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; 26.11.2004. Rep 2005 (407), Sch 1 [162].
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. Rep 2005 (407), Sch 1 [162].
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.
3–7 (Repealed)
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. Rep 2005 (407), Sch 1 [5].
rule 1.4: Am 2.6.1972. Rep 2005 (407), Sch 1 [5].
rule 1.5: Rep 2005 (407), Sch 1 [5].
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. Rep 2005 (407), Sch 1 [5].
rule 1.7: Rep 2005 (407), Sch 1 [5].
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.associate Judge includes an acting associate Judge, and also includes the Protective Commissioner.barrister has the same meaning as it has in the Legal Profession Act 1987.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).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.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.Mutual Recognition Act means the Mutual Recognition Act 1992 of the Commonwealth.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.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.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.(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), (4) (Repealed)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); 2005 (407), Sch 1 [6]–[8].
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, 9B (Repealed)
rule 1.9A: Ins 23.12.1983. Subst 26.9.1986; 21.4.1989. Am 25.10.1996; 29.11.2002. Rep 2005 (407), Sch 1 [5].
rule 1.9B: Ins 26.9.1986. Am 21.11.1986. Rep 2005 (407), Sch 1 [5].
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, 10A (Repealed)
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. Rep 2005 (407), Sch 1 [5].
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. Rep 2005 (407), Sch 1 [5].
11 Forms
cf Act No 15 of 1987, s 80.
(1) Forms are prescribed in Schedule F.(2) A reference in any such form to a provision of these rules includes a reference to the corresponding provision (if any) of the Uniform Civil Procedure Rules 2005.(3) If a form is approved under section 17 of the Civil Procedure Act 2005 in relation to the same matter as that for which a form is prescribed in Schedule F, the form to be used is the approved form and not the prescribed form.rule 1.11: Am 2.6.1972. Subst 4.9.1987. Am 2005 (407), Sch 1 [9].
11A, 12 (Repealed)
rule 1.11A: Ins 22.4.1988. Rep 2005 (407), Sch 1 [10].
rule 1.12: Am 2.6.1972. Rep 2005 (407), Sch 1 [10].
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.rule 1.13: Am 2.6.1972.
14 (Repealed)
rule 1.14: Rep 2005 (407), Sch 1 [10].
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.
Parts 1B–11
(Repealed)
pt 1B: Ins 11.8.1972. Rep 2005 (407), Sch 1 [11].
pt 1B, div 1: Rep 2005 (407), Sch 1 [11].
rule 1B.1: Ins 11.8.1972. Am 4.5.1973. Rep 2005 (407), Sch 1 [11].
rules 1B.2, 1B.3: Ins 11.8.1972. Rep 2005 (407), Sch 1 [11].
pt 1B, div 2: Rep 2005 (407), Sch 1 [11].
rules 1B.4, 1B.5: Ins 11.8.1972. Rep 2005 (407), Sch 1 [11].
rule 1B.6: Ins 11.8.1972. Am 23.12.1988. Rep 2005 (407), Sch 1 [11].
rule 1B.7: Ins 11.8.1972. Rep 2005 (407), Sch 1 [11].
rule 1B.8: Ins 11.8.1972. Am 26.9.1986. Rep 2005 (407), Sch 1 [11].
pt 1B, div 3: Rep 2005 (407), Sch 1 [11].
rules 1B.9–1B.14: Ins 11.8.1972. Rep 2005 (407), Sch 1 [11].
rule 1B.15: Ins 11.8.1972. Subst 20.10.1972. Rep 2005 (407), Sch 1 [11].
rule 1B.16: Ins 11.8.1972. Rep 2005 (407), Sch 1 [11].
rule 1B.17: Ins 11.8.1972. Am 30.3.1973; 21.11.1986. Rep 2005 (407), Sch 1 [11].
rule 1B.18: Ins 11.8.1972. Rep 2005 (407), Sch 1 [11].
rule 1B.19: Ins 11.8.1972. Rep 23.3.1984.
rules 1B.20, 1B.21: Ins 11.8.1972. Am 30.3.1973. Rep 2005 (407), Sch 1 [11].
rule 1B.22: Ins 11.8.1972. Subst 30.3.1973. Am 26.9.1986. Subst 21.11.1986. Am 20.3.1987. Rep 2005 (407), Sch 1 [11].
rules 1B.23, 1B.24: Ins 11.8.1972. Rep 2005 (407), Sch 1 [11].
pt 1B, div 4 (Rule 1B.25): Ins 28.12.1973. Rep 2005 (407), Sch 1 [11].
pt 1B, div 5 (Rule 1B.26): Ins 1.7.1977. Rep 2005 (407), Sch 1 [11].
pt 1B, div 6 (Rule 1B.27): Ins 21.12.1979. Rep 2005 (407), Sch 1 [11].
pt 2: Rep 2005 (407), Sch 1 [11].
rule 2.1: Rep 2005 (407), Sch 1 [11].
rule 2.2: Am 28.6.1974; 8.10.1982; 14.2.1986; 4.9.1987; 1.3.1996. Rep 2005 (407), Sch 1 [11].
rules 2.3, 2.4: Rep 2005 (407), Sch 1 [11].
rule 2.5: Am 20.12.1974; 28.7.1978; 17.12.1982. Subst 19.6.1987. Am 20.9.1991; 24.9.1999. Rep 2005 (407), Sch 1 [11].
rule 2.6: Am 30.9.1977; 18.12.1987; 24.9.1999; 14.6.2002. Rep 2005 (407), Sch 1 [11].
pt 3: Rep 2005 (407), Sch 1 [11].
rule 3.1: Am 2.6.1972. Subst 28.6.1974. Rep 2005 (407), Sch 1 [11].
rule 3.2: Am 2.6.1972; 15.2.1991; 13.6.2003. Rep 2005 (407), Sch 1 [11].
rule 3.3: Am 2.6.1972. Subst 2.4.1982. Am 26.3.2004. Rep 2005 (407), Sch 1 [11].
rule 3.4: Rep 2005 (407), Sch 1 [11].
pt 4: Rep 2005 (407), Sch 1 [11].
rule 4.1: Rep 2005 (407), Sch 1 [11].
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). Rep 2005 (407), Sch 1 [11].
rules 4.2A, 4.2B: Ins 2.6.1972. Rep 2005 (407), Sch 1 [11].
rule 4.3: Am 2.6.1972; 30.8.1985. Rep 2005 (407), Sch 1 [11].
rule 4.4: Am 20.9.1991. Subst 23.5.1997. Rep 2005 (407), Sch 1 [11].
rule 4.4A: Ins 23.5.1997. Rep 2005 (407), Sch 1 [11].
rule 4.5: Am 24.7.1998. Rep 2005 (407), Sch 1 [11].
pt 5: Rep 2005 (407), Sch 1 [11].
rule 5.1: Subst 13.6.2003. Rep 2005 (407), Sch 1 [11].
rule 5.2: Am 23.5.1980; 23.5.1997. Rep 2005 (407), Sch 1 [11].
rule 5.3: Rep 2.6.1972. Ins 13.6.2003. Rep 2005 (407), Sch 1 [11].
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.
rule 5.5A: Ins 2.6.1972. Rep 2005 (407), Sch 1 [11].
rule 5.5B: Ins 21.9.1979. Am 26.9.1986. Rep 2005 (407), Sch 1 [11].
rule 5.6: Rep 2.6.1972. Ins 6.7.1979. Am 14.11.1980; 13.6.2003. Rep 2005 (407), Sch 1 [11].
rule 5.7: Am 2.6.1972. Subst 23.3.1984. Am 20.4.1990. Rep 2005 (407), Sch 1 [11].
rule 5.8: Am 30.3.1990. Rep 2005 (407), Sch 1 [11].
rule 5.9: Rep 2005 (407), Sch 1 [11].
rule 5.10: Rep 29.3.1974.
rule 5.11: Am 2.6.1972; 26.9.1986; 23.12.1988. Subst 19.5.1989. Rep 2005 (407), Sch 1 [11].
rule 5.12: Am 2.6.1972; 22.7.1977. Subst 25.11.1994. Rep 2005 (407), Sch 1 [11].
rule 5.12, footnote: Ins 25.10.1996. Rep 2005 (407), Sch 1 [11].
pt 6: Subst 29.3.1974. Rep 2005 (407), Sch 1 [11].
pt 6, div 1: Rep 2005 (407), Sch 1 [11].
rule 6.1: Subst 29.3.1974; 29.6.1984. Rep 2005 (407), Sch 1 [11].
rule 6.2: Am 2.6.1972. Subst 29.3.1974. Am 25.8.1995. Rep 2005 (407), Sch 1 [11].
rule 6.3: Am 2.6.1972. Subst 29.3.1974. Am 9.12.1983. Rep 2005 (407), Sch 1 [11].
rule 6.4: Subst 29.3.1974; 23.3.1984; 29.6.1984. Rep 2005 (407), Sch 1 [11].
rule 6.5: Subst 29.3.1974. Am 25.10.1996. Rep 2005 (407), Sch 1 [11].
rule 6.5A: Ins 12.7.1985. Am 14.2.1986. Rep 25.10.1996.
rules 6.6, 6.7: Subst 29.3.1974. Rep 2005 (407), Sch 1 [11].
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). Rep 2005 (407), Sch 1 [11].
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). Rep 2005 (407), Sch 1 [11].
pt 6, div 2: Rep 2005 (407), Sch 1 [11].
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). Rep 2005 (407), Sch 1 [11].
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). Rep 2005 (407), Sch 1 [11].
pt 6, div 3: Rep 2005 (407), Sch 1 [11].
rule 6.12 (previously Rule 6.15): Ins 29.3.1974. Am 25.10.1996. Renumbered 25.10.1996 (see erratum 20.12.1996). Rep 2005 (407), Sch 1 [11].
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). Rep 2005 (407), Sch 1 [11].
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).
pt 7: Rep 2005 (407), Sch 1 [11].
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. Rep 2005 (407), Sch 1 [11].
rule 7.2: Am 20.2.1987; 20.9.1991. Rep 2005 (407), Sch 1 [11].
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. Rep 2005 (407), Sch 1 [11].
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. Rep 2005 (407), Sch 1 [11].
rule 7.5: Subst 2.6.1972. Am 1.11.1985; 23.12.1988; 2.4.1993; 13.6.2003. Rep 2005 (407), Sch 1 [11].
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. Rep 2005 (407), Sch 1 [11].
rule 7.7: Am 15.6.1984; 21.8.1998; 24.12.1998; 19.3.1999. Rep 2005 (407), Sch 1 [11].
rule 7.8: Am 2.6.1972; 21.7.1995; 19.12.1997. Rep 2005 (407), Sch 1 [11].
pt 8: Rep 2005 (407), Sch 1 [11].
rules 8.1–8.4: Rep 2005 (407), Sch 1 [11].
rule 8.5: Am 20.12.1985; 14.2.1986. Rep 2005 (407), Sch 1 [11].
rules 8.6, 8.7: Rep 2005 (407), Sch 1 [11].
rule 8.8: Am 20.10.1989. Rep 2005 (407), Sch 1 [11].
rule 8.9: Am 20.10.1989. Rep 2005 (407), Sch 1 [11].
rule 8.10: Am 20.10.1989. Rep 2005 (407), Sch 1 [11].
rule 8.11: Am 20.10.1989. Rep 2005 (407), Sch 1 [11].
rule 8.12: Rep 2005 (407), Sch 1 [11].
rule 8.13: Am 20.10.1989. Rep 2005 (407), Sch 1 [11].
rule 8.14: Rep 2005 (407), Sch 1 [11].
rule 8.15: Am 20.10.1989. Rep 2005 (407), Sch 1 [11].
rules 8.16, 8.17: Rep 2005 (407), Sch 1 [11].
pt 9: Rep 2005 (407), Sch 1 [11].
rule 9.1: Rep 2005 (407), Sch 1 [11].
rule 9.1A: Ins 2.4.1993. Rep 2005 (407), Sch 1 [11].
rule 9.2: Am 2.6.1972; 23.12.1988. Rep 2005 (407), Sch 1 [11].
rule 9.3: Am 28.6.1974; 23.12.1988. Rep 2005 (407), Sch 1 [11].
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. Rep 2005 (407), Sch 1 [11].
rule 9.4A: Ins 2.6.1972. Rep 2005 (407), Sch 1 [11].
rule 9.5: Rep 2005 (407), Sch 1 [11].
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. Rep 2005 (407), Sch 1 [11].
rule 9.6A: Ins 21.10.1977. Rep 6.7.1979. Ins 2.4.1993. Rep 2005 (407), Sch 1 [11].
rule 9.7: Rep 2005 (407), Sch 1 [11].
rule 9.7A, hdg: Ins 1.8.1975. Subst 29.8.2003. Rep 2005 (407), Sch 1 [11].
rule 9.7A: Ins 1.8.1975. Am 31.5.1985; 21.7.1995; 19.2.1999; 29.8.2003. Rep 2005 (407), Sch 1 [11].
rule 9.7B: Ins 1.8.1975. Am 30.10.1992. Rep 2005 (407), Sch 1 [11].
rule 9.8, headnote: Subst 13.12.1991; 22.3.1996. Rep 2005 (407), Sch 1 [11].
rule 9.8: Am 1.10.1976; 16.8.1991; 20.9.1991. Subst 22.3.1996. Rep 2005 (407), Sch 1 [11].
rules 9.9–9.14: Rep 2005 (407), Sch 1 [11].
rule 9.15: Ins 2.6.1972. Rep 2005 (407), Sch 1 [11].
pt 10: Rep 2005 (407), Sch 1 [11].
pt 10, div 1: Rep 2005 (407), Sch 1 [11].
rule 10.1: Ins 2.4.1993. Rep 2005 (407), Sch 1 [11].
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. Rep 2005 (407), Sch 1 [11].
rule 10.2: Am 23.5.1980; 26.4.1985. Subst 17.6.1988. Rep 2005 (407), Sch 1 [11].
rules 10.2A, 10.2B: Ins 17.6.1988. Rep 2005 (407), Sch 1 [11].
rules 10.3, 10.4: Rep 2005 (407), Sch 1 [11].
rule 10.5: Am 17.6.1988. Rep 2005 (407), Sch 1 [11].
rule 10.6: Am 2.4.1993. Rep 2005 (407), Sch 1 [11].
rule 10.6A: Ins 17.6.1988. Rep 2005 (407), Sch 1 [11].
pt 10, div 2: Rep 2005 (407), Sch 1 [11].
rules 10.7–10.10: Rep 2005 (407), Sch 1 [11].
rules 10.11, 10.12: Am 20.7.1990; 21.7.1995. Rep 2005 (407), Sch 1 [11].
rule 10.13: Rep 2005 (407), Sch 1 [11].
pt 11: Rep 2005 (407), Sch 1 [11].
rule 11.1: Am 20.9.1991. Subst 23.5.1997. Rep 2005 (407), Sch 1 [11].
rule 11.1A: Ins 23.5.1997. Rep 2005 (407), Sch 1 [11].
rule 11.2: Rep 2005 (407), Sch 1 [11].
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. Rep 2005 (407), Sch 1 [11].
rule 11.4: Am 2.6.1972; 20.2.1987; 20.9.1991; 25.10.1991; 22.9.1995. Rep 2005 (407), Sch 1 [11].
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. Rep 2005 (407), Sch 1 [11].
rule 11.6: Am 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [11].
rule 11.7: Am 2.6.1972. Rep 23.12.1988.
rule 11.8: Am 23.12.1988. Rep 2005 (407), Sch 1 [11].
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); 2005 (407), Sch 1 [160] [161].
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.
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; 1.10.2004. Rep 2005 (407), Sch 1 [162].
pt 2, Heading: Ins 24.8.1973. Am 19.2.1999 (see also 25.6.1999); 25.6.1999. Rep 2005 (407), Sch 1 [162].
pt 2: Ins 24.8.1973. Subst 1.8.1975. Rep 2005 (407), Sch 1 [162].
Part 12 Distribution of business
pt 12: Subst 22.8.1975.
pt 12, Heading: Am 2.6.1972. Subst 22.8.1975.
