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3–7 (Repealed)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.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]; 2005 (690), rule 2.
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 7 to the Uniform Civil Procedure Rules 2005.(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.rule 75.3J: Ins 30.8.2002. Am 2005 (582), rule 2.
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.rule 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)(4) Rule 7.6 of the Uniform Civil Procedure Rules 2005 (which relates to representative orders) applies to proceedings for an order under section 13 (2) (c) of the Probate Act as it applies to proceedings mentioned in subrule (1) of that rule.rule 78.34B: Ins 25.8.1989. Am 2005 (407), Sch 1 [110] [111].
34C Citations etc (ss 13, 15A and 29A)
(1) A person whose interests would be adversely affected by an order under section 13 (2) (c), section 15A (2) (a) or section 29A (1) of the Probate Act shall, within 14 days of commencement of proceedings for the order, be cited to see the proceedings unless the person has consented as prescribed by rule 34A.(2) On an application for any order mentioned in subrule (1), the applicant for the grant shall file an affidavit showing the persons whose interests would be adversely affected if the order was made.rule 78.34C, headnote: Am 13.12.1991.rule 78.34C: Ins 25.8.1989. Am 13.12.1991; 26.4.1996.
34D Notice of intention to distribute (s 13 (3))
A notification under section 13 (3) of the Probate Act may be in the form prescribed.rule 78.34D: Ins 25.8.1989.
Division 5B Proceedings under section 18A of the Probate Act
pt 78, div 5B: Ins 13.12.1991.
34E Consent of or notice to affected persons
(1) Subject to rule 34J, an applicant for a grant in relation to an estate shall, in respect of any person whose interest in the estate might be affected by a declaration by the Court as to whether the Court is satisfied under section 18A of the Probate Act in respect of an informal testamentary document made by the deceased:(a) if the affected person is not a disable person—file a consent, in the form prescribed, of the affected person, orin respect of the informal testamentary document.(b) serve notice, in the form prescribed, on the affected person,(2) The grounds on which the Court may dispense with compliance with any of the requirements of subrule (1) include that:(a) the affected person is a disable person,(b) the affected person cannot be ascertained or cannot readily be ascertained,(c) the affected person, though ascertained, cannot be found, and(d) though the affected person can be ascertained and found, it appears to the Court expedient (regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined) to dispense with compliance for the purpose of saving expense.(3) The applicant for the grant shall serve notice, in the form prescribed, on each person who has lodged a caveat under rule 62A which is in force.rules 78.34E, 78.34F: Ins 13.12.1991.
34F Consenting or notified person to be bound by declaration
A person:(a) whose consent is filed under rule 34E (1) (a),(b) upon whom notice is served under rule 34E (1) (b) or rule 34E (3), orshall be bound by a declaration made by the Court as to whether it is satisfied under section 18A of the Probate Act in respect of any informal testamentary document referred to in the consent, or in the notice, to the same extent as if the person were a party at the time when the declaration was made, except where the declaration has been obtained by fraud or non-disclosure of material facts.(c) in respect of whom the Court has dispensed with compliance with the requirements of rule 34E (1) or rule 34E (3),rules 78.34E, 78.34F: Ins 13.12.1991.
34G Service of notice
(1) This rule applies to notices to be served under rule 34E.(2) A notice may be served outside the State.(3) Part 11 of the Uniform Civil Procedure Rules 2005 does not apply to service of a notice under rule 34E.(4) A notice shall be served:(a) personally, or(b) where the person upon whom the notice is to be served is not a disable person, by sending the notice:(i) in the case of service within Australia—by certified mail to the person to be served, andand by obtaining from the postal authorities a written acknowledgement, purporting to be signed by that person, of receipt of the certified or registered article.(ii) in the case of service outside Australia—by registered post to the person to be served,(5) Service of a notice on a disable person shall not take effect before the appointment of a tutor for the disable person.rule 78.34G: Ins 13.12.1991. Am 2005 (407), Sch 1 [112].
34H Appearance by person upon whom notice is served
(1) A person upon whom a notice is served under rule 34E may enter an appearance in the proceedings.(2) Division 3 of Part 6 of the Uniform Civil Procedure Rules 2005 (which relates to appearance) applies to appearance by a person upon whom the notice is served as if that person were a defendant in the proceedings.(3) Rule 12.11 of the Uniform Civil Procedure Rules 2005 does not apply to proceedings to which this Division applies.(4) The time to be limited by the notice for the person upon whom it is served to enter an appearance, shall be in the case of service:(a) within the State or the Australian Capital Territory—not less than 14 days after service, or(b) elsewhere—not less than 28 days after service or such other time as the Court may order.(5) An appearance shall not be entered after the expiration of the time limited except by the leave of the Court.rule 78.34H: Ins 13.12.1991. Am 2005 (407), Sch 1 [113] [114].
34I Person appearing becomes party
Where a person enters an appearance under rule 34H (1) in any proceedings within the time limited for filing an appearance in respect of a notice served on him under rule 34E in the proceedings:(a) that notice, and any notice served on the person under rule 34E in the proceedings after the entry of the appearance, is in this rule called a contested notice,(b) the person shall, upon entering the appearance, become a defendant in the proceedings and the proceedings shall continue as if he were joined as a defendant by the originating process and as if he were served with the originating process on the day on which he was served with the notice,(c) the person shall take part only in such parts of the proceedings:(i) as relate to the Court declaring whether it is satisfied under section 18A of the Probate Act in respect of each informal testamentary document to which a contested notice served under rule 34E (1) relates, or(ii) as the Court directs, and(d) the person shall cease to be a defendant in the proceedings upon the conclusion of those parts of the proceedings referred to in paragraph (c).rules 78.34I, 78.34J: Ins 13.12.1991.
34J Defended proceedings
Where there is a defendant to any proceedings for a grant the applicant for the grant:(a) shall not comply with rule 34E in respect of the defendant, and(b) shall serve on the defendant a copy of any informal testamentary document made by the deceased.rules 78.34I, 78.34J: Ins 13.12.1991.
Division 6 Contentious proceedings for grant or resealing
35 Application of Division
This Division applies to applications for a grant or for resealing where:(a) there is a defendant, other than a defendant who may take part in the proceedings only to the extent permitted by Part 78 rule 34I (c), or(b) a person is cited to see the proceedings.rule 78.35: Ins 30.6.1972. Am 13.12.1991.
36 Commencement of proceedings
(1) Where there is a defendant the proceedings shall be commenced by statement of claim.(2) Where there is no defendant the proceedings shall be commenced by summons.rule 78.36: Ins 30.6.1972.
37 Admissions
Rule 17.7 of the Uniform Civil Procedure Rules 2005 (which relates to judgment or order on admissions) does not apply to proceedings to which this Division applies.rule 78.37: Ins 30.6.1972. Am 2005 (407), Sch 1 [115].
37A Interest suits
cf RSC (Rev) 1965, O 76, r 9 (1) and (2).
(1) Where a defendant opposes a grant and the plaintiff disputes the standing of the defendant to do so, the plaintiff shall, in his statement of claim, allege the absence of standing.(2) Where a party claims a grant of administration and another party alleges absence of title of the claimant to do so, the party alleging absence of title shall allege facts which, if proved, will show that he has title to claim the grant.rule 78.37A: Ins 26.10.1979.
Division 7 Proceedings for revocation of grant
38 Deposit of grant
Where proceedings have been commenced for revocation of a grant the Court may on the application of the plaintiff, or of its own motion, order the executor or administrator to deposit the grant in the registry.rules 78.38, 78.39: Ins 30.6.1972.
39 Order before commencement of proceedings
In an urgent case, the Court may, on the application of a person who intends to commence proceedings for revocation of a grant, order the executor or administrator to deposit the grant in the registry to the same extent as if the applicant had commenced the proceedings and the application were made in the proceedings.rules 78.38, 78.39: Ins 30.6.1972.
40 Commencement of non-contentious proceedings
Proceedings for revocation of a grant shall, where there is no defendant, be commenced by summons.rule 78.40: Ins 30.6.1972. Am 13.6.2003.
An application for revocation or rescission of a grant shall be supported by an affidavit of search in the registry of the Equity Division against the name of the deceased, showing whether or not any order for provision under the Family Provision Act 1982 has been made.rule 78.40A: Ins 25.5.1984.
41 Hearing
(1) Where there is no defendant, proceedings may be heard:(a) in the absence of the public, and(b) without the appearance before the Court of any person.(2) The proceedings shall be heard without an appointment being obtained for the hearing.rules 78.41, 78.42: Ins 30.6.1972.
42 Minute of order
(1) A draft minute of the order sought shall be lodged with the registrar before any order is made on the summons.(2) The order shall be entered.(3) The order may be entered at any time after the minute of it is signed.rules 78.41, 78.42: Ins 30.6.1972.
43 Commencement of contentious proceedings
Proceedings for revocation of a grant shall, where there is a defendant, be commenced by statement of claim which shall allege facts which, if proved, will show that the plaintiff has standing to claim revocation of the grant.rule 78.43: Ins 30.6.1972. Am 26.10.1979.
Division 8 Contentious proceedings generally
44 Cross-claims
(1) A party in proceedings may cross-claim for a grant or for resealing notwithstanding that notice of the intended application has not been published in compliance with section 42 of the Probate Act.(2) Where such notice of the intended application has not been published, the party shall, within 30 days of filing the cross-claim, cause notice of the intended application to be published in the manner and, with such variations as the circumstances require, in the form required by rule 10.rules 78.44–78.52: Ins 30.6.1972.
45 Intervention
(1) An application to intervene in proceedings for a grant shall be by motion on notice in the proceedings for an order that the person applying be added as a party.(2) Before filing the notice of motion the person applying shall enter an appearance in the proceedings.rules 78.44–78.52: Ins 30.6.1972.
Division 9 Citations
46 Request for issue
(1) Application for issue of a citation shall be made by filing a request in the form prescribed.(2) The person requesting issue of a citation shall:(a) file an affidavit verifying the averments contained in the proposed citation, and(b) lodge two copies of the proposed citation.rules 78.44–78.52: Ins 30.6.1972.
47 Citation to be settled
A citation must be settled by the Court before it is issued.rules 78.44–78.52: Ins 30.6.1972.
48 Seal
A citation shall be under seal.rules 78.44–78.52: Ins 30.6.1972.
49 Registrar to file copy
Where a citation is issued the registrar shall file a copy of it.rules 78.44–78.52: Ins 30.6.1972.
50 Citation to bring in abolished
(1) A citation to bring in a grant, will or other document shall not be issued.(2) This rule does not limit the power of the Court to order a person to deposit in the registry a grant, will or other document.rules 78.44–78.52: Ins 30.6.1972.
51 Citation to pray for administration
(1) A requirement under section 63 of the Probate Act of a person to pray for administration shall be by citation which may be in the form prescribed.(2) An answer to a citation to pray for administration shall be in the form prescribed.rules 78.44–78.52: Ins 30.6.1972.
52 Citation to take probate
(1) A requirement under section 69 of the Probate Act of an executor named in a will to take probate shall be by citation which may be in the form prescribed.(2) An answer to a citation to take probate shall be in the form prescribed.rules 78.44–78.52: Ins 30.6.1972.
53 Citation to see proceedings
(1) On the application of any party to proceedings to which Division 6 applies a citation may be issued against any person who is not a party to the proceedings but who has an adverse interest to the applicant notifying him that if he does not answer the citation by entering an appearance in the proceedings, the proceedings may be heard and determined in his absence.(2) A citation to see proceedings may be in the form prescribed.(3) Where a person cited to see proceedings has entered an appearance in the proceedings, he shall be entitled to such notice of the hearing or trial of the proceedings as if he were a defendant in the proceedings.rule 78.53: Ins 30.6.1972. Am 25.8.1989.
54 Time for answer to a citation
(1) This rule applies to any citation other than a citation to see proceedings.(2) In settling the citation the Court shall fix the time limited by the citation for answer to it.(3) Subject to subrule (4) the time limited by the citation for answer to it shall be:(a) in the case of service within the State—14 days,(b) in the case of service outside the State—three months.(4) The Court may, in settling the citation, fix shorter or longer periods, than the periods referred to in subrule (3).(5) Where the applicant for issue of the citation wishes shorter or longer periods to be fixed, he shall include in his request for issue of the citation a statement of the period or periods which he requests be fixed and file an affidavit in support of that period or those periods being fixed.rule 78.54: Ins 30.6.1972.
55 Service
(1) A citation shall be served personally upon the person cited.(2) A citation may be served outside the State.(3) Part 11 of the Uniform Civil Procedure Rules 2005 does not apply to service of a citation.(4) Service of a citation on a disable person shall not be effected otherwise than in accordance with subrules (5) to (8).(5) Where the person to be served is a minor, the citation may be served:(a) if he is aged 16 years or upwards, on him,(b) on a parent of his or a guardian of his person or of his estate, or(c) if he has no parent and has no guardian of his person or of his estate, on a person with whom he resides or in whose care he is.(6) Where the person to be served is a incompetent person, the citation may be served:(a) if he has a curator, upon the curator, or(b) if he has no curator, on a person with whom he resides or in whose care he is.(7) The citation may be served on any person (including the disable person) who the Court may, before or after the service, approve.(8) A citation served pursuant to any of subrules (5) to (7) must be served in the manner required by the rules with respect to personal service of a document.rule 78.55: Ins 30.6.1972. Am 13.12.1991; 2005 (407), Sch 1 [116].
56 Appearance by person cited to see proceedings
(1) Division 3 of Part 6 of the Uniform Civil Procedure Rules 2005 (which relates to appearance) applies to appearance by a person cited to see proceedings as if the person cited were a defendant in the proceedings.(2) Rule 12.11 of the Uniform Civil Procedure Rules 2005 does not apply to proceedings to which this Division applies.rule 78.56: Ins 30.6.1972. Am 23.12.1988; 2005 (407), Sch 1 [117] [118].
