CR 1968, r 74 (2).
(1) The Court may, in proceedings for an order under section 432 (2) of the Code (which subsection relates to the appointment of a committee of inspection) make an appointment for hearing of the proceedings and give directions for service and publication of notice of the appointment.(2) On the hearing the Court may hear the liquidator, any creditor and any contributory.rules 80.52–80.59: Ins 30.6.1982.
54 Filing proof of debt (s 438)
cf CR 1968, r 164.
In a winding up by the Court the liquidator shall, within three days after service upon him of a summons instituting an appeal from his decision rejecting a creditor’s proof of debt, file the proof and a copy of the notice given by him under regulation 125 (1) of the Companies Regulations.rules 80.52–80.59: Ins 30.6.1982.
55 Sheriff’s fees
cf CR 1968, r 197–8.
In Part 62 rules 1, 7 and 8, Sheriff includes a sheriff.rules 80.52–80.59: Ins 30.6.1982.
56 Disclaimer (s 454)
cf CR 1968, r 130.
The applicant for leave under section 454 (6) of the Code shall file an affidavit showing who the persons interested are and their interests.rules 80.52–80.59: Ins 30.6.1982.
57 Winding up of bodies other than companies (s 470)
The rules apply, with such adaptations as are necessary, to a body to which Part XII Division 6 of the Code applies as they apply to a Company.rules 80.52–80.59: Ins 30.6.1982.
58 Stay of proceedings against body other than a Company (s 472)
An application for leave under section 472 (2) of the Code may, where the proceedings in respect of which leave is sought have been commenced in a Division, be made by motion in those proceedings in that Division.rules 80.52–80.59: Ins 30.6.1982.
Division 5 Part XIV of the Code (miscellaneous)
59 Security for costs: plaintiff corporation (s 533)
cf CR 1968, r 3 (3).
Where a proceeding referred to in section 533 of the Code (which section relates to a plaintiff corporation giving security for costs) has been commenced in a Division, an application under that section may be made by motion in those proceedings in that Division.rules 80.52–80.59: Ins 30.6.1982.
60 (Repealed)
rule 80.60: Ins 30.6.1982. Rep 19.7.1985.
61 Appeal from liquidator etc (s 538)
cf CR 1968, r 39.
A person mentioned in section 538 (a), (b), (c) or (d) may, on application in writing made to him before the expiration of the time limited by Part 51A rule 3 (1) (other than the time extended by the Court) for instituting an appeal from his act, omission or decision, grant, by notice in writing, an extension of that time and where he does so, he shall deliver the notice to the applicant who shall file the notice with the summons instituting the appeal.rule 80.61: Ins 30.6.1982.
61A Irregularities (s 539)
Subject to any direction of the Court, an application for an order under section 539 of the Code in or for the purposes of or in relation to any proceedings in the Court may be made by motion in those proceedings.rule 80.61A: Ins 22.10.1982.
62 Examination of person concerned with corporation (s 541)
cf CR 1968, r 119–126.
(1) This rule applies to proceedings on an application to the Court for an order under section 541 (3) of the Code.(2) The summons by which the application is made shall be served:(a) where a liquidator has been appointed, unless he is the applicant—on the liquidator, andand need not be served on any other person unless the Court so directs.(b) unless the Commission is the applicant—on the Commission,(3) The applicant shall, when making the application, lodge in the registry a draft minute in Form 154 of the order sought.(4) A minute of the order made shall be served personally on the person who is to be examined and shall be served, where the liquidator is the applicant, on the Commission and, where the Commission is the applicant, on the liquidator.(5) The applicant shall publish once in the Government Gazette and once in a prescribed newspaper, notice of the time and place appointed for the holding of an examination but not, unless the Court so orders, for the holding of an adjourned examination.(6) Where the Court makes an order under section 541 (13) of the Code, the written record, signed if so required by the Court under that subsection, shall be filed in the registry.(6A) Where:(a) the examination of a person under section 541 of the Code is held wholly or partly in public, andthe registrar shall, upon application by the person made within 3 years of the date of the conclusion of the examination and payment of the prescribed fee, furnish to the person a copy of the written record or transcript of such part of his examination as is held in public.(b) a written record or transcript of the questions put to the person and the answers given by the person at the examination is filed in the registry,(7) A transcript is authenticated under section 541 (14) of the Code by a certificate by the person who made the transcript certifying it to be a correct record of the examination.(8) Notwithstanding Part 65 rule 7, a written record or transcript of an examination under section 541 of the Code shall not, except with the leave of the Court, be open to inspection by any person.(9) Subrule (8) does not apply to the liquidator or any person authorised by the Commission.(10) Where the examination is held before a court other than the Court, the powers of the Court under this rule may be exercised by that other court.rule 80.62: Ins 30.6.1982. Am 24.7.1992.
63 Default in relation to an examination
cf CR 1968, r 127 (2).
(1) Where a registrar constitutes the Court for the purpose of an examination under section 541 of the Code and a person (the person in default) refuses or fails to do anything mentioned in section 541 (7), (8) or (9) of the Code, he shall, at the request of any person who took part in the examination, give to that person a certificate, signed by him, of the refusal or failure.(2) The Court may, upon the certificate being filed and on motion by any party, order the person in default:(a) to do the thing, and(b) to pay any costs occasioned by his refusal or failure.rule 80.63: Ins 30.6.1982.
Division 6 Meetings ordered by the Court
pt 80, div 6 (Rule 80.64): Ins 22.10.1982.
64 Application of regulations
cf CR 1968, r 92.
Subject to the Code and subject to any directions of the Court, the provisions of regulations 84–99 of the Companies Regulations apply to and in respect of meetings ordered by the Court.pt 80, div 6 (Rule 80.64): Ins 22.10.1982.
Part 80A Corporations Law and ASC Law
pt 77, 77.div 35: Ins 6.3.1992.
pt 80A: Ins 10.12.1993.
pt 80A (The whole Part): Am 23.10.1998 (“the Commission” omitted wherever occurring, “ASIC” inserted instead).
Division 1 Preliminary
pt 80A, div 1: Ins 10.12.1993.
1A (Repealed)
rule 80A.1A: Ins 21.8.1998. Rep 23.10.1998.
1 Interpretation
In this Part, unless the contrary intention appears:(a) subject Act means the Corporations (New South Wales) Act 1990.advertised means published in the Commonwealth of Australia Gazette and in a prescribed newspaper.Corporations Law has the meaning given by section 13 of the subject Act.prescribed newspaper means:(i) where the registered office of the subject corporation is within 100 kilometres of the General Post Office, Sydney—a daily newspaper circulating generally in Sydney,(ii) where the subject corporation does not have a registered office, and its principal place of business or last known principal place of business is or was within 100 kilometres of the General Post Office, Sydney—a daily newspaper circulating generally in Sydney, or(iii) in any other case—a newspaper circulating generally in the district in which the registered office of the subject corporation is situated or, if it does not have a registered office, in which its principal place of business or last known principal place of business is or was situated.subject corporation means corporation to which the application relates,(b) subject to this rule, a word or expression defined in the Corporations Law (other than for the purposes of limited parts thereof) has the meaning as so defined,(c) a reference to a section is a reference to a section of the Corporations Law.rule 80A.1: Ins 10.12.1993. Am 23.10.1998.
2 Application
Subject to any order of the Court, this Part applies to:(a) proceedings under the Corporations Law or the ASC Law commenced in the Court after 30 January 1994 and before the Supreme Court (Corporations) Rules 1999 commence, and(b) applications made under the Corporations Law or the ASC Law after 30 January 1994 in proceedings in the Court commenced before the Supreme Court (Corporations) Rules 1999 commence.rule 80A.2: Ins 10.12.1993. Subst 24.12.1999. Am 19.12.2003.
3 Commencement of proceedings
(1) Subject to Part 19 rule 1 (which relates to applications by motion) and to subrules (2), (4) and (5), proceedings in the Court for relief under the Corporations Law or the ASC Law must be commenced by summons under Part 5 rule 4B (as in force at the relevant time before the commencement of the Supreme Court (Corporations) Rules 1999).(2) Proceedings in the Court on an application:(a) for an order for the winding up of a corporation shall be commenced by summons under Part 5 rule 4A (as in force at the relevant time before the commencement of the Supreme Court (Corporations) Rules 1999),(b) for other relief under the Corporations Law where:(i) it is necessary to obtain an early appointment for hearing, andwhether for final or interlocutory relief or directions, may be commenced by summons under Part 5 rule 4A (as in force at the relevant time before the commencement of the Supreme Court (Corporations) Rules 1999).(ii) the plaintiff intends to be ready to proceed at the time appointed,(3) The summons must state above the title:(a) the name of the subject corporation followed, where appropriate, by the words “(in liquidation)”, “(provisional liquidator appointed)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(under official management)” or “(administrator appointed)”,(b) (if applicable) the registered number of the subject corporation preceded by the words “Australian Company Number” (which may be abbreviated to “ACN”) or “Australian Registered Body Number” (which may be abbreviated to “ARBN”) as the case may be, and(c) the words “and the Corporations Law” or “and the ASC Law”, as the case may be.(4) Without limiting the generality of Part 19 rule 1, application of the following kinds must be made by motion in the relevant winding up proceedings, namely:(a) an application for an order under section 467 (7) (which relates to staying existing proceedings),(b) an application for an order under section 468 (which relates to avoidance of dispositions of property),(c) an application for an order under section 472 (which relates to provisional liquidators), and(d) any application in the winding up of the subject corporation.(5) An application for an order under section 471B or section 500 (2) in respect of existing proceedings in the Court in a Division may be made by motion in those proceedings.(6) Notwithstanding subrule (4) and Part 19 rule 1, an application for the issue of an Examination Summons under section 596A or section 596B must be made by summons.rule 80A.3: Ins 10.12.1993. Am 13.6.2003; 19.12.2003.
4 Registration of transfer of shares etc (s 1092 (3))
(1) An application to the Court for an order for the issue of a summons, under section 1092 (3) may be made, without serving the summons by which the application is made on any person.(2) A summons under section 1092 (3) may be in Form 154BA.rule 80A.4: Ins 10.12.1993.
Division 2 Proceedings generally
pt 80A, div 2: Ins 10.12.1993.
5 Additional powers of the Court
Without limiting its other powers, the Court may at any time in proceedings, on application by a party or of its own motion:(a) direct that notice of any matter be given by advertisement or otherwise to any person or class of persons,(b) direct that a document be served on any person,(c) grant to any person who is or claims to be a creditor, contributory or officer of a subject corporation, or an officer of such a creditor or contributory, leave to be heard without becoming a party,(d) revoke, or vary the terms and conditions of, any such leave,(e) order that any person who is or claims to be a creditor, contributory or officer of a subject corporation be added as a defendant,(f) appoint any creditor or contributory of a subject corporation to represent, at the expense of that corporation, all or any class of creditors or contributories of that corporation for the purpose of the proceedings or any part of them, and(g) revoke, or vary the terms and conditions of, any such appointment.rules 80A.5–80A.8: Ins 10.12.1993.
6 Minute of judgment or order
Notwithstanding Part 41 rule 13 (3), 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.rules 80A.5–80A.8: Ins 10.12.1993.
7 Inquiry as to creditors etc
(1) The Court may direct an inquiry as to any debts, claims or liabilities or any class of debts, claims or liabilities of a subject corporation.(2) Where the Court directs an inquiry under subrule (1), subject to any further direction of the Court, rule 13 applies with such modifications as may be necessary as though settlement of a list of creditors was required.rules 80A.5–80A.8: Ins 10.12.1993.
8 Registrar furnishing copy of summons etc
The registrar shall, upon payment of the fee (if any) fixed under the Act, furnish to any person claiming to be a contributory, creditor or officer of the subject corporation, an office copy of the summons and affidavits which are in the custody of the registrar and are filed by the plaintiff in support of an application for the winding up of the subject corporation.rules 80A.5–80A.8: Ins 10.12.1993.
9 Notice of intention to appear
rule 80A.9, hdg: Am 25.2.1994.(1) Any person who intends to appear on the hearing of an application, notice of which has been advertised under this Part, who is not already a party, must, not later than 2 days before the date appointed for the hearing:(a) file a notice of appearance which must include:(i) a statement of the relationship of the person to the subject corporation, and(ii) a statement that the person intends to support or oppose the application, as the case may be, and(b) serve the notice of appearance on the plaintiff and on each other party of whose address for service the person has notice.(2) Part 11 rule 5 does not apply to a notice of appearance under this rule.rule 80A.9: Ins 10.12.1993.
Division 3 Advertisement
pt 80A, div 3: Ins 10.12.1993.
10 Advertisement and inspection of certain applications
(1) This rule applies to an application for an order under any of the provisions of the Corporations Law referred to in column 1 of Table 1 below.Table 1
Division 4 Notice to ASIC
pt 80A, div 4: Ins 10.12.1993.
11 Service of certain applications
(1) This rule applies to an application for an order under any of the provisions of the Corporations Law referred to in column 1 of Table 2 below.Table 2
Divisions 5, 6
12, 13 (Repealed)
pt 80A, div 5: Ins 10.12.1993. Rep 23.10.1998.
pt 80A, div 6 (rules 12, 13): Ins 10.12.1993. Rep 23.10.1998.
Division 6A Remuneration of receiver, administrator and special manager
pt 80A, div 6A (rules 13A–13C): Ins 21.10.1994.
13A Remuneration of receiver (s 425 (1))
(1) The summons or notice of the motion, by which application is made by a receiver for an order fixing his or her remuneration under section 425 (1), must not be filed until the expiration of 21 days after the applicant has served notice in Form 154I of his or her intention to apply for the order, together with a copy of the affidavit on which the applicant intends to rely, on:(a) the person who appointed the receiver,(b) any other creditor holding security over all or any of the same property,(c) any liquidator or provisional liquidator of the subject corporation,(d) any administrator of the subject corporation,(e) any administrator of a deed of company arrangement executed by the subject corporation, and(f) if there is no person of the kinds referred to in (c), (d) and (e):(i) each of the 5 largest unsecured creditors of the subject corporation, and(ii) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.(2) Any creditor or contributory or any of the persons referred to in paragraphs (c), (d) and (e) of subrule (1) may within 21 days after service of the last of the notices required by subrule (1) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.(3) Where the applicant files with the summons or notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:(a) proving service of the notices required by subrule (1) (b), andand the summons or notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.(b) stating that he or she has received no notice of objection to the remuneration claimed,(4) The summons or notice of motion must be served on any creditor or contributory or other person who has given notice of objection under subrule (2).(5) The evidence in support of the application must include an affidavit stating:(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and(b) if at the time of the application the applicant remains the receiver, any matters delaying the completion of the receivership.
13B Remuneration of administrator (s 449E (1))
(1) The summons or notice of the motion, by which application is made for an order fixing an administrator’s remuneration under section 449E (1), must not be filed until the expiration of:(a) 28 days after the date when a meeting of creditors referred to in section 449E (1) was last held, and(b) 21 days after the applicant has served notice in Form 154I of his or her intention to apply for the order, together with a copy of the affidavit on which the applicant intends to rely, on:(i) each creditor who was present in person or by proxy at the meeting of creditors,(ii) each member of any committee of inspection, and(iii) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.(2) Any creditor or contributory may within 21 days after service of the last of the notices required by subrule (1) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.(3) Where the applicant files with the summons or notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:(a) proving service of the notices required by subrule (1) (b), andand the summons or notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.(b) stating that he or she has received no notice of objection to the remuneration claimed,(4) The summons or notice of motion must be served on any creditor or contributory who has given notice of objection under subrule (2).(5) The evidence in support of the application must include an affidavit stating:(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and(b) if at the time of the application the applicant remains the administrator, any matters delaying the completion of the administration.
13C Remuneration of special manager (s 484 (2))
(1) The summons or notice of the motion, by which application is made by a special manager for an order fixing his or her remuneration under section 484 (2), must not be filed until the expiration of 21 days after the applicant has served notice in Form 154I of his or her intention to apply for the order, together with a copy of the affidavit on which the applicant intends to rely, on:(a) the liquidator,(b) each member of any committee of inspection, or if there is no committee of inspection, each of the 5 largest creditors of the subject corporation, and(c) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.(2) The liquidator or any creditor or contributory may within 21 days after service of the last of the notices required by subrule (1) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.(3) Where the applicant files with the summons or notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:(a) proving service of the notices required by subrule (1) (b), andand the summons or notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.(b) stating that he or she has received no notice of objection to the remuneration claimed,(4) The summons or notice of motion must be served on the liquidator or any creditor or contributory who has given notice of objection under subrule (2).(5) The evidence in support of the application must include an affidavit stating:(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and(b) if at the time of the application the applicant remains the special manager, any matters delaying the completion of the special management.
Division 7 Winding up
pt 80A, div 7: Ins 10.12.1993.
14 Index: search
Any person may, upon payment of the fee (if any) fixed under the Act, search in the index kept in the registry against the name of a subject corporation.rule 80A.14: Ins 10.12.1993.
15 Form of affidavit in support of statutory demand (s 459E (3))
(1) An affidavit referred to in section 459E (3) must:(a) subject to subrule (2), be made by the creditor or, where there is more than one creditor, by one of them,(b) set out the facts entitling the deponent under paragraph (a) to make the affidavit,(c) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,(d) state that the deponent believes those matters to be true, and(e) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.(2) In the case of a creditor which is:(a) 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 is taken to be an affidavit by the creditor,(b) the Crown—an affidavit by an officer of the Crown having knowledge of the facts so far as they are known to the Crown is taken to be an affidavit by the creditor, and(c) 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 creditor.(3) An affidavit under this rule must:(a) be in accordance with the prescribed form,(b) contain the statement headed “Important Note” set out in the form, and(c) not state a proceeding number.(4) An affidavit under this rule must not be filed with the Court.(5) For the purposes of section 459E (3), an affidavit in support of a statutory demand that complies with the rules of:(a) the Federal Court of Australia, oris taken to be an affidavit that complies with this rule.(b) the Supreme Court of another State or Territory in which the registered office of the company to be served is situated,(6) In subrule (2), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.rules 80A.15, 80A.16: Ins 10.12.1993. Subst 24.11.1995.
16 Form of affidavit in support of an application to wind up relying on failure to comply with statutory demand (s 459Q (c))
(1) An affidavit referred to in section 459Q (c) must:(a) be in accordance with the prescribed form,(b) subject to subrule (2), be made by the plaintiff or, where there is more than one plaintiff, by one of them,(c) set out the facts entitling the deponent under paragraph (b) to make the affidavit,(d) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,(e) state that the deponent believes those matters to be true, and(f) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.(2) In the case of a plaintiff which is:(a) 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 is taken to be an affidavit by the plaintiff,(b) the Crown—an affidavit by an officer of the Crown having knowledge of the facts so far as they are known to the Crown is taken to be an affidavit by the plaintiff, and(c) 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.(3) In subrule (2), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.rules 80A.15, 80A.16: Ins 10.12.1993. Subst 24.11.1995.
17 Time prescribed (s 465C)
The period prescribed for the purposes of section 465C is a period terminating 2 days before the date appointed for the hearing.rules 80A.17–80A.20: Ins 10.12.1993.
18 Evidence in support of winding up application
The evidence in support of an application for the winding up of a corporation shall include:(a) an affidavit stating:(i) unless the plaintiff is the subject corporation, the capacity in which the plaintiff makes the application under section 459P or section 462 (2),(ii) the grounds of the application and a reference to the provision or provisions of the Corporations Law on which the plaintiff relies,(iii) the statute under which the subject corporation was incorporated,(iv) the date of its incorporation,(v) whether or not an administrator has been appointed to the subject corporation and, if so, details of that appointment, as ascertained by a search of the records maintained by ASIC made not earlier than seven days before the summons was filed,(vi) whether or not a winding up application was pending or a winding up order had been made against the subject corporation and, if so, details of that application or order, as ascertained by a search of the records maintained by ASIC made not earlier than seven days before the summons was filed, and(b) unless the subject corporation is the plaintiff or has entered an appearance, proof of the address of its registered office as ascertained by a search of the records maintained by ASIC made not earlier than 7 days before the summons was filed, supported by a copy of the last or only notice of the address, or change in the situation, of its registered office lodged with ASIC or with any predecessor of ASIC.rules 80A.17–80A.20: Ins 10.12.1993.
19 Discontinuance (ss 459 and 461)
Notwithstanding Part 21 rule 2, proceedings shall not be discontinued without the leave of the Court, so far as they concern a claim for a winding up order under section 459A or section 461.rules 80A.17–80A.20: Ins 10.12.1993.
20 Service of notice of appointment of liquidator or provisional liquidator
(1) Where the Court appoints a liquidator or a provisional liquidator:(a) the plaintiff must:(i) obtain from the Court and serve on the liquidator or provisional liquidator by delivery or by facsimile transmission to his or her office, a sealed copy of a notice in Form 154F not later than 1 day after the appointment is made, and(ii) if the subject Corporation is not the plaintiff—serve a copy of the notice on the subject Corporation by delivery or by facsimile transmission or by pre-paid post to its registered office not later than 1 day after the appointment is made, and(b) the liquidator or provisional liquidator must, not later than 7 days after the appointment is made, cause to be advertised a notice in Form 154G or Form 154H, as the case requires.(2) For the purposes of subrule (1), a sealed or unsealed copy is sufficiently served at an office if the information contained in the copy is transmitted to a facsimile transmission number by a means that reproduces, in that office, the information as it appears in the copy.rules 80A.17–80A.20: Ins 10.12.1993.
21 Appeal from registrar: winding up order
(1) An appeal shall lie to the Court from a winding up order made by a registrar.(2) Part 60 rules 9 and 11–15A shall apply, making such changes as it is necessary to make, to an appeal under subrule (1) as they apply to an appeal under Part 60 Division 3 (which relates to an appeal from a master to a Judge).(3) For the purpose of the application of subrule (2), Part 60 rules 9 and 11–15A shall be read as if:(a) “registrar” were substituted for “master”, andwhere appearing in those rules.(b) “Part 80A rule 21” were substituted for “this Division”,rule 80A.21: Ins 10.12.1993. Am 25.2.1994.
22 Remuneration of provisional liquidator (s 473 (2))
(1) An application by a provisional liquidator for determination of his or her remuneration by the Court under section 473 (2) must be made by motion in the winding up proceedings.(2) Notice of the motion must not be filed until the expiration of 21 days after the applicant has served written notice of intention to apply for such determination in Form 154I together with a copy of the affidavit upon which the applicant intends to rely, on:(a) any liquidator of the subject corporation (other than the applicant),(b) each member of any committee of inspection, or if there is no committee of inspection, each of the 5 largest creditors of the subject corporation, and(c) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.(3) The liquidator or any creditor or contributory may within 21 days after service of the last of the notices required by subrule (2) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.(4) Where the applicant files with the notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:(a) proving service of the notices required by subrule (2), andand the notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.(b) stating that he has received no notice of objection to the remuneration claimed,(5) The notice of motion must be served on any liquidator, creditor or contributory of the subject corporation who has given notice of objection under subrule (3).(6) The evidence in support of the application must include an affidavit stating:(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and(b) if at the time of the application the applicant remains the provisional liquidator:(i) any reasons known to the applicant why the winding up proceedings have not been determined, and(ii) any reasons why the applicant’s remuneration should be determined prior to the determination of the winding up proceedings.rules 80A.22–80A.31: Ins 10.12.1993.
23 Remuneration of liquidator (s 473 (3))
(1) An application by a liquidator for determination of his or her remuneration by the Court under section 473 (3) must be made by motion in the winding up proceedings.(2) Notice of the motion must not be filed until the expiration of:(a) 28 days after the holding of the meeting of creditors referred to in section 473 (4), and(b) 21 days after the applicant has served notice in form 154I of his or her intention to apply for such determination, together with a copy of the affidavit on which the applicant intends to rely, on:(i) each creditor who was present in person or by proxy at the meeting of creditors,(ii) each member of any committee of inspection, and(iii) any member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.(3) Any creditor or contributory may within 21 days after service of the last of the notices required by subrule (2) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.(4) Where the applicant files with the notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:(a) proving service of the notices required by subrule (2) (b), andand the notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.(b) stating that he has received no notice of objection to the remuneration claimed,(5) The notice of motion must be served on any creditor or contributory of the subject corporation who has given notice of objection under subrule (3).(6) The evidence in support of the application must include an affidavit stating:(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and(b) if at the time of the application the applicant remains the liquidator, any matters delaying the completion of the winding up.rules 80A.22–80A.31: Ins 10.12.1993.
24 Copy of a report under s 475 (7) (a)
The copy of the report required to be filed with the Court under section 475 (7) (a) shall be a copy certified in writing by the liquidator of the subject corporation to be a true copy of the original report.rules 80A.22–80A.31: Ins 10.12.1993.
25 Report by the liquidator to the Court: stay of winding up (s 482 (2))
A report by the liquidator to the Court under section 482 (2) may be furnished to the Court by filing it in Form 154J.rules 80A.22–80A.31: Ins 10.12.1993.
26 Special manager (s 484)
(1) This rule applies to proceedings in the Court under section 484 (which section relates to a special manager).(2) The liquidator may file an unverified statement in support of the application, instead of an affidavit.(3) Security is sufficiently given if it is given for any winding up in which the person giving security is appointed a special manager.(4) The Court may at any time and from time to time give directions for the giving of security in a different amount to the amount for which security was previously given.(5) Where security is given to the satisfaction of a master, he shall give a certificate to that effect.rules 80A.22–80A.31: Ins 10.12.1993.
27 Accounting by special manager (s 484 (2) (a))
(1) Subject to any order of the Court under section 484 (2) (a) the special manager shall furnish his accounts to the liquidator.(2) The accounts shall be verified by affidavit.(3) The affidavit may be in Form 154K and subscribed to the accounts.(4) When the accounts are approved by the liquidator, the totals of the receipts and payments shall be included by the liquidator in his accounts.rules 80A.22–80A.31: Ins 10.12.1993.
28 Default of special manager
(1) Where any special manager is required by the rules or any direction of the Court to do anything and does not carry out the requirement, the liquidator shall apply to the Court for directions in respect of the default and the Court may make such orders and give such directions as the Court thinks fit.(2) Without limiting subrule (1), where a special manager is required by the rules or by any order or direction of the Court to pay into Court any sum shown by his account as due from him, and he does not comply with the requirement, the Court may charge him with interest at the rate prescribed for payment of interest by a receiver under Part 29 rule 5 (2) on that sum while in his possession as special manager.(3) This rule does not limit the powers of the Court as to the enforcement of orders or as to the punishment of contempt.rules 80A.22–80A.31: Ins 10.12.1993.
29 Complaints concerning liquidator or provisional liquidator (s 536 (1))
(1) The complaint to the Court under section 536 (1) shall be filed with the summons claiming an inquiry under the subsection in respect of the matter complained of.(2) A complaint under section 536 (1) shall not be inspected or used except by leave of the Court.rules 80A.22–80A.31: Ins 10.12.1993.
30 Report concerning liquidator or provisional liquidator (s 536 (2))
(1) A report to the Court by ASIC under section 536 (2) shall be filed with the summons claiming orders under the subsection in respect of the matter reported.(2) A report made under section 536 (2) shall not be inspected or used except by leave of the Court.rules 80A.22–80A.31: Ins 10.12.1993.
31 Report by the chairman to the Court: meeting of creditors etc (s 547)
A report by the chairman to the Court under section 547 may be made by filing a report in Form 154J.rules 80A.22–80A.31: Ins 10.12.1993.
32 Appeal from liquidator etc (s 1321)
(1) An appeal to the Court under section 1321 in respect of an act, omission or decision of a receiver, receiver and manager, liquidator or provisional liquidator, appointed by the Court, shall be instituted by motion in the proceedings in which the appointment was made, within 28 days after the date on which the person who wishes to appeal receives notice of the act, omission or decision.(2) Subject to subrule (1), an appeal to the Court under section 1321 shall be initiated in accordance with Part 51A.(3) A person mentioned in section 1321 (a), (b), (c), (ca), or (d) may, on application in writing made to that person before the expiration of the time limited by subrule (1) or by Part 51A rule 3 (1) as the case may be (other than the time extended by the Court) for instituting an appeal from that person’s act, omission or decision, grant, by notice in writing, an extension of that time and, where that person does so, he or she shall deliver the notice to the applicant who shall file the notice with the summons or notice of motion (as the case may be) instituting the appeal.rule 80A.32: Ins 10.12.1993. Subst 24.2.1995.
33 Release of liquidator (s 480)
(1) An application by a liquidator for:(a) an order under section 480 (c) that he or she be released, ormust be made by motion in the winding up proceedings.(b) an order under section 480 (d) that he or she be released and that the subject corporation be dissolved,(2) An application by a liquidator for an order under section 480 (c) that he or she be released must state the grounds on which it is contended that the subject corporation should not be dissolved.(3) Unless the Court otherwise orders, the liquidator must, not less then 21 days prior to filing notice of the motion:(a) send:(i) a notice in form 154L,(ii) a copy of the application for release,(iii) a copy of the summary of receipts and payments, andby prepaid post to each creditor who has proved his or her debt and to each contributory, and(iv) a copy of the statement showing the subject corporation’s position,(b) cause notice of the application in form 154M to be published in the Commonwealth of Australia Gazette.(4) Where a liquidator applies for an order under section 480 (c) or section 480 (d), he or she shall file with notice of the motion:(a) a summary of receipts and payments in the winding up,(b) a statement showing the position of the subject corporation at the date the application was filed, and(c) an affidavit:(i) stating whether the whole of the property of the subject corporation has been realised, or whether so much of the property of the subject corporation has been realised as can be realised without needlessly prolonging the liquidation,(ii) stating details of any calls made upon contributories in the course of the winding up,(iii) stating details of any dividends paid in the course of the winding up,(iv) stating whether the committee of inspection, if any, has passed a resolution approving of the liquidator’s release,(v) stating whether ASIC has appointed an auditor to report on an account or a statement of the position in the winding up under section 539 (2),(vi) stating whether the Court has ordered a report on the accounts of the liquidator to be prepared,(vii) stating whether any objection has been received by the liquidator to his or her release as liquidator of the subject corporation from any auditor appointed by ASIC or by the Court or from any creditor, contributory or other person interested,(viii) stating whether any report has been submitted by the liquidator to ASIC under section 533,(ix) stating whether the unsecured creditors of the subject corporation have been paid more than 50 cents in the dollar and whether it is otherwise necessary to report on the affairs of the subject corporation or its officers,(x) stating details of any onerous property disclaimed in the course of the winding up,(xi) stating details of any costs and expenses payable by the liquidator if the Court grants his or her release,(xii) annexing a copy of:(A) the notice sent to each creditor and contributory in compliance with paragraph (a) of subrule (3), and(B) the notice published in the Commonwealth of Australia Gazette in compliance with paragraph (b) of subrule (3), and(xiii) including statements by the liquidator to the following effect:(A) “To the best of my belief there has been no act done or default made by me in the administration of the affairs of the subject corporation or otherwise in relation to my conduct as liquidator which is likely to give rise to any liability to the subject corporation or any creditor or contributory” and, where applicable, add “except as disclosed in this affidavit”,(B) “I am not aware of any claim made by any person that there has been any such act or default” and, where applicable, add “except as disclosed in this affidavit”.(5) A creditor or contributory who wishes to object to the grant of release to a liquidator must deliver to the liquidator a notice of objection stating the grounds of objection within 21 days of publication of the notice referred to in subrule (3) (b).(6) Where the applicant files with the notice of motion an affidavit made after the expiration of the 21 days:(a) proving compliance with subrule (3), andand the notice of motion is endorsed with a request that the application be determined or dealt with in the absence of the public and without an attendance by or on behalf of the applicant, the application may be so determined or dealt with by the Court.(b) stating that he has received no notice of objection to the release,rule 80A.33: Ins 10.12.1993. Am 25.2.1994.
34 Exercise of Court’s power by liquidator (s 488 (1))
Subject to the Corporations Law, the Corporations Regulations, this Part, and any order of the Court, the powers and duties conferred on the Court by Part 5.4B of the Corporations Law in respect of the matters referred to in section 488 (1) may be exercised by the liquidator as an officer of the Court and subject to the control of the Court.rules 80A.34, 80A.35: Ins 10.12.1993.
35 Destruction of books (s 542 (3) (a))
(1) An application for an order under section 542 (3) (a) must be made by motion in the winding up proceedings.(2) Where notice of the motion is endorsed with a request that the application be dealt with by the Court in the absence of the public and without an attendance by or on behalf of the applicant, the application may be so dealt with by the Court.rules 80A.34, 80A.35: Ins 10.12.1993.
Division 8 Examinations
pt 80A, div 8 (rules 36, 37): Ins 10.12.1993.
36 Examination of persons concerned with corporations (Part 5.9 Division 1)
(1) This rule applies to proceedings on an application to the Court for a summons under section 596A or section 596B (in these rules referred to as an Examination Summons).(2) The summons by which the application is made shall be served:(a) where a liquidator has been appointed, unless he is the applicant—on the liquidator, andand need not be served on any other person unless the Court so directs.(b) unless ASIC is the applicant—on ASIC,(3) The applicant shall, when making the application, lodge in the registry a draft of the Examination Summons applied for.(4) An affidavit referred to in section 596C must set out:(a) the facts relied on to establish that the applicant is an eligible applicant for the purposes of section 596B,(b) the facts relied on to establish the matters referred to in section 596B (1) (b), and(c) if production of books is to be required—the deponent’s belief that the books, the production of which is sought, are reasonably required for the purposes of the examination and the grounds for that belief.(5) Notwithstanding Part 65 rule 7, an affidavit or other material filed in support of an application for an Examination Summons shall not, except with the leave of the Court, be open to inspection by any person other than the liquidator or any person authorised by ASIC.(6) An Examination Summons shall be in form 154N.(7) The applicant shall cause notice of the time and place appointed for the holding of an examination (but not, unless the Court so orders, for the holding of an adjourned examination) to be advertised.(8) An Examination Summons shall be served personally on the person who is to be examined.(9) Where the Court makes an order under section 597 (13), the written record, signed if so required by the Court under that subsection, shall be filed in the registry.(10) Where:(a) the examination of a person under section 597 is held wholly or partly in public, andthe registrar shall, upon application by the person made within 3 years of the date of the conclusion of the examination and payment of the prescribed fee, furnish to the person a copy of the written record or transcript of such part of the examination as is held in public.(b) a written record or transcript of the questions put to the person and the answers given by the person at the examination is filed in the registry,(11) A transcript is authenticated under section 597 (14) if the person who prepared the transcript, or under whose supervision the transcript was prepared, certifies in writing signed by that person that the transcript is a true record of the examination.(12) In this rule, liquidator includes a provisional liquidator.
37 Default in relation to an examination
(1) When a person is summoned under an Examination Summons and the examination is, or is to be, held before the Court constituted by a registrar, and that person (in this rule referred to as the person in default):(a) fails to attend as required by the Examination Summons,(b) fails to attend from day to day until the conclusion of the examination,(c) refuses or fails to take an oath or make an affirmation,(d) refuses or fails to answer a question that the Court directs him or her to answer,(e) refuses or fails to produce books that the Examination Summons requires him or her to produce, orand if, in the case of a failure or refusal referred to in paragraphs (a), (b), (c), (d) or (e), it does not appear to the registrar that there was any reasonable excuse, the registrar must, on the request of any person entitled to take part in the examination, give to that person a signed certificate of the failure or refusal.(f) fails to comply with a requirement by the court to sign a written record of the examination,(2) On application by a person to whom such a certificate has been given, the Court, if satisfied that there has been a contravention of section 597 (6), (7) or (13), may order the person in default to do the relevant act and to pay any costs occasioned by the failure or refusal.(3) On an application under subrule (2), a signed certificate given under subrule (1) constitutes evidence of the matters certified.
Division 9 Winding up of bodies other than companies
pt 80A, div 9 (rule 38): Ins 25.2.1994.
38 Winding up of bodies other than companies (s 583)
The rules apply, with such adaptations as are necessary, to a body to which Part 5.7 of the Corporations Law applies as they apply to a company.
Part 81 Intellectual property
pt 77, 77.div 35: Ins 6.3.1992.
pt 81: Ins 30.8.1985.
Division 1 Intellectual property cases generally
1 Application
This Part applies to intellectual property cases.rule 81.1: Ins 30.8.1985.
2 Interpretation
(1) In this Part, unless the contrary intention appears:(a) action includes proceeding,(b) intellectual property case means:(i) any action in the Court for infringement of a patent granted under the Patents Act, of a trade mark registered under the Trade Marks Act, of the monopoly in a design registered under the Designs Act or of Copyright under the Copyright Act 1968 of the Commonwealth, andwhether or not joined with any other cause of action,(ii) any application or other proceedings in the Court under any of those Acts,(c) Designs Act means the Designs Act 1906 of the Commonwealth,(d) Patents Act means the Patents Act 1990 of the Commonwealth,(e) subject Acts means the Designs Act, the Patents Act, the Trade Marks Act and the Copyright Act 1968 of the Commonwealth,(f) the Commissioner has:(i) in relation to proceedings under the Patents Act, the same meaning as it has in that Act,(ii) in relation to proceedings under the Trade Marks Act, the same meaning as “The Registrar” has in that Act, and(iii) in relation to proceedings under the Designs Act, the same meaning as “Registrar” has in that Act,(g) Trade Marks Act means the Trade Marks Act 1995 of the Commonwealth.(2) The rules shall apply to proceedings under the Patents Act as if a reference in the Patents Act to an “applicant” were a reference to a “plaintiff” and as if a reference in the Patents Act to a “respondent” were a reference to a “defendant”.rule 81.2: Ins 30.8.1985. Am 10.12.1993; 22.12.1995.
3 Expressions in this Part
Expressions used in this Part have, unless the contrary intention appears, in relation to proceedings taken under any of the subject Acts, the same meanings respectively as in the Act under which the proceedings are taken.rule 81.3: Ins 30.8.1985.
4 Assignment of business
Intellectual property cases are assigned to the Equity Division.rule 81.4: Ins 30.8.1985. Subst 10.12.1993.
5 Mode of commencement: application of Part 4, rule 1
Part 4 rule 1 shall not apply to an application for an order under any of the subject Acts if the application is required to be and is made under the Act in a petition, counter-claim or other document.rules 81.5, 81.6: Ins 30.8.1985.
6 Counter-claim: application of Part 6
Part 6 (except Part 6, rules 13 (4) and 16 (5)) shall apply to an application by way of counter-claim, and to a party who applies by way of counter-claim under any of the subject Acts as it applies to a claim, and a party who claims, under section 78 of the Supreme Court Act 1970.rules 81.5, 81.6: Ins 30.8.1985.
7 Directions
cf RSC (Rev) 1965, O 104, r 10 (2).
(1) In an intellectual property case commenced by summons the proceedings shall, on the date appointed for hearing, be before the Court for directions under Part 5 rule 7.(2) In an intellectual property case commenced otherwise than by summons the plaintiff shall, unless the Court otherwise orders, as soon as reasonably practicable after the defendant files a defence, move for a hearing for directions under Part 26.rule 81.7: Ins 30.8.1985. Am 26.9.1986; 23.12.1988; 10.12.1993.
8 Particulars under this Part and Part 16
This Part does not limit the generality of Part 16 rule 1 (which relates to particulars generally).rule 81.8: Ins 30.8.1985.
9 Applications: service and date of hearing
(1) Unless the Court otherwise orders, the summons by which any application under any of the said Acts is made to the Court shall:(a) be served on the Commissioner,(b) not be heard before 14 days after service on the parties and the Commissioner.(2) Unless the Court otherwise orders, where:(a) rule 18 or rule 19 or rule 20 or rule 21 applies to proceedings, andthe proceedings shall not be heard before 14 days after the requirements as to service contained in the applicable rule have been complied with.(b) the proceedings are commenced by summons under Part 5 rule 3,rule 81.9: Ins 30.8.1985. Am 10.12.1993; 13.6.2003.
10 Mode of giving notice to the Commissioner
Notice of any application to the Court under any of the subject Acts is given to the Commissioner by serving on the Commissioner the originating process by which proceedings on the application are commenced.rules 81.10, 81.11: Ins 30.8.1985. Am 10.12.1993.
11 Appearance of Commissioner
(1) In an intellectual property case, the Commissioner may:(a) appear and be heard,(b) file a statement in writing signed by the Commissioner giving particulars of:(i) any proceedings before the Commissioner in relation to the matter in issue,(ii) the grounds of a decision, determination or direction given or made by the Commissioner in respect of those proceedings, andand, on the day of filing, serve it on the other parties.(iii) the practice of the Commissioner’s Office in like cases,(2) The Court may make such use of a statement filed under subrule (1) (b) as the Court thinks just.rules 81.10, 81.11: Ins 30.8.1985. Am 10.12.1993.
12 Commissioner: notice of objection
If the Commissioner elects or is required by the Court to appear in proceedings before the Court, the Commissioner shall, unless the Court otherwise orders, give reasonable notice to the parties of the grounds of any objection the Commissioner proposes to take and of any evidence the Commissioner proposes to place before the Court.rule 81.12: Ins 30.8.1985.
13–15 (Repealed)
rules 81.13, 81.14: Ins 30.8.1985. Rep 10.12.1993.
rule 81.15: Ins 30.8.1985. Rep 22.11.1985.
16 Statement of facts
(1) The Court may direct each party to lodge a statement of facts alleged to establish infringement, validity and absence of infringement and validity.(2) Subrule (1) does not affect any requirement of the subject Acts or the rules for the giving or delivery of particulars.rule 81.16: Ins 30.8.1985.
Division 2 Patents Act
(1) An application for an order under section 105 (1) of the Patents Act may be made only after the applicant gives to the Commissioner a notice of intention to apply accompanied by an advertisement that states:(a) the identity of the proceedings in which the application will be made,(b) the particulars of the amendment sought,(c) the applicant’s address for service, and(d) that a person intending to oppose the application who is not a party to the proceedings must, not later than 28 days after publication of the advertisement, give written notice of that intention to the Commissioner and to the parties to the proceedings.(2) The Commissioner must publish the advertisement in the Official Journal once, unless the Court otherwise orders.(3) A person who gives notice under subrule (1) (d) is entitled to be heard in opposition to the application, subject to any direction of the Court as to costs.(4) The application may be instituted by filing a notice of motion in the relevant proceedings not later than 50 days after the date of publication of the advertisement.(5) The notice of motion together with a copy of the patent, patent request or complete specification, as appropriate, showing in ink of contrasting colour the amendment sought, must be served on the Commissioner, each party to the proceedings and each person who has given notice under subrule (1) (d).(6) On the hearing of the motion, the Court may give such directions as it thinks fit for the conduct of proceedings on the motion including a direction:(a) requiring the applicant to give, to each party or other person opposing the application, a statement of the grounds relied on for the amendment,(b) requiring a party or other person opposing the application to give to the applicant a statement of the grounds relied on in opposition to the amendment,(c) determining that the motion will be heard with the relevant proceedings or separately and, if separately, fixing the date for hearing the motion,(d) determining the manner in which evidence will be adduced and, in the case of evidence by affidavit, fixing the times within which the affidavits must be served.rule 81.17: Ins 30.8.1985. Subst 10.12.1993.
18 Infringement proceedings: s 120 (1)
(1) The originating process, by which proceedings under section 120 (1) of the Patents Act are commenced, must be served:(a) on the defendant in the proceedings,(b) if the plaintiff is an exclusive licensee—on the patentee, and(c) on the Commissioner.(2) Particulars of infringements complained of must give at least one instance of each type of infringement alleged and must specify, in proceedings for infringement of a standard patent, which of the claims of the complete specification of that patent are alleged to be infringed.(3) A defendant relying on a defence under section 144 (4) of the Patents Act must give particulars of:(a) the date of, and the parties to, a contract on which the defendant intends to rely for the defence, and(b) the provision of the contract that the defendant asserts is void.rule 81.18: Ins 30.8.1985. Am 26.9.1986. Subst 10.12.1993.
19 Non-infringement declarations: s 125 (1)
The originating process, by which proceedings under section 125 (1) of the Patents Act are commenced, must be served:(a) on the nominated person, or the patentee, as the case requires, and(b) on the Commissioner.rules 81.19–81.22: Ins 30.8.1985. Subst 10.12.1993.
20 Relief from unjustified threat: s 128 (1)
The originating process, by which proceedings under section 128 (1) of the Patents Act are commenced, must be served:(a) on the person making the threat, and(b) on the Commissioner.rules 81.19–81.22: Ins 30.8.1985. Subst 10.12.1993.
(1) The originating process, by which proceedings under section 133 (1), section 134 (1) or section 138 (1) of the Patents Act are commenced, must be served:(a) on the patentee,(b) as a further defendant—on any person who claims an interest in the patent as exclusive licensee, and(c) on the Commissioner.(2) A plaintiff in proceedings to which subrule (1) applies must comply with Chapter 12 of the Patents Regulations of the Commonwealth.(3) An application for leave under section 137 (4) of the Patents Act may be made by motion in the proceedings pending in the Court.rules 81.19–81.22: Ins 30.8.1985. Subst 10.12.1993.
(1) A party who disputes the validity of a patent must deliver, with the pleading or other document in which the party disputes the validity of registration, particulars of the grounds of invalidity on which the party relies.(2) If one of the grounds referred to in subrule (1) is that the invention is not a patentable invention because of information about the invention in a document or through the doing of an act, the particulars must specify:(a) in the case of a document—the time when, and the place where, the document is alleged to have become publicly available, and(b) in the case of an act:(i) the name of the person alleged to have done the act,(ii) the period in which, and the place where, the act is alleged to have been done publicly,(iii) a description that is sufficient to identify the act, and(iv) if the act relates to apparatus or machinery—whether the apparatus or machinery exists and, if so, where it can be inspected.(3) If:(a) one of the grounds referred to in subrule (1) is that the invention, so far as claimed in any claim of the complete specification of the patent, is not useful, andthe particulars must identify each such claim and state that fact and must include particulars of each such example, specifying the respect in which it is alleged that it does not work as described.(b) it is intended, in connection with that ground, to rely on the fact that an example of the invention which is the subject of any such claim cannot be made to work, either at all or as described in the specification,(4) Except by leave of the Court, evidence is not admissible in proof of a ground of invalidity of which particulars have not been given.rules 81.19–81.22: Ins 30.8.1985. Subst 10.12.1993.
23 Experiments
(1) The Court may give directions:(a) for the service on the other parties, by any party desiring to submit experimental proof, of particulars of the experiments proposed and of the facts which the party claims to be able to establish by the experiments,(b) for the conduct of, and the persons who may attend, the experiments.cf RSC (Rev) 1965, O 104, r 10 (2) (f).(2) In any action or proceedings for infringement or the revocation of, a patent, the Court may direct that evidence with respect to any experiment made shall not be admissible unless the experiment has been made substantially in accordance with directions given under subrule (1).rule 81.23 (previously rule 36): Ins 30.8.1985. Renumbered 10.12.1993.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
24–35 (Repealed)
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
36
(Renumbered as rule 23)
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
Division 3 Trade Marks Act
37 Particulars of infringements
Particulars of the infringements of a registered trade mark shall specify the manner in which the trade mark is alleged to be infringed and shall give at least one instance of each type of infringement alleged.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 81.37: Ins 30.8.1985.
38 Counter-claim to action for infringement
(1) The defendant in an action for infringement of a registered trade mark may apply by way of counter-claim for an order:(a) that the Register be rectified, or(b) directing the Registrar to remove the trade mark from the Register.(2) There shall be delivered with the counter-claim particulars of the grounds on which the order is sought.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 81.38: Ins 30.8.1985. Subst 22.12.1995.
38A Pending proceedings—defence etc to action for infringement
(1) This rule applies to proceedings:(a) to which section 250 of the Trade Marks Act applies (proceedings arising from an application to a court under section 22 of the Trade Marks Act 1955 which were pending immediately before 1 January 1996), or(b) to which section 251 of the Trade Marks Act applies (proceedings arising from an application to the Registrar or a court under section 23 of the Trade Marks Act 1955 which were pending immediately before 1 January 1996).(2) The defendant in an action for infringement of a registered trade mark may:(a) in a defence, dispute the validity of the registration of that trade mark,(b) apply by way of counter-claim for an order:(i) under section 22 (1) of the Trade Marks Act 1955 for the rectification of the Register by the expunging or amendment of the entry wrongly made or remaining in the Register, or(ii) under section 23 (1) of the Trade Marks Act 1955 (which subsection relates to removal of a trade mark from the Register), or(c) do both.(3) A person who:(a) in an action, disputes the validity of the registration of a registered trade mark,(b) applies for an order mentioned in (2) (b), orshall deliver, with the pleading in which the person disputes the validity of the trade mark, particulars of the grounds of invalidity on which the person relies.(c) does both,rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 81.38A–81.38C: Ins 22.12.1995.