1 Assignment of business to Divisions and Lists
(1) Proceedings in the Court under an Act or instrument referred to in Column 1 of Part 1 or 2 of Schedule I (or, if applicable, under a provision of the Act or instrument referred to in Column 2 of that Part) are assigned:(a) to the Division of the Court referred to in Column 3 of that Part in respect of that Act or instrument, and(b) if applicable, to the List referred to in Column 4 of that Part in respect of that Act or instrument.(2) If satisfied that it is proper to do so, the Court may order that any proceedings be entered in, or removed from, any List, and may give such further directions as to the continuance of the proceedings as it thinks fit.(3) The following proceedings in the Court are assigned to the Common Law Division:(a) proceedings for a debt arising under any Act (including any Commonwealth Act) by which any tax, fee, duty or other impost is collected or administered by or on behalf of the State or the Commonwealth,(b) proceedings on an appeal or application to the Court:(i) in respect of a decision of a public body (other than a court or tribunal) or public officer (other than an officer of a court or tribunal), or(ii) for the removal into the Court of any matter before a public body (other than a court or tribunal) or public officer (other than an officer of a court or tribunal),(c) proceedings on an appeal or application to the Court in respect of:(i) a decision of a public body constituted or established by or under a Commonwealth Act (other than a court exercising federal jurisdiction within the meaning of section 26 of the Acts Interpretation Act 1901 of the Commonwealth), or(ii) a decision of a person holding or acting in a public office under a Commonwealth Act (other than an officer of a court referred to in subparagraph (i)).rule 12.1: Subst 2.6.1972; 22.8.1975. Am 23.3.1984; 26.4.1985. Rep 22.9.1989. Ins 2005 (407), Sch 1 [12].
1A Procedure under particular Acts
The provisions of Schedule J with respect to proceedings under an Act or instrument referred to in that Schedule apply to proceedings in the Court under that Act or instrument.rule 12.1A: Ins 15.12.1972. Am 1.6.1973; 29.3.1974. Rep 22.8.1975. Ins 2005 (407), Sch 1 [12].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.
4–7 (Repealed)
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; 26.11.2004. Rep 2005 (407), Sch 1 [13].
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; 26.11.2004. Rep 2005 (407), Sch 1 [13].
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.
rule 12.7: Ins 20.11.1987. Subst 23.2.1990. Am 21.5.1993; 7.8.1998; 19.2.1999. Subst 22.12.2000. Rep 2005 (407), Sch 1 [13].
Part 13
1–6 (Repealed)
pt 13: Rep 2005 (407), Sch 1 [14].
pt 13, div 1: Rep 2005 (407), Sch 1 [14].
rule 13.1: Rep 2005 (407), Sch 1 [14].
rule 13.2: Am 2.6.1972; 27.4.1984; 30.3.1990. Rep 2005 (407), Sch 1 [14].
rule 13.3: Am 30.3.1990. Rep 2005 (407), Sch 1 [14].
rule 13.4: Rep 2.6.1972.
pt 13, div 2: Rep 2005 (407), Sch 1 [14].
rule 13.5: Rep 2005 (407), Sch 1 [14].
rule 13.5A: Ins 24.12.1999. Rep 2005 (407), Sch 1 [14].
pt 13, div 3: Rep 2005 (407), Sch 1 [14].
rule 13.6: Am 23.3.1984; 30.3.1990. Rep 2005 (407), Sch 1 [14].
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 that are assigned to any Division or List pursuant to Part 12 rule 1 and Schedule I,(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. Am 2005 (407), Sch 1 [15].
2 Exclusion of rules
Rule 31.10 of the Uniform Civil Procedure Rules 2005 does not apply to any proceedings entered, or intended to be entered, in the List.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. Subst 2005 (407), Sch 1 [16].
3 Appeals
Rules 46.4, 46.9, 46.10 and 46.11 of the Uniform Civil Procedure Rules 2005 do 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; 2005 (407), Sch 1 [16].
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
If 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. Am 2005 (407), Sch 1 [17].
6 Entry in the List on commencement of proceedings
Where a plaintiff adds “Commercial List” 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. Am 2005 (407), Sch 1 [18].
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) Rule 36.11 (1) of the Uniform Civil Procedure Rules 2005 does not apply to an order to which subrule (1) or subrule (2) applies.rule 14.10: Ins 7.8.1998. Am 2005 (407), Sch 1 [19].
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 Exclusion of rules
Rule 31.10 of the Uniform Civil Procedure Rules 2005 does not apply to any proceedings entered, or intended to be entered, in the List.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. Subst 2005 (407), Sch 1 [20].
4 Commencement of proceedings
If 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). Am 2005 (407), Sch 1 [21].
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) (Repealed)(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). Am 2005 (407), Sch 1 [22].
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) Rule 36.11 (1) of the Uniform Civil Procedure Rules 2005 does not apply to an order to which subrule (1) applies.rule 14A.7: Ins 31.5.1985. Rep 15.12.1989. Ins 19.10.2001 (see also 26.10.2001). Am 2005 (407), Sch 1 [23].
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.rule 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: 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.rules 14B.1–14B.5: 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,rules 14B.1–14B.5: 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.rules 14B.1–14B.5: 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.rules 14B.1–14B.5: 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.rules 14B.1–14B.5: Ins 24.12.1999.
6 Endorsement of documents
(1) A party must add the words “Possession List” to 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.rule 14B.6: Ins 24.12.1999. Am 2005 (407), Sch 1 [24].
7, 8 (Repealed)
rules 14B.7, 14B.8: Ins 24.12.1999. Rep 2005 (407), Sch 1 [25].
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” in 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. Am 2005 (407), Sch 1 [26].
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.rule 14C.5: Ins 24.12.1998.
6, 7 (Repealed)
rules 14C.6, 14C.7: Ins 24.12.1998. Rep 2005 (407), Sch 1 [27].
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 to the Administrative Law List pursuant to Part 12 rule 1 and Schedule I,(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; 2005 (407), Sch 1 [28].
2 Entry in List
(1) A party to Administrative Law proceedings in the Common Law Division must add the words “Administrative Law List” to 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.rule 14D.2: Ins 25.6.1999. Am 2005 (407), Sch 1 [29].
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.rule 14D.3: Ins 25.6.1999.
Parts 15–47
(Repealed)
pt 15: Rep 2005 (407), Sch 1 [30].
pt 15, div 1: Rep 2005 (407), Sch 1 [30].
rule 15.1: Rep 2005 (407), Sch 1 [30].
rule 15.2: Am 2.6.1972; 23.3.1984. Rep 2005 (407), Sch 1 [30].
pt 15, div 2: Rep 2005 (407), Sch 1 [30].
rule 15.2A: Ins 10.12.1993. Rep 23.10.1998.
rule 15.3: Am 2.6.1972; 15.12.1972; 29.3.1974; 26.9.1986; 23.12.1988; 25.10.1996. Rep 2005 (407), Sch 1 [30].
rule 15.4: Am 3.5.1974; 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [30].
rule 15.5: Am 26.4.1985; 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [30].
pt 15, div 3: Rep 2005 (407), Sch 1 [30].
rules 15.6–15.10: Rep 2005 (407), Sch 1 [30].
rule 15.11: Subst 16.11.1990; 21.7.1995. Rep 2005 (407), Sch 1 [30].
rule 15.12: Am 2.6.1972; 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [30].
rule 15.12A: Ins 30.3.1973. Am 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [30].
rule 15.13: Am 21.9.1979; 8.10.1982. Rep 2005 (407), Sch 1 [30].
rules 15.14–15.18: Rep 2005 (407), Sch 1 [30].
rule 15.19: Rep 2.6.1972.
pt 15, div 4: Rep 2005 (407), Sch 1 [30].
rule 15.20: Rep 2005 (407), Sch 1 [30].
rule 15.21: Am 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [30].
rule 15.22: Am 26.4.1985; 26.9.1986; 23.12.1988 (see erratum 27.1.1989); 19.5.1989. Rep 2005 (407), Sch 1 [30].
pt 15, div 5: Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rule 15.24: Subst 23.6.1989. Am 26.4.1996. Rep 2005 (407), Sch 1 [30].
rule 15.25: Rep 29.6.1984.
rules 15.26, 15.27: Rep 2005 (407), Sch 1 [30].
rule 15.28: Ins 23.5.1980. Am 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [30].
rule 15.29: Ins 26.9.1986 (see errata 19.12.1986, 30.1.1987). Rep 23.12.1988.
pt 15A (Rules 15A.1–15A.4): Ins 28.1.2000. Rep 2005 (407), Sch 1 [30].
pt 16: Rep 2005 (407), Sch 1 [30].
pt 16, div 1, hdg: Ins 20.9.1991. Rep 2005 (407), Sch 1 [30].
rule 16.1: Am 21.12.1979; 8.10.1982; 9.12.1983; 20.4.1990. Rep 2005 (407), Sch 1 [30].
rule 16.1A: Ins 9.12.1983. Am 25.11.1994; 23.2.1996; 19.11.1999. Rep 2005 (407), Sch 1 [30].
rules 16.2–16.4: Rep 2005 (407), Sch 1 [30].
rule 16.5: Am 24.4.1986. Rep 2005 (407), Sch 1 [30].
rule 16.5A: Ins 6.9.1974. Rep 2005 (407), Sch 1 [30].
rule 16.5B: Ins 23.9.1988. Rep 2005 (407), Sch 1 [30].
rule 16.6: Am 26.9.1986; 23.12.1988; 20.4.1990. Rep 2005 (407), Sch 1 [30].
rule 16.7: Am 6.9.1974; 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [30].
pt 16, div 2 (Rule 16.8): Ins 20.9.1991. Rep 2005 (407), Sch 1 [30].
pt 16A (Rules 16A.1–16A.5): Ins 10.12.1993. Rep 21.8.1998.
pt 17: Rep 2005 (407), Sch 1 [30].
rule 17.1: Rep 2005 (407), Sch 1 [30].
rule 17.2: Am 2.6.1972; 20.10.1972; 25.2.1983; 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [30].
rule 17.3: Rep 2005 (407), Sch 1 [30].
rule 17.4: Am 1.8.1975; 8.10.1982; 9.12.1983. Subst 23.12.1994. Am 25.10.1996. Rep 2005 (407), Sch 1 [30].
rules 17.5, 17.6: Rep 2005 (407), Sch 1 [30].
rule 17.7: Subst 4.5.1973. Rep 2005 (407), Sch 1 [30].
rule 17.8: Rep 2005 (407), Sch 1 [30].
rule 17.9: Am 4.5.1973; 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 17.10: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
pt 18: Rep 2005 (407), Sch 1 [30].
rules 18.1, 18.2: Rep 2005 (407), Sch 1 [30].
rule 18.3: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
rules 18.4–18.6: Rep 2005 (407), Sch 1 [30].
pt 19: Rep 2005 (407), Sch 1 [30].
rule 19.1: Am 24.5.1974; 24.2.1995. Rep 2005 (407), Sch 1 [30].
rule 19.2: Am 2.6.1972. Subst 24.2.1995. Rep 2005 (407), Sch 1 [30].
rule 19.3: Rep 2005 (407), Sch 1 [30].
rule 19.4: Am 24.2.1995. Rep 2005 (407), Sch 1 [30].
rule 19.5: Subst 24.2.1995. Rep 2005 (407), Sch 1 [30].
rule 19.6: Rep 2.6.1972.
rules 19.7, 19.8: Am 24.2.1995. Rep 2005 (407), Sch 1 [30].
pt 20: Rep 2005 (407), Sch 1 [30].
rule 20.1: Am 16.3.1990; 24.11.1995; 25.10.1996. Rep 2005 (407), Sch 1 [30].
rule 20.2: Subst 7.5.1982; 19.12.1986. Am 16.3.1990; 15.2.1991; 15.3.1991. Rep 2005 (407), Sch 1 [30].
rule 20.2A: Ins 7.5.1982. Am 26.9.1986 (see erratum 30.1.1987); 23.12.1988. Rep 2005 (407), Sch 1 [30].
rule 20.3: Am 7.5.1982; 19.12.1986; 16.3.1990. Rep 2005 (407), Sch 1 [30].
rule 20.4: Am 20.10.1972; 5.12.1975; 27.4.1984; 20.10.1989; 25.10.1996. Rep 2005 (407), Sch 1 [30].
rule 20.5: Am 20.10.1989; 16.3.1990. Rep 2005 (407), Sch 1 [30].
rule 20.6: Rep 2005 (407), Sch 1 [30].
rule 20.7: Am 26.9.1986; 20.10.1989; 25.10.1996. Rep 2005 (407), Sch 1 [30].
rule 20.8: Am 20.10.1989. Rep 2005 (407), Sch 1 [30].
rule 20.9: Am 26.8.1988. Rep 2005 (407), Sch 1 [30].
rule 20.10: Am 2.6.1972; 25.10.1996. Rep 2005 (407), Sch 1 [30].
pt 21: Rep 2005 (407), Sch 1 [30].
rule 21.1: Rep 2005 (407), Sch 1 [30].
rule 21.2: Am 2.6.1972. Subst 20.12.1974; 12.7.1985. Am 16.3.1990. Rep 2005 (407), Sch 1 [30].
rule 21.3: Rep 2005 (407), Sch 1 [30].
rule 21.4: Rep 25.10.1996.
rule 21.5: Am 2.4.1993; 25.10.1996. Rep 2005 (407), Sch 1 [30].
rule 21.6: Am 25.10.1996. Rep 2005 (407), Sch 1 [30].
rule 21.7: Am 12.7.1985; 25.10.1996. Rep 2005 (407), Sch 1 [30].
rule 21.8: Rep 2005 (407), Sch 1 [30].
pt 22: Subst 23.6.1989. Rep 2005 (407), Sch 1 [30].
pt 22, Heading: Am 31.8.1984. Subst 23.6.1989. Rep 2005 (407), Sch 1 [30].
pt 22, div 1, hdg: Ins 10.12.1993. Rep 2005 (407), Sch 1 [30].
rule 22.1: Ins 10.12.1993. Am 24.6.1994. Rep 2005 (407), Sch 1 [30].
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). Rep 2005 (407), Sch 1 [30].
rule 22.2: Am 21.12.1979; 31.8.1984. Subst 23.6.1989. Am 19.4.1991. Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rule 22.4: Subst 23.6.1989; 14.12.1990. Rep 2005 (407), Sch 1 [30].
rule 22.5: Am 31.8.1984. Subst 23.6.1989. Am 22.9.1989; 14.12.1990. Rep 2005 (407), Sch 1 [30].
rule 22.6: Subst 23.6.1989. Am 10.12.1993. Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rule 22.8: Am 31.8.1984. Subst 23.6.1989. Am 14.12.1990; 25.10.1996. Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
pt 22, div 2, hdg: Ins 10.12.1993. Rep 2005 (407), Sch 1 [30].
rules 22.10, 22.11: Rep 23.6.1989. Ins 10.12.1993. Rep 2005 (407), Sch 1 [30].
pt 22, div 3, hdg: Ins 25.10.1996. Rep 2005 (407), Sch 1 [30].
rule 22.12, headnote: Subst 31.8.1984. Rep 23.6.1989. Ins 25.10.1996. Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
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.
pt 23: Subst 19.7.1996. Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rule 23.2: Am 26.9.1986. Subst 19.7.1996. Rep 2005 (407), Sch 1 [30].
rule 23.3: Subst 19.7.1996. Rep 2005 (407), Sch 1 [30].
rule 23.4: Am 26.9.1986; 23.12.1988. Subst 19.7.1996. Am 23.5.1997. Rep 2005 (407), Sch 1 [30].
rule 23.5: Am 9.12.1983; 26.9.1986. Subst 19.7.1996. Rep 2005 (407), Sch 1 [30].
rule 23.6: Am 20.9.1991. Subst 19.7.1996. Rep 2005 (407), Sch 1 [30].