57 Election to be a defendant
(1) A person cited to see proceedings may, except where he has lodged a caveat requiring proof in solemn form of a will to which the proceedings relate, include in his notice of appearance a statement that he elects to be a defendant in the proceedings.(2) Where the person cited elects under subrule (1) to be a defendant in the proceedings he shall thereupon become a defendant in the proceedings and the proceedings shall continue as if he were joined as a defendant by the originating process and he were served with the originating process on the day on which he was served with the citation to see the proceedings.(3) Where the person cited has lodged a caveat requiring proof in solemn form of a will to which the proceedings relate he may, after entering an appearance in the proceedings, apply for an order adding him as a party in the proceedings.rule 78.57: Ins 30.6.1972.
58 Disable persons
(1) This rule applies where a citation is served upon a disable person.(2) Service of the citation shall not take effect before the appointment of a tutor for the disable person.(3) The disable person may answer the citation by his tutor but not otherwise.(4) Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 does not apply to appointment of a tutor for the disable person.(5) Application for the appointment of a tutor for the disable person shall be by summons.(6) There shall be no defendant in the proceedings for appointment of the tutor.(7) The proceedings for appointment of the tutor shall be heard without an appointment being obtained for the hearing.(8) The proceedings for appointment of the tutor may be heard:(a) in the absence of the public, and(b) without the appearance before the Court of any person.(9) A draft minute of the order sought shall be lodged with the registrar before any order is made on the summons.(10) The order shall be entered.(11) The order may be entered at any time after the minute of it is signed.(12) Where an incompetent person has a curator who has or may be given authority, under the Protected Estates Act 1983, to answer the citation on behalf of the incompetent person, no person other than the curator shall, unless the Court otherwise orders, act as tutor.(12A) (Repealed)(13) A tutor shall not be appointed unless:(a) he is the person applying for appointment, or(b) evidence of his consent to act as tutor is furnished.(14) Where a citation to see proceedings has been served upon a disable person and a tutor of the disable person is appointed to answer the citation, the appointment shall extend to the tutor electing on behalf of the disable person to become a defendant in the proceedings in which the citation was served and defending those proceedings (including cross-claiming in them).rule 78.58: Ins 30.6.1972. Am 28.6.1974; 29.6.1984; 22.5.1998; 2005 (407), Sch 1 [119].
59 Application of Part 63 where disable person cited elects to become a defendant
Where a disable person elects by his tutor to become a defendant in the proceedings in which the citation was served, Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 applies as if his tutor had been appointed as provided by that Part.rule 78.59, headnote: Am 25.8.1989.rule 78.59: Ins 30.6.1972. Am 2005 (407), Sch 1 [120].
60 Proof of service of citation to see
A party at whose request a citation to see proceedings has been issued shall not, without the leave of the Court, be entitled to be heard at the hearing or trial of the proceedings unless:(a) the person cited has entered an appearance in the proceedings, or(b) where the person cited has not entered an appearance in the proceedings, the party at whose request the citation has been issued has filed:(i) an affidavit of service of the citation on the party cited, or(ii) an affidavit stating that the citation has not been served on the party cited and explaining why it has not been served.rule 78.60: Ins 30.6.1972. Subst 13.12.1991.
Division 10 Caveats
61 Caveat in respect of grant
(1) A person claiming to have an interest in an estate may lodge in the registry a caveat in the form prescribed in respect of any grant or reseal being made in the estate.(2) The caveat shall state fully the nature of the interest claimed by the caveator and an address for service.(3) Where a person, to the knowledge of the caveator, is making or is intending to make application for a grant or resealing in the estate, the caveator shall, within 7 days of the lodging of the caveat, serve a copy of the caveat on him.rules 78.61, 78.62: Ins 30.6.1972.
62 Caveat for solemn form
(1) A person having an interest in an estate may lodge in the registry a caveat in the form prescribed requiring proof in solemn form of any will.(2) The caveat shall state fully the nature of the interest of the caveator and an address for service.(3) Where a person, to the knowledge of the caveator, is making or intending to make application for a grant or reseal in the estate, the caveator shall, within 7 days of the lodging of the caveat, serve a copy of the caveat on him.rules 78.61, 78.62: Ins 30.6.1972.
62A Caveat in respect of informal testamentary document
(1) A person, who claims to be an affected person in relation to an estate and who is not a defendant to proceedings for a grant in relation to the estate, may:(a) prior to service on that person of a notice under rule 34E in relation to that estate, orlodge in the registry a caveat in the form prescribed in respect of any grant being made in the estate unless the caveator is given an opportunity to be heard on the question of whether the Court should be satisfied under section 18A of the Probate Act in respect of a document made by the deceased.(b) by leave of the Court, at any time before grant,(2) The caveat shall state fully the nature of the interest claimed by the caveator and an address for service.(3) Where a person, to the knowledge of the caveator, is making or is intending to make application for a grant in the estate, the caveator shall, within 7 days of the lodging of the caveat, serve a copy of the caveat on the person.(4) A caveat lodged under subrule (1) shall cease to have effect:(a) where the caveator is served with a notice under rule 34E (3) in respect of the estate to which the caveat relates—upon the expiration of the time limited for filing an appearance, orwhichever first occurs.(b) where the caveator is made a defendant in the proceedings for a grant in respect of the estate to which the caveat relates—when the caveator is made a defendant,rule 78.62A: Ins 13.12.1991.
63 Duration
(1) A caveat shall take effect as of the date of lodgment and shall, unless the Court otherwise orders, remain in force for 6 months.(2) The Court may extend the period of duration of a caveat.rule 78.63: Ins 30.6.1972.
64 Withdrawal of caveat—no proceedings for grant or resealing or caveator sole applicant for grant or resealing
(1) This rule applies to a caveat if:(a) there are no proceedings for a grant or resealing in the estate, or(b) the caveator is the sole applicant in proceedings for a grant or resealing in the estate.(2) A caveator may withdraw a caveat to which this rule applies by filing a notice in Form 115.(3) The withdrawal of a caveat under this rule has effect on the date on which the notice referred to in subrule (2) is filed.rule 78.64: Ins 30.6.1972. Subst 26.11.2004.
65 Leave to withdraw caveat—proceedings for grant
(1) Subject to rule 64, this rule applies to an application for leave to withdraw a caveat where there are proceedings for a grant or resealing in the estate.(2) Where the caveator has not entered an appearance in the proceedings for grant or resealing, he shall do so.(3) The application for leave to withdraw the caveat shall be made by motion on notice in the proceedings.(4) A draft minute of the order sought must be lodged with the registrar before any order is made on the motion.(5) The order must be entered.(6) The order may be entered at any time after the minute of it is signed.rule 78.65: Ins 30.6.1972. Am 26.11.2004.
66 Withdrawal
If leave is granted to withdraw a caveat, the caveat is taken to be withdrawn on the granting of that leave.rule 78.66: Ins 30.6.1972. Subst 26.11.2004.
67 Recoupment of costs
Where a caveat is withdrawn, and the person on whose application a grant or resealing is made is unable to recover from the caveator costs which the caveator has been ordered to pay to him, that person shall be entitled to be recouped by the estate the amount of the costs properly incurred by him in addition to other costs to which he is entitled out of the estate.rules 78.67, 78.68: Ins 30.6.1972.
68 Citation of caveator to see proceedings
Where there is in force a caveat requiring proof of a will in solemn form the caveator shall, in proceedings for a grant or for resealing in which the plaintiff seeks to prove a will to which the caveat relates, be cited to see the proceedings.rules 78.67, 78.68: Ins 30.6.1972.
69 Order that caveats cease to be in force
(1) Where a person has applied or intends to apply for:(a) a grant and there is in force a caveat, or more than one caveat, in respect of any grant being made in the estate, orthat person may apply for an order that the caveat, or each of the caveats, cease to be in force in respect of the application or the intended application.(b) a reseal and there is in force a caveat, or more than one caveat, in respect of a reseal being made in the estate,(2) The application shall be made:(a) where the person has commenced proceedings for a grant or resealing—by motion in the proceedings, or(b) otherwise—by summons.(3) The caveator, or each of the caveators, shall be a defendant in the proceedings.(4) Where in respect of the caveat, or any of the caveats, the Court considers that the evidence does not show:(a) that the caveator has an interest in the estate or has a reasonable prospect of establishing such an interest, andthe Court may order that that caveat cease to be in force in respect of the intended application.(b) some matter occasioning doubt as to whether the grant ought to be made,(5) Part 13 of the Uniform Civil Procedure Rules 2005 (which relates to summary disposal) does not apply to the proceedings.(6) Where the Court does not, pursuant to subrule (4) order that the caveat, or each of the caveats, cease to be in force in respect of the intended application, the Court may give such directions as appear best adapted for the just, quick and cheap determination of what grant or resealing, if any, should be made in the estate and of related matters.(7) Directions which the Court may give pursuant to subrule (6) include a direction to a caveator to commence proceedings.(8) Where the Court, pursuant to subrules (6) and (7) directs a caveator to commence proceedings, it may order that if the caveator does not commence the proceedings within such time as the Court fixes, the caveat shall cease to be in force in respect of the intended application referred to in subrule (1) or generally.(9) An order under subrule (8) may be made at the time the caveator is directed to commence proceedings or at any subsequent time.rule 78.69: Ins 30.6.1972. Am 13.12.1991; 22.5.1992; 2005 (407), Sch 1 [121].
70 Proceedings by statement of claim
(1) Where there is in force a caveat under rule 61 (1) in respect of any grant or resealing being made in an estate, proceedings for a grant or for resealing in the estate shall be commenced by statement of claim.(2) Unless the Court otherwise directs, the caveator shall be a party in the proceedings.rule 78.70: Ins 30.6.1972. Am 13.12.1991.
Division 11 Accounts and commission
71 Time for filing etc accounts
(1) An executor or administrator of the estate of a person who died before 31 December 1981 shall file his accounts within 12 months after grant or resealing.(2) Any person who is required to comply with section 85 (1AA) of the Probate Act (which section relates to certain executors or administrators of the estates of persons who die on or after 31 December 1981) shall verify and file or verify, file and pass his accounts within 12 months after grant or resealing.rule 78.71: Ins 30.6.1972. Subst 24.12.1981.
72 Service of notice or order under s 87
A notice or order under section 87 of the Probate Act may be served by sending it by pre-paid post to the executor, administrator or trustee at his address for service stated in the originating process for the grant or resealing.rules 78.72, 78.73: Ins 30.6.1972.
73 Extension of time
(1) An executor or administrator may, in the proceedings for the grant or the resealing, move for any order extending the period referred to in rule 71, including an order extending the period until the further order of the Court, without the prior filing or service of notice of the motion.(2) Where an order has been made under section 87 of the Probate Act requiring an executor, administrator or trustee to show cause, any application for an order extending the period referred to in rule 71 shall be made on the day appointed for showing cause.(3) Except where subrule (2) applies, a draft minute of the order sought shall be lodged with the registrar before any order is made on the motion.(4) An order extending the period referred to in rule 71 must be entered.(5) The order may be entered at any time after the minute of it is signed.rules 78.72, 78.73: Ins 30.6.1972.
74 Order to file etc accounts
Proceedings for an order that an executor, administrator or trustee of the estate of a deceased person:(a) file an inventory,(b) verify and file an inventory,(c) file accounts,(d) verify and file accounts,(e) file and pass accounts,(f) verify, file and pass accounts, orshall be commenced by summons.(g) pass accounts filed,rule 78.74: Ins 30.6.1972. Subst 24.12.1981.
75 Commencement of proceedings for passing accounts or for commission
Proceedings by an executor, administrator or trustee for:(a) an order passing accounts, orshall be commenced by summons.(b) an order passing accounts and for commission,rule 78.75: Ins 30.6.1972. Am 19.8.1994. Subst 22.11.1996.
75A Excessive commission
Proceedings for an order under section 86A of the Probate Act (which subsection relates to excessive commission, etc) shall be commenced by summons.rule 78.75A: Ins 24.12.1981.
76 Notice to be published
(1) At least 14 days before filing the summons under rule 75, the plaintiff shall cause to be published a notice in the form prescribed of:(a) the filing of the accounts, and(b) the order or orders claimed in the proceedings.(2) The notice shall be published:(a) if the deceased was resident at the date of his or her death in the State—in a newspaper circulating in the district where the deceased resided, or(b) otherwise—in a Sydney daily newspaper.(3) The plaintiff shall file an affidavit of compliance with this rule.rule 78.76: Ins 30.6.1972. Am 1.10.1976; 19.8.1994; 22.11.1996.
77 Sureties
(1) At least 14 days before filing the summons under rule 75 the plaintiff shall serve upon any surety to any administration bond in the estate a copy of the notice referred to in subrule (1) of rule 76.(2) The plaintiff shall file an affidavit of compliance with subrule (1).(3) Instead of or in addition to complying with subrules (1) and (2) in respect of any surety, the plaintiff may file the consent in the form prescribed of that surety to an order passing the accounts and an affidavit in the form prescribed verifying the consent.rule 78.77: Ins 30.6.1972. Am 22.11.1996.
77A Objection prior to proceedings
(1) Any person (the objector) may, prior to the filing of a summons under rule 75, by filing a notice in the form prescribed give notice of his or her intention to object to the passing of accounts or the allowance of commission.(2) The address for service shown in the notice shall be the objector’s address for service in any proceedings to which the notice relates.(3) The registrar shall serve the notice on any person who is or becomes an applicant for or has obtained a grant or resealing in respect of the deceased to whom the notice relates.(4) As soon as practicable after commencing proceedings under rule 75, the plaintiff shall serve the summons on the objector.rule 78.77A: Ins 22.11.1996.
78 Inspection and appearance
(1) Where proceedings have been commenced for:(a) an order passing accounts, orand the hearing of the proceedings has not been completed:(b) an order passing accounts and for commission,(c) any person may, unless the registrar otherwise directs, inspect the accounts without the leave of the Court, and(d) any person who seeks to object to the passing of the accounts or the allowance of commission shall, at any time before completion of the hearing, enter an appearance in the proceedings.(2) A person entering an appearance under subrule (1) shall be a defendant in the proceedings.rule 78.78: Ins 30.6.1972. Subst 19.8.1994. Am 22.11.1996.
79 Vouching
Unless the Court otherwise directs, the accounts shall be vouched:(a) in the absence of the public,(b) without the appearance before the Court of any person, and(c) without an appointment being obtained for the vouching.rules 78.79, 78.80: Ins 30.6.1972. Subst 19.8.1994; 22.11.1996.