38B Judgment in absence of defendant
(1) Unless the Court otherwise orders, a judgment based on infringement of a trade mark shall not be given or entered against a defendant in his or her absence, unless the plaintiff files an affidavit that the action is not in contravention of section 128 of the Trade Marks Act.(2) Unless the Court otherwise orders, a judgment based on section 129 of the Trade Marks Act shall not be given or entered against a defendant in his or her absence, unless the plaintiff files an affidavit that the action is not in contravention of section 129 (5) of the Trade Marks Act.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 81.38A–81.38C: Ins 22.12.1995.
38C Evidences for purposes of regulation 8.2
The evidence in support of an application to which regulation 8.2 of the Trade Marks Regulations (which relates to certain applications for rectification of the Register) applies shall, unless the Court otherwise orders, include evidence which is sufficient to enable the Court to comply with the regulation.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 81.38A–81.38C: Ins 22.12.1995.
Division 4 Designs Act
39 Particulars of infringements
Particulars of infringements of the monopoly in a registered design shall specify the manner in which the design is alleged to be infringed and shall give at least one instance of each type of infringement alleged.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 81.39, 81.40: Ins 30.8.1985.
40 Particulars of invalidity
cf Patents Act, s 166.
(1) A person who:(a) applies under section 28 (a) of the Designs Act for the cancellation of the registration of a design,(b) applies under section 32 of that Act for the rectification of the Register,shall deliver with the pleading or other document in which the person disputes the validity of the registered design, particulars of the grounds of invalidity on which the person relies.(c) in an action, disputes the validity of a registered design,(2) If one of those grounds is previous publication or user, the particulars shall state the time and place of the previous publication or user alleged, and, in the case of previous user, the particulars shall:(a) specify the name of the person who is alleged to have made the previous user,(b) specify the period during which the previous user is alleged to have continued,(c) contain a description sufficient to identify the previous user.(3) Except by leave of the Court, evidence is not admissible in proof of a ground of invalidity of which particulars have not been given.(4) The Court may extend the time for delivering particulars under this rule and may allow particulars so delivered to be amended.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 81.39, 81.40: Ins 30.8.1985.
Part 82 Public Notaries Act 1997
pt 77, 77.div 35: Ins 6.3.1992.
pt 82: Ins 3.1.1986. Subst 19.12.1997.
1 Interpretation
In this Part, unless the context or subject-matter otherwise indicates or requires:(a) Board means the Legal Practitioners Admission Board,(b) notary means a person appointed under the Public Notaries Act 1997,(c) roll means the roll of notaries mentioned in section 7 of the subject Act,(d) subject Act means the Public Notaries Act 1997.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.1: Ins 3.1.1986. Am 17.11.1989. Subst 19.12.1997.
2 Application by person approved by Board
A person who has been approved by the Board as a suitable candidate for appointment as a notary may, unless the Court otherwise orders, apply for appointment without having filed any originating process in the Court.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.2: Ins 3.1.1986. Am 26.9.1986; 22.9.1989. Subst 19.12.1997.
3 Appointment in the absence of the public etc
On an application under rule 2, the Court may make an order in the absence of the public and without any attendance by or on behalf of any person, unless the plaintiff has filed a request that the application not be dealt with under this rule.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.3: Ins 3.1.1986. Am 14.2.1986. Subst 19.12.1997.
4 Taking oath etc
(1) An applicant for appointment under section 6 of the subject Act shall, before applying to the Court for appointment, attend at a registry of the Court on appointment and:(a) take the oath of office prescribed in Form 157, and(b) sign a certificate that the oath was duly tendered and taken.(2) A registrar may administer the oath of office.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.4: Ins 3.1.1986. Subst 19.12.1997. Am 24.4.1998 (see erratum 1.5.1998).
5 Particulars to be entered in the roll
The officer designated under section 7 of the Act as the registrar of public notaries shall enter in the roll:(a) the date of the notary’s appointment,(b) particulars of any penalty imposed on the notary as the result of disciplinary action, and(c) where the name of the notary is removed from the roll, the date of removal and the provision under which the removal was authorised.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.5: Ins 3.1.1986. Am 24.2.1989; 22.9.1989; 13.12.1991; 30.10.1992; 24.6.1994. Subst 19.12.1997. Am 24.4.1998 (see erratum 1.5.1998).
6 Assignment
(1) Proceedings under section 6 or section 10 of the subject Act or under the Mutual Recognition Act are assigned to the Common Law Division.(2) An order relating to a notary that is required by section 171H of the Legal Profession Act 1987 to be filed in the Court shall be filed in the Common Law Division.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.6: Ins 3.1.1986. Subst 19.12.1997.
7 Application under the Mutual Recognition Act
(1) This rule applies to proceedings commenced by notice under Section 19 (1) of the Mutual Recognition Act.(2) The notice must, unless the Court otherwise orders:(a) be lodged by filing it in the registry at Sydney,(b) show the name, residential address and business address of the applicant,(c) where the applicant is represented by a solicitor, show:(i) the name, address and telephone number of the solicitor, and(ii) if that solicitor has another solicitor as agent in the proceedings—the name, address and telephone number of the agent,(d) show an address for service,(e) be dated not more than 14 days before the date on which it is filed, and(f) be accompanied by a certificate which:(i) evidences the existing registration which gives rise to the entitlement of the applicant under the Mutual Recognition Act to entry in the roll,(ii) is given by the proper officer of the Supreme Court of the State or Territory where such existing registration occurred unless the document mentioned in Section 19 (3) of the Mutual Recognition Act, accompanying the notice, fulfils the requirements of this paragraph.(3) The applicant shall, on or before the day of filing, serve the notice and accompanying documents on the Society of Notaries of New South Wales Incorporated and the Board and shall file an affidavit of service within 14 days of filing the notice.(4) The applicant shall:(a) prior to, orfiling the notice, attend at a registry of the Court or at the office of the Supreme Court of his or her State or Territory and take the oath of office as a notary in Form 159A, and cause the certificate included in that form to be completed and shall:(b) within 14 days after,(c) at the time of, orfiling the notice, file the form of oath and the certificate.(d) within 14 days after,(5) Notwithstanding Part 36 rule 3:(a) the statements and other information in the notice which are verified by statutory declaration,(b) the document mentioned in section 19 (3) of the Mutual Recognition Act, certified under section 19 (4) of that Act, accompanying the notice, andare admissible in evidence and, unless the Court otherwise orders, shall not be the subject of oral evidence by the applicant.(c) the certificate referred to in subrule (2) (f),(6) Part 4 rules 1 to 3 and Part 7 rule 6 shall not apply to proceedings to which this rule applies unless the Court otherwise orders.(7) The Court may, of its own motion, obtain information under section 37 of the Mutual Recognition Act and such information is admissible in evidence without further proof.(8) The application for enrolment made by the notice may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant.(9) If the Court is satisfied that the applicant is entitled to enrolment, it shall order that the applicant be appointed as a notary.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.7: Ins 3.1.1986. Am 24.2.1989. Rep 17.11.1989. Ins 19.12.1997.
8 Certificate of appointment
A person appointed as a notary shall be entitled to receive a certificate bearing the seal of the Court.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.8: Ins 3.1.1986. Rep 19.12.1997. Ins 22.10.1999.rules 82.9–82.14: Ins 3.1.1986. Rep 19.12.1997.rule 82.15: Rep 17.11.1989.rules 82.16, 82.17: Ins 3.1.1986. Rep 19.12.1997.rule 82.18: Ins 3.1.1986. Subst 24.9.1993. Rep 19.12.1997.rules 82.19–82.21: Ins 3.1.1986. Rep 19.12.1997.
Part 83 Admiralty List
pt 77, 77.div 35: Ins 6.3.1992.
pt 83: Ins 23.12.1988. Subst 23.10.1998.
1 Interpretation
In this Part, unless the context or subject matter otherwise indicates or requires, Sheriff includes a deputy or officer of the Sheriff.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 83.1–83.3: Ins 23.12.1988. Subst 23.10.1998.
2 Assignment of business and entry in the Admiralty List
Proceedings in the Court:(a) in the exercise of the jurisdiction with which it is invested by the Admiralty Act 1988 of the Commonwealth, orare assigned to the Equity Division and shall be entered in the Admiralty List (the List).(b) under the Shipping Registration Act 1981, or the Navigation Act 1912, each of the Commonwealth,rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 83.1–83.3: Ins 23.12.1988. Subst 23.10.1998.
3 Entry in the List on commencement of proceedings
Where a plaintiff, on his or her summons or statement of claim filed in the Equity Division, adds “Admiralty List” next under the heading and title, the proceedings shall be entered in the List without any order for entry.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 83.1–83.3: Ins 23.12.1988. Subst 23.10.1998.
4 Entry in and removal from the List
The Court may, on the application of a party or of its own motion, if it is satisfied that it is proper to do so, order that the proceedings be entered in or removed from the List, and may give such further directions as to the continuance of the proceedings as it thinks fit.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 83.4, 83.5: Ins 23.10.1998.
5 Registrar and marshal
(1) The officer of the Court authorised for the purposes of rule 4 (1) (b) of the Admiralty Rules of the Commonwealth shall be the registrar.(2) The officer of the Court authorised for the purposes of rule 4 (2) (b) of those rules shall be the Sheriff.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 83.4, 83.5: Ins 23.10.1998.
Schedule A Rules amended and continued
Pt 1, r 4
The rules described in the first column are those published in the Gazette of the number and date specified, as amended from time to time, and referred to by the title specified.First column | Second column | ||
Gazette in which rules published | Title of rules | Rule, etc to be amended | Amendment |
| (Repealed) | Justices Act—Appeal Rules. | (Repealed) | (Repealed) |
No 114 dated 14th June 1935 | Matrimonial Causes Rules. | Rules 1 to 26 (inclusive). | Omit the rules. |
Rules 34 to 146 (inclusive). | Omit the rules. | ||
Rule 147 | Omit the rule; insert the following rule:
| ||
Rules 148 to 152D (inclusive). | Omit the rules. | ||
Rule 152G | Next after “the first day of October 1968” insert “and before the first day of August 1971”. | ||
Rule 152H | Next after “the first day of August 1971” insert “and before the twenty-eighth day of June 1974”. After rule 152H, insert the following rule:
| ||
Rules 153 to 157 (inclusive). | Omit the rules. | ||
Rule 157A | Omit the rule; insert the following rule:
| ||
Rule 158 | Omit the rule; insert the following rule:
| ||
Rules 159 to 175 (inclusive). | Omit the rules. | ||
Orders. cf Order, Gaz No 27, 3rd March 1961
| |||
Rules 177 to 194 (inclusive). | Omit the rules. | ||
Rule 196 | Omit the rule. | ||
Rule 197 | Omit the rule. | ||
Rule 198 | Omit subrules (4) to (12) inclusive and insert the following new subrule: (12) | ||
Rule 198A | Omit the rule. | ||
Rules 199A, 200 | Omit the rules. | ||
After rule 201, add the following rule:
| |||
Appendix Part I (Forms). | Omit Forms 1 to 17 (inclusive). | ||
Appendix Part II | Omit the Part. | ||
Appendix Part III | Omit the Part. | ||
Appendix Part IV | Omit the Part. | ||
*Appendix Part V | From item 7 omit “two miles” and insert instead “3 kilometres”. From item 93 omit “18.00” and insert instead “76.00” and omit “10.00” and insert instead “56.00”. From item 94 omit “20.00” and insert instead “116.00” and omit “12.00” and insert instead “26.00” and omit “90.00” and insert instead “462.00”. From item 95 omit “50 cents per mile one way after the first mile up to and including 50 miles (b) Exceeding 50 miles” and insert instead “70 cents per kilometre one way after the first kilometre up to and including 80 kilometres; (b) exceeding 80 kilometres”. | ||
*Appendix Part VI | Omit “66.33” and insert “61.63”. Omit “other than fees payable to the Court ($34.00)”. Omit “and court fees” where occurring. Omit “180.00” and insert “142.00”. Omit “12.77” and insert “8.77”. Omit “43.38” and insert “2.78”. | ||
| (Repealed) | Mining Act—Appeal Rules. | (Repealed) | (Repealed) |
No 148 dated 14th July 1952. | Barristers’ Seniority and Suspension from Practice Rules. | Rule 3 | Omit the rule. |
Schedule B Rules continued
The rules described in this Schedule are those published in the Gazette of the number and date specified, as amended from time to time, and referred to by the title specified.Gazette in which rules published | Title of rules |
No 139 dated 15th December 1967 | Companies Rules 1968. |
No 148 dated 14th July 1952 | Maintenance Orders (Facilities for Enforcement) Rules. |
Schedule C Rules rescinded
The rules described in this Schedule are those published in the Gazette of the number and date specified, as amended from time to time, and referred to by the title specified.Gazette in which rules published | Title of rules |
No 190 dated 19th September, 1952 | Admiralty Rules. |
No 1 dated 6th January 1967 | Adoption of Children Rules 1966. |
No 148 dated 14th July 1952 | Alternative Defendants and Third Party Rules. |
No 148 dated 14th July 1952 | Arbitration Rules. |
No 148 dated 14th July 1952 | Arrest on Mesne Process Rules. |
No 148 dated 14th July 1952 | Auctioneers, Stock and Station and Real Estate Agents Fidelity Guarantee Fund Claims Rules. |
No 109 dated 7th June 1935 | Charitable Collections Act Rules. |
No 148 dated 14th July 1952 | Commercial Causes Rules. |
No 77 dated 28th July 1965 | Commercial Causes Rules. |
No 148 dated 14th July 1952 | Commissioners for Affidavits Rules. |
No 148 dated 14th July 1952 | Compensation for Resumption Rules. |
No 604 dated 13th October 1902 | Consolidated Equity Rules of 1902. |
No 148 dated 14th July 1952 | Convention Rules. |
No 148 dated 14th July 1952 | Costs Rules. |
No 8 dated 21st January 1966 | Court of Appeal Rules. |
No 148 dated 14th July 1952 | Court of Disputed Returns Rules. |
No 148 dated 14th July 1952 | Court of Marine Inquiry—Appeal Rules. |
No 148 dated 14th July 1952 | Damages (Infants and Persons of Unsound Mind) Act Rules. |
No 148 dated 14th July 1952 | Dentists Act—Appeal Rules. |
No 148 dated 14th July 1952 | Deserted Wives and Children Act—Entry of Judgment Rules. |
No 148 dated 14th July 1952 | Dormant Funds Rules. |
No 148 dated 14th July 1952 | Evidence on Commission Rules. |
No 148 dated 14th July 1952 | Execution against Property Rules. |
No 148 dated 14th July 1952 | Execution against the Person Rules. |
No 148 dated 14th July 1952 | Farmers Relief Act Rules. |
No 148 dated 14th July 1952 | Fines and Forfeited Recognizances Rules. |
No 148 dated 14th July 1952 | Foreign Judgments Enforcement Rules. |
No 148 dated 14th July 1952 | Foreign Tribunals Evidence and Service of Process Rules. |
No 148 dated 14th July 1952 | Gaol Delivery Rules. |
No 148 dated 14th July 1952 | General Rules of the Court. |
No 148 dated 14th July 1952 | Inebriates Act Rules. |
No 148 dated 14th July 1952 | Jurors’ Fines Enforcement Rules. |
No 89 dated 8th May 1953 | Landlord and Tenant Act—Appeal Rules. |
No 65 dated 14th June 1957 | Justices Act Appeal Rules. |
No 685 dated 20th December 1904 | Legal Process Facilitations Act Rules. |
No 148 dated 14th July 1952 | Local Government Act—Extension of time for Commencing Proceedings Rules. |
No 148 dated 14th July 1952 | Medical Practitioners Act—Appeal Rules |
No 148 dated 14th July 1952 | Mental Defectives (Convicted Persons) Act—Appeal Rules. |
No 148 dated 14th July 1952 | Motor Vehicles (Third Party Insurance) Act—Appeal Rules. |
No 148 dated 14th July 1952 | Motor Vehicles (Third Party Insurance Act)—Extension of Time Rules. |
No 148 dated 14th July 1952 | Mining Act—Appeal Rules. |
No 5 dated 5th January 1937 | Probate Rules. |
No 139 dated 15th December 1967 | Protective Jurisdiction Rules 1968. |
No 148 dated 14th July 1952 | Prothonotary (Chamber Work) Rules. |
No 148 dated 14th July 1952 | Registration of Births Rules. |
No 148 dated 14th July 1952 | Service and Execution of Process Act Rules. |
No 148 dated 14th July 1952 | Sheriffs Rules. |
No 148 dated 14th July 1952 | Solicitor’s Fidelity Fund Claims Rules. |
No 148 dated 14th July 1952 | Solicitors’ Practices Rules. |
No 148 dated 14th July 1952 | Superannuation Act—Appeal Rules. |
No 148 dated 14th July 1952 | Taxation Appeal Rules. |
No 138 dated 13th December 1946 | Testator’s Family Maintenance and Guardianship of Infants Act Rules. |
No 148 dated 14th July 1952 | Transport Act Rules. |
No 148 dated 14th July 1952 | Workers’ Compensation Act—Extension of time for Instituting Proceedings Rules. |
Schedule D Powers of Masters
Pt 60, r 1A.
sch D, hdg (side note to heading): Am 23.9.1988.
Part 1 Powers under NSW and Commonwealth Acts and regulations
Column 1 | Column 2 | Column 3 |
Act or regulation and provision | Description | Restriction |
• section 5 | Enforcement of judgment of British dominion | |
• section 12 (1) | Order to witness to attend | |
• section 4B | Extension of time for registering, filing etc | |
• section 14 | Persons in default; orders for compliance or stay of proceedings | |
• section 23 (2) | Contraventions of Act; orders for compliance or adjournment of proceedings | |
• section 32 | Disposition of assets | |
• section 18 (1) | Examination before the Court | |
• section 30 | Correcting award | |
• section 35 (1) (a) | Delivery of award | |
• section 36 | Costs of abortive arbitration | |
• section 46 (2) (a) | Terminating proceedings for delay | |
• section 48 | Extension of time | For making award only |
• section 53 | Stay of proceedings | |
• section 54 | Interpleader | |
• section 60 (d) | Service of notices | |
• section 363 | Security for costs | |
Companies Code: | ||
• section 123 | Reduction of capital | |
• section 212 | Rectification of Register of Company Charges | |
• Part 12, Division 2 | Winding up by the Court | Except sections 377 (5) and 388 |
• section 396 (4) | Members’ voluntary winding up: meeting | |
• section 401 | Creditors’ voluntary winding up | |
• section 402 | Creditors’ voluntary winding up: recognized company | |
• section 406 | Voluntary winding up: remuneration of liquidator | |
• Part 12, Division 4 | Winding up: companies | In a winding up by the Court and except sections 417 (2), 420, 423 (1), 427 (2), 454 and 462 (6) of the Code |
• Part 12, Division 6 | Winding up: bodies other than companies | Except in respect of sections 417 (2), 420, 423 (1), 427 (2), 454 and 462 (6) of the Code |
• section 533 | Security for costs, etc | |
• section 536 | Directions: meetings ordered by the Court | |
• section 539 | Irregularities, extension of time, etc | Restricted orders or declarations in or for the purposes of proceedings for other relief under the Code which the master may grant |
• section 541 | Examination of persons concerned with corporations | |
Companies (New South Wales) Regulations— | ||
• regulation 78 | Liquidator’s account | |
• regulation 81 | Deposit with liquidator | |
• regulation 87 | Costs of meeting | |
• regulation 90 | Adjournment of meeting | |
• regulation 96 | Votes of secured creditors | |
• regulation 118 | Bills of exchange | |
• regulation 123 | Costs of proof | |
• regulation 125 | Dealing with proof | |
• regulation 126 | Time for appeal | |
• regulation 134 | Time for appeal | |
• regulation 143 | Distribution of surplus | |
• section 77 | Registration of interstate forfeiture order etc | |
• section 82 (1) | Order for cancellation of registration of interstate forfeiture order etc | |
• section 14 | Attachment order | |
• section 77 | Directions relating to a receiver | |
• section 85 | Bill of costs | |
• section 36A | Division of chattels | |
• section 66G | Trustees for sale | |
• section 89 | Modification of easements, etc | |
• section 98 (1) | Amount due by absent, etc mortgagee | |
Corporations Act 2001 of the Commonwealth: | ||
• section 274 | Rectification of register of company charges | |
• Part 5.3A | Administration of company’s affairs with view to executing deed of company arrangement | |
• Part 5.4 | Winding up | |
• section 461 | Winding up | Where the application is not opposed |
• Part 5.4B | Winding up | Except ss 472 (2), (3) and (6), 486A, 486B and 487 |
• section 495 (4) | Members’ voluntary winding up: meeting | |
• section 500 | Creditor’s voluntary winding up | |
• section 504 | Voluntary winding up: remuneration of liquidator | |
• Part 5.6 | Winding up: companies | In a winding up by the court and except ss 532 (2), 536, 540 (1), 544 (2) and 568 |
• Part 5.7 | Winding up: bodies other than companies | Except in respect of ss 532 (2), 536, 540 (1), 544 (2) and 568 |
• section 597 | Examination of persons concerned with corporations | |
• section 1274 | Directions to make good default in lodgement of documents | |
• section 1319 | Directions, meetings ordered by the Court | |
• section 1321 | Appeals from decisions of receivers, liquidators etc | Restricted to appeals in respect of decisions under section 430 (3) or 475 (8) of the Corporations Act 2001 |
• section 1322 | Irregularities, extension of time etc | Restricted to orders or declarations in or for the purposes of proceedings for other relief under the Corporations Act 2001 which the Master may grant |
• section 1324 | Injunctions | Restricted to orders where it is alleged that there has been an inappropriate reduction of capital or share buy back |
• section 1335 | Security for costs etc | |
Corporations Regulations 2001 of the Commonwealth: | ||
• Part 5.6 | Winding up | |
• section 4 | Sanctioning settlements, etc | |
• section 5 | Directions, etc, as to money paid to Public Trustee | |
• section 7 | Assessments, directions, certificates and references as to costs | |
• section 143 | Transfers to District Court | |
• section 145 | Removal of proceedings | |
• section 62 | Disputed claims for compensation | |
Family provision | ||
• sections 6, 8, 9 | Enforcement of judgment of a country | |
Foreign Judgments Act 1991 of the Commonwealth: | ||
• sections 6, 7, 8, 9 | Enforcement of judgment of a country | |
• section 17A (1) | Joinder of insurer etc | |
International War Crimes Tribunals Act 1995 of the Commonwealth: | ||
• section 45 (1) | Registration of a forfeiture order | |
• Part 5 | Charging orders | |
• section 38 (1) (b) | Excusing juror | |
• section 72 | Transfer to Land and Environment Court | |
• section 2A (3) | Time for writ of possession | |
• section 9 (1) | Payment into Court | |
• section 9 (2) | Direction for entry of judgment | |
• section 10 | Stay | |
• section 27 (2) | Relief relating to bond | |
• section 27 (3) | Cancellation of bond | |
• section 80 (7) (d) | Claim against Fidelity Fund; time | |
• section 87 (4) (b) | Final date for claim against Fund | |
• section 90C | Enforcement against Fund | |
• section 102 | Directions relating to a receiver | |
• section 208L | Appeal against decision of costs assessor | |
• section 208M | Leave to appeal, appeal: determination of costs assessor | |
• section 208N | Suspension of costs determination and ending suspension | |
• section 209C | Order for barrister or solicitor to give to a client a bill of costs or certain documents | |
• section 58 (2) | Extension of limitation period—personal injury action not surviving | |
• section 59 (2) | Extension of limitation period—personal injury action which survives | |
• section 60 (2) | Extension of limitation period—compensation to relatives claim | |
• sections 60C–60H | Personal injury cases | |
• section 73 (1) | Extension of limitation period—arbitration | |
• Schedule 5 clause 5 (5) | Transitional provisions | |
• section 13 | Fraudulent investment of spouse’s money | |
• section 41 (3) | Removal of proceedings | |
• section 42 (4) | Explanation for non compliance | |
• section 42 (5) | Allow proceedings to continue | |
• section 43A (7), 44B | Dismiss proceedings | |
• section 47A | Joinder of insurer | |
• section 48 | Co-operation with person against whom claim made and the person’s insurer | |
• section 52 (4) | Commencing proceedings | |
• section 66A (1) | Joinder of insurer | |
• section 36 (5) | Extension of time for giving notice | |
• section 36 (7), (8) | Joinder of Nominal Defendant | |
• section 70 (2) | Explanation for non- compliance | |
• section 70 (3) | Allow proceedings to continue | |
• section 73 (4), 76 | Dismiss proceedings | |
• section 79 | Joinder of insurer | |
• section 85 | Co-operation with person against whom claim made and the person’s insurer | |
• section 109 (1) | Commencing proceedings | |
• section 119 (1) | Joinder of insurer | |
• section 14E (1) and (2) | Joint hearing and transfer | |
Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth: | ||
• section 34A | Registration of a foreign forfeiture order, a foreign pecuniary penalty order or a foreign restraining order | |
• section 34A (5) | Registration of amendment to a foreign forfeiture order, a foreign pecuniary penalty order or a foreign restraining order | |
• section 34G | Order cancelling registration | |
Offshore Minerals Act 1994 of the Commonwealth: | ||
• section 351 (1) (a) | Removal of caveat | |
• section 351 (1) (c) | Extending caveat | |
• section 351 (2) | Non-registration of further caveat | |
• section 351 (1) (a) | Removal of caveat | |
• section 351 (1) (c) | Extending caveat | |
• section 351 (2) | Non registration of further caveat | |
Proceeds of Crime Act 1987 of the Commonwealth: | ||
• section 23A (2) | Direction to DPP to give or publish notice of registration | |
Proceeds of Crime Act 2002 of the Commonwealth: | ||
• Division 1 of Part 2-2 | Forfeiture order | |
De facto relationships Domestic relationships | ||
• section 83J | Directions relating to a receiver | |
• section 83V | Directions relating to a receiver | |
• section 160 | Directions relating to a receiver | |
• section 161 | Directions relating to a receiver | |
• section 74D (2) | Extending caveat | |
• section 74K (2) | Extending caveat | |
• section 74MA (2) | Withdrawal of caveat | |
• section 74O | Further caveat | |
Service and Execution of Process Act 1992 of the Commonwealth: | ||
• section 17 (1) | Shortening of time for appearance | |
• section 57 (1) | Leave to serve a subpoena outside the State etc | |
• section 67 (1) | Order to produce | |
• section 76 (1) | Leave to serve a subpoena outside the State etc | |
• section 79 (1) | Order to produce | |
Maintenance | Except sections 13 to 21 inclusive (guardianship) | |
• section 63 | Judicial advice | |
• section 70 | New trustees | |
• section 71 | Vesting orders | |
• section 75 (1) | Deceased mortgagee | |
• section 81 | Advantageous dealings | |
• Part 4 | Payment into Court | Except section 97 (2) |
• section 15B (4) | Directions | |
• section 21 (2) | Ordering account | |
• section 22 | Ordering audit | |
• section 27 (1) | Payment out | |
• section 13 | Gift to interested witness | |
• section 15A | Effect of termination of marriage | |
• section 84 | Application for legacy, etc | |
• section 146 | Caveat: application for grant to proceed | |
• section 151A (5) (as continued in effect by Part 18C of Schedule 6) | Leave to revoke election | |
• section 151C | Commencing proceedings | |
• section 151D | Commencing proceedings |
Part 2 Limitations of powers under provisions of the rules
Column 1 | Column 2 | Column 3 |
Provision of these rules | Description | Extent of power |
Part 1B— | ||
| Mode of trial | By consent. |
Part 14A | Technology and Construction List | |
Part 27 | Taking evidence otherwise than at the trial. | Where the order is not made under section 7 or section 10 of the Foreign Evidence Act. |
Part 28— | ||
| Injunctions, etc, before commencement of proceedings. | |
Part 30— | ||
| Orders for sale of land, etc | |
Part 32 | Stated cases | |
Part 33— | ||
| Mode of trial | By consent. |
Part 34— | ||
| Setting aside verdict, finding or assessment made when party absent. | |
Part 41— | ||
| Review of minute of judgment or order. | Where the master has directed entry of the judgment or made the order. |
| Furnishing copy of an adoption order. | |
Part 42— | ||
| Warrant for arrest in default of attendance. | Where paragraph 6 of Part 3 of this Schedule applies. |
Part 49— | ||
| Discharging or varying judgment or order. | |
Part 51 and Part 51AA | Court of Appeal | |
Part 54 | Prerogative and other orders | Where paragraph 5 of Part 3 of this Schedule applies. |
Part 55— | ||
| Contempt in the face or hearing of the Court. | Where paragraph 6 of Part 3 of this Schedule applies. |
| Arrest | |
Part 60 | Masters | |
Part 61— | ||
| Registrars | Where the registrar is a registrar in a Division. |
Part 67— | ||
| Defamation: statement in open Court. | |
| Defamation: offer of amends | |
Part 68— | ||
| General administration of an estate. | |
| Conduct of sale of property | |
Part 69 | Infants’ Custody and Settlements Act Rules. | |
Part 70— | ||
| Affidavit of fitness of new trustee. | |
| Joining a defendant | |
| Notice of payment into Court | |
| Inquiries relating to application of funds. | |
Part 72 | Reference to referee or arbitrator. | |
Part 73 | Adoption of Children | |
Part 75 | Criminal proceedings | |
Part 76 | Protective business | Except as provided in Part 76. |
Part 78 | Probate | Under Part 78 rules 34B (gift to witness), 60 (citation), 63, 69 and 70 (caveat). |
Part 3 General
1
Trial (except with a jury) of proceedings, where the only matters in question are the amount of damages and costs.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
2
Trial (except with a jury) of proceedings where the only matters in question are the value of goods and costs or the amount of damages, the value of goods and costs.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
3
Trial of proceedings pursuant to a direction under rule 9 of Part 56 (which relates to interpleader).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
3A
(Interest up to judgment) Trial of proceedings where the only matters in question are interest under section 94 of the Act and costs.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
4
Any:where referred to a master by an order of a Judge or of the Court of Appeal.
(a) trial or hearing of proceedings (except with a jury), or
(b) matter (other than a matter of proceedings tried or to be tried with a jury),
(c), (d) (Repealed)
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
5
An appeal from, or an application for prerogative or declaratory relief relating to, the Consumer, Trader and Tenancy Tribunal.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
5A
Proceedings referred to a master by a Judge where those proceedings are an appeal from, or an application for prerogative or declaratory relief relating to, the Administrative Decisions Tribunal.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
5B
An appeal from a Local Court in any civil matter.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
6
Punishment for contempt in the face of the Court or in the hearing of the Court, where the Court is constituted by the master concerned, and punishment for breach of an undertaking given to the Court constituted by a master.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
7
Under section 16 of the Act, the application of the Act to, and the effect of the repeals and amendments made by the Act on, proceedings commenced in the Court before the commencement of the Act.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
8
(Possession of land) Trial or hearing of proceedings (except with a jury) where:
(a) the only matter in question is a claim for the possession of land, or
(b) the only matters in question are a claim for the possession of land and one or more of the following:(i) a claim or cross-claim for damages,(ii) a claim or cross-claim for other money,(iii) a claim or cross-claim for costs.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
9
(Costs) Hearing of proceedings where the only matter in question is the matter of costs.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
10
Payment, transfer or delivery out of Court, and investment, of funds in Court in the Equity Division.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
11
Proceedings for perpetuation of testimony.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
12
Orders under section 100 of the Act (which section relates to an appointment to execute an instrument).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
13
(Extension of time for action) Under any provision mentioned in Schedule 1 of the Notice of Action and Other Privileges Abolition Act 1977 to which section 3 to that Act (which section relates to a cause of action accrued before the commencement of that Act) applies.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
14
(Lost bond or debenture) Orders under any 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.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
15
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.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
16
Order under section 95 of the Act (which section relates to interest on money payable under a judgment).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
17
(Running down cases) Trial (except with a jury) of proceedings to which section 87 of the Act applies (which section relates to running down cases).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
17A
Trial (except with a jury) of proceedings in the Common Law Division on a claim in which:
(a) damages are claimed in respect of the death of or personal injuries to any person,
(b) damages are claimed in respect of damage to property and:(i) the proceedings include a claim in respect of the death of or personal injuries to any person, and(ii) if separate proceedings were brought in respect of:(A) the claim referred to in subparagraph (i), andsome common question of fact would arise in both claims, or(B) the claim in respect of damage to property,
(c) contribution is claimed under Part III of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of damages of the nature referred to in paragraph (a) or (b).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
18
(Companies Code) An appeal under section 538 of the Companies (New South Wales) Code in respect of a decision under section 329 (3) or section 375 (8) of that Code (which subsections relate to the costs, etc, of a person making a report to a receiver or liquidator).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
19
(Associations Incorporation Act) Appeal under section 58 of the Associations Incorporation Act 1984 in respect of a decision under section 375 (8) of the Companies Code in relation to an incorporated association (which subsection relates to the costs, etc of a person making a report to a liquidator).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
20, 21 (Repealed)
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
22
Trial (except with a jury) of proceedings under section 205F (1) or section 206 (6) or section 207 (2) or section 243T (3) of the Customs Act 1901 of the Commonwealth.
23
Trial (except with a jury) of proceedings under section 69E (1) or section 69L or section 69R (3) or section 69W (4) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 of the Commonwealth.
24
Trial (except with a jury) of any proceedings arising out of or under the Partnership Act 1892 or any question arising in proceedings where the plaintiff alleges the plaintiff and any defendant were partners and that the partnership has terminated.
25
Trial (except with a jury) of proceedings for any of the following matters:
(a) the foreclosure or redemption of a mortgage or the enforcing of any charge or lien,
(b) the specific performance, rectification, delivery up or cancellation of any agreement for the sale or purchase of any property or the lease of any property,
(c) relief against fraud or mistake,
(d) the execution of a trust or a declaration that a trust subsists,
(e) the administration of the estate of a deceased person,
(f) any equitable claim or demand for recovery of money or damages, whether liquidated or unliquidated (not being a claim or demand of a kind to which paragraph (a), (b), (c), (d) or (e) applies).
26
Trial (except with a jury) of any proceedings in the Equity Division in which all the parties are related to each other by blood or marriage (other than adoption proceedings or matters arising in the Court’s parens patriae jurisdiction).
27
Trial (except with a jury) of any proceedings arising out of or under the Frustrated Contracts Act 1978, the Contracts Review Act 1980 or the Fair Trading Act 1987.
28
In proceedings in which a master has jurisdiction to determine a matter under these rules, any inherent jurisdiction of the Court to decide any associated or appendant matter in issue in the proceedings.
29
Any jurisdiction of the Court that is exercisable by a registrar of the Court.
sch D: Subst 20.10.1972.
Schedule E Powers of registrars
Pt 60, r 1;
Pt 61, r 1.
Part 1
Column 1 | Column 2 | Column 3 |
Provision of these rules | Description | Restriction |
Part 1— | ||
| Court file | |
Part 1B— | ||
| Pending proceedings: directions and setting down for trial. | |
| Court fees in pending proceedings. | |
| Judgments, etc and orders | |
Part 2— | ||
| Extension and abridgment of time. | |
| Fixing time | |
Part 3 | Preliminary discovery | |
Part 5— | ||
| Directions | Restricted to proceedings in a Division. |
Part 6— | ||
| Leave to cross-claim | |
Part 7— | ||
| Order extending validity of originating process. | |
Part 8— | ||
| Leave to join causes of action. | |
| Leave to join parties | |
| Leave to not join parties | |
| Stay proceedings until jointly liable persons added as defendants. | |
| Order separate trials or other order to avoid inconvenient joinder. | |
| Order addition of parties | |
| Order removal of party | |
| Addition, etc, of parties on death etc | |
Part 9— | ||
| Possession of land; service by affixing copy of originating process. | |
| Substituted service | |
| Confirmation of informal service. | |
| Service on person in default by filing. | |
| Orders as to the giving of notice by the Court. | |
Part 10— | ||
| Leave to serve originating process outside the State and confirmation thereof. | |
| Leave to serve documents outside the State and confirmation thereof. | |
Part 11— | ||
| Leave to take step without filing appearance. | |
| Leave to file defence after late appearance. | |
| Setting aside originating process etc | |
Part 13— | ||
| Dismiss proceedings where non-attendance by plaintiff. | |
Part 14A— | ||
| Order for transfer of proceedings to Equity Division and entry in Technology and Construction List. | |
Part 14B— | ||
| Dismiss proceedings in Possession List if defence not filed | |
Part 14C— | ||
| Enter proceedings in the Professional Negligence List. | |
Part 15— | ||
| Leave as to verifying defence by affidavit. | |
Part 16 | Particulars | |
Part 17— | ||
| Default judgment | Restricted to the following— (a) judgment on a claim for a liquidated demand where the only other claim or claims, if any, made against the defendant is or are for a liquidated demand, for an order referred to in paragraphs (c) (e), (b) inclusion, in a judgment given under Part 17 rule 9, of interest pursuant to an order referred to in paragraph (c), (c) an order under section 94 (1) or (1A) of the Act in respect of a liquidated demand where judgment on the demand is, or is to be, given or entered under Part 17, (d) an order under section 95 of the Act in respect of a judgment on a liquidated demand given or entered under Part 17, (e) an order for costs when exercising the powers of the Court under paragraphs (a) (d) above. |
| Judgment for costs alone | |
Part 18— | ||
| Leave to withdraw admission | |
Part 19— | ||
| Leave to serve less than 3 days’ notice of motion. | |
| Appointment for further hearing of motion. | |
Part 20 | Amendment | |
Part 21— | ||
| Leave for withdrawal of appearance. | |
| Leave to discontinue | |
| Stay to secure costs after discontinuance. | |
Part 23 | Discovery | |
Part 24 | Interrogatories | |
Part 25— | ||
| Stay | |
| Order for medical examination | |
| Order for rehabilitation tests | |
| Inspection of property etc | |
| Default | Except for an order that: (a) proceedings be dismissed as to the whole or any part of the relief claimed in the proceedings, or (b) a defence be struck out. |
Part 26 | Directions | Except a direction or order mentioned elsewhere in Column 1 whether or not subject to a restriction in Column 3. |
Part 27— | ||
| Evidence by deposition | Except where the order is made under section 7 or section 10 of the Foreign Evidence Act. |
Part 29— | ||
| Receivers | |
Part 31— | ||
| Consolidation, etc | |
Part 32A— | ||
| Order dismissing. | Unopposed order only. |
Part 33— | ||
| Setting down for trial | |
| Notice of trial | |
Part 36— | ||
| Attendance and production | In relation to an examination under section 541 of the Companies Code or section 597 of the Corporations Law. |
| Medical reports | |
| Medical expert: cross-examination. | |
| Order re notice under s 67 or s 99 of the Evidence Act. | |
| Attendance of a person confined for the purpose of examination. | |
| Notice to produce | |
Part 37 | Subpoenas | |
Part 38— | ||
| Leave for affidavit, together with annexures, to exceed 50 pages. | |
| Using irregular affidavit | |
Part 39— | ||
| Remuneration of court expert | |
Part 40— | ||
| Order for payment to registrar | |
| Setting aside default judgment | Restricted to proceedings in the Possession List. |
Part 42— | ||
| Leave for issue of writ of possession. | |
Part 43 | Discovery in aid of enforcement. | |
Part 44 | Writs of execution: general | |
Part 45 | Levy of property | |
Part 46 | Garnishment | |
Part 47 | Charging and stop orders | |
Part 48 | Accounts and enquiries: general. | |
Part 49 | Accounts Inquiries, etc, Equity Division. | Except rule 3 (4) (b). |
Part 50— | ||
| Payment out of Court of interest accruing on money paid into Court. | Restricted to matters where 12 months or more has elapsed since the Court has ordered that any money remaining in Court be paid. |
| Non-attendance of parties following notice by Court in relation to proposed order concerning money paid into Court. | Restricted to matters where 12 months or more has elapsed since judgment given. |
Part 51B— | ||
| Direction concerning filing of affidavit. | |
| Direction concerning filing of affidavit. | |
Part 52— | ||
| Setting aside certificate | |
| Probate: leave to tax costs | |
| Assessment of costs of obtaining copy of judgment. | |
Part 52A— | ||
| Costs order against trustee or mortgagee | Restricted to proceedings in the Possession List. |
| Costs order against solicitor | Restricted to costs in matters within registrars’ powers. |
| Costs order against barrister | Restricted to costs in matters within registrars’ powers. |
| Costs order | |
| Assessment of costs of obtaining copy of judgment. | |
| Costs order in accordance with rule. | |
| Costs | Consent order only. |
Part 53 | Security | |
Part 58 | Taking evidence for foreign and Australian courts and tribunals. | |
Part 59 | Enforcement of external judgments. | |
Part 59A | Enforcement of external judgments. | |
Part 62— | ||
| Deposit for Sheriff’s fees | |
| Determination of amount of fees payable to Sheriff. | |
Part 63— | ||
| Appointment of tutor | |
| Service of document on approved person. | |
Part 64— | ||
| Striking out appearance of person sued in a business name. | |
| Leave to proceed before amendment made. | |
| Variation of judgment or order | |
Part 65— | ||
| Search in the registry | Except subrule (3). |
Part 66— | ||
| Giving leave to issue subpoena to unrepresented litigant | |
| Notice of change of solicitor | |
Part 68— | ||
| Administration of estates: determination of question. | |
Part 71A— | ||
| Notifying the Sheriff of change in interest rate. | |
| Assessment of costs and expenses. | |
Part 72B | ||
Part 72C— | ||
| Directions | |
Part 80— | ||
| Time for advertising winding up application. | |
| Order substituting plaintiff | |
| Examination (Companies Code) | |
Part 80A— | ||
| Examination (Corporations Law) | |
Part 82— | ||
| Notaries: removal from Roll on death. |
Part 2 General
1
Leave to serve a subpoena or summons under section 16 (1) of the Service and Execution of Process Act 1901 (Commonwealth Act No 11 of 1901).
2
Any judgment by consent and any order by consent or of course.
2A, 2B (Repealed)
2C
Accepting an undertaking given to the Court for the payment of a sum of money within a time specified in the undertaking.
3
Proceedings and application under section 72 of the Act for the production for examination of a person confined.
3A
Orders under section 76B (1) and (4) of the Act (which section relates to reference to an arbitrator for determination pursuant to the Arbitration (Civil Actions) Act 1983).
3B
Orders under section 18A or section 18D (2) (c) or (3) of the Arbitration (Civil Actions) Act 1983 (which section relates to a rehearing before the Court).
4
The vouching or passing of the account of a receiver, manager, guardian, trustee, mortgagee or other fiduciary or the taking of any account, the making of any inquiry or the doing of any other thing to which Part 49 applies and which is directed by any judgment or order. (This paragraph does not apply in relation to accounts referred to in section 85 of the Wills, Probate and Administration Act 1898, or in Part 76 rule 32 which relates to Protective Business.)
5
A certificate under section 13 (1) of the Foreign Judgments Act 1973 or section 15 (1) of the Foreign Judgments Act 1991 of the Commonwealth with respect to an action.
5A
Order under section 6 of the Foreign Judgments Act 1973 (which relates to ordering that a foreign judgment be registered) where a request has been added under Part 59 rule 2 (3).
6
Certifying a copy of a document to be a true copy where the registrar is authorised under any Act or Commonwealth Act or under the rules to issue or furnish a certificate or office copy of the document.
7
Orders under the following provisions of the Service and Execution of Process Act 1992:
(a) section 30 (1) (which relates to shortening time for service of a subpoena),
(b) section 35 (3) (which relates to receipt of expenses of complying with a subpoena),
(c) section 45 (3) (which relates to receipt of expenses of complying with an order to produce a prisoner), and
(d) section 87 (4) (which relates to receipt of expenses of complying with a warrant).
8
(Costs) Hearing of proceedings where:
(a) the only matter in question is the matter of costs,
(b) the proceedings are not brought under:(i) section 208L or section 208M of the Legal Profession Act 1987 (which relate to appeals, and applications for leave to appeal, against a decision or determination of a costs assessor),(ii) section 208N of the Legal Profession Act 1987 (which relates to a suspension and an end of a suspension of a decision or determination of a costs assessor), or(iii) Part 52 rule 62 (which relates to review of a taxing officer’s decision), and
(c) it is unlikely in the opinion of the registrar that the costs will exceed $20,000.
8A (Repealed)
9
Order under section 95 of the Act in respect of a judgment given or entered under Part 17.
10
(Transfer, etc of proceedings) Order by consent or expressly unopposed under—
(a) section 143 or section 145 of the District Court Act 1973, or
(b) section 14E (1) and (2) of the Motor Vehicles (Third Party Insurance) Act 1942.
11
Any:which:
(a) trial or hearing of proceedings, or
(b) matter,
(c) a master may conduct or deal with, and
(d) is referred to a registrar by order of a Judge or master.
12, 13 (Repealed)
14
(Companies Code) Orders under the following provisions of the Companies Code:
(a) section 325 (which relates to the remuneration of a receiver, etc),
(b) section 351 (3) (which relates to the inspection of books of a company under official management),
(c) section 363 (which relates to a winding up order),
(d) section 373 (2) (which relates to the remuneration of a provisional liquidator),
(e) section 373 (3) (which relates to the remuneration of a liquidator),
(f) sections 381 and 382 (1) (which relate to release and dissolution),
(g) section 385 (2) (b) (which relates to the remuneration of a special manager), and
(h) section 387 (which relates to the inspection of books of a company in a winding up by the Court),
(i) under section 413 (2) (which relates to a voluntary winding up) on an application to exercise the power of the Court under section 387 of the Code,
(j) section 459 (6), where the summons by which the application is made has been served on the Corporate Affairs Commission,
(k) section 541 (which relates to the examination of persons concerned with corporations) except subsection (15).
14A
(Leave to proceed against company) Order under section 371 (2), 401 (2) or 402 (2) of the Companies Code where the proceeding is for damages in respect of the death of or bodily injury to a person and is based upon an act, neglect or default of the company or recognised company for which, if proved, the company or recognised company would incur liability to the plaintiff in the proceeding.
15
(Companies Code) Any matter which arises in a winding up by the Court under the Companies Code and is referred to a registrar by a Judge or the Court of Appeal.
16
Holding an examination under section 541 of the Companies Code.
17
(Conveyancing Act 1919) Where there is no defendant, orders under section 66G of the Conveyancing Act 1919.
18
Accepting an undertaking given to the Court.
19
Accepting the continuation of an undertaking given to the Court.
20
Issuing a certificate under section 16 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth).
21–23 (Repealed)
24
(Commercial Arbitration Act 1984) Orders under section 33, of the Commercial Arbitration Act 1984 (which section relates to enforcement of an award).
25
(De Facto Relationships) Trial of proceedings under the Property (Relationships) Act 1984 only where referred by the Court.
26 (Repealed)
27
(Taking evidence otherwise than at the trial) Orders under sections 6, 7, 20 and 21 of the Evidence on Commission Act 1995.
28
Orders under the following provisions of the Corporations Act 2001 of the Commonwealth:
(a) section 425 (which relates to the remuneration of a receiver, etc),
(aa) section 429 (3) (which relates to extending the period for a report),
(aaa) section 440D (1) (which relates to leave to proceed against a company under administration) where the claim against the company is, or includes, a claim for damages for personal injury,
(ab) section 449E (1) (which relates to the remuneration of an administrator),
(b) (Repealed)
(ba) section 459A (which relate to winding up a company in insolvency),
(bb) section 459R (which relates to extending the period for determination of a winding up application),
(bc) section 465B (which relates to substitution of applicants for winding up),
(c) section 471B (which relates to leave to proceed against a company in liquidation) where the claim against the company is, or includes, a claim for damages for personal injury,
(ca) section 473 (1), where the application is not opposed,
(d) section 473 (2) (which relates to the remuneration of a provisional liquidator),
(e) section 473 (3) (which relates to the remuneration of a liquidator),
(ea) section 473 (7), where the application is not opposed,
(f) sections 480 and 481 (1) (which relate to release and dissolution),
(g) section 484 (2) (b) (which relates to the remuneration of a special manager),
(h) section 486 (which relates to the inspection of books of a company in a winding up by the court),
(ha) section 500 (2) (which relates to the granting of leave to proceed against a company after the passing of a resolution for voluntary winding up),
(i) section 511 (which relates to a voluntary winding up) on an application to exercise the power of the court under s 486,
(ia) section 542 (3) (which relates to destruction of books),
(j) section 601AH (2), where the summons by which the application is made has been served on ASIC,
(ja) sections 596A, 596B and 596F (which relates to the examination of persons about corporations),
(k) section 597 (which relates to the examination of persons concerned with corporations) except subsection (15),
(l) (Repealed)
(m) section 1335 (which relates to ordering security for costs that may be payable by a plaintiff corporation).