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.
pt 24: Rep 2005 (407), Sch 1 [30].
rule 24.1: Am 2.6.1972; 23.3.1984; 26.9.1986; 20.11.1987; 24.5.1991. Rep 2005 (407), Sch 1 [30].
rule 24.2: Am 26.9.1986. Rep 2005 (407), Sch 1 [30].
rule 24.3: Rep 2005 (407), Sch 1 [30].
rule 24.4: Am 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [30].
rule 24.5: Am 26.9.1986 (see erratum 30.1.1987). Rep 2005 (407), Sch 1 [30].
rule 24.6: Am 23.8.1996; 27.8.1999; 19.11.1999. Rep 2005 (407), Sch 1 [30].
rule 24.7: Am 25.2.1983; 26.9.1986; 24.2.1989. Rep 2005 (407), Sch 1 [30].
rule 24.8: Rep 2005 (407), Sch 1 [30].
rule 24.9: Am 21.10.1977; 26.9.1986; 20.10.1989; 16.3.1990; 30.3.1990; 20.9.1991. Rep 2005 (407), Sch 1 [30].
rule 24.10: Rep 2005 (407), Sch 1 [30].
rule 24.11: Rep 23.8.1996.
pt 25: Rep 2005 (407), Sch 1 [30].
pt 25, div 1: Rep 2005 (407), Sch 1 [30].
rules 25.1–25.3: Am 26.9.1986. Rep 2005 (407), Sch 1 [30].
rule 25.4: Rep 2005 (407), Sch 1 [30].
rules 25.5, 25.6: Am 26.9.1986. Rep 2005 (407), Sch 1 [30].
rule 25.7: Am 2.6.1972; 29.8.1980. Rep 26.9.1986.
pt 25: Ins 26.9.1986. Am 24.7.1992. Rep 2005 (407), Sch 1 [30].
pt 25.div 1A (Rules 25.7A, 25.7B): Ins 26.9.1986. Am 24.7.1992. Rep 2005 (407), Sch 1 [30].
pt 25, div 2: Rep 2005 (407), Sch 1 [30].
rule 25.8: Am 25.8.1995; 27.8.1999. Rep 2005 (407), Sch 1 [30].
rule 25.9: Rep 25.8.1995.
pt 25, div 3: Rep 2005 (407), Sch 1 [30].
rule 25.10: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
pt 26: Subst 23.3.1984. Rep 2005 (407), Sch 1 [30].
rule 26.1: Am 21.4.1978. Subst 23.3.1984. Am 21.9.1984; 24.4.1986. Rep 2005 (407), Sch 1 [30].
rule 26.2: Am 21.4.1978. Subst 23.3.1984. Rep 2005 (407), Sch 1 [30].
rule 26.3: Rep 23.3.1984. Ins 28.1.2000. Rep 2005 (407), Sch 1 [30].
rules 26.4–26.8: Rep 23.3.1984.
pt 27: Rep 2005 (407), Sch 1 [30].
pt 27, Heading: Am 12.9.1986; 19.5.1989. Rep 2005 (407), Sch 1 [30].
rule 27.1: Am 23.5.1980; 25.7.1986; 24.10.1986. Subst 19.5.1989. Am 21.7.1995. Rep 2005 (407), Sch 1 [30].
rule 27.1A: Ins 12.9.1986. Subst 19.5.1989. Rep 2005 (407), Sch 1 [30].
rule 27.1B: Ins 19.5.1989. Am 25.10.1996; 19.2.1999. Rep 2005 (407), Sch 1 [30].
rules 27.1C, 27.1D: Ins 19.5.1989. Rep 2005 (407), Sch 1 [30].
rule 27.2: Am 12.9.1986; 19.5.1989; 23.12.1994. Rep 2005 (407), Sch 1 [30].
rule 27.2A: Ins 12.9.1986. Rep 2005 (407), Sch 1 [30].
rule 27.2B: Ins 21.11.1986. Am 19.5.1989. Rep 2005 (407), Sch 1 [30].
rule 27.3: Am 23.5.1980; 12.9.1986; 19.5.1989. Rep 2005 (407), Sch 1 [30].
rules 27.4, 27.5: Am 2.6.1972. Rep 2005 (407), Sch 1 [30].
rule 27.6: Subst 23.5.1980. Am 19.5.1989. Rep 2005 (407), Sch 1 [30].
rule 27.7: Am 23.5.1980; 19.5.1989. Rep 2005 (407), Sch 1 [30].
rule 27.8: Am 19.5.1989. Rep 2005 (407), Sch 1 [30].
rule 27.8A: Ins 19.5.1989. Rep 2005 (407), Sch 1 [30].
rule 27.9: Am 23.5.1980; 19.5.1989. Rep 2005 (407), Sch 1 [30].
rule 27.10: Rep 2005 (407), Sch 1 [30].
rule 27.11: Am 23.5.1980. Rep 2005 (407), Sch 1 [30].
rule 27.12: Am 12.9.1986. Rep 2005 (407), Sch 1 [30].
rule 27.13: Am 19.12.1986. Rep 2005 (407), Sch 1 [30].
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). Rep 2005 (407), Sch 1 [30].
pt 28: Rep 2005 (407), Sch 1 [30].
rule 28.1: Am 2.6.1972; 18.12.1987; 21.7.1995; 20.6.1997; 25.8.2000. Rep 2005 (407), Sch 1 [30].
rules 28.2–28.6: Rep 2005 (407), Sch 1 [30].
rule 28.7: Subst 23.3.1984; 7.12.1984. Rep 2005 (407), Sch 1 [30].
rule 28.8: Rep 23.3.1984.
rule 28.12A: Ins 2.6.1972. Rep 20.10.1972.
pt 29: Rep 2005 (407), Sch 1 [30].
rules 29.1–29.4: Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rules 29.6, 29.7: Rep 2005 (407), Sch 1 [30].
pt 30 (Rules 30.1–30.5): Rep 2005 (407), Sch 1 [30].
pt 31: Rep 2005 (407), Sch 1 [30].
pt 31, Heading: Subst 22.8.1975. Rep 2005 (407), Sch 1 [30].
pt 31, div 1: Rep 2005 (407), Sch 1 [30].
rules 31.1, 31.2: Rep 2005 (407), Sch 1 [30].
rule 31.3: Rep 22.8.1975.
rule 31.4: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 31.5: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 31.6: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
pt 31, div 2: Rep 2005 (407), Sch 1 [30].
rule 31.7: Ins 22.8.1975. Rep 2005 (407), Sch 1 [30].
pt 32: Rep 2005 (407), Sch 1 [30].
pt 32, div 1: Rep 2005 (407), Sch 1 [30].
rule 32.1: Subst 1.8.1975. Am 19.10.1979. Rep 2005 (407), Sch 1 [30].
rule 32.2: Rep 2005 (407), Sch 1 [30].
rule 32.3: Rep 2.6.1972. Ins 7.9.1973. Rep 17.6.1988.
pt 32, div 2: Rep 2005 (407), Sch 1 [30].
rules 32.4–32.7: Rep 2005 (407), Sch 1 [30].
rule 32.8: Am 26.8.1988; 21.4.1989. Rep 2005 (407), Sch 1 [30].
pt 32, div 3: Ins 1.8.1975. Rep 29.8.2003.
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.
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). Rep 2005 (407), Sch 1 [30].
rule 32.22: Ins 1.8.1975. Subst 30.10.1992. Rep 2005 (407), Sch 1 [30].
rule 32.22A: Ins 16.8.1991. Rep 30.10.1992.
rule 32.23: Ins 1.8.1975. Am 30.10.1992; 27.11.1992. Rep 2005 (407), Sch 1 [30].
rule 32.24: Ins 1.8.1975. Subst 30.10.1992. Rep 2005 (407), Sch 1 [30].
rules 32.25, 32.26: Ins 1.8.1975. Am 30.10.1992. Rep 2005 (407), Sch 1 [30].
rule 32.27: Ins 1.8.1975. Rep 2005 (407), Sch 1 [30].
rule 32.27A, headnote: Am 30.10.1992. Rep 2005 (407), Sch 1 [30].
rule 32.27A: Ins 21.9.1979. Am 30.10.1992. Rep 2005 (407), Sch 1 [30].
rules 32.28, 32.29: Ins 1.8.1975. Rep 2005 (407), Sch 1 [30].
rule 32.30: Ins 1.8.1975. Am 21.9.1979 (see erratum 12.10.1979). Rep 2005 (407), Sch 1 [30].
rule 32.31: Ins 1.8.1975. Am 30.10.1992. Rep 2005 (407), Sch 1 [30].
rule 32.32: Ins 1.8.1975. Am 21.9.1979. Rep 2005 (407), Sch 1 [30].
rule 32.33: Ins 1.8.1975. Am 30.10.1992; 19.2.1999. Rep 2005 (407), Sch 1 [30].
rules 32.34, 32.35: Ins 1.8.1975. Rep 2005 (407), Sch 1 [30].
rule 32.35, footnote: Am 30.10.1992. Rep 2005 (407), Sch 1 [30].
pt 32, div 5 (Rules 32.36–32.39): Ins 26.3.1976. Rep 24.11.1978.
pt 32A: Ins 21.8.1998. Rep 2005 (407), Sch 1 [30].
pt 32A, Heading: Ins 21.8.1998. Am 23.10.1998. Rep 2005 (407), Sch 1 [30].
rule 32A.1: Ins 21.8.1998. Am 23.10.1998. Rep 2005 (407), Sch 1 [30].
rule 32A.2: Ins 21.8.1998. Am 28.11.2003. Rep 2005 (407), Sch 1 [30].
rule 32A.3: Ins 21.8.1998. Rep 2005 (407), Sch 1 [30].
pt 33: Rep 2005 (407), Sch 1 [30].
rules 33.1, 33.2: Rep 2005 (407), Sch 1 [30].
rule 33.3: Am 28.4.1995. Rep 2005 (407), Sch 1 [30].
rule 33.4: Rep 2005 (407), Sch 1 [30].
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). Rep 2005 (407), Sch 1 [30].
rule 33.6: Am 22.7.1977; 25.11.1994. Rep 2005 (407), Sch 1 [30].
rule 33.7: Rep 23.3.1984.
rule 33.8: Am 30.3.1973; 22.12.1989. Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rule 33.8B: Ins 20.4.1990. Rep 2005 (407), Sch 1 [30].
rule 33.9: Am 30.3.1973. Rep 2005 (407), Sch 1 [30].
pt 34: Rep 2005 (407), Sch 1 [30].
rules 34.1, 34.2: Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rules 34.4–34.6: Rep 2005 (407), Sch 1 [30].
rule 34.6AA: Ins 28.1.2000 (see also 25.2.2000). Rep 2005 (407), Sch 1 [30].
rule 34.6A: Ins 12.7.1985. Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rule 34.8: Am 2.6.1972. Subst 23.7.1976. Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 34.8A, headnote: Ins 25.10.1991. Rep 2005 (407), Sch 1 [30].
rule 34.8A: Ins 20.4.1990. Rep 2005 (407), Sch 1 [30].
rule 34.9: Rep 2005 (407), Sch 1 [30].
rule 34.10: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
pt 35 (Rules 35.1–35.3): Rep 2005 (407), Sch 1 [30].
pt 36: Rep 2005 (407), Sch 1 [30].
rule 36.1: Am 24.4.1986; 21.11.1986. Rep 2005 (407), Sch 1 [30].
rule 36.2: Am 9.12.1983; 27.3.1992; 25.8.1995; 27.8.1999. Rep 2005 (407), Sch 1 [30].
rule 36.2A: Ins 25.7.1997 (see errata 8.8.1997 and 22.8.1997). Rep 2005 (407), Sch 1 [30].
rule 36.3: Rep 2005 (407), Sch 1 [30].
rule 36.4: Am 17.11.1989. Rep 2005 (407), Sch 1 [30].
rule 36.4A: Ins 25.8.1989. Am 22.9.1989; 27.3.1992. Rep 2005 (407), Sch 1 [30].
rule 36.5: Rep 2005 (407), Sch 1 [30].
rule 36.6: Am 2.6.1972; 12.9.1986. Subst 19.5.1989. Am 17.11.1989; 28.4.1995; 21.7.1995. Rep 2005 (407), Sch 1 [30].
rule 36.6B: Ins 28.4.1995. Am 25.10.1996. Rep 2005 (407), Sch 1 [30].
rule 36.7: Am 14.2.1986; 21.3.1986; 20.2.1987. Rep 2005 (407), Sch 1 [30].
rule 36.8: Rep 2005 (407), Sch 1 [30].
rule 36.9: Am 14.2.1986; 20.2.1987. Rep 2005 (407), Sch 1 [30].
rule 36.10: Rep 2005 (407), Sch 1 [30].
rule 36.10A: Ins 19.7.1985. Am 16.8.1991; 20.10.2000. Rep 2005 (407), Sch 1 [30].
rule 36.10B: Ins 20.10.2000. Rep 2005 (407), Sch 1 [30].
rule 36.11: Rep 2005 (407), Sch 1 [30].
rule 36.12: Am 2.4.1982; 22.11.1985; 25.10.1991. Rep 2005 (407), Sch 1 [30].
rule 36.12A: Ins 20.10.1972. Rep 2005 (407), Sch 1 [30].
rule 36.13: Am 22.11.1985; 21.6.1991. Subst 27.8.1999. Am 19.11.1999. Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rule 36.13BA: Ins 26.3.2004. Am 28.5.2004. Rep 2005 (407), Sch 1 [30].
rules 36.13BB, 36.13BC: Ins 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 36.13C: Ins 13.12.1991. Am 25.6.1993. Subst 28.1.2000. Rep 2005 (407), Sch 1 [30].
rule 36.13CA: Ins 28.1.2000. Am 1.6.2001; 27.7.2001. Rep 2005 (407), Sch 1 [30].
rule 36.13D: Ins 25.8.1995. Am 22.9.1995; 27.8.1999. Rep 2005 (407), Sch 1 [30].
rule 36.13E: Ins 19.7.1996. Rep 2005 (407), Sch 1 [30].
rule 36.14, headnote: Am 21.2.1997. Rep 2005 (407), Sch 1 [30].
rule 36.14: Rep 2005 (407), Sch 1 [30].
rule 36.15, headnote: Am 21.2.1997. Rep 2005 (407), Sch 1 [30].
rule 36.15: Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
pt 36A (Rules 36A.1–36A.8): Ins 1.3.1996. Rep 2005 (407), Sch 1 [30].
pt 37: Subst 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 37.1: Am 2.6.1972; 6.7.1979; 2.4.1982. Subst 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 37.2: Am 2.6.1972; 2.4.1982; 23.9.1988. Subst 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 37.3: Am 2.6.1972; 2.4.1982. Subst 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 37.3A: Ins 17.8.1979. Am 2.4.1982; 20.9.1985; 26.2.1993. Rep 26.3.2004.
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. Rep 2005 (407), Sch 1 [30].
rule 37.5: Am 2.6.1972; 2.4.1982; 25.8.1995. Subst 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 37.6: Am 2.6.1972; 6.7.1979; 2.4.1982; 26.9.1986; 24.10.1986. Subst 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 37.7: Am 17.8.1979; 2.4.1982; 24.2.1989; 10.12.1993; 19.3.1999. Subst 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 37.7A: Ins 17.8.1979. Am 2.4.1982; 20.9.1985; 20.10.1989; 6.3.1992. Rep 26.3.2004.
rule 37.8: Subst 2.4.1982; 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 37.9: Ins 2.4.1982. Subst 26.8.1988. Am 25.8.1995. Subst 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 37.10: Ins 24.12.1982. Subst 26.3.2004. Rep 2005 (407), Sch 1 [30].
rule 37.11: Ins 2.10.1992. Subst 26.3.2004. Rep 2005 (407), Sch 1 [30].
rules 37.12, 37.13: Ins 26.3.2004. Rep 2005 (407), Sch 1 [30].
pt 38: Rep 2005 (407), Sch 1 [30].
rule 38.1: Rep 2005 (407), Sch 1 [30].
rule 38.2: Am 2.6.1972; 22.9.1989; 21.2.1997; 20.2.1998. Rep 2005 (407), Sch 1 [30].
rule 38.3: Am 26.9.1986. Rep 2005 (407), Sch 1 [30].
rule 38.4: Subst 25.10.1996. Rep 2005 (407), Sch 1 [30].
rule 38.4A: Ins 8.7.1983. Rep 24.9.1993.
rule 38.5: Subst 26.9.1986. Rep 2005 (407), Sch 1 [30].
rule 38.6: Rep 14.2.1986. Ins 26.9.1986. Am 21.4.1989. Subst 21.10.1994. Rep 2005 (407), Sch 1 [30].
rule 38.7: Subst 2.6.1972. Am 14.2.1986; 27.11.1992. Rep 2005 (407), Sch 1 [30].
rule 38.7A: Ins 22.4.1994. Rep 2005 (407), Sch 1 [30].
rule 38.8: Rep 2005 (407), Sch 1 [30].
rule 38.9: Am 26.9.1986; 24.10.1986. Rep 2005 (407), Sch 1 [30].
pt 39: Subst 28.1.2000. Rep 2005 (407), Sch 1 [30].
pt 39, div 1: Rep 2005 (407), Sch 1 [30].
rule 39.1: Subst 28.1.2000. Rep 2005 (407), Sch 1 [30].
rule 39.2: Am 22.11.1985. Subst 28.1.2000. Rep 2005 (407), Sch 1 [30].
rules 39.3–39.5: Subst 28.1.2000. Rep 2005 (407), Sch 1 [30].
rule 39.6: Subst 28.1.2000; 23.5.2003. Rep 2005 (407), Sch 1 [30].
pt 39, div 2: Rep 2005 (407), Sch 1 [30].
rule 39.7: Am 23.10.1998. Subst 28.1.2000. Rep 2005 (407), Sch 1 [30].
pt 40: Rep 2005 (407), Sch 1 [30].
pt 40, Heading: Am 4.5.1973. Rep 2005 (407), Sch 1 [30].
pt 40, div 1: Rep 2005 (407), Sch 1 [30].
rules 40.1, 40.2: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 40.3: Am 9.12.1983; 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 40.4: Subst 12.7.1985. Rep 2005 (407), Sch 1 [30].
rules 40.5, 40.6: Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rule 40.8: Am 25.10.1974; 23.5.1997. Rep 2005 (407), Sch 1 [30].
rule 40.9: Am 2.6.1972; 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 40.10: Am 7.12.1984. Rep 2005 (407), Sch 1 [30].
pt 40, div 2: Ins 4.5.1973. Rep 2005 (407), Sch 1 [30].