80 Court may require further evidence, documents and notices
On an application under rule 75, the Court may require further evidence to be furnished, further documents to be filed, and notices to be given.rules 78.79, 78.80: Ins 30.6.1972. Subst 19.8.1994; 22.11.1996.
81 Certificate
(1) Upon the conclusion of the vouching the registrar shall inform the plaintiff of matters necessary for preparation by the plaintiff of a draft minute of a certificate by the registrar of the vouching of the accounts.(2) The certificate vouching the accounts shall certify as to:(a) the correctness of the accounts,(b) the balance of the accounts, and(c) such other information as the registrar may direct.(3) Where the plaintiff seeks commission, the certificate shall in addition certify as to:(a) the amount of capital realised,(b) the amount of income collected,(c) the value of any assets transferred to beneficiaries, andduring the period of the accounts.(d) where a business was carried on—the gross receipts and net profit earned or loss incurred,(4) The plaintiff shall lodge the draft minute with the registrar.(5) The registrar shall sign a correct minute of his or her certificate.(6) The registrar may of his or her own motion set aside or vary the certificate.rule 78.81: Ins 30.6.1972. Subst 19.8.1994.
82 (Repealed)
rule 78.82: Ins 30.6.1972. Rep 19.8.1994.
83 Order passing accounts
(1) This rule applies where:(a) there is no defendant in the proceedings,(b) the plaintiff does not seek commission, and(c) the registrar has signed a certificate under rule 81.(2) The plaintiff shall file a draft minute of order passing the accounts.(3) The Court may make the order passing the accounts without the appearance before it of any person.rule 78.83: Ins 30.6.1972. Subst 19.8.1994; 22.11.1996.
84 (Repealed)
rule 78.84: Ins 30.6.1972. Rep 19.8.1994.
85 Commission
(1) Where the plaintiff seeks commission he or she shall file with the draft minute of certificate referred to in rule 81:(a) an affidavit in support of the application, and(b) where the accounts were not filed within the time fixed by the rules or any order of the Court—an affidavit explaining the delay.(2) Upon signing a correct minute of his or her certificate pursuant to rule 81, the registrar may give an appointment for hearing of the application.rule 78.85: Ins 30.6.1972. Subst 19.8.1994.
86 Renunciation
(1) Where the plaintiff files a renunciation of commission, the accounts shall be allowed in accordance with the indemnity under section 86 of the Probate Act.(2) The renunciation shall be filed not later than a reasonable time before the hearing of the proceedings.rules 78.86, 78.87: Ins 30.6.1972.
87 Notice
The Court may order the plaintiff to give notice of the proceedings to any person.rules 78.86, 78.87: Ins 30.6.1972.
88 (Repealed)
rule 78.88: Ins 30.6.1972. Subst 23.9.1988. Rep 13.12.1991.
Division 12 Acknowledgments
89 Form of acknowledgment
An acknowledgment for the purposes set out in section 83 of the Probate Act shall be in the form prescribed.rules 78.89, 78.90: Ins 30.6.1972.
Division 13 Delegation
90 Forms
(1) Notice of appointment of the Public Trustee or a trustee company by an executor or administrator pursuant to the provisions of section 75A of the Probate Act shall be in the form prescribed.(2) A deed of appointment of the Public Trustee or a trustee company by an executor or administrator pursuant to the provisions of section 75A of the Probate Act shall be in the form prescribed.(3) Notice of objection to the appointment of the Public Trustee or a trustee company pursuant to the provisions of section 75A of the Probate Act shall be in the form prescribed.rules 78.89, 78.90: Ins 30.6.1972.
Division 14 Distribution of assets
pt 78, div 14: Ins 13.12.1991.
91 Notice of intended distribution
cf Practice Note, 60 WN (NSW) 123.
(1) A notice under section 92 of the Probate Act shall be published:(a) if the deceased was resident at the date of his death in the State—in a newspaper circulating in the district where the deceased resided, or(b) otherwise—in a Sydney daily newspaper.(2) The notice may be in or to the effect of Form 121 of Schedule F.rule 78.91: Ins 4.5.1973. Subst 13.12.1991.
Part 79 Court of Disputed Returns
Division 1 General
1 Application of Part
This Part applies to proceedings in the Court in the exercise of its jurisdiction as the Court of Disputed Returns.rules 79.1, 79.2: Ins 27.5.1977.
2 Interpretation
In this Part, unless the subject matter otherwise indicates or requires:Electoral District means the Electoral District for which the election was held, andsubject Act means the Parliamentary Electorates and Elections Act 1912.rules 79.1, 79.2: Ins 27.5.1977.
3 (Repealed)
rule 79.3: Ins 27.5.1977. Rep 2005 (407), Sch 1 [122].
The rules, other than this Part, so far as applicable and not inconsistent with the subject Act and this Part, apply to proceedings to which this Part applies.rules 79.4–79.19: Ins 27.5.1977.
5 Appointment of solicitor
cf Pt 66, r 5.
Where, after consent or leave is given to a party pursuant to section 171 of the subject Act to be represented by a solicitor and the party appoints a solicitor to act for him in the proceedings, the party shall file notice of the appointment and serve the notice on all other parties.rules 79.4–79.19: Ins 27.5.1977.
Division 2 Disputed elections and returns
6 Application of Division
This Division applies to proceedings under Division 1 of Part 6 of the subject Act.rules 79.4–79.19: Ins 27.5.1977.
7 Interpretation
For the purposes of rule 4, unless the context or subject matter otherwise indicates or requires:plaintiff means petitioner, anddefendant means respondent.rules 79.4–79.19: Ins 27.5.1977.
8 Commencement of proceedings
Proceedings in the Court shall be commenced by petition in the prescribed form, joining as respondent every person the validity of whose election or return is disputed.rules 79.4–79.19: Ins 27.5.1977.
9 Publication
cf HCR, O 68, r 3.
The petitioner shall, forthwith after filing the petition:(a) publish it in the Gazette, and(b) publish a notice in the prescribed form in a newspaper circulating in the Electoral District.rules 79.4–79.19: Ins 27.5.1977.
10 Service of petition
(1) The petitioner shall:(a) at the request of the Electoral Commissioner, serve the petition on the Electoral Commissioner personally,(b) within seven days after filing the petition, serve the petition on each respondent, other than the Electoral Commissioner, personally.cf HCR, O 68, r 4.(2) The request of the Electoral Commissioner under subrule (1) may be added to his notice of appearance.rules 79.4–79.19: Ins 27.5.1977.
11 Death of party
(1) Where a sole petitioner dies before the trial, his solicitor or, if he had no solicitor, the respondent on learning of his death, shall file notice of the death.cf HCR, O 68, r 12.(2) Where a respondent (other than the Electoral Commissioner) dies before the trial, his solicitor or, if he had no solicitor, the petitioner on learning of his death, shall file notice of the death.cf Representation of the People Act, 1949 (Eng), s 134 (1) and Election Petition Rules, 1960 (Eng), r 16.(3) The Prothonotary shall publish notice of the death in a newspaper circulating in the Electoral District.(4) The notice shall add a statement to the effect that any person who might have been a petitioner may, not later than 28 days after the publication of the notice, apply by motion to the Court at such time and place as the Court may appoint, to be substituted as a petitioner or as a respondent as the case may require.rules 79.4–79.19: Ins 27.5.1977.
12 Respondent not opposing petition
(1) Where, before the trial of a petition, a respondent (other than the Electoral Commissioner) files a notice that he does not intend to oppose a petition, he shall serve the notice on the petitioner and publish the notice in a newspaper circulating in the Electoral District.cf Representation of the People Act, 1949 (Eng), s 134 (1), and Election Petition Rules, 1960 (Eng), rr 15, 16.(2) A notice under subrule (1) shall add a statement to the effect that any person who might have been a petitioner may, not later than 28 days after the publication of the notice, apply by motion to the Court at such time and place as the Court may appoint to be substituted as a respondent.(3) A respondent who has filed a notice under subrule (1) shall not be allowed to appear or act as a party against the petition.(4) Where a respondent files a notice under subrule (1), the Prothonotary shall report that fact to the Clerk of the Legislative Assembly.rules 79.4–79.19: Ins 27.5.1977.
13 Substitution of petitioner or respondent
(1) The Court may, on application by a person who might have been a petitioner, order that that person be substituted as a petitioner or as a respondent, as the case may require, and may make further orders for the conduct of the proceedings which may include orders relating to:(a) service of the order and other documents in the proceedings,(b) amendment, and(c) the sum required under section 158 of the subject Act as security for costs.cf HCR, O 68, r 11 and Representation of the People Act, 1949 (Eng), ss 127 (1), 134 (1).(2) Where the Court orders that a party be substituted for another party or a former party, all things done in the proceedings before the making of the order shall, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old, but entry of appearance by the old party shall not dispense with entry of appearance by the new.cf Part 8, r 11 (2).rules 79.4–79.19: Ins 27.5.1977.
14 Electoral Commissioner
The Electoral Commissioner may apply to the Court under section 160 of the subject Act (which section relates to leave to enter an appearance) by motion in the proceedings.rules 79.4–79.19: Ins 27.5.1977.
15 Time limited for entry of appearance
cf Pt 7, r 5.
The time limited for entry of an appearance is:(a) in the case of the Electoral Commissioner, subject to any order of the Court—14 days after leave is granted to him to enter an appearance,(b) in the case of a respondent (other than the Electoral Commissioner)—14 days after service of the petition upon him,(c) in the case of any other person who might have been a petitioner—14 days after the publication of the petition in the Gazette.rules 79.4–79.19: Ins 27.5.1977.
16 No step without appearance
cf Pt 11, r 22.
A person, other than a petitioner or the Electoral Commissioner, shall not, except by leave of the Court, take any step in any proceedings unless, before taking the step, he has filed a petition under the subject Act or has entered an appearance in the proceedings.rules 79.4–79.19: Ins 27.5.1977.
17 Particulars
cf HCR, O 68, r 9.
The Court may order any party to file and serve on any other party particulars or further and better particulars of any matter alleged by him.rules 79.4–79.19: Ins 27.5.1977.
18 Motions
cf Pt 19, r 1.
An interlocutory or other application, in or for the purposes of or in relation to the proceedings, shall be made by motion under the rules.rules 79.4–79.19: Ins 27.5.1977.
19 Discontinuance
cf Representation of the People Act, 1949 (Eng), s 128.
(1) Proceedings may not be discontinued without the leave of the Court.cf HCR, O 68, r 11.(2) Where there are two or more petitioners, an application for leave under subrule (1) may not be made, except with the consent of all the petitioners.cf Pt 21, rr 1, 4.(3) The Court may give leave under subrule (1) on terms.(4) An application under subrule (1) should be made by motion at such time and place as the Court appoints.(5) The notice of motion for leave under subrule (1) shall state the grounds on which the application is made and add a statement to the effect that, on the hearing of the motion, any person who might have been a petitioner in respect of the election may apply to the Court to be substituted as a petitioner.(6) Not less than 14 days before the day appointed under subrule (4), the petitioner shall publish the notice of motion in a newspaper circulating in the Electoral District.(7) Evidence on an application for leave under subrule (1) shall include evidence denying, subject to any specified exceptions:(a) that any agreement or terms of any kind whatsoever has or have been made, andin relation to the discontinuance in respect of which leave is sought.(b) that any undertaking has been entered into,rules 79.4–79.19: Ins 27.5.1977.
20 Lists of objections to votes
(1) This rule applies where the petition (not being a petition merely claiming a fresh count of the votes counted at the election) claims the seat for a person not returned, alleging that that person had a majority of valid votes.cf HCR, O 68, r 7.(2) Each party shall, not later than 14 days before the day appointed for the trial, serve on the opposite party a list of the votes or class of votes which he contends were improperly admitted or improperly rejected, stating, in respect of each, the grounds of the contention.cf Election Petition Rules, 1960 (Eng), r 10 (1).(3) A contention under subrule (2) by a party shall not be entertained upon a ground not specified in his list, except with the leave of the Court.(4) The Court may give leave under subrule (3) on terms.rules 79.20, 79.21: Ins 27.5.1977. Am 26.9.1986.
21 Respondent’s contention of undue election
cf HCR, O 68, r 8.
Where a petition claims a seat for a person not returned and a respondent wishes to contend, upon a ground not mentioned in rule 20 (2), that that person was not duly elected, he shall, not later than 14 days before the day appointed for the trial, serve on the petitioner a statement of the facts upon which he intends to rely and the grounds of the contention.rules 79.20, 79.21: Ins 27.5.1977. Am 26.9.1986.
22 Trial
(1) The trial shall be held at a time and place to be appointed by the Court at the request of a party.cf HCR, O 68, r 10 (2).(2) Not less than 14 days’ notice of the time and place appointed shall:(a) be given by the party obtaining the order to the other parties, and(b) be published by the party obtaining the order in a newspaper circulating in the Electoral District.(3) The time and place of trial may be varied from time to time by the Court.(4) This rule does not affect the powers of the Court as to adjournment.rule 79.22: Ins 27.5.1977.
23 Evidence generally
Division 1 of Part 31 of the Uniform Civil Procedure Rules 2005 (which relates to evidence generally) applies on the trial of a petition as it applies on a trial in proceedings commenced by statement of claim.rule 79.23: Ins 27.5.1977. Am 2005 (407), Sch 1 [123].
Division 3 Qualifications and vacancies
24 Application
This Division applies to proceedings on a reference under Division 2 of Part 6 of the subject Act.rules 79.24, 79.25: Ins 27.5.1977.
25 Interpretation
In this Division, unless the context or subject matter otherwise indicates or requires, subject statement means a statement mentioned in section 175C of the subject Act.rules 79.24, 79.25: Ins 27.5.1977.
26 (Repealed)
rule 79.26: Ins 27.5.1977. Rep 2005 (407), Sch 1 [124].
27 Transmitting of documents
(1) The subject statement is transmitted to the Court under section 175C of the subject Act by filing it in the registry.(2) Proceedings, papers, reports or documents are transmitted under section 175C of the subject Act by lodging them in the registry.rules 79.27–79.31: Ins 27.5.1977.