29
Orders under the former section 471 (2) or sections 471B or 500 (2) of the Corporations Law where the proceedings are for damages in respect of the death of or bodily injury to a person and is based upon an act, neglect or default of the company for which, if proved, the company would, as the employer of that person and not otherwise, incur liability to the plaintiff in the proceedings.
30
Any matter which arises in a winding up by the court under the Corporations Act 2001 of the Commonwealth and is referred to a registrar by a Judge or the Court of Appeal.
31
Holding an examination under section 596A, 596B or 597 of the Corporations Act 2001 of the Commonwealth.
31A
Order under rule 11.3 (7), direction under rule 11.4 and leave under rule 11.8 (1) of the Supreme Court (Corporations) Rules 1999.
32 (Repealed)
33
Order under section 6 of the Foreign Judgments Act 1991 (Commonwealth) (which relates to ordering that a foreign judgment be registered) where a request has been added under Part 59A rule 2 (3).
34
Orders under clause 10 of Schedule 4 to the Co-operatives Act 1992 (which relates to the remuneration of a receiver, etc).
35
Orders under section 14 of the Adoption Information Act 1990.
36
Order by consent or expressly unopposed under section 110K of the Act (which allows the Court to refer a matter for mediation).
37
Making a finding as to:
(a) whether a reasonable request has been made under section 167 of the Evidence Act within the time prescribed by section 168 (1), (3), (5) or (6) of that Act, and
(b) whether a party has, without reasonable cause, failed or refused to comply with such a request.
38
Direction or order under section 50 or section 168 (2), (4) or (7) or section 169 (1) (a), (b) or (d) of the Evidence Act.
39
Orders under section 7 (1) of the Contractors Debts Act 1997.
40
Exercising the jurisdiction of the Court under Section 18 of the Uncollected Goods Act 1995, including granting leave under subsection (1).
Schedule F Forms
Pt 1, r 11.
Explanatory notes:
1. See Parts 1 and 65 generally, Part 66 rule 9, Part 76 rule 3 (protective proceedings), Part 78 rules 3 and 4 (probate proceedings).
2. Where a party is appearing in person, the appropriate alterations should be made to these forms.
3. The heading and title must appear in these forms as indicated in Form 1 unless otherwise indicated or required. As to the title, see Part 65 rule 1, Part 6 rule 3, Part 51 rules 49 and 57 and Forms 60, 60AA, 62, 62A, and 62AA (Court of Appeal), Part 73 rules 4 and 5 (Adoption Act 2000), Part 77 rule 24 (Testators’ Family Maintenance etc Act 1916), Part 77 rule 56 (Family Provision Act 1982), Part 76 rule 3 (protective proceedings), Part 78 rules 3 and 4 (probate proceedings), Part 80 rule 3 (Companies Code) and Part 80A rule 3 (3) (Corporations Law and ASC Law). The description of each form is part of the form.
4. Where Part 65 rule 8 and Part 66 rule 9 apply to a form, the form should conclude in accordance with form 4.
5. Underlining is not necessary.
6. Where Registrar appears, Prothonotary should be substituted if the proceedings are in the Common Law Division (section 119).
7. The requirements for folding a document and for a backsheet have been discontinued. See Form 1.
Form 1
(First page of a document. See Part 65 rule 1.)
(Leave clear a space of about 50 millimetres from the top of the page.)
IN THE SUPREME COURT OF NEW SOUTH WALES SYDNEY (or as the case may be) REGISTRY COMMON LAW (or as the case may be) DIVISION S10 of 19 (or as the case may require: see Part 1 rule 10 (1) and Part 65 rule 1 (1)) | (Do not describe the document here. The substance of the document shall be written within this space. A margin of not less than 25 millimetres shall be kept clear on the left hand side of the page. The dividing line to the left hand side shall be about 75 millimetres from the left hand edge of the page. The substance of a statement of accounts may commence on the following page. Where there is insufficient space on the left hand side of the page to include particulars of all the parties, this space may also be used to include particulars of parties and the substance of the document may be commenced on the following page. |
(Describe the document) NOTICE OF MOTION (or, in the case of an affidavit) AFFIDAVIT (and show the name of the deponent and date of swearing) J. Smith 7 May 19 | Above “COMMON LAW DIVISION”in the margin name the registry at the place for trial or hearing. In respect of proceedings under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 omit “plaintiff” from the title and insert instead “appellant” and omit “defendant” from the title and insert instead “respondent”. |
Filed for (Full name of filing party) HENRY JONES | Highlight the name of the document and the filing party by including a solid line above and below that information.) |
JOHN LEE
JAMES STYLES
CROSS-CLAIM JAMES STYLES
JOHN LEE and HENRY JONES
SECOND CROSS-CLAIM HENRY JONES
WILLIAM SMITH
(and in every document continue) Principal & Co. 22 Main Street, Yass 2582. telephone: 202 Agent & Co. 22 Pitt Street Sydney 2000 telephone: 222 2222 DX 222, Sydney |
Form 1: Ins 2.6.1972. Subst 23.12.1977. Am 6.7.1979; 23.5.1980; 14.11.1980; 8.7.1983; 20.8.1993. Subst 25.8.1995 (see erratum 16.2.1996). Am 29.8.2003.
Form 2
(To be set out in accordance with Form 1)
JOHN LEE and others
plaintiffs
plaintiffs
JAMES STYLES
defendant
and cross-claims
defendant
and cross-claims
(See Part 65 rule 1 (4).)
Form 2: Ins 2.6.1972. Am 23.12.1977; 8.7.1983.
Form 3
(To be set out in accordance with Form 1)
The application of HENRY JONES
(See Part 65 rule 1 (3).)
Form 3: Ins 2.6.1972. Am 23.12.1977; 8.7.1983.
Form 4
(Conclusion of documents for signature by a party unless otherwise indicated or required.)
(Signature)
Plaintiff’s solicitor
Plaintiff’s solicitor
Filed (dated if not filed): 7 May 19 .
(On an originating process or notice of appearance add the full name of the solicitor after “solicitor”. The appropriate alteration must be made where Part 66 rule 9 (3) (relating to signature for a solicitor) applies. See also Part 65 generally.)
Form 4: Ins 2.6.1972. Am 23.12.1977.
Form 5
P 4, r 1.
STATEMENT OF CLAIM
1. | } | (plead as required by the rules) |
2. |
The plaintiff claims:
1. | } | (specify the relief claimed) |
2. |
(Particulars under Part 16 may be given by a heading, for example:
PARTICULARS OF INJURIES
1. | } | (state the particulars of injuries) |
2. |
(These particulars may appear in the relevant place in the statement of facts or separately after the relief claimed, whichever is convenient.)
To the defendant (address):
1. You are liable to suffer judgment or an order against you unless the prescribed form of notice of your appearance is received in the Registry (or where a place in the Riverina or the Central West or the Northern Rivers district is the nominated place of trial,“or Sub-Registry”) within (14) days after service of this Statement of Claim upon you and you comply with the rules of court relating to your defence.
(or, where the proceedings are or include proceedings on a claim in respect of defamation—
1. If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified below, the proceedings may be heard and you will be liable to suffer judgment or an order against you in your absence. Before any attendance at that time you must enter an appearance in the Registry (or, where a place in the Riverina or the Central West or the Northern Rivers district is the place named for attendance add“or Sub-Registry”).
2. (Where the defendant is a corporation, add: A Corporation may not enter an appearance in, or defend, any proceedings otherwise than by a solicitor or by a director authorised in accordance with Part 11 rule 1A of the Supreme Court Rules 1970.)
3. (Where Part 7 rule 4 applies, add: You may, within (14) days after service of this Statement of Claim upon you, pay to the plaintiff or his solicitor the amount claimed (and, where the claim is for a liquidated demand together with an order for interest under section 94 of the Act, add— together with interest at the rate claimed or at (specify the rate fixed by Part 7 rule 4) per cent yearly whichever is less, from the beginning of the period for which interest is claimed until the date of payment (or as the case may require: see Part 7 rule 4 (2)) and also $ for costs. Further proceedings against you will be stayed when you also file a prescribed form of notice of payment.)
4. (Where Part 7 rule 8 (1) (a) applies, add: The plaintiff does not seek to disturb the occupation of (name of occupier).)
(Where Part 33 rule 2 (2) applies, add: Nominated place for trial: (here state a place appointed for sittings of the Court).)
(Where the proceedings are or include proceedings on a claim in respect of defamation, add the time and place for attendance)
Plaintiff: (name, address) (a minor)
(Tutor: (name, address))
Plaintiff’s address for Service: (Part 9 rule 6)
Address of Registry:
(where a place in the Riverina is the nominated place of trial, add“Sub-Registries: the offices of clerks of the Court at Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora and Tumut”).
(where a place in the Central West is the nominated place of trial, add—“Sub-Registries: the offices of the clerks of the Court at Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Parkes and Wellington”).
(where a place in the Northern Rivers district is the nominated place of trial, add—“Sub-Registries: the offices of the clerks 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 and Wauchope.”).
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 5: Ins 2.6.1972. Am 4.4.1975; 1.8.1975; 23.12.1977; 21.4.1978; 24.4.1981 (see erratum 29.5.1981); 25.2.1983; 9.12.1983 (see erratum 13.1.1984); 7.12.1984; 24.10.1986; 20.2.1987; 20.2.1998; 29.11.2002. Subst 14.3.2003. Am 5.9.2003.
Form 6
P 5, r 3.
SUMMONS
The Plaintiff claims—(or)
1. An order that (or as required)
2. An order that (or as required)
1. A declaration that
2. An order that (or as required)
(or)
The plaintiff claims an order that
(Where there is a defendant, add the following:
To the defendant (address):
The return day of this summons is:
Date: Time: Place:
If there is no attendance before the Court by you or by your counsel or solicitor at the date, time and place specified above, the proceedings may be heard and you will be liable to suffer judgment or an order against you in your absence.
Before any attendance at that time you must enter an appearance in the Registry (or, where a place in the Riverina or the Central West or the Northern Rivers district is the place named for attendance add“or Sub-Registry”).
(Where the defendant is a corporation, add: A Corporation may not enter an appearance in, or defend, any proceedings otherwise than by a solicitor or by a director authorised in accordance with Part 11 rule 1A of the Supreme Court Rules 1970.)
(Where the time for service under Part 5 rule 3 (3) has been abridged, add—
The time before which this summons is to be served has been abridged by the Court to 5 p.m. on 5 May 19 , or as the case may require).
Plaintiff: (name, address) (a minor)
(Tutor: (name, address))
Plaintiff’s Address for Service: (Part 9 rule 6)
Address of Registry:
(where a place in the Riverina is the place named for attendance, add“Sub-Registries: the offices of clerks of the Court at Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora and Tumut”).
(where a place in the Central West is the place named for attendance, add—“Sub-Registries: the offices of the clerks of the Court at Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Parkes and Wellington”).
(where a place in the Northern Rivers District is the place named for attendance, add—“Sub-Registries: the offices of the clerks 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 and Wauchope”.).
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
(This form does not apply to proceedings in the Court of Appeal)
Form 6: Ins 2.6.1972. Am 4.4.1975; 23.12.1977; 24.4.1981 (see erratum 29.5.1981); 8.7.1983; 7.12.1984; 19.7.1985; 24.10.1986; 20.2.1987; 20.2.1998; 29.11.2002; 13.6.2003; 5.9.2003.
Form 7
Form 7: Ins 2.6.1972. Am 4.4.1975; 23.12.1977; 6.7.1979; 14.11.1980; 24.4.1981 (see erratum 29.5.1981); 7.12.1984; 24.10.1986; 20.2.1987; 20.2.1998; 29.11.2002. Rep 13.6.2003.
Form 8
P 5, r 5.
APPOINTMENT FOR HEARING
The Court appoints 7 May 19 , at 10 a.m. at (address of Court) for the hearing.
(Signature and description of officer of the Court)
Filed: 31 March 19 .
Form 8: Ins 2.6.1972.
Form 9
P 6, r 11.
(To be set out in accordance with Form 1)
JOHN LEE
Plaintiff
JAMES STYLES
defendant
JAMES STYLES
cross-claimant
JOHN LEE
cross-defendant
Plaintiff
JAMES STYLES
defendant
JAMES STYLES
cross-claimant
JOHN LEE
cross-defendant
DEFENCE AND CROSS-CLAIM
DEFENCE
1. | } | (plead as required by the rules and see the prescribed form of Defence under Part 15 rule 3) |
2. |
CROSS-CLAIM
1. | } | (plead as required by the rules) |
2. |
The cross-claimant JAMES STYLES claims—
1. | } | (specify the relief claimed) |
2. |
(Particulars under Part 16 may be given in the manner indicated in the prescribed form of Statement of Claim under Part 4 rule 1, Form 5.)
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 9: Ins 2.6.1972. Am 29.3.1974; 23.12.1977; 8.7.1983; 20.2.1998; 29.11.2002; 5.9.2003.
Form 10
(Read this form with Form 1.)
P 6, r 11.
SECOND CROSS-CLAIM
1. | } | (plead as required by the rules including the facts required by Part 6 rule 11 (4)) |
2. |
The cross-claimant to the second cross-claim HENRY JONES claims—
1. | } | (specify the relief claimed) |
2. |
(Particulars under Part 16 may be given in the manner indicated in the form of Statement of Claim under Part 4 rule 1, Form 5.)
To WILLIAM SMITH (address):
1. You are liable to suffer judgment or an order against you unless the prescribed form of notice of your appearance is received in the Registry (or where a place in the Riverina or the Central West or the Northern Rivers district is the nominated place of trial,“or Sub-Registry)” within (14) days after service of this statement of cross-claim upon you and you comply with the rules of court relating to your defence.
2. (Where the defendant is a corporation, add: A Corporation may not enter an appearance in, or defend, any proceedings otherwise than by a solicitor or by a director authorised in accordance with Part 11 rule 1A of the Supreme Court Rules 1970.)
3. (Where Part 7 rule 4 applies, add: You may, within (14) days after service of this Second Cross-claim upon you, pay to HENRY JONES or his solicitor the amount claimed (and where the claim is for a liquidated demand together with an order for interest under section 94 of the Act, add—Together with interest at the rate claimed or at (Specify the rate fixed by Part 7 rule 4) per cent yearly whichever is less, from the beginning of the period for which interest is claimed until the date of payment (or as the case may require: see Part 7 rule 4 (2)) and also $ for costs. Further proceedings against you will be stayed when you also file a prescribed form of Notice of Payment.)
Cross-claimant to the second cross-claim: (name, address) (a minor).
(Tutor: (name, address))
Plaintiff’s address for Service:
Defendant’s Address for Service:
Address for Service for cross-claimant to the first cross-claim:
Address for Service for cross-defendant to the first cross-claim:
Address for Service for cross-claimant to the second cross-claim: (Part 9 rule 6)
Address of Registry:
(where a place in the Riverina is the nominated place of trial, add“Sub-Registries: the offices of clerks of the Court at Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora and Tumut”.).
(where a place in the Central West is the nominated place of trial, add—“Sub-Registries: the offices of the clerks of the Court at Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Parkes and Wellington”.).
(Where a place in the Northern Rivers district is the nominated place of trial, add—“Sub-Registries: the offices of the clerks 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 and Wauchope”.).
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 10: Ins 2.6.1972. Am 29.3.1974; 4.4.1975; 1.8.1975; 23.12.1977; 23.5.1980; 24.4.1981 (see erratum 29.5.1981); 25.2.1983; 9.12.1983 (see erratum 13.1.1984); 23.3.1984; 7.12.1984; 24.10.1986; 20.2.1987; 25.10.1996; 20.2.1998; 29.11.2002; 5.9.2003; 20.2.2004.
Form 11
Form 11: Ins 2.6.1972. Am 29.3.1974. Rep 23.5.1980.
Form 11A
P 6, r 13 (1).
(Cross-claim against plaintiff in summons)
(Heading and title as in Form 9)
(Heading and title as in Form 9)
CROSS-CLAIM
The cross-claimant JAMES STYLES claims—
1. | } | (state the relief claimed in the manner indicated in Form 6) |
2. |
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 11A: Ins 29.3.1974. Am 20.2.1998; 29.11.2002; 5.9.2003.
Form 11B
Form 11B: Ins 29.3.1974. Am 4.4.1975; 23.12.1977; 24.4.1981 (see erratum 29.5.1981); 8.7.1983; 7.12.1984; 24.10.1986; 20.2.1987; 20.2.1998; 29.11.2002. Rep 13.6.2003.
Form 12
P 7, r 4.
NOTICE OF PAYMENT
On 10 May 19 , the defendant paid to the plaintiff $ , made up as follows:
amount claimed | $ |
costs | $ |
(interest at the rate of % from 1 May 19 until the above date of payment) | $ |
total | $ |
Form 12: Ins 2.6.1972.
Form 13
P 7, r 8.
NOTICE OF CLAIM FOR POSSESSION
To (name of occupier or“the occupier”) of (describe land).
In the document served with this notice the plaintiff claims possession of the above land. You are served as a person in occupation of it or of part of it.
You may apply to the Court for an order that you be added as a defendant.
If you do not so apply within (10) days after this notice is served upon you (or, where the document served with this notice is a summons, at or before the appointment for hearing stated in the summons served with this notice) you may be evicted from the above land pursuant to a judgment entered in your absence.
Form 13: Ins 2.6.1972. Am 25.10.1996.
Form 13A
P 10, r 2A.
(Notice to defendant served outside Australia)
To the Defendant:
1. The Court may, on application made by you in accordance with the rules of Court, set aside the service on you of this statement of claim (or summons or as the case may be) where—
(a) service is not authorised by the rules of the Court; or
(b) this Court is an inappropriate forum for the trial of the proceedings.
2. Alternatively you may submit to the jurisdiction of the Court by filing the prescribed form of unconditional notice of appearance.
3. If you do not make an application under paragraph 1 or file a notice under paragraph 2, the Court may give leave to the plaintiff to proceed against you.
Form 13A: Ins 21.10.1977. Rep 6.7.1979. Ins 17.6.1988.
Form 14
P 10, r 8 (a) (v).
REQUEST FOR SPECIAL SERVICE
It is requested that the sealed copy of (description of document) be served on (name) (whose address is ) in (country) by (describe special manner).
(Follow the prescribed form of conclusion of documents for use by a party, Form 4 and, after the translation, add the certificate.)
I (name), of (address), certify—
1. that what appears above is a translation of the document annexed and marked “A”;
2. that my qualifications to translate from the English language to the (name) language are (state qualifications).
Dated 7 May 19 .
(signed)
(The annexure must bear a note in the same language—“This is the annexure marked “A” referred to in my certificate dated 7 May 19 ”.)
Form 14: Ins 2.6.1972.
Form 15
P 10, r 10.
REQUEST FOR SERVICE
To the Prothonotary:
I (name) request that a sealed copy of (description of document) be transmitted to (country) for service on (name), of (address) (pursuant to the Convention made between and ) and I undertake to pay to you an amount equal to the sum of all expenses incurred in consequence of this request.
Form 15: Ins 2.6.1972.
Form 16
P 11, r 4.
NOTICE OF APPEARANCE
JAMES STYLES
of (address) appears (where Part 51 rule 20 or Part 51AA rule 13B applies add and submits to the orders of the Court, save as to costs).
of (address) appears (where Part 51 rule 20 or Part 51AA rule 13B applies add and submits to the orders of the Court, save as to costs).
(Include any statement under Part 11 rule 4 (3).)
(He is a minor (mentally disabled person); his tutor is ROBERT STYLES.) (Where the appearance is entered under Part 78 rule 34H (1), add:
This appearance is entered under Part 78 rule 34H (1).)
(Where a defendant wishes to make a request under Part 11 rule 5 (3) add:
The Registrar is requested to deal with the copy (two copies) of this Notice under Part 11 rule 5 (3).)
(Add any other notices permitted by the rules to be added, for example, under Part 15 rule 12 relating to money claims.)
Address for service: (The office of his solicitor, or as the case may be; see Part 9 rule 6.)
(Follow the prescribed form of conclusion of documents for use by a party, Form 4.)
(This notice of appearance may be added to a Notice of Motion of a person applying to be added as a defendant, for example, under Part 8 rule 8 (3).)
Form 16: Ins 2.6.1972. Am 23.12.1977; 23.5.1980; 20.2.1987; 23.12.1988; 16.8.1991; 25.10.1991; 22.5.1992 (see erratum 12.6.1992); 27.11.1992; 23.5.1997.
Form 17
P 15, r 3.
DEFENCE
(Plead as required by the rules, for example— | |
1. | The defendant denies, etc.) |
(or) | |
(where one of two or more defendants, | |
DEFENCE OF JAMES STYLES
1. This defendant denies, etc.)
(For a Defence to a Cross-claim see the prescribed form of Defence and Cross-claim under Part 6 rule 3, Form 9.)
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 17: Ins 2.6.1972. Am 25.2.1983; 29.11.2002; 5.9.2003.
Form 18
P 15, r 4.
REPLY
(Plead as required by the rules, and see Part 15 rule 21, relating to joinder of issue.)
Form 18: Ins 2.6.1972.
Form 19
P 15, r 4 (2).
REPLY AND DEFENCE TO CROSS-CLAIM
REPLY
(Plead as required by the rules.)
DEFENCE TO CROSS-CLAIM
(Plead as required by the rules.)
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 19: Ins 2.6.1972. Am 29.11.2002; 5.9.2003.
Form 20
P 15, r 12 (3).
NOTICE TO PLEAD FACTS
To the plaintiff (cross-defendant): The defendant (cross-claimant), pursuant to Part 15 rule 12 (3) requires you (in respect of your Cross-claim) to plead the facts on which you rely.
Form 20: Ins 2.6.1972.
Form 20A
(Affidavit verifying statement of claim)
P 15, r 23.
AFFIDAVIT
On 19 (name) of (address), (occupation)
say on oath—
say on oath—
1. I am the plaintiff (or as the case may be; see Part 15 rule 23 (4) (a)).
2. I believe that the allegations of fact in the statement of claim set out above (or annexed hereto marked “A”) are true.
Sworn, etc.
Form 20A: Ins 25.2.1983.
Form 20B
(Affidavit verifying defence)
P 15, r 23.
AFFIDAVIT
On 7 May 19 I (name) of (address), (occupation) say on oath—
1. I am the defendant (or as the case may be; see Part 15 rule 23 (4) (a)).
2. I believe that the allegations of fact which are denied in the defence set out above (or annexed hereto marked “A”) are untrue.
3. Having made reasonable inquiries, I do not know that the allegations of fact which are stated in that defence to be not admitted are true.
4. I believe that the allegations of fact in that defence are true.
Sworn, etc.
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 20B: Ins 25.2.1983. Am 21.10.1994.
Form 20C
P 17, r 4 (2)
AFFIDAVIT OF DEBT
On (date) I, (name, address and occupation), say on oath:
1. (Set out the matters referred to in Part 17 rule 4 (2) (c))
2. (Set out the matters referred to in Part 17 rule 4 (2) (d))
3. I believe that the defendant is indebted to { me or the plaintiff} in respect to the cause of action the subject of these proceedings in the sum of $ (amount), made up as follows:
4. [If applicable Interest will continue to accrue at the rate of $ (amount) per day until judgment (subject to any future payment on account of the debt).][If an order for interest under section 94 of the Supreme Court Act 1970 is claimed, give sufficient particulars to enable the amount of that interest to be calculated and the daily rate in dollars and cents from the date of the affidavit until judgment]
5. No payment has been made, and no credit has accrued, since the commencement of proceedings that reduces the amount for which judgment is sought [if applicable other than as set out above].
6. {I am or The plaintiff is} entitled to judgment for costs of $ (amount) made up as follows:(Give particulars of how costs are made up)
Sworn at | } |
before me |
Form 20C: Ins 25.10.1996.
Form 21
NOTICE TO ADMIT FACTS
P 18, rr 2, 5.
(AND AUTHENTICITY OF DOCUMENTS)
To the defendant:
The plaintiff requires you to admit for the purpose of these proceedings only—
1. | } | (state each fact) |
2. |
(The plaintiff requires you to admit for the purpose of these proceedings only the authenticity of the following documents—
1. | } | (describe each document)) |
2. |
If you do not, within 14 days after service of this notice upon you, serve a notice upon the plaintiff disputing any fact (and the authenticity of any document) above specified, that fact (and the authenticity of that document) shall, for the purpose of these proceedings, be admitted by you in favour of the plaintiff.
Form 21: Ins 2.6.1972.
Form 22
NOTICE DISPUTING FACTS
P 18, rr 2, 5.
(AND AUTHENTICITY OF DOCUMENTS)
The defendant disputes the following facts specified in the plaintiff’s notice dated 7 May 19 —
1. | } | (state each fact) |
2. |
(The defendant disputes the authenticity of the following documents which were specified in the plaintiff’s notice (or list of documents) dated 7 May 19 —
1. | } | (describe each document)) |
2. |
(The defendant admits—
1. | } | (state each fact or describe each document)) |
2. |
Form 22: Ins 2.6.1972.
Form 23
P 19, r 2.
NOTICE OF MOTION
Applicant: (name and address and, if a party to the proceedings, description eg the plaintiff or the defendant JAMES STYLES) [where applicable a minor or as the case requires]
[Where applicable Tutor: (name and address)]
The applicant will at 9.30 am on (date) at (address of Court) apply to the Court for orders—
1. | } | (state concisely the nature of each order which is sought but not the grounds for the application.) |
2. |
[Where the time for service under Part 19 rule 3 has been abridged, add—
The time before which this notice of motion is to be served has been abridged by the Court to { 5 p.m. on 6 May 1995 or as the case requires}.]
To: The Respondent(s)
(set out name of each respondent and the address of any respondent who does not have an address for service in the proceedings).
If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified above, the application may be heard and an order may be made against you in your absence.
A respondent who has not already done so must enter an appearance in the proceedings before any attendance before the Court.
[Where the applicant does not have an address for service in the proceedings or any respondent is not a party to the proceedings, add—
Applicant’s address for service: (Part 9 rule 6)]
(Follow the prescribed form of conclusion of documents for use by a party, Form 4.)
(As to a notice of motion in the Court of Appeal, see Form 62AA)
Form 23: Ins 2.6.1972. Am 16.1.1981. Subst 24.2.1995.
Form 24
P 20, r 7.
NOTICE OF AMENDMENTS
The (describe document) was amended on 7 May 19 , pursuant to an order made on 19 (pursuant to Part rule ) by—
omitting | “....................” | |
(omitting | “....................” | and inserting |
“....................”) | ||
(inserting | “....................”) |
Form 24: Ins 2.6.1972.
Form 25: Ins 2.6.1972. Am 31.8.1984. Rep 23.6.1989.
Forms 26–30: Ins 2.6.1972. Rep 23.6.1989.
Form 30A: Ins 31.8.1984. Am 7.12.1984. Rep 23.6.1989.
Form 31: Ins 2.6.1972. Rep 19.7.1996.
Form 32: Ins 2.6.1972. Am 9.12.1983. Rep 19.7.1996.
Forms 25–32
Form 33
P 24, r 1.
NOTICE TO ANSWER INTERROGATORIES
Within (15) days after service of this notice upon each of them respectively, the defendant CD is required to answer interrogatories numbered 1 to 8 (and verify his answers) and the defendant EF is required to answer interrogatories numbered 1 to 12 (and verify his answers).
INTERROGATORIES
1. (State the question.)
2. (State the question.)
Form 33: Ins 2.6.1972.
Form 34
P 24, r 6.
STATEMENT IN ANSWER TO INTERROGATORIES
The defendant CD answers the plaintiff’s interrogatories specified in notice dated 7 May 19 as follows:
1A. | (State in full the interrogatory.) |
1B. | (State the answer.) |
2A. | (State in full the interrogatory.) |
2B. | (a) The defendant objects to answer on the grounds of privilege; (b) (State the facts on which this objection is based.) |
Form 34: Ins 2.6.1972. Am 26.9.1986.
Form 35
P 24, r 6.
VERIFIED STATEMENT IN ANSWER TO INTERROGATORIES
The defendant EF Pty Ltd answers the plaintiff’s interrogatories specified in notice dated 7 May 19 as follows:
1A. | (State in full the interrogatory.) |
1B. | (State the answer.) |
2A. | (State in full the interrogatory.) |
2B. | (a) The defendant objects to answer on the grounds of privilege; (b) (State the facts on which this objection is based.) |
(Follow the prescribed form of conclusion of documents for use by a party.)
AFFIDAVIT
On 19 , I (name), of (address) (occupation) say on oath:
1. I am the secretary of the defendant and am authorised to make this affidavit on its behalf.
2. (The deponent should state which of the answers are true to his own knowledge and which are true to the best of his knowledge, information and belief based on his inquiries of officers of the company and others and on his other investigations.)
Form 35: Ins 2.6.1972. Am 26.9.1986.
Form 36
Form 36: Ins 2.6.1972. Subst 23.3.1984. Rep 22.9.1995.
Form 37
P 26, r 2.
APPOINTMENT FOR DIRECTIONS
The Court appoints 19 at 10 a.m. at (address of Court) for a hearing for directions under Part 26 of the rules.
Dated 1984.
Registrar
Form 37: Ins 2.6.1972. Subst 23.3.1984.
Form 38
P 27, r 1D.
ORDER FOR EXAMINATION
THE COURT ORDERS that (name) of (address within the State) be examined on oath before (name and address, or describe examiner.)
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 38: Ins 2.6.1972. Am 19.5.1989.
Form 39
P 27, r 1D.
ORDER APPOINTING EXAMINER
THE COURT ORDERS—
1. That (name and address (or description)) be appointed examiner for the purpose of taking the examination of a witness (name) of (address out of the State) in accordance with the rules of this Court (but without the power to compel a witness to attend, if this is required by a convention).
2. That the party obtaining this order give to each other interested party (4) days’ notice in writing of the date on which he proposes to send the minute of this order to the examiner.
3. That not less than (4) days after that notice has been given each party shall give to the other the name of his agent at (place) to whom notices may be sent.
(Complete as in general form of minute of order under Part 41 rule 11.)
(This form does not apply where a Judge or a Master or other officer of the Court is appointed examiner.)
Form 39: Ins 2.6.1972. Am 24.10.1986; 19.5.1989.
Form 40
P 27, r 1D.
ORDER
THE COURT ORDERS that a letter of request be issued to the judicial authorities of (country) to take or cause to be taken the evidence of (name) .
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 40: Ins 2.6.1972. Am 19.5.1989.
Form 41
P 29, r 2.
DEED
PARTICULARS
1. Date: 7 May 19 . | |
2. Receiver: | (name) |
(address for service) | |
3. Guarantor: | (name) |
(address for service) | |
4. Proceedings No. of 19 in the Division (or as the case may be) of the Supreme Court of New South Wales. | |
5. Date of order for appointment of Receiver: 10 April 19 . By this deed the Receiver promises the Registrar of the Division that if the Receiver does not account to the Court for what he receives as Receiver or does not deal with what he receives as Receiver as the Court directs the Guarantor will pay to the Registrar whatever is required to make good the default to a limit of $ . | |
Signed sealed and delivered (and so on) (or as the case may be).
Form 41: Ins 2.6.1972. Am 25.5.1990.
Form 41A: Ins 1.8.1975. Rep 29.8.2003.
Form 41B: Ins 1.8.1975. Rep 29.8.2003.
Forms 41A, 41B
Form 42
P 33, r 5.
NOTICE TO SET DOWN FOR TRIAL
The plaintiff requests that the proceedings be set down for trial—
(with a JURY) (omit this line if the trial is to be without a jury) at (state the place for trial as fixed by or under rule 2) generally (or for trial of the following issues: (state the issues)).
Form 42: Ins 2.6.1972. Am 31.5.1985; 24.4.1986; 21.11.1986.
Form 43
P 34, r 3.
REQUISITION FOR TRIAL WITH A JURY
The plaintiff requires trial with a jury.
(or, where application is made by all parties under section 87 (1) of the Act: All parties require trial with a jury.)
Form 43: Ins 2.6.1972.
Form 44
P 36, r 14.
ORDER
THE COURT ORDERS that—
1. The Superintendent of (see section 42 of the Correctional Centres Act 1952), shall have (name), a inmate, before this Court to be examined as a witness and duly returned to confinement.
2. The first day on which he is required to have the inmate before the Court is 7 May 19 at 10 a.m. at (address of Court).
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 44: Ins 2.6.1972. Am 21.2.1997.
Form 45
P 36, r 16.
NOTICE TO PRODUCE
To the plaintiff:
The defendant requires you to produce at the trial (or otherwise specify the occasion or place or, where the notice is served with leave given under Part 36 rule 16 (1) add 7 May 19 , a day fixed by the Court or where the notice is served pursuant to Part 36 rule 16 (1A) add 7 May 19 , a day fixed pursuant to Part 36 rule 16 (1A)) the following documents for the purpose of evidence—
(Enumerate the documents or things.)
[If Part 77 rule 134A applies, add the wording required by the rule]
Form 45: Ins 2.6.1972. Am 14.7.1989; 21.5.1999.
Form 45A
(Subpoena to a natural person)
P 36A, r 3 (5).
SUBPOENA FOR PRODUCTION—FOR SERVICE IN NEW ZEALAND
To | (1) |
(2). |
THE COURT ORDERS that you shall ATTEND AND PRODUCE this subpoena and the documents and things described in the schedule—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 am (3) and until you are excused by the Court from further attending; BUT—(i) INSTEAD OF so ATTENDING, YOU MAY PRODUCE this subpoena and the documents and things described in the schedule to—(A) a clerk of the Court at the above place by hand or by post, in either case so that the clerk receives them not later than 24 hours BEFORE THE DATE on which you are required so to attend; or(B) any registry of the High Court of New Zealand not later than (8) PROVIDED THAT you—(I) tender to the registry such portion of the amount provided to you on account of expenses as is necessary to meet the costs of transportation for the document or thing produced to the Supreme Court of New South Wales;(II) obtain from the New Zealand registry a receipt with a description of the document or thing produced in accordance with the subpoena; and(III) forthwith send a copy of the receipt and the subpoena by fax to the Sydney registry of the Supreme Court of New South Wales;(ii) you need not comply with this subpoena—(A) if—(I) allowances and travelling expenses; orsufficient to meet your reasonable expenses are not paid, or tendered to you, at the time of service or at some other reasonable time before you are required to comply with it;(II) vouchers,(B) if it is served on you after (9);(C) if the party who requested the issue of this subpoena has excused you from compliance; or(D) if it is not accompanied by—(I) a copy of the order giving leave to serve it in New Zealand; and(II) a notice in the prescribed form setting out your rights and obligations in relation to the subpoena and information on how to apply to set aside the subpoena;(iii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance and production to a later time.
SCHEDULE
(10)
(10)
Dated 19 . | By the Court, (11) |
Issued at the request of (12) whose address for service is (13).
See the reverse of this page.
On the reverse of the page, keeping clear a margin of 25 millimetres on the right hand side, add—
Note that—
(1) if you do not comply with this subpoena you may be arrested;
(2) if, by paragraph (c) (i) (A), you are permitted to produce this subpoena and other documents and things to a clerk of the Court at Queen’s Square, Sydney, you may produce them to the clerk by hand at the Exhibits Office, Level 5 at that place or by posting them to—in accordance with paragraph (c) (i) (A);Exhibits Clerk,
Exhibits Office, Level 5,
Supreme Court of N.S.W.
G.P.O. Box 3,
Sydney 2001.
AUSTRALIA
(3) in subparagraph (c) (i) (A) Saturdays, Sundays and other holidays are not counted in calculating time;
(4) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you;
(5) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(6) being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena; and
(7) if there is a dispute over the amount of your reasonable expenses, you may apply to the Court for a decision on what is reasonable.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) specify a date, for example 26 April 19 , having regard to Part 2 rule 2, Part 37 rule 4 (1) (b) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 10 days before the date mentioned in note (5) above.
(9) specify a date, for example 19 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d), Part 37 rules 4 (1) (b) and 7 (7) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 15 days before the date mentioned in note (5) above.
(10) description of documents and things.
(11) signature and description of officer of the Court.
(12) state person at whose request the subpoena was issued.
(13) address for service.
(This form applies only to subpoenas to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth) applies.)
Form 45A: Ins 1.3.1996. Am 31.8.2001.
Form 45B
(Subpoena to a corporation for production and for its proper officer to answer questions concerning possession, etc. of documents.)
P 36A, r 3 (5).
SUBPOENA FOR PRODUCTION AND TO ANSWER QUESTIONS FOR SERVICE IN NEW ZEALAND
To | (1) |
(2) |
THE COURT ORDERS that—
1. (1), “the corporation”, shall produce this subpoena and the documents and things described in the schedule by causing its proper officer to ATTEND AND PRODUCE them—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 am (3) and until the officer is excused by the Court from further attending; BUT—(i) INSTEAD OF causing its proper officer to so ATTEND, THE CORPORATION MAY PRODUCE this subpoena and the documents and things described in the schedule to—(A) a clerk of the Court at the above place by hand or by post, in either case so that the clerk receives them not later than 24 hours BEFORE THE DATE on which the officer is required so to attend; or(B) any registry of the High Court of New Zealand not later than (8) PROVIDED THAT you—(I) tender to the registry such portion of the amount provided to you on account of expenses as is necessary to meet the costs of transportation for the document or thing produced to the Supreme Court of New South Wales;(II) obtain from the New Zealand registry a receipt with a description of the document or thing produced in accordance with the subpoena; and(III) forthwith send a copy of the receipt and the subpoena by fax to the Sydney registry of the Supreme Court of New South Wales;(ii) the corporation need not comply with this subpoena—(A) if—(I) allowances and travelling expenses; orsufficient to meet the corporation’s reasonable expenses are not paid, or tendered to it, at the time of service or at some other reasonable time before it is required to comply with this subpoena;(II) vouchers,(B) if it is served on the corporation after (9);(C) if the party who requested the issue of this subpoena has excused the corporation from compliance; or(D) if it is not accompanied by—(I) a copy of the order giving leave to serve it in New Zealand; and(II) a notice in the prescribed form setting out the corporation’s rights and obligations in relation to the subpoena and information on how to apply to set aside the subpoena;(iii) if the corporation is a bank and is required by this subpoena to produce a banker’s book and the corporation is not a party to these proceedings and Part IV of the Evidence Act 1898 would have applied prior to its repeal, the corporation need not cause its officer to produce it if the corporation causes him to produce proof of the relevant entries in it in accordance with that Part;(iv) the party who requested the issue of this subpoena may, by written or oral notice to the corporation, alter the time for attendance or production to a later time.
2. the officer who is to attend shall make enquiries for the purpose of answering, and, on attending, shall answer, such questions as the Court requires him to answer concerning the possession or custody of those documents and things.
SCHEDULE
(10)
(10)
Dated 19 . | By the Court (11) |
Issued at the request of (12) whose address for service is (13).
Note that—
(1) where the corporation fails to comply with this subpoena, this subpoena may be enforced by sequestration of the property of the corporation or by arrest of an officer of the corporation or by both means;
(2) if, by paragraph (c) (i) (A), the corporation is permitted to produce this subpoena and other documents and things to a clerk of the Court at Queen’s Square, Sydney, it may produce them to the clerk by hand at the Exhibits Office, Level 5 at that place or by posting them to—in accordance with paragraph (c) (i) (A);Exhibits Clerk,
Exhibits Office,
Level 5,
Supreme Court of N.S.W.,
G.P.O. Box 3,
Sydney 2001.
AUSTRALIA
(3) in subparagraph (c) (i) (A) Saturdays, Sundays and other holidays are not counted in calculating time;
(4) documents and things produced by the corporation in accordance with this subpoena may be returned by post to it at its address shown on this subpoena but it may, in writing on or attached to this subpoena, request that they be posted to it at another address given by it;
(5) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(6) being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena;
(7) if there is a dispute over the amount of your reasonable expenses, you may apply to the Court for a decision on what is reasonable.
Directions for completing this form.
(1) name of corporation.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) specify a date, for example 26 April 19 , having regard to Part 2 rule 2, Part 37 rule 4 (1) (b) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 10 days before the date mentioned in note (5) above.
(9) specify a date, for example 19 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d), Part 37 rules 4 (1) (b) and 7 (7) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 15 days before the date mentioned in note (5) above.
(10) description of documents and things.
(11) signature and description of officer of the Court.
(12) state person at whose request the subpoena was issued.
(13) address for service.
If the reverse side of a page is used, add to the foot of the front of the page“See the reverse of this page.”and keep clear a margin of 25 millimetres on the right hand side.
(This form applies only to subpoenas to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth) applies.)
Form 45B: Ins 1.3.1996. Am 24.5.1996; 31.8.2001.
Form 45C
(Subpoena for production of original or photocopies of medical records.)
P 36A, r 3 (5).
SUBPOENA FOR PRODUCTION—FOR SERVICE IN NEW ZEALAND
To | (1) |
(2) |
THE COURT ORDERS that you shall ATTEND AND PRODUCE this subpoena and the medical records, or clear sharp photocopies of them, described in the schedule (in this subpoena called the “scheduled documents”)—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 am (3) and until you are excused by the Court from further attending; BUT—(i) INSTEAD OF so ATTENDING, YOU MAY PRODUCE this subpoena and the scheduled documents to—(A) a clerk of the Court at the above place by hand or by post, in either case so that the clerk receives them not later than 24 hours, BEFORE THE DATE on which you are required so to attend; or(B) any registry of the High Court of New Zealand not later than (8) PROVIDED THAT you—(I) tender to the registry such portion of the amount provided to you on account of expenses as is necessary to meet the costs of transportation for the document or thing produced to the Supreme Court of New South Wales;(II) obtain from the New Zealand registry a receipt with a description of the document or thing produced in accordance with the subpoena; and(III) forthwith send a copy of the receipt and the subpoena by fax to the Sydney registry of the Supreme Court of New South Wales;(ii) you need not comply with this subpoena—(A) if $ (the amount prescribed by Part 37 rule 7A (4)) have not been paid or tendered to you;(B) if, in addition to the amount referred to in the preceding paragraph,—(I) allowances and travelling expenses; orsufficient to meet your reasonable expenses are not paid, or tendered to you, at the time of service or at some other reasonable time before you are required to comply with it;(II) vouchers,(C) if it is served on you after (9);(D) if the party who requested the issue of this subpoena has excused you from compliance; or(E) if it is not accompanied by—(I) a copy of the order giving leave to serve it in New Zealand; and(II) a notice in the prescribed form setting out your rights and obligations in relation to the subpoena and information on how to apply to set aside the subpoena;(iii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance and production to a later time.
SCHEDULE
(10)
(10)
Dated 19 . | By the Court, (11) |
Issued at the request of (12) whose address for service is (13).
See the reverse of this page.
On the reverse of the page, keeping clear a margin of 25 millimetres on the right hand side, add—
Note that—
(1) if you do not comply with this subpoena you may be arrested;
(2) if, by paragraph (c) (i) (A), you are permitted to produce the subpoena and the scheduled documents to a clerk of the Court at Queen’s Square, Sydney, you may produce them to the clerk by hand at the Exhibits Office, Level 5 at that place or by posting them to—in accordance with paragraph (c) (i) (A);Exhibits Clerk,
Exhibits Office, Level 5,
Supreme Court of N.S.W.,
G.P.O. Box 3,
Sydney 2001.
AUSTRALIA
(3) in subparagraph (c) (i) (A) Saturdays, Sundays and other holidays are not counted in calculating time;
(4) documents produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you;
(5) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(6) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
Directions for completing the above form
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) specify a date, for example 26 April 19 , having regard to Part 2 rule 2, Part 37 rule 4 (1) (b) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 10 days before the date mentioned in note (5) above.
(9) specify a date, for example 19 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d), Part 37 rules 4 (1) (b) and 7 (7) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 15 days before the date mentioned in note (5) above.
(10) description of the medical records.
(11) signature and description of officer of the Court.
(12) state person at whose request the subpoena was issued.
(13) address for service.
(This form applies only to subpoenas to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth) applies.)
Form 45C: Ins 1.3.1996. Am 31.8.2001.
Form 45D
P 36A, r 3 (5).
SUBPOENA TO GIVE EVIDENCE—FOR SERVICE IN NEW ZEALAND
To | (1) |
(2) |
THE COURT ORDERS that you shall attend for the purpose of giving evidence—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (3) and until you are excused by the Court from further attending; but—(i) you need not comply with this subpoena—(A) if—(I) allowances and travelling expenses; orsufficient to meet your reasonable expenses are not paid, or tendered to you, at the time of service or at some other reasonable time before you are required to comply with it;(II) vouchers,(B) if it is served on you after (8);(C) if, as a medical expert, you are required by this subpoena to attend at a place in Sydney for the purposes of giving evidence on medical matters and it is served on you after (9);(D) if the party who requested the issue of this subpoena has excused you from compliance; or(E) if it is not accompanied by—(I) a copy of the order giving leave to serve it in New Zealand; and(II) a notice in the prescribed form setting out your rights and obligations in relation to the subpoena and information on how to apply to set aside the subpoena;(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance to a later time.
Dated 19 . | By the Court, (10) |
Issued at the request of (11) whose address for service is (12).
Note that—
(1) if you do not comply with this subpoena you may be arrested;
(2) if, as a medical expert, you are to give evidence of medical matters at a trial at Sydney and you are not called as a witness, you shall, unless the Court otherwise orders, be entitled to be paid $ (13) in addition to any sum paid or tendered to you as reasonable expenses of complying with this subpoena;
(3) being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena;
(4) if there is a dispute over the amount of your reasonable expenses, you may apply to the Court for a decision on what is reasonable.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) specify a date, for example, 29 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d)) and Part 37 rule 7 (7), which is not later than 5 days before the date mentioned in note (5) above.
(9) specify a date, for example, 15 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d) and Part 37 rule 7A (1), which is not later than 21 days before the date mentioned in note (5) above.
(10) signature and description of officer of the Court.
(11) state person at whose request the subpoena was issued.
(12) address for service.
(13) the amount prescribed by Part 37 rule 3A.
(This form applies only to subpoenas to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth) applies.)
Form 45D: Ins 1.3.1996.
Form 45E
P 36A, r 3 (5).
SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE—FOR SERVICE IN NEW ZEALAND
To | (1) |
(2) |
THE COURT ORDERS that you shall attend and produce this subpoena and the documents and things described in the schedule and attend for the purposes of giving evidence—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (3) and until you are excused by the Court from further attending; but—(i) you need not comply with this subpoena—(A) if—(I) allowances and travelling expenses; orsufficient to meet your reasonable expenses are not paid, or tendered to you, at the time of service or at some other reasonable time before you are required to comply with it;(II) vouchers,(B) if it is served on you after (8);(C) if, as a medical expert, you are required by this subpoena to attend at a place in Sydney for the purposes of giving evidence on medical matters and it is served on you after (9);(D) if the party who requested the issue of this subpoena has excused you from compliance; or(E) if it is not accompanied by—(I) a copy of the order giving leave to serve it in New Zealand; and(II) a notice in the prescribed form setting out your rights and obligations in relation to the subpoena and information on how to apply to set aside the subpoena;(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance or production to a later time;(iii) you may produce this subpoena and the documents and things described in the schedule to—(A) a clerk of the Court at the above place by hand or by post, in either case so that the clerk receives them not later than 24 hours BEFORE THE DATE on which you are required so to attend; or(B) any registry of the High Court of New Zealand not later than (10) PROVIDED THAT you—(I) tender to the registry such portion of the amount provided to you on account of expenses as is necessary to meet the costs of transportation for the document or thing produced to the Supreme Court of New South Wales;(II) obtain from the New Zealand registry a receipt with a description of the document or thing produced in accordance with the subpoena; and(III) forthwith send a copy of the receipt and the subpoena by fax to the Sydney registry of the Supreme Court of New South Wales;
SCHEDULE
(11)
(11)
Dated 19 . | By the Court (12) |
Issued at the request of (13) whose address for service is (14)
See the notes on the reverse of this page.
On the reverse of the page, keeping clear a margin of 25 millimetres on the right hand side, add—
Note that—
(1) if you do not comply with this subpoena you may be arrested;
(2) if, as a medical expert, you are to give evidence of medical matters at a trial at Sydney and you are not called as a witness, you shall, unless the Court otherwise orders, be entitled to be paid $ (15) in addition to any sum paid or tendered to you as reasonable expenses of complying with this subpoena;
(3) if, by paragraph (c) (iii) (A), you are permitted to produce this subpoena and other documents and things to a clerk of the Court at Queen’s Square, Sydney, you may produce them to him by hand at the Exhibits Office, Level 5 at that place or by posting them to—in accordance with paragraph (c) (iii) (A);Exhibits Clerk,
Exhibits Office, Level 5,
Supreme Court of N.S.W.