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. Rep 2005 (407), Sch 1 [30].
rule 40.12: Ins 23.3.1984. Rep 22.3.1985. Ins 24.6.1994. Subst 23.5.1997. Am 21.8.1998. Rep 2005 (407), Sch 1 [30].
pt 41: Rep 2005 (407), Sch 1 [30].
pt 41, Heading: Am 22.5.1992. Rep 2005 (407), Sch 1 [30].
pt 41, div 1: Rep 30.3.1990.
rule 41.1: Am 24.4.1986. Rep 30.3.1990.
pt 41, div 2: Rep 2005 (407), Sch 1 [30].
rule 41.2: Am 23.6.1972. Rep 30.3.1990.
rule 41.3: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 41.4: Subst 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 41.5: Rep 30.3.1990.
rule 41.6: Rep 2005 (407), Sch 1 [30].
rule 41.7: Am 30.3.1979; 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 41.8: Rep 2005 (407), Sch 1 [30].
pt 41, div 3: Rep 2005 (407), Sch 1 [30].
rule 41.9: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
pt 41, div 4: Rep 2005 (407), Sch 1 [30].
rule 41.10: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 41.11: Am 7.12.1984; 30.3.1990; 21.5.1999. Rep 2005 (407), Sch 1 [30].
rule 41.12: Rep 30.3.1990.
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). Rep 2005 (407), Sch 1 [30].
rule 41.14: Rep 30.3.1990.
pt 41, div 5: Rep 2005 (407), Sch 1 [30].
rule 41.15, headnote: Subst 22.5.1992. Rep 2005 (407), Sch 1 [30].
rule 41.15: Am 2.6.1972; 24.4.2003. Rep 2005 (407), Sch 1 [30].
rule 41.15A: Ins 22.5.1992. Rep 2005 (407), Sch 1 [30].
rule 41.15B (previously Rule 41.15A), headnote: Subst 22.5.1992. Rep 2005 (407), Sch 1 [30].
rule 41.15B (previously Rule 41.15A): Ins 5.10.1973. Am 23.12.1988. Renumbered 22.5.1992. Am 2.10.1992. Rep 2005 (407), Sch 1 [30].
rule 41.16: Rep 2005 (407), Sch 1 [30].
pt 42: Rep 2005 (407), Sch 1 [30].
rule 42.1: Rep 2005 (407), Sch 1 [30].
rule 42.2: Am 19.12.1997. Rep 2005 (407), Sch 1 [30].
rule 42.3: Am 22.8.1975; 19.12.1997. Rep 2005 (407), Sch 1 [30].
rule 42.4: Am 20.10.1972; 4.5.1973; 2.4.1993; 19.12.1997. Rep 2005 (407), Sch 1 [30].
rule 42.5: Am 2.4.1993. Rep 2005 (407), Sch 1 [30].
rule 42.6: Am 12.7.1985; 19.12.1997. Rep 2005 (407), Sch 1 [30].
rule 42.7: Am 2.4.1982. Rep 2005 (407), Sch 1 [30].
rule 42.8: Am 2.6.1972; 12.7.1985; 20.10.1989; 30.3.1990. Rep 2005 (407), Sch 1 [30].
rules 42.9–42.12: Rep 2005 (407), Sch 1 [30].
rule 42.13: Am 28.7.1978. Rep 2005 (407), Sch 1 [30].
pt 43: Rep 2005 (407), Sch 1 [30].
rules 43.1–43.3: Rep 2005 (407), Sch 1 [30].
rule 43.4: Am 2.6.1972. Subst 2.4.1982; 19.2.1988. Rep 2005 (407), Sch 1 [30].
pt 44: Rep 2005 (407), Sch 1 [30].
rules 44.1–44.5: Rep 2005 (407), Sch 1 [30].
rule 44.6: Am 24.6.1994; 21.8.1998. Rep 2005 (407), Sch 1 [30].
rule 44.7: Am 2.6.1972; 2.4.1993; 24.6.1994; 21.8.1998. Rep 2005 (407), Sch 1 [30].
rules 44.8, 44.9: Rep 2005 (407), Sch 1 [30].
rule 44.10: Subst 2.4.1993. Am 24.6.1994; 21.8.1998. Rep 2005 (407), Sch 1 [30].
rule 44.11: Ins 28.5.1982. Am 30.9.1988. Subst 2.4.1993. Rep 2005 (407), Sch 1 [30].
pt 45: Rep 2005 (407), Sch 1 [30].
rules 45.1–45.3: Rep 2005 (407), Sch 1 [30].
rule 45.4: Am 28.5.1982. Rep 2005 (407), Sch 1 [30].
rule 45.5: Rep 2005 (407), Sch 1 [30].
rule 45.6: Subst 30.9.1988. Am 26.2.1993. Rep 2005 (407), Sch 1 [30].
rules 45.7, 45.8: Subst 30.9.1988. Rep 2005 (407), Sch 1 [30].
rules 45.9–45.12: Ins 28.5.1982. Subst 30.9.1988. Rep 2005 (407), Sch 1 [30].
rule 45.13: Ins 28.5.1982. Subst 30.9.1988; 24.7.1992. Rep 2005 (407), Sch 1 [30].
rule 45.14: Ins 28.5.1982. Subst 30.9.1988. Rep 2005 (407), Sch 1 [30].
rule 45.15: Ins 28.5.1982. Subst 30.9.1988. Am 23.2.1990. Rep 2005 (407), Sch 1 [30].
rule 45.16: Ins 28.5.1982. Subst 30.9.1988. Am 2.4.1993; 24.6.1994. Rep 2005 (407), Sch 1 [30].
rule 45.17: Ins 28.5.1982. Subst 30.9.1988. Am 26.2.1993. Rep 2005 (407), Sch 1 [30].
rule 45.18: Ins 28.5.1982. Subst 30.9.1988. Am 23.2.1990. Rep 2005 (407), Sch 1 [30].
rule 45.19: Ins 30.9.1988. Am 2.4.1993; 24.6.1994. Rep 2005 (407), Sch 1 [30].
rules 45.20–45.23: Ins 30.9.1988. Rep 2005 (407), Sch 1 [30].
rule 45.24: Ins 30.9.1988. Am 2.4.1993; 24.6.1994 (see erratum 1.7.1994). Rep 2005 (407), Sch 1 [30].
pt 46: Rep 2005 (407), Sch 1 [30].
rule 46.1: Rep 2005 (407), Sch 1 [30].
rule 46.2: Rep 1.5.1987.
rule 46.3: Am 1.5.1987; 2.4.1993. Rep 2005 (407), Sch 1 [30].
rule 46.4: Rep 2005 (407), Sch 1 [30].
rule 46.5: Am 1.5.1987. Rep 2005 (407), Sch 1 [30].
rule 46.6: Am 6.3.1992. Rep 2005 (407), Sch 1 [30].
rules 46.7, 46.8: Am 2.4.1993. Rep 2005 (407), Sch 1 [30].
rule 46.9: Subst 1.5.1987. Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 46.10: Am 30.3.1990. Rep 2005 (407), Sch 1 [30].
rule 46.10A: Ins 4.4.1975. Subst 1.5.1987. Rep 2005 (407), Sch 1 [30].
rule 46.11: Am 4.4.1975; 1.5.1987. Rep 2005 (407), Sch 1 [30].
rule 46.12: Am 2.4.1993; 24.6.1994. Rep 2005 (407), Sch 1 [30].
pt 47: Rep 2005 (407), Sch 1 [30].
rule 47.1: Rep 2005 (407), Sch 1 [30].
rule 47.1A: Ins 30.3.1973. Rep 2005 (407), Sch 1 [30].
rules 47.2, 47.3: Rep 2005 (407), Sch 1 [30].
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
1–12 (Repealed)
pt 50: Rep 2005 (407), Sch 1 [31].
rule 50.1: Am 21.12.1979. Rep 2005 (407), Sch 1 [31].
rule 50.2: Rep 2005 (407), Sch 1 [31].
rule 50.3: Am 21.12.1979. Rep 2005 (407), Sch 1 [31].
rule 50.4: Rep 2005 (407), Sch 1 [31].
rule 50.5: Am 19.7.1996. Rep 2005 (407), Sch 1 [31].
rule 50.5A: Ins 28.11.2003. Rep 2005 (407), Sch 1 [31].
rule 50.6: Am 25.3.1977; 21.12.1979; 12.7.1985; 23.6.1989. Subst 28.11.2003. Rep 2005 (407), Sch 1 [31].
rule 50.6A: Ins 21.12.1979. Rep 2005 (407), Sch 1 [31].
rule 50.6AA: Ins 28.11.2003. Rep 2005 (407), Sch 1 [31].
rule 50.6B: Ins 21.12.1979. Am 20.2.1987; 28.11.2003. Rep 2005 (407), Sch 1 [31].
rule 50.7: Rep 2005 (407), Sch 1 [31].
rule 50.8: Am 20.10.2000. Rep 2005 (407), Sch 1 [31].
rule 50.9: Rep 2005 (407), Sch 1 [31].
rule 50.10: Am 21.2.1992. Rep 2005 (407), Sch 1 [31].
rules 50.11, 50.12: Rep 2005 (407), Sch 1 [31].
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 28 of the Uniform Civil Procedure Rules 2005 applies, except an appeal to the Court of Appeal from the decision of the Court in a Division in proceedings to which that Part applies, or(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; 2005 (407), Sch 1 [32].
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) (Repealed)rule 51.3: Ins 23.5.1997. Am 20.4.2000; 2005 (407), Sch 1 [33].
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 rule 18.2 (2) of the Uniform Civil Procedure Rules 2005 for an order under rule 25.2, 25.3 or 25.4 of those rules 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. Am 2005 (407), Sch 1 [34].
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 Division 6 of Part 42 of the Uniform Civil Procedure Rules 2005 (which relates to security for costs).rule 51.16: Ins 23.5.1997. Am 2005 (407), Sch 1 [35].
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 (Repealed)
rule 51.38: Ins 23.5.1997. Rep 2005 (407), Sch 1 [36].
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.(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; 2005 (407), Sch 1 [37].
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) 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; 2005 (407), Sch 1 [38].
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 rule 12.8 of the Uniform Civil Procedure Rules 2005, or(b) section 135 of the Civil Procedure Act 2005, 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. Am 2005 (407), Sch 1 [39] [40].
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.
Parts 51AA, 51A
(Repealed)
pt 51AA (previously Part 51): Renumbered 23.5.1997. Rep 2005 (407), Sch 1 [41].
pt 51AA, div 1: Rep 2005 (407), Sch 1 [41].
rule 51AA.1A: Ins 23.5.1997. Rep 2005 (407), Sch 1 [41].
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. Rep 2005 (407), Sch 1 [41].
rule 51AA.2: Am 2.6.1972; 22.3.1996. Rep 2005 (407), Sch 1 [41].
pt 51AA, div 2: Rep 2005 (407), Sch 1 [41].
rule 51AA.3, hdg: Am 25.2.1994. Rep 2005 (407), Sch 1 [41].
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. Rep 2005 (407), Sch 1 [41].
rule 51AA.4: Am 2.6.1972; 28.7.1978; 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.5: Subst 2.6.1972; 3.9.1993. Am 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.5, footnote: Am 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.5A: Ins 2.6.1972. Am 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.5B: Ins 20.12.1974. Rep 2005 (407), Sch 1 [41].
rule 51AA.6, hdg: Subst 16.8.1991. Am 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.6: Am 16.8.1991; 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.7: Subst 2.6.1972. Am 20.12.1974; 25.2.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.8: Am 2.6.1972; 16.8.1991; 3.9.1993; 24.6.1994; 23.12.1994; 22.9.1995. Rep 2005 (407), Sch 1 [41].
rule 51AA.8A: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.8B: Ins 19.8.1994. Am 23.10.1998. Rep 2005 (407), Sch 1 [41].
rule 51AA.9: Am 2.6.1972. Subst 3.9.1993. Am 24.9.1993. Rep 2005 (407), Sch 1 [41].
rule 51AA.10: Am 19.10.1979. Rep 2005 (407), Sch 1 [41].
rule 51AA.11: Am 3.9.1993. Rep 2005 (407), Sch 1 [41].
rule 51AA.12: Am 3.9.1993; 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.13: Am 26.8.1988; 3.9.1993; 25.2.1994; 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.13A: Ins 5.12.1975. Rep 2005 (407), Sch 1 [41].
rule 51AA.13B, hdg: Am 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.13B: Ins 16.8.1991. Am 23.12.1994. Rep 2005 (407), Sch 1 [41].
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. Rep 2005 (407), Sch 1 [41].
rule 51AA.15: Am 22.12.1978; 3.9.1993. Rep 2005 (407), Sch 1 [41].
rule 51AA.16: Am 30.4.1976; 30.3.1990; 23.12.1994; 24.2.1995. Rep 2005 (407), Sch 1 [41].
rule 51AA.17: Subst 2.6.1972; 23.12.1994. Am 25.10.1996. Rep 2005 (407), Sch 1 [41].
rule 51AA.17A: Ins 2.6.1972. Subst 24.7.1992. Am 3.9.1993. Rep 2005 (407), Sch 1 [41].
rule 51AA.18, hdg: Subst 22.9.1995. Rep 2005 (407), Sch 1 [41].
rule 51AA.18: Am 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.18A: Ins 3.9.1993. Rep 2005 (407), Sch 1 [41].
pt 51AA, div 3, hdg: Am 23.12.1994. Rep 2005 (407), Sch 1 [41].
pt 51AA, div 3: Rep 2005 (407), Sch 1 [41].
rule 51AA.18B: Ins 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.19: Am 3.9.1993. Rep 2005 (407), Sch 1 [41].
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. Rep 2005 (407), Sch 1 [41].
rule 51AA.21: Ins 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.22: Am 21.12.1979. Subst 14.12.1990. Am 24.6.1994. Subst 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.23: Subst 14.12.1990. Am 3.9.1993. Subst 23.12.1994. Rep 2005 (407), Sch 1 [41].
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. Rep 2005 (407), Sch 1 [41].
rule 51AA.25: Subst 24.11.1978. Am 14.12.1990. Subst 23.12.1994. Am 24.2.1995. Rep 2005 (407), Sch 1 [41].
pt 51AA, div 3A (rules 25A–25H): Ins 23.12.1994. Rep 2005 (407), Sch 1 [41].
pt 51AA, div 4: Rep 2005 (407), Sch 1 [41].
rule 51AA.26: Subst 24.11.1978 (see erratum 8.12.1978); 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.27: Subst 24.11.1978; 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.28: Subst 24.11.1978. Am 15.2.1991; 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.29: Subst 24.11.1978. Am 15.2.1991. Subst 23.12.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.30: Subst 24.11.1978; 23.12.1994. Rep 2005 (407), Sch 1 [41].
pt 51AA, div 5: Rep 2005 (407), Sch 1 [41].
rule 51AA.31: Am 2.6.1972; 16.1.1981; 25.2.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.32: Subst 2.6.1972. Am 22.8.1975; 19.10.1979; 23.5.1980; 13.6.2003; 29.8.2003. Rep 2005 (407), Sch 1 [41].
rule 51AA.32A: Ins 16.8.1991. Rep 2005 (407), Sch 1 [41].
rule 51AA.32B: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.32C: Ins 24.6.1994. Am 19.8.1994. Rep 2005 (407), Sch 1 [41].
rule 51AA.33: Rep 2005 (407), Sch 1 [41].
rule 51AA.33A: Ins 23.12.1994. Am 24.2.1995. Rep 2005 (407), Sch 1 [41].
rule 51AA.34: Am 2.6.1972. Rep 2005 (407), Sch 1 [41].
rule 51AA.35: Ins 2.6.1972. Am 22.8.1975; 23.5.1980; 16.1.1981. Rep 2005 (407), Sch 1 [41].
rule 51AA.36: Ins 19.7.1996. Am 21.3.1997. Rep 2005 (407), Sch 1 [41].
rule 51AA.37: Ins 24.7.1998. Rep 2005 (407), Sch 1 [41].
pt 51AA, notes: Am 23.12.1994. Rep 2005 (407), Sch 1 [41].
pt 51A: Ins 30.6.1972. Rep 2005 (407), Sch 1 [41].
pt 51A, div 1, hdg: Rep 23.2.1990.
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. Rep 2005 (407), Sch 1 [41].
rule 51A.2: Ins 30.6.1972. Am 25.10.1974; 30.8.1985; 10.12.1993. Rep 2005 (407), Sch 1 [41].
rule 51A.2A: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 51A.3: Ins 30.6.1972. Am 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 51A.4: Ins 30.6.1972. Rep 2005 (407), Sch 1 [41].
rules 51A.5, 51A.6: Ins 30.6.1972. Am 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 51A.6A: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rules 51A.7–51A.11: Ins 30.6.1972. Rep 2005 (407), Sch 1 [41].
rule 51A.11B: Ins 30.8.1985. Rep 24.6.1994.
pt 51A, div 2: Ins 25.10.1974. Rep 23.2.1990.