28 Referring of question
A question is referred under Division 2 of Part 6 of the subject Act when the Speaker files with the subject statement a summons claiming the determination of the question stated for determination in the subject statement.rules 79.27–79.31: Ins 27.5.1977.
29 Parties
The summons shall join the Speaker as plaintiff and, where the matter of the subject statement concerns an election or return or the qualification of a member of the Legislative Assembly, the person whose election or return is disputed or the member, as the case may be, as defendant.rules 79.27–79.31: Ins 27.5.1977.
30 Service
The Prothonotary shall serve the subject statement with the summons.rules 79.27–79.31: Ins 27.5.1977.
31 Publication
cf Court of Disputed Returns Rules, r (7).
The Prothonotary shall, forthwith after the summons and subject statement are filed:(a) publish them in the Gazette, and(b) where the matter of the subject statement concerns an election or return, publish a notice in the prescribed form in a newspaper circulating in the Electoral District.rules 79.27–79.31: Ins 27.5.1977.
Part 80 Companies (New South Wales) Code and Corporations Law
pt 80: Ins 30.6.1982.
pt 80, Heading: Am 21.12.1990.
Schedule 1: Ins 30.6.1982 (see erratum 9.7.1982).
Division 1 Preliminary
1 Interpretation
cf Companies Rules, 1968, r 4.
In this Part, unless the contrary intention appears:corporation has the same meaning as it has in section 5 (1) of the Code.Companies Regulations means the Companies (New South Wales) Regulations.liquidator includes a provisional liquidator.officer in relation to a corporation, has the same meaning as it has in section 5 (1) of the Code.prescribed newspaper means:(i) where the proceedings relate to a corporation the prescribed office of which is, or, where the corporation does not have a prescribed office, the principal place of business of which is, or the last known principal place of business of which was, situated within 50 kilometres of the General Post Office, Sydney—a daily newspaper circulating generally in Sydney,(ii) where the proceedings relate to any other corporation—a newspaper circulating generally in the district in which the prescribed office of the corporation is situated or, where the corporation does not have a prescribed office, in which the principal place of business of which is, or the last known principal place of business of which was, situated.prescribed office means:(a) where the corporation is a company—its registered office for the purposes of section 528 (1) of the Code,(b) where the corporation is a recognised company or a recognised foreign company—its principal office for the purposes of section 529 (1) of the Code,(c) where the corporation is a registered foreign company—its registered office for the purposes of section 530 (1) of the Code.the Code means the Companies (New South Wales) Code.the Company means the company in respect of which any proceedings are taken in the Court under the Code.
Subject to any order of the Court and subject to Part 80A rule 2 and the Supreme Court (Corporations) Rules 1999, this Part applies, making such changes as it is necessary to make, to proceedings under the Corporations Law as it applies to proceedings under the Companies (New South Wales) Code.rule 80.1A: Ins 21.12.1990. Am 10.12.1993; 24.12.1999; 19.12.2003.
1B Corporations Law: affidavit (s 459E (3))
An affidavit referred to in Section 459E (3) of the Corporations Law must:(a) be made:(i) by the person serving the demand,(ii) where the demand is served by more than one person—by one of those persons,(iii) where the, or a, person serving the demand is a corporation—by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation, or(iv) where the person serving the demand is the Crown—by an officer of the Crown having knowledge of the facts so far as they are known to the Crown,(b) set out the facts entitling the deponent under paragraph (a) to make the affidavit,(c) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,(d) state that the deponent believes those matters to be true, and(e) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.rules 80.1B, 80.1C: Ins 21.5.1993.
1C Corporations Law: affidavit (s 459Q (c))
An affidavit referred to in Section 459Q (c) of the Corporations Law must:(a) be made:(i) by the plaintiff,(ii) where there is more than one plaintiff—by one of them,(iii) where the, or a, plaintiff is a corporation by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation, or(iv) where the plaintiff is the Crown—by an officer for the Crown having knowledge of the facts so far as they are known to the Crown,(b) set out the facts entitling the deponent under paragraph (a) to make the affidavit,(c) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,(d) state that the deponent believes those matters to be true, and(e) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.rules 80.1B, 80.1C: Ins 21.5.1993.
1D Corporations Law: affidavit (s 596C)
(1) An affidavit referred to in section 596C of the Corporations Law must set out:(a) the facts relied on to establish that the applicant is an eligible applicant for the purposes of section 596B,(b) the facts relied on to establish the matters referred to in section 596B (1) (b), and(c) if production of books is to be required—the deponent’s belief that the books, the production of which is sought, are reasonably required for the purposes of the examination, and the grounds for that belief.(2) A summons under section 596A or 596B of the Corporations Law shall be in Form 154A.rule 80.1D: Ins 2.7.1993.
Division 2 Proceedings under the Code generally
2 Commencement of proceedings
(1) Proceedings in the Court on an application for relief under the Code shall be commenced by summons.cf CR 1968, r 23.(2) Nothing in subrule (1) prevents an application for relief under the Code being made by motion in existing proceedings.rule 80.2: Ins 30.6.1982. Am 25.6.1993; 13.6.2003; 2005 (407), Sch 1 [125].
3 Additions above title
cf CR 1968, r 7.
A summons in proceedings for relief under the Code shall bear, above the title, a reference to the name of the corporation to which the proceedings relate together with “and the Companies Code”.rules 80.3, 80.4: Ins 30.6.1982.
4 Directing notice of any application etc
cf CR 1968, r 22 (a).
(1) The Court may, at any stage of proceedings under the Code, direct that notice of anything be given to any person or that any document be served on any person and give such further directions with respect to those matters or documents as it thinks fit.(2) This rule does not limit any other powers of the Court.rules 80.3, 80.4: Ins 30.6.1982.
5 Leave to creditor etc to be heard etc
(1) In any proceedings under the Code, the Court may, on terms, grant to any person who is, or claims to be, a creditor, contributory or officer of the company or an officer of a creditor or contributory of the company, leave to be heard in the proceedings without becoming a party, and may at any time revoke leave so granted.(2) In any proceedings under the Code, the Court may, on terms, order that any person who is or claims to be a creditor, contributory or officer of the company be added as a defendant, and make orders for the further conduct of the proceedings.(3) Leave may be granted to a person under subrule (1) and an order may be made adding a person under subrule (2) on application by the person or by any party or of the Court’s own motion.(4) (Repealed)rule 80.5: Ins 30.6.1982. Am 2005 (407), Sch 1 [126].
6 (Repealed)
rule 80.6: Ins 30.6.1982. Subst 30.3.1990. Rep 2005 (407), Sch 1 [127].
7 Inquiry as to creditors
cf CR 1968, r 14, 22 (c).
(1) The Court may direct an inquiry as to any debts, claims or liabilities or class thereof of or affecting any corporation to which any proceedings under the Code relate.(2) Where the Court directs an inquiry under subrule (1), rule 10 applies, with the necessary modifications, as it applies where the Court directs that a list of creditors be settled.rule 80.7: Ins 30.6.1982.
8 Registrar furnishing copy of summons etc
cf CR 1968, r 17 (5).
The registrar shall, upon payment of the fee (if any) fixed under the Act, furnish to any person claiming to be a contributory, creditor or officer of the Company, an office copy of the summons and affidavits which are in the custody of the registrar and are filed by by the plaintiff in support of an application for the winding up of the Company.rule 80.8: Ins 30.6.1982. Am 14.2.1986; 20.2.1987.
Division 2A Part II of the Code
pt 80, div 2A: Ins 22.10.1982. Am 20.10.1989; 15.12.1989.
8A Appeal from Board (s 30R)
cf CR 1968, r 39.
The Companies Auditors and Liquidators Disciplinary Board may, on application in writing made to it before the expiration of the time (other than the time extended by the Court) for instituting an appeal from its decision under section 30R of the Code, grant, by notice in writing, an extension of that time and where it does so, it shall deliver the notice to the applicant who shall file the notice with the summons instituting the appeal.rule 80.8A: Ins 22.10.1982. Am 20.10.1989; 15.12.1989; 2005 (407), Sch 1 [128].
Division 3 Parts III–XI of the Code
9 Applications under ss 73, 118, 122, 123, 125, 133 and 175
cf CR 1968, r 29.
(1) This rule applies to an application for an order under any of the provisions of the Code referred to in column 1 of the Table below:Table
10 Reduction of capital (s 123)
cf CR 1968, r 31.
(1) This rule applies where, on an application for an order under section 123 (5) of the Code, the Court fixes a date under section 123 (3) (a) of the Code.(2) Within seven days after the date fixed under section 123 (3) (a) of the Code, the Company shall:(a) make out a list of creditors, and(b) file an affidavit in Form 127 verifying the list.(3) Copies of the list shall be kept at the registered office of the Company and be available for inspection there at all times when the office is required to be open and accessible to the public.(4) Within seven days after the date of filing the affidavit under subrule (2) (b), the Company shall:(a) publish once in the Government Gazette and once in a prescribed newspaper a notice in Form 126, and(b) serve on each creditor whose name is entered on the list mentioned in subrule (2) (a) a notice in Form 128.(5) Within seven days after the expiry of the time fixed by the Court for creditors to send particulars of their claims to the solicitor for the Company, the Company shall file an affidavit in Form 129.(6) Where the Company contends that a person is not entitled to be entered on the list or disputes the amount of a debt or claim claimed by a person, the Company shall, unless the Company is willing to appropriate, as the Court directs, the full amount of the debt or claim, serve on the person a notice in Form 130.(7) The Court may, on the adjudication of claims:(a) allow any claim and fix the amount allowed,(b) direct that any claim be investigated in such manner as the Court thinks fit,(c) require any claimant to furnish particulars or evidence of his claim or produce any security relating to his claim, or(d) disallow any claim.(8) Where a claimant does not comply with a notice served on him under subrule (6), the Court may disallow his claim.(9) In subrules (7) and (8), claim includes part of a claim.rules 80.10–80.12: Ins 30.6.1982.
11 Reduction of capital: appointment for hearing (s 123)
cf CR 1968, r 32.
Where the Court settles the list under section 123 (3) (b) of the Code, the Court shall appoint a date for hearing of the proceedings on the application for the order under section 123 (5) of the Code.rules 80.10–80.12: Ins 30.6.1982.
12 Registration of transfer of shares etc (s 184)
(1) An application to the Court for an order for the issue of a summons under section 184 (3) of the Code may be made without serving the summons by which the application is made on any person.(2) A summons under section 184 (3) of the Code may be in Form 131.rules 80.10–80.12: Ins 30.6.1982.
13 (Repealed)
rule 80.13: Ins 30.6.1982. Rep 2005 (407), Sch 1 [129].
14 Compromise with creditors etc (ss 315, 317)
cf CR 1968, r 23 (i).
(1) An application for relief under a subsection of section 315 of the Code, (which section relates to a compromise with creditors etc) other than under subsection (1) of that section, shall be made by motion in the proceedings on the application for the order under subsection (1) of that section.(2) Rule 9 applies to an application for an order under section 315 (4) or section 317 (1) of the Code as it applies to an application for an order under the provisions of the Code mentioned in rule 9 (1).(3) The Court may, on the application of any person whose rights are affected by a compromise or arrangement approved under section 315 (4) of the Code, fix or review the remuneration of the person appointed to administer the compromise or arrangement.rules 80.14–80.17: Ins 30.6.1982.
15 Oppression or injustice (s 320 (2))
Rules 18, 19, 20, 21 and 22 apply to an application for an order under section 320 (2) of the Code as they apply to an application for an order under section 364 (1) of the Code and as if for the reference in rule 18 (3) (e) to a paragraph of section 364 (1) of the Code there were a reference to a subparagraph of section 320 (1) (a) of the Code.rules 80.14–80.17: Ins 30.6.1982.
16 Release of official manager (s 355)
cf CR 1968, r 216.
A person applying for an order under section 355 (19) or section 355 (20) of the Code shall give notice of his application:(a) to every creditor who has proved his debt, and(b) to any creditor mentioned in the report referred to in section 335 (4) of the Code who has not proved his debt.rules 80.14–80.17: Ins 30.6.1982.
Division 4 Part XII of the Code (winding up)
17 Company Index: search (s 363)
cf CR 1968, r 44 (1).
Any person may, upon payment of the fee (if any) fixed under the Act, search in the Company Index kept in the registry against the name of the Company which is the subject of a winding up application or which is in the course of being wound up.rules 80.14–80.17: Ins 30.6.1982.
18 Application for a winding up order under s 364 (1)
(1) This rule applies to an application for an order under section 364 (1) of the Code.(2) The summons claiming the order may be in Form 132.(3) The evidence in support of the application shall include:(a) a statement of the statute under which the Company was incorporated,(b) a statement of the date of incorporation,(c) unless the Company is the plaintiff or has entered an appearance, proof of:(i) the address of its registered office at the date of search made under this subrule, being the latest address disclosed in a notice or annual return lodged with the Commission under section 84 (2) (b) (ia), section 85 (4) (fa), section 217 (1) or (3) or section 263 (1) of the Code,as ascertained by search made not earlier than three days before:(ii) the date of lodgment of the notice or return disclosing that address,(iii) if the summons was served on the Company by post—the date of posting, or(iv) if the summons was served otherwise—the date of service,(d) unless the Company is the plaintiff, the capacity in which the plaintiff makes the application,(e) the grounds of the application and a reference to the paragraph of section 364 (1) of the Code under which the plaintiff is proceeding.(4) Unless the Court otherwise orders, notice in Form 126 of the application shall, not earlier than three days after the date of service on the Company of the summons claiming the order and not later than seven days before the date of hearing, be published once in the Government Gazette and once in a prescribed newspaper.rule 80.18: Ins 30.6.1982. Am 22.10.1982; 12.7.1985; 20.4.1990.
19 Serial number: winding up
cf CR 1968, r 43.
The serial number assigned to the summons claiming an order for the winding up of the Company shall be borne by every document filed in proceedings in the winding up of the Company after the winding up order is made.rule 80.19: Ins 30.6.1982.
20 Notice of intention to appear
cf CR 1968, r 27, 28.