G.P.O. Box 3,
Sydney 2001.
AUSTRALIA
(4) in subparagraph (c) (iii) (A) Saturdays, Sundays and other holidays are not counted in calculating time;
(5) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you;
(6) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(7) being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena;
(8) if there is a dispute over the amount of your reasonable expenses, you may apply to the Court for a decision on what is reasonable.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) specify a date, for example 19 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d), Part 37 rules 4 (1) (b) and 7 (7) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 15 days before the date mentioned in note (5) above.
(9) specify a date, for example, 15 April 19 , having regard to Part 2 rule 2 and Part 36A rule 3 (2) (d) and Part 37 rule 7A (1), which is not later than 21 days before the date mentioned in note (5) above.
(10) specify a date, for example 26 April 19 , having regard to Part 2 rule 2, Part 37 rule 4 (1) (b) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 10 days before the date mentioned in note (5) above.
(11) description of documents and things.
(12) signature and description of officer of the Court.
(12) state person at whose request the subpoena was issued.
(14) address for service.
(15) the amount prescribed by Part 37 rule 3A.
(This form applies only to subpoenas to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth) applies.)
Form 45E: Ins 1.3.1996. Am 31.8.2001.
Form 45F
P 36A, r 5 (1).
CERTIFICATE OF NON-COMPLIANCE WITH SUBPOENA
I certify that:—
(a) On (date) leave under section 9 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth was given to serve in New Zealand a subpoena issued by this Court;
(b) A copy of the subpoena and a copy of the order giving leave are annexed to this certificate;
(c) (name of person named), the person named in the subpoena, failed to comply with it; and
(d) {No application to set aside the subpoena either wholly or in part has been made.
OR
An application to set aside the subpoena was dismissed by order made on (date). A copy of this order is annexed to this certificate.}
Date: | |
By the Court | |
Registrar | |
(Seal of Court to be affixed) |
Forms 45F–45H: Ins 1.3.1996.
Form 45G
P 36A, r 6 (7).
OBJECTION TO DETERMINATION WITHOUT HEARING
The (identify objector) objects to the application to set aside the subpoena (identify subpoena) being determined without a hearing.
Forms 45F–45H: Ins 1.3.1996.
Form 45H
P 36A, r 6 (8).
REQUEST FOR HEARING BY VIDEO LINK OR TELEPHONE
The (applicant) requests that the hearing of the application to set aside the subpoena (identify subpoena) be heard by video link or telephone.
Forms 45F–45H: Ins 1.3.1996.
Form 46 Subpoena
(Part 37, rule 3 (1))
IN THE [name of court] | File number: |
APPLICANT/PLAINTIFF:
RESPONDENT/DEFENDANT:
SUBPOENA
To: | [name] |
[address] |
YOU ARE ORDERED:*Select one only of these three options
□ *to attend to give evidence—see section A of this form, or
□ *to produce this subpoena or a copy of it and the documents or things specified in the Schedule—see section B of this form, or
□ *to attend to give evidence and to produce this subpoena or a copy of it and the documents or things specified in the Schedule—see section C of this form
Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest.
The last date for service of this subpoena is: ...............
(See Note 1)
(See Note 1)
Please read Notes 1 to 15 at the end of this subpoena.
[Seal or Stamp of the Court]
Date:
Issued at the request of [name of party], whose address for service is:
A Details of subpoena to attend to give evidence only
Date, time and place at which you must attend to give evidence:
Date:
Time:
Place:
You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed.
B Details of subpoena to produce only
You must comply with this subpoena:
(a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production, or
(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to the address below so that they are received not less than 2 clear days before the date specified for attendance and production. (See Notes 5–11)
Date, time and place at which you must attend to produce the subpoena or a copy of it and documents or things:
Date:
Time:
Place:
Address to which the subpoena (or copy) and documents or things may be delivered or posted:
The Exhibits Office
Level 5, Supreme Court of NSW
GPO Box 3, Sydney 2001
Schedule
The documents and things you must produce are as follows:
[If insufficient space attach list]
[If insufficient space attach list]
C Details of subpoena both to attend to give evidence and to produce
In so far as you are required by this subpoena to attend to give evidence, you must attend as follows:
Date:
Time:
Place:
You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed.
In so far as you are required by this subpoena to produce the subpoena or a copy of it and documents or things, you must comply with this subpoena:
(a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production, or
(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to the address below so that they are received not less than 2 clear days before the date specified for attendance and production. (See Notes 5–11)
Date, time and place at which you must attend to produce the subpoena or a copy of it and the documents or things:
Date:
Time:
Place:
Address to which the subpoena or a copy of it and documents or things may be delivered or posted:
The Exhibits Office
Level 5, Supreme Court of NSW
GPO Box 3, Sydney 2001
Schedule
The documents and things you must produce are as follows:
[If insufficient space attach list]
[If insufficient space attach list]
Notes
Last day for service | |
1 | You need not comply with the subpoena unless it is served on you on or before the date specified in the subpoena as the last date for service of the subpoena. |
Informal service | |
2 | Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements. |
Addressee a corporation | |
3 | If the subpoena is addressed to a corporation, the corporation must comply with the subpoena by its appropriate or proper officer. |
Conduct money | |
4 | You need not comply with the subpoena in so far as it requires you to attend to give evidence unless conduct money sufficient to meet your reasonable expenses of attending as required by the subpoena is handed or tendered to you a reasonable time before the date on which your attendance is required. |
Production of subpoena or copy of it and documents or things by delivery or post | |
5 | In so far as this subpoena requires production of the subpoena or a copy of it and a document or thing, instead of attending to produce the subpoena or a copy of it and the document or thing, you may comply with the subpoena by delivering or sending the subpoena or a copy of it and the document or thing to the address specified in the subpoena for the purpose so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production. |
6 | If you object to a document or thing produced in response to this subpoena being inspected by a party to the proceeding or any other person, you must, at the time of production, notify the Registrar in writing of your objection and of the grounds of your objection. |
7 | Unless the Court otherwise orders, if you do not object to a document or thing produced by you in response to the subpoena being inspected by any party to the proceeding, the Registrar may permit the parties to the proceeding to inspect the document or thing. |
Production of a number of documents or things | |
8 | If you produce more than one document or thing, you must, if requested by the Registrar, produce a list of the documents or things produced. |
Production of copy instead of original | |
9 | You may, with the consent of the issuing party, produce a copy, instead of the original, of any document that the subpoena requires you to produce. |
Return or destruction of documents or copies | |
10 | You may, at the time of production, inform the Court that any document or copy of a document produced need not be returned and may be destroyed. |
11 | If you have so informed the Court, the Registrar may destroy the document or copy instead of returning it to you. |
Applications in relation to subpoena | |
12 | You have the right to apply to the Court: (a) for an order setting aside the subpoena (or a part of it) or for relief in respect of the subpoena, and (b) for an order with respect to your claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena. |
Loss or expense of compliance | |
13 | If you are not a party to the proceeding, you may apply to the Court for an order that the issuing party pay an amount (in addition to conduct money and any witness’s expenses) in respect of the loss or expense, including legal costs, reasonably incurred in complying with the subpoena. |
Contempt of court—arrest | |
14 | Failure to comply with a subpoena without lawful excuse is a contempt of court and may be dealt with accordingly. |
15 | Instruction 14 is 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. |
Form 46: Ins 2.6.1972. Subst 2.4.1982. Am 29.6.1984; 20.10.1989; 22.6.1990; 2.10.1992; 26.2.1993; 2.4.1993; 20.8.1993; 21.10.1994; 31.8.2001. Subst 26.3.2004.
Form 46A: Ins 2.4.1982. Am 29.6.1984; 20.10.1989; 22.6.1990; 2.10.1992; 26.2.1993; 2.4.1993; 20.8.1993; 21.10.1994; 25.8.1995; 31.8.2001. Rep 26.3.2004.
Form 46B: Ins 20.10.1989. Am 22.6.1990; 2.10.1992; 26.2.1993; 2.4.1993; 20.8.1993; 31.8.2001. Rep 26.3.2004.
Form 47: Ins 2.6.1972. Subst 17.8.1979; 2.4.1982. Am 29.6.1984; 20.9.1985; 20.10.1989; 22.6.1990; 2.10.1992; 30.10.1992; 2.4.1993; 21.10.1994. Rep 26.3.2004.
Form 48: Ins 2.6.1972. Subst 17.8.1979; 2.4.1982. Am 29.6.1984; 20.9.1985; 20.10.1989; 22.6.1990; 2.10.1992; 30.10.1992; 26.2.1993; 2.4.1993; 21.10.1994; 31.8.2001. Rep 26.3.2004.
Forms 46A–48
Form 49
P 38, r 2.
AFFIDAVIT
On 7 May 19 I (name, address and occupation) say on oath—
1.
2.
Sworn at Sydney before me: (or) | } |
AFFIDAVIT
On 7 May 19 I (name, address and occupation) and on 11 May 19 I (name, address and occupation) say on oath—
1. We are the directors of etc.
2. I the said (name) am a director of etc.
Sworn by (name) at Bathurst before me: | } |
Sworn by (name) at Sydney before me: | } |
(where Part 38 rule 2 (3) (a) applies,
It appearing to me that the deponent is blind, I certify that this affidavit was read to him in my presence and that he seemed to understand it.
(signature))
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 49: Ins 2.6.1972. Am 21.10.1994.
Form 50
P 41, r 10.
1. General form of judgment:
JUDGMENT—
that—(terms of the judgment, in numbered paragraphs, if necessary).
This judgment takes effect on (insert the date fixed by reference to Part 40 rule 3).
By the Court Registrar (or Chief Clerk) |
2. Terms of particular judgments:
(a) Damages to be assessedJUDGMENT—that the defendant is liable to the plaintiff for damages and for costs.THE COURT ORDERS that the damages be assessed.
(b) Debt or damagesJUDGMENT—that the defendant pay to the plaintiff $ (amount of debt or damages) and $ costs (or as the case may be).
(c) Possession of landJUDGMENT—1. that the defendant give the plaintiff possession of the land described in the schedule (but so as not to disturb the occupation of (name of occupier));2. that the defendant pay to the plaintiff $ costs (or as the case may be).SCHEDULE(describe land)
(d) Detention of goods.JUDGMENT—that the defendant is liable to the plaintiff—1. for the value of (or delivery to the plaintiff of) the goods described in the schedule;2. (for damages; and3. ) for costs.THE COURT ORDERS that the value of the goods (and the damages) be assessed.SCHEDULE(describe goods)(In the above form, where judgment is entered by default under Part 17 rule 6, omit the appropriate words in brackets according to whether rule 6 (a) or (b) applies.)
(e) Detention of goods.JUDGMENT—1. that the defendant deliver to the plaintiff the goods described in the schedule (or pay to the plaintiff $ , the value of the goods described in the schedule);2. that the defendant pay to the plaintiff $ damages; and3. that the defendant pay to the plaintiff $ costs (or as the case may be).
SCHEDULE
(described goods)
(Where judgment is obtained under section 93 omit the words in brackets.)
Form 50: Ins 2.6.1972. Am 30.3.1979.
Form 51
(General form of minute of order.)
P 41, r 11.
ORDER
THE COURT ORDERS that—
1.
2.
3.
Ordered 7 May 19 and entered 11 May 19 .
(Judge) (or Master) (or by the Court Registrar (or Chief Clerk) (Prothonotary)) |
Form 51: Ins 2.6.1972. Am 30.3.1979.
Form 51A: Ins 5.10.1973. Am 22.5.1992. Subst 2.10.1992. Am 24.6.1994.
FORM 51A
(Certificate under section 13 of the Foreign Judgments Act 1973 or section 15 of the Foreign Judgments Act 1991 of the Commonwealth)
P 41, r 15B (2).
CERTIFICATE
I certify that—
(a) a statement of claim (or summons), a copy of which is annexed hereto marked “A”, was filed in the registry of the Division of this Court on (date) by (name), the abovenamed plaintiff, claiming against (name), the abovenamed defendant, payment of the sum of (amount) (or state shortly the nature of the relief claimed) in respect of (state shortly the causes of action);
(b) the said statement of claim (or summons) was on (date) served on the said defendant (state the mode of service) (or the said defendant entered an appearance on (date) );
(c) the said plaintiff obtained judgment against the said defendant in this Court for payment of the sum of (amount) (or state shortly the terms of the judgment) in respect of (state shortly the causes of action) together with $ for costs;
(d) the said judgment was obtained (state the grounds on which the judgment was based);
(e) the following (or no) objections have been made to the jurisdiction of this Court (state the objections, if any);
(f) (state the position relating to the time for appealing or discharging or setting aside the judgment or for apply for a new trial or for a stay of execution);
(g) (where the judgment was entered by default), the defendant may apply, but has not applied, to set aside the judgment;
(h) notice of appeal has (or has not) been filed;
(If interest is payable on the judgment
(i) (where the rate of interest is specified in the judgment interest is payable from (date of judgment) at the rate of (rate) % yearly on so much of the sum of (amount) as is from time to time unpaid;)
(otherwise
interest is payable—(i) from (date of judgment) up to and including the date hereof at the following rate (or rates)—(rate prescribed by Part 40 rule 7 (2) or, where more than one rate applies, the prescribed rates and the period during which each rate applies); andon so much of the sum of (amount) as is from time to time unpaid;))(ii) from the date hereof at the rate of (prescribed rate applicable at the date of the certificate), or at such other rate or rates as may be prescribed from time to time,
(j) (give information, similar to that contained in (j), in respect of costs of the proceedings.)
(k) (any other necessary particulars);
(l) the costs of obtaining this certificate and copy of a minute of the judgment are $ (see Part 52A rule 47).
Dated
(signature) (title of person certifying) |
Form 52
P 42, r 4.
WRIT OF POSSESSION
TO THE SHERIFF:
In respect of the judgment entered on 7 May 19 , enter the land described in the schedule and cause the plaintiff (name) to have possession of it (but, so as not to disturb the occupation of (name, description and extent of restriction as directed in the judgment)) , (and levy on the property of (name) , which is authorised to be taken in execution for—
continue as in Writ for Levy of Property, Form 57)
SCHEDULE
(Describe the land as in the judgment.)
Issued 19 .
By the Court Registrar (or Chief Clerk) |
Issued at the request of (the plaintiff (name and address) or (name) of (address and telephone number) solicitor for the plaintiff (name and address) ),
(The defendant resides at (address) ).
Form 52: Ins 2.6.1972. Am 30.3.1979; 30.9.1988.
Form 53
P 42, r 5.
WRIT OF SPECIFIC DELIVERY
TO THE SHERIFF:
In respect of the judgment entered on 7 May 19 , cause the goods described in the schedule to be delivered to (name) (and levy on the property of (name) which is authorised by law to be taken in execution for—
continue as in Writ for Levy of Property, Form 57)
SCHEDULE
(Describe the goods as in the judgment.)
Issued 19 .
By the Court Registrar (or Chief Clerk) |
Issued at the request of (the plaintiff (name and address) or (name) of (address and telephone number) solicitor for the plaintiff (name and address) ),
(The defendant resides at (address) .)
Form 53: Ins 2.6.1972. Am 30.3.1979.
Form 54
P 42, r 5.
WRIT OF DELIVERY
TO THE SHERIFF:
In respect of the judgment entered on 7 May 19 , cause the goods described in the schedule to be delivered to (name) (and levy on the property of (name) , which is authorised by law to be taken in execution—continue as in Writ for Levy of Property, Form 57)(where applicable)and pay the amount so levied other than your fees, to (name) or otherwise as the law may require.
(a) if you cannot cause the goods to be so delivered, for $ (amount of value of goods assessed under the judgment);
(b) for the amount payable under the judgment, being $ (amount of damages) on 1 June 19
(c) for $ , being costs of this writ;
(d) for your fees; and
(e) for $ , being amount recoverable under section 107 (1) of the Service and Execution of Process Act 1992,
SCHEDULE
(Describe the goods as in the judgment.)
Issued 19 .
By the Court Registrar (or Chief Clerk) |
Issued at the request of (the plaintiff (name and address) or (name) of (address and telephone number) solicitor for the plaintiff (name and address) ),
(The defendant resides at (address) ).
Form 54: Ins 2.6.1972. Am 30.3.1979; 2.4.1993.
Form 55
P 42, r 8 (3).
(No heading or title: for subscribing to the minute of order.)
To (name of corporation) and (name of officer):
If (name of corporation) neglects to obey this order within the time specified in the order (disobeys this order, as the case may be) (name of officer) and (name of corporation) will be liable to sequestration of property and (name of officer) to imprisonment.
Form 55: Ins 2.6.1972.
Form 56
P 43, r 1.
ORDER
THE COURT ORDERS that—
1. JAMES STYLES of (address) shall attend—
(a) before (the Prothonotary or as the case may be);
(b) at (address of Court or place);
(c) on 7 May 19 at 10 a.m. and until he is excused from further attending;
(d) for the purpose of being examined as to the questions—(i) whether any and, if so, what debts are owing to him; and(ii) whether he has any and, if so, what other property or means of satisfying the judgment or order by which he is bound;(iii) as to the whereabouts of the goods which he is bound, pursuant to the judgment which has been entered against him, to deliver to the plaintiff, or as the case may be.
2. JAMES STYLES shall attend and produce all documents or things in his possession, power or custody relating to those questions (and—here specify particular documents or things, if any).
(Complete as in general form of minute or order under Part 41 rule 11.)
Form 56: Ins 2.6.1972. Am 19.2.1988.
Form 57
P 45, r 2.
WRIT FOR LEVY OF PROPERTY
TO THE SHERIFF:
In respect of the judgment (order) entered on 1 March 19 , levy on the property of (name) , which is authorised by law to be taken in execution, for—(where applicable)any pay the amount so levied, less your fees, to (name) or otherwise as the law may require.
(a) the amount payable under the judgment (order) being $ on 7 May 19 (plus interest from the date at (if ordered, the rate ordered for example, the yearly rate of ..........% or, if the judgment (order) is registered in the Court under the Service and Execution of Process Act 1992 (Commonwealth), the yearly rate of .....% or such rates as may be notified to you by the Court otherwise such rates as are prescribed) on so much of the sum of $............... as is from time to time unpaid), subject to any payment in reduction thereof;
(b) $ being costs of this writ*;
(c) for your fees*; and
(d) $ , being the amount recoverable under section 107 (1) of the Service and Execution of Process Act 1992,
Issued 19 .
By the Court Registrar (or Chief Clerk) |
Issued at the request of the plaintiff (name and address) (or (name) of (address and telephone number) solicitor for the plaintiff (name and address) ).
(The defendant resides at (address) .)
*omit if irrecoverable by reason of Part 52A rule 46
Form 57: Ins 2.6.1972. Am 30.3.1979; 23.10.1987; 2.4.1993; 24.6.1994.
Form 57A
P 45, r 15 (2).
NOTICE TO JUDGMENT DEBTOR OF INTENTION TO SELL LAND
To the judgment debtor:
1. A writ of execution has been registered against the title to your land described in the Schedule below and the land is bound by the writ.
2. Unless the writ is satisfied or you make arrangements as mentioned in paragraph 3 or obtain an order mentioned in paragraph 4, your land, described in the Schedule below, may be sold by the Sheriff under the authority of the writ.
3. You may make arrangements for the sale or mortgage of the land by you subject to the judgment creditor’s consent. That consent will only be given on condition that an amount for the proceeds of the sale or mortgage, stipulated by the judgment creditor, is paid to the Sheriff towards satisfaction of the writ of execution. If you wish to make any such arrangements you should contact the judgment creditor’s solicitor immediately.
4. You may apply to the Court for an order staying proceedings on terms, which may include terms as to payment by instalments of the money to be levied under the writ.
SCHEDULE
(description of land by street number, etc.)
By the Court, Registrar. |
Form 57A: Ins 28.5.1982. Am 23.2.1990.
Form 57B
(Memorandum to be endorsed on notice of sale for service on judgment debtor.)
P 45, r 18.
To the judgment debtor:
You may apply to the Court for an order staying proceedings on terms, which may include terms as to payment by instalments of the money to be levied under the writ.
Form 57B: Ins 28.5.1982. Am 23.2.1990.
Form 58
P 46, r 3.
GARNISHMENT NOTICE
1. Particulars—
(a) | Judgment creditor: | (name) |
(b) | Judgment debtor: | (name, address and occupation). |
(c) | Garnishee: | (name, address and occupation). |
(d) | Debt: (Give the particulars required under Part 46 rule 3 (6), including also, if the debt is a wage or salary, the provisions of section 99 of the Act.) | |
(e) | leave granted on 10 April 19 . | |
(f) | amount due to judgment creditor at the date leave granted | $ |
provision for subsequent interest and for costs | $ | |
(where applicable amount recoverable under s. 107 (1) of the Service and Execution of Process Act 1992 (Commonwealth) | $ ) | |
sum required | $ | |
2. All debts which are due or accruing from the garnishee to the judgment debtor at the time of service of this notice are attached and bound in the hands of the garnishee to the extent of the sum required.
3. The judgment creditor will at 10 a.m. on 7 May 19 , at (address of Court) move the Court for an order for payment under Part 46 of the rules of Court.
4. The garnishee may pay the debts attached into Court to the extent of the sum required, retaining, if he pays into Court before 7 May 19 , $ for his costs. Otherwise the Court may order him to pay the debts attached to the judgment creditor to the extent of the sum required and interest thereon and costs.
5. Provision exists for the determination, at the hearing, of any dispute concerning the liability of the garnishee to pay the debts attached.
(Follow the prescribed form of conclusion of documents for use by a party, Form 4, and add—
The address for service of the judgment creditor is (address)
Form 58: Ins 2.6.1972. Am 24.8.1973. Subst 1.5.1987. Am 2.4.1993.
Form 59
(To be set out in accordance with Form 1.)
[Where Part 51, rule 57 (a) applies, add, above the name of the claimant in the title—
In the matter of section of the (name) Act 19 .]
P 51, rr 4 (1) (a), (2) (a).
ORDINARY SUMMONS FOR LEAVE TO {APPEAL or CROSS-APPEAL}
The proceedings in respect of which leave to { appeal or cross-appeal}is sought were heard on 7 and 8 May 19 and decided on May 19 .
The claimant claims an order granting leave to { appeal or cross-appeal} from the decision of (or as the case may be)
(or the following part of the decision of (or as the case may be)—
(state the part)).
The summons is returnable before the Court of Appeal on: Time: (date) at 9.45 am.
Place: (address of Court)
[Where there is an opponent, add—
To the opponent (address):
The rules require you to file and serve a response (as to which see Part 51 rule 4C) within 28 days of service of this summons and the documents referred to in Part 51 rule { 4B (1) or 4C (3)} upon you, in default of which the summons may be disposed of:
(a) in your absence; and
(b) solely on the basis of the claimant’s argument.
[If opponent has not filed a summons in the proceedings add—
Before you file the notice or take any other step in the proceedings, you must enter an appearance in the Registry unless you have by then filed a summons in the proceedings.]]
Place: (address of Court).
[Where the time for service under Part 51 rule 4 (3) (b) or (4) (b) has been abridged, add—
The time before which this summons is to be served has been abridged by the Court to 5 p.m. on 5 May 19 or as the case may require.]
The time before which this summons is to be served has been abridged by the Court to 5 p.m. on 5 May 19 or as the case may require.]
[Where proceedings have been stayed, add—
By order made on (date) by {Justice or as the case may be} all proceedings under (describe judgment or order) were stayed until {the above date or after the hearing of these proceedings or as the case may be}.]
Claimant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
[Tutor: (name, address)]
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
By order made on (date) by {Justice or as the case may be} all proceedings under (describe judgment or order) were stayed until {the above date or after the hearing of these proceedings or as the case may be}.]
Claimant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
[Tutor: (name, address)]
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 59: Ins 2.6.1972. Am 23.5.1997. Subst 5.12.1997. Am 23.5.2003; 13.6.2003.
Form 59A
(To be set out in accordance with Form 1.)
[Where Part 51, rule 57 (a) applies, add, above the name of the claimant in the title—
In the matter of section of the (name) Act 19 .]
In the matter of section of the (name) Act 19 .]
P 51, rr 4 (1) (b), (2) (b).
HOLDING SUMMONS FOR LEAVE TO {APPEAL or CROSS-APPEAL}
The proceedings in respect of which leave to { appeal or cross-appeal} is sought were heard on 7 and 8 May 19 and decided on May 19 .
The claimant claims an order granting leave to { appeal or cross-appeal} from the decision of (or as the case may be) (or the following part of the decision of (or as the case may be)—
(state the part)).
[Where there is an opponent, add—
To the opponent (address):
This summons is filed under Part 51 rule 4 and allows the claimant to proceed with its application for leave, at any time up to 3 months after the date of service of the summons, by filing and serving an ordinary summons.
[If opponent has not filed a summons in the proceedings add—
Before you file the notice or take any other step in the proceedings, you must enter an appearance in the Registry unless you have by then filed a summons in the proceedings.]
Before you file the notice or take any other step in the proceedings, you must enter an appearance in the Registry unless you have by then filed a summons in the proceedings.]
[Where proceedings have been stayed, add—
By order made on (date) by {Justice or as the case may be} all proceedings under (describe judgment or order) were stayed until {the above date or after the hearing of these proceedings or as the case may be}.]
By order made on (date) by {Justice or as the case may be} all proceedings under (describe judgment or order) were stayed until {the above date or after the hearing of these proceedings or as the case may be}.]
Claimant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
[Tutor: (name, address)]
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
[Tutor: (name, address)]
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 59A: Ins 5.12.1997.
Form 60
(Notice of appeal with appointment)
P 51, r 6 (1) (a), (1) (b) (ii), (2) (b).
(To be set out in accordance with Form 1.)
JAMES STYLES
appellant
JOHN LEEin the Court below—
respondent
JOHN LEE
plaintiff
JAMES STYLES
defendant
NOTICE OF APPEAL
The proceedings appealed from were heard on 7 and 8 May 19 and decided on May 19 .
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(or as the case may be)
(or the following part of the decision of
(or as the case may be)—
(or as the case may be)—
(state the part)).
GROUNDS: (state briefly but specifically the grounds relied upon in support of the appeal).
ORDER SOUGHT: (state what judgment, order, verdict or determination the appellant seeks in place of the decision in the court below).
The appeal will be called over at (address) on (date) (time).
The appeal will be called over at (address) on (date) (time).
To the respondent, (address)—
Before you take any step in these proceedings you must enter an appearance in the Registry.
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
Solicitor’s agent: (name, address and telephone number)
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
Solicitor’s agent: (name, address and telephone number)
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 60: Ins 23.5.1997.
Form 60AA
(Notice of appeal with appointment)
P 51, r 5 (1) (a), (b) (ii).
(To be set out in accordance with Form 1.)
JAMES STYLES
appellant
JOHN LEEin the Court below—
respondent
JOHN LEE
plaintiff
JAMES STYLES
defendant
NOTICE OF APPEAL
The proceedings appealed from were heard on 7 and 8 May 19 and decided on May 19 .
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(or as the case may be)
(or the following part of the decision of
(or as the case may be)—
(or as the case may be)—
(state the part)).
GROUNDS: (state briefly but specifically the grounds relied upon in support of the appeal).
ORDER SOUGHT: (state what judgment, order, verdict or determination the appellant seeks in place of the decision in the court below).
Appeal papers will be settled on 7 May 1972, at 11 a.m. in the Registry of the Court of Appeal.
Appeal papers will be settled on 7 May 1972, at 11 a.m. in the Registry of the Court of Appeal.
To the respondent, (address)—
Before you take any step in these proceedings you must enter an appearance in the Registry.
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
Solicitor’s agent: (name, address and telephone number)
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
Solicitor’s agent: (name, address and telephone number)
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
(This Form must not be used in respect of an Appeal which is subject to Division 3A)
Form 60AA (previously Form 60): Ins 2.6.1972. Am 20.12.1974; 4.4.1975; 23.12.1977; 23.5.1980; 8.7.1983; 20.2.1987; 3.9.1993; 23.12.1994; 22.9.1995. Renumbered 23.5.1997.
Form 60A
(Notice of appeal without appointment)
P 51, r 5 (1).
(To be set out in accordance with Form 1.)
JAMES STYLES
appellant
JOHN LEEin the Court below—
respondent
JOHN LEE
plaintiff
JAMES STYLES
defendant
NOTICE OF APPEAL
The proceedings appealed from were heard on 7 and 8 May 19 and decided on May 19 .
The appellant appeals from the decision of
(or as the case may be)
(or the following part of the decision of
(or as the case may be)—
The appellant appeals from the decision of
(or as the case may be)
(or the following part of the decision of
(or as the case may be)—
(state the part)).
To the respondent, (address)—Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Before you take any step in these proceedings you must enter an appearance in the Registry.
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 60A: Ins 3.9.1993. Am 22.9.1995.
Form 60B
(Notice of appeal with hearing date)
P 51AA, r 5 (1) (b) (iii).
(To be set out in accordance with Form 1.)
JAMES STYLES
appellant
JOHN LEEin the Court below—
respondent
JOHN LEE
plaintiff
JAMES STYLES
defendant
NOTICE OF APPEAL
The proceedings appealed from were heard on 7 and 8 May 19 and decided on May 19 .
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(or as the case may be) (or the following part of the decision of (or as the case may be)—
(state the part)).
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(or as the case may be) (or the following part of the decision of (or as the case may be)—
(state the part)).
GROUNDS: (state briefly but specifically the grounds relied upon in support of the appeal).
ORDER SOUGHT: (state what judgment, order, verdict or determination the appellant seeks in place of the decision in the court below).
The appeal will be heard by the Court at (address) on Monday the day of 19 or on a later day during that week to be fixed.
The appeal will be heard by the Court at (address) on Monday the day of 19 or on a later day during that week to be fixed.
To the respondent, (address)—
Before you take any step in these proceedings you must enter an appearance in the Registry.
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
(This form must be used only in respect of an appeal which is subject to Division 3A.)
Form 60B: Ins 23.12.1994. Am 22.9.1995; 23.5.1997.
Form 60C
P 51, rr 4A (1), 6 (5), P 51AA, r 5 (5).
NOTICE OF DISCONTINUANCE OF {APPEAL or APPLICATION FOR LEAVE}
The appellant hereby discontinues the { appeal or application for leave} the subject of these proceedings.
Form 60C: Ins 23.12.1994. Am 24.2.1995; 23.5.1997. Subst 5.12.1997.
Form 61
P 51, r 17 (1), P 51AA, r 12 (1).
SUPPLEMENTARY NOTICE OF APPEAL
1.
GROUNDS in place of (or in addition to) the grounds specified in the Notice of Appeal: (state amendments and see Part 20).
2.
ORDERS SOUGHT in place of (or in addition to) orders specified in the Notice of Appeal: (state amendments and see Part 20 and continue as in Notice of Appeal, Form 60).
Form 61: Ins 2.6.1972. Am 23.5.1997.
Form 61AA
P 51, r 27 (1) (b) (ii), P 51AA, r 18A (1) (b).
NOTICE OF NON-OBJECTION
The respondent (or as the case may be) does not object to the hearing of the appeal being expedited.
Form 61AA: Ins 3.9.1993. Am 23.5.1997.
Form 61A
P 51AA, r 21.
INDEX
(Follow the order of arrangement prescribed by Part 51AA rule 24 (8), for example)
No. | Document | Text Included | Date | Page | |
1 | Statement of Claim (if relevant to the appeal) | Y | 17-2-77 | (Leave this column blank in the draft index) | |
2 | Defence | Y | |||
3 | Amended Statement of Claim | Y | 10-6-77 | ||
4 | Affidavit of (name) except paragraph 3 | Y | 27-7-77 | ||
5 | Annexure “A” | Y | 27-7-77 | ||
6 | Statement under Part 33 r 8A | Y | 27-7-77 | ||
7 | Transcript of evidence taken before Mr. Justice (name) | Y | 1-3-78 | ||
Y | 2-3-78 | ||||
Y | 6-3-78 | ||||
LEE, John Examined Cross-Examined JONES, Dr. Henry Examined Cross-Examined Re-Examined | |||||
8 | Further cross-examined Exhibits-mark, description and page of appeal book where tender recorded (In the draft index, list all exhibits, whether relevant to the appeal or not) | ||||
Page | |||||
“A” Reports Dr. H. Jones | Y | 28-1-75 | |||
Y | 16-4-75 | ||||
“B” Discharge summary from Royal North Short Hospital (inclusion objected to by respondent as irrelevant and insisted upon by appellant | Y | 27-7-73 | |||
“C” Copies of wage records | Y | ||||
“1” Reports of Dr. J. Smith | Y | 21-9-76 | |||
“2” Reports of Dr. J. Styles | N | 29-10-75 | |||
9 | “MFI 1” Plan by A. Brown | Y | 1-3-78 | ||
10 | Reasons for judgment of Mr. Justice (name) | Y | 10-3-78 | ||
11 | Minute of Judgment | Y | 31-3-78 | ||
12 | Notice of Appeal | Y | 31-3-78 | ||
13 | Notice of Cross-Appeal | Y | 4-4-78 | ||
Solicitor for the respondent
| Solicitor for the appellant
|
To the Registrar of the Court of Appeal:
[Where the appeal books are to be prepared by the Registry, add—
I, (name of solicitor) request you to prepare (number, to be left blank in the index) copies of the appeal papers and acknowledge my liability to pay the Court fees payable in respect of their preparation.]
No part of any affidavit listed above was struck out or rejected or not read or expressly admitted for a limited purpose only, except as shown above.
Filed (date)
Appellant’s solicitor
Form 61A: Ins 21.12.1979. Am 24.8.1990. Subst 14.12.1990; 23.12.1994. Am 22.9.1995; 23.5.1997.
Form 61B
P 51, r 40, P 51AA, r 25B.
SCHEDULE OF DAMAGES
JUDGMENT QUANTUM $ | APPELLANT’S QUANTUM $ | |
1. PAST ECONOMIC LOSS | ||
2. INTEREST ON PAST ECONOMIC LOSS
| ||
3. GENERAL DAMAGES 3.1 Past 3.2 Future | ||
4. INTEREST ON PAST GENERAL DAMAGES
| ||
5. GRIFFITHS v KERKEMEYER | ||
6. FOX v WOOD | ||
7. OUT OF POCKET EXPENSES 7.1 Past 7.2 Future | ||
8. FUTURE ECONOMIC LOSS | ||
9. CONTRIBUTORY NEGLIGENCE | ||
GROSS TOTAL | ||
LESS | ||
NET TOTAL |
BASIS OF THE CHALLENGE TO THE JUDGMENT
(Set out brief but specific statement of the basis of the challenge)
LIKELY LENGTH OF HEARING
......................... Counsel for appellant (if any) | |
or | |
Solicitor for appellant (if any) | |
or Appellant |
Filed: (date)
(adapt as necessary)
(attach calculation sheets as necessary)
(attach calculation sheets as necessary)
Form 61B: Ins 23.12.1994. Am 23.5.1997.
Form 62
(To be set out in accordance with Form 1.)
(Where Part 51, rule 57 (a) or Part 51AA, rule 35 (a) applies, add, above the name of the claimant in the title—
In the matter of section of the (name) Act 19 .)
P 51, rr 50, 57, P 51AA, rr 32, 35.
SUMMONS
The claimant claims—(state the relief claimed as prescribed in Form 6, and, where Part 51 rule 57 (b) or Part 51AA rule 35 (b) applies, add—
GROUNDS:
or, where Part 51 rule 4 (7) or Part 51AA rule 3 (7) applies, add the statement prescribed in Form 59).
(Where there is an opponent, add—
To the opponent (address):
To the opponent (address):
If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified below, the proceedings may be heard and you will be liable to suffer judgment or an order against you in your absence.
Before any attendance at that time you must enter an appearance in the Registry.
Time: 7 May 19 at 10.15 a.m.
Place: (address of Court).)
Time: 7 May 19 at 10.15 a.m.
Place: (address of Court).)
(Where there is no opponent, add—
Time and place for attendance.
Time: 7 May 19 at 10.15 a.m.
Place: (address of Court).)
Time and place for attendance.
Time: 7 May 19 at 10.15 a.m.
Place: (address of Court).)
(Where the time for service under Part 5 rule 3 (3) has been bridged, add—
The time before which this summons is to be served has been abridged by the Court to 5 p.m. on 5 May 19 or as the case may require.)
The time before which this summons is to be served has been abridged by the Court to 5 p.m. on 5 May 19 or as the case may require.)
(Where proceedings have been stayed, add—
By order made on (date) by Mr Justice (or as the case may be) all proceedings under (describe judgment or order) were stayed until the above date (or after the hearing of these proceedings or as the case may be).)
Claimant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
(Tutor: (name, address))
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
By order made on (date) by Mr Justice (or as the case may be) all proceedings under (describe judgment or order) were stayed until the above date (or after the hearing of these proceedings or as the case may be).)
Claimant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
(Tutor: (name, address))
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 62: Ins 2.6.1972. Am 4.4.1975; 23.12.1977; 23.5.1980; 19.7.1985; 20.2.1987; 22.9.1995; 22.3.1996; 23.5.1997; 13.6.2003.
Form 62A
(To be set out in accordance with Form 1).
(Where Part 51 rule 56 (a) or Part 51AA rule 35 (a) applies, add above the name of the claimant in the title—
In the matter of section of the (name) Act 19 .)
P 51, rr 50 (2), 57, P 51AA, rr 32 (2), 35.
SUMMONS
The claimant claims the decision or determination of the question and matters stated for decision or determination in the stated case filed herewith.
To the opponent, (address):
You are liable to suffer judgment or an order against you unless the prescribed form of notice of your appearance is received in the Registry within (14) days after service of this summons upon you.
and continue—
Claimant: (name, address) (a minor)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
(Tutor: (name, address))
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Claimant: (name, address) (a minor)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
(Tutor: (name, address))
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 62A: Ins 22.8.1975. Am 23.12.1977; 23.5.1980; 20.2.1987; 22.9.1995; 23.5.1997.
Form 62AA
(Notice of motion in the Court of Appeal)
P 51, r 49, P 51AA, r 31.
(To be set out in accordance with Form 1)
(Where Part 51 rule 57 (a) or Part 51AA rule 35 (a) applies, insert—
In the matter of section .......... of the (name) Act 19 )
(Where Part 51 rule 49 (2) or Part 51AA rule 31 (2) applies.
JAMES STYLES | |
Claimant | |
JOHN LEE | |
Opponent |
NOTICE OF MOTION
The claimant will, at 10.15 a.m. on 7 May 19 , at (address), move the Court for orders—
continue as in Form 23).
(Where neither Part 51 rule 49 (2) nor Part 51AA rule 31 (2) apply,
(name of claimant in the summons) | |
Claimant | |
(name of opponent in the summons) | |
Opponent |
NOTICE OF MOTION
The (title of person applying on the motion, for example, opponent) will, at 10.15 a.m. on 7 May 19 at (address) move the Court for orders—
continue as in Form 23).
Form 62AA: Ins 16.1.1981. Am 8.7.1983; 23.5.1997 (see erratum 14.11.1997).
Form 62AA1: Ins 24.7.1998. Am 23.10.1998; 20.4.2000.
Form 62AA1
P 51, r 59, P 51AA, r 37.
(Title of proceedings)
SHORT REASONS FOR DECISION
The appeal is dismissed (insert particulars of any costs order) and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to section 45 (4) of the Supreme Court Act 1970, the Court’s reasons in short form are (set out short reasons).
(Date)
Form 62AAA
(Items, etc. in a bill of costs).
P 52, r 49 (1).
Work done.
1. | } | (number the items consecutively) |
2. | ||
3. |
Skill care and responsibility.
4. | } | (continue the consecutive numbers) |
5. | ||
6. |
Disbursements.
7. | } | (continue the consecutive numbers) |
8. | ||
9. |
(add the note required by Part 52 rule 49 (1B) and, if Part 52 rule 49 (1) (e) applies, the statement required by that rule.)
Form 62AAA: Ins 20.4.1990. Am 2.10.1992.
Form 62AB
(Undertaking to pay disbursement).
P 52, r 49 (3A).
UNDERTAKING
I undertake to the Court that, out of any money received at any time and from time to time by me or from or on behalf of my client in payment of the costs which are the subject of my bill, I will, subject to any appropriation by the payer, within 21 days of receipt pay (if there is only one unpaid disbursement—to (name) his fee or, if the money received is less than his fee, the amount received, until his fee is paid) (if there is more than one unpaid disbursement—to (name) and (name) their fees or, if the amount received is less than their fees, to each of them that proportion of the amount received as his fee bears to the total fees, until their fees are paid).
Date
solicitor.
Form 62AB: Ins 9.12.1983.
Form 62AC
(Notice to serve objections to bill of costs. No heading or title: for attaching or subscribing to the bill.)
P 52, r 50A (4).
To the party liable to pay the costs in the within bill:
Costs claimed in (the attached or this as the case may require) bill may be allowed and the taxation may be concluded unless, within 21 days after service on you of this notice, you serve on the party entitled to the costs a notice in the prescribed form stating the item or items to which you object and the nature and grounds of your objection.
Form 62AC: Ins 23.12.1983. Am 2.10.1992.
Form 62AD
P 52, r 50A (5).
NOTICE OF OBJECTION TO A BILL
ITEM NO | NATURE AND GROUND OF OBJECTION | AMOUNT OBJECTED TO | OBJECTION CONCEDED | ||
$ | ¢ | $ | ¢ | ||
(1)(3) | (1) (4) | (1) | (5) | (2) | (6) |
(7) | (8) | ||||
(signature) | |
Solicitor for (party objecting) | |
(signature) | |
Solicitor for (party who served bill) |
(1) This column to be completed by party objecting.
(2) This column to be completed by party who served bill.
(3) State the number of the item objected to. Where the objection is that Part 52 rule 49 (1) (e) has not been complied with, state “not applicable”.
(4) State these shortly but specifically. Where the objection is that Part 52 rule 49 (1) (e) has not been complied with, state the proportion by which the costs claimed are reduced by Part 52 rule 23 (4) or by an order under Part 52 rule 6 (2) (a) or Part 52 rule 24 (4).
(5) State how much of the item is objected to. Do not include an amount in respect of any objection that Part 52 rule 49 (1) (e) has not been complied with.
(6) Where an objection is wholly or partly conceded, write the amount conceded beside the objection. Where the objection is that Part 52 rule 49 (1) (e) has not been complied with, do not state any amount but write instead “conceded”.
(7) & (8) Total this column but do not take account of any item solely for skill, care and responsibility.
(9) Subtract the total at (8) from the total at (7) and show remainder.
Form 62AD: Ins 2.10.1992.
Form 62AE
P 52, r 50A (7).
CERTIFICATE OF TAXATION
I certify that (pursuant to judgment (order) entered date) (or pursuant to Part 52 rule 16 the plaintiff having filed notice of discontinuance on date) (or pursuant to section 10 of (state Act)) the defendant’s costs as between party and party, which are payable after making any reduction required by Part 52 rule 24 (4) or by an order under Part 52 rule 6 (2) (a) or by an order under Part 52 rule 24 (4), are $ .
Dated
(description of officer)
Form 62AE: Ins 2.10.1992.
Form 62B
REQUEST FOR APPOINTMENT FOR HEARING
P 52, r 50 (4) (ii).
The (plaintiff) requests an appointment for hearing before a taxing officer.
The items or other matter with which the (plaintiff) disagrees are—
Form 62B: Ins 23.5.1980. Am 2.10.1992.
Form 63
(No heading or title if made on a filed bill; see rule 59 (5).)
P 52, r 59.
CERTIFICATE OF TAXATION
I certify that (pursuant to judgment (order) entered
19 ) (or pursuant to Part 52 rule 16, the plaintiff having filed notice of discontinuance on 19 ) (or pursuant to section 10 of (state Act)) the defendant’s costs as between party and party have been taxed and allowed at $ .
19 ) (or pursuant to Part 52 rule 16, the plaintiff having filed notice of discontinuance on 19 ) (or pursuant to section 10 of (state Act)) the defendant’s costs as between party and party have been taxed and allowed at $ .
The amount payable, after making any reduction required by Part 52 rule 24 (4) or by an order under Part 52 rule 6 (2) (a) or by an order under Part 52 rule 24 (4), is $ .
Dated
Taxing Officer
Form 63: Ins 2.6.1972. Am 23.12.1983; 2.10.1992.
Form 64
P 52, r 60.
STATEMENT OF OBJECTION TO TAXATION OF PLAINTIFF’S BILL
(Classify the items and divide them into separate paragraphs according to the nature or grounds of the objection or set them out as follows:
Number of item | Page of bill | Item or part objected to | Nature and grounds of grounds |
7 | 2 | .......... | (State these shortly but specifically). |
10 | 2 | .......... |
Form 64: Ins 2.6.1972.
Form 64A
P 52, r 68 (7).
(Request for taxation or moderation)
(no heading or title)
I have read this bill of costs. I request that it be taxed (or moderated). I wish (or do not wish) to be present when the bill is taxed (or moderated).
Dated 7 May 19 .
(signature) | |
executor (or administrator or trustee) |
Form 64A: Ins 7.7.1972.
Form 64B
P 53, r 3.
(Security for costs)
DEED
PARTICULARS
1. | Date: | 7 May, 19.. |
2. | Guarantor: (name) | |
(address for service) | ||
3. | state the party claiming the relief for example: | |
Plaintiff: (name) | ||
(address for service) | ||
4. | state the party against whom the relief is claimed for example: | |
Defendant: (name) | ||
(address for service) | ||
5. | Proceedings No .. of 19.. in the .. Division (or as the case may be) of the Supreme Court of New South Wales. | |
6. | Date of order to give this security: 10 April, 19.. | |
By this deed the guarantor promises the (defendant) that, (as ordered, for example if the (plaintiff) does not pay to the (defendant) all costs which the (plaintiff) may have been ordered to pay to the (defendant) in the above proceedings, the guarantor will pay to the (defendant) whatever is required to make good the (plaintiff’s) default to a limit of $ ..).
Signed sealed and delivered (and so on) (or as the case may be).
Form 64B: Ins 25.5.1990.
Form 65
P 55, r 10.
WARRANT FOR ARREST
TO THE SHERIFF—
Arrest (name) and bring him before the Court to answer a charge of contempt detaining him in custody in the meantime unless, by paying the sum of $ into Court (or as the case may be) he gives security for his appearance in person before the Court to answer the charge and to submit to the (judgment or) order of the Court.
Dated 7 May 19 .
Judge
Form 65: Ins 2.6.1972.
Form 66
P 55, r 12.
WARRANT FOR COMMITTAL
TO THE SHERIFF—
Take (name) to (name of correctional centre) and deliver him to the Superintendent of that correctional centre.
TO THE SUPERINTENDENT OF (name of correctional centre)
Receive (name) into your custody and keep him there until the further order of this Court (or as the case may be).
His committal is for contempt of court in that he (state the nature of the contempt, for example, wilfully insulted the Judge while the Judge was sitting in Court).
Dated 7 May 19 .
Judge
Form 66: Ins 2.6.1972. Am 28.7.1978; 21.2.1997.
Form 67
(Heading and title if possible.)
P 56, r 5.
NOTICE OF CLAIM
The claimant claims the property described in the schedule, being (part of) the property taken (intended to be taken) in execution by the Sheriff at (address) under process against (name) .
SCHEDULE
(description)
(description)
Dated 7 May 19 .
(signature) claimant’s solicitor |
Claimant: (name)
Place of abode:
Address for service:
To the execution creditor:
If you do not, within (4) days after service of this notice upon you, serve on the Sheriff a notice that you admit this claim, the Court may on application by the Sheriff grant relief by way of interpleader.
If you admit the claim, you will not be liable to the Sheriff for any fees or expenses incurred by him after you serve on him notice that you admit it.
(signature) Sheriff |
Form 67: Ins 2.6.1972.
Form 68
P 59, r 4.
ORDER
THE COURT ORDERS THAT—
(where the 1924 Act applies(where the 1973 Act applies(if the judgment may be enforced for the amount for which it is to be registered,(otherwise
(where the 1924 Act applies
1. the judgment dated (date) of the (court) by which it was adjudged that (name) pay money to (name) be registered under Part 2 of the Administration of Justice Act 1924;
2. (name) may within ..... days after service upon him of notice of registration apply to set aside the registration;
3. the amount for which judgment may be enforced is $ ;
4. the costs of and incidental to the application for this order and of registration of the judgment be added to the amount specified in paragraph 3 of this order.)