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. Rep 2005 (407), Sch 1 [41].
rule 51A.13: Ins 25.10.1974. Rep 23.2.1990. Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
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.
Parts 52–53
(Repealed)
pt 52: Rep 2005 (407), Sch 1 [41].
pt 52, div 1: Rep 2005 (407), Sch 1 [41].
rule 52.1: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52.1A (previously rule 1): Am 2.10.1992; 26.2.1993. Renumbered 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52.1B (previously rule 1A): Ins 27.11.1992. Renumbered 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52.2: Rep 2005 (407), Sch 1 [41].
rule 52.3: Rep 24.6.1994.
rule 52.4: Am 25.6.1993; 19.7.2002. Rep 2005 (407), Sch 1 [41].
rule 52.5: Am 19.6.1987. Rep 2005 (407), Sch 1 [41].
rule 52.6: Am 9.12.1983 (see erratum 13.1.1984). Rep 2005 (407), Sch 1 [41].
rule 52.7: Am 4.9.1987. Rep 2005 (407), Sch 1 [41].
rule 52.8: Rep 2005 (407), Sch 1 [41].
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. Rep 2005 (407), Sch 1 [41].
rule 52.9A: Ins 19.6.1987. Rep 2005 (407), Sch 1 [41].
rule 52.10: Am 30.3.1990. Rep 2005 (407), Sch 1 [41].
pt 52, div 2: Rep 2005 (407), Sch 1 [41].
rule 52.11: Rep 2005 (407), Sch 1 [41].
rule 52.11A: Ins 16.8.1991. Subst 13.12.1991 (see erratum 16.10.1992). Am 2.10.1992; 3.9.1993. Rep 2005 (407), Sch 1 [41].
rule 52.11B: Ins 16.8.1991. Rep 2005 (407), Sch 1 [41].
rule 52.11C: Ins 3.9.1993. Rep 2005 (407), Sch 1 [41].
rule 52.12: Am 16.3.1990. Rep 2005 (407), Sch 1 [41].
rule 52.12A: Ins 2.6.1972. Rep 2005 (407), Sch 1 [41].
rule 52.13: Rep 2005 (407), Sch 1 [41].
rule 52.13A: Ins 23.6.1989. Rep 2005 (407), Sch 1 [41].
rules 52.14, 52.15: Subst 27.3.1992. Rep 2005 (407), Sch 1 [41].
rule 52.16: Am 2.4.1993. Rep 2005 (407), Sch 1 [41].
rule 52.17: Am 31.8.1984. Subst 23.6.1989. Am 20.4.1990; 16.11.1990; 14.12.1990; 24.9.1993. Rep 2005 (407), Sch 1 [41].
rule 52.18: Am 12.7.1985. Rep 2005 (407), Sch 1 [41].
rule 52.19: Am 29.3.1974. Subst 23.6.1989. Rep 2005 (407), Sch 1 [41].
rules 52.20, 52.21: Rep 2005 (407), Sch 1 [41].
rule 52.21A: Ins 2.6.1972. Rep 2005 (407), Sch 1 [41].
rule 52.21B: Ins 30.8.1985. Am 10.12.1993. Rep 2005 (407), Sch 1 [41].
rule 52.21C: Ins 30.8.1985. Rep 10.12.1993.
rule 52.21D: Ins 25.8.1989. Am 25.8.1995. Rep 2005 (407), Sch 1 [41].
rule 52.21E: Ins 22.12.1989. Am 15.2.1991; 22.4.1994. Rep 2005 (407), Sch 1 [41].
pt 52, div 3: Rep 2005 (407), Sch 1 [41].
rule 52.22: Rep 2005 (407), Sch 1 [41].
rule 52.23: Am 23.6.1989. Rep 2005 (407), Sch 1 [41].
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. Rep 2005 (407), Sch 1 [41].
rules 52.24A, 52.24B: Ins 20.4.1990. Rep 2005 (407), Sch 1 [41].
rules 52.25–52.27: Rep 2005 (407), Sch 1 [41].
rule 52.28: Am 20.10.1972; 1.6.1973; 29.4.1977; 24.4.1986. Rep 2005 (407), Sch 1 [41].
rule 52.28A: Ins 23.6.1989. Rep 2005 (407), Sch 1 [41].
pt 52, div 4 (Rules 52.29–52.31): Rep 2005 (407), Sch 1 [41].
pt 52, div 5: Rep 2005 (407), Sch 1 [41].
rule 52.32: Am 22.9.1989; 26.2.1993. Rep 2005 (407), Sch 1 [41].
rule 52.33: Rep 2005 (407), Sch 1 [41].
pt 52, div 6: Rep 2005 (407), Sch 1 [41].
rule 52.34: Subst 23.5.1980; 22.4.1983. Rep 2005 (407), Sch 1 [41].
rule 52.35: Rep 23.5.1980.
rules 52.36–52.39: Rep 2005 (407), Sch 1 [41].
rule 52.40: Am 23.6.1989; 2.10.1992; 23.4.1993; 10.12.1993 (see errata 24.12.1993). Rep 2005 (407), Sch 1 [41].
rule 52.41: Am 2.6.1972; 23.12.1977; 30.3.1979. Rep 2005 (407), Sch 1 [41].
pt 52, div 7: Rep 2005 (407), Sch 1 [41].
rule 52.42: Rep 2005 (407), Sch 1 [41].
rule 52.43: Am 22.9.1989; 2.10.1992. Rep 2005 (407), Sch 1 [41].
rule 52.44: Rep 2005 (407), Sch 1 [41].
rules 52.45, 52.46: Am 22.9.1989. Rep 2005 (407), Sch 1 [41].
rule 52.47: Subst 3.5.1974; 26.4.1985. Rep 2005 (407), Sch 1 [41].
rule 52.47A: Ins 20.7.1990. Rep 2005 (407), Sch 1 [41].
rule 52.48: Am 3.5.1974; 30.3.1979; 24.2.1984; 26.4.1985; 22.9.1989; 13.6.2003. Rep 2005 (407), Sch 1 [41].
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. Rep 2005 (407), Sch 1 [41].
rule 52.50: Subst 30.3.1979. Am 23.5.1980; 23.12.1983; 2.10.1992. Rep 2005 (407), Sch 1 [41].
rule 52.50A: Ins 23.12.1983. Am 4.9.1987. Subst 15.3.1991; 2.10.1992. Rep 2005 (407), Sch 1 [41].
rule 52.50B: Ins 23.12.1983. Am 2.10.1992. Rep 2005 (407), Sch 1 [41].
rule 52.51: Am 30.3.1979. Rep 2005 (407), Sch 1 [41].
rules 52.52–52.54: Rep 2005 (407), Sch 1 [41].
rule 52.54A: Ins 9.12.1983. Rep 2005 (407), Sch 1 [41].
rule 52.55: Am 30.3.1979; 24.2.1984. Rep 2005 (407), Sch 1 [41].
rule 52.56: Am 20.9.1991. Rep 2005 (407), Sch 1 [41].
rules 52.57, 52.58: Rep 2005 (407), Sch 1 [41].
rule 52.59: Am 23.5.1980; 23.12.1983; 24.2.1984; 20.9.1991; 25.10.1991; 2.10.1992. Rep 2005 (407), Sch 1 [41].
rule 52.60: Am 2.6.1972; 23.5.1980; 24.2.1984; 2.10.1992. Rep 2005 (407), Sch 1 [41].
rule 52.61: Am 2.10.1992. Rep 2005 (407), Sch 1 [41].
rule 52.62: Am 23.9.1988; 2.10.1992. Rep 2005 (407), Sch 1 [41].
rule 52.63: Am 30.3.1990. Rep 2005 (407), Sch 1 [41].
pt 52, div 8: Rep 2005 (407), Sch 1 [41].
rules 52.64, 52.65: Rep 2005 (407), Sch 1 [41].
rule 52.66: Subst 16.8.1991. Am 20.9.1991. Rep 2005 (407), Sch 1 [41].
rule 52.66A: Ins 16.8.1991. Rep 2005 (407), Sch 1 [41].
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. Rep 2005 (407), Sch 1 [41].
rule 52.68: Ins 7.7.1972. Am 20.9.1991; 26.2.1993. Rep 2005 (407), Sch 1 [41].
rule 52.69: Ins 7.7.1972. Am 20.9.1991; 24.4.2003. Rep 2005 (407), Sch 1 [41].
rule 52.70: Ins 5.10.1973. Am 23.12.1988. Rep 2005 (407), Sch 1 [41].
rule 52.71: Ins 23.7.1976. Am 21.12.1979; 30.6.1982; 25.2.1994. Rep 2005 (407), Sch 1 [41].
pt 52A: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
pt 52A, div 1: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.1: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.2: Ins 24.6.1994. Am 25.11.1994; 21.8.1998. Rep 2005 (407), Sch 1 [41].
rule 52A.3: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.4: Ins 24.6.1994. Am 23.5.1997; 19.7.2002. Rep 2005 (407), Sch 1 [41].
rules 52A.5–52A.8: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
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). Rep 2005 (407), Sch 1 [41].
rule 52A.10: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
pt 52A, div 2: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.11: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.11A: Ins 28.1.2000. Rep 2005 (407), Sch 1 [41].
rule 52A.12: Ins 24.6.1994. Am 23.5.1997. Rep 2005 (407), Sch 1 [41].
rule 52A.13: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.14: Ins 24.6.1994. Am 23.12.1994; 23.5.1997. Rep 2005 (407), Sch 1 [41].
rules 52A.15–52A.17: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.18: Ins 24.6.1994. Am 26.4.1996. Rep 2005 (407), Sch 1 [41].
rules 52A.19, 52A.20: Ins 24.6.1994. Am 28.1.2000. Rep 2005 (407), Sch 1 [41].
rule 52A.21: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.22: Ins 24.6.1994. Am 25.10.1996; 19.11.1999. Rep 2005 (407), Sch 1 [41].
rule 52A.23: Ins 24.6.1994. Am 21.8.1998. Rep 2005 (407), Sch 1 [41].
rule 52A.24: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.25: Ins 24.6.1994. Subst 28.1.2000 (see also 25.2.2000). Rep 2005 (407), Sch 1 [41].
rules 52A.26–52A.28: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.29: Ins 24.6.1994. Am 25.8.1995. Rep 2005 (407), Sch 1 [41].
rule 52A.30: Ins 24.6.1994. Am 22.12.1995; 21.8.1998. Rep 2005 (407), Sch 1 [41].
pt 52A, div 3: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rules 52A.31, 52A.32: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
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. Rep 2005 (407), Sch 1 [41].
rule 52A.34: Ins 24.6.1994. Am 20.8.1999. Rep 2005 (407), Sch 1 [41].
rule 52A.35: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.35A: Ins 28.1.2000. Rep 2005 (407), Sch 1 [41].
rule 52A.36: Ins 24.6.1994. Rep 19.7.1996.
rule 52A.37: Ins 24.6.1994. Subst 23.12.1994. Am 20.6.1997. Rep 2005 (407), Sch 1 [41].
pt 52A, div 4: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.38: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.39: Ins 24.6.1994. Am 19.3.1999. Rep 2005 (407), Sch 1 [41].
rule 52A.40: Ins 24.6.1994. Am 23.5.1997; 25.7.1997; 19.12.1997; 27.7.2001. Rep 2005 (407), Sch 1 [41].
rules 52A.41, 52A.42: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.43: Ins 24.6.1994. Subst 28.1.2000. Rep 2005 (407), Sch 1 [41].
rule 52A.43A: Ins 23.9.1994. Subst 28.1.2000. Rep 2005 (407), Sch 1 [41].
rules 52A.44, 52A.45: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
rule 52A.46, headnote: Ins 24.6.1994. Subst 21.7.1995. Rep 2005 (407), Sch 1 [41].
rule 52A.46: Ins 24.6.1994. Am 21.7.1995; 21.8.1998. Rep 2005 (407), Sch 1 [41].
rules 52A.47–52A.50: Ins 24.6.1994. Rep 2005 (407), Sch 1 [41].
pt 53: Rep 2005 (407), Sch 1 [41].
pt 53, div 1: Rep 2005 (407), Sch 1 [41].
rule 53.1: Rep 2005 (407), Sch 1 [41].
rule 53.2: Am 24.5.1991. Rep 2005 (407), Sch 1 [41].
rule 53.3: Am 25.5.1990. Rep 2005 (407), Sch 1 [41].
rules 53.4, 53.5: Rep 2005 (407), Sch 1 [41].
pt 53, div 2, hdg: Am 25.5.1990. Rep 2005 (407), Sch 1 [41].
pt 53, div 2: Rep 2005 (407), Sch 1 [41].
rule 53.6: Rep 2005 (407), Sch 1 [41].
rule 53.6A: Ins 25.5.1990. Rep 2005 (407), Sch 1 [41].
rules 53.7, 53.8: Rep 2005 (407), Sch 1 [41].
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) (Repealed)rule 54.2: Am 2005 (407), Sch 1 [42].
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
1–14 (Repealed)
pt 56: Rep 2005 (407), Sch 1 [43].
pt 56, div 1 (Rule 56.1): Rep 2005 (407), Sch 1 [43].
pt 56, div 2: Rep 2005 (407), Sch 1 [43].
rules 56.2, 56.3: Rep 2005 (407), Sch 1 [43].
rule 56.4: Am 2.6.1972. Rep 2005 (407), Sch 1 [43].
pt 56, div 3 (Rules 56.5–56.8): Rep 2005 (407), Sch 1 [43].
pt 56, div 4: Rep 2005 (407), Sch 1 [43].
rule 56.9: Am 30.3.1990. Rep 2005 (407), Sch 1 [43].
rule 56.10: Rep 2005 (407), Sch 1 [43].
rule 56.11: Am 30.3.1990. Rep 2005 (407), Sch 1 [43].
rules 56.12, 56.13: Rep 2005 (407), Sch 1 [43].
rule 56.14: Am 30.3.1990. Rep 2005 (407), Sch 1 [43].
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, 57.2: 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, 57.2: 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 rule 10.14 of the Uniform Civil Procedure Rules 2005.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.rule 57.3: Am 1.4.1977; 2005 (407), Sch 1 [44].
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.rule 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 Application of Uniform Civil Procedure Rules 2005
Subject to rules 3, 4, 5 and 6, rules 24.7–24.16 of the Uniform Civil Procedure Rules 2005 apply to an examination pursuant to an order under this Part:(a) as if the matter pending before the requesting court were proceedings in the Court, and(b) as if the order were made under rule 24.3 of those rules in those proceedings, and(c) where a Judge, associate Judge or registrar is appointed under section 33 of the subject Act, as if an order were made under rule 24.3 of those rules for the examination of a person on oath before a Judge, associate Judge or registrar.rule 58.2: Am 23.5.1980; 19.5.1989; 24.11.2000. Subst 2005 (407), Sch 1 [45].
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) The provisions of rule 24.14 (4) and (5) of the Uniform Civil Procedure Rules 2005 do not apply to an examination under this Part.(2) The examiner shall send the deposition and any document which constitutes a recording under rule 24.13 of the Uniform Civil Procedure Rules 2005 (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.rule 58.4: Am 1.4.1977; 19.5.1989; 2005 (407), Sch 1 [46] [47].
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 rule 24.13 of the Uniform Civil Procedure Rules 2005 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.rule 58.5: Am 1.4.1977; 19.5.1989; 2005 (407), Sch 1 [48].
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.
Part 59
1–8 (Repealed)
pt 59: Rep 2005 (407), Sch 1 [49].
pt 59, Heading: Subst 2.10.1992. Rep 2005 (407), Sch 1 [49].
rule 59.1: Am 5.10.1973; 23.12.1988. Rep 2005 (407), Sch 1 [49].
rule 59.1A: Ins 5.10.1973. Am 8.10.1982. Rep 2005 (407), Sch 1 [49].
rule 59.2: Am 5.10.1973; 26.8.1988; 2.10.1992. Rep 2005 (407), Sch 1 [49].
rule 59.3: Am 2.6.1972; 5.10.1973; 2.10.1992. Rep 2005 (407), Sch 1 [49].
rule 59.3A: Ins 5.10.1973. Am 2.10.1992. Rep 2005 (407), Sch 1 [49].
rule 59.4: Am 2.10.1992. Rep 2005 (407), Sch 1 [49].
rule 59.5: Am 5.10.1973; 2.10.1992. Rep 2005 (407), Sch 1 [49].
rule 59.6: Rep 2005 (407), Sch 1 [49].
rule 59.7: Am 2.10.1992. Rep 2005 (407), Sch 1 [49].
rule 59.8: Am 5.10.1973; 2.10.1992. Rep 2005 (407), Sch 1 [49].
Part 59A Foreign Judgments Act 1991 of the Commonwealth
pt 59A: 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).rules 59A.1, 59A.2: 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.rules 59A.1, 59A.2: 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 calculated in accordance with section 6 (11) (b), (11A) and (11B) of the subject Act.rule 59A.3: Ins 2.10.1992. Am 2005 (172), Sch 1.