(1) This rule applies in proceedings on an application for a winding up order under the Code.(2) Where a person on whom the summons has not been served intends to appear on the hearing of the application, he shall add to his notice of appearance a note in Form 133.(3) The notice shall be served on the plaintiff before 1 in the afternoon of a day (being a day on which the registry is open for business) before the date appointed for hearing.(4) Where the plaintiff has received any notice mentioned in subrule (2) he shall, at or before the hearing, file a notice in Form 134.rule 80.20: Ins 30.6.1982 (see erratum 9.7.1982). Am 22.10.1982.
21 Substituted plaintiff in winding up application
cf CR 1968, r 52.
(1) Where a plaintiff, in proceedings on an application for a winding up order:(a) fails to take all the steps prescribed by these rules preliminary to the hearing,(b) seeks the leave of the Court to discontinue the proceedings,(c) consents to the proceedings being dismissed,(d) does not appear when the proceedings are called on for hearing,(e) does not claim the order at the hearing, orthe Court may, at any time, on terms, subject to the Code, on application of any person, make orders for the further conduct of the proceedings, including an order in Form 135 substituting that person for the former plaintiff.(f) does not obtain the order at the hearing,(2) (Repealed)rule 80.21: Ins 30.6.1982. Am 2005 (407), Sch 1 [130].
22 Discontinuance
Rule 12.2 of the Uniform Civil Procedure Rules 2005 does not apply to proceedings on an application for a winding up order.rule 80.22: Ins 30.6.1982. Am 2005 (407), Sch 1 [131].
22A Notice to liquidator of appointment
(1) Where an order for the winding up of a Company is made, the plaintiff shall:(a) complete two forms of notice in Form 135A,(b) leave a copy with, and obtain a sealed copy from, the proper officer of the Court,(c) serve the sealed copy on the liquidator appointed:(i) where the order is made before noon—before 5 in the afternoon,(ii) where the order is made in the afternoon—before noon of the following day.(2) A sealed copy is sufficiently served on a liquidator within the time prescribed in subrule (1) (c) if the information contained in the copy is transmitted to the liquidator’s facsimile transmission number by a means that reproduces, in the hands of the liquidator, that information as it appears in the copy.rule 80.22A: Ins 14.2.1986. Am 16.3.1990.
23 Form of winding up order
cf CR 1968, r 58.
A minute of a winding up order may be in Form 136.rule 80.23: Ins 30.6.1982.
23A (Repealed)
rule 80.23A: Ins 25.10.1991. Rep 2005 (407), Sch 1 [132].
24 Stay of proceedings against company (s 367)
Where an action or other civil proceeding against a company is pending in the Court in a Division, an application to the Court for an order under section 367 (6) of the Code may be made by motion in the action or proceeding in that Division.rule 80.24: Ins 30.6.1982.
24A Validation of dispositions of property etc (s 368)
An application for an order under section 368 (2) of the Code (which subsection relates to the validation of dispositions of property etc) shall be made by motion in the proceedings for the winding up order.rule 80.24A: Ins 22.10.1982.
25 Proceedings against a Company after a winding up order (s 371)
An application for leave under section 371 (2) of the Code may, where the proceedings in respect of which leave is sought have been commenced in a Division, be made by motion in those proceedings in that Division.rule 80.25: Ins 30.6.1982.
26 Appointment of provisional liquidator (s 372)
cf CR 1968, r 50 (3).
(1) An application for the appointment of a provisional liquidator under section 372 (2) of the Code shall be made by motion in the proceedings for the winding up order.(2) Any party obtaining an order under section 372 (2) of the Code shall:(a) complete two forms of notice in Form 136A,(b) leave a copy with, and obtain a sealed copy from the proper officer of the Court,(c) serve the sealed copy on the provisional liquidator appointed:(i) where the order is made before noon—before 5 in the afternoon,(ii) where the order is made in the afternoon—before noon of the following day,(d) publish once in the Government Gazette and once in a prescribed newspaper a notice in Form 137, and(e) serve an office copy of the minute of order on the provisional liquidator.(3) A sealed copy is sufficiently served on a provisional liquidator within the time prescribed in subrule (2) (c) and an office is sufficiently served under subrule (2) (e) if the information contained in the copy is transmitted to the provisional liquidator’s facsimile transmission number by a means that reproduces, in the hands of the provisional liquidator, that information as it appears in the copy.rule 80.26: Ins 30.6.1982. Subst 22.10.1982. Am 20.4.1990.
27 Notice to liquidator of appointment
cf CR 1968, r 55.
The registrar shall, forthwith after a person has been appointed liquidator or provisional liquidator, give notice to that person of his appointment.rules 80.27–80.33: Ins 30.6.1982.
28 Notice of appointment of liquidator
cf CR 1968, r 57.
Where the Court makes an order for the winding up of the Company and appoints a liquidator, the liquidator shall, not later than seven days after the order is made, publish a notice in Form 138 once in the Government Gazette and once in a prescribed newspaper.rules 80.27–80.33: Ins 30.6.1982.
29 Provisional liquidator (s 372)
cf CR 1968, r 50 (5).
(1) Subject to the Code and the rules and subject to any directions of the Court, a liquidator appointed provisionally under section 372 (2) of the Code shall have power to carry on the business of the Company and the powers specified in section 377 (2) (a)–(k) of the Code.(2) For the purpose of enabling the provisional liquidator to take out letters of administration or recover money as mentioned in section 377 (2) (h) of the Code, the money due shall be deemed to be due to the provisional liquidator himself.(3) The exercise by the provisional liquidator of the powers conferred by this rule is subject to the control of the Court, and any creditor or contributory may apply to the Court with respect to any exercise or proposed exercise of any of those powers.rules 80.27–80.33: Ins 30.6.1982.
30 Filling vacancy in office of liquidator (s 373)
cf CR 1968, r 89 (5).
A person applying to the Court for an order under section 373 (7) of the Code shall, not later than seven days before the date appointed for hearing, publish, in a prescribed newspaper, a notice of his intention to apply to the Court for the order.rules 80.27–80.33: Ins 30.6.1982.
31 Copy of report under s 375 (7) (a)
cf CR 1968, r 66.
The copy of the report required to be filed with the Court under section 375 (7) (a) of the Code shall be a copy certified in writing by the liquidator of the Company to be a true copy of the original report.rules 80.27–80.33: Ins 30.6.1982.
32 List of contributories (s 378 (1) (a))
cf CR 1968, r 140.
Where, in a winding up by the Court, a liquidator has settled a list or supplementary list of contributories, he shall, within 14 days after certifying it, file a copy of it and the certificate.rules 80.27–80.33: Ins 30.6.1982.
33 Liquidator to file resolutions
cf CR 1968, r 100.
(1) The liquidator appointed by the Court shall, after the passing of any resolution of a meeting of creditors, of contributories, of both or of the committee of inspection, file a copy certified by him of the resolution.(2) The certificate may be in Form 139.rules 80.27–80.33: Ins 30.6.1982.
34 (Repealed)
rule 80.34: Ins 30.6.1982. Subst 22.10.1982. Rep 24.2.1984.
35 Release of liquidator (s 381)
(1) A summons by which an application is made under section 381 (c) or section 381 (d) of the Code for an order that the liquidator be released shall bear a note “Section 382 (3) of the Companies (New South Wales) Code provides” and state the provisions of the subsection.(2) The liquidator shall file with a summons claiming an order mentioned in section 381 (c) or section 381 (d) of the Code a summary of receipts and payments in the winding up and a statement showing the position of the Company at the date of filing the summons.(3) The liquidator shall give notice of the application and copies of the summary and the statement:(a) to every creditor who has proved his debt, and(b) to every contributory.cf CR 1968, r 206.(4) The evidence in support of the application shall include statements in an affidavit by the liquidator to the following effect:(a) “To the best of my belief there has been no act done or default made by me in the administration of the affairs of the company or otherwise in relation to my conduct as liquidator which is likely to give rise to any liability to the company or any creditor or contributory (where applicable add except as disclosed in this affidavit)”,(b) “I am not aware of any claim made by any person that there has been any such act or default (where applicable add except as disclosed in this affidavit)”.rule 80.35: Ins 30.6.1982. Am 15.12.1989.
36 Report by the liquidator to the Court: stay of winding up (s 383)
cf CR 1968, r 73 (1); (As to s 384 of the Code (delivery of property to liquidator and calls), see rules 40–45.)
A report by the liquidator to the Court under section 383 (2) of the Code may be furnished to the Court by filing it in Form 140.rule 80.36: Ins 30.6.1982.
37 Special manager (s 385)
cf CR 1968, r 61.
(1) This rule applies to proceedings in the Court under section 385 of the Code (which section relates to a special manager).(2) The liquidator may file an unverified statement in support of the application, instead of an affidavit.(3) Security is sufficiently given if it is given for any winding up in which the person giving security is appointed a special manager.(4) The Court may at any time and from time to time give directions for the giving of security in a different amount to the amount for which security was previously given.(5) Where security is given to the satisfaction of an associate Judge he shall give a certificate to that effect.rule 80.37, reference, before hdg to: Ins 22.10.1982.rules 80.37, 80.38: Ins 30.6.1982.
38 Accounting by special manager
cf CR 1968, r 62.
(1) Subject to any order of the Court under section 385 (2) (a) of the Code, the special manager shall furnish his accounts to the liquidator.(2) The accounts shall be verified by affidavit.(3) The affidavit may be in Form 141 and subscribed to the accounts.(4) When the accounts are approved by the liquidator, the totals of the receipts and payments shall be included by the liquidator in his accounts.rules 80.37, 80.38: Ins 30.6.1982.
39 Default of special manager
cf CR 1968, r 64.
(1) Where any special manager is required by the rules or any direction of the Court to do anything and does not carry out the requirement, the liquidator shall apply to the Court for directions in respect of the default and the Court may make such orders and give such directions as the Court thinks fit.(2) Without limiting subrule (1), where a special manager is required by the rules or by any order or direction of the Court to pay into Court any sum shown by his account as due from him, and he does not comply with the requirement, the Court may charge him with interest at the rate prescribed for payment of interest by a receiver under Rule 26.6 (3) of the Uniform Civil Procedure Rules 2005 on that sum while in his possession as special manager.(3) This rule does not limit the powers of the Court as to the enforcement of orders or as to the punishment of contempt.rule 80.39: Ins 30.6.1982. Am 2005 (407), Sch 1 [133].
40 Requirement by liquidator to pay money etc (ss 384 (1) and 389)
cf CR 1968, r 136.
A requirement by a liquidator under section 384 (1) of the Code may be in Form 142.rules 80.40–80.45: Ins 30.6.1982.
41 Calls: sanction of committee of inspection (ss 384 (3), 389)
cf CR 1968, r 145 (1).
(1) In a winding up by the Court the liquidator shall, for the purpose of obtaining the sanction of the committee of inspection under section 389 (2) (a) of the Code:(a) convene a meeting of the committee by serving notice in Form 143 on every member of the committee so as to reach him not later than seven days before the date appointed for the meetings,(b) serve on every member of the committee, with the notice mentioned in paragraph (a), a statement in Form 144, and(c) publish notice of the meeting in Form 145 once in the Government Gazette and once in a prescribed newspaper or as the Court may direct.(2) The committee shall, before sanctioning the proposed call, consider representations (if any) made by any contributory to the liquidator or any member of the committee in writing before or at, or orally at, the meeting.(3) A resolution of the committee of inspection sanctioning a call may be in Form 146.rules 80.40–80.45: Ins 30.6.1982.
42 Application for leave to make a call (ss 384 (3), 389)
cf CR 1968, r 146.
(1) This rule applies to proceedings on an application for an order under section 389 (2) (a) of the Code (which section relates to leave to make a call).(2) The summons may be in Form 147.(3) The affidavit in support of the application may be in Form 148.(4) Subject to subrule (5), the summons shall be served on each contributory on whom it is proposed the call should be made.(5) The summons need not be served on the contributories where the Court directs that notice of the proposed call may be given by advertisement.(6) The advertisement may be in Form 149.(7) The copy of the summons served on a contributory may show only the amount claimed to be owing by him.(8) The order granting leave may be in Form 150.rules 80.40–80.45: Ins 30.6.1982.
43 Filing notice of amount of call per share (ss 384 (3), 389)
cf CR 1968, r 146.
Where in a winding up by the Court the liquidator is authorised under section 389 (2) (a) of the Code to make a call, he shall file a notice in Form 151 showing the amount of the call per share.rules 80.40–80.45: Ins 30.6.1982.
44 Call on contributories (ss 384 (3), 389)
cf CR 1968, r 147.
(1) In a winding up by the Court, the liquidator shall make a call on a contributory by serving a notice in Form 152 or Form 153 as the case may require, on the contributory.(2) The Court may direct that notice of the order granting leave to make the call or of the resolution sanctioning the making of the call be advertised.rules 80.40–80.45: Ins 30.6.1982.
45 Application for order for payment of call (s 384 (3) (b))
cf CR 1968, r 148; (As to s 385 of the Code (special manager), see rules 37–39.)
Evidence in support of an application for an order under section 384 (3) (b) of the Code (which relates to an order for payment of a call) shall include an estimate of the amount owing by each contributory (if more than one) in respect of the costs of the application and of carrying it into effect and a statement that the estimate is based on an apportionment of the costs of the application equally among the contributories who have not paid the call.rules 80.40–80.45: Ins 30.6.1982.
46 Powers of liquidator (s 389)
Subject to the Code, the rules and the Companies Regulations, the powers and duties conferred or imposed on the Court by Part XII of the Code in respect of:(a) the holding and conducting of meetings to ascertain the wishes of creditors and contributors,(b) the paying, delivering, conveyance, surrender or transfer of money, property or books to the liquidator,(c) the making of calls and the adjusting of the rights of contributories among themselves and the distribution of any surplus among the persons entitled to it, andmay be exercised and shall be performed by the liquidator as an officer of the Court and subject to the control of the Court.(d) the fixing of a time within which debts and claims must be proved,rule 80.46, reference, before hdg to: Ins 22.10.1982.rules 80.46–80.50: Ins 30.6.1982.
47 Proceedings against company after voluntary winding up (ss 401, 402)
An application for leave under section 401 (2) or section 402 (2) of the Code may, where the proceedings in respect of which leave is sought have been commenced in a Division, be made by motion in the proceedings.rules 80.46–80.50: Ins 30.6.1982.