1. The judgment dated (date) of the (court) by which it was adjudged that (name) pay money to (name) (or state shortly the terms of and identify the judgment) be registered under Part 2 of the Foreign Judgments Act 1973 for—(a) the sum of $ ;(b) (where, by the law of the country of the original court, interest becomes due under the judgment, specify amount of interest that will become due up to time of registration or how interest is to be calculated);(c) the costs of and incidental to the application for this order and of registration of the judgment.
2. (name) may, within ..... days after service upon him of notice of registration, apply to set aside the registration;
3. the judgment may be enforced for the amount for which it is registered.)
3. the amount for which judgment may be enforced is $ ;
4. the judgment may also be enforced for the interest and costs for which judgment is registered.) )
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 68: Ins 2.6.1972. Am 23.12.1988. Subst 2.10.1992.
Form 69
P 59, r 6.
NOTICE OF REGISTRATION OF JUDGMENT
To: (name)
(where the 1924 Act applies(where the 1973 Act applies(where either Act applies(If applicable and see Part 59 rule 6 (4),
(where the 1924 Act applies
1. The judgment of (here follow the terms of the order) has been registered in this Court under Part 2 of the Administration of Justice Act 1924;
2. the amount including costs, for which judgment may be enforced against you is $ )
1. The judgment of (here follow the terms of the order) has been registered in this Court under Part 2 of the Foreign Judgments Act 1973 for—(a) the sum of $ ;(b) (where applicable interest of $ ;)(c) costs of $ .
2. The judgment may be enforced for the amount for which it is registered (or specify total amount for which judgment may be enforced).)
3. you may, within ..... days after the service of this notice upon you, file notice of motion to set aside the registration;
4. the address for service of the above plaintiff, the judgment creditor, is (address).) )Dated:
.................... Solicitor for plaintiff |
Form 69: Ins 2.6.1972. Am 23.12.1988. Subst 2.10.1992.
Form 69A
P 59A, r 5.
ORDER
THE COURT ORDERS THAT—(if the terms of the judgment to be registered are enforceable in full(otherwise(if applicable
1. The judgment dated (date) of the (court) by which it was adjudged that (name) pay money to (name) (or state shortly the terms of and identify the judgment) be registered under Part 2 of the Foreign Judgments Act 1991 of the Commonwealth for—(a) (specify the terms of the judgment that are to be registered and, where a sum of money is payable under a term, include the sum of (amount));(b) (where, by the law of the country of the original court, interest becomes due under the judgment, specify amount of interest that will become due up to time of registration or how interest is to be calculated);(c) the costs of and incidental to the application for this order and of registration of the judgment.
2. (name) may, within ..... days after service upon him of notice of registration, apply to set aside the registration;
3. the judgment may be enforced to the full extent of the terms that are to be registered.)
3. (specify extent to which judgment may be enforced);
4. the judgment may also be enforced for the interest and costs for which judgment is registered.))
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 69A: Ins 2.10.1992.
Form 69B
P 59A, r 7.
NOTICE OF REGISTRATION OF JUDGMENT
To: (name)(If applicable and see Part 59A rule 7 (4),
1. The judgment of (here follow the terms of the order) has been registered in this Court under Part 2 of the Foreign Judgments Act 1991 of the Commonwealth for—(a) (specify the terms of the judgment that have been registered and, where a sum of money is payable under a term, include the sum of (amount));(b) (where applicable interest of (amount));(c) costs of (amount).
2. the judgment may be enforced to the full extent of the terms that are registered (or specify extent to which judgment may be enforced).
3. You may, within .. days after the service of this notice upon you, file notice of motion to set aside the registration.
4. The address for service of the above plaintiff, the judgment creditor, is (address).)
Dated:
.................... Solicitor for plaintiff |
Form 69B: Ins 2.10.1992. Am 30.10.1992.
Form 70
P 60, r 12.
NOTICE OF APPEAL
APPELLANT: JAMES STYLES
RESPONDENT: JOHN LEE
The appellant appeals to the Court constituted by a Judge from the decision (or as the case may be) of the Master (or the following part of the decision of the Master: (state the part)).
GROUNDS: (state briefly but specifically the grounds relied upon in support of the appeal).
ORDER SOUGHT: (state what judgment order or determination the appellant seeks in place of the decision of the master).
To the respondent:
If there is no attendance before the Court by you or your counsel or solicitor at the time and place specified below, the appeal may be dealt with and you may suffer a judgment or order against you in your absence.
If there is no attendance before the Court by you or your counsel or solicitor at the time and place specified below, the appeal may be dealt with and you may suffer a judgment or order against you in your absence.
Time and place for attendance:
Time: at (10 a.m.)
Place: (address of Court).
Time: at (10 a.m.)
Place: (address of Court).
Form 70: Ins 2.6.1972. Am 19.7.1985.
Form 70AA
P 65C, rr 3 (4), 4 (4).
OATH OF OFFICE
I, (name) of (address) do swear that (if the oath is taken in relation to proceedings commenced or proposed to be commenced under the Mutual Recognition Act 1992 of the Commonwealth or under the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth, add if I am enrolled as a legal practitioner by the Supreme Court of New South Wales) I will truly and honestly conduct myself in the practice of a legal practitioner of the Supreme Court of New South Wales and I shall faithfully serve as such in the administration of the laws and the usages of that State according to the best of my knowledge, skill and ability.
(Signature of person taking oath) | |
.................... |
CERTIFICATE
I, (name) of (address), certify that I duly administered the above oath on (date)
(date)
(date)
(Signature of a person administering oath) | |
......................... (Office of person administering oath) |
Form 70AA: Ins 21.5.1993. Am 24.6.1994; 24.4.1998.
Form 70A
P 66, r 7 (2).
NOTICE OF INTENTION TO CEASE ACTING AS SOLICITOR
To (name of former client):
After (number of days not less than seven) days from (date), I (or, name of solicitor corporation) will file in the registry of the Court a notice that I have (or, it has) ceased to act as your solicitor in these proceedings.
You must therefore cause to be filed in the registry of the Court and served upon the defendant (or as the case may be, or, if the defendant has a solicitor, the defendant’s solicitor) a notice in the prescribed form stating the name of, and address of the office of, the solicitor who is to act for you, or, if you do not have a solicitor who is to act for you, stating your address for service of documents, which address shall be the address of a place within three kilometres of the General Post Office, Sydney (or as the case may require; see Part 9 rule 6 (2)).
Until that notice is so filed and served, any document to be served on you in the proceedings will be taken to have been served on you if a copy of it is left at or sent to (address of the usual or last known place of business or of abode of the former client).
Form 70A: Ins 20.12.1985. Am 20.9.1991.
Form 70B
P 66A, r 4 (3).
REFERRAL CERTIFICATE
I, (name), Associate to the Honourable Justice (name), certify that on (date){ his or her} Honour has determined, pursuant to Part 66A subrule 4 (1), that it is in the interests of the administration of justice that the following litigant be referred for legal assistance under that Part.
Name of litigant referred:
Nature of legal assistance for which referral made (eg to obtain advice, to appear at the hearing of the matter listed on a particular date; see Part 66A r 5):
Date:
(Signature of associate)
Form 70B: Ins 20.4.2000.
Form 71
P 69, (2).
WRIT OF HABEAS CORPUS
To: (name and address)
Have (name of person detained) before the Court at (address) on 7 May 1972 at 10 a.m. and thereafter submit to the further order of this Court as to his custody.
Witness (name) Chief Justice, 1972.
By the Court | |
Registrar (or Chief Clerk) |
This writ is issued at the request of (name and address).
Form 71: Ins 2.6.1972. Am 30.3.1979.
Form 71A: Ins 24.10.1986. Rep 24.9.1993.
Form 71B: Ins 24.10.1986. Rep 24.9.1993.
Forms 71A, 71B
Form 71C
P 72B, r 3 (1).
ARBITRATOR’S AWARD AND REGISTRAR’S NOTICE TO PARTIES
I have determined these proceedings under the Arbitration (Civil Actions) Act 1983 and have made the following award:
Award made in favour of
in the sum of $
in the sum of $
(Where applicable, This award is made with the consent of all parties.)
I attach my reasons for the award (where a party failed to attend a hearing before the arbitrator) and information which I wish to bring to the attention of the Court.
Arbitrator. (Date) |
Date of sending by the Court:
(Unless the award is made with the consent of all parties add the following notice:
Notice by Registrar to parties.
Unless a party makes application to the Court for a rehearing before the Court, and pays the prescribed fee, before the expiration of 28 days from the above date of sending by the Court, this award may be deemed to be the judgment of the Court and enforceable as such.
Registrar. |
Form 71C: Ins 22.12.1989.
Form 71D
P 72B, r 3 (2).
ARBITRATOR’S REASONS FOR AWARD
Reasons for my award dated are as follows:
(Set out reasons sufficient to make the parties aware of the arbitrator’s view of the case made by each party).
(Where a party failed to attend the hearing before the arbitrator add:
The defendant (or as the case may be) failed to attend the hearing before me on (date).
and set out any information known to the arbitrator relating to reasons for the failure).
and set out any information known to the arbitrator relating to reasons for the failure).
Arbitrator. (date) |
Form 71D: Ins 22.12.1989.
Form 71E
P 72B, r 5 (1) (a).
APPLICATION FOR REHEARING
I apply for an order under section 18 (2) of the Arbitration (Civil Actions) Act 1983 for a [if applicable full or limited] rehearing of these proceedings.
(Date) | Solicitor for |
This application was filed on and a rehearing of the proceedings before the Court has been ordered.
(Add any notice of appointment for directions or as required)
Registrar. |
Form 71E: Ins 22.12.1989. Am 21.8.1998.
Form 72
P 73, rr 4, 5.
SUMMONS (APPLICATION FOR ADOPTION ORDER)
The plaintiff claims:
(1) an order for the adoption of (given name or names and surname)
In favour of (name) solely (or, alternatively)
In favour of (name) and (name) jointly.
(2) an order that the Court approves that the child have (name or names) as the child’s given and (surname) as the child’s surname.
The plaintiff asks for a preliminary hearing and claims:
(3) (state orders claimed, for example) directions for the conduct of the hearing and for notice to (named persons).
PARTICULARS
CHILD | APPLICANT(S) | |
(surname) | (surname) | |
(other names) | (other names) | |
(sex) | (occupation) | |
Born 1 May 20 . | (address) | |
at | (place) | AND |
Father: | (surname) | (surname) |
(other names) | (other names) | |
Mother: | (maiden surname) | (occupation) |
(other names) | (address) | |
The proceedings commenced by this summons will be dealt with by a Judge out of court. However, the Court may, of its own motion, appoint a date for the hearing in Court of the proceedings.
Appointment for preliminary hearing
Time: 7 May 20 , at a.m.
Place: (address of Court, for example, Court 9A, Level 9, Supreme Court, Queen’s Square, Sydney)
Plaintiff: (name, address)
Plaintiff’s address for service: (Part 9 rule 6)
Address of Registry:
Place: (address of Court, for example, Court 9A, Level 9, Supreme Court, Queen’s Square, Sydney)
Plaintiff: (name, address)
Plaintiff’s address for service: (Part 9 rule 6)
Address of Registry:
(The Summons should follow Forms 1, 3 and 4 and Pt 73 rules 4 and 5 with such modifications as the case may require. If there is a defendant the heading and title should follow Form 2. Form 72 should be adapted for singular, plural and otherwise as the case may require. Italic indications in the Form should not appear in the Summons.)
Form 72: Ins 2.6.1972. Am 23.12.1977; 19.7.1985; 20.2.1987. Subst 24.4.2003. Am 13.6.2003.
Form 73: Ins 2.6.1972. Am 25.10.1996. Rep 24.4.2003.
Form 73A: Ins 27.3.1987. Rep 24.4.2003.
Form 73B: Ins 27.3.1987. Am 22.11.1996. Rep 24.4.2003.
Forms 73–73B
Form 74
P 73, r 7.
ADOPTION ORDER
CHILD | ADOPTIVE PARENTS |
Surname: | Surname: |
Given names: | Other names: |
(sex) | (occupation) |
born 1 May 20 . | (address) |
at (place) | AND |
Father’s surname: | Surname: |
Other names: | Other names: |
Mother’s maiden surname: | (occupation) |
Other names: | (address) |
The Court makes orders:
(1) for the adoption of the child in favour of the adoptive parent(s)
(2) that the given name(s) of the child be (name or names)
And the surname of the child be (surname)
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 74: Ins 2.6.1972. Subst 24.4.2003.
Form 74AA
(Subpoena to a natural person: criminal proceedings)
P 75, r 2 (1) (r).
SUBPOENA FOR PRODUCTION
To | (1) |
(2) |
THE COURT ORDERS that you shall attend and produce this subpoena and the documents and things described in the schedule—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (7) and until you are excused by the Court from further attending; but—(i) you need not comply with this subpoena if the party who requested its issue has excused you from compliance;(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance and production to a later time.
SCHEDULE
(8)
Dated 19 | By the Court, (9) |
Issued at the request of (10) whose address for service is (10A).
Note that—
(1) if you do not comply with this subpoena you may be arrested.(If the subpoena is issued at the request of the Solicitor for Public Prosecutions other than on behalf of the accused) add—
(2) If you wish to be paid the expenses allowable in respect of your attendance, you must produce the certificate endorsed duly completed).or(If the subpoena is issued at the request of the accused or at the request of the Solicitor (for Public Prosecutions on behalf of the accused) add—
(2) You are not entitled to payment by the Crown of your expenses in respect of your attendance unless legal aid has been granted to the accused.
(3) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you.
(4) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena.
(5) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, [7 May 19 .]
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) description of documents and things.
(9) signature and description of officer of the Court.
(10) state person at whose request the subpoena was issued.
(10A) address for service.
(11) notwithstanding Part 65 rule 3 (3), the reverse of the page may be used, keeping clear a margin of 25 millimetres on the right hand side.
Form 74AA: Ins 29.6.1984 (see erratum 27.7.1984). Am 2.10.1992; 2.4.1993; 25.10.1996.
Form 74AB
(Subpoena to a corporation for production and for its proper officer to answer questions concerning (possession, etc., of documents: criminal proceedings.)
P 75, r 2 (1) (r).
SUBPOENA FOR PRODUCTION AND TO ANSWER QUESTIONS
To | (1) |
(2) |
THE COURT ORDERS that—
1. (1) “the corporation” shall produce this subpoena and the documents and things described in the schedule by causing its proper officer to attend and produce them—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (7) and until the officer is excused by the Court from further attending; but—(i) the corporation need not comply with this subpoena if the party who requested its issue has excused the corporation from compliance;(ii) if the corporation is a bank and is required by this subpoena to produce a banker’s book and the corporation is not a party to these proceedings and Part IV of the Evidence Act 1898 would have applied prior to its repeal, the corporation need not cause its officer to produce it if the corporation causes him to produce proof of the relevant entries in it in accordance with that Part;(iii) the party who requested the issue of this subpoena may, by written or oral notice to the corporation, alter the time for attendance or production to a later time.
2. the officer who is to attend shall make inquiries for the purpose of answering, and, on attending, shall answer, such questions as the Court requires him to answer concerning the possession or custody of those documents and things.
SCHEDULE
(8)
(8)
Dated 19 . | By the Court, (9) |
Issued at the request of (10) whose address for service is (10A).
Note that—
(1) where the corporation fails to comply with this subpoena, this subpoena may be enforced by sequestration of the property of the corporation or by arrest of an officer of the corporation or by both means.
(If the subpoena is issued at the request of the Solicitor for Public Prosecutions other than on behalf of the accused, add—
(2) if you wish to be paid the expenses allowable in respect of your attendance, you must produce the certificate endorsed duly completed);
or
(If the subpoena is issued at the request of the accused or at the request of the Solicitor for Public Prosecutions on behalf of the accused) add—
(2) you are not entitled to payment by the Crown of your expenses in respect of your attendance unless legal aid has been granted to the accused;
(3) documents and things produced by the corporation in accordance with this subpoena may be returned by post to it at its address shown on this subpoena but it may in writing on or attached to this subpoena request that they be posted to it at another address given by it;
(4) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(5) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
Directions for completing this form.
(1) name of corporation.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) description of documents and things.
(9) signature and description of officer of the Court.
(10) state person at whose request the subpoena was issued.
(10A) address for service.
(11) notwithstanding Part 65 rule 3 (3), the reverse of the page may be used, keeping clear a margin of 25 millimetres on the right hand side.
Form 74AB: Ins 29.6.1984. Am 2.10.1992; 2.4.1993; 25.8.1995; 25.10.1996.
Form 74AC
(Subpoena to give evidence: criminal proceedings)
P 75, r 2 (1) (r).
SUBPOENA TO GIVE EVIDENCE
To | (1) |
(2) |
THE COURT ORDERS that you shall attend for the purpose of giving evidence—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (7) and until you are excused by the Court from further attending; but—(i) you need not comply with this subpoena if the party who requested its issue has excused you from compliance;(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance to a later time.
Dated 19 . | By the Court, (8) |
Issued at the request of (9) whose address for service is (9A)
Note that—
(1) If you do not comply with this subpoena you may be arrested; and
(If the subpoena is issued at the request of the Solicitor for Public Prosecutions other than on behalf of the accused, add—
(2) If you wish to be paid the expenses allowable in respect of your attendance, you must produce the certificate endorsed duly completed);
or
(If the subpoena is issued at the request of the accused or at the request of the Solicitor for Public Prosecutions on behalf of the accused) add—
(2) You are not entitled to payment by the Crown of your expenses in respect of your attendance unless legal aid has been granted to the accused;
(3) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) signature and description of officer of the Court.
(9) state person at whose request the subpoena was issued.
(9A) address for service.
(10) notwithstanding Part 65 rule 3 (3), the reverse of the page may be used, keeping clear a margin of 25 millimetres on the right hand side.
Form 74AC: Ins 29.6.1984. Am 2.10.1992; 2.4.1993; 25.10.1996.
Form 74AD
(Subpoena for production and to give evidence: criminal proceedings).
P 75, r 2 (1) (r).
SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE
To | (1) |
(2) |
THE COURT ORDERS that you shall attend and produce this subpoena and the documents and things described in the schedule and attend for the purposes of giving evidence—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (7) and until you are excused by the Court from further attending; but—(i) you need not comply with this subpoena if the party who requested its issue has excused you from compliance;(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for production or attendance to a later time.
SCHEDULE
(8)
(8)
Dated 19 . | By the Court, (9) |
Issued at the request of (10) whose address for service is (10A).
Note that—
(1) if you do not comply with this subpoena you may be arrested.
(If the subpoena is issued at the request of the Solicitor for Public Prosecutions other than on behalf of the accused, add—
(2) If you wish to be paid the expenses allowable in respect of your attendance, you must produce the certificate endorsed duly completed).
or
(If the subpoena is issued at the request of the accused or at the request of the Solicitor for Public Prosecutions on behalf of the accused add—
(2) You are not entitled to payment by the Crown of your expenses in respect of your attendance unless legal aid has been granted to the accused.
(3) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you.
(4) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena.
(5) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) description of documents and things.
(9) signature and description of officer of the Court.
(10) state person at whose request the subpoena was issued.
(10A) address for service.
(11) notwithstanding Part 65 rule 3 (3), the reverse of the page may be used, keeping clear a margin of 25 millimetres on the right hand side.
Form 74AD: Ins 29.6.1984 (see erratum 27.7.1984). Am 2.10.1992; 2.4.1993; 25.10.1996.
Form 74AE
(Form of indictment)
P 75, r 3D (1).
(Under the description INDICTMENT on the form insert a statement of the nature of the offence, for example for murder and, if a statutory offence, insert under that statement under s. ..... of the Crimes Act 1900or as the case may require.
New South Wales
On 7 May 19 the Attorney General (or Director of Public Prosecutions) on behalf of Her Majesty (or as the case may require: see ss. 8 and 9 of the Criminal Procedure Act 1986) charges that (state the offence).
(signature, full name and capacity of signatory: see s 126 of the Criminal Procedure Act 1986.)
Form 74AE: Ins 31.12.1987. Am 25.2.2000; 29.8.2003.
Form 74AF
P 75, r 3E.
(No heading or title)
BAIL ACT 1978
APPLICATION TO THE SUPREME COURT OR THE COURT OF CRIMINAL APPEAL FOR BAIL OR REVIEW OF BAIL OR VARIATION OF EXISTING BAIL CONDITIONS.
1.
I, ............................................. (full name)
of ............................................................
.......... (address) (..... Phone No) (..... MIN if known)
of ............................................................
.......... (address) (..... Phone No) (..... MIN if known)
make application for— | |
[ ] | bail |
[ ] | review of bail determination |
[ ] | variation of existing bail conditions only |
NOTE
(a) You must nominate only ONE of the above choices.
(b) If you—(i) remain in custody because any bail condition has not been complied with; andyou should choose “variation of existing bail conditions only” above. If the bail condition you want varied was imposed by a court other than the Supreme Court and you remain in custody because that bail condition has not been complied with, you must make your application to that other court, not to the Supreme Court.(ii) want only bail conditions varied,
2.
What is your date of birth? ...............
3.
Do you need an interpreter? [ ] Yes [ ] No
If Yes, what language? ..............................
4.
If you are an Aborigine or Torres Strait Islander—
(a) Do you want the Aboriginal Legal Service to represent you in your application? [ ] Yes [ ] No
(b) If Yes, do not answer Question 5.
5.
Do you want the Legal Aid Commission to represent you in your application?
[ ] Yes No [ ]
[ ] Yes No [ ]
If No, who will represent you at the hearing of your application? ............................................................
............................................................
.......... (name of solicitor and firm and, if known, fax no)
............................................................
.......... (name of solicitor and firm and, if known, fax no)
6.
To what charges does your application apply? ............................................................
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Page 1 of 4
7. at ...............
(a) What is the date of your next appearance in court on these charges? ............................................................
(b) In which court are you appearing next?
8.
Have you had a committal hearing at the Local Court?
[ ] Yes [ ] No
[ ] Yes [ ] No
(a) If Yes—(i) What was the date? ....................(ii) Which Local Court? ....................
(b) If No, has a date been set for the committal hearing at the Local Court?
[ ] Yes [ ] NoIf Yes—(i) What was the date? ....................(ii) Which Local Court? ....................
(c) Have you been committed for trial or sentence?
[ ] Yes [ ] NoIf Yes—(i) was it for [ ] trial [ ] sentence(ii) which court [ ] Supreme Court [ ] District Court
at....................
(d) Are you presently on appeal after trial or sentence?
[ ] Yes [ ] No
If Yes, which court? [ ] Court of Criminal Appeal [ ] District Court
9.
Are there any co-accused (or co-defendants) in this matter?
[ ] Yes [ ] No
[ ] Yes [ ] No
If Yes, who? ............................................................
............................................................
............................................................
............................................................
............................................................
10.
Are you presently in custody? [ ] Yes [ ] No
If Yes, please answer the following—
(a) What date were you taken into custody of these charges? ............................................................
..............................
(b) Are you presently serving a sentence? [ ] Yes [ ] NoIf Yes, when are you due for release? ..........
(c) Which gaol are you presently in? ...............
(d) If released on bail, where do you intend to live? ............................................................
11.
Who is the police officer in charge of your case? ............................................................
............................................................
............................................................
Page 2 of 4
ANSWER QUESTIONS 12 TO 15 ONLY IF YOU REPLIED “VARIATION OF EXISTING BAIL CONDITIONS ONLY” TO THE CHOICE IN PARAGRAPH 1.
12.
If you are you in custody, is it only because you have not complied with a condition of the bail which you are seeking to have varied? [ ] Yes [ ] No
13.
What court granted the bail, a condition of which you seek to have varied?
[ ] Court of Criminal Appeal | [ ] Supreme Court | [ ] District Court | [ ] Local Court |
NB If the bail condition you want varied was imposed by a court other than the Supreme Court and you remain in custody because that bail condition has not been complied with, you must make your application to that other court, not to the Supreme Court.
14.
What variation are you asking for? ............................................................
............................................................
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15.
On the previous grant of bail, was there any surety involved?
[ ] Yes [ ] No
[ ] Yes [ ] No
If Yes, please state the name and address of each surety ............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
NOTE
If a surety was involved, unless the surety appears in person at the hearing of this application and consents to it, you will be required to produce at court at the hearing of this application—
(a) evidence of notification of the surety of the date of listing of this application and of the nature of the variation sought; AND
(b) the written consent of the surety to that variation.
16.
If this application is to the Supreme Court—
(a) Is this your [ ] 1st [ ] 2nd [ ] 3rd [ ] 4th [ ] More application of any kind to the Supreme Court in relation to bail?
(b) If the answer to (a) is not “1st”, please state the special facts or special circumstances which justify the making of this further application.
IF THIS APPLICATION IS TO THE SUPREME COURT, YOUR APPLICATION WILL NOT BE ENTERTAINED UNTIL A SATISFACTORY ANSWER IS GIVEN TO THIS QUESTION.
REPRESENTATIVES OF THE LEGAL AID COMMISSION (OR, WHERE APPLICABLE, THE ABORIGINAL LEGAL SERVICE) WILL ASSIST APPLICANTS WITH THIS QUESTION IF REQUIRED
Page 3 of 4
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17.
If this form is completed by a solicitor on behalf of the applicant, what approximate time is it anticipated that the hearing of the application will take? ............................................................
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18.
Any other comments you wish to make ............................................................
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NOTE
(a) This note applies only if—(i) this application is to the Supreme Court and will be heard in Sydney; and(ii) at the time this application is filed in the Court, you are in custody but are NOT in a detention centre within the meaning of the Children (Detention Centres) Act 1987 or in the Long Bay Correctional Complex.
(b) Subject to paragraph (c), the hearing of this application will be conducted by means of video link facilities without your personal attendance at court. Video link facilities allow two-way audio and visual communication of television standard between the Court and the Metropolitan Remand and Reception Centre, including private communication between you and your legal representative. If you are in another correctional centre, you will be sent to the Metropolitan Remand and Reception Centre for the hearing.
(c) The Court may, if it is in the interests of justice to do so, order that the hearing of this application is not to be conducted by video link. An application for such an order—(i) must be in the prescribed form, which is available on request;(ii) must be filed with this application, together with any supporting documents;(iii) will be dealt with before this application is placed in the list for hearing; and(iv) may be dealt with by the Court in the absence of the public and without any attendance by or on behalf of yourself.
Signed .................... | Date ............... 199.. |
Page 4 of 4
Form 74AF: Ins 25.6.1993. Am 20.8.1993. Subst 19.11.1993. Am 19.11.1993; 22.3.1996. Subst 26.4.1996 (see errata 3.5.1996). Am 19.12.1997; 20.10.2000.
Form 74AG
Form 74AG: Ins 19.11.1993. Am 19.11.1993; 22.3.1996. Rep 26.4.1996.
Form 74AH
P 75, r 3F.
(No heading or title)
ACCEPTABLE PERSON—INFORMATION FORM
ACCUSED NAME: | ........................................ |
AMOUNT OF SECURITY/ CASH REQUIRED: | ........................................ |
PROPOSED ACCEPTABLE PERSON................................... | |
ADDRESS: | ........................................ |
OCCUPATION: | ........................................ |
SOURCE OF IDENTIFICATION: ................................... | |
1. | How long have you known the accused? .............................. | ||
2. | What is the nature of your acquaintance with the accused? .................... .................................................. | ||
3. | Have you had any criminal convictions? | [ ] Yes | [ ] No |
4. | Do you have any criminal charges outstanding? | [ ] Yes | [ ] No |
5. | Do you have any bankruptcy proceedings pending/in process? | [ ] Yes | [ ] No |
6. | If Yes to any of the above three questions, provide details here ............... ....................................................... ....................................................... ....................................................... ....................................................... ....................................................... | ||
7. | Are you currently surety in any other matter? | [ ] Yes | [ ] No |
8. | If Yes, provide details ........................................ ....................................................... ....................................................... ....................................................... ....................................................... ....................................................... | ||
9. | IF YOU PROPOSE TO ENTER INTO AN AGREEMENT WITHOUT SECURITY TO FORFEIT AN AMOUNT OF MONEY. Provide full details of your financial resources to pay the amount required, should the accused fail to comply with the Bail Undertaking (eg. Bank accounts, furniture etc.) ..... ....................................................... ....................................................... | ||
10. | IF YOU PROPOSE TO DEPOSIT AN ACCEPTABLE SECURITY. What security are you providing? ............................................. ....................................................... ....................................................... ....................................................... ....................................................... ....................................................... | ||
11. | IF YOU PROPOSE TO DEPOSIT CASH. Is this your money? | [ ] Yes | [ ] No |
Provide details of where you obtained the money ......................... ....................................................... ....................................................... ....................................................... ....................................................... ....................................................... | |||
I hereby offer myself for consideration as an acceptable person under the provisions of the Bail Act 1978, and I understand that should any answer that I have given be untrue or wilfully misleading I may be charged with a Criminal Offence.
I further understand that if the Accused person fails to comply with any conditions of his/her Bail Undertaking then the money/security that I am lodging may be forfeited to the Crown, and, should I desire to be discharged from my obligation under the Bail Act 1978, I must make application to the Court whilst the accused person is present before the Court.
I do solemnly and sincerely declare and affirm that the answers that I have given in this document are true and correct to the best of my knowledge, information and belief. AND I make this solemn declaration as to such matters according to the Oaths Act 1900, and subject to the punishment by law provided for any wilfully false statement in any such declaration.
.........................
PROPOSED ACCEPTABLE PERSON
Declared this day of 199 , at the Supreme Court, Queen’s Square, Sydney before me
....................
JUSTICE OF THE PEACE
Form 74AH: Ins 19.11.1993.
Form 74AHA
P 75, r 3FA.
OBJECTION TO CONFIRMATION OF FORFEITURE ORDER BY THE SUPREME COURT OR THE COURT OF CRIMINAL APPEAL
I, (full name) of
(address) object to confirmation of the forfeiture order made by the Supreme Court*/Court of Criminal Appeal* on (date) in these proceedings.
(address) object to confirmation of the forfeiture order made by the Supreme Court*/Court of Criminal Appeal* on (date) in these proceedings.
*delete as required
The order affects me in the following manner—
(state how you are affected)
(state how you are affected)
I rely on the following grounds—
(state grounds of objection)
(state grounds of objection)
Signed:
Date:
Time for hearing:
Place:
Form 74AHA: Ins 24.11.2000.
Form 74AHB
P 75, r 3FB.
APPLICATION TO SET ASIDE FORFEITURE ORDER BY THE SUPREME COURT OR THE COURT OF CRIMINAL APPEAL
I, (full name) of
(address) apply to set aside the forfeiture order made by the Supreme Court*/Court of Criminal Appeal* on (date) in these proceedings.
(address) apply to set aside the forfeiture order made by the Supreme Court*/Court of Criminal Appeal* on (date) in these proceedings.
*delete as required
The order affects me in the following manner—
(state how you are affected)
(state how you are affected)
I rely on the following grounds—
(state grounds of application)
(state grounds of application)
Signed:
Date:
Time for hearing:
Place for hearing:
Form 74AHB: Ins 24.11.2000.
Form 74AI
Form 74AI: Ins 19.11.1993. Am 22.3.1996; 19.12.1997. Subst 20.10.2000. Rep 23.11.2001.
Form 74AJ
P 75, r 3H (1)
ELECTION UNDER S. 132 (1) OF THE CRIMINAL PROCEDURE ACT 1986
I, , of , being charged with (short details of the charge, or all of the charges, in the proceedings), elect to be tried by a Judge alone in respect of the alleged offence(s).
I have before making this election sought and received advice in relation to the election from barrister (or solicitor).
The date fixed for my trial is 19 .
Dated:
Accused | |
Witness to signature of accused |
Full name and address of witness:
The Director of Public Prosecutions consents to this election.
Dated:
The Director of Public Prosecutions consents to this election.
Dated:
(Signature and description)
Form 74AJ: Ins 22.9.1995. Am 25.2.2000; 29.8.2003.
Form 74AK
P 75, r 3H (1)
ELECTION UNDER S. 132 (5) OF THE CRIMINAL PROCEDURE ACT 1986
I, , having previously elected to be tried by a Judge alone in respect of these proceedings, now elect to be tried by a jury.
The date fixed for my trial is 19 .
Dated:
Accused | |
Witness to signature of accused |
Full name and address of witness:
Form 74AK: Ins 22.9.1995. Am 25.2.2000; 29.8.2003.
Form 74A
(Summons under the Part 5 of Chapter 4 of the Criminal Procedure Act 1986.)
(To be set out in accordance with Form 1.)
(name)
prosecutor
(name)
defendant
prosecutor
(name)
defendant
SUMMONS
The plaintiff claims—
1. An order that the defendant (name) appear before a Judge of the Court to answer to the offence that (state the offence).
or
1. An order that the defendant (name) be apprehended for the purpose of being brought before a Judge of the Court to answer to the offence that (state the offence).
2. That the defendant be dealt with according to law for commission of the above offence.
Time and place for hearing the application for the above orders—
Time: 19 19 at 10 a.m.
Place: (address of Court)
Prosecutor: (name and address)
Prosecutor’s address for service: (Part 9 rule 6).
Address of Registry:
Time: 19 19 at 10 a.m.
Place: (address of Court)
Prosecutor: (name and address)
Prosecutor’s address for service: (Part 9 rule 6).
Address of Registry:
(signature)
Plaintiff’s solicitor
Plaintiff’s solicitor
Filed: 19 .
Form 74A: Ins 21.12.1973. Am 4.4.1975; 23.12.1977; 19.10.1979; 8.7.1983; 29.8.2003.
Form 74B
P 75, r 8.
(Minute of order under section 246 (1) (a) of the Criminal Procedure Act 1986.)
(Heading and title as in Form 74A.)
ORDER
To the defendant (name, address and occupation):
THE COURT ORDERS you to appear before a Judge of the Court at (address of Court) on 19 , at 10 a.m., to answer to the offence alleged by the prosecutor that (state the offence alleged).
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 74B: Ins 21.12.1973. Am 19.10.1979; 29.8.2003.
Form 74C
P 75, r 8.
(Minute of order under section 246 (1) (b) of the Criminal Procedure Act 1986.)
(Heading and title as in Form 74A.)
ORDER
To all members of the police force (add, where section 246 (4) of the Criminal Procedure Act 1986 applies, and to ):
THE COURT ORDERS you to arrest (name) and bring him before a Judge of the Court to answer to the offence alleged by the prosecutor that (state offence alleged).
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 74C: Ins 21.12.1973. Am 19.10.1979; 29.8.2003.
Form 74D: Ins 21.12.1973. Am 25.5.1990. Rep 19.12.1997.
Form 74E: Ins 21.12.1973. Rep 19.10.1979.
Forms 74D, 74E
Form 75
(Summons under section 13 [and section 68])
P 76, r 5.
SUMMONS
The plaintiff claims—
1. a declaration that (name) is (if applicable, mentally ill and) incapable of managing his affairs;
2. an order that the estate of the defendant be subject to management under the subject Act;
3. an order that the plaintiff (or other named person) or some other fit and proper person may be appointed, with or without security as the Court may determine, manager of the estate if applicable, and guardian of the person of the defendant to act in relation to his (or her) estate (if applicable and person) under the order and direction of the Court;(Where two or more persons are to be appointed, add—an order that, on the death or discharge of one (or one or more) of the said managers, the management of the estate (if applicable and guardianship of the person) of the defendant continue to the surviving or continuing manager (managers) (manager and guardian) (managers and guardians), and the custody of the estate of the defendant continue to the surviving or continuing manager (or managers).
4. an order that the assessed costs of the plaintiff of and incident to these proceedings be paid to the plaintiff out of the estate of the defendant.
(continue as in Form 6)
Form 75: Ins 23.6.1972. Subst 29.6.1984. Am 24.6.1994.
Form 76: Ins 23.6.1972. Rep 29.6.1984.
Form 77: Ins 23.6.1972. Rep 29.6.1984.
Forms 76, 77
Form 78
(Affidavit of medical practitioner etc.)
P 76, r 11.
AFFIDAVIT
On 7 May 19 I (name, address and profession), say on oath—
1. I am duly qualified medical practitioner in this State (or as the case may be).
2. I have been in practice for years.
3. I hold the degree of (or as the case may be) (and state special qualifications in regard to questions relating to the defendant’s condition).
4. On 19 I spoke to the abovenamed
at and carefully examined him (her).(The deponent must state his diagnosis in his own handwriting.)
5. (State similarly findings on any other occasions.)
6. In my opinion the said is incapable of managing his (her) affairs.
or where application is also made under section 68 of the subject Act—In my opinion the said is mentally ill and incapable of managing his (her) person.
7. The reasons for my opinion are—or The tests conducted upon which my opinion is based are—(set these out in the deponent’s own handwriting)
SWORN, etc.
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 78: Ins 23.6.1972. Subst 29.6.1984. Am 21.10.1994.
Form 79
(Affidavit of fitness of manager)
P 76, r 11.
AFFIDAVIT
On 7 May 19 I (name, address and occupation) say on oath—
1. I am (state occupation).
2. I have known (name of proposed manager) for about years and I am not related to him.
3. I am informed and believe that the said has consented to be manager of the estate (if applicable and guardian of the person) of if this Court sees fit so to appoint him, to act under the order and direction of the Court.
4. (State opinion of character of proposed manager.)
5. (State opinion of fitness of proposed manager to act, giving where possible details of business experience known to deponent.)
SWORN, etc.
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 79: Ins 23.6.1972. Subst 29.6.1984. Am 21.10.1994.
Form 80
(Consent of proposed manager and affidavit verifying)
P 76, r 11.
CONSENT
I (name, address and occupation) consent to act as manager of the estate of the abovenamed if I am so appointed.—
DATED 19
Witness:
Witness:
AFFIDAVIT
On 19 I (name, address and occupation) say on oath—
1. I am (state occupation).
2. On 19 I saw (name) sign “(as written)”, as appears above.
3. On the same date, I, as a witness, signed “(as written)”, as appears above.
Form 80: Ins 23.6.1972. Subst 29.6.1984.
Form 81
(Consent where proposed manager is a company and affidavit verifying)
P 76, r 11.
CONSENT
(name) , a company duly incorporated in the State of New South Wales, whose registered office at in the said State (or as the case may be) consents to act as manager of the estate (if applicable and guardian of the person) of the above named if it is so appointed.
(date and execute in writing under the common seal of the Company)
Witness:
Witness:
AFFIDAVIT
On 19 I (name, address and occupation) say on oath—
1. I am the Manager (or as the case may be) of Limited, the registered office of which is at .
2. On 19 I saw the seal of the said Company duly affixed as appears above.
3. On the same date I saw and , directors of the said Company, sign “(as written)” and “(as written)” respectively, as appears above.
4. On the same date, I, as a witness, signed “(as written)”, as appears above.
Form 81: Ins 23.6.1972. Subst 29.6.1984.
Form 82
Form 82: Ins 23.6.1972. Rep 29.6.1984.
Form 83
(Order under section 13 (and 68))
P 76, r 13.
ORDER
THE COURT DECLARES that the defendant is incapable of managing his (her) affairs (and is mentally ill and incapable of managing his (her) person).
THE COURT ORDERS that—
1. the estate of the defendant be subject to management under the subject Act.
2. (name of manager(s)) be appointed without security (or, subject to the giving of security to the satisfaction of the Commissioner (name of manager(s)) be appointed) manager(s) of the estate (if applicable and guardian of the person) of the defendant to act in relation thereto under the order and direction of the Court (with, to the exclusion of any other person, all such powers as guardian as would be exercisable by him (her) in relation to the protected person if he (she) were the father (mother) of the protected person and the protected person were under the age of 14 years);
3. (where two or more persons are appointed, on the death or discharge of either (or any one or more) of the said manager(s) the management of the estate (and guardianship of the person) shall continue to the surviving or continuing manager (or, where two or more managers are also appointed guardians, on the death or discharge of either (or any one or more) of the said managers the management of the estate and guardianship of the person of the said defendant shall continue to the surviving or continuing manager(s));
4. the assessed costs of the plaintiff (and, where the defendant appears, of the defendant) of and incident to these proceedings be paid to the parties entitled thereto out of the estate of the defendant;
5. all parties are at liberty to apply as they may be advised.
(Complete as in general form of minute of order under Part 41, rule 11 Form 51.)
Form 83: Ins 23.6.1972. Am 1.6.1973. Subst 29.6.1984. Am 24.6.1994.
Form 84: Ins 23.6.1972. Am 1.6.1973. Rep 29.6.1984.
Form 85: Ins 23.6.1972. Rep 29.6.1984.
Forms 84, 85
Form 86
(Order pursuant to section 35)
P 76, r 23.
ORDER
THE COURT DECLARES that it has been proved to its satisfaction that (name of protected person) is capable of managing his affairs.
THE COURT ORDERS that—
1. (name of manager) is discharged from the office of manager of the estate (or, manager of the estate and guardian of the person) of (name of protected person);
2. the said (name of manager) shall within (state period of time) file and pass his account in the registry in accordance with the rules;
3. the said (name of manager) shall, within days after the taking of the said account, hand over and transfer the residue, if any, of the said estate to the said (name of protected person);
4. The assessed costs of all parties be paid to the persons entitled thereto out of the estate of the said (name of protected person).
(Complete as in general form of order under Part 41, rule 11 Form 51.)
Form 86: Ins 23.6.1972. Subst 29.6.1984. Am 24.6.1994.
Form 87: Ins 23.6.1972. Am 29.6.1984; 19.2.1999. Rep 4.5.2001.
Form 88: Ins 23.6.1972. Am 29.6.1984; 21.10.1994. Rep 4.5.2001.
Form 89: Ins 30.6.1972. Rep 30.5.1980.
Forms 87–89
Form 89A
P 77, r 38.
(Minute of order under section 21 (2) of the Status of Children Act 1996)
ORDER
THE COURT DECLARES that the relationship of parent and child exists between the person named below and the child named below—
CHILD
Surname:
Other names:
Sex:
Date of birth:
Place of birth: (full name and address of hospital or house)
CHILD
Surname:
Other names:
Sex:
Date of birth:
Place of birth: (full name and address of hospital or house)
PARENT
Surname:
Other names:
Occupation:
Sex:
Date of birth:
Where born: (town or locality)
Surname:
Other names:
Occupation:
Sex:
Date of birth:
Where born: (town or locality)
(State or country)
(Complete as in general form of minute of order under Part 41 rule 11, Form 51)
Form 89A: Ins 27.10.1972. Subst 29.3.1974. Am 1.7.1977; 24.7.1992. Subst 21.7.2000.
Form 89B
(Notice of claim for provision under the Family Provision Act 1982)
P 77, r 63.
NOTICE OF CLAIM
The plaintiff has applied to the Court under the Family Provision Act 1982, for an order for provision for him out of the estate of (name) deceased who died on 19 .
If you are entitled to, and wish to apply for, an order for provision for you out of that estate you must apply within a period prescribed by the Act or allowed by the Court. If you do not, before the Court deals with the plaintiff’s application, apply for an order for provision for you out of that estate, the Court may deal with the plaintiff’s application without regard to any possible application by you.
Dated:
(signature) | |
Solicitor for the administrator (address for service) (or as the case may be) |
Form 89B: Ins 22.8.1975. Rep 1.7.1977. Ins 8.7.1983. Am 19.7.1985.
Form 89C
Form 89C: Ins 21.12.1984. Am 20.7.1990; 19.7.1996. Rep 24.7.1998.
Form 89D
(Defendant’s notice under s. 31 (5) of the Confiscation of Proceeds of Crime Act 1989)
P 77, r 87A.
The defendant (name) accepts the allegations in the statement, a copy of which is annexed hereto marked “A”, (where applicable) except so far as it is alleged that: |
(set out the allegations)
as to which the defendant says:
(set out the matter on which the defendant proposes to rely).
(set out the matter on which the defendant proposes to rely).
Dated:
Defendant
Form 89D: Ins 12.7.1985. Rep 24.10.1986. Ins 14.12.1990.
Form 89E
(Prosecution’s notice under s. 31 (5) of the Confiscation of Proceeds of Crime Act 1989)
P 77, r 87A.
The prosecution accepts the allegations in the statement, a copy of which is annexed hereto marked “A”, (where applicable) except so far as it is alleged that:
(set out allegations)
Dated: | Solicitor for Public Prosecutions (or as the case may require) |
Form 89E: Ins 12.7.1985. Rep 24.10.1986. Ins 14.12.1990.
Form 89F
(Notice under section 44 (2) of the Confiscation of Proceeds of Crime Act 1989)
P 77, r 87B.
To: (name and address):
Where the notice is added to the minute of order:
On (date) the Court made the above order.
Where the notice is added to the minute of order:
On (date) the Court made the above order.
OR
Where the order is annexed:
On (date) the Court made the order annexed hereto, and make an annexure note on the minute of order.
On (date) the Court made the order annexed hereto, and make an annexure note on the minute of order.
Form 89F: Ins 23.5.1986. Subst 15.12.1989; 14.12.1990.
Form 89G
(Certificate under section 85 (1) of the Confiscation of Proceeds of Crime Act 1989)
P 77, r 87G.
I certify that this copy order is a true sealed copy of an order of the (name of court which made the order).
OR
I certify that this copy amendment to an order is a true sealed copy of an amendment to an order of the (name of court which made the order).
(as the case may require)
Dated:
(signature)
Form 89G: Ins 23.5.1986. Subst 15.12.1989; 14.12.1990.
Form 89H
(Order under s. 3 (1) of the Restricted Premises Act 1943)
P 77, r 91.
ORDER
THE COURT DECLARES, pursuant to section 3 (1) of the Restricted Premises Act 1943, the premises described below to be premises to which Part 2 (Disorderly houses) of that Act applies.
(describe the premises)
(Complete as in general form of minute of order, Form 51)
(Complete as in general form of minute of order, Form 51)
Form 89H: Ins 13.3.1987. Subst 15.12.1989. Am 28.5.2004.
Form 89I
(Order under s. 4 (1) or s 14 (3) of the Restricted Premises Act 1943)
P 77, r 91.
ORDER
THE COURT ORDERS that the declaration made under section 3 (1) of the Restricted Premises Act 1943 on (date) in respect of the premises described below be rescinded.
(describe the premises)
(Complete as in general form of minute of order, Form 51)
(Complete as in general form of minute of order, Form 51)
Form 89I: Ins 13.3.1987. Subst 15.12.1989. Am 23.2.1996; 28.5.2004.
Form 89J
(Notice of declaration under s. 5 (1) of the Restricted Premises Act 1943)
P 77, r 91.
(No heading or title)
On (date), pursuant to the Disorderly Houses Act 1943, the Supreme Court declared the premises described below to be premises to which Part 2 (Disorderly houses) of that Act applies.
(describe the premises)
(name) Superintendent or Inspector of Police. |
Form 89J: Ins 13.3.1987. Am 28.5.2004.
Form 89K
(Notice of rescission under s. 5 (1) of the Restricted Premises Act 1943)
P 77, r 91.
(No heading or title)
On (date) the Supreme Court, on the application of the undersigned, rescinded an order made pursuant to the Restricted Premises Act 1943 on (date) declaring the premises described below to be premises to which Part 2 (Disorderly houses) of that Act applies.
(describe the premises)
(name)
Applicant.
Applicant.
Form 89K: Ins 13.3.1987. Am 28.5.2004.
Form 89KA
P 77, r 133A
(No heading or title)
APPLICATION TO THE SUPREME COURT FOR A DIRECTION THAT THE HEARING OF BAIL PROCEEDINGS OR OF OTHER PRELIMINARY CRIMINAL PROCEEDINGS NOT BE CONDUCTED BY VIDEO LINK
Important information about this application
Hearings in the Supreme Court at Sydney of bail proceedings and of other preliminary criminal proceedings relating to a person who is in custody, but is not in a detention centre within the meaning of the Children (Detention Centres) Act 1987, will be conducted by means of video link facilities without your personal attendance at Court, unless the Court in the interests of justice otherwise orders.
Video link facilities allow two-way audio and visual communication of television standard between the Court and correctional centres, including private communication between you and your legal representatives.
If you wish to apply for an order that the hearing of the bail application or preliminary criminal proceedings not be conducted by video link facilities, you must complete this form and file it and any supporting documents. If you are the person in custody this form (and any annexure) can be filed by forwarding it by facsimile to the Criminal Registry on (02) 9230 8060.
The application for a direction that video link facilities not be used:
(a) will be dealt with before the application relating to bail or the other preliminary criminal proceedings are to be heard, and
(b) may be dealt with by the Court in the absence of the public and without any attendance by the person who is in custody or on behalf of the person who is in custody.