4 Security for costs
For the purposes of proceedings under the subject Act, the Court may make an order under rule 42.21 of the Uniform Civil Procedure Rules 2005 (which relates to orders to give security for costs) otherwise than on the application of the judgment debtor.rule 59A.4: Ins 2.10.1992. Am 2005 (407), Sch 1 [50].
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.rules 59A.5–59A.8: 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.rules 59A.5–59A.8: 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.rules 59A.5–59A.8: 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).rules 59A.5–59A.8: 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, the judgment creditor may not, except by leave of the Court, take any 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.rule 59A.9: Ins 2.10.1992. Am 2005 (407), Sch 1 [51].
Part 60 Associate Judges
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 associate Judge 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 associate Judge 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) (Repealed)(5) In proceedings commenced before 1 July 1972, an associate Judge may exercise any power formerly exercisable by the Prothonotary.(6) A associate Judge 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; 2005 (407), Sch 1 [52].
2 Distribution of business
Where there are two or more associate Judges in a Division, the distribution of business amongst the associate Judges shall, subject to any direction of the Court, be by direction of the senior associate Judge present.
3 Judgment or order
A associate Judge 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 associate Judge may give a certificate as to any matter arising or decision made in the course of proceedings before him.(2) Where proceedings are before an associate Judge pursuant to a judgment or order, the certificate of the associate Judge shall refer to so much only of the judgment or order as is necessary to show upon what the determination of the associate Judge is founded.cf RSC (Rev) 1965, O 44, r 21 (2).(3) The certificate of an associate Judge shall not refer to documents or evidence except so far as is necessary to show upon what the determination of the associate Judge is founded.cf RSC (Rev) 1965, O 44, r 21 (2).(4) The certificate of an associate Judge shall not, except where necessary, set out the reasons for the determination of the associate Judge.cf RSC (Rev) 1965, O 44, r 21 (2).(5) The certificate of an associate Judge 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 an associate Judge under Part 72 rule 2 (which relates to reference to an arbitrator etc).rule 60.4: Am 22.11.1985.
Divisions 2, 3
5–16 (Repealed)
pt 60, div 2: Rep 2005 (407), Sch 1 [53].
rules 60.5–60.7: Rep 2005 (407), Sch 1 [53].
rule 60.8: Am 7.12.1984. Rep 2005 (407), Sch 1 [53].
pt 60, div 3: Rep 2005 (407), Sch 1 [53].
rule 60.9: Rep 2005 (407), Sch 1 [53].
rule 60.10: Am 23.9.1988; 24.6.1994. Rep 2005 (407), Sch 1 [53].
rule 60.11: Am 2.6.1972; 23.9.1988; 30.3.1990. Rep 2005 (407), Sch 1 [53].
rule 60.12: Am 2.6.1972; 20.10.1972; 19.7.1985. Rep 2005 (407), Sch 1 [53].
rule 60.13: Am 2.6.1972. Rep 2005 (407), Sch 1 [53].
rule 60.14: Am 25.10.1991. Rep 2005 (407), Sch 1 [53].
rule 60.14A: Ins 23.9.1988. Rep 2005 (407), Sch 1 [53].
rule 60.15: Am 2.6.1972. Rep 2005 (407), Sch 1 [53].
rule 60.15A: Ins 23.9.1988. Rep 2005 (407), Sch 1 [53].
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 an associate Judge:(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 associate Judge 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
1–3 (Repealed)
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. Rep 2005 (407), Sch 1 [54].
rule 61.2: Rep 2005 (407), Sch 1 [54].
rules 61.2A, 61.2B: Ins 2.11.1973. Rep 2005 (407), Sch 1 [54].
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. Rep 2005 (407), Sch 1 [54].
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
5 (Repealed)
pt 61, div 2: Ins 30.3.1979. Rep 2005 (407), Sch 1 [55].
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). Rep 2005 (407), Sch 1 [55].
Parts 62–65
(Repealed)
pt 62: Rep 2005 (407), Sch 1 [56].
pt 62, div 1: Rep 2005 (407), Sch 1 [56].
rule 62.1: Rep 2005 (407), Sch 1 [56].
rule 62.2: Am 1.10.1976. Rep 2005 (407), Sch 1 [56].
rule 62.3: Am 28.5.1982. Rep 2005 (407), Sch 1 [56].
rule 62.4: Rep 2005 (407), Sch 1 [56].
rule 62.4A: Ins 28.5.1982. Rep 2005 (407), Sch 1 [56].
pt 62, div 2: Rep 2005 (407), Sch 1 [56].
rules 62.5–62.7: Rep 2005 (407), Sch 1 [56].
rules 62.8, 62.9: Am 24.6.1994. Rep 2005 (407), Sch 1 [56].
rule 62.10: Rep 2005 (407), Sch 1 [56].
pt 63: Rep 2005 (407), Sch 1 [56].
rules 63.1–63.3: Rep 2005 (407), Sch 1 [56].
rule 63.4: Am 2.6.1972; 24.7.1998. Rep 2005 (407), Sch 1 [56].
rule 63.5: Am 28.6.1974; 29.6.1984; 20.9.1991; 10.12.1993; 22.5.1998. Rep 2005 (407), Sch 1 [56].
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). Rep 2005 (407), Sch 1 [56].
rule 63.7: Am 28.6.1974. Rep 2005 (407), Sch 1 [56].
rules 63.8–63.11: Rep 2005 (407), Sch 1 [56].
rule 63.12: Rep 23.6.1989.
rule 63.13: Am 23.3.1984. Rep 2005 (407), Sch 1 [56].
rule 63.14: Rep 2005 (407), Sch 1 [56].
rule 63.15: Am 23.5.1980; 29.6.1984. Rep 2005 (407), Sch 1 [56].
rule 63.16: Ins 22.5.1998. Rep 2005 (407), Sch 1 [56].
pt 64: Rep 2005 (407), Sch 1 [56].
rule 64.1: Subst 21.2.1992. Rep 2005 (407), Sch 1 [56].
rule 64.2: Am 21.2.1992. Rep 2005 (407), Sch 1 [56].
rule 64.3, headnote: Subst 21.2.1992. Rep 2005 (407), Sch 1 [56].
rule 64.3: Am 28.6.1974; 21.2.1992. Rep 2005 (407), Sch 1 [56].
rule 64.3A: Ins 21.2.1992. Rep 2005 (407), Sch 1 [56].
rule 64.4: Rep 2005 (407), Sch 1 [56].
rule 64.5: Am 2.6.1972. Rep 2005 (407), Sch 1 [56].
rules 64.6, 64.7: Rep 2005 (407), Sch 1 [56].
rule 64.8: Am 25.10.1974. Rep 2005 (407), Sch 1 [56].
pt 65: Rep 2005 (407), Sch 1 [56].
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. Rep 2005 (407), Sch 1 [56].
rule 65.1A, hdg: Ins 20.4.2000. Subst 24.11.2000. Am 19.12.2003. Rep 2005 (407), Sch 1 [56].
rule 65.1A: Ins 20.4.2000. Subst 24.11.2000. Am 19.12.2003. Rep 2005 (407), Sch 1 [56].
rule 65.2: Am 25.10.1974; 23.7.1976; 2.4.1982; 24.12.1982; 24.9.1993. Rep 2005 (407), Sch 1 [56].
rule 65.3: Am 2.6.1972; 21.10.1977. Rep 23.12.1977.
rules 65.4–65.6: Rep 2005 (407), Sch 1 [56].
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. Rep 2005 (407), Sch 1 [56].
rule 65.8: Ins 2.6.1972. Am 26.3.1976; 30.4.1976; 26.9.1986. Rep 2005 (407), Sch 1 [56].
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) 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; 2005 (407), Sch 1 [57].
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) Despite rule 31.2 of the Uniform Civil Procedure Rules 2005:(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) (Repealed)(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; 2005 (407), Sch 1 [58] [59].
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 and the Uniform Civil Procedure Rules 2005 shall apply to the proceedings as if the applicant were the plaintiff in the proceedings.rule 65C.7: Ins 21.3.1997. Am 2005 (407), Sch 1 [60].
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.rule 65C.8: 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 7 of the Uniform Civil Procedure Rules 2005.rule 65C.9: Ins 21.3.1997. Am 2005 (407), Sch 1 [61].
10 Evidence
Rule 31.2 of the Uniform Civil Procedure Rules 2005 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.rule 65C.10: Ins 21.3.1997. Am 2005 (407), Sch 1 [62].
Part 66
1–10 (Repealed)
pt 66: Rep 2005 (407), Sch 1 [63].
pt 66, Heading: Am 22.9.1989. Rep 2005 (407), Sch 1 [63].
rule 66.1: Rep 2005 (407), Sch 1 [63].
rule 66.1A: Ins 26.3.2004. Am 28.5.2004. Rep 2005 (407), Sch 1 [63].
rule 66.2: Am 20.9.1991. Rep 2005 (407), Sch 1 [63].
rules 66.3–66.6: Rep 2005 (407), Sch 1 [63].
rule 66.7: Am 20.9.1991. Rep 2005 (407), Sch 1 [63].
rule 66.8: Rep 2005 (407), Sch 1 [63].
rule 66.9: Am 8.7.1983; 21.6.1991; 20.9.1991; 25.10.1996; 28.11.2003. Rep 2005 (407), Sch 1 [63].
rule 66.10: Ins 20.9.1991. Am 28.11.2003. Rep 2005 (407), Sch 1 [63].
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, 11B (Repealed)
rule 67.11A: Ins 21.4.1978. Subst 21.7.2000. Rep 1.11.2002.
rule 67.11B: Ins 21.4.1978. Am 23.3.1984; 21.9.1984; 21.7.2000; 1.11.2002; 30.7.2004. Rep 2005 (407), Sch 1 [64].
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 rule 15.1 of the Uniform Civil Procedure Rules 2005 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. Am 2005 (407), Sch 1 [65].
12A Disputes
(1) A defendant, not less than 7 days before the date fixed for the first directions hearing in the proceedings, 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 date fixed for the first directions hearing in the proceedings, 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. Am 1.10.2004.
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 rule 15.1 of the Uniform Civil Procedure Rules 2005 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 rule 15.1 of the Uniform Civil Procedure Rules 2005 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; 2005 (407), Sch 1 [66].
18 Particulars of defence
(1) The particulars of defence required by rule 15.1 of the Uniform Civil Procedure Rules 2005 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. Am 2005 (407), Sch 1 [67].
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 rule 15.1 of the Uniform Civil Procedure Rules 2005 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. Am 2005 (407), Sch 1 [68].
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 despite rule 6.20 of the Uniform Civil Procedure Rules 2005.rule 68.5: Am 2005 (407), Sch 1 [69].
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 rule 6.6 of the Uniform Civil Procedure Rules 2005.rule 68.7: Am 2005 (407), Sch 1 [70].
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) Despite rule 6.12 (2) of the Uniform Civil Procedure Rules 2005, the originating process in proceedings under section 63 of the Trustee Act 1925 need not state the question for opinion, advice or direction.rule 70.3: Am 2005 (407), Sch 1 [71].
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 an associate Judge.
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 case number or other unique identifier under rule 4.11 of the Uniform Civil Procedure Rules 2005 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.rule 70.12: Am 2005 (407), Sch 1 [72].
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) (Repealed)(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.(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.rule 71A.2: Ins 2.4.1993. Subst 28.4.1995. Am 2005 (407), Sch 1 [73] [74].
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
1–13 (Repealed)
pt 72, hdg: Subst 26.4.1985. Rep 2005 (407), Sch 1 [75].
pt 72: Ins 2.6.1972. Subst 22.11.1985. Rep 2005 (407), Sch 1 [75].
pt 72, Heading: Am 22.9.1989. Rep 2005 (407), Sch 1 [75].
rule 72.1: Ins 2.6.1972. Subst 22.11.1985; 22.9.1989. Rep 2005 (407), Sch 1 [75].
rule 72.2: Ins 2.6.1972. Subst 22.11.1985. Am 22.9.1989. Rep 2005 (407), Sch 1 [75].
rules 72.3, 72.4: Ins 2.6.1972. Subst 22.11.1985. Rep 2005 (407), Sch 1 [75].
rule 72.5: Ins 2.6.1972. Subst 22.11.1985. Am 22.9.1989. Rep 2005 (407), Sch 1 [75].
rules 72.6, 72.7: Ins 2.6.1972. Subst 22.11.1985. Rep 2005 (407), Sch 1 [75].
rule 72.8: Ins 2.6.1972. Subst 22.11.1985. Am 22.9.1989. Rep 2005 (407), Sch 1 [75].
rule 72.9: Ins 2.6.1972. Subst 22.11.1985. Rep 2005 (407), Sch 1 [75].
rule 72.10: Ins 2.6.1972. Subst 22.11.1985. Am 22.9.1989. Rep 2005 (407), Sch 1 [75].
rule 72.11: Ins 2.6.1972. Subst 22.11.1985; 22.9.1989. Rep 2005 (407), Sch 1 [75].
rule 72.12: Ins 2.6.1972. Subst 22.11.1985. Rep 2005 (407), Sch 1 [75].
rule 72.13: Ins 22.11.1985. Subst 22.9.1989. Am 30.3.1990. Rep 2005 (407), Sch 1 [75].
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 (Repealed)
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). Rep 2005 (407), Sch 1 [76].
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 33 of the Uniform Civil Procedure Rules 2005 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; 2005 (407), Sch 1 [77].
8 Order for examination of witness
(1) Rule 24.3 of the Uniform Civil Procedure Rules 2005 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 24 of the Uniform Civil Procedure Rules 2005 applies as if:(a) a reference in that Part to proceedings included a reference to the arbitration proceedings, and(b) the provisions of rule 24.14 (4), (5) and (6) were omitted.(3) Unless the Court otherwise orders, the examiner must send the deposition, a copy of the deposition, any document which constitutes an audio-visual recording and the exhibits to the registrar.(4) On receiving the copy of the deposition, the registrar must 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 is 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. Subst 2005 (407), Sch 1 [78].
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.
Parts 72B, 72C
(Repealed)
pt 72B: Ins 22.12.1989. Rep 2005 (407), Sch 1 [79].
rule 72B.1: Ins 22.12.1989. Am 24.9.1993; 24.9.1999; 20.10.2000; 24.11.2000. Rep 2005 (407), Sch 1 [79].
rules 72B.2–72B.4: Ins 22.12.1989. Rep 2005 (407), Sch 1 [79].
rule 72B.5: Ins 22.12.1989. Am 21.8.1998. Rep 2005 (407), Sch 1 [79].
rule 72B.6: Ins 22.12.1989. Am 24.6.1994. Rep 2005 (407), Sch 1 [79].
rule 72B.7 and hdg: Ins 22.4.1994. Am 21.8.1998. Rep 2005 (407), Sch 1 [79].
rule 72B.8: Ins 21.8.1998. Rep 2005 (407), Sch 1 [79].
pt 72C: Ins 21.10.1994. Rep 2005 (407), Sch 1 [79].
pt 72C, Heading: Ins 21.10.1994. Subst 19.12.2003. Rep 2005 (407), Sch 1 [79].
rules 72C.1, 72C.2: Ins 21.10.1994. Am 19.12.2003. Rep 2005 (407), Sch 1 [79].
rule 72C.3, hdg: Ins 21.10.1994. Am 19.12.2003. Rep 2005 (407), Sch 1 [79].
rules 72C.3, 72C.4: Ins 21.10.1994. Am 19.12.2003. Rep 2005 (407), Sch 1 [79].
rule 72C.5: Ins 21.10.1994. Rep 19.12.2003.
rule 72C.6: Ins 21.10.1994. Rep 2005 (407), Sch 1 [79].
rule 72C.7, hdg: Am 19.12.2003. Rep 2005 (407), Sch 1 [79].
rule 72C.7: Ins 21.10.1994. Am 19.12.2003. Rep 2005 (407), Sch 1 [79].
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 (Repealed)
rule 73.2: Ins 2.6.1972. Am 15.12.1972; 1.6.1973; 29.4.1977. Subst 24.4.2003. Rep 2005 (407), Sch 1 [80].
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, 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) 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; 2005 (407), Sch 1 [81] [82].
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.
Divisions 1, 2
1–3 (Repealed)
pt 74, div 1: Rep 2005 (407), Sch 1 [83].
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. Rep 2005 (407), Sch 1 [83].
rule 74.1A: Ins 24.5.1996. Rep 2005 (407), Sch 1 [83].
pt 74, div 2: Rep 2005 (407), Sch 1 [83].
rule 74.2: Ins 2.6.1972. Subst 31.8.1984; 17.6.1988. Rep 2005 (407), Sch 1 [83].
rule 74.3: Ins 2.6.1972. Subst 28.7.1978; 31.8.1984. Am 14.2.1986; 17.6.1988; 23.8.1996. Rep 2005 (407), Sch 1 [83].