48 Complaints concerning liquidator (s 420 (1))
A complaint to the Court under section 420 (1) of the Code shall be filed with the summons claiming an inquiry under the subsection in respect of the matter complained of.rules 80.46–80.50: Ins 30.6.1982.
49 Report concerning liquidator (s 420 (2))
cf CR 1968, r 211.
(1) A report to the Court by the Commission under section 420 (2) of the Code shall be filed with the summons claiming orders under the subsection in respect of the matter reported.(2) A report made under section 420 (2) of the Code shall not be inspected or used except by leave of the Court.rules 80.46–80.50: Ins 30.6.1982.
50 Resignation of liquidator (s 421)
cf CR 1968, r 89 (1).
Where, in a winding up by the Court, the liquidator resigns, he shall, within the time prescribed by section 421 (2) of the Code, file a copy of the notice of the resignation in the form prescribed by the Companies Regulations.rules 80.46–80.50: Ins 30.6.1982.
51 (Repealed)
rule 80.51: Ins 30.6.1982. Rep 22.10.1982.
52 Report by the chairman to the Court: meeting of creditors etc (s 431)
cf CR 1968, r 73 (1).
A report by the chairman to the Court under section 431 (1) of the Code may be made by filing a report in Form 140.rules 80.52–80.54: Ins 30.6.1982.
53 Committee of inspection (s 432)
cf CR 1968, r 74 (2).
(1) The Court may, in proceedings for an order under section 432 (2) of the Code (which subsection relates to the appointment of a committee of inspection) make an appointment for hearing of the proceedings and give directions for service and publication of notice of the appointment.(2) On the hearing the Court may hear the liquidator, any creditor and any contributory.rules 80.52–80.54: Ins 30.6.1982.
54 Filing proof of debt (s 438)
cf CR 1968, r 164.
In a winding up by the Court the liquidator shall, within three days after service upon him of a summons instituting an appeal from his decision rejecting a creditor’s proof of debt, file the proof and a copy of the notice given by him under regulation 125 (1) of the Companies Regulations.rules 80.52–80.54: Ins 30.6.1982.
55 (Repealed)
rule 80.55: Ins 30.6.1982. Rep 2005 (407), Sch 1 [134].
56 Disclaimer (s 454)
cf CR 1968, r 130.
The applicant for leave under section 454 (6) of the Code shall file an affidavit showing who the persons interested are and their interests.rules 80.56–80.59: Ins 30.6.1982.
57 Winding up of bodies other than companies (s 470)
The rules apply, with such adaptations as are necessary, to a body to which Part XII Division 6 of the Code applies as they apply to a Company.rules 80.56–80.59: Ins 30.6.1982.
58 Stay of proceedings against body other than a Company (s 472)
An application for leave under section 472 (2) of the Code may, where the proceedings in respect of which leave is sought have been commenced in a Division, be made by motion in those proceedings in that Division.rules 80.56–80.59: Ins 30.6.1982.
Division 5 Part XIV of the Code (miscellaneous)
59 Security for costs: plaintiff corporation (s 533)
cf CR 1968, r 3 (3).
Where a proceeding referred to in section 533 of the Code (which section relates to a plaintiff corporation giving security for costs) has been commenced in a Division, an application under that section may be made by motion in those proceedings in that Division.rules 80.56–80.59: Ins 30.6.1982.
60 (Repealed)
rule 80.60: Ins 30.6.1982. Rep 19.7.1985.
61 Appeal from liquidator etc (s 538)
cf CR 1968, r 39.
A person mentioned in section 538 (a), (b), (c) or (d) may, on application in writing made to him before the expiration of the time (other than the time extended by the Court) for instituting an appeal from his act, omission or decision, grant, by notice in writing, an extension of that time and where he does so, he shall deliver the notice to the applicant who shall file the notice with the summons instituting the appeal.rule 80.61: Ins 30.6.1982. Am 2005 (407), Sch 1 [135].
61A Irregularities (s 539)
Subject to any direction of the Court, an application for an order under section 539 of the Code in or for the purposes of or in relation to any proceedings in the Court may be made by motion in those proceedings.rule 80.61A: Ins 22.10.1982.
62 Examination of person concerned with corporation (s 541)
cf CR 1968, r 119–126.
(1) This rule applies to proceedings on an application to the Court for an order under section 541 (3) of the Code.(2) The summons by which the application is made shall be served:(a) where a liquidator has been appointed, unless he is the applicant—on the liquidator, andand need not be served on any other person unless the Court so directs.(b) unless the Commission is the applicant—on the Commission,(3) The applicant shall, when making the application, lodge in the registry a draft minute in Form 154 of the order sought.(4) A minute of the order made shall be served personally on the person who is to be examined and shall be served, where the liquidator is the applicant, on the Commission and, where the Commission is the applicant, on the liquidator.(5) The applicant shall publish once in the Government Gazette and once in a prescribed newspaper, notice of the time and place appointed for the holding of an examination but not, unless the Court so orders, for the holding of an adjourned examination.(6) Where the Court makes an order under section 541 (13) of the Code, the written record, signed if so required by the Court under that subsection, shall be filed in the registry.(6A) Where:(a) the examination of a person under section 541 of the Code is held wholly or partly in public, andthe registrar shall, upon application by the person made within 3 years of the date of the conclusion of the examination and payment of the prescribed fee, furnish to the person a copy of the written record or transcript of such part of his examination as is held in public.(b) a written record or transcript of the questions put to the person and the answers given by the person at the examination is filed in the registry,(7) A transcript is authenticated under section 541 (14) of the Code by a certificate by the person who made the transcript certifying it to be a correct record of the examination.(8) A written record or transcript of an examination under section 541 of the Code shall not, except with the leave of the Court, be open to inspection by any person.(9) Subrule (8) does not apply to the liquidator or any person authorised by the Commission.(10) Where the examination is held before a court other than the Court, the powers of the Court under this rule may be exercised by that other court.rule 80.62: Ins 30.6.1982. Am 24.7.1992; 2005 (407), Sch 1 [136].
63 Default in relation to an examination
cf CR 1968, r 127 (2).
(1) Where a registrar constitutes the Court for the purpose of an examination under section 541 of the Code and a person (the person in default) refuses or fails to do anything mentioned in section 541 (7), (8) or (9) of the Code, he shall, at the request of any person who took part in the examination, give to that person a certificate, signed by him, of the refusal or failure.(2) The Court may, upon the certificate being filed and on motion by any party, order the person in default:(a) to do the thing, and(b) to pay any costs occasioned by his refusal or failure.rule 80.63: Ins 30.6.1982.
Division 6 Meetings ordered by the Court
pt 80, div 6 (Rule 80.64): Ins 22.10.1982.
64 Application of regulations
cf CR 1968, r 92.
Subject to the Code and subject to any directions of the Court, the provisions of regulations 84–99 of the Companies Regulations apply to and in respect of meetings ordered by the Court.pt 80, div 6 (Rule 80.64): Ins 22.10.1982.
Part 80A Corporations Law and ASC Law
pt 80A: Ins 10.12.1993.
pt 80A (The whole Part): Am 23.10.1998 (“the Commission” omitted wherever occurring, “ASIC” inserted instead).
Division 1 Preliminary
pt 80A, div 1: Ins 10.12.1993.
1A (Repealed)
rule 80A.1A: Ins 21.8.1998. Rep 23.10.1998.
1 Interpretation
In this Part, unless the contrary intention appears:(a) subject Act means the Corporations (New South Wales) Act 1990.advertised means published in the Commonwealth of Australia Gazette and in a prescribed newspaper.Corporations Law has the meaning given by section 13 of the subject Act.prescribed newspaper means:(i) where the registered office of the subject corporation is within 100 kilometres of the General Post Office, Sydney—a daily newspaper circulating generally in Sydney,(ii) where the subject corporation does not have a registered office, and its principal place of business or last known principal place of business is or was within 100 kilometres of the General Post Office, Sydney—a daily newspaper circulating generally in Sydney, or(iii) in any other case—a newspaper circulating generally in the district in which the registered office of the subject corporation is situated or, if it does not have a registered office, in which its principal place of business or last known principal place of business is or was situated.subject corporation means corporation to which the application relates,(b) subject to this rule, a word or expression defined in the Corporations Law (other than for the purposes of limited parts thereof) has the meaning as so defined,(c) a reference to a section is a reference to a section of the Corporations Law.rule 80A.1: Ins 10.12.1993. Am 23.10.1998.
2 Application
Subject to any order of the Court, this Part applies to:(a) proceedings under the Corporations Law or the ASC Law commenced in the Court after 30 January 1994 and before the Supreme Court (Corporations) Rules 1999 commence, and(b) applications made under the Corporations Law or the ASC Law after 30 January 1994 in proceedings in the Court commenced before the Supreme Court (Corporations) Rules 1999 commence.rule 80A.2: Ins 10.12.1993. Subst 24.12.1999. Am 19.12.2003.
3 Commencement of proceedings
(1) Subject to rule 18.1 of the Uniform Civil Procedure Rules 2005 (which relates to applications by motion) and to subrules (2), (4) and (5), proceedings in the Court for relief under the Corporations Law or the ASC Law must be commenced by summons under Part 5 rule 4B (as in force at the relevant time before the commencement of the Supreme Court (Corporations) Rules 1999).(2) Proceedings in the Court on an application:(a) for an order for the winding up of a corporation shall be commenced by summons under Part 5 rule 4A (as in force at the relevant time before the commencement of the Supreme Court (Corporations) Rules 1999),(b) for other relief under the Corporations Law where:(i) it is necessary to obtain an early appointment for hearing, andwhether for final or interlocutory relief or directions, may be commenced by summons under Part 5 rule 4A (as in force at the relevant time before the commencement of the Supreme Court (Corporations) Rules 1999).(ii) the plaintiff intends to be ready to proceed at the time appointed,(3) The summons must state above the title:(a) the name of the subject corporation followed, where appropriate, by the words “(in liquidation)”, “(provisional liquidator appointed)”, “(receiver appointed)”, “(receiver and manager appointed)”, “(under official management)” or “(administrator appointed)”,(b) (if applicable) the registered number of the subject corporation preceded by the words “Australian Company Number” (which may be abbreviated to “ACN”) or “Australian Registered Body Number” (which may be abbreviated to “ARBN”) as the case may be, and(c) the words “and the Corporations Law” or “and the ASC Law”, as the case may be.(4) Without limiting the generality of rule 18.1 of the Uniform Civil Procedure Rules 2005, application of the following kinds must be made by motion in the relevant winding up proceedings, namely:(a) an application for an order under section 467 (7) (which relates to staying existing proceedings),(b) an application for an order under section 468 (which relates to avoidance of dispositions of property),(c) an application for an order under section 472 (which relates to provisional liquidators), and(d) any application in the winding up of the subject corporation.(5) An application for an order under section 471B or section 500 (2) in respect of existing proceedings in the Court in a Division may be made by motion in those proceedings.(6) Notwithstanding subrule (4) and rule 18.1 of the Uniform Civil Procedure Rules 2005, an application for the issue of an Examination Summons under section 596A or section 596B must be made by summons.rule 80A.3: Ins 10.12.1993. Am 13.6.2003; 19.12.2003; 2005 (407), Sch 1 [137].
4 Registration of transfer of shares etc (s 1092 (3))
(1) An application to the Court for an order for the issue of a summons, under section 1092 (3) may be made, without serving the summons by which the application is made on any person.(2) A summons under section 1092 (3) may be in Form 154BA.rule 80A.4: Ins 10.12.1993.
Division 2 Proceedings generally
pt 80A, div 2: Ins 10.12.1993.
5 Additional powers of the Court
Without limiting its other powers, the Court may at any time in proceedings, on application by a party or of its own motion:(a) direct that notice of any matter be given by advertisement or otherwise to any person or class of persons,(b) direct that a document be served on any person,(c) grant to any person who is or claims to be a creditor, contributory or officer of a subject corporation, or an officer of such a creditor or contributory, leave to be heard without becoming a party,(d) revoke, or vary the terms and conditions of, any such leave,(e) order that any person who is or claims to be a creditor, contributory or officer of a subject corporation be added as a defendant,(f) appoint any creditor or contributory of a subject corporation to represent, at the expense of that corporation, all or any class of creditors or contributories of that corporation for the purpose of the proceedings or any part of them, and(g) revoke, or vary the terms and conditions of, any such appointment.rule 80A.5: Ins 10.12.1993.
6 (Repealed)
rule 80A.6: Ins 10.12.1993. Rep 2005 (407), Sch 1 [138].
7 Inquiry as to creditors etc
(1) The Court may direct an inquiry as to any debts, claims or liabilities or any class of debts, claims or liabilities of a subject corporation.(2) Where the Court directs an inquiry under subrule (1), subject to any further direction of the Court, rule 13 applies with such modifications as may be necessary as though settlement of a list of creditors was required.rules 80A.7, 80A.8: Ins 10.12.1993.
8 Registrar furnishing copy of summons etc
The registrar shall, upon payment of the fee (if any) fixed under the Act, furnish to any person claiming to be a contributory, creditor or officer of the subject corporation, an office copy of the summons and affidavits which are in the custody of the registrar and are filed by the plaintiff in support of an application for the winding up of the subject corporation.rules 80A.7, 80A.8: Ins 10.12.1993.
9 Notice of intention to appear
rule 80A.9, hdg: Am 25.2.1994.(1) Any person who intends to appear on the hearing of an application, notice of which has been advertised under this Part, who is not already a party, must, not later than 2 days before the date appointed for the hearing:(a) file a notice of appearance which must include:(i) a statement of the relationship of the person to the subject corporation, and(ii) a statement that the person intends to support or oppose the application, as the case may be, and(b) serve the notice of appearance on the plaintiff and on each other party of whose address for service the person has notice.(2) (Repealed)rule 80A.9: Ins 10.12.1993. Am 2005 (407), Sch 1 [139].
Division 3 Advertisement
pt 80A, div 3: Ins 10.12.1993.
10 Advertisement and inspection of certain applications
(1) This rule applies to an application for an order under any of the provisions of the Corporations Law referred to in column 1 of Table 1 below.Table 1
Division 4 Notice to ASIC
pt 80A, div 4: Ins 10.12.1993.