Application
Name of person in custody (full name):
Date of birth of person in custody (if known):
Place person is being kept in custody (at the moment, if known):
Date of birth of person in custody (if known):
Place person is being kept in custody (at the moment, if known):
Supreme Court file number (if known):
Nature of proceedings (tick appropriate box): | bail application □ | |
arraignment □ | ||
I am (tick appropriate box): | the person in custody □ | |
other (specify) □ | ||
The reasons why this bail application or this other preliminary criminal proceeding should not in the interests of justice be conducted by video link, and why I should appear physically before the court, are (state below):
Signed:Print full name:
Date:
Address:
Telephone number:
Form 89KA: Ins 23.11.2001.
Form 89L
(Certificate under s. 75 or s 77F of the Victims Compensation Act 1996)
P 77, r 137A.
CERTIFICATE
1.
A direction was made by this Court in these proceedings on (date) under section {71 or 77B} of the Victims Compensation Act 1996 that a sum be paid to the registrar of this Court out of the property of (name).
2.
The amount required by the direction that has not, as at the date hereof, been paid to the registrar of this Court is $ (amount).
Dated: (date)
Registrar |
Form 89L: Ins 25.2.2000.
Form 90
(Summons for probate, administration or resealing)
P 78, r 8.
SUMMONS
The plaintiff (name) the executor named in the will dated 1 July 1971 (where applicable and 2 codicils dated (date) and (date)) of (name) late of (place) labourer deceased claims that probate of the will (where applicable and 2 codicils) be granted to him.
or
The plaintiff (name) a beneficiary named in the will dated 1 July 1971 (where applicable and 2 codicils dated (date) and (date)) of (name) late of (place) labourer deceased claims that administration with the will (where applicable and 2 codicils) annexed of the estate of the deceased be granted to him (where applicable (name) the executor named in the will having renounced probate) (where applicable and that the administration bond be dispensed with).
or
The plaintiff (name) the (relationship to the deceased, for example widow or de facto spouse) of (name) late of (place) labourer deceased claims that administration of the estate of the deceased be granted to her (where applicable and that the administration bond be dispensed with).
or
The plaintiff (name) (where applicable as attorney of (name)) claims that probate of the will dated 1 July 1971 (or where applicable letters of administration of the estate) of (name) late of (place) labourer granted by (description of court) to (name) be sealed with the seal of this Court (where applicable and that the administration bond be dispensed with).
or
(Application for administration under s. 41A of the Probate Act)
The plaintiff (name) claims that administration in respect of (name) late of (place), (occupation) be granted to him for the purposes only of an application being made under the Family Provision Act 1982 by him (or him on behalf of (name)).
(If a declaration under section 18A of the Probate Act is claimed, alter the claim accordingly.)
The proceedings commenced by this summons will be dealt with by a Judge or a registrar out of court. However, the Court may, of its own motion, appoint a date for the hearing in Court of the proceedings.
Plaintiff: (name, address and occupation)
Plaintiff’s address for service: (Part 9 rule 6, Part 78 rule 8)
Filed: (date)
Plaintiff’s address for service: (Part 9 rule 6, Part 78 rule 8)
Filed: (date)
(signature) Plaintiff’s Solicitor. |
Form 90: Ins 30.6.1972. Am 23.12.1977; 25.5.1984; 23.8.1985 (see erratum 6.9.1985); 13.12.1991; 20.8.1999; 13.6.2003.
Form 91
P 78, r 10.
(Notice of intended application for probate.)
In the Supreme Court of New South Wales Equity Division.
After 14 days from publication of this notice an application for probate of the will dated 1 July 1971 (where applicable, and 2 codicils dated (date) and (date) of (name in capitals) late of (place), labourer, will be made by (name). Creditors are required to send particulars of their claims upon his estate to (name) solicitors (address) (and, where applicable, or their agents, name, address).
(Form 4 does not apply.)
Form 91: Ins 30.6.1972. Am 19.2.1999.
Form 92
P 78, r 10.
(Notice of intended application for administration.)
In the Supreme Court of New South Wales Equity Division.
After 14 days from publication of this notice and application for administration (or where applicable administration with the will dated 7 May 1970, annexed) of the estate of (name in capitals) late of (place), labourer, will be made by (name) the (relationship to deceased or capacity of applicant). Creditors are required to send particulars of their claims upon his estate to (name) solicitors (address) (and, where applicable, or their agents, name, address).
(Form 4 does not apply.)
Form 92: Ins 30.6.1972. Am 19.2.1999.
Form 92A
P 78, r 10.
(Notice of intended application for administration under s. 41A of the Probate Act)
In the Supreme Court of New South Wales Equity Division.
After 14 days from publication of this notice an application for administration in respect of (name in capitals) late of (place), (occupation) will be made by (name) for the purposes only of an application being made under the Family Provision Act 1982, by him (or him on behalf of (name)).
(Solicitor’s name and address.)
(Form 4 does not apply.)
Form 92A: Ins 25.5.1984. Am 20.8.1999.
Form 93
P 78, r 10.
(Notice of intended application for resealing.)
In the Supreme Court of New South Wales Equity Division.
After 14 days from publication of this notice an application will be made that the Probate of the will and codicils (or where applicable Letters of administration of the estate) of (name in capitals) late of (place) granted by (court) to (name) be sealed with the seal of this Court. Creditors are required to send particulars of their claims upon his estate to (name) solicitors (address) (and, where applicable, or their agents, name, address).
(Form 4 does not apply.)
Form 93: Ins 30.6.1972. Am 19.2.1999.
Form 94
P 78, r 14.
RENUNCIATION OF PROBATE
I, (name) of (address of place of residence) (labourer) declare—
1. I am the executor (or one of the executors or as the case may be) appointed by the will dated 1 July 1971 (where applicable), and 2 codicils dated (date) and (date) of (name) late of (place) labourer who died on (date).
2. I have not intermeddled in the estate of the deceased.
3. I renounce all right to probate of the will (where applicable and codicils) and to all trusts, powers and authorities expressed by the will (where applicable and codicils) to be made or given to me.
Dated: (date).
Signed in the | } |
presence of |
Form 94: Ins 30.6.1972.
Form 95
P 78, r 15.
AFFIDAVIT OF ATTESTING WITNESS
On 7 May 19 I (name, address and occupation) say on oath—
1. On (date) the document annexed and marked “A” was signed as now appears on the document by (name) the deceased as his will in the presence of me and of (name of other witness) present at the same time and then at the request of the deceased attested and subscribed by us in his presence and in the presence of each other.
2. The signatures (set out) and (set out) subscribed as witnesses to the will are respectively those of me and (name of other witness).
Sworn at | } |
before me |
Form 95: Ins 30.6.1972.
Form 96
Forms 97, 98, 104, 106.
ANNEXURE “.....”
INVENTORY OF PROPERTY
of the estate of (name) of (place, occupation), deceased.
Property owned solely by deceased
Description | Estimated or known value |
(Describe each item sufficiently to identify it) | $ (Amount) (Total) |
Property owned by deceased as joint tenant with another or others
Description | Particulars of other joint owner | Estimated or known value |
(Describe each item sufficiently to identify it) | (Name and address of other joint owner) | $ (Amount) (Total) |
This is Annexure “.....” to the affidavit of (name) sworn at (place) this (date) before me.
(signatures of the applicant and the person before whom the affidavit is sworn)
Form 96: Ins 30.6.1972. Am 23.8.1985 (see erratum 6.9.1985). Subst 19.8.1994.
Form 97
P 78, r 24 (1) (a).
AFFIDAVIT OF EXECUTOR
On (date) I, (name, address and occupation), say on oath—
1. My full residential address is (address).
2. The document dated (date) and signed in the margin by me and by the person before whom this affidavit is sworn is, I believe, the last will of (name), late of (place, occupation), the deceased, and I am not aware of the existence of any other document purporting to embody the testamentary intentions of the deceased [where applicable except for (specify document)].
3. My means of identifying the will are (state these).
4. The attesting witnesses to the will are (name) and (name).
5. The deceased died on (date) aged (number) years and I believe that the deceased is (name in certificate of registration of death) referred to in the certificate of registration of death which is annexed and marked “A”.
6. The deceased { did or did not} marry after the will was made [where applicable namely to (name) on (date)].
7. The deceased left assets within New South Wales.
8. I am the executor named in the will and I am over 18 years of age.
9. [Where applicable (name) one of the executors named in the will { died on (date) as evidenced by the death certificate annexed and marked “.....”or renounced probate of the will on (date)}.]
10. If I am granted probate of the will of the deceased—(a) I will administer the estate according to law; and(b) I will—(i) verify and file; ormy accounts relating to the estate of the deceased within 12 months from the date of grant [where neither paragraph (a) nor (b) of section 85 (1AA) of the Probate Act applies and the whole of the estate does not pass to one or more charities or public benevolent institutions, add if so required by the Court].(ii) verify, file and pass,
11. [Where the deceased resided at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a newspaper circulating in the district where the deceased resided at the date of the deceased’s death, evidenced by the tear sheet annexed and marked “.....”.]or[Where the deceased did not reside at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a Sydney daily newspaper, as evidenced by the tear sheet annexed and marked “.....”.]
12. The names, ages and entitlements of the persons entitled in distribution of the estate of the deceased are-(state these).
13. A statement of all assets of the deceased of which I am presently aware is annexed and marked “..”. I will disclose to the Court any other asset which comes to my notice.(The statement shall be in Form 96)
14. The liabilities of the deceased of which I am presently aware are as follows—LIABILITIES
(date)
(name)
(description)
(amount)
(total)
(amount)
(total)
15. The estate has a gross value of $ (amount) and a net value of $ (amount).
16. I am not aware of any circumstances which raise doubt as to my entitlement to a grant of probate of the will of the deceased [where applicable except for (specify matter)].
Sworn at | } |
before me |
Form 97: Ins 30.6.1972. Am 24.12.1981; 25.8.1989; 13.12.1991. Subst 19.8.1994. Am 25.11.1994; 25.8.1995; 22.11.1996.
Form 98
P 78, rr 24A (2) (a), 25 (2) (a), 25A (2) (a).
AFFIDAVIT OF APPLICANT FOR ADMINISTRATION
On (date) I, (name, address and occupation) say on oath—
1. My full residential address is (address).
2. I am (state relationship to deceased) of (name, occupation) late of (place) who died on (date) aged (number) years and I believe that the deceased is (name in certificate of registration of death) referred to in the certificate of registration of death which is annexed and marked “A”.
3. I believe that the deceased did not leave a will or document purporting to embody the testamentary intentions of the deceased [where applicable except for (specify document)].
4. (State what searches have been made for a will or document purporting to embody the testamentary intentions of the deceased.)
5. The names, ages, relationship to the deceased and entitlements of the persons entitled in distribution of the estate of the deceased are—(state these).
6. (State the facts establishing that the persons named in paragraph 5 are the persons entitled in distribution of the estate. Annex appropriate certificate evidence).
7. The deceased left assets within New South Wales.
8. I am not an undischarged bankrupt, I have not assigned or encumbered my interest in the estate and I am over 18 years of age.
9. If I am granted administration of the estate of the deceased—(a) I will administer the estate according to law; andmy accounts relating to the estate of the deceased within 12 months from the date of grant [where neither paragraph (a) nor (b) of section 85 (1AA) of the Probate Act applies, add if so required by the Court].(b) I will—(i) verify and file; or(ii) verify, file and pass,
10. [Where the deceased resided at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a newspaper circulating in the district where the deceased resided at the date of { his or her} death, evidenced by the tear sheet annexed and marked “B”.]or[Where the deceased did not reside at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a Sydney daily newspaper, as evidenced by the tear sheet annexed and marked “B”.]
11. A statement of all assets of the deceased of which I am presently aware is annexed and marked “C”. I will disclose to the Court any other asset which comes to my notice.(The statement shall be in Form 96)
12. The liabilities of the deceased of which I am presently aware are as follows—LIABILITIES
(date)
(name)
(description)
(amount)
(total)
(amount)
(total)
13. The estate has a gross value of $ (amount) and a net value of $ (amount).[Where Part 78 rule 25A applies
14. The names, ages and relationship to the deceased of the persons who, if the deceased had not left a de facto spouse*, would have been entitled in distribution of the estate are—(state these).
15. (State the facts establishing that the persons named in paragraph 14 are the persons who would have been entitled in distribution of the estate. Annex appropriate certificate evidence.)]
16. I am not aware of any circumstances which raise doubt as to my entitlement to a grant of administration of the estate of the deceased [where applicable except for (specify matter)].
Sworn at | } |
before me |
(* If deceased died before the commencement of Schedule 2.25 of the Property (Relationships) Legislation Amendment Act 1999, substitute de facto wife or de facto husband.)
Form 98: Ins 30.6.1972. Am 25.5.1984; 23.8.1985 (see erratum 6.9.1985); 26.9.1986. Subst 13.12.1991; 19.8.1994. Am 23.9.1994; 25.8.1995; 22.11.1996. Subst 20.8.1999.
Form 98A
(Affidavit showing deceased had no de facto spouse)
P 78, rr 24A (2) (c).
On (date) I (name, address and occupation) say on oath—
State the facts showing the competency of the deponent to make this affidavit, for example—
1. I am the widow of the deceased.
2. I lived with the deceased up to the time of his death and for a continuous period of ..... years beforehand.
State the facts complying with Part 78 rule 24A (2) (c) for example, where the widow is the deponent and the following is true—
3. The deceased did not leave any person who at the time of his death was a partner with him in a de facto relationship within the meaning of section 4 of the Property (Relationships) Act 1984.
4. I am aware that sections 4 and 5A of the Property (Relationships) Act 1984 are as follows:
(Here set out the sections)
Sworn at | } |
before me |
Form 98A: Ins 24.12.1981. Am 23.8.1985 (see erratum 6.9.1985). Rep 19.8.1994. Ins 20.8.1999. Am 21.3.2003.
Form 99
(Affidavit showing deceased had no de facto spouse)
P 78, r 25 (2) (f).
On 7 May 19 I (name, address and occupation) say on oath—
(State the facts showing the competency of the deponent to make this affidavit, for example—
1. I am the widow of the deceased.
2. I lived with the deceased up to the time of his death and for a continuous period of ..... years beforehand.)
(State the facts complying with Part 78 rule 25 (2) (f) for example, where the widow is the deponent and the following is true—
3. The deceased did not leave any person who at the time of his death was a partner with him in the relationship of a man and a woman living together as husband and wife on a domestic basis although not married to each other).
Sworn at | } |
before me: |
Form 99: Ins 30.6.1972. Am 24.12.1981. Rep 19.8.1994.
Form 99 (previously Form 100A): Ins 23.8.1985. Renumbered 19.8.1994. Am 23.9.1994; 21.3.2003.
Form 99A: Ins 24.12.1981. Am 23.8.1985 (see erratum 6.9.1985). Rep 19.8.1994.
Form 100: Ins 30.6.1972. Am 1.7.1977; 24.12.1981; 23.8.1985; 25.8.1989; 13.12.1991. Rep 19.8.1994.
Form 100A: Renumbered (as Form 99) 19.8.1994.
Form 100B: Ins 23.8.1985. Am 25.8.1989; 13.12.1991. Rep 19.8.1994.
Forms 99A–100B
Form 101
P 78, rr 24A, 25, 25A.
CONSENT TO ADMINISTRATION
I, (name) of (place)labourer am (state relationship) of (name) late of (place)labourer. I am over 18 years of age. I am not an undischarged bankrupt and I have not assigned or encumbered my interest in the estate of the deceased.
I consent to letters of administration being granted to (name) who is (state relationship) of the deceased (where applicable and to administration bond being dispensed with).
[Where the estate or part is required to be held in trust for a de facto spouse* of the deceased, add— |
I have read the Affidavit of the Applicant for Administration and understand how the entitlement of the de facto spouse* affects the distribution of the estate of the deceased.]
Dated: (date)
Signed in the presence | } |
of |
[* If deceased died before the commencement of Schedule 2.25 of the Property (Relationships) Legislation Amendment Act 1999, substitute de facto wife or de facto husband.]
AFFIDAVIT OF WITNESS TO CONSENT
On (date) I, (name, address and occupation) say on oath—
1. The above document was signed in my presence on (date) by (name).
2. The signatures (set these out) are respectively my signature and that of (name of person consenting).
Sworn at | } |
before me |
Form 101: Ins 30.6.1972. Am 23.8.1985 (see erratum 6.9.1985); 25.8.1995. Subst 20.8.1999.
Form 102
P 78, rr 24A, 25, 25A, 26, 27.
ADMINISTRATION BOND
We (state the name, address and occupation of the proposed administrator and of each surety to the bond) jointly and severally covenant to pay to Her Majesty the Queen and her successors $ (penalty of bond) if administration of the estate of (name) late of (place) labourer deceased is granted by the Supreme Court of New South Wales to the said (name of proposed administrator) and any one or more of the following occurs, namely:
1. he does not collect, get in and administer the estate according to law;
2. he does not pay out of the estate the just debts of the deceased;
3. he prefers any debt of the deceased to him;
(and, where the deceased died before 31 December 1981)
4. he does not file or file and pass his accounts relating to the estate within 12 months after the grant and whenever ordered to do so by the Court.
(or, where the deceased died on or after 31 December 1981)
5. he does not verify and file or verify, file and pass his accounts relating to the estate (where section 85 (1AA) of the Probate Act (which relates to certain executors, etc.) applies) within 12 months after the grant or as the Court may order in respect of him (or, where that subsection does not apply) as the Court may order in respect of him.Dated: (date)
Signed sealed and delivered etc.
Form 102: Ins 30.6.1972. Am 24.12.1981; 23.8.1985 (see erratum 6.9.1985); 20.8.1999.
Form 103
P 78, rr 24A, 25, 25A, 26.
AFFIDAVIT OF SURETY
On 7 May 19 I (name, address and occupation) say on oath—
1. My full residential address is (state this).
2. I am one of the sureties for (name) the intended administrator of the estate of (name) late of (place) labourer.
3. I am possessed of property to the value of $ (state value) after deduction of all my just debts and every sum for which I am bail or surety in any civil or criminal matter, action or proceeding.
4. My property consists of (set out in detail the location and nature of assets and whether held severally or jointly with any other person, and state particulars of encumbrances).
Sworn at | } |
before me |
Form 103: Ins 30.6.1972. Am 23.8.1985 (see erratum 6.9.1985); 20.8.1999.
Form 103A
(Affidavit relating to de facto relationships)
P 78, r 25A (2) (d).
AFFIDAVIT
On 19.. I (name, address and occupation) say on oath—
1. The deceased left (or did not leave) a wife (or husband).
2. At the time of death of the deceased (and, where either s 61B (3A) (a) of the Probate Act applies (deceased leaving a husband or wife) or s 61B (3B) (a) of the Probate Act applies (no husband or wife but issue) add and for a continuous period of not less than two years prior to the death of the deceased) (a) I was the sole partner in the relationship with the deceased of a man and a woman living together as husband and wife on a bona fide domestic basis although not married to each other and (b) I was not a partner in any other relationship of a man and a woman living together as husband and wife on that basis although not married to each other (and, where the deceased left a wife or husband, add and (c) the deceased did not, during the whole or any part of that period, live with the person to whom he (or she) was married).
3. (State the facts showing that the deponent is a person for whom the estate of the deceased is required to be held in trust, including dates and periods of the relationship, places where the partners lived together, financial and property matters, children and so on).
Sworn at | } |
before me: |
Form 103A: Ins 23.8.1985. Am 25.10.1996.
Form 103AA
(Affidavit relating to de facto relationships)
P 78, r 25A (2) (d).
AFFIDAVIT
On (date) I (name, address and occupation) say on oath—
1. The deceased { left or did not leave} a { husband or wife}
2. At the time of death of the deceased [and, where either s 61B (3A) (a) of the Probate Act applies (deceased leaving a husband or wife) or s 61B (3B) (a) of the Probate Act applies (no husband or wife but issue) add and for a continuous period of not less than two years prior to the death of the deceased]—(a) I was the sole partner with the deceased in a de facto relationship; and[Where the deceased left a wife or husband, add; and(b) I was not a partner in any other de facto relationship.(c) the deceased did not, during the whole or any part of that period, live with the person to whom the deceased was married.]
3. (State the facts showing that the deponent is a person for whom the estate of the deceased or part thereof is required to be held in trust, including dates and periods of the relationship, places where the partners lived together, financial and property matters, children and so on).
4. In this affidavit “de facto relationship” has the same meanings as it has in the Property (Relationships) Act 1984. I am aware that sections 4 and 5A of that Act are as follows:
(Here set out the sections)
Sworn at | } |
before me |
Form 103AA: Ins 20.8.1999.
Form 103B
(Notice, where the deceased leaves a de facto wife or de facto husband or de facto spouse)
P 78, r 25A (3) (b) (iv).
NOTICE OF APPLICATION FOR ADMINISTRATION
To: (name and address:)
After (42 days or 3 months: see Part 78, rule 25A (3) (b)) from the date of service of this notice on you, an application for a grant of administration of the estate of the deceased will be made by (name). There is a claim that the deceased left a de facto spouse*, (name). Served on you with this notice are—
(a) affidavits setting out facts relating to the de facto relationship claimed and other matters;
(b) an affidavit showing the assets and liabilities of the estate and the persons who are entitled in distribution of the estate and who would, if the deceased had not left a de facto spouse* have been so entitled.
If you do not oppose the application, the Court may grant administration to the applicant who may then be at liberty to distribute in due course to the de facto spouse* the estate or part of the estate to which she is entitled.
If the deceased did not leave a de facto spouse* and you were entitled to the estate or part, you may have been entitled to a grant of administration of the estate of the deceased.
Dated:
(signature) Solicitor for the applicant. (address for service) (or as the case may be) |
(* If deceased died before the commencement of Schedule 2.25 of the Property (Relationships) Legislation Amendment Act 1999, substitute de facto wife or de facto husband.) |
Form 103B: Ins 23.8.1985. Subst 20.8.1999.
Form 104
P 78, r 26.
AFFIDAVIT OF APPLICANT FOR ADMINISTRATION WITH THE WILL ANNEXED
On (date) I, (name, address and occupation), say on oath—
1. My full residential address is (address).
2. The document dated (date) and signed in the margin by me and by the person before whom this affidavit is sworn is, I believe, the last will of (name), late of (place, occupation), the deceased, and I am not aware of the existence of any other document purporting to embody the testamentary intentions of the deceased [where applicable except for specify document].
3. My means of identifying the will are (state these).
4. The attesting witnesses to the will are (name) and (name).
5. The deceased died on (date) aged (number) years and I believe that the deceased is (name in certificate of registration of death) referred to in the certificate of registration of death which is annexed and marked “A”.
6. The deceased { did or did not} marry after the will was made.
7. The deceased left assets within New South Wales.
8. I am not an undischarged bankrupt, I have not assigned or encumbered my interest in the estate of the deceased and I am over 18 years of age.
9. [Where applicable (name) the executor named in the will { died on (date) as evidenced by the death certificate annexed and marked “.....”or renounced probate of the will on (date)}.]
10. The names, ages and entitlements of the persons entitled in distribution of the estate are (state these) [where the names of all the persons entitled do not appear on the face of the will, state the facts establishing that the persons named in this paragraph are the persons entitled].
11. If I am granted administration of the estate of the deceased—(a) I will administer the estate according to law; and(b) I will—(i) verify and file; ormy accounts relating to the estate of the deceased within 12 months from the date of grant [where neither paragraph (a) nor (b) of section 85 (1AA) of the Probate Act applies and the whole of the estate does not pass to one or more charities or public benevolent institutions, add if so required by the Court].(ii) verify, file and pass,
12. [Where the deceased resided at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a newspaper circulating in the district where the deceased resided at the date of his or her death, evidenced by the tear sheet annexed and marked “..........”.]or[Where the deceased did not reside at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a Sydney daily newspaper, as evidenced by the tear sheet annexed and marked “..........”.]
13. A statement of all assets of the deceased of which I am presently aware is annexed and marked “..........”. I will disclose to the Court any other asset which comes to my notice.(The statement shall be in Form 96)
14. The liabilities of the deceased of which I am presently aware are as follows—LIABILITIES
(date)
(name)
(description)
(amount)
(total)
(amount)
(total)
15. The estate has a gross value of $ (amount) and a net value of $ (amount).
16. I am not aware of any circumstances which raise doubt as to my entitlement to a grant of administration of the estate of the deceased [where applicable except for (specify matter)].
Sworn at | } |
before me |
Form 104: Ins 30.6.1972. Am 24.12.1981 (see erratum 19.2.1982); 23.8.1985; 25.8.1989; 13.12.1991. Subst 19.8.1994. Am 23.9.1994; 25.8.1995; 22.11.1996.
Form 105
P 78, r 26.
RENUNCIATION IN FAVOUR OF PUBLIC TRUSTEE
I, (name) of (address of place of residence) labourer declare—
1. I am the executor (or one of the executors or as the case may be) appointed by will dated 1 July 1971 (where applicable and 2 codicils dated (date) and (date) of (name) late of (place) labourer who died on (date)).
2. I have not intermeddled in the estate of the deceased.
3. I renounce all right to probate of the will (where applicable and codicils) and to all trusts, powers and authorities expressed by the will (where applicable and codicils) to be made or given to me.
4. I request the Public Trustee to apply for administration with the will (where applicable and codicils) annexed of the estate.
Dated: (date).
Signed in the | } |
presence of |
Form 105: Ins 30.6.1972.
Form 105A
P 78, r 26A (1) (a).
(Affidavit of applicant for administration for the purposes of the Family Provision Act 1982.)
AFFIDAVIT OF APPLICANT FOR ADMINISTRATION
On (date) I, (name, address and occupation), say on oath—
1. My full residential address is (address) and I am over the age of 18 years.
2. I am (state relationship to deceased) of (name, occupation) late of (place) who died on (date) aged (number) years and I believe that the deceased is (name in certificate of registration of death) referred to in the certificate of registration of death which is annexed and marked “A”.
3. I am not aware of any will or document purporting to embody the testamentary intentions of the deceased.orThe document dated (date) and signed in the margin by me and by the person before whom this affidavit is sworn is a copy of the { last will or document purporting to embody the testamentary intentions} of the deceased.orI believe that the deceased left a { will or document purporting to embody the testamentary intentions of the deceased} but no copy of it is available.
4. I am not aware of any proposal by any other person to make an application for a grant.orI believe that (name) of (address, occupation), proposes to make an application for a grant.
5. [If applicable I intend to make an application under the Family Provision Act 1982 on behalf of (name, address and occupation)].
6. (State the facts showing that—(a) if the plaintiff intends to make an application under the Family Provision Act 1982 on behalf of another person—that person; oris an eligible person within the meaning of the Family Provision Act 1982.)(b) otherwise—the plaintiff,
7. A copy of an affidavit which { has been or will be} sworn and which I intend to file in compliance with Part 77 rule 59 (1) (a)–(d) in the proceedings on the application intended to be made under the Family Provision Act 1982 is annexed and marked “B”.
8. The matters referred to in paragraphs (identify numbers of paragraphs in the lastmentioned annexure relating to the matters mentioned in Part 77 rule 59 (1) (a)–(d)) of annexure “B” are true.
9. [Where the deceased resided at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a newspaper circulating in the district where the deceased resided at the date of his or her death, evidenced by the tear sheet annexed and marked “C”.]or[Where the deceased did not reside at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a Sydney daily newspaper, as evidenced by the tear sheet annexed and marked “C”.]
10. I am not aware of any circumstances which raise doubt as to my entitlement to a grant of administration of the estate of the deceased [where applicable except for (specify matter)].
Sworn at | } |
before me |
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 105A: Ins 25.5.1984. Am 25.8.1989. Subst 19.8.1994. Am 21.10.1994; 25.8.1995.
Form 106
P 78, r 28.
AFFIDAVIT OF APPLICANT FOR RESEALING
On (date) I, (name, address and occupation), say on oath—
1. My full residential address is (address).
2. The deceased died intestate on (date) aged (number) years.orThe deceased died on (date) aged (number) years and left a will dated (date) by which { he or she} appointed { me or (name)} executor.
3. I am not aware of the existence of any document purporting to embody the testamentary intentions of the deceased [where applicable except for { the said will or (specify document)}].
4. {Probate of the will was or Letters of Administration of the estate of the deceased were} granted by (name of court) to { me or (name)} on (date).
5. The grant has not been revoked.
6. The deceased left assets within New South Wales.
7. The names, ages, relationship to deceased and entitlements of the persons entitled in distribution of the estate of the deceased are—(state these).
8. [Where the application is for resealing Letters of Administration I am not an undischarged bankrupt and I have not assigned or encumbered my interest (if any) in the estate.]
9. I am over 18 years of age.
10. I am aware that, if the grant is sealed by this Court, accounts relating to the estate must be—(a) verified and filed; orwithin 12 months after the sealing [where neither paragraph (a) nor (b) of section 85 (1AA) of the Probate Act applies and the whole of the estate does not pass to one or more charities or public benevolent institutions, add if so required by the Court].(b) verified, filed and passed,
11. [Where the deceased resided at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a newspaper circulating in the district where the deceased resided at the date of { his or her} death, evidenced by the tear sheet annexed and marked “A”.]or[Where the deceased did not reside at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a Sydney daily newspaper, as evidenced by the tear sheet annexed and marked “A”.]
12. A statement of all assets of the deceased of which I am presently aware is annexed and marked “B”. I will disclose to the Court any other asset which comes to my notice.(The statement shall be in Form 96)
13. The liabilities of the deceased of which I am presently aware are as follows—LIABILITIES
(date)
(name)
(description)
(amount)
(total)
(amount)
(total)
14. The estate has a gross value of $ (amount) and a net value of $ (amount).[Where the application for reseal is made pursuant to a Power of Attorney
15. By Power of Attorney dated (date, name) appointed me { his or her } attorney to apply to this Court to reseal the grant.
16. A certified copy of the Power of Attorney is annexed and marked “C”.
17. I have not received any notice of revocation of the Power of Attorney by death, unsoundness of mind, act of donor or otherwise.]
18. I am not aware of any circumstances which raise doubt as to my entitlement to have the grant sealed by this Court [where applicable except for (specify matter)].
Sworn at | } |
before me |
Form 106: Ins 30.6.1972. Am 24.12.1981 (see erratum 23.7.1982); 13.12.1991. Subst 19.8.1994. Am 25.11.1994; 25.8.1995; 22.11.1996.
Form 106A
P 78, r 28A.
AFFIDAVIT OF ADDITIONAL ASSETS (or LIABILITIES or ASSETS AND LIABILITIES)
On (date) I, (name, address and occupation) say on oath—
1. I am the { executor or (as the case may be)} of the estate of the deceased.
2. {Assets or (as the case may require)} of the deceased not disclosed to the Court before the date of swearing this affidavit are listed below—
(list)
Sworn at | } |
before me |
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 106A: Ins 24.12.1981. Subst 19.8.1994. Am 21.10.1994.
Form 106B
P 78, r 34A.
CONSENT TO DISTRIBUTION OF GIFT
I (name) of (place) (occupation) would benefit directly from the avoidance of the beneficial gift given or made by the will dated (date) of (name of deceased) to (name of interested witness). My benefit would have been (specify the benefit). I am over 18 years of age. I am not an undischarged bankrupt. I have not assigned or encumbered any interest that I may have in the estate of the deceased.
I consent to the distribution of the gift according to the will.
I consent to the distribution of the gift according to the will.
Dated: (date).
Signed in the | } |
presence of |
AFFIDAVIT OF WITNESS TO CONSENT
On 7 May 19..... I (name, address and occupation) say on oath:
1. The above document was signed in my presence on (date) by (name).
2. The signatures (set these out) are respectively my signature and that of (name of person consenting).
}
Form 106B: Ins 25.8.1989.
Form 106CA
P 78, r 34A (1A).
CONSENT TO ORDER
I (name) of (place)(occupation) would receive the following benefit under the will dated (date) of (name of deceased) if the order set out below is not made (specify benefit).
If the order is made my benefit would be (specify benefit).
I am over 18 years of age. I am not an undischarged bankrupt. I have not assigned or encumbered any interest that I may have in the estate of the deceased.
I consent to an order being made that (specify order).
Dated: (date).
Signed in the | } |
presence of |
AFFIDAVIT OF WITNESS TO CONSENT
On (date) I (name, address and occupation) say on oath:
1. The above document was signed in my presence on (date) by (name).
2. The signatures (set these out) are respectively my signature and that of (name of person consenting).
Sworn at | } |
before me |
Form 106CA: Ins 26.4.1996.
Form 106C
P 78, r 34D.
(Notice to interested witness of intention to distribute estate.)
(heading and title.)
NOTICE OF INTENTION TO DISTRIBUTE ESTATE
To (name of interested witness or interested witness’s spouse, as the case requires) (address).
After one month from the date on which this notice is served on you, I, (name), of (address), the executor of the will and codicils (or where applicable administrator of the estate) of (name) late of (place) (occupation) intend to make a distribution of that part of the estate the subject of a beneficial gift to you.
I would make the distribution otherwise than to you on the ground that the gift is void because you (or your spouse) attested the will.
You may, before I make the distribution, take such steps as the law permits to have the gift made not void.
Dated: (date).
(signature)
Form 106C: Ins 25.8.1989.
Form 106D
Consent by Affected Person
P 78, r 34E (1).
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
CONSENT
1.
I, (name) of (place) (occupation) am over the age of 18 years, am not an undischarged bankrupt and have not assigned or encumbered any interest that I may have in the estate of the abovenamed deceased.
2.
I have read and understood copies of the following documents which relate to the application for a grant of probate (or administration) in relation to the estate of the deceased:
(a) Summons (or Statement of Claim);
(b) Affidavit of Executor (or Affidavit of Applicant for Administration); and
(c) (where the informal testamentary document is not annexed to the abovementioned documents a document purporting to embody the testamentary intentions of the deceased which is not executed in accordance with the formal requirements of the Wills, Probate and Administration Act 1898.)
3.
Copies of the documents referred to in paragraph 2 are annexed hereto and marked “A” and “B”(or to “C”if applicable) respectively.
4.
I consent to the Court:
(a) declaring whether it is satisfied that the deceased intended the document (identify informal testamentary document in respect of which consent is given) to constitute:(i) a will of the deceased;(ii) an amendment of a will of the deceased; or(iii) the revocation of a will of the deceased, and
(b) making the declaration in my absence and without my becoming a party to the proceedings or having any opportunity to put forward argument or evidence.
5.
In this consent “will” extends to a testament and to a codicil and to any appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, and to any other testamentary disposition.
Dated: (date). | ||
Signed in the | } | |
presence of |
AFFIDAVIT OF WITNESS TO CONSENT
On (date), I (name, address and occupation) say on oath:
1. The above document was signed in my presence on (date) by (name).
2. The signatures (set these out) are respectively my signature and that of (name of person consenting).
Sworn at | } |
before me | |
Form 106D: Ins 13.12.1991. Am 25.8.1995; 19.2.1999.
Form 106E
P 78, r 34E (1).
(Notice to Affected Person)
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
NOTICE
To (name and address)
1.
An application for grant of probate (or administration) has been made by me (or us) in respect of the estate of the abovenamed deceased. Copies of the Summons (or Statement of Claim) and Affidavit of Executor (or Affidavit of Applicant for Administration) are annexed and marked “A” and “B” respectively.
2.
A copy of a document purporting to embody the testamentary intentions of the deceased, which is not executed in accordance with the formal requirements of the Wills, Probate and Administration Act 1898, is annexed hereto and marked with the letter “C”(or as the case may be). The Court will decide whether the lastmentioned document is:
(a) a will of the deceased;
(b) an amendment of a will of the deceased; or
(c) the revocation of a will of the deceased.
3.
In the preceding paragraph “will” extends to a testament and to a codicil and to any appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child and to any other testamentary disposition.
4.
Unless the prescribed form of notice of your appearance is received in the Registry within 14 days after service of this notice upon you (or, if this notice is served outside New South Wales and the Australian Capital Territory, within 28 days of service of this notice upon you), the Court may hear and determine the proceedings in your absence with such consequences as may ensue according to law.
5.
Upon filing an appearance you will become a defendant to the proceedings in so far as they relate to the declaration by the Court as to the effect of the document referred to in paragraph 2.
Plaintiff: (name, address and occupation)
Plaintiff’s address for service: (Part 9 rule 6)
Dated: (date)
Plaintiff’s address for service: (Part 9 rule 6)
Dated: (date)
(Signature) Plaintiff’s Solicitor |
Form 106E: Ins 13.12.1991. Am 25.8.1995; 19.2.1999.
Form 106F
P 78, r 34E (3).
(Notice to Caveator)
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
NOTICE
To (name and address)
1.
An application for grant of probate (or administration) has been made by me (or us) in respect of the estate of the abovenamed deceased. Copies of the Summons (or Statement of Claim) and Affidavit of Executor (or Affidavit of Applicant for Administration) are annexed and marked “A” and “B” respectively.
2.
You have lodged a caveat under rule 62A of the Supreme Court Rules 1970 in respect of the estate of the deceased.
3.
Unless the prescribed form of notice of your appearance is received in the Registry within 14 days after service of this notice upon you (or, if this notice is served outside New South Wales and the Australian Capital Territory, within 28 days of service of this notice upon you), the caveat will lapse and the Court may hear and determine the proceedings in your absence with such consequences as may ensue according to law.
4.
Upon filing an appearance you will become a defendant to the proceedings in respect of such aspects of the proceedings as the Court directs.
Plaintiff: (name, address and occupation)
Plaintiff’s address for service: (Part 9 rule 6)
Dated: (date)
Plaintiff’s address for service: (Part 9 rule 6)
Dated: (date)
(Signature) Plaintiff’s Solicitor |
Form 106F: Ins 13.12.1991. Am 25.8.1995; 20.8.1999.
Form 107
Form 107: Ins 30.6.1972. Am 23.12.1977. Rep 13.6.2003.
Form 108
P 78, rr 46, 54.
(Request for issue of citation.)
(To be set out in accordance with Form 1)
In the Supreme Court
of New South Wales
Equity Division
Probate
of New South Wales
Equity Division
Probate
Estate of (name) late of | |
(place) labourer |
REQUEST FOR ISSUE OF CITATION
I request that a citation do issue to each of (name of each person to be cited) to take probate of the will dated (date) (or where applicable pray for administration of the estate) of (name) late of (place) labourer.
(Where applicable) I request that the time limited for (name) to answer the citation be (number) days after service on him of the citation.
Person applying: (name, address and occupation)
Filed: (date)
Filed: (date)
(signature) Solicitor for person applying |
or
(Title, etc., as in originating process)
I request that a citation to see these proceedings do issue to each of (name of each person to be cited)
Party applying: (name)
Filed: (date)
Party applying: (name)
Filed: (date)
(signature) Solicitor for party applying |
Form 108: Ins 30.6.1972. Am 23.12.1977; 19.2.1999.
Form 109
P 78, r 51.
(Citation to pray for administration.)
(To be set out in accordance with Form 1)
In the Supreme Court
of New South Wales
Equity Division
Probate
of New South Wales
Equity Division
Probate
Estate of (name) late of | |
(place) labourer |
CITATION TO PRAY FOR ADMINISTRATION
To (name)
This citation is issued at the request of (name) of (address) labourer who has filed in this Court an affidavit by him stating that—
1. (name) late of (place) labourer died at (place) on (date);
2. he believes that the deceased died without leaving a will or document purporting to embody the testamentary intentions of the deceased (or where applicable he believes that the deceased left a will, a copy of which is annexed and marked “A”);
3. (where applicable) No executor was appointed by the will (or where applicable (name) the executor appointed by the will has renounced probate or where applicable (name) the executor appointed by the will died on (date));
4. he is (state relationship to the deceased) of the deceased (or where applicable he is a beneficiary under the will or where applicable he is a creditor of the deceased).
You are cited to pray for administration of the estate of the deceased. If you wish to comply with this citation you must—
1. within 14 days after service on you of this citation (or if this citation is served on you outside New South Wales within 3 months after service of it on you) file in the registry of this Court an answer stating that you intend to apply to the Court for a grant to you of administration of the estate of the deceased; and
2. With reasonable promptness commence proceedings in this Court for a grant to you of administration of the estate of the deceased and pursue those proceedings diligently.
If you do not comply with this citation the Court may grant administration of the estate of the deceased to (name) without further notice to you in your absence.
Dated: (date)
By the Court Registrar |
Form 109: Ins 30.6.1972. Am 23.12.1977; 25.8.1989; 19.2.1999.
Form 110
(Title, etc., as in citation.)
P 78, r 51.
ANSWER TO CITATION TO PRAY FOR ADMINISTRATION
I (name) of (address) labourer having been served on (date) at (place) with a citation issued at the request of (name) and dated (date) to pray for administration of the estate of (name) late of (place) labourer answer that I intend to apply to this court for a grant to me of administration of the estate of the deceased.
Filed: (date)
(signature) Solicitor for the person cited |
Form 110: Ins 30.6.1972. Am 23.12.1977.
Form 111
P 78, r 52.
(Citation to take probate.)
(To be set out in accordance with Form 1.)
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
CITATION TO TAKE PROBATE
To (name)
This citation is issued at the request of (name) of (address) labourer who has filed in this Court an affidavit by him stating that—
1. (name) late of (place) labourer died at (place) on (date);
2. he believes that the deceased left a will, a copy of which is annexed and marked “A”, which appoints you the executor (or one of the executors) of it;
3. he is a beneficiary under the will (or where applicable) he is (state relationship to the deceased) of the deceased (or where applicable he is a creditor of the deceased).
You are cited to take probate of the will. If you wish to comply with this citation you must—
1. within 14 days after service on you of this citation (or if this citation is served on you outside New South Wales within 3 months after service of it on you) file in the registry of this Court an answer stating that you intend to apply to this Court for a grant to you of probate of the will; and
2. with reasonable promptness commence proceedings in this Court for a grant to you of probate of the will and pursue those proceedings diligently.
If you do not comply with this citation your right in respect of the executorship shall wholly cease, and the representation to the deceased and the administration of his estate shall, without any further renunciation, go, devolve, and be committed in like manner as if you had not been appointed executor.
Dated: (date)
By the Court Registrar |
Form 111: Ins 30.6.1972. Am 23.12.1977; 19.2.1999.
Form 112
P 78, r 52.
ANSWER TO CITATION TO TAKE PROBATE
I, (name) of (address) labourer having been served on (date) at (place) with a citation issued at the request of (name) and dated (date) to take probate of the will, a copy of which is annexed to the citation, of (name) late of (place) labourer answer that I intend to apply to this Court for a grant to me of probate of the will.
Filed: (date)
Solicitor for the person cited (signature) |
Form 112: Ins 30.6.1972. Am 23.12.1977.
Form 113
P 78, r 53.
(Title, etc. as in originating process.)
CITATION TO SEE PROCEEDINGS
To (name)
This citation is issued at the request of (name) of (address) labourer who is the plaintiff (or where applicable a defendant) in proceedings commenced in this Court by statement of claim (or where applicable summons). A copy of the statement of claim (or where applicable summons) is annexed and marked “A”.
(Where a will is referred to in the statement of claim or summons). A copy of the will referred to in the statement of claim (or where applicable summons) is annexed and marked “B”.
The plaintiff has filed an affidavit stating that you have an interest adverse to him in the proceedings in that (state the adverse interest) (or, where the citation is issued pursuant to Part 78 rule 34C) The plaintiff has filed an affidavit stating that you have not consented to the order sought in the statement of claim (or summons).
If you do not answer this citation by entering an appearance in the proceedings before the proceedings are heard and determined, the Court may hear and determine the proceedings in your absence with such consequences as may ensue according to law.
Dated: (date) | By the Court Registrar |
Form 113: Ins 30.6.1972. Am 25.8.1989.
Form 114
P 78, rr 61, 62, 62A.
CAVEAT
In the Supreme Court | Estate of (name) |
of New South Wales | late of (place), (occupation) |
Equity Division | |
Probate |
I require that: (1)
(a) | (Rule 61) (2) no grant of probate or reseal be made in the estate of (name) late of (place), (occupation) who died on (date of death) without prior notice to me. |
or | |
(b) | (Rule 62) (3) any will (or where applicable, the will dated (date) (or otherwise identify the will)) of (name) late of (place), (occupation) who died on (date of death) be proved in solemn form. |
or | |
(c) | (Rule 62A) (4) no grant be made in the estate of (name) late of (place), (occupation) who died on (date of death) unless I am given the opportunity to be heard on the question of whether a declaration as to the Court’s satisfaction under s 18A of the Wills, Probate and Administration Act 1898 should be made in respect of a document made by the deceased. |
My interest is: | (state this) |
Caveator: | (name, address and occupation) |
Caveator’s address for service | (Part 9 rule 6) |
Lodged: | (date) |
(signature) Caveator’s solicitor |
Notes | |
(1) | Delete whichever of (a), (b) or (c) is inapplicable. As to the procedures applicable to the type of caveat filed, see Divisions 5B, 6, 8, 9 and 10 of Part 78. |
(2) | This paragraph is appropriate where the caveator wishes to make a general objection to grant or reseal. |
(3) | This paragraph is appropriate where the caveator wishes to put the admissibility of the will beyond doubt or where the only issue is whether the will was executed in accordance with the formal requirements for execution of wills. A person requiring proof in solemn form may not raise issues such as testamentary capacity, undue influence or fraud but may examine witnesses, and raise questions, as to the proper execution of the will. |
(4) | This paragraph is appropriate where the only issue is whether an appropriate declaration should be made under section 18A of the Wills, Probate and Administration Act 1898 (which relates to testamentary documents and amendments to testamentary documents which are not executed in accordance with the formal requirements of the Act). |
Form 114: Ins 30.6.1972. Am 23.12.1977; 26.4.1996; 19.2.1999. Subst 1.11.2002.
Form 115: Ins 30.6.1972. Am 23.12.1977; 25.8.1989; 26.4.1996; 19.2.1999. Rep 1.11.2002.
Form 115A: Ins 13.12.1991. Am 26.4.1996; 19.2.1999. Rep 1.11.2002.
Forms 115, 115A
Form 116
P 78, r 76.
(Notice of filing of accounts.)
In the Supreme Court of New South Wales Equity Division
After 14 days from publication of this notice the { executor of the will or administrator of the estate or as the case may be} of (name in capitals) late of (place, occupation) will make application for an order passing { his or her or as the case may be} accounts [if applicable and an order for commission]. Any person wishing to object to the application may obtain a copy of it by filing a Notice of Intended Objection and must file an Appearance in the proceedings before they are concluded.
Address for Service: (Part 9 rule 6)
(Form 4 does not apply.)
Form 116: Ins 30.6.1972. Am 19.8.1994. Subst 22.11.1996. Am 19.2.1999.
Form 116A
P 78, r 77A.
Notice of Intended Objection to {Accounts or Commission or Accounts and Commission}
(name) of (address, occupation) intends to object to the { passing of accounts or allowance of commission or passing of accounts and allowance of commission} in the estate of (name) late of (place, occupation) who died on (date).
Address for Service: (Part 9 rule 6)
Form 116A: Ins 22.11.1996.
Form 117
P 78, r 89.
(Acknowledgment under s. 83 of the Probate Act.)
ACKNOWLEDGMENT made under the Wills, Probate and Administration Act 1898, between (name or names) executor (or where applicable executors) of the duly proved Will (or where applicable administrator (or where applicable administrators) with the Will annexed) of (name) late of (address and occupation as in will) deceased, of the one part, and (name or names) devisee (or where applicable devisees) under the said Will, of the other part, whereby the said executor (or as the case may be executors or administrator or administrators) doth (or where applicable do) acknowledge that the said devisee (or where applicable devisees) is (or where applicable are) entitled for the estate for which the same is devised to him (or where applicable them) by the said Will to the real estate described in the said Will as (describe as in Will).
Dated this day of 19 .
(Signature or signatures of executor or executors or administrator or administrators).
Form 117: Ins 30.6.1972.
Form 118
P 78, r 90.
(Notice of appointment of executor or administrator.)
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
NOTICE OF APPOINTMENT OF EXECUTOR (or ADMINISTRATOR)
To (name)
After 28 days from the date of service on you of this notice I (name) of (address) the executor of the will and codicils (or where applicable administrator of the estate) of (name) late of (place) labourer propose pursuant to section 75A of the Wills, Probate and Administration Act 1898, to appoint by deed (name) to be an executor of the will and codicils (or where applicable administrator of the estate) of the deceased in my place and stead (or where applicable as co-executor or co-administrator) with me (or where applicable the continuing executors or the continuing administrators).