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” to 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. Am 2005 (407), Sch 1 [84].
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
The following provisions of these rules apply, so far as applicable, to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies:(a) Part 1 (preliminary matters),(b) Part 1A (sittings and vacations),(c) Part 2 (time),(d) Part 55 (procedure for punishment for contempt),(e) Part 61 rules 1 (4), (5) and (6), 2 and 3 (registrars),(f) Schedule F, forms 74AA, 74AB, 74AC and 74AD (subpoenas),(g) clause 1 of the matter relating to the Jury Act 1977 in Schedule J.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. Subst 2005 (407), Sch 1 [85].
3 Rules applicable
(1) The following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies:(a) Part 1 (preliminary matters),(b) rules 2.1 and 2.2,(c) Part 4 (preparation and filing of documents), other than rules 4.2, 4.9 and 4.12,(d) Part 10 (service of documents generally), other than rules 10.7 and 10.16,(e) rule 29.13 (record of trial to be kept),(f) rules 31.7, 31.11, 31.12, 31.21 and 31.22,(g) Part 33 (subpoenas), other than:(i) rules 33.3 (8), 33.6 (1) and 33.7, and(ii) if the issuing party is the Crown, rules 33.2 (3), 33.5 and 33.11,(h) Part 35 (affidavits).(2) Part 10 of the Uniform Civil Procedure Rules 2005 (other than rules 10.7 and 10.16) applies, so far as applicable, to service of a notice of listing under clause 10 (2) of the Criminal Procedure Regulation 1987.(3) For the purposes of subrule (2), 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 taken to be the accused person’s address for service.(4) Subject to subrule (5), Rule 31.3 of the Uniform Civil Procedure Rules 2005 applies to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies.(5) Orders may not be made under Rule 31.3 of the Uniform Civil Procedure Rules 2005:(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,(6) Rule 31.5 of the Uniform Civil Procedure Rules 2005 applies to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and to proceedings to which Division 2 applies as if the time fixed for giving notice were not later than 21 days before the date fixed for hearing.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. Subst 2005 (407), Sch 1 [85].
(1), (2) (Repealed)(3) An application to the Court under section 45 (1) of the Children (Criminal Proceedings) Act 1987 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; 2005 (407), Sch 1 [86] [87].
3B Registrar may exercise certain powers and functions
(1) Any power or function in relation to civil proceedings:(a) that is conferred on a registrar by a provision of these rules referred to in rule 2, or(b) that is conferred on a registrar by a provision of the Uniform Civil Procedure Rules 2005 referred to in rule 3, ormay be exercised by the registrar in relation to proceedings specified in the Third Schedule to the Act (except clause (d) of that Schedule) and proceedings to which Division 2 applies.(c) that is required to be exercised by a registrar by an instrument under section 13 of the Civil Procedure Act 2005,(2) This rule does not apply to a power or function that is required to be exercised by a registrar by an instrument under section 13 of the Civil Procedure Act 2005 if the instrument states, or necessarily implies, that the registrar may exercise the power or function in relation to civil proceedings only.(3) In this rule, civil proceedings has the same meaning as it has in the Civil Procedure Act 2005.rule 75.3B: Ins 29.6.1984. Am 23.9.1988. Subst 19.5.1989; 2005 (407), Sch 1 [88].
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 24 of the Uniform Civil Procedure Rules 2005 relates).(b) the Evidence on Commission Act 1995,rule 75.3C: Ins 12.9.1986. Am 28.4.1995; 21.7.1995; 2005 (407), Sch 1 [89].
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) or with subrule (2A).cf Act No 40, 1900, s 360.(2A) An indictment must specify the Law Part Code (if any) for each offence alleged to have been committed in the indictment.(3) The rules, other than this rule and Form 74AE, shall not apply to an indictment in any other Court.(4) In this rule:Law Part Code for an offence means the Law Part Code allocated to the offence in the Lawcodes Database maintained by the Judicial Commission of New South Wales.rule 75.3D: Ins 31.12.1987. Am 17.12.2004.
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.
3HA Criminal proceedings
(cf former Part 27, rule 1B)
(1) If a person has been committed for trial or is to be dealt with before the Court, a proceeding between the prosecuting authority and the person is taken to be before the Court for the purposes of any application to the Court under section 6 or 20 of the Evidence on Commission Act 1995 or under section 7 of the Foreign Evidence Act 1994 of the Commonwealth.(2) Any such application is to be made:(a) in a proceeding which is before the Court under subrule (1)—by summons, or(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, or(c) in proceedings in the Court in its summary jurisdiction—by motion in the proceedings.(3) If 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 taken to be before the District Court for the purposes of any application to the Court under section 9 or 23 of the Evidence on Commission Act 1995 or under section 10 of the Foreign Evidence Act 1994 of the Commonwealth.rule 75.3HA: Ins 2005 (407), Sch 1 [90].
3I Return of exhibits
Where proceedings specified in the Third Schedule to the Act or assigned by rule 3HA 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; 2005 (407), Sch 1 [91].
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.
3L Recording of evidence
(1) This rule applies to all criminal proceedings in the Court (including those specified in the Third Schedule to the Act).(2) Evidence given by a witness may be recorded by video or by any other audio-visual method as directed by the Court.rule 75.3L: Ins 2005 (160), Sch 1.
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 (Repealed)
rule 75.5A: Ins 29.6.1984. Am 19.2.1999. Rep 2005 (407), Sch 1 [92].
6 Rules applicable
In addition to the rules mentioned in rules 2 and 3, the following provisions of the Uniform Civil Procedure Rules 2005 apply, so far as applicable, to proceedings to which this Division applies:(a) rule 4.10,(b) rules 6.15 and 6.16,(c) Part 19,(d) rule 34.1,(e) Part 36.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. Subst 2005 (407), Sch 1 [93].
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.
14 Arrest warrants
(cf former Part 42, rule 7)
(1) Subject to rules of court:(a) if, by subpoena or otherwise, the Court makes an order, whether under an Act or under rules of court:(i) for a person to attend the Court for any purpose, or(ii) for a person to produce any document or thing to the Court, andthe Court may issue, or make an order for the issue of, a warrant for the person’s arrest.(b) the person fails to comply with the order,(2) Subject to rules of court, an arrest warrant may be issued without notice to the person.(3) The Court may revoke an arrest warrant.(4) An arrest warrant is sufficient authority for any person to whom it is addressed, with the assistance of such police officers as may be necessary, to arrest the person named in the warrant, to convey the person to the place specified in the warrant and to deliver the person into the custody of the Court sitting at that place.rule 75.14: Ins 21.12.1973. Rep 19.10.1979. Ins 2005 (407), Sch 1 [94].rules 75.15–75.19: 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, 21C or 68 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; 2005 (171), Sch 1 [1].
2 (Repealed)
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. Rep 2005 (407), Sch 1 [95].
3 Entry in Protective List
A party to proceedings that are entered, or to be entered in the Protective List must add the words “Protective List” and “In the matter of [name of person to whom proceedings relate]” in appropriate places in each document filed in the proceedings.rule 76.3: Ins 23.6.1972. Subst 29.6.1984; 19.2.1999; 2005 (407), Sch 1 [96].
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.rule 76.5: Ins 23.6.1972. Subst 29.6.1984.
6 Subpoena issued by Commissioner
(1) Rules 33.4, 33.5, 33.6 (4) and (5) and 33.7–33.10 of the Uniform Civil Procedure Rules 2005 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 rule 33.11 of the Uniform Civil Procedure Rules 2005 (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.rule 76.6: Ins 23.6.1972. Subst 29.6.1984. Am 2005 (407), Sch 1 [97] [98].
7 (Repealed)
rule 76.7: Ins 23.6.1972. Subst 29.6.1984; 30.3.1990. Am 19.2.1999. Rep 2005 (407), Sch 1 [99].
Division 2 Applications under section 13, 21C or 68
pt 76, div 2, hdg: Ins 23.6.1972. Subst 29.6.1984; 2005 (171), Sch 1 [2].
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, 21C or 68 of the subject Act.rule 76.8: Ins 23.6.1972. Subst 29.6.1984. Am 2005 (171), Sch 1 [3].
9 Parties
(1) Where an application is made under section 13 or 68 of the subject Act, the subject person shall be made a defendant.(2) Where an application is made under section 21C of the subject Act, the subject person shall be made a defendant but need not be served.rule 76.9: Ins 23.6.1972. Subst 29.6.1984; 2005 (171), Sch 1 [4].
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,rule 76.10: Ins 23.6.1972. Subst 29.6.1984.
11 Evidence
(1) 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.(2) Subrule (1) (a) and (b) do not apply in respect of an application made under section 21C of the subject Act.rule 76.11: Ins 23.6.1972. Subst 29.6.1984. Am 2005 (171), Sch 1 [5].
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.rule 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.rule 76.13: Ins 23.6.1972. Subst 29.6.1984 (see erratum 6.9.1985). Am 24.6.1994.
13A “Usual orders”, s 21C
Where, under section 21C of the subject Act the court makes a declaration that the defendant is a missing person and, with or without further order or orders, makes the usual orders, that expression means orders:(a) that the estate of the defendant be subject to management under the subject Act, and(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, and(c) (where two or more are appointed) that on the death or discharge of either (one or more) of the managers that custody of the estate of the defendant shall continue to the surviving or continuing manager (or managers), and(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, and(e) all parties be at liberty to apply as they may be advised.rule 76.13A: Ins 2005 (171), Sch 1 [6].
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.rule 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 or 21C 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 or 21C 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; 2005 (171), Sch 1 [7].
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 3A Applications under section 35A
pt 76, div 3A (Rules 76.23A–76.23D): Ins 2005 (171), Sch 1 [8].
23A Mode of application
This Division applies to applications made under section 35A of the subject Act (which relates to orders when a person is no longer missing).pt 76, div 3A (Rules 76.23A–76.23D): Ins 2005 (171), Sch 1 [8].
23B Notice of Motion
(1) The application is to be made by motion in the proceedings in which the declaration and order under section 21C of the subject Act were made.(2) Notice of the motion is to be served on the manager or on the person on whose application the declaration and order were made.pt 76, div 3A (Rules 76.23A–76.23D): Ins 2005 (171), Sch 1 [8].
23C 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.pt 76, div 3A (Rules 76.23A–76.23D): Ins 2005 (171), Sch 1 [8].
23D Form of order
An order under section 35A may be made in or to the effect of Form 86A.pt 76, div 3A (Rules 76.23A–76.23D): Ins 2005 (171), Sch 1 [8].
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 or 21C 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; 2005 (171) , Sch 1 [9].
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 or 21C 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; 2005 (171), Sch 1 [10].
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 be joined as a defendant.rule 76.51: Ins 23.6.1972. Subst 29.6.1984. Am 24.4.1998; 23.7.1999; 2005 (407), Sch 1 [100].
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
1–155 (Repealed)
pt 77: Ins 30.6.1972. Rep 2005 (407), Sch 1 [101].
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.
pt 77, div 2: Rep 2005 (407), Sch 1 [101].
rule 77.6: Ins 30.6.1972. Rep 2005 (407), Sch 1 [101].
pt 77, div 3, hdg: Am 26.2.1993. Rep 2005 (407), Sch 1 [101].
pt 77, div 3: Am 26.2.1993 (“Auctioneers Act” omitted wherever occurring, “subject Act” inserted instead). Rep 2005 (407), Sch 1 [101].
rule 77.7: Ins 30.6.1972. Subst 26.2.1993. Rep 2005 (407), Sch 1 [101].
rule 77.8: Ins 30.6.1972. Am 7.12.1973; 22.4.1983; 20.7.1990; 23.2.1996. Subst 22.8.1997. Rep 2005 (407), Sch 1 [101].
rule 77.9: Ins 30.6.1972. Am 20.7.1990; 23.2.1996. Rep 22.8.1997.
rules 77.10, 77.11: Ins 30.6.1972. Rep 2005 (407), Sch 1 [101].
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. Rep 2005 (407), Sch 1 [101].
rules 77.22, 77.23: Ins 4.5.1973. Rep 2005 (407), Sch 1 [101].
rule 77.24: Ins 4.5.1973. Am 18.12.1987; 13.6.2003. Rep 2005 (407), Sch 1 [101].
rules 77.25, 77.26: Ins 4.5.1973. Rep 2005 (407), Sch 1 [101].
rule 77.27: Ins 4.5.1973. Am 14.2.1986. Rep 2005 (407), Sch 1 [101].
rule 77.27A: Ins 8.7.1983. Rep 2005 (407), Sch 1 [101].
rules 77.28–77.31: Ins 4.5.1973. Rep 2005 (407), Sch 1 [101].
pt 77, div 7: Ins 21.12.1973. Rep 2005 (407), Sch 1 [101].
rule 77.32: Ins 21.12.1973. Am 19.2.1999. Rep 2005 (407), Sch 1 [101].
rule 77.33: Ins 21.12.1973. Rep 2005 (407), Sch 1 [101].
pt 77, div 8: Ins 22.2.1974. Rep 2005 (407), Sch 1 [101].
rule 77.34: Ins 22.2.1974. Rep 2005 (407), Sch 1 [101].
rule 77.35: Ins 22.2.1974. Am 25.9.1987. Rep 2005 (407), Sch 1 [101].
pt 77, div 8A: Ins 25.9.1987. Rep 2005 (407), Sch 1 [101].
rule 77.36: Ins 22.2.1974. Rep 1.8.1975. Ins 25.9.1987. Rep 2005 (407), Sch 1 [101].
rule 77.36A: Ins 25.9.1987. Rep 2005 (407), Sch 1 [101].
pt 77, div 9: Ins 24.5.1974. Rep 2005 (407), Sch 1 [101].
rule 77.37: Ins 24.5.1974. Am 14.2.1986; 26.9.1986; 23.12.1988. Rep 2005 (407), Sch 1 [101].
pt 77, div 9A: Ins 23.10.1987. Rep 2005 (407), Sch 1 [101].
rule 77.37A: Ins 23.10.1987. Am 23.2.1996. Rep 2005 (407), Sch 1 [101].
rule 77.37B: Ins 23.10.1987. Rep 2005 (407), Sch 1 [101].
pt 77, div 10: Ins 22.8.1975. Subst 21.7.2000. Rep 2005 (407), Sch 1 [101].
rule 77.38: Ins 22.8.1975. Subst 1.7.1977. Am 24.12.1981. Subst 21.7.2000. Rep 2005 (407), Sch 1 [101].
rules 77.39–77.44: Ins 24.12.1981. Subst 21.7.2000. Rep 2005 (407), Sch 1 [101].