11 Service of certain applications
(1) This rule applies to an application for an order under any of the provisions of the Corporations Law referred to in column 1 of Table 2 below.Table 2
Divisions 5, 6
12, 13 (Repealed)
pt 80A, div 5: Ins 10.12.1993. Rep 23.10.1998.
pt 80A, div 6 (rules 12, 13): Ins 10.12.1993. Rep 23.10.1998.
Division 6A Remuneration of receiver, administrator and special manager
pt 80A, div 6A (rules 13A–13C): Ins 21.10.1994.
13A Remuneration of receiver (s 425 (1))
(1) The summons or notice of the motion, by which application is made by a receiver for an order fixing his or her remuneration under section 425 (1), must not be filed until the expiration of 21 days after the applicant has served notice in Form 154I of his or her intention to apply for the order, together with a copy of the affidavit on which the applicant intends to rely, on:(a) the person who appointed the receiver,(b) any other creditor holding security over all or any of the same property,(c) any liquidator or provisional liquidator of the subject corporation,(d) any administrator of the subject corporation,(e) any administrator of a deed of company arrangement executed by the subject corporation, and(f) if there is no person of the kinds referred to in (c), (d) and (e):(i) each of the 5 largest unsecured creditors of the subject corporation, and(ii) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.(2) Any creditor or contributory or any of the persons referred to in paragraphs (c), (d) and (e) of subrule (1) may within 21 days after service of the last of the notices required by subrule (1) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.(3) Where the applicant files with the summons or notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:(a) proving service of the notices required by subrule (1) (b), andand the summons or notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.(b) stating that he or she has received no notice of objection to the remuneration claimed,(4) The summons or notice of motion must be served on any creditor or contributory or other person who has given notice of objection under subrule (2).(5) The evidence in support of the application must include an affidavit stating:(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and(b) if at the time of the application the applicant remains the receiver, any matters delaying the completion of the receivership.
13B Remuneration of administrator (s 449E (1))
(1) The summons or notice of the motion, by which application is made for an order fixing an administrator’s remuneration under section 449E (1), must not be filed until the expiration of:(a) 28 days after the date when a meeting of creditors referred to in section 449E (1) was last held, and(b) 21 days after the applicant has served notice in Form 154I of his or her intention to apply for the order, together with a copy of the affidavit on which the applicant intends to rely, on:(i) each creditor who was present in person or by proxy at the meeting of creditors,(ii) each member of any committee of inspection, and(iii) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.(2) Any creditor or contributory may within 21 days after service of the last of the notices required by subrule (1) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.(3) Where the applicant files with the summons or notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:(a) proving service of the notices required by subrule (1) (b), andand the summons or notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.(b) stating that he or she has received no notice of objection to the remuneration claimed,(4) The summons or notice of motion must be served on any creditor or contributory who has given notice of objection under subrule (2).(5) The evidence in support of the application must include an affidavit stating:(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and(b) if at the time of the application the applicant remains the administrator, any matters delaying the completion of the administration.
13C Remuneration of special manager (s 484 (2))
(1) The summons or notice of the motion, by which application is made by a special manager for an order fixing his or her remuneration under section 484 (2), must not be filed until the expiration of 21 days after the applicant has served notice in Form 154I of his or her intention to apply for the order, together with a copy of the affidavit on which the applicant intends to rely, on:(a) the liquidator,(b) each member of any committee of inspection, or if there is no committee of inspection, each of the 5 largest creditors of the subject corporation, and(c) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.(2) The liquidator or any creditor or contributory may within 21 days after service of the last of the notices required by subrule (1) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.(3) Where the applicant files with the summons or notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:(a) proving service of the notices required by subrule (1) (b), andand the summons or notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.(b) stating that he or she has received no notice of objection to the remuneration claimed,(4) The summons or notice of motion must be served on the liquidator or any creditor or contributory who has given notice of objection under subrule (2).(5) The evidence in support of the application must include an affidavit stating:(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and(b) if at the time of the application the applicant remains the special manager, any matters delaying the completion of the special management.
Division 7 Winding up
pt 80A, div 7: Ins 10.12.1993.
14 Index: search
Any person may, upon payment of the fee (if any) fixed under the Act, search in the index kept in the registry against the name of a subject corporation.rule 80A.14: Ins 10.12.1993.
15 Form of affidavit in support of statutory demand (s 459E (3))
(1) An affidavit referred to in section 459E (3) must:(a) subject to subrule (2), be made by the creditor or, where there is more than one creditor, by one of them,(b) set out the facts entitling the deponent under paragraph (a) to make the affidavit,(c) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,(d) state that the deponent believes those matters to be true, and(e) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.(2) In the case of a creditor which is:(a) a corporation—an affidavit by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation is taken to be an affidavit by the creditor,(b) the Crown—an affidavit by an officer of the Crown having knowledge of the facts so far as they are known to the Crown is taken to be an affidavit by the creditor, and(c) a company to which a liquidator or provisional liquidator has been appointed—an affidavit by the liquidator or provisional liquidator is taken to be an affidavit by the creditor.(3) An affidavit under this rule must:(a) be in accordance with the prescribed form,(b) contain the statement headed “Important Note” set out in the form, and(c) not state a proceeding number.(4) An affidavit under this rule must not be filed with the Court.(5) For the purposes of section 459E (3), an affidavit in support of a statutory demand that complies with the rules of:(a) the Federal Court of Australia, oris taken to be an affidavit that complies with this rule.(b) the Supreme Court of another State or Territory in which the registered office of the company to be served is situated,(6) In subrule (2), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.rules 80A.15, 80A.16: Ins 10.12.1993. Subst 24.11.1995.
16 Form of affidavit in support of an application to wind up relying on failure to comply with statutory demand (s 459Q (c))
(1) An affidavit referred to in section 459Q (c) must:(a) be in accordance with the prescribed form,(b) subject to subrule (2), be made by the plaintiff or, where there is more than one plaintiff, by one of them,(c) set out the facts entitling the deponent under paragraph (b) to make the affidavit,(d) state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts,(e) state that the deponent believes those matters to be true, and(f) state that the deponent believes that there is no genuine dispute about the existence or amount of the debt or debts to which the demand relates.(2) In the case of a plaintiff which is:(a) a corporation—an affidavit by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation is taken to be an affidavit by the plaintiff,(b) the Crown—an affidavit by an officer of the Crown having knowledge of the facts so far as they are known to the Crown is taken to be an affidavit by the plaintiff, and(c) a company to which a liquidator or provisional liquidator has been appointed—an affidavit by the liquidator or provisional liquidator is taken to be an affidavit by the plaintiff.(3) In subrule (2), Crown includes not only the Crown in right of New South Wales but also the Crown in any other capacity.rules 80A.15, 80A.16: Ins 10.12.1993. Subst 24.11.1995.
17 Time prescribed (s 465C)
The period prescribed for the purposes of section 465C is a period terminating 2 days before the date appointed for the hearing.rules 80A.17, 80A.18: Ins 10.12.1993.
18 Evidence in support of winding up application
The evidence in support of an application for the winding up of a corporation shall include:(a) an affidavit stating:(i) unless the plaintiff is the subject corporation, the capacity in which the plaintiff makes the application under section 459P or section 462 (2),(ii) the grounds of the application and a reference to the provision or provisions of the Corporations Law on which the plaintiff relies,(iii) the statute under which the subject corporation was incorporated,(iv) the date of its incorporation,(v) whether or not an administrator has been appointed to the subject corporation and, if so, details of that appointment, as ascertained by a search of the records maintained by ASIC made not earlier than seven days before the summons was filed,(vi) whether or not a winding up application was pending or a winding up order had been made against the subject corporation and, if so, details of that application or order, as ascertained by a search of the records maintained by ASIC made not earlier than seven days before the summons was filed, and(b) unless the subject corporation is the plaintiff or has entered an appearance, proof of the address of its registered office as ascertained by a search of the records maintained by ASIC made not earlier than 7 days before the summons was filed, supported by a copy of the last or only notice of the address, or change in the situation, of its registered office lodged with ASIC or with any predecessor of ASIC.rules 80A.17, 80A.18: Ins 10.12.1993.
19 Discontinuance (ss 459 and 461)
Proceedings shall not be discontinued without the leave of the Court, so far as they concern a claim for a winding up order under section 459A or section 461.rule 80A.19: Ins 10.12.1993. Am 2005 (407), Sch 1 [140].
20 Service of notice of appointment of liquidator or provisional liquidator
(1) Where the Court appoints a liquidator or a provisional liquidator:(a) the plaintiff must:(i) obtain from the Court and serve on the liquidator or provisional liquidator by delivery or by facsimile transmission to his or her office, a sealed copy of a notice in Form 154F not later than 1 day after the appointment is made, and(ii) if the subject Corporation is not the plaintiff—serve a copy of the notice on the subject Corporation by delivery or by facsimile transmission or by pre-paid post to its registered office not later than 1 day after the appointment is made, and(b) the liquidator or provisional liquidator must, not later than 7 days after the appointment is made, cause to be advertised a notice in Form 154G or Form 154H, as the case requires.(2) For the purposes of subrule (1), a sealed or unsealed copy is sufficiently served at an office if the information contained in the copy is transmitted to a facsimile transmission number by a means that reproduces, in that office, the information as it appears in the copy.rule 80A.20: Ins 10.12.1993.
21 Appeal from registrar: winding up order
(1) An appeal shall lie to the Court constituted by a Judge from a winding up order made by a registrar.(2) Subject to such changes as it is necessary to make, Divisions 4 and 5 of Part 45 of the Uniform Civil Procedure Rules 2005 apply to an appeal under subrule (1) in the same way as they apply to an appeal under Division 1 of that Part.(3) (Repealed)rule 80A.21: Ins 10.12.1993. Am 25.2.1994; 2005 (407), Sch 1 [141]–[143].
22 Remuneration of provisional liquidator (s 473 (2))
(1) An application by a provisional liquidator for determination of his or her remuneration by the Court under section 473 (2) must be made by motion in the winding up proceedings.(2) Notice of the motion must not be filed until the expiration of 21 days after the applicant has served written notice of intention to apply for such determination in Form 154I together with a copy of the affidavit upon which the applicant intends to rely, on:(a) any liquidator of the subject corporation (other than the applicant),(b) each member of any committee of inspection, or if there is no committee of inspection, each of the 5 largest creditors of the subject corporation, and(c) each member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.(3) The liquidator or any creditor or contributory may within 21 days after service of the last of the notices required by subrule (2) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.(4) Where the applicant files with the notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:(a) proving service of the notices required by subrule (2), andand the notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.(b) stating that he has received no notice of objection to the remuneration claimed,(5) The notice of motion must be served on any liquidator, creditor or contributory of the subject corporation who has given notice of objection under subrule (3).(6) The evidence in support of the application must include an affidavit stating:(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and(b) if at the time of the application the applicant remains the provisional liquidator:(i) any reasons known to the applicant why the winding up proceedings have not been determined, and(ii) any reasons why the applicant’s remuneration should be determined prior to the determination of the winding up proceedings.rules 80A.22–80A.27: Ins 10.12.1993.
23 Remuneration of liquidator (s 473 (3))
(1) An application by a liquidator for determination of his or her remuneration by the Court under section 473 (3) must be made by motion in the winding up proceedings.(2) Notice of the motion must not be filed until the expiration of:(a) 28 days after the holding of the meeting of creditors referred to in section 473 (4), and(b) 21 days after the applicant has served notice in form 154I of his or her intention to apply for such determination, together with a copy of the affidavit on which the applicant intends to rely, on:(i) each creditor who was present in person or by proxy at the meeting of creditors,(ii) each member of any committee of inspection, and(iii) any member of the subject corporation whose shareholding represents at least 10 per cent of the issued capital.(3) Any creditor or contributory may within 21 days after service of the last of the notices required by subrule (2) deliver to the applicant a notice of objection to the remuneration claimed, stating the grounds of objection.(4) Where the applicant files with the notice of motion an affidavit made after the expiration of the lastmentioned period of 21 days:(a) proving service of the notices required by subrule (2) (b), andand the notice of motion is endorsed with a request that the application be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant, the application may be so dealt with by the Court.(b) stating that he has received no notice of objection to the remuneration claimed,(5) The notice of motion must be served on any creditor or contributory of the subject corporation who has given notice of objection under subrule (3).(6) The evidence in support of the application must include an affidavit stating:(a) the nature of the work carried out by the applicant together with a summary of receipts and payments for the relevant period, and(b) if at the time of the application the applicant remains the liquidator, any matters delaying the completion of the winding up.rules 80A.22–80A.27: Ins 10.12.1993.
24 Copy of a report under s 475 (7) (a)
The copy of the report required to be filed with the Court under section 475 (7) (a) shall be a copy certified in writing by the liquidator of the subject corporation to be a true copy of the original report.rules 80A.22–80A.27: Ins 10.12.1993.
25 Report by the liquidator to the Court: stay of winding up (s 482 (2))
A report by the liquidator to the Court under section 482 (2) may be furnished to the Court by filing it in Form 154J.rules 80A.22–80A.27: Ins 10.12.1993.
26 Special manager (s 484)
(1) This rule applies to proceedings in the Court under section 484 (which section relates to a special manager).(2) The liquidator may file an unverified statement in support of the application, instead of an affidavit.(3) Security is sufficiently given if it is given for any winding up in which the person giving security is appointed a special manager.(4) The Court may at any time and from time to time give directions for the giving of security in a different amount to the amount for which security was previously given.(5) Where security is given to the satisfaction of an associate Judge, he shall give a certificate to that effect.rules 80A.22–80A.27: Ins 10.12.1993.
27 Accounting by special manager (s 484 (2) (a))
(1) Subject to any order of the Court under section 484 (2) (a) the special manager shall furnish his accounts to the liquidator.(2) The accounts shall be verified by affidavit.(3) The affidavit may be in Form 154K and subscribed to the accounts.(4) When the accounts are approved by the liquidator, the totals of the receipts and payments shall be included by the liquidator in his accounts.rules 80A.22–80A.27: Ins 10.12.1993.
28 Default of special manager
(1) Where any special manager is required by the rules or any direction of the Court to do anything and does not carry out the requirement, the liquidator shall apply to the Court for directions in respect of the default and the Court may make such orders and give such directions as the Court thinks fit.(2) Without limiting subrule (1), where a special manager is required by the rules or by any order or direction of the Court to pay into Court any sum shown by his account as due from him, and he does not comply with the requirement, the Court may charge him with interest at the rate prescribed for payment of interest by a receiver under rule 26.6 (3) of the Uniform Civil Procedure Rules 2005 on that sum while in his possession as special manager.(3) This rule does not limit the powers of the Court as to the enforcement of orders or as to the punishment of contempt.rule 80A.28: Ins 10.12.1993. Am 2005 (407), Sch 1 [144].
29 Complaints concerning liquidator or provisional liquidator (s 536 (1))
(1) The complaint to the Court under section 536 (1) shall be filed with the summons claiming an inquiry under the subsection in respect of the matter complained of.(2) A complaint under section 536 (1) shall not be inspected or used except by leave of the Court.rules 80A.29–80A.31: Ins 10.12.1993.
30 Report concerning liquidator or provisional liquidator (s 536 (2))
(1) A report to the Court by ASIC under section 536 (2) shall be filed with the summons claiming orders under the subsection in respect of the matter reported.(2) A report made under section 536 (2) shall not be inspected or used except by leave of the Court.rules 80A.29–80A.31: Ins 10.12.1993.
31 Report by the chairman to the Court: meeting of creditors etc (s 547)
A report by the chairman to the Court under section 547 may be made by filing a report in Form 154J.rules 80A.29–80A.31: Ins 10.12.1993.
32 Appeal from liquidator etc (s 1321)
(1) An appeal to the Court under section 1321 in respect of an act, omission or decision of a receiver, receiver and manager, liquidator or provisional liquidator, appointed by the Court, shall be instituted by motion in the proceedings in which the appointment was made, within 28 days after the date on which the person who wishes to appeal receives notice of the act, omission or decision.(2) (Repealed)(3) A person mentioned in section 1321 (a), (b), (c), (ca), or (d) may, on application in writing made to that person before the expiration of the time limited by subrule (1) (other than the time extended by the Court) for instituting an appeal from that person’s act, omission or decision, grant, by notice in writing, an extension of that time and, where that person does so, he or she shall deliver the notice to the applicant who shall file the notice with the summons or notice of motion (as the case may be) instituting the appeal.rule 80A.32: Ins 10.12.1993. Subst 24.2.1995. Am 2005 (407), Sch 1 [145] [146].
33 Release of liquidator (s 480)
(1) An application by a liquidator for:(a) an order under section 480 (c) that he or she be released, ormust be made by motion in the winding up proceedings.(b) an order under section 480 (d) that he or she be released and that the subject corporation be dissolved,(2) An application by a liquidator for an order under section 480 (c) that he or she be released must state the grounds on which it is contended that the subject corporation should not be dissolved.(3) Unless the Court otherwise orders, the liquidator must, not less then 21 days prior to filing notice of the motion:(a) send:(i) a notice in form 154L,(ii) a copy of the application for release,(iii) a copy of the summary of receipts and payments, andby prepaid post to each creditor who has proved his or her debt and to each contributory, and(iv) a copy of the statement showing the subject corporation’s position,(b) cause notice of the application in form 154M to be published in the Commonwealth of Australia Gazette.(4) Where a liquidator applies for an order under section 480 (c) or section 480 (d), he or she shall file with notice of the motion:(a) a summary of receipts and payments in the winding up,(b) a statement showing the position of the subject corporation at the date the application was filed, and(c) an affidavit:(i) stating whether the whole of the property of the subject corporation has been realised, or whether so much of the property of the subject corporation has been realised as can be realised without needlessly prolonging the liquidation,(ii) stating details of any calls made upon contributories in the course of the winding up,(iii) stating details of any dividends paid in the course of the winding up,(iv) stating whether the committee of inspection, if any, has passed a resolution approving of the liquidator’s release,(v) stating whether ASIC has appointed an auditor to report on an account or a statement of the position in the winding up under section 539 (2),(vi) stating whether the Court has ordered a report on the accounts of the liquidator to be prepared,(vii) stating whether any objection has been received by the liquidator to his or her release as liquidator of the subject corporation from any auditor appointed by ASIC or by the Court or from any creditor, contributory or other person interested,(viii) stating whether any report has been submitted by the liquidator to ASIC under section 533,(ix) stating whether the unsecured creditors of the subject corporation have been paid more than 50 cents in the dollar and whether it is otherwise necessary to report on the affairs of the subject corporation or its officers,(x) stating details of any onerous property disclaimed in the course of the winding up,(xi) stating details of any costs and expenses payable by the liquidator if the Court grants his or her release,(xii) annexing a copy of:(A) the notice sent to each creditor and contributory in compliance with paragraph (a) of subrule (3), and(B) the notice published in the Commonwealth of Australia Gazette in compliance with paragraph (b) of subrule (3), and(xiii) including statements by the liquidator to the following effect:(A) “To the best of my belief there has been no act done or default made by me in the administration of the affairs of the subject corporation or otherwise in relation to my conduct as liquidator which is likely to give rise to any liability to the subject corporation or any creditor or contributory” and, where applicable, add “except as disclosed in this affidavit”,(B) “I am not aware of any claim made by any person that there has been any such act or default” and, where applicable, add “except as disclosed in this affidavit”.(5) A creditor or contributory who wishes to object to the grant of release to a liquidator must deliver to the liquidator a notice of objection stating the grounds of objection within 21 days of publication of the notice referred to in subrule (3) (b).(6) Where the applicant files with the notice of motion an affidavit made after the expiration of the 21 days:(a) proving compliance with subrule (3), andand the notice of motion is endorsed with a request that the application be determined or dealt with in the absence of the public and without an attendance by or on behalf of the applicant, the application may be so determined or dealt with by the Court.(b) stating that he has received no notice of objection to the release,rule 80A.33: Ins 10.12.1993. Am 25.2.1994.
34 Exercise of Court’s power by liquidator (s 488 (1))
Subject to the Corporations Law, the Corporations Regulations, this Part, and any order of the Court, the powers and duties conferred on the Court by Part 5.4B of the Corporations Law in respect of the matters referred to in section 488 (1) may be exercised by the liquidator as an officer of the Court and subject to the control of the Court.rules 80A.34, 80A.35: Ins 10.12.1993.
35 Destruction of books (s 542 (3) (a))
(1) An application for an order under section 542 (3) (a) must be made by motion in the winding up proceedings.(2) Where notice of the motion is endorsed with a request that the application be dealt with by the Court in the absence of the public and without an attendance by or on behalf of the applicant, the application may be so dealt with by the Court.rules 80A.34, 80A.35: Ins 10.12.1993.
Division 8 Examinations
pt 80A, div 8: Ins 10.12.1993.
36 Examination of persons concerned with corporations (Part 5.9 Division 1)
(1) This rule applies to proceedings on an application to the Court for a summons under section 596A or section 596B (in these rules referred to as an Examination Summons).(2) The summons by which the application is made shall be served:(a) where a liquidator has been appointed, unless he is the applicant—on the liquidator, andand need not be served on any other person unless the Court so directs.(b) unless ASIC is the applicant—on ASIC,(3) The applicant shall, when making the application, lodge in the registry a draft of the Examination Summons applied for.(4) An affidavit referred to in section 596C must set out:(a) the facts relied on to establish that the applicant is an eligible applicant for the purposes of section 596B,(b) the facts relied on to establish the matters referred to in section 596B (1) (b), and(c) if production of books is to be required—the deponent’s belief that the books, the production of which is sought, are reasonably required for the purposes of the examination and the grounds for that belief.(5) An affidavit or other material filed in support of an application for an Examination Summons shall not, except with the leave of the Court, be open to inspection by any person other than the liquidator or any person authorised by ASIC.(6) An Examination Summons shall be in form 154N.(7) The applicant shall cause notice of the time and place appointed for the holding of an examination (but not, unless the Court so orders, for the holding of an adjourned examination) to be advertised.(8) An Examination Summons shall be served personally on the person who is to be examined.(9) Where the Court makes an order under section 597 (13), the written record, signed if so required by the Court under that subsection, shall be filed in the registry.(10) Where:(a) the examination of a person under section 597 is held wholly or partly in public, andthe registrar shall, upon application by the person made within 3 years of the date of the conclusion of the examination and payment of the prescribed fee, furnish to the person a copy of the written record or transcript of such part of the examination as is held in public.(b) a written record or transcript of the questions put to the person and the answers given by the person at the examination is filed in the registry,(11) A transcript is authenticated under section 597 (14) if the person who prepared the transcript, or under whose supervision the transcript was prepared, certifies in writing signed by that person that the transcript is a true record of the examination.(12) In this rule, liquidator includes a provisional liquidator.rule 80A.36: Ins 10.12.1993. Am 2005 (407), Sch 1 [147].
37 Default in relation to an examination
(1) When a person is summoned under an Examination Summons and the examination is, or is to be, held before the Court constituted by a registrar, and that person (in this rule referred to as the person in default):(a) fails to attend as required by the Examination Summons,(b) fails to attend from day to day until the conclusion of the examination,(c) refuses or fails to take an oath or make an affirmation,(d) refuses or fails to answer a question that the Court directs him or her to answer,(e) refuses or fails to produce books that the Examination Summons requires him or her to produce, orand if, in the case of a failure or refusal referred to in paragraphs (a), (b), (c), (d) or (e), it does not appear to the registrar that there was any reasonable excuse, the registrar must, on the request of any person entitled to take part in the examination, give to that person a signed certificate of the failure or refusal.(f) fails to comply with a requirement by the court to sign a written record of the examination,(2) On application by a person to whom such a certificate has been given, the Court, if satisfied that there has been a contravention of section 597 (6), (7) or (13), may order the person in default to do the relevant act and to pay any costs occasioned by the failure or refusal.(3) On an application under subrule (2), a signed certificate given under subrule (1) constitutes evidence of the matters certified.rule 80A.37): Ins 10.12.1993.
Division 9 Winding up of bodies other than companies
pt 80A, div 9 (rule 38): Ins 25.2.1994.
38 Winding up of bodies other than companies (s 583)
The rules apply, with such adaptations as are necessary, to a body to which Part 5.7 of the Corporations Law applies as they apply to a company.
Part 81 Intellectual property
pt 81: Ins 30.8.1985.
Division 1 Intellectual property cases generally
1 Application
This Part applies to intellectual property cases.rule 81.1: Ins 30.8.1985.
2 Interpretation
(1) In this Part, unless the contrary intention appears:(a) action includes proceeding,(b) intellectual property case means:(i) any action in the Court for infringement of a patent granted under the Patents Act, of a trade mark registered under the Trade Marks Act, of the monopoly in a design registered under the Designs Act or of Copyright under the Copyright Act 1968 of the Commonwealth, andwhether or not joined with any other cause of action,(ii) any application or other proceedings in the Court under any of those Acts,(c) Designs Act means the Designs Act 1906 of the Commonwealth,(d) Patents Act means the Patents Act 1990 of the Commonwealth,(e) subject Acts means the Designs Act, the Patents Act, the Trade Marks Act and the Copyright Act 1968 of the Commonwealth,(f) the Commissioner has:(i) in relation to proceedings under the Patents Act, the same meaning as it has in that Act,(ii) in relation to proceedings under the Trade Marks Act, the same meaning as “The Registrar” has in that Act, and(iii) in relation to proceedings under the Designs Act, the same meaning as “Registrar” has in that Act,(g) Trade Marks Act means the Trade Marks Act 1995 of the Commonwealth.(2) The rules shall apply to proceedings under the Patents Act as if a reference in the Patents Act to an “applicant” were a reference to a “plaintiff” and as if a reference in the Patents Act to a “respondent” were a reference to a “defendant”.rule 81.2: Ins 30.8.1985. Am 10.12.1993; 22.12.1995.
3 Expressions in this Part
Expressions used in this Part have, unless the contrary intention appears, in relation to proceedings taken under any of the subject Acts, the same meanings respectively as in the Act under which the proceedings are taken.rule 81.3: Ins 30.8.1985.
4 (Repealed)
rule 81.4: Ins 30.8.1985. Subst 10.12.1993. Rep 2005 (407), Sch 1 [148].
5 Mode of commencement: application of Part 4, rule 1
The requirements of the Uniform Civil Procedure Rules 2005 for a statement of claim or summons do not apply to an application for an order under any of the subject Acts if the application is required to be and is made under the Act in a petition, counter-claim or other document.rule 81.5: Ins 30.8.1985. Am 2005 (407), Sch 1 [149].
6 (Repealed)
rule 81.6: Ins 30.8.1985. Rep 2005 (407), Sch 1 [150].
7 Directions
cf RSC (Rev) 1965, O 104, r 10 (2).
(1) In an intellectual property case commenced by summons the proceedings shall, on the date appointed for hearing, be before the Court for directions under Part 2 of the Uniform Civil Procedure Rules 2005.(2) In an intellectual property case commenced otherwise than by summons the plaintiff shall, unless the Court otherwise orders, as soon as reasonably practicable after the defendant files a defence, move for a hearing for directions.rule 81.7: Ins 30.8.1985. Am 26.9.1986; 23.12.1988; 10.12.1993; 2005 (407), Sch 1 [151] [152].
8 (Repealed)
rule 81.8: Ins 30.8.1985. Rep 2005 (407), Sch 1 [153].
9 Applications: service and date of hearing
(1) Unless the Court otherwise orders, the summons by which any application under any of the said Acts is made to the Court shall:(a) be served on the Commissioner,(b) not be heard before 14 days after service on the parties and the Commissioner.(2) Unless the Court otherwise orders, where:(a) rule 18 or rule 19 or rule 20 or rule 21 applies to proceedings, andthe proceedings shall not be heard before 14 days after the requirements as to service contained in the applicable rule have been complied with.(b) the proceedings are commenced by summons,rule 81.9: Ins 30.8.1985. Am 10.12.1993; 13.6.2003; 2005 (407), Sch 1 [154].
10 Mode of giving notice to the Commissioner
Notice of any application to the Court under any of the subject Acts is