If you object to the appointment you may within the period of 28 days lodge with the Registrar in Probate notice that you object to the appointment being made and serve a copy of that notice on me at (address).
Dated: (date)
(signature) |
Form 118: Ins 30.6.1972. Am 19.2.1999.
Form 119
P 78, r 90.
DEED OF APPOINTMENT OF EXECUTOR OR ADMINISTRATOR
THIS INDENTURE made the (date) BETWEEN (name) of (address) (hereinafter called the “Appointor”) of the one part and (name) of (address) (hereinafter called the “Appointee” of the other part WHEREAS (name) late of (place) by his will dated (date) gave all his estate to the Appointor and appointed him sole executor of his will (or as the case may be, reciting the will) (or where applicable died intestate) AND WHEREAS (where applicable probate of the will) (or where applicable letters of administration of the estate) of the deceased was (or where applicable were) granted to the Appointor (where applicable and to (name)) by the Supreme Court of New South Wales on (date) AND WHEREAS the Appointor has not yet renounced or taken probate of the will (or where applicable fully administered the estate) of the deceased AND WHEREAS the Appointor is desirous of retiring from the office of executor of the will (or where applicable administrator of the estate) and of appointing the Appointee to act in his place and stead or is desirous of appointing the Appointee as co-executor with him (or as the case may be) NOW THIS DEED WITNESSES that the Appointor HEREBY APPOINTS the Appointee executor of the will in his place and stead or as co-executor with him of the will (or as the case may be).
Signed sealed and delivered etc.
Form 119: Ins 30.6.1972.
Form 120
P 78, r 90.
(Notice of objection to appointment of executor or administrator.)
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
OBJECTION TO APPOINTMENT OF EXECUTOR (or ADMINISTRATOR)
I (name) of (address) object to the proposal by (name) to appoint (name) as (state the proposed appointment).
My interest in the will (or where applicable estate) is (state the interest).
Filed: (date)
Filed: (date)
(signature) |
Form 120: Ins 30.6.1972. Am 19.2.1999.
Form 121
P 78, r 91, P 77, rr 31, 69 and P 70 r 16 (2) (b).
(Notice of intended distribution of an estate under—
(a) section 92 of the Wills, Probate and Administration Act 1898;
(b) section 11 of the Testator’s Family Maintenance and Guardianship of Infants Act 1916;
(c) section 60 of the Trustee Act 1925 where Part 70 r 16 (1) applies; or
(d) section 35 of the Family Provision Act 1982.)
(No heading or title is necessary.)
NOTICE OF INTENDED DISTRIBUTION OF ESTATE
Any person having any claim upon the estate of (name in capitals) late of (place, occupation) who died on (date) [where the notice is given in respect of trust property add or in respect of (describe the property to be conveyed or distributed and identify the trust)] must send particulars of the claim to the executor* (name) at {address of executor* or care of name of solicitor, solicitor, address, [where applicable add or their agents, name, address]} within { one calendar month or longer period} from publication of this notice. After that time the { assets of the estate [where appropriate add and the property] or property} may be conveyed and distributed having regard only to the claims of which at the time of conveyance or distribution the executor* has notice. {Probate was or Letters of administration were} granted in N.S.W. on (date).
(Form 4 does not apply. It is not necessary to add the name of the person authorising publication.)
*or as the case may be
Form 121: Ins 4.5.1973. Subst 23.12.1977 (see erratum 23.6.1978). Am 8.7.1983; 13.12.1991. Subst 19.3.1999. Am 25.6.1999.
Form 121A: Ins 19.3.1999.
FORM 121A
P 70, r 16 (3) (b).
(No heading or title is necessary.)
NOTICE OF INTENDED DISTRIBUTION OF TRUST PROPERTY
Any person having any claim in respect of (describe the property to be conveyed or distributed and identify the trust) must send particulars of the claim to the trustee (name) at {address of trustee or care of name of solicitor, solicitor, address, [where applicable add or their agents, name, address]} within { one calendar month or longer period} from publication of this notice. After that time the trustee may convey and distribute the abovementioned property having regard only to the claims of which at the time of conveyance or distribution the trustee had notice.
(Form 4 does not apply. It is not necessary to add the name of the person authorising publication.)
Form 122
P 79, r 8.
(Petition under the Parliamentary Electorates and Elections Act 1912.)
(To be set out in accordance with Form 1.)
In the Matter of the Election of a Member of the Legislative Assembly for the Electoral District of (place). | |
(name) petitioner (name) respondent |
PETITION
To the Court of Disputed Returns—
(The statement of facts shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject matter. The facts shall include a description of the petitioner in terms of section 157 (c) of the subject Act, the date and result of the election, the date on which the writ was returned and the facts relied on to invalidate the election or return.)
The petitioner prays that—
(a)
(b)
To the respondent (address)—
You are liable to suffer judgment or an order against you unless the prescribed form of notice of your appearance is received in the Registry (or where a place in the Riverina or the Central West or the Northern Rivers district is the nominated place of trial,“or Sub-Registry”) within 14 days after service of this petition upon you.
Petitioner: (name, address).
Petitioner’s Address for Service: (Part 9 rule 6 (1)).
Address of Registry:
Petitioner’s Address for Service: (Part 9 rule 6 (1)).
Address of Registry:
(where a place in the Riverina is the nominated place of trial, add
“Sub-Registries: the offices of clerks of the Court at Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora and Tumut”.)
(where a place in the Central West is the nominated place of trial, add
“Sub-Registries: the offices of the clerks of the Court at Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Parkes and Wellington”.)
(where a place in the Northern Rivers district is the nominated place of trial, add
“Sub-Registries: the offices of the clerks 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 and Wauchope”.).
(signature) Petitioner |
Signed by the Petitioner in our presence at (place) on (date).
(signature) (full name, address and occupation) | |
(signature) (full name, address and occupation) |
(The rules which apply where a deponent making an affidavit if illiterate or blind shall apply in respect of each witness, making such changes as it is necessary to make, where a petitioner is illiterate or blind.)
(Form 4 does not apply.)
Form 122: Ins 27.5.1977. Am 23.12.1977; 24.4.1981 (see erratum 29.5.1981); 8.7.1983; 7.12.1984; 24.10.1986; 20.2.1987; 26.8.1988.
Form 123
P 79, r 9.
(Notice of filing petition under the Parliamentary Electorates and Elections Act 1912.)
NOTICE OF DISPUTED ELECTION (OR RETURN) OF A MEMBER OF THE LEGISLATIVE ASSEMBLY
A petition was, on (date), filed with the Prothonotary of the Supreme Court disputing the election (or return) of (name) as a member of the Legislative Assembly for the Electoral District of (place).
The facts relied on to invalidate the election (or return) are as follows—
(a)
(state the facts as concisely as may be)
(b) The petition prays that—
(set out the claims for relief prayed for in the petition)
Petitioner: (name, address and occupation).
(Form 4 does not apply.)
Form 123: Ins 27.5.1977.
Form 124
P 79, r 31.
(Notice of a reference under the Parliamentary Electorates and Elections Act 1912.)
NOTICE OF A REFERENCE OF A QUESTION TO THE COURT OF DISPUTED RETURNS
The following question respecting the qualification of a member of the Legislative Assembly (or respecting a vacancy in the Legislative Assembly) was, on ,
19 , referred to the Court of Disputed Returns for its determination, namely—
19 , referred to the Court of Disputed Returns for its determination, namely—
(state the question)
(name), Speaker of the Legislative Assembly.
(Form 4 does not apply)
Form 124: Ins 27.5.1977.
Form 125
(Notice of application for reduction of capital and of list of creditors.)
P 80, r 9.
(No heading or title.)
NOTICE OF APPLICATION RELATING TO
(name of company in capitals.)
An application has been made to the Supreme Court to confirm a resolution of the above Company for reducing its capital from $ (or as the case may be). A list of the persons admitted to have been creditors of the Company on (date), may be inspected at the office of the Company at (address) or at the office of the undersigned at any time during usual business hours, on payment of the charge of ($ Schedule G item 22).
Any person who claims to have been, on the last mentioned day and still to be, a creditor of the company, unless he belongs to the following class or classes (set out class or classes) and is not entered on the said list and claims to be so entered, must on or before (date), send his name and address, and the particulars of his debt or claim (and the name and address of his solicitor, if any) to the undersigned or in default thereof he will be precluded from objecting to the proposed reduction of capital.
Every admitted creditor who does not consent thereto shall be entitled to object.
Any creditor who has not received notice that his name is entered on the list of creditors must send to the undersigned particulars of his name and address.
(name of plaintiff’s solicitor) | |
(No date is required.) | (address for service) |
(Form 4 is not applicable.) |
Form 125: Ins 30.6.1982.
Form 126
(Notice of application under ss. 123 (5), 320 and 363 (1) of the Code.)
(No heading or title.)
NOTICE OF APPLICATION RELATING TO
(Name of Company in capitals.)
(Name of Company in capitals.)
P 80, rr 9 (4) (b), 10 and 18.
In respect of proceedings commenced on (date), application will be made by (name of plaintiff) (or if applicable, name of substituted plaintiff, who has, with the leave of the Court, in respect of a summons filed on (date) been substituted as plaintiff) to the Supreme Court of New South Wales at a.m. on (date) at
(address of Court)
where application is made for an order under section 123 (5) of the Code without fixing a date for (settling a list of creditors to confirm a resolution of the Company to reduce its share capital from $ to $ , such reduction to be effected by (state how the reduction is to be effected).
or
where application is made for an order under section 320 of the Code for an order under section 320 of the Companies (New South Wales) Code, in respect of the above Company and, where an order for winding up is sought including an order that the Company be wound up.
or
where application is made for an order under section 364 (1) of the Companies (New South Wales) Code, for an order that the Company be wound up.
or
(state the orders sought)
Copies of documents filed may be obtained under the rules.
Any person intending to appear at the hearing must serve a notice in the prescribed form so as to reach the address below not later than 1 p.m. on (specify the date, for example 7 May 19 by reference to Part 80 rule 20 (3)).
(name of plaintiff’s solicitor) | |
(No date is required.) | (address for service) |
(Form 4 is not applicable.)
Form 126: Ins 30.6.1982 (see erratum 9.7.1982).
Form 127
(Affidavit verifying list of creditors.)
P 80, r 10.
AFFIDAVIT
On 7 May 19 I (name, address and occupation) say on oath—
1. I am the secretary, (or as the case may be) of the plaintiff.
2. The document produced to me, and marked “A”, contains a list of the creditors of and persons having claims upon the said Company (or a list of the creditors of and persons having claims upon the said Company except those of the following class (or classes—set out class or classes) on (date) (the date fixed by the Court) together with their addresses, and the nature and amount of their debts or claims, and such list is, to the best of my knowledge and belief, a true and accurate list of persons having claims on that day, and of the nature and amount or estimated value of their debts or claims.
3. To the best of my knowledge and belief there was not, at that date, any debt or claim which, if that date were the commencement of the winding up of the said Company, would be admissible in proof against the said Company other than and except the debts and claims set forth in the said list.
4. I am able to make this statement from facts within my knowledge as the of the said Company, and from information derived upon investigation of the books of the said Company.
Sworn at | } | |
“A” | ||
before me |
Name, address and description of creditor or claimant | Nature of debt or claim | Amount of estimated value of debt or claim |
This list of creditors and claimants marked “A” was produced and shown to AB at the time of swearing his affidavit before me on (date).
XY
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 127: Ins 30.6.1982. Am 21.10.1994.
Form 128
(Notice to creditors.)
P 80, r 10.
To (name and address of creditor).
An application has been made to the Supreme Court to confirm a special resolution of the above Company for reducing its capital from $ to $ . In the list of persons admitted by the Company to have been its creditors on (date) (here insert any qualification which may have been directed) your name is entered as a creditor for (nature and amount or estimated value of debt or claim).
If you claim to have been on the last-mentioned day a creditor in a larger amount than is stated above, you must on or before (date), send the particulars of your claim, your name and address (and the name and address of your solicitor, if any) to the undersigned otherwise the above entry in the list of creditors will, in all the proceedings under the above application to reduce the capital of the Company, be treated as correct.
Dated 19 .
(Name of plaintiff’s solicitors.)
Form 128: Ins 30.6.1982.
Form 129
(Affidavit as to claims.)
P 80, r 10.
AFFIDAVIT
On 7 May 19 I, CD, of &c (for example, the secretary of the said Company) and on 11 May 19 , I, EF, of &c (for example, the solicitor for the said Company) and on 12 May 19 I, AB, of &c (for example, the managing director of the said Company) say on oath—
I, the said CD for myself say—
1. I did, on 19 , in the manner hereinafter mentioned, serve a true copy of the notice now produced to me and marked “B” upon each of the respective persons whose names, addresses, and descriptions appear in the first column of the list of creditors, marked “A”, referred to in the affidavit of filed on 19 . | |
2. I served the copies of the said notice by (for example putting such copies duly addressed to such persons according to their respective names and addresses appearing in the said list (being the last known addresses or places of abode of such persons) and with the proper postage stamps affixed thereto as prepaid letters, into the post office in (street) between a.m. and a.m. on 19 ). |
And I, the said EF, for myself say—
3. A true copy of the notice now produced to me, and marked “C”, has appeared in the of 19 , 19 , &c. | |
4. I have, in the document now produced and shown to me and marked “D”, set forth a list of all claims, the particulars of which have been sent in to me pursuant to the said notice “B”, now produced and shown to me by persons claiming to be creditors of the Company for larger amounts than are stated in the list of creditors, marked “A”, referred to in the affidavit of sworn on 19 , (or no person has sent to me pursuant to the said notice “B” a claim to be entered on the said list for a larger sum than in respect of which he is entered in the said list marked “A”.) | |
5. I have, in the document now produced and shown to me, marked “E”, set forth a list of all claims, the particulars of which have been sent to me pursuant to the notice referred to in the third paragraph of this affidavit by persons claiming to be creditors of the Company on 19 , not appearing on the said list of creditors marked “A”, and who claimed to be entered thereon (or no claims have been sent to me pursuant to the notice referred to in paragraph 3 hereof by persons not entered on the said list “A” and claimed to be so entered). |
And we, CD and AB, for ourselves say—
6. We have in the first part of the said document marked “D”, (now produced and shown to us), and also in the first part of the said document marked “E”, (also produced and shown to us), respectively set forth such of the said debts and claims as are admitted by the Company to be due wholly or in part, and how much is admitted to be due in respect of such of the same debts and claims respectively as are not wholly admitted by the Company to be due wholly or in part, and how much is admitted to be due in respect of such of the same debts and claims respectively as are not wholly admitted, and such of the same debts and claims as the Company contends are wholly or as to any and what part thereof not included in the enquiry in this matter. | |
7. We have, in the second part of such of the said documents marked “D” and “E”, set forth such of the said debts and claims as are wholly disputed by the Company and such of the same debts and claims as the Company contends would even if admitted be wholly (or as to what part thereof) not included in the enquiry in this matter. |
And I, the said CD further say—
8. All rents, rates, taxes, salaries, wages and other incidental expenses current on 19 and since become due have been paid and discharged by the Company. |
Sworn by (name) at | } |
before me (and so on) |
EXHIBIT D
D
(heading and title.)
(heading and title.)
LIST OF DEBTS AND CLAIMS of which the particulars have been sent to
by persons claiming to be creditors of the Company for larger amounts than are stated in the list of creditors made out by the Company.
by persons claiming to be creditors of the Company for larger amounts than are stated in the list of creditors made out by the Company.
This document marked “D”, was produced and shown to CD, EF, and AB, respectively, and is the same as is referred to in their affidavit sworn before me on
19 .
19 .
XY
First Part
Debts and claims wholly or partly admitted by the Company
Debts and claims wholly or partly admitted by the Company
Names and addresses and description of creditors | Particulars of debt or claim | Amount claimed | Amount admitted by the Company to be owing to creditor | Amounts admitted by the Company to be owing but which it is contended are not within the enquiry |
Second Part
Debts and claims wholly disputed by the Company
Debts and claims wholly disputed by the Company
Names, addresses and descriptions of claimants | Particulars of claim | Amount claimed | Amounts which, even if admitted, it is contended would not be within the enquiry |
EXHIBIT E
E
(heading and title.)
(heading and title.)
LIST OF DEBTS AND CLAIMS of which the particulars have been sent to
by persons claiming to be creditors of the Company and to be entered on the list of the creditors made out by the Company.
by persons claiming to be creditors of the Company and to be entered on the list of the creditors made out by the Company.
This document marked “E” was produced and shown to CD, EF and AB, respectively, and is the same as is referred to in their affidavit sworn before me on
19 .
19 .
XY
First Part
(Same as in Exhibit D.)
(Same as in Exhibit D.)
Second Part
(Same as in Exhibit D.)
(Same as in Exhibit D.)
(Note: names are to be inserted alphabetically.)
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 129: Ins 30.6.1982. Am 21.10.1994.
Form 130
P 80, r 10.
(Notice to creditors to prove debts.)
To (Name and address).
You are hereby required to prove the debt claimed by you against the above company by filing your affidavit in the registry of the Court, Sydney, and serving a copy on the undersigned on or before 19 , and you are to attend before in at the Supreme Court, Sydney, on 19 , at a.m. being the time appointed for hearing and adjudicating on the claim, and produce any securities or documents relating to your claim.
In default of your complying with the above directions, you will be precluded from objecting to the proposed reduction of the capital of the company (or, in all proceedings relative to the proposed reduction of the capital of the company be treated as a creditor for such amount only as is set against your name in the list of creditors).
Dated 19 .
(Signed) Solicitor for the Company (address) |
Form 130: Ins 30.6.1982.
Form 131
(Summons under section 184 (3) of the Code.)
P 80, r 12.
SUMMONS UNDER SECTION 184 (3) OF THE COMPANIES (NEW SOUTH WALES) CODE
THE COURT ORDERS that—
(name) of (address) shall appear before the Court at (place) on (date) at a.m. and show cause why the document mentioned in the schedule below should not be delivered up and produced by bringing the said document into the office of (name of Company) at (office of Company) within (state the period as ordered) to have the said document cancelled (or as the notice required) and the transfer of the said document registered (or as ordered).
SCHEDULE
(description of document.)
(Complete as in general form of minute or order, Form 51.)
Form 131: Ins 30.6.1982.
Form 132
(Summons claiming winding up order under section 364 (1) of the Code.)
P 80, r 18.
SUMMONS
The plaintiff claims—
1. An order that the defendant be wound up under the Companies (New South Wales) Code.
2. An order that a liquidator of the defendant be appointed (or where a person is proposed that (name) be appointed liquidator of the defendant).
Form 132: Ins 30.6.1982. Am 22.10.1982.
Form 133
(Note of intention to appear on hearing.)
P 80, r 20.
He intends to appear on the hearing (add, where he intends to support the plaintiff’s application and support the plaintiff’s application or where he intends to oppose the plaintiff’s application and oppose the plaintiff’s application). He is a creditor for $ of the Company (or a contributory holding number and class of shares held shares in the Company).
(No date is required.)
(Form 4 is not applicable.)
Form 133: Ins 30.6.1982.
Form 134
P 80, r 20.
NOTICE RELATING TO PERSONS INTENDING TO APPEAR ON THE HEARING
Particulars relating to persons who have given notice of their intention to appear on the hearing are set out below.
Name | Address | Solicitor | Creditor’s debt $ | Contributory’s shares: number and class | “Supporting”, “Opposing” or leave blank |
Form 134: Ins 30.6.1982. Am 22.10.1982.
Form 135
(Minute of order substituting a plaintiff in a winding up application)
(Title before this order)
P 80, r 21.
ORDER
THE COURT ORDERS that—
1. (name) be substituted as plaintiff;
2. the substituted plaintiff amends the summons accordingly;
3. the substituted plaintiff serve on the defendant personally a minute of this order and the amended summons;
4. the substituted plaintiff publish a notice in accordance with Form 126 and otherwise comply with the requirements of the rules as if he were the former plaintiff making the application made in the summons;
5. the date appointed for hearing be adjourned to (date);
6. the costs of the substituted plaintiff of this application be the substituted plaintiff’s costs of proceedings on the application (or as ordered).
(Complete as in general form of minute of order, Form 51.)
Form 135: Ins 30.6.1982.
Form 135A
(Notice to liquidator of appointment)
P 80, r 22A.
To: (name and address of liquidator).
(name and registered office of Company) was wound up by order of the Court on (date) and you were appointed to be the liquidator. The application for the winding up was filed on (date on which the summons was filed).
(name and registered office of Company) was wound up by order of the Court on (date) and you were appointed to be the liquidator. The application for the winding up was filed on (date on which the summons was filed).
Form 135A: Ins 14.2.1986. Am 20.4.1990.
Form 136
(Minute of winding up order.)
P 80, r 23.
ORDER
THE COURT ORDERS that—
1. the defendant be wound up by the Court under the provisions of the Companies (New South Wales) Code;
2. (name and address) be the liquidator of the defendant;
3. (any directions under section 370 (2) (b) of the Code);
4. that the plaintiff be at liberty to apply as he may be advised (or as ordered).
(Complete as in general form of minute of order, Form 51.)
Form 136: Ins 30.6.1982.
Form 136A
(Notice to provisional liquidator of appointment)
P 80, r 26.
To: (name and address of provisional liquidator):
On: (date) the Court appointed you to be the liquidator of (name and registered office of the Company) provisionally.
Form 136A: Ins 20.4.1990.
Form 137
(Notice of appointment of provisional liquidator.)
(No heading or title.)
P 80, r 26.
NOTICE OF APPOINTMENT OF PROVISIONAL LIQUIDATOR
On (date), the Supreme Court appointed (name in capitals, address) to be the liquidator of (name of company in capitals) provisionally.
(name of plaintiff’s solicitor)
(address for service)
(address for service)
(No date required.)
(Form 4 is not applicable.)
(Form 4 is not applicable.)
Forms 137–140: Ins 30.6.1982.
Form 138
(No heading or title.)
NOTICE OF WINDING-UP ORDER
(Name of Company in capitals.)
P 80, r 28.
On (date) the Supreme Court made an order that the Company be wound up by the Court and appointed me to be liquidator.
(name of liquidator) (address) | |
(No date required.) (Form 4 does not apply.) |
Forms 137–140: Ins 30.6.1982.
Form 139
(Certificate of liquidator of resolution of meeting of Committee of Inspection (or creditors and/or contributories))
P 80, r 33.
(Title)
I certify that the document attached hereto and marked “A” is a true copy of the resolution of a meeting of the Committee of Inspection (creditors and contributories or creditors or contributories) of the Company held at on (date).
Dated .
(Signature) | |
Liquidator |
Forms 137–140: Ins 30.6.1982.
Form 140
(Report.)
P 80, r 36, 52.
REPORT BY LIQUIDATOR (or as the case may be)
1.
I, (name and address) am the liquidator (or as the case may be) of (name of Company).
(Continue in paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct part of the subject matter. For example, where the liquidator makes a report under section 431 (2) of the Code—
2.
I was chairman of a meeting of the creditors (or contributories) of the Company held on (date) at (place).
3.
The meeting was convened by a notice given on (date) and by notice published in the (name of newspaper) on (date) and in the Government Gazette on (date).
4.
The meeting was attended, either personally or by proxy, by (number) creditors whose proofs of debt against the Company were admitted for voting purposes and amounted in all to the value of $ .
or
4.
The meeting was attended, either personally or by proxy, by (number) contributories who held in all (number) shares in the Company and were entitled respectively by the regulations of the Company to (number) votes.)
5.
The proposals submitted to the meeting were (state the proposals).
6.
Certify the resolution of the meeting, showing that the voting was unanimous or if not, the (total number and value of creditors, or the total number and voting power of contributories, voting for and against each proposal.)
Dated: | (signature) |
Chairman |
Forms 137–140: Ins 30.6.1982.
Form 141
(Affidavit by special manager verifying his accounts.)
P 80, r 38.
AFFIDAVIT
On 19 I (name, address and occupation) say on oath—
1. I am the special manager of the property and business (or as the case may be) of the Company.
2. The account of receipts and payments set out above contains a full and true account of my receipts and payments as special manager from (date) to (date).
3. I have not, nor has any other person by my order or for my use, during the period, received or paid any moneys on account of the Company other than the items mentioned in that account.
Sworn at | } |
before me |
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 141: Ins 30.6.1982. Am 21.10.1994.
Form 142
(Requirement by liquidator under section 384 (1) of the Code.)
P 80, r 40.
REQUIREMENT TO PAY MONEY, etc. TO LIQUIDATOR
To (name and address):
1. I am the liquidator of (name of Company.)
2. Pursuant to section 384 (1) of the Companies (New South Wales) Code, I require you to pay (or deliver, convey, surrender or transfer) to me, forthwith (or not later than (number) days from the date of this requirement) (or such time as the liquidator directs) $ (or describe the property or books)
[or any money, property or books to which the Company is prima facie entitled.
In this requirement—
(a) “accounting records” includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up;
(b) “books” includes any register or other record of information and any accounts or accounting records, however compiled, recorded or stored, and also includes any document;
(c) a reference to writing shall be construed as including a reference to any mode of representing or reproducing words, figures or symbols in a visible form;
(d) “printed” includes type-written, lithographed or reproduced by any mechanical means; and
(e) “document” includes—(i) any paper or other material on which there is writing or printing, or on which there are marks, symbols, or perforations having a meaning for persons qualified to interpret them; and(ii) a disc, tape or other article from which sounds, images or messages are capable of being reproduced and, without limiting the generality of the foregoing, includes any summons, order and other legal process and any notice;
(f) “property” means any legal or equitable interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes things in action].
Dated:
(signature)
(name)
(address)
(name)
(address)
(Form 4 does not apply.)
Form 142: Ins 30.6.1982 (see erratum 9.7.1982).
Form 143
(Notice of meeting of committee of inspection to sanction a call.)
P 80, r 41.
A meeting of the committee of inspection will be held at on (date) at a.m. for the purpose of considering, and if thought fit passing, a resolution that the making by the liquidator of a call of $ per share on all of the contributories (or as the case may be) be sanctioned.
Dated:
(signature) | |
Liquidator | |
(address) |
Forms 143–147: Ins 30.6.1982.
Form 144
(Statement with notice of meeting of committee of inspection to sanction a call.)
P 80, r 41.
STATEMENT IN SUPPORT OF PROPOSAL FOR CALL
(state the matters required to be stated by Form 148.)
Dated:
(signature) | |
Liquidator | |
(address) |
Forms 143–147: Ins 30.6.1982.
Form 145
(Notice of meeting of committee of inspection to sanction a call.)
P 80, r 41.
(No heading or title.)
I have convened a meeting of the committee of inspection of (name of Company) to be held at on (date) at a.m. to sanction the making of a call of $ per share on all of the contributories of the Company (or as the case may be). Any contributory may make representations to me or the members of the committee in writing before, at, or orally at, the meeting. A statement showing the necessity for the making of the call may be obtained from me.
(name and address of liquidator)
(No date is required.)
(Form 4 is not applicable.)
(Form 4 is not applicable.)
Forms 143–147: Ins 30.6.1982.
Form 146
(Resolution of committee of inspection sanctioning a call.)
P 80, r 41.
Resolved on (date) that the making by the liquidator of a call of $ per share on all of the contributories of the Company (or as the case may be) be sanctioned.
(signatures)
Members of the Committee of Inspection.
Members of the Committee of Inspection.
Forms 143–147: Ins 30.6.1982.
Form 147
(Summons for leave to make a call.)
P 80, r 42.
SUMMONS
The plaintiff claims an order—
1. under section 389 (2) (a) of the Companies (New South Wales) Code that he be granted leave (to make a call of $ per share on all of the contributories of the Company named in column 2 of the schedule below.
2. under section 384 (4) of the Code that each contributory pay into (name of bank) to the account of the liquidator the amount of the call made on him.
SCHEDULE
Column 1 | Column 2 | Column 3 | Column 4 |
Serial number. | Name and address. | In what character included. | Amount due $ |
Forms 143–147: Ins 30.6.1982.
Form 148
(Affidavit in support of application for leave to make a call.)
P 80, r 42.
AFFIDAVIT
On 19 I (name, address and occupation) say on oath—
1. I am the liquidator of the Company.
2. The statement annexed hereto marked “A” shows—(a) the amount due in respect of the debts proved and admitted against the Company and the estimated amount of the costs, charges and expenses of and incidental to the winding up (which amounts form in the aggregate about $ );(b) the property of the Company which amounts to about $ .
3. There is no other property of the Company (where applicable) except amounts due from some of the contributories and I believe that these will realise about $ .
4. (number) persons have been settled by me on the list of contributories of the Company in respect of the total number of shares.
5. To satisfy the debts and liabilities of the Company and the costs, charges, and expenses of and incidental to its winding-up, I believe $ will be required in addition to the proceeds of the realization of the profit of the said Company and the amounts referred to in paragraph 3.
6. To provide $ (as in 5), it is necessary to make a call upon the persons settled on the list of contributories, and, having regard to the probability that some of such contributories will partly or wholly fail to pay the amount of such call, I believe that a call of $ per share should be made.
Sworn at | } |
before me |
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 148: Ins 30.6.1982. Am 21.10.1994.
Form 149
(Notice of application for leave to make a call.)
P 80, r 42.
(No heading or title.)
An application will be made to the Supreme Court on (date) at a.m. (or p.m.) at (address of Court) for leave to make a call of $ per share on all of the contributories of the company (or as the case may be). All persons interested are entitled to attend the hearing. A copy of an affidavit showing the necessity for the call may be obtained from me.
(name and address of liquidator)
(No date is required.)
(Form 4 is not applicable.)
Forms 149–153: Ins 30.6.1982.
Form 150
(Minute of order giving leave to make a call.)
P 80, r 42.
ORDER
THE COURT ORDERS that—
1. leave be given to the liquidator to make a call of $ per share on all of the contributories (or as the case may be);
2. each contributory pay into (name of Bank) to the account of the liquidator the amount of the call made on him (or as the case may be).
(Complete as in general form of minute of order, Form 51.)
Forms 149–153: Ins 30.6.1982.
Form 151
(Notice of amount of call per share.)
P 80, r 43.
Pursuant to the order of the court made (or the resolution of the committee of inspection passed) on (date) I will make a call of $ per share on all of the contributories of the Company (or as the case may be).
Dated:
(signature)
Liquidator
Liquidator
Forms 149–153: Ins 30.6.1982.
Form 152
(Notice of call sanctioned by committee of inspection.)
P 80, r 44.
On (date of resolution) the committee of inspection sanctioned the making by me of a call of $ per share on all of the contributories of the Company (or as the case may be).
I call on you accordingly to pay $ to me on or before (date).
If you do not pay that sum to me on or before that date, I will claim interest on that sum from that date until payment of that sum.
(signature) | |
Liquidator | |
Dated: | |
(name and address) |
Forms 149–153: Ins 30.6.1982.
Form 153
(Notice of call permitted by leave of the Court.)
P 80, r 44.
On (date of making of order) the Court granted leave to me to make a call of $ per share on all of the contributories of the Company (or as the case may be) and to pay the amount of the call into (bank named in the order) to my account. I call on you accordingly to pay $ into (bank) to my account on or before (date).
If you do not so pay the sum on or before that date, I will claim interest on that sum from that date until payment of that sum.
Dated:
(signature) | |
Liquidator | |
(name and address) |
Forms 149–153: Ins 30.6.1982.
Form 154
(Minute of order under section 541 (3) of the Code for examination.)
P 80, r 63.
ORDER
THE COURT ORDERS that—
1. (name) (address) attend before the Court at a time and place appointed by the registrar and from day to day until the conclusion of his examination, to be examined in public on oath or affirmation on any matters relating to the promotion, formation, management, administration or winding up of the Company and produce any books in his possession or under his control relevant to those matters;
2. (any directions under section 541 (5) of the Code).
3. the questions put to him and the answers given by him be recorded in writing;
4. subject to any further order of the Court, the plaintiff be paid or retain out of the property of the Company his costs of this application and the examination.
(or as ordered).
(Complete as in general form of minute of order, Form 51.)
(There may be added to a minute of the above order—
APPOINTMENT FOR HEARING
I appoint (date) at 10 a.m. at (address of Court) for the examination (or as appointed).
(Signature) | |
Registrar |
Form 154: Ins 30.6.1982 (see erratum 9.7.1982).
Form 154A
(Summons under section 596A or 596B of the Corporations Law)
SUMMONS TO ATTEND FOR EXAMINATION UNDER SECTION 596A (OR 596B) OF THE CORPORATIONS LAW
P 80, r 1D (2).
To: | (Name) (Address) |
1. | You are required to attend before the Court at the time and place appointed by the Registrar and specified below, to be examined on oath or affirmation about the examinable affairs (as defined in the Corporations Law) of (name of corporation) (“the Corporation”). |
2. | Section 597 (6) of the Corporations Law provides that a person who is summoned under section 596A or section 596B to attend before the Court shall not, without reasonable excuse— (a) fail to attend as required by the summons; or (b) fail to attend from day to day until the conclusion of the examination. |
3. | (If applicable) You are also required to produce at the examination the books (as defined in the Corporations Law) specified in the Schedule below that— (a) are in your possession or custody or under your control; and (b) relate to the Corporation or to any of its examinable affairs. |
4. | (If applicable) Section 597 (7) of the Corporations Law provides that a person who attends before the Court for examination must not— (a) without reasonable excuse, refuse or fail to take an oath or make an affirmation; or (b) without reasonable excuse, refuse or fail to answer a question that the Court directs him or her to answer; or (c) make a statement that is false or misleading in a material particular; or (d) without reasonable excuse, refuse or fail to produce books that the summons requires him or her to produce. |
SCHEDULE
(if applicable)
(description of books)
(description of books)
Dated: 19
By the Court | |
Registrar (or as the case may be) |
APPOINTMENT
I appoint (date) at (time) at (address of Court) for the examination.
(Signature) Registrar |
Form 154A: Ins 2.7.1993.
Form 154BA
P 80A, r 4.
SUMMONS UNDER SECTION 1092 (3) OF THE CORPORATIONS LAW
THE COURT ORDERS that:
(name) of (address) shall appear before the Court at (place) on (date) at a.m. and show cause why the document mentioned in the Schedule below should not be delivered up and produced by bringing the said document into the office of (name of company) at (office of the company) within (state the period as ordered) to have the said document cancelled (or as the notice required) and the transfer of the said document registered (or as ordered).
SCHEDULE
(Description of document)
(Complete as in general form of minute or order, Form 51.)
Form 154BA: Ins 10.12.1993.
Form 154B
(Notice of Application under ss. 246D (5), 254E (1), 411 (4) (b) and (6), 413 (1), 459A, 461, 601FP or 601ND (1))
P 80A, r 10 (5).
(No heading or title.)
NOTICE OF APPLICATION RELATING TO
(Name of Company in capitals)
A.C.N. (specify Australian Company Number of Company)
(Name of applicant) will apply to the Supreme Court of New South Wales at (time) on (date) at (address of Court) for an order (describe order using appropriate description hereunder)
validating an issue of shares (or confirming the terms of an issue of shares) in the capital of (name of Company) under section 254E;
validating an issue of shares (or confirming the terms of an issue of shares) in the capital of (name of Company) under section 254E;
or
setting aside a modification of the constitution of (name of Company) under section 246D;
or
setting aside a variation or cancellation of rights of members of (name of Company) under section 246D;
or
approving a compromise or arrangement by (name of Company) with its creditors or members, or a class of creditors or members, under section 411 (4) and (6);
or
that (name of Company) be wound up in insolvency under section 459A;
or
that (name of Company) be wound up on the ground of (specify ground) under section 461;
or
that (name of proposed temporary responsible entity) be appointed as the temporary responsible entity of (specify scheme) under section 601FP;
or
that (name of responsible entity) wind up (specify registered scheme) under section 601ND (1);
or
(state other order sought).
Any person intending to appear at the hearing must file a notice of appearance in the prescribed form and serve that notice on the applicant at its address for service shown below not later than (specify the date by reference to Part 80A rule 9 (1)).
(name of applicant’s solicitor)
(address for service)
(address for service)
(no date is required)
(Form 4 does not apply)
(Form 4 does not apply)
Form 154B: Ins 10.12.1993. Am 25.2.1994; 19.8.1994. Subst 23.10.1998.
Form 154C: Ins 10.12.1993. Rep 23.10.1998.
Form 154D: Ins 10.12.1993. Rep 23.10.1998.
Form 154E: Ins 10.12.1993. Am 21.10.1994. Rep 23.10.1998.
Forms 154C–154E
Form 154FA
P 80A, r 15.
(No heading or title)
(name of creditor)
Creditor
(name of company)
Debtor
Creditor
(name of company)
Debtor
AFFIDAVIT UNDER SECTION 459E OF THE CORPORATIONS LAW
On (date), I, (name, address and occupation) say on oath:
1 (Set out the matters referred to in paragraph (b) of Part 80A, rule 15 (1)).
2 I believe that the amount of $ , being the debt (or the total of the amounts of the debts) specified in the accompanying demand, is due and payable by the debtor to the creditor.
3 (Set out the matters referred to in paragraph (c) of Part 80A, rule 15 (1)).
4 I believe that there is no genuine dispute about the existence or amount of the debt (or debts) referred to in paragraph 2.
Sworn at | } |
before me |
[IMPORTANT NOTE:
(1) This affidavit accompanies a statutory demand under section 459E of the Corporations Law.
(2) No proceedings (or, if applicable, no winding up proceedings) have been commenced in respect of any debt to which this affidavit relates.
(3) Any questions relating to this affidavit or any debt to which it relates should be directed either to the person named as creditor or the creditor’s solicitors.]
Form 154FA: Ins 24.11.1995.
Form 154FB
P 80A, r 16.
AFFIDAVIT VERIFYING DEBT UNDER SECTION 459Q OF THE CORPORATIONS LAW
On (date), I, (name, address and occupation) say on oath:
1 (Set out the matters referred to in paragraph (c) of Part 80A, rule 16 (1))
2 I believe that the amount of $ , being the debt (or the total of the amounts of the debts) specified in the statutory demand served on the defendant, is due and payable by the defendant to the plaintiff.
3 (Set out the matters referred to in paragraph (d) of Part 80A, rule 16 (1))
4 I believe that there is no genuine dispute about the existence or amount of the debt (or debts) referred to in paragraph 2.
5 The defendant has failed to pay the said amount to the plaintiff or to secure or compound for that amount to the reasonable satisfaction of the plaintiff.
Sworn at | } |
before me |
Form 154FB: Ins 24.11.1995.
Form 154F
P 80A, r 20 (1) (a) (i).
NOTICE TO LIQUIDATOR (or PROVISIONAL LIQUIDATOR) OF APPOINTMENT
To: (name and address of liquidator or provisional liquidator)
(if liquidator was appointed, add:
(if liquidator was appointed, add:
(Name and registered office of Company) was wound up by order of the Supreme Court of New South Wales on (date) and you were appointed to be the liquidator. The application for the winding up was filed on (date on which the summons was filed).)
(if provisional liquidator was appointed, add:
(if provisional liquidator was appointed, add:
By order of the Court on (date) you were appointed to be provisional liquidator of (name and registered office of Company).)
Form 154F: Ins 10.12.1993. Am 25.2.1994.
Form 154G
P 80A, r 20 (1) (b).
(No heading or title)
NOTICE OF WINDING UP ORDER AND APPOINTMENT OF LIQUIDATOR
(Name of Company in capitals)
A.C.N. (specify Australian Company Number of Company)
On (date) the Supreme Court of New South Wales made an order that the Company be wound up by the Court and appointed me to be liquidator.
(name of liquidator) (address) |
(No date required)
(Form 4 does not apply)
(Form 4 does not apply)
Form 154G: Ins 10.12.1993.
Form 154H
P 80A, r 20 (1) (b).
(No heading or title)
NOTICE OF APPOINTMENT OF PROVISIONAL LIQUIDATOR
(Name of Company in capitals)
A.C.N. (specify Australian Company Number of Company)
On (date) the Supreme Court of New South Wales appointed me to be provisional liquidator of the Company.
(name of provisional liquidator) (address) |
(No date required)
(Form 4 does not apply)
(Form 4 does not apply)
Form 154H: Ins 10.12.1993.
Form 154I
P 80A, rr 13A (1), 13B (1) (b), 13C (1), 22 (2), 23 (2) (b).
(No heading or title)
NOTICE OF INTENTION OF LIQUIDATOR (or PROVISIONAL LIQUIDATOR or RECEIVER or ADMINISTRATOR or SPECIAL MANAGER) TO APPLY FOR DETERMINATION OF REMUNERATION
(Name of Company in capitals)
A.C.N. (specify Australian Company Number of Company)
To: (name and address of person to whom notice is given)
I, (name and address), the liquidator (or provisional liquidator or receiver or administrator or special manager) of the abovenamed Company, will, not earlier than 21 days after service on you of this notice and the accompanying affidavit, seek a determination by the Court of my remuneration.
If you object to my application, you should, within 21 days after service of this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed. You will then be entitled to receive notice of the time and place of hearing of the application.
Dated (date)
(signature) liquidator (or provisional liquidator or receiver or administrator or special manager) |
(Form 4 does not apply)
Form 154I: Ins 10.12.1993. Subst 21.10.1994.
Form 154J
(Report)
P 80A, rr 25, 31.
REPORT BY LIQUIDATOR (or as the case may be)
1.
I, (name and address) am the liquidator (or as the case may be) of (name of Company).
(Continue in paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct part of the subject matter. For example, where the liquidator makes a report under section 547 (1) of the Corporations Law:
2.
I was chairman of a meeting of the creditors (or contributories) of the Company held on (date) at (place).
3.
The meeting was convened by a notice given on (date) and by notice published in the (name of newspaper) on (date) and in the Commonwealth of Australia Gazette on (date).
4.
The meeting was attended, either personally or by proxy, by (number) creditors whose proofs of debt against the Company were admitted for voting purposes and amounted in all to the value of $
or
4.
The meeting was attended, either personally or by proxy, by (number) contributories who held in all (number) shares in the Company and were entitled respectively by the regulations of the Company to (number) votes.
5.
The proposals submitted to the meeting were (state the proposals).
6.
(Certify the resolution of the meeting, showing that if the voting was unanimous of, if not, the total number and value of creditors, or the total number in voting power of contributories, voting for and against each proposal.)
Dated:
(signature) Chairman |
Form 154J: Ins 10.12.1993.
Form 154K
(Affidavit by special manager verifying his accounts.)
P 80A, r 27.
AFFIDAVIT
On 19 I (name, address and occupation) say on oath:
1. I am the special manager of the property and business (or as the case may be) of the Company.
2. The account of receipts and payments set out above contains a full and true account of my receipts and payments as special manager from (date) to (date).
3. I have not, nor has any other person by my order or for my use, during the period, received or paid any moneys on account of the Company other than the items mentioned in that account.
SWORN at | } |
before me |
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 154K: Ins 10.12.1993. Am 21.10.1994.
Form 154L
P 80A, r 33 (3) (a) (i).
NOTICE OF INTENTION OF LIQUIDATOR TO SEEK RELEASE
To: (name and address of creditor or contributory)
I, (name and address of liquidator), the liquidator of the above Company, intend to apply to the Supreme Court of New South Wales for a release as liquidator of the Company (if applicable, add and that the company be dissolved).
If you object to the grant of my release, you must, within 21 days of publication in the Commonwealth of Australia Gazette of my notice of intention to apply for a grant of release, deliver to me a notice of objection stating the grounds of objection.
(NOTE—
Section 481 (3) of the Corporations Law provides that an order of the Court releasing the liquidator discharges him or her from all liability in respect of any act done or default made by him or her in the administration of the affairs of the Company or otherwise in relation to his or her conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.)
Dated: (date)
(Form 4 does not apply)
Form 154L: Ins 10.12.1993.
Form 154M
P 80A, r 33 (3) (b).
(No heading or title)
NOTICE OF INTENTION OF LIQUIDATOR TO SEEK RELEASE
(Name of Company in capitals)
A.C.N. (specify Australian Company Number of Company)
I, (name and address of liquidator), the liquidator of the above company, intend to apply to the Supreme Court of New South Wales for a release as liquidator of the Company (if applicable, add and that the company be dissolved).
Any creditor or contributory who wishes to object to the grant of my release may, within 21 days of publication of this notice, deliver to me a notice of objection stating the grounds of objection.
(NOTE—
Section 481 (3) of the Corporations Law provides that an order of the Court releasing the liquidator discharges him or her from all liability in respect of any act done or default made by him or her in the administration of the affairs of the Company or otherwise in relation to his or her conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.)
(No date is required)
(Form 4 does not apply)
(Form 4 does not apply)
Form 154M: Ins 10.12.1993. Am 25.2.1994.
Form 154N
P 80A, r 36 (6).
SUMMONS TO ATTEND FOR EXAMINATION
UNDER SECTION 596A (or 596B) OF THE CORPORATIONS LAW
To: | (Name) (Address) |
1.
You are required to attend before the Court at the time and place appointed by the Registrar and specified below, to be examined on oath or affirmation about the examinable affairs (as defined in the Corporations Law) of (name of corporation) (“the Corporation”).
2.
Section 597 (6) of the Corporations Law provides that a person who is summoned under section 596A or section 596B to attend before the Court shall not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day until the conclusion of the examination.
3.
(If applicable) You are also required to produce at the examination the books (as defined in the Corporations Law) specified in the Schedule below that:
(a) are in your possession or custody or under your control; and
(b) relate to the Corporation or to any of its examinable affairs.
4.
(If applicable) Section 597 (7) of the Corporations Law provides that a person who attends before the Court for examination must not:
(a) without reasonable excuse, refuse or fail to take an oath or make an affirmation; or
(b) without reasonable excuse, refuse or fail to answer a question that the Court directs him or her to answer; or
(c) make a statement that is false or misleading in a material particular; or
(d) without reasonable excuse, refuse or fail to produce books that the summons requires him or her to produce.
SCHEDULE
(if applicable)
(description of books)
(description of books)
Dated: 19
By the Court Registrar (or as the case may be) |
Form 154N: Ins 10.12.1993.
Form 155: Ins 30.8.1985 (see erratum 11.10.1985). Rep 10.12.1993.
Form 156: Ins 30.8.1985 (see erratum 11.10.1985). Rep 10.12.1993.
Forms 155, 156
Form 157
P 82, rr 9, 7 (4).
OATH OF OFFICE
I, (name) of (address and occupation) do swear that if I am appointed as a public notary by the Supreme Court of New South Wales I will truly and honestly conduct myself in the practice of a public notary in New South Wales according to the best of my knowledge, skill and ability.
(Signature of person taking oath)
CERTIFICATE
I, (name) of (address), certify that I duly administered the above oath on (date) at (place).
(date)
........................................(Signature of a person administering oath)
........................................(Office of person administering oath)
Form 157: Ins 3.1.1986. Subst 14.2.1986; 19.12.1997. Am 24.4.1998 (see erratum 1.5.1998).
Form 158
P 1, r 9A (1A)
CERTIFICATION UNDER SECTION 198L OF THE LEGAL PROFESSION ACT 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 158: Ins 3.1.1986. Am 17.11.1989. Rep 19.12.1997. Ins 29.11.2002. Am 5.9.2003.
Form 159: Ins 3.1.1986. Rep 19.12.1997.
Form 160: Ins 3.1.1986. Am 24.9.1993; 23.2.1996. Rep 19.12.1997.
sch F, tbl 1 (Index of Forms): Ins 2.6.1972. Am 23.6.1972; 30.6.1972; 17.7.1972; 4.5.1973; 5.10.1973; 21.12.1973; 29.3.1974; 1.8.1975; 22.8.1975; 27.5.1977; 1.7.1977; 21.10.1977; 23.12.1977; 6.7.1979; 19.10.1979; 21.12.1979; 23.5.1980; 24.12.1981; 28.5.1982; 30.6.1982; 25.2.1983; 8.7.1983; 9.12.1983; 23.12.1983; 25.5.1984; 29.6.1984; 31.8.1984; 21.12.1984; 12.7.1985; 23.8.1985 (see erratum 6.9.1985); 30.8.1985; 20.12.1985; 3.1.1986; 14.2.1986; 23.5.1986; 24.10.1986; 13.3.1987; 27.3.1987; 31.12.1987; 17.6.1988; 19.5.1989; 23.6.1989; 20.10.1989; 15.12.1989; 22.12.1989; 20.4.1990; 25.5.1990; 14.12.1990; 13.12.1991; 24.9.1993; 19.11.1993; 10.12.1993; 25.2.1994; 19.8.1994; 21.10.1994; 23.12.1994; 22.9.1995; 24.11.1995; 1.3.1996; 26.4.1996; 25.10.1996; 22.11.1996; 21.2.1997; 23.5.1997; 5.12.1997; 19.12.1997; 24.7.1998; 19.3.1999; 20.8.1999; 25.2.2000; 21.7.2000; 24.11.2000; 1.11.2002; 29.11.2002; 21.3.2003; 24.4.2003; 13.6.2003; 29.8.2003; 26.3.2004; 28.5.2004.