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.
pt 77, div 12: Ins 24.7.1981. Rep 2005 (407), Sch 1 [101].
rule 77.46 (previously Rule 77.40): Ins 24.7.1981. Renumbered 24.12.1981. Rep 2005 (407), Sch 1 [101].
rule 77.47 (previously Rule 77.41): Ins 24.7.1981. Renumbered 24.12.1981. Rep 12.9.1986.
pt 77, div 12A: Ins 8.7.1983 (see erratum 22.7.1983). Rep 2005 (407), Sch 1 [101].
rule 77.47A: Ins 8.7.1983 (see erratum 22.7.1983). Rep 2005 (407), Sch 1 [101].
rule 77.47B: Ins 8.7.1983 (see erratum 22.7.1983). Rep 12.9.1986.
pt 77, div 13: Ins 30.6.1982. Rep 2005 (407), Sch 1 [101].
pt 77, div 14 (Rules 77.48–77.52): Ins 30.6.1982. Rep 2005 (407), Sch 1 [101].
pt 77, div 15: Ins 30.6.1982. Rep 2005 (407), Sch 1 [101].
rule 77.53: Ins 30.6.1982 (see erratum 19.8.1983). Rep 2005 (407), Sch 1 [101].
pt 77, div 16: Ins 8.7.1983. Rep 2005 (407), Sch 1 [101].
rule 77.54: Ins 8.7.1983. Am 19.2.1999. Rep 2005 (407), Sch 1 [101].
rules 77.55–77.58: Ins 8.7.1983. Rep 2005 (407), Sch 1 [101].
rule 77.59: Ins 8.7.1983. Am 25.5.1984; 14.2.1986. Rep 2005 (407), Sch 1 [101].
rules 77.60–77.62: Ins 8.7.1983. Rep 2005 (407), Sch 1 [101].
rule 77.63: Ins 8.7.1983. Am 25.5.1984. Rep 2005 (407), Sch 1 [101].
rules 77.64–77.68: Ins 8.7.1983. Rep 2005 (407), Sch 1 [101].
rule 77.69: Ins 8.7.1983. Subst 19.3.1999. Rep 2005 (407), Sch 1 [101].
pt 77, div 17 (Rule 77.70): Ins 7.12.1984. Rep 2005 (407), Sch 1 [101].
pt 77, div 18: Ins 21.12.1984. Rep 2005 (407), Sch 1 [101].
rules 77.71, 77.72: Ins 21.12.1984. Rep 2005 (407), Sch 1 [101].
rule 77.73: Ins 21.12.1984. Rep 24.7.1998.
pt 77, div 19, hdg: Ins 5.7.1985. Am 20.8.1999. Rep 2005 (407), Sch 1 [101].
pt 77, div 19: Ins 5.7.1985. Rep 2005 (407), Sch 1 [101].
rule 77.74: Ins 5.7.1985. Am 20.4.1990; 20.8.1999. Rep 2005 (407), Sch 1 [101].
rule 77.75: Ins 5.7.1985. Rep 2005 (407), Sch 1 [101].
rule 77.76: Ins 5.7.1985. Am 20.4.1990; 20.8.1999. Rep 2005 (407), Sch 1 [101].
rule 77.76A: Ins 20.4.1990. Rep 2005 (407), Sch 1 [101].
pt 77, div 20: Ins 23.8.1985. Rep 2005 (407), Sch 1 [101].
rule 77.77: Ins 23.8.1985. Am 19.2.1999. Rep 2005 (407), Sch 1 [101].
pt 77, div 21 (Rule 77.78): Ins 23.8.1985. Am 24.7.1992. Rep 2005 (407), Sch 1 [101].
pt 77, div 22 (Rule 77.79): Ins 23.8.1985 (see erratum 6.9.1985). Rep 2005 (407), Sch 1 [101].
pt 77, div 23: Ins 20.9.1985. Rep 2005 (407), Sch 1 [101].
rule 77.80: Ins 20.9.1985. Am 2.10.1992. Rep 2005 (407), Sch 1 [101].
rule 77.81, hdg: Am 25.2.1994. Subst 24.12.1999. Rep 2005 (407), Sch 1 [101].
rule 77.81: Ins 20.9.1985. Am 2.10.1992; 25.2.1994. Subst 24.12.1999. Am 19.12.2003. Rep 2005 (407), Sch 1 [101].
rule 77.82: Ins 20.9.1985. Rep 2005 (407), Sch 1 [101].
pt 77, div 24, hdg: Ins 20.9.1985. Am 25.2.1994. Rep 2005 (407), Sch 1 [101].
pt 77, div 24: Ins 20.9.1985. Rep 2005 (407), Sch 1 [101].
rule 77.83: Ins 20.9.1985. Subst 25.2.1994. Am 24.12.1999; 19.12.2003. Rep 2005 (407), Sch 1 [101].
pt 77, div 24A: Ins 25.6.1993. Rep 2005 (407), Sch 1 [101].
rule 77.83A: Ins 25.6.1993. Rep 2005 (407), Sch 1 [101].
rule 77.83B, hdg: Ins 25.6.1993. Subst 25.2.1994; 24.12.1999. Am 19.12.2003. Rep 2005 (407), Sch 1 [101].
rule 77.83B: Ins 25.6.1993. Subst 25.2.1994; 24.12.1999. Am 19.12.2003. Rep 2005 (407), Sch 1 [101].
pt 77, div 24B: Ins 20.10.2000. Rep 2005 (407), Sch 1 [101].
rule 77.83C: Ins 20.10.2000. Rep 2005 (407), Sch 1 [101].
rule 77.83D, hdg: Ins 20.10.2000. Am 19.12.2003. Rep 2005 (407), Sch 1 [101].
rule 77.83D: Ins 20.10.2000. Am 19.12.2003. Rep 2005 (407), Sch 1 [101].
pt 77, div 25, hdg: Ins 20.12.1985. Am 28.4.1995. Rep 2005 (407), Sch 1 [101].
pt 77, div 25: Ins 20.12.1985. Rep 2005 (407), Sch 1 [101].
rule 77.84: Ins 20.12.1985. Am 28.4.1995; 22.8.1997; 19.2.1999. Rep 2005 (407), Sch 1 [101].
pt 77, div 25A, hdg: Ins 20.7.1990. Am 19.3.1999. Rep 2005 (407), Sch 1 [101].
pt 77, div 25A: Ins 20.7.1990. Rep 2005 (407), Sch 1 [101].
rule 77.84A: Ins 20.7.1990. Am 21.5.1993; 19.3.1999. Rep 2005 (407), Sch 1 [101].
rule 77.84AA: Ins 21.5.1993. Rep 2005 (407), Sch 1 [101].
rule 77.84B: Ins 20.7.1990. Am 22.8.1997. Rep 2005 (407), Sch 1 [101].
rule 77.84C: Ins 20.7.1990. Am 1997 No 68, Sch 2. Rep 2005 (407), Sch 1 [101].
pt 77, div 26: Ins 23.5.1986. Subst 15.12.1989 (see rescission 14.12.1990); 14.12.1990. Rep 2005 (407), Sch 1 [101].
rule 77.85: Ins 23.5.1986. Subst 15.12.1989 (see rescission 14.12.1990); 14.12.1990. Am 21.5.1993. Rep 2005 (407), Sch 1 [101].
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. Rep 2005 (407), Sch 1 [101].
rules 77.87A–77.87C: Ins 14.12.1990. Rep 2005 (407), Sch 1 [101].
rule 77.87D: Ins 14.12.1990. Am 15.3.1991. Rep 2005 (407), Sch 1 [101].
rule 77.87E: Ins 14.12.1990. Rep 2005 (407), Sch 1 [101].
rule 77.87F: Ins 14.12.1990. Am 27.3.1992. Rep 2005 (407), Sch 1 [101].
rule 77.87G: Ins 14.12.1990. Rep 2005 (407), Sch 1 [101].
pt 77, div 26A: Ins 14.12.1990. Rep 2005 (407), Sch 1 [101].
rule 77.87H: Ins 14.12.1990. Am 21.5.1993. Rep 2005 (407), Sch 1 [101].
rule 77.87I: Ins 14.12.1990. Rep 2005 (407), Sch 1 [101].
rule 77.87J: Ins 14.12.1990. Am 15.3.1991. Rep 2005 (407), Sch 1 [101].
pt 77: Ins 22.9.1995. Rep 2005 (407), Sch 1 [101].
pt 77.div 26BA (Rules 77.87KA, 77.87KB): Ins 22.9.1995. Rep 2005 (407), Sch 1 [101].
pt 77, div 26B: Ins 20.9.1991. Rep 2005 (407), Sch 1 [101].
rule 77.87K: Ins 20.9.1991. Am 21.5.1993. Rep 2005 (407), Sch 1 [101].
rule 77.87L: Ins 20.9.1991. Am 27.3.1992. Rep 2005 (407), Sch 1 [101].
pt 77, div 26C: Ins 26.2.1993. Rep 2005 (407), Sch 1 [101].
rule 77.87M: Ins 26.2.1993. Am 21.5.1993. Rep 2005 (407), Sch 1 [101].
rule 77.87N: Ins 26.2.1993. Rep 2005 (407), Sch 1 [101].
pt 77, div 27: Ins 23.5.1986. Rep 2005 (407), Sch 1 [101].
rule 77.88: Ins 23.5.1986; 15.12.1989 (see rescission 14.12.1990). Rep 2005 (407), Sch 1 [101].
pt 77, div 28, hdg: Ins 13.3.1987. Am 28.5.2004. Rep 2005 (407), Sch 1 [101].
pt 77, div 28: Ins 13.3.1987. Rep 2005 (407), Sch 1 [101].
rule 77.89: Ins 13.3.1987; 15.12.1989 (see rescission 14.12.1990). Am 28.5.2004. Rep 2005 (407), Sch 1 [101].
rule 77.90: Ins 13.3.1987; 15.12.1989 (see rescission 14.12.1990). Rep 2005 (407), Sch 1 [101].
rule 77.91: Ins 13.3.1987; 15.12.1989 (see rescission 14.12.1990). Subst 23.2.1996; 28.5.2004. Rep 2005 (407), Sch 1 [101].
pt 77, div 29: Ins 20.5.1988. Rep 2005 (407), Sch 1 [101].
rule 77.92: Ins 20.5.1988; 15.12.1989 (see rescission 14.12.1990). Am 19.2.1999. Rep 2005 (407), Sch 1 [101].
pt 77, div 30: Ins 14.7.1989. Rep 2005 (407), Sch 1 [101].
rule 77.93: Ins 14.7.1989; 15.12.1989 (see rescission 14.12.1990). Rep 2005 (407), Sch 1 [101].
rule 77.94: Ins 14.7.1989; 15.12.1989 (see rescission 14.12.1990). Rep 19.11.1999.
pt 77, div 26A (Rule 77.94A): Ins 15.12.1989 (see rescission 14.12.1990).
rule 77.95: Ins 14.7.1989. Rep 2005 (407), Sch 1 [101].
pt 77: Ins 19.11.1999. Rep 2005 (407), Sch 1 [101].
pt 77.div 30A (Rules 77.95A, 77.95B): Ins 19.11.1999. Rep 2005 (407), Sch 1 [101].
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. Rep 2005 (407), Sch 1 [101].
pt 77, div 33: Ins 6.3.1992. Rep 2005 (407), Sch 1 [101].
rule 77.99: Ins 6.3.1992. Am 19.2.1999. Rep 2005 (407), Sch 1 [101].
pt 77, div 34: Ins 6.3.1992. Rep 2005 (407), Sch 1 [101].
rule 77.100: Ins 6.3.1992. Am 19.2.1999. Rep 2005 (407), Sch 1 [101].
pt 77, 77.div 35: Ins 6.3.1992. Rep 2005 (407), Sch 1 [101].
pt 77: Ins 6.3.1992. Rep 2005 (407), Sch 1 [101].
pt 77.div 77.36 (Rules 77.101, 77.102): Ins 6.3.1992. Rep 2005 (407), Sch 1 [101].
pt 77, div 37 (Rule 77.103): Ins 30.10.1992. Rep 2005 (407), Sch 1 [101].
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.
pt 77, div 39 (Rules 77.105–77.107): Ins 24.2.1995. Rep 2005 (407), Sch 1 [101].
pt 77, div 40 (Rules 77.108–77.111): Ins 23.2.1996. Rep 2005 (407), Sch 1 [101].
pt 77, div 41 (Rule 77.112): Ins 24.5.1996. Rep 2005 (407), Sch 1 [101].
pt 77, div 42 (Rule 77.113): Ins 19.7.1996. Rep 2005 (407), Sch 1 [101].
pt 77, div 43: Ins 19.7.1996. Rep 2005 (407), Sch 1 [101].
rule 77.114: Ins 19.7.1996. Am 19.2.1999. Rep 2005 (407), Sch 1 [101].
rule 77.115: Ins 19.7.1996. Rep 2005 (407), Sch 1 [101].
pt 77, div 44: Ins 19.7.1996. Rep 2005 (407), Sch 1 [101].
rule 77.116: Ins 19.7.1996. Am 19.2.1999. Rep 2005 (407), Sch 1 [101].
rule 77.117: Ins 19.7.1996. Rep 2005 (407), Sch 1 [101].
pt 77, div 45: Ins 21.3.1997. Rep 2005 (407), Sch 1 [101].
rule 77.118: Ins 21.3.1997. Am 19.2.1999; 30.6.2000. Rep 2005 (407), Sch 1 [101].
rule 77.119: Ins 21.3.1997. Subst 24.11.2000. Rep 2005 (407), Sch 1 [101].
pt 77, div 46: Ins 24.4.1998. Rep 2005 (407), Sch 1 [101].
rule 77.120: Ins 24.4.1998. Rep 2005 (407), Sch 1 [101].
rule 77.121: Ins 24.4.1998. Subst 24.12.1999. Am 19.12.2003. Rep 2005 (407), Sch 1 [101].
pt 77, div 47: Ins 24.4.1998 (see erratum 1.5.1998). Rep 2005 (407), Sch 1 [101].
rule 77.122: Ins 24.4.1998 (see erratum 1.5.1998). Rep 2005 (407), Sch 1 [101].
rule 77.123 and hdg: Ins 24.4.1998 (see erratum 1.5.1998). Subst 24.12.1999. Am 19.12.2003. Rep 2005 (407), Sch 1 [101].
rule 77.124: Ins 24.4.1998 (see erratum 1.5.1998). Am 22.5.1998. Rep 2005 (407), Sch 1 [101].
pt 77, div 48 (Rules 77.125–77.127): Ins 22.5.1998. Rep 2005 (407), Sch 1 [101].
pt 77, div 49 (Rules 77.128–77.130): Ins 24.7.1998. Rep 2005 (407), Sch 1 [101].
pt 77: Ins 21.8.1998. Rep 2005 (407), Sch 1 [101].
pt 77.div 50 (Rules 77.131, 77.132): Ins 21.8.1998. Rep 2005 (407), Sch 1 [101].
pt 77, div 51: Ins 19.3.1999. Rep 2005 (407), Sch 1 [101].
rule 77.133: Ins 19.3.1999. Am 30.6.2000. Rep 2005 (407), Sch 1 [101].
rule 77.133A: Ins 23.11.2001. Rep 2005 (407), Sch 1 [101].
rule 77.134: Ins 19.3.1999. Am 30.6.2000. Rep 2005 (407), Sch 1 [101].
rule 77.134A: Ins 21.5.1999. Am 30.6.2000. Rep 2005 (407), Sch 1 [101].
pt 77, div 52: Ins 19.3.1999. Rep 2005 (407), Sch 1 [101].
rules 77.135–77.137: Ins 19.3.1999. Rep 2005 (407), Sch 1 [101].
rule 77.137A: Ins 25.2.2000. Rep 2005 (407), Sch 1 [101].
pt 77, div 53 (Rules 77.138–77.141): Ins 23.7.1999. Rep 2005 (407), Sch 1 [101].
pt 77, div 54 (Rules 77.142–77.144): Ins 20.8.1999. Rep 2005 (407), Sch 1 [101].
pt 77, div 55 (Rules 77.145–77.147): Ins 30.6.2000. Rep 2005 (407), Sch 1 [101].
pt 77, div 56: Ins 25.8.2000. Rep 2005 (407), Sch 1 [101].
pt 77, div 57 (Rules 77.148–77.151): Ins 25.8.2000. Rep 2005 (407), Sch 1 [101].
pt 77, div 58 (Rules 77.152–77.155): Ins 20.10.2000. Rep 2005 (407), Sch 1 [101].
pt 80A, div 9 (rule 38): Ins 25.2.1994.
Part 78 Probate
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 must be added to each document filed in the proceedings the words “Probate List” and “In the matter of [name of person to whom proceedings relate]”,(b) if Part 78 Division 3 applies:(i) (Repealed)(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. Am 2005 (407), Sch 1 [102] [103].
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) 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. Am 2005 (407), Sch 1 [104].
4D Bills for moderation
(1) A bill for moderation must be served on each executor, administrator or trustee before it is filed.(2) A request for moderation must be endorsed on the bill in the prescribed form and signed by each executor, administrator and trustee.rule 78.4D: Ins 2005 (407), Sch 1 [105].
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)–(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; 2005 (407), Sch 1 [106].
6 Review of registrar’s decision
Divisions 4 and 5 of Part 45 of the Uniform Civil Procedure Rules 2005 do 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; 2005 (407), Sch 1 [107].
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) (Repealed)rule 78.8: Ins 30.6.1972. Am 1.10.1976; 13.6.2003; 2005 (407), Sch 1 [108].
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) Rules 6.14, 6.15 and 6.16 of the Uniform Civil Procedure Rules 2005 do 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; 2005 (407), Sch 1 [109].
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 78.29–78.31: 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 78.29–78.31: 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 78.29–78.31: Ins 30.6.1972.
Division 5 Applications by creditors for administration
32 (Repealed)
rule 78.32: Ins 30.6.1972. Rep 26.11.2004.
33 Citations
(1) A creditor who desires to commence proceedings for a grant of administration in circumstances where the deceased has left a will must:(a) file an affidavit in proof of the debt to the creditor, and(b) where an executor is appointed by the will and has not renounced probate—serve a citation to take probate on the executor, and(c) where the executor fails to comply with the citation to take probate—serve a citation to pray for administration:(i) on every beneficiary under the will, and(ii) in the case of a partial intestacy, on every person entitled in administration of the estate on intestacy.(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 every person entitled in administration of the estate upon intestacy a citation to pray for administration.(5) In any proceedings commenced by a creditor for a grant of administration, the creditor must file an affidavit of compliance with this rule and that none of the persons cited has complied with the citation.(6) In any proceedings commenced by a creditor for a grant of administration, the Court may require any one or more of the following:(a) that further evidence be furnished to the Court,(b) that further citations be served,(c) that further notices be given.(7) The Court may, if it thinks fit, refuse or withhold a grant of administration to a creditor even if the creditor has complied with this rule.rule 78.33: Ins 30.6.1972. Am 26.11.2004.
34 (Repealed)
rule 78.34: Ins 30.6.1972. Rep 26.11.2004.
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) (Repealed)