Forms 159, 160
Index of Forms
1. | First page of a document (See P 65, r 1). | |
2. | } | Heading and title (See P 65, r 1). |
3. | } | |
4. | Conclusion of documents for use by a party. | |
5. | Statement of Claim (P 4, r 1). | |
6. | Summons (P 5, r 4A). | |
7. | (Repealed) | |
8. | Appointment for hearing (P 5, r 5). | |
9. | Defence and cross-claim (P 6, r 13). | |
10. | Cross-claim (pleaded) (P 6, r 13). | |
11. | (Repealed) | |
11A. | Cross-claim against plaintiff in summons (P 6, r 16 (1)). | |
11B. | (Repealed) | |
12. | Notice of payment (P 7, r 4). | |
13. | Notice of claim for possession (P 7, r 8). | |
13A. | Notice to defendant served outside Australia (P 10, r 2A). | |
14. | Request for special service (P 10, r 8 (a) (v)). | |
15. | Request for service (P 10, r 10). | |
16. | Notice of Appearance (P 11, r 4). | |
17. | Defence (P 15, r 3). | |
18. | Reply (P 15, r 4). | |
19. | Reply and defence to cross-claim (P 15, r 4 (2)). | |
20. | Notice to plead facts (P 15, r 12 (3)). | |
20A. | Affidavit verifying statements of claim (P 15, r 23). | |
20B. | Affidavit verifying defence (P 15, r 23). | |
20C. | Affidavit of debt (P 17, r 4 (2)) | |
21. | Notice to admit facts and authenticity of documents (P 18, rr 2, 5). | |
22. | Notice disputing facts and authenticity of documents (P 18, rr 2, 5). | |
23. | Notice of Motion (P 19, r 2). | |
24. | Notice of amendments (P 20, r 7). | |
25–30A. | (Repealed) | |
31. | Notice for discovery (P 23, r 1). | |
32. | List of documents (P 23, r 6). | |
33. | Notice to answer interrogatories (P 24, r 6). | |
34. | Statement in answer to interrogatories (P 24, r 6). | |
35. | Verified statement in answer to interrogatories (P 24, r 6). | |
36. | (Repealed) | |
37. | Notice of motion for directions (P 26, r 2). | |
38. | Minutes of Order for examination (P 27, r 1D). | |
39. | Minutes of Order appointing examiner (P 27, r 1D). | |
40. | Minutes of Order to send letter of request (P 27, r 1). | |
41. | Receiver’s deed of security (P 29, r 2). | |
41A, 41B. | (Repealed) | |
42. | Notice to set down for trial (P 33, r 5). | |
43. | Requisition for trial with a jury (P 34, r 3). | |
44. | Minutes of order (inmate a witness) (P 36, r 14). | |
45. | Notice to produce (P 36, r 16). | |
45A. | Subpoena for production for service in New Zealand (P 36A r 3 (5)) | |
45B. | Subpoena to a corporation for production and for its proper officer to answer questions concerning possession, etc of documents for service in New Zealand (P 36A r 3 (5)). | |
45C. | Subpoena for production of original or photocopies of medical records for service in New Zealand (P 36A r 3 (5)). | |
45D. | Subpoena to give evidence for service in New Zealand (P 36A r 3 (5)). | |
45E. | Subpoena for production and to give evidence for service in New Zealand (P 36A r 3 (5)). | |
45F. | Certificate of non-compliance with subpoena (P 36A, r 5 (1)). | |
45G. | Objection to determination without hearing (P 36A r 6 (7)). | |
45H. | Request for hearing by video link or telephone (P 36A r 6 (8)). | |
46. | Subpoena (P 37, r 3). | |
46A–48. | (Repealed) | |
49. | Affidavit (P 38, r 2). | |
50. | Minute of judgment (P 41, r 10) and particular judgments. | |
51. | Minute of order (P 41, r 11). | |
51A. | Certificate under section 13 of the Foreign Judgments (Reciprocal Enforcement) Act 1973 (P 41, r 15A (2)). | |
52. | Writ of possession (and for levy of property) (P 42, r 4). | |
53. | Writ of specific delivery (P 42, r 5). | |
54. | Writ of delivery (P 42, r 5). | |
55. | Notice to corporation and officer before sequestration or committal (P 4, r 8 (3)). | |
56. | Minute of order (examination as to debts) (P 43, r 1). | |
57. | Writ for levy of property (P 45, r 2). | |
57A. | Notice to judgment debtor of intention to sell land (P 45, r 9 (2)). | |
57B. | Memorandum to be endorsed on notice of sale for service on judgment debtor. (P45, r 12). | |
58. | Garnishment notice (P 46, r, 3). | |
59. | Ordinary summons for leave to appeal or cross-appeal (P 51, rr 4 (1) (a), (2) (a)). | |
59A. | Holding summons for leave to appeal or cross-appeal (P 51 rr 4 (1) (b), (2) (b)). | |
60. | Notice of Appeal (P 51, r 6 (1) (a), (b) (ii), (2) (b), P 51AA, r 5 (1) (a), (b) (ii)). | |
60AA. | Notice of Appeal (P 51AA, r 5 (1) (a), (b) (ii), (2) (c)). | |
60A. | Notice of Appeal without appointment (P 51, r 6 (1), P 51AA, r 5 (1) (a), (b) (ii)). | |
60B. | Notice of Appeal with hearing date (P 51AA, r 5 (1) (b) (iii)). | |
60C. | Notice of discontinuance of appeal or application for leave (P 51, rr 4A (1), 6 (5), P 51AA, r 5 (5)). | |
61. | Supplementary Notice of Appeal (P 51, r 17, P 51AA, r 12). | |
61AA. | Notice of non objection (P 51, r 27 (1) (b), P 51AA, r 18A (1) (b)). | |
61A. | Index (Court of Appeal) (P 51AA, 21). | |
61B. | Schedule of damages (P 51, r 40, P 51AA, r 25B). | |
62. | Summons (P 51, rr 50, 57, P 51AA, rr 32, 35). | |
62A. | Summons (stated case in the Court of Appeal) (P 51, r 50 (2), r 57, P 51AA, rr 32 (2), 35). | |
62AA. | Notice of motion in the Court of Appeal (P 51, r 49, P 51AA, r 31). | |
62AA1. | Short reasons for decision (P 51, r 59, P 51AA, r 37). | |
62AAA. | Items, etc in a bill of costs (P 52, r 49 (1)). | |
62AB. | Undertaking to pay disbursement (P 52, r 49 (3A)). | |
62AC. | Notice to file objections to bill of costs (P 52, r 50A (3)). | |
62AD. | Notice of objection to a bill (P 52, r 50A (5)). | |
62AE. | Certificate of taxation (P 52, r 50A (7)). | |
62B. | Request for appointment for hearing before taxing officer (P 52, r 50 (4) (ii)). | |
63. | Certificate of taxation (P 52, r 59). | |
64. | Statement of objection (to item of costs disallowed) (P 52, r 60). | |
64A. | Request for taxation or moderation (P 52, r 68 (8)). | |
64B. | Security for costs (P 53, r 3). | |
65. | Warrant for arrest (P 55, r 10). | |
66. | Warrant for committal (P 55, r 13). | |
67. | Notice of claim to Sheriff (interpleader) (P 56, r 5). | |
68. | Minute of order (registration of judgment) (P 59, r 4). | |
69. | Notice of registration of judgment (P 59, r 6). | |
69A. | Order (P 59A, r 5). | |
69B. | Notice of registration of judgement (P 59A, r 7). | |
70. | Notice of Appeal from Master (P 60, r 11 (1)). | |
(The form prescribed under Pt 65 r 1 is Form 1). | ||
70AA. | Oath of office (P 65C, rr 3 (4), 4 (4)). | |
70A. | Notice of intention to cease acting as solicitor (P 66, r 7 (2)). | |
71. | Writ of Habeas Corpus (s 69 (2)). | |
71A, 71B. | } | (Repealed) |
71C. | Arbitrator’s award and Registrar’s notice to parties (P 72B, r 3 (1)). | |
71D. | Arbitrator’s reasons for award (P 72B, r 3 (2)). | |
71E. | Application for rehearing (P 72B, r 5 (1)). | |
72. | Summons (application for adoption order) (P 73, rr 4 (2), 5). | |
73–73B. | (Repealed) | |
74. | Minute of adoption order (P 73, r 7). | |
74AA. | Subpoena to a natural person: criminal proceedings (P 75, r 2 (q)). | |
74AB. | Subpoena to a corporation for production and for its proper officer to answer questions concerning possession etc of documents: criminal proceedings (P 75, r 2 (q)). | |
74AC. | Subpoena to give evidence: criminal proceedings (P 75, r 2 (q)). | |
74AD. | Subpoena for production and to give evidence: criminal proceedings (P 75, r 2 (q)). | |
74AE. | Form of indictment (P 75, r 3D (1)). | |
74AF. | Application to the Supreme Court or the Court of Criminal Appeal for variation of bail (P 75, r 3E (c)). | |
74AG. | Application to the Supreme Court or the Court of Criminal Appeal for bail (P 75, r 3E (d)). | |
74AH. | Acceptable person—Information form (P 75, r 3F). | |
74AHA. | Objection to confirmation of forfeiture order by the Supreme Court or the Court of Criminal Appeal (p 75, r 3FA). | |
74AHB. | Application to set aside forfeiture order by the Supreme Court or the Court of Criminal Appeal (P 75, r 3FB). | |
74AI. | Application to the Supreme Court for an order that the hearing of an application in relation to bail be not conducted by video link (P 75, r 3G). | |
74AJ. | Election under s 132 (1) of the Criminal Procedure Act 1986 (P 75, r 3H (1)). | |
74AK. | Election under s 132 (5) of the Criminal Procedure Act 1986 (P 75, r 3H (1)). | |
74A. | Summons: Part 5 of Chapter 4 of theCriminal Procedure Act 1986 (P 75, r 7). | |
74B. | Minute of order: s 246 (1) (a), Criminal Procedure Act 1986 (P 75, r 8). | |
74C. | Minute of order: s 246 (1) (b), Criminal Procedure Act 1986 (P 75, r 8). | |
74D, 74E. | (Repealed) | |
75. | Summons under s 13 (and section s 68) of the Protected Estates Act 1983 (P 76, r 5). | |
76, 77. | (Repealed) | |
78. | Affidavit of medical practitioner, etc (P 76, r 11). | |
79. | Affidavit of fitness of manager (P 76, r 11). | |
80. | Consent of proposed manager (P 76, r 11). | |
81. | Consent where proposed manager is a company (P 76, r 11). | |
82. | (Repealed) | |
83. | Order under s 13 (and s 68) of the Protected Estates Act 1983 (P 76, r 13) | |
84, 85. | (Repealed) | |
86. | Order under s 35 of the Protected Estates Act 1983 (P 76, r 23). | |
87. | Statement of account (P 76, r 37 (1)). | |
88. | Affidavit verifying account (P 76, r 37 (1)). | |
89. | (Repealed) | |
89A. | Minute of order under section 21 (2) of the Status of Children Act 1996 (P 77, r 38). | |
89B. | Notice of claim for provision under the Family Provision Act 1982 (P 77, r 63). | |
89C. | (Repealed) | |
89D. | Defendant’s notice under s 31 (5) of the Confiscation of Proceeds of Crime Act 1989 (P 77, r 87A). | |
89E. | Prosecution’s notice under s 31 (5) of the Confiscation of Proceeds of Crime Act 1989 (P 77, r 87A). | |
89F. | Notice under 44 (2) of the Confiscation of Proceeds of Crime Act 1989 (P 77, r 87B). | |
89G. | Certificate under section 85 (1) of the Confiscation of Proceeds of Crime Act 1989 (P 77, r 87G). | |
89E. | Notice under s 24 of the Crimes (Confiscation of Profits) Act 1985 (P 77, r 86). | |
89H. | Order under s 3 (1) of the Restricted Premises Act 1943 (P 77, r 91). | |
89I. | Order under s 4 (1) or 14 (3) of the Restricted Premises Act 1943 (P 77, r 91). | |
89J. | Notice of declaration under s 5 (1) of the Restricted Premises Act 1943 (P 77, r 91). | |
89K. | Notice of rescission under s 5 (1) of the Restricted Premises Act 1943 (P 77, r 91). | |
89L. | Certificate under s 77F of the Victims Compensation Act 1996 (P 77, r 137A). | |
90. | Summons for probate, administration or resealing (P 77, r 8). | |
91. | Notice of intended application for probate (P 78, r 10). | |
92. | Notice of intended application for administration (P 78, r 10). | |
92A. | Notice of intended application for administration under s 41A of the Probate Act (P 78, r 10). | |
93. | Notice of intended application for resealing (P 77, r 10). | |
94. | Renunciation of probate (P 78, r 14). | |
95. | Affidavit of attesting witness (P 78, r 15). | |
96. | Inventory of Property (Forms 97, 98, 104, 106). | |
97. | Affidavit of executor (P 78, r 24). | |
98. | Affidavit of applicant for administration (P 78, rr 24A (1) (a), 25 (1) (a), 25A (2) (a)). | |
98A. | Affidavit showing deceased had no de facto spouse (P 78, r 24A (2) (c)). | |
99. | Affidavit showing deceased had no de facto spouse (P 78, r 25 (2) (f)). | |
99A– 100B. | (Repealed) | |
101. | Consent to administration (P 78, rr 24A, 25, 25A). | |
102. | Administration bond (P 78, rr 24A, 25, 26). | |
103. | Affidavit of surety (P 78, rr 24A, 25, 25A, 26, 34). | |
103A. | Affidavit relating to de facto relationship (P 78, r 25A (2) (e)). | |
103AA. | Affidavit relating to de facto relationships (P 78, r 25A (2) (d)). | |
103B. | Notice where the deceased leaves a de facto wife or de facto husband (P 78, r 25A (3) (b) (iv)). | |
104. | Affidavit of applicant for administration with the will annexed (P 78, r 26). | |
105. | Renunciation in favour of Public Trustee (P 78, r 26). | |
105A. | Affidavit of applicant for administration for the purposes of the Family Provision Act 1982 (P 78, r 26A). | |
106. | Affidavit of applicant for resealing (P 78, r 28). | |
106A. | Affidavit of additional assets (P 78, r 28A). | |
106B. | Consent to distribution of gift (P 78, r 34A). | |
106CA. | Consent to order (P 78, r 34A (1A)). | |
106C. | Notice of intention to distribute estate (P 78, r 34D). | |
106D. | Consent by affected person (P 78, r 34E (1)). | |
106E. | Notice to affected person (P 78, r 34E (1)). | |
106F. | Notice to affected person (P 78, r 34E (3)). | |
107. | (Repealed) | |
108. | Request for issue of citation (P 78, rr 46, 54). | |
109. | Citation to pray for administration (P 78, r 51). | |
110. | Answer to citation to pray for administration (P 78, r 51). | |
111. | Citation to take probate (P 78, r 52). | |
112. | Answer to citation to take probate (P 78, r 52). | |
113. | Citation to see proceedings (P 78, r 53). | |
114. | Caveat in respect of grant of probate or proof of will (P 78, rr 61, 62, 62A). | |
115, 115A. | (Repealed) | |
116. | Notice of filing of accounts (P 78, r 76). | |
116A. | Notice of Intended Objection to Accounts or Commission or Accounts and Commission (P 78, r 77A). | |
117. | Acknowledgment under s 83 of the Probate Act (P 78, r 80). | |
118. | Notice of appointment of executor or administrator (P 78, r 90). | |
119. | Deed of appointment of executor or administrator (P 78, r 90). | |
120. | Notice of objection to appointment of executor or administrator (P 78, r 90). | |
121. | Notice of intended distribution of an estate under s 92 of the Probate Act, s 60 of the Trustee Act, s 11 of the Testator’s Family Maintenance etc Act, and s 35 of the Family Provision Act (P 78, r 91, P 70, r 16 (3) (a), and P 77, rr 31, 69). | |
121A. | Notice of intended conveyance or distribution of trust property (P 70, r 16 (3) (b). | |
122. | Petition: Parliamentary Electorates etc Act 1912 (P 79, r 8). | |
123. | Notice of filing petition: Parliamentary Electorates etc Act 1912 (P 79, r 9). | |
124. | Notice of reference: Parliamentary Electorates etc Act 1912 (P 79, r 31). | |
125. | Notice of application for reduction of capital and of list of creditors (P 80, r 9). | |
126. | Notice of application under ss 123 (5), 320 and 363 (1) of the Code (P 80, rr 9, 10, 18). | |
127. | Affidavit verifying list of creditors (P 80, r 10). | |
128. | Notice to creditors (P 80, r 10). | |
129. | Affidavit as to claims (P 80, r 10). | |
130. | Notice to creditors to prove debts (P 80, r 10). | |
131. | Summons under s 184 (3) of the Code (P 80, r 12). | |
132. | Summons claiming winding up order under the Code (P 80, r 18). | |
133. | Note of intention to appear on hearing (P 80, r 20). | |
134. | Notice relating to persons intending to appear on hearing (P 80, r 20). | |
135. | Minute of order substituting plaintiff in a winding up application (P 80, r 21). | |
135A. | Notice to liquidator of appointment (P 80, r 22A). | |
136. | Minute of winding up order (P 80, r 23). | |
136A. | Notice to provisional liquidator of appointment (P 80, r 26). | |
137. | Notice of appointment of provisional liquidator (P 80, r 26). | |
138. | Notice of winding up order (P 80, r 28). | |
139. | Certificate of liquidator of resolution of meeting (P 80, r 33). | |
140. | Report (P 80, rr 36, 52). | |
141. | Affidavit by special manager (P 80, r 38). | |
142. | Requirement by liquidator under s 384 (1) of the Code (P 80, r 40). | |
143. | Notice of meeting of committee of inspection: calls (P 80, r 41). | |
144. | Statement with notice of meeting of committee of inspection: calls (P 80, r 41). | |
145. | Notice of meeting of committee of inspection: calls (P 80, r 41). | |
146. | Resolution of committee of inspection: calls (P 80, r 41). | |
147. | Summons for leave to make a call (P 80, r 42). | |
148. | Affidavit: leave to make a call (P 80, r 42). | |
149. | Notice of application for leave to make a call (P 80, r 42). | |
150. | Minute of order: leave to make a call (P 80, r 42). | |
151. | Notice of amount of call per share (P 80, r 43). | |
152. | Notice of call sanctioned by committee of inspection (P 80, r 44). | |
153. | Notice of call permitted by leave of the Court (P 80, r 44). | |
154. | Minute of order under s 541 (3) of the Code for examination (P 80, r 63). | |
154A. | Summons under section 596A or 596B of the Corporations Law (P 80, r 1D (2)). | |
154BA. | Summons under section 1092 (3) of the Corporations Law (P 80A, r 4). | |
154B. | Notice of application under ss 167 (7), 168 (4), 172 (10), 190 (3), 194 (1), 195 (5), 197 (6), 198 (6), 411 (4) (b) and (6), 413 (1), 459A, or 461 of the Corporations Law (P 80A, r 10 (5)). | |
154C. | Notice of application for reduction of capital and of list of creditors (P 80A, r 13 (5) (a)). | |
154D. | Notice to creditors (P 80A, r 13 (5) (b)). | |
154E. | Affidavit verifying list of creditors (P 80A, r 13 (7)). | |
154FA. | Affidavit under s 459E of the Corporations Law (P 80A, r 15). | |
154FB. | Affidavit under s 459Q of the Corporations Law (P 80A, r 16). | |
154F. | Notice to liquidator (or provisional liquidator) of appointment (P 80A, r 20 (1) (a) (i)). | |
154G. | Notice of winding up order and appointment of liquidator (P 80A, r 20 (1) (b)). | |
154H. | Notice of appointment of provisional liquidator (P 80A, r 20 (1) (b)). | |
154I. | Notice of intention of liquidator (or provisional liquidator or receiver or administrator or special manager) to apply for determination of remuneration (P 80A, rr 13A (1), 13B (1) (b), 13C (1), 22 (2), 23 (2) (b)). | |
154J. | Report by liquidator (or as the case may be) (P 80A, rr 25, 31). | |
154K. | Affidavit by special manager verifying his accounts (P 80A, r 27). | |
154L. | Notice of intention of liquidator to seek release (P 80A, r 33 (3) (a) (i)). | |
154M. | Notice of intention of liquidator to seek release (P 80A, r 33 (3) (b)). | |
154N. | Summons to attend for examination under section 596A (or 596B) of the Corporations Law (P 80A, r 36 (6)). | |
155, 156. | (Repealed) | |
157. | Oath of office (P 82, rr 9, 7 (4)). | |
158. | Certification under section 198L of the Legal Profession Act 1987. | |
159–160. | (Repealed) | |
sch F: Ins 2.6.1972.
sch F (explanatory notes): Ins 2.6.1972. Am 23.12.1977; 16.1.1981; 22.10.1982; 18.12.1987; 25.2.1994; 23.5.1997; 19.2.1999; 24.4.2003.
Schedule G Costs
P 52, rr 67, 68.
Table 1
General
Appendix A
Statement of claim etc—
$ | ||
1. | Drawing statement of claim | 9.50 |
or per folio | 1.60 | |
2. | Drawing summons | 9.50 |
or per folio | 1.60 | |
3. | Drawing and attending to obtain— | |
(a) a subpoena to give evidence, including copy for service | 6.50 | |
| 1.00 | |
(b) a subpoena for production or for production and to give evidence, including copy for service | 6.50 | |
| 1.60 | |
4. | Writs of execution or other writs, including drawing and engrossing and all endorsements and copies for service and attending to issue | 9.25 |
Service | ||
5. | Service or attempted service by a solicitor or his employee or filing in lieu of service, where service by post is not authorised | 3.75 |
6. | If at a distance beyond 3 kilometres from the nearest place of business of the solicitor serving a document, at the Scale under section 9 of the Sheriff Act 1900, except in special circumstances. | |
7. | Where a service by post or by leaving a copy of a document in an exchange box or at a document exchange under Part 9 rule 4 (1) (d) or by transmitting information in a document to a facsimile transmission number under Part 9 rule 4 (1) (e) is authorised | 2.25 |
8. | Service by persons other than those specified in items 5, 6 and 7, discretionary, but not exceeding the amount payable under those items. | |
Appearances | ||
9. | Preparing and filing notice of appearance (including copy for service) | 5.75 |
10. | If entered at the one time for more than one person, for every defendant beyond the first | 0.50 |
Preparing for hearing | ||
11. | (Repealed) | |
Drawing | ||
12. | Any document where no other provision is made, per folio or part | 1.60 |
Copies | ||
13. | Of any document, where no other provision is made— | |
(a) typed or written, per folio | 0.50 | |
(b) printed or carbon, per folio | 0.25 | |
(c) photographed, per page, discretionary. | ||
Perusal | ||
14. | Of any document where no other provision is made, per folio | 0.50 |
or per hour | 15.00 | |
Attendance | ||
15. | To file any document where not elsewhere included, to lodge any document for, or to pick up after signature, or any other attendance involving analogous work or any formal attendance | 1.75 |
16. | To file or lodge any document which requires an appointment to be signed by a clerk in the registry or to get any consent order signed | 2.25 |
17. | To settle any minute of order or judgment or obtain signature of a judge, Master or officer of the Court to an order which is not consented to | 3.75 |
or per hour | 15.00 | |
18. | To search the list or for appearance or other document | 1.75 |
19. | To pay money into Court (including filing any necessary document), or to bespeak payment out (including receiving cheque) | 3.75 |
20. | To obtain consent of tutor | 3.75 |
21. | To obtain or give any consent or undertaking | 3.75 |
or if by telephone | 1.75 | |
22. | To produce documents for inspection | 3.75 |
or if personal supervision necessary, per hour | 15.00 | |
or if unqualified clerk attends, discretionary. | ||
23. | To inspect documents | 7.50 |
or per hour | 15.00 | |
or if unqualified clerk attends, discretionary. | ||
Any necessary clerical assistance, per hour | 3.75 | |
24. | To examine and sign admissions | 5.50 |
or per folio | 1.25 | |
25. | For collating necessary material for appeal papers; attendances on the printer, examining and general oversight of their proper preparation | 11.00 |
or per hour | 15.00 | |
26. | On deponent to swear an affidavit or for a solicitor or his clerk to swear an affidavit or such additional amount as the taxing officer thinks fit | 3.75 |
27. | To mark annexure | 0.25 |
28. | On counsel to deliver brief | 1.75 |
29. | On counsel to appoint conference or consultation | 1.75 |
30. | On conference or consultation with counsel, per hour | 15.00 |
or if unqualified clerk attends, discretionary. | ||
31. | In Court instructing counsel on any hearing, per hour | 15.00 |
or if unqualified clerk attends, discretionary. | ||
32. | For any short attendance in Court without counsel | 7.50 |
33. | For any other attendance in Court on any hearing without counsel or for any attendance by a solicitor which involves a high degree of skill and responsibility, per hour | 22.00 |
or such additional amount as the taxing officer thinks fit. | ||
34. | Clerk’s attendance, if in the opinion of the taxing officer, his attendance was reasonably necessary in view of the number of witnesses expected to be called on any day, per day | 15.00 |
35. | To hear reserved judgment | 7.50 |
or per hour | 15.00 | |
or if unqualified clerk attends, discretionary. | ||
36. | To tax a bill of costs | 5.50 |
or per hour | 15.00 | |
or if unqualified clerk attends, discretionary. | ||
37. | To bespeak and obtain a transcript copy of evidence, judgment, copy of the jury panel or any other necessary document | 3.75 |
38. | Any telephone attendance | 1.75 |
or such additional amount as the taxing officer thinks fit. | ||
39. | Attendance where no other provision is made | 3.75 |
or per hour | 15.00 | |
or if unqualified clerk attends, discretionary. | ||
Travelling and Waiting | ||
40. | For each day of not less than six hours employed in travelling or in waiting (plus reasonable travelling expenses and sustenance) | 90.00 |
Where less time than six hours is so employed, per hour | 15.00 | |
or for an unqualified clerk, discretionary. | ||
Letters | ||
40A. | Where no other provision is made— | |
(a) ordinary | 2.75 | |
(b) short formal | 1.75 | |
(c) circular after the first | 0.75 | |
(d) others discretionary. | ||
41. | Skill, care and responsibility, discretionary. | |
Winding up proceedings | ||
41A. | For work done for the applicant in proceedings in a winding up by the Court under the Companies Act 1961 or Companies (New South Wales) Code— | |
(a) in respect of an application for an order appointing a provisional liquidator, up to and including lodgment and delivery of a copy of the order under Rule 50 (3) of the Companies Rules 1968 or delivery of an office copy of the order under Part 80 rule 26, | ||
| 130.00 | |
| 115.00 | |
(b) in respect of an application for an order appointing a liquidator, but not in respect of an application for an order appointing a provisional liquidator, up to and including lodgment, service and delivery of a copy of the order under Rule 54 of the Companies Rules 1968 or lodgment, service and delivery of an office copy of the order under section 370 (2) of the Companies (New South Wales) Code, | ||
| 240.00 | |
| 215.00 | |
Appendix B
Business Done After 8 February 1974
In respect of business done after 8 February 1974, and on or before 1 August 1975, the costs in Appendix A shall be increased by 36 per cent.
Appendix C
Business Done After 1 August 1975
In respect of business done after 1 August 1975 and on or before 23 September 1977 the costs in Appendix A shall be increased by 80 per cent.
Appendix D
Business Done After 23 September 1977
In respect of business done after 23 September 1977 and on or before 31 October 1980 the costs in Appendix A shall be increased by 110 per cent.
Appendix E
Business done after 31 October 1980
In respect of business done after 31 October 1980 and on or before 16 April 1982 the costs in Appendix A shall be increased by 160 per cent.
Appendix F
Business done after 16 April 1982
In respect of business done after 16 April 1982 and on or before 31 December 1983 the costs in Appendix A shall be increased by 225 per cent.
Appendix G
Business done after 31 December 1983
In respect of business done after 31 December 1983 the costs in Appendix A shall be increased by 294 per cent.
Table 2
Fixed costs
Higher scale $ | Lower scale $ | ||
42. | Under Part 7 rule 4 (money claim) | 182 | 91 |
43. | Under Part 52 rule 10 where judgment is entered under Part 17 (except where item 44 applies) in default of appearance or of defence or of verification of defence | 253 | 127 |
44. | Under Part 52 rule 10 where judgment for possession of land is entered under Part 17 in default of appearance or of defence | 326 | - |
45. | Amount to be allowed where a solicitor is the plaintiff and acts for himself or where a member of his firm acts for him, instead of the amounts fixed by item 42 | 127 | 64 |
and instead of the amounts fixed by item 43 | 199 | 100 | |
and instead of the amounts fixed by item 44 | 271 | - | |
46. | Amount to be added where an order under section 11 of the Service and Execution of Process Act 1901, for leave to proceed has been obtained | 40 | 21 |
47. | Amount to be allowed on a writ of execution | 91 | 46 |
47A. | Amount to be allowed on a writ of possession after the first | 122 | - |
NOTE—
1
In this Table—
(a) “Higher scale” means the amount payable apart from Part 52 rule 24 (3),
(b) “Lower scale” means the amount payable where Part 52 rule 24 (3) (d) applies,
(c) the amounts allowed in items 42–45 include out of pocket expenses, other than those properly paid for filing the originating process, which fee must be added to those amounts,
(d) the amounts allowed in items 47 and 47A include out of pocket expenses, other than the fees properly paid for service or execution of the writ, but not in excess of the scale under section 9 of the Sheriff Act 1900, which fees must be added to those amounts.
2
The costs mentioned in items 42–46 apply in respect of proceedings commenced after 31 December 1983.
3
The costs mentioned in items 47 and 47A apply in respect of a writ issued after 31 December 1983.
Table 3
Allowances to Witnesses
$ | ||
48. | Barristers, solicitors, medical practitioners, surveyors, architects, accountants, pharmacists and other professional persons | 76 |
or per hour | 56 | |
49. | Whenever the persons mentioned in Item 48 are called to give expert evidence and not evidence of fact— | |
(a) to give expert evidence, including travelling to Court, where period from departure from home, hospital, place of practice, office, place of employment or other place to return thereto from attendance at Court does not exceed one and a half hours | 116 | |
(b) for every full hour after the first half hour, or a proportion thereof if not for a full hour | 56 | |
(c) the amounts payable under (a) and (b) above shall not exceed a total of $462 per day. | ||
50. | Travelling and other allowances— (a) payment to be made at the rate of 70 cents per kilometre one way after the first kilometre up to and including 80 kilometres, (b) exceeding 80 kilometres—the reasonable cost thereof plus the cost of reasonable accommodation and meals. | |
51. | Other witnesses: | |
Such allowance as is commensurate with the witness’s remuneration or circumstances but not exceeding the allowances provided by the preceding three items. | ||
52. | Such additional sum as is reasonable for travelling expenses and sustenance and in cases where accommodation is required such further sum as having regard to all the circumstances is reasonable and has been paid in respect thereof. | |
53. | The taxing officer may also allow such amount as he thinks has been reasonably and properly incurred and paid to witnesses for qualifying to give skilled evidence. |
Table 4
Medical examinations and reports
$ | ||
54. | (a) report made by an attending general practitioner— | |
| 32 | |
| 58 | |
(b) report made by an attending specialist— | ||
| 48 | |
| 80 | |
(c) report made by a specialist who has not previously treated the patient— | ||
| 58 | |
| 97 | |
(d) attending a joint examination (including travelling time where the distance does not exceed 8 kilometres)— | ||
| 116 | |
| 48 | |
| 48 | |
|
Table 5
Probate
55. | In respect of proceedings commenced after 23 December 1977, in respect of the estates of persons who died before 31 December 1981, costs of and incident to the obtaining for the first time of probate or administration or of resealing of probate or letters of administration (including satisfying any requisition made by the Commissioner of Stamp Duties after the date of grant, the perusal and checking of the assessment of duty and the payment of duty under the Stamp Duties Act 1920 and all work and attendances incidental to these matters including the uplifting of the grant) shall be allowed in accordance with the scale below. | |
Costs allowed $ | ||
Gross value of the estate as accepted by the Commissioner of Stamp Duties | ||
not exceeding $1,000 | 80 | |
exceeding $1,000 but not exceeding $2,000 | 100 | |
exceeding $2,000 but not exceeding $4,000 | 120 | |
exceeding $4,000 but not exceeding $6,000 | 155 | |
exceeding $6,000 but not exceeding $8,000 | 170 | |
exceeding $8,000 but not exceeding $10,000 | 190 | |
exceeding $10,000 but not exceeding $12,000 | 215 | |
exceeding $12,000 but not exceeding $14,000 | 250 | |
exceeding $14,000 but not exceeding $16,000 | 290 | |
exceeding $16,000 but not exceeding $18,000 | 330 | |
exceeding $18,000 but not exceeding $20,000 | 390 | |
and thereafter at the rate of $15.60 for each $2,000 in excess of $20,000 and a maximum of $4,134 costs. | ||
55A. | In respect of the estates of persons who die on or after 31 December 1981, costs of and incident to the obtaining for the first time of probate or administration or of resealing of probate or letters of administration and costs of and incident to the disclosure of assets and liabilities under section 81A (1) and (2) of the Wills, Probate and Administration Act 1898 and the uplifting of documents issued under section 91 (2) of that Act shall be allowed in accordance with the scale below— | |
Disclosed value of assets $ | Costs allowed $ | |
not exceeding 7,500 | 250 | |
exceeding 7,500 but not exceeding 15,000 | 375 | |
exceeding 15,000 but not exceeding 25,000 | 435 | |
exceeding 25,000 but not exceeding 40,000 | 500 | |
exceeding 40,000 but not exceeding 55,000 | 565 | |
exceeding 55,000 but not exceeding 70,000 | 630 | |
exceeding 70,000 but not exceeding 85,000 | 695 | |
exceeding 85,000 but not exceeding 100,000 | 760 | |
exceeding 100,000 but not exceeding 125,000 | 855 | |
exceeding 125,000 but not exceeding 150,000 | 950 | |
exceeding 150,000 but not exceeding 175,000 | 1,045 | |
exceeding 175,000 but not exceeding 200,000 | 1,140 | |
exceeding 200,000 but not exceeding 250,000 | 1,300 | |
exceeding 250,000 but not exceeding 300,000 | 1,460 | |
exceeding 300,000 but not exceeding 400,000 | 1,680 | |
exceeding 400,000 but not exceeding 500,000 | 1,900 | |
exceeding 500,000 | 2,100 | |
56. | In respect of proceedings commenced after 23 December 1977, costs of and incident to the obtaining of any grant or resealing after the first up to and including the uplifting of the probate or letters of administration so granted or resealed shall be allowed in accordance with the scale below. | |
Value of the assets remaining to be administered at the time of application for the grant | Costs allowed $ | |
not exceeding $1,000 | 80 | |
exceeding $1,000 but not exceeding $2,000 | 100 | |
exceeding $2,000 but not exceeding $4,000 | 120 | |
exceeding $4,000 but not exceeding $6,000 | 155 | |
exceeding $6,000 but not exceeding $8,000 | 170 | |
exceeding $8,000 but not exceeding $10,000 | 190 | |
exceeding $10,000 but not exceeding $12,000 | 215 | |
exceeding $12,000 but not exceeding $14,000 | 235 | |
exceeding $14,000 but not exceeding $16,000 | 250 | |
exceeding $16,000 but not exceeding $18,000 | 270 | |
exceeding $18,000 but not exceeding $20,000 | 295 | |
and thereafter at the rate of $4 for each $2,000 in excess of $20,000 and a maximum of $1,255 costs. | ||
Table 6
Miscellaneous
57– 58A. | (Repealed) |
58. | The prescribed amount under Part 52 rule 69 (1) (adoption application) shall be $460 plus disbursements (including counsel’s fees and registration fees, if any). |
59. | The prescribed amount under Part 52 rule 70 (obtaining certificate of judgment) shall be $264. |
60, 61. | (Repealed) |
sch G: Ins 7.7.1972.
sch G, tbl 1: Ins 7.7.1972. Am 11.1.1974; 1.8.1975; 23.7.1976; 23.9.1977; 21.10.1977; 21.12.1979; 24.10.1980; 16.4.1982; 30.6.1982; 22.10.1982; 19.8.1983; 23.12.1983; 26.9.1986; 20.10.1989.
sch G, tbl 2: Ins 7.7.1972. Am 28.9.1973; 21.12.1973. Subst 11.1.1974. Am 1.8.1975; 5.12.1975; 17.12.1976; 23.9.1977; 28.4.1978. Subst 24.10.1980; 16.4.1982. Am 13.5.1983; 23.12.1983.
sch G, tbl 3: Ins 7.7.1972. Am 22.3.1974; 1.8.1975; 23.9.1977; 24.10.1980; 24.7.1981; 16.4.1982; 23.12.1983.
sch G, tbl 4: Ins 7.7.1972. Am 6.9.1974; 23.9.1977; 24.10.1980; 16.4.1982; 23.12.1983.
sch G, tbl 5: Ins 7.7.1972. Subst 22.3.1974; 23.12.1977. Am 16.4.1982.
sch G, tbl 6: Ins 7.7.1972. Am 5.10.1973; 22.3.1974; 6.9.1974; 1.8.1975; 5.12.1975; 26.3.1976; 23.9.1977; 30.5.1980; 24.10.1980; 16.4.1982; 23.12.1983; 29.6.1984; 27.6.1986 (see erratum 18.7.1986); 20.3.1987; 2.12.1988; 20.10.1989; 6.3.1992.
sch G1: Ins 6.3.1992 (see errata 7.8.1992). Am 26.2.1993. Subst 23.2.2001. Am 26.3.2004.
Schedule G1
(P 37, rr 3A (1) (b), 7A (4)
P 46, r 6 (2) (a)
P 77, r 102)
$ | ||
2 | Amount prescribed under Part 36 rule 13BC (2) (medical expert producing photocopies) | 36.00 |
3 | Amount prescribed under Part 46 rule 6 (2) (a) (costs of garnishee) | 25.00 |
5 | Fees prescribed under Part 77 rule 102 (fees chargeable by a person authorised under section 27 (2) of the Oaths Act 1900): | |
(a) for each oath | 4.00 | |
(b) or, if not at the office of the person so authorised | 4.90 | |
(c) or, if more than 5 kilometres from the office of the person so authorised, in addition to travelling expenses | 18.90 | |
(d) for marking any annexure or exhibit | 1.60 | |
(e) for attesting any document | 4.00 | |
6 | Amount prescribed under Part 36 rule 13BA (1) | 214.00 |
The above items include a GST component and section 6 of the Intergovernmental Agreement Implementation (GST) Act 2000 does not apply to them.
Schedule H Administrative Law List
Part 1 Proceedings under Acts and Commonwealth Acts
Column 1 | Column 2 | |
Act | Section (unless otherwise stated) | Description |
118 | Reference. | |
119 | Appeal. | |
34 (3) | Enforcing order. | |
34 | Amending assessment and order for sale. | |
Part 6 Division 2 | Appeals. | |
Part 8 Division 2 | Applications. | |
Part 6 Division 2 | Appeals. | |
Part 8 Division 2 | Applications. | |
19 | Cancellation of business name. | |
33 | Order compliance or punish failure to comply. | |
34 | Granting, rescinding or varying injunction. | |
155 | Appeal. | |
9 | Registration of company auditor. | |
166B | Retirement of auditor. | |
32 | Registration of credit union. | |
34 A (5) | Refusal to issue certificate. | |
19 (2) | Appeal. | |
19 (3) | Order directing a magistrate or a local land board to perform functions. | |
39 (1) | Appeal from Local Court. | |
75 (9) | Punishment of contempt. | |
58A (1) | Application concerning restricted document. | |
Part 6 | Decisions of Registrar. | |
All provisions | ||
Judiciary Act 1903 | 39B (1B) (b) | Mandamus, prohibition, injunction. |
39B (1C) (d) | Mandamus, prohibition, injunction. | |
64 | Appeal from Supervisor. | |
330 | Appeal from Administrative Decisions Tribunal. | |
485 | Appeal from Pecuniary Interest Tribunal. | |
325 | Case stated by warden. | |
38 (2) | Rescinding sale. | |
38 (3B) (a) | Appeals from Courts. | |
Part 5A | Administration. | |
National Crime Authority Act 1984 (Commonwealth) | 32, 32A | Review of decision. |
21 | Review of decision. | |
National Electricity Law | 46 | Appeal. |
48 | Referral of question of law. | |
82 | Appeal against decision or determination of a warden on a question of law. | |
21A, 35A, 35B | Injunctions, immunity and jurisdiction. | |
Petroleum (Submerged Lands) Act 1981 | 8 | Determination of proportions. |
73 | Cost of compliance with direction. | |
33 | Licence for Pipeline. | |
52 | Entries in register. | |
All provisions | — | |
Racial Discrimination Act 1975 (Commonwealth) | 24 | Action for statutory remedies. |
11 | Enforcing order of Commission. | |
18B | Punishment of contempt. | |
11B | Review of decision. | |
54 | Question referred. | |
19 | Review of decision. | |
25 | Prohibition of public assembly. | |
26 | Authorisation of public assembly. | |
16 | Charges for offences. | |
39 | Appeal. | |
46 | Injunction. | |
44 | Appeal. |
Part 2 General
1
(a) Subject to the rules, proceedings in appeals and applications to the Court in respect of decisions of a public body or a public officer.
(b) Subject to the rules, proceedings for commanding or otherwise requiring the removal into the Court of any matter before a public body or public officer whether for the purpose of quashing or otherwise.
(c) For the purposes of this paragraph, each of the expressions “public body” and “public officer” has the meaning assigned to it by section 53 (3C) of the Act but does not include a Judge or a master, registrar or other officer of the Court.
2
Proceedings under section 70 of the Act (which section relates to ouster of office).
3
(a) Proceedings in appeals and applications to the Court in respect of decisions of a public body or a public officer under any Commonwealth Act.
(b) In this paragraph—public body means a body of persons, whether corporate or unincorporate, constituted by or under a Commonwealth Act and required to perform or performing public duties, but does not include a Court exercising federal jurisdiction.public officer means a person holding or acting in a public office under the Government of the Commonwealth or an office created by or under a Commonwealth Act and required to perform or performing public duties, but does not include an officer of a Court exercising federal jurisdiction, andCourt exercising federal jurisdiction has the meaning which it has in section 26 (c) of the Acts Interpretation Act 1901–1973.
sch H: Ins 24.8.1973.
Schedule I Notaries’ fees
Pt 82, r 21.
Fees chargeable by notary to in relation to instructions received on or after the date of commencement of the Public Notaries Act 1985:1
for notarial acts ordinarily performed:
(1) | affidavit: | |
(a) administering oath to one individual and signing jurat | 24 | |
(b) each other individual at the same time | 8 | |
(c) preparing and completing each exhibit to the affidavit | 6 | |
(2) | witnessing and attesting execution of unsworn document: | |
(a) by one individual | 24 | |
(b) each other individual at the same time | 12 | |
(3) | examining copies for verification: | |
(a) photographic copy, not more than 5 folios | 24 | |
(b) any other copy, not more than 5 folios | 48 | |
(c) each additional folio | 5 | |
(4) | notarial certificate: | |
(a) that a copy of a document is correct | 48 | |
(b) verifying execution of a document: | ||
| 60 | |
| 24 | |
(c) verifying execution of document by a company or corporation with declaration and exhibit | 90 | |
(5) | bill of exchange: | |
(a) noting (including one copy of the note), one demand: | ||
| 73 | |
| 36 per hour (plus travelling expenses) | |
(b) each additional demand | 36 | |
(c) protesting (including one copy of the protest): | ||
(i) at the same time as noting | 48 | |
(ii) later | 97 | |
(6) | ship’s protest: | |
(a) noting | 73 | |
(b) extending | 18 | |
(c) drawing, per folio | 18 | |
(d) engrossing, per folio | 5 | |
(7) | additional copies at the same time | half the above fees; |
(8) | producing Certificate of Appointment to any consular or other official for verification of office as a notary | 60; |
2
Subject to paragraph 1, for notarial acts performed ............... the fees that would be chargeable by a solicitor by virtue of a determination made under section 179 of the Legal Profession Act 1987 (which subsection relates to non-contentious business) if a solicitor were to perform those acts.
sch I: Ins 3.1.1986. Am 22.9.1989.
Schedule J Interest rates
P 7, r 4 (2)
P 29, r 5 (2)
P 40, r 7 (2)
P 49, r 8 (3) (5)
P 76, r 40
Sch E, P 2, para 8A.
Column 1 | Column 2 |
Period | Rate |
the beginning of 1 July 1972 to the end of 31 December 1973 | 5 |
the beginning of 1 January 1974 to the end of 31 December 1980 | 10 |
the beginning of 1 January 1981 to the end of 30 June 1981 | 13.5 |
the beginning of 1 July 1981 to the end of 30 June 1982 | 14.5 |
the beginning of 1 July 1982 to the end of 31 December 1983 | 15.5 |
the beginning of 1 January 1984 to the end of 31 December 1985 | 14.5 |
the beginning of 1 January 1986 to the end of 30 June 1986 | 18.25 |
the beginning of 1 July 1986 to the end of 31 October 1987 | 19.5 |
the beginning of 1 November 1987 to the end of 29 February 1988 | 18 |
the beginning of 1 March 1988 to the end of 28 February 1989 | 15 |
the beginning of 1 March 1989 to the end of 31 August 1989 | 17 |
the beginning of 1 September 1989 to the end of 31 August 1990 | 21 |
the beginning of 1 September 1990 to the end of 28 February 1991 | 19 |
the beginning of 1 March 1991 to the end of 31 August 1991 | 17 |
the beginning of 1 September 1991 to the end of 28 February 1992 | 15 |
the beginning of 29 February 1992 to the end of 31 August 1992 | 13 |
the beginning of 1 September 1992 to the end of 31 August 1993 | 11.25 |
the beginning of 1 September 1993 to the end of 28 February 1995 | 10.5 |
the beginning of 1 March 1995 to the end of 28 February 1997 | 12 |
the beginning of 1 March 1997 to the end of 31 August 1997 | 10.5 |
the beginning of 1 September 1997 to the end of 31 August 1998 | 10 |
the beginning of 1 September 1998 to the end of 29 February 2000 | 9.5 |
the beginning of 1 March 2000 to the end of 31 August 2000 | 10 |
the beginning of 1 September 2000 to the end of 31 August 2001 | 11 |
the beginning of 1 September 2001 to the end of 28 February 2002 | 10 |
after 28 February 2002 | 9 |
sch J: Ins 24.8.1990. Am 15.2.1991; 16.8.1991; 21.2.1992; 21.8.1992; 20.8.1993; 24.2.1995; 21.2.1997; 22.8.1997; 21.8.1998; 25.2.2000; 25.8.2000; 31.8.2001; 1.3.2002.
Schedule K Expert witness code of conduct
P 36, r 13C (1),
P 39, r 2 (1)
Application of code
1This code of conduct applies to any expert engaged to:(a) provide a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or(b) give opinion evidence in proceedings or proposed proceedings.
General Duty to the Court
2An expert witness has an overriding duty to assist the Court impartially on matters relevant to the expert’s area of expertise.3An expert witness’s paramount duty is to the Court and not to the person retaining the expert.4An expert witness is not an advocate for a party.
The Form of Expert Reports
5A report by an expert witness must (in the body of the report or in an annexure) specify:(a) the person’s qualifications as an expert,(b) the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed),(c) reasons for each opinion expressed,(d) if applicable—that a particular question or issue falls outside his or her field of expertise,(e) any literature or other materials utilised in support of the opinions, and(f) any examinations, tests or other investigations on which he or she has relied and identify, and give details of the qualifications of, the person who carried them out.6If an expert witness who prepares a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.7If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.8An expert witness who, after communicating an opinion to the party engaging him or her (or that party’s legal representative), changes his or her opinion on a material matter shall forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect which shall contain such of the information referred to in 5 (b), (c), (d), (e) and (f) as is appropriate.9Where an expert witness is appointed by the Court, the preceding paragraph applies as if the Court were the engaging party.
Experts’ Conference
10An expert witness must abide by any direction of the Court to:(a) confer with any other expert witness,(b) endeavour to reach agreement on material matters for expert opinion, and(c) provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement.11An expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement.
sch K: Ins 28.1.2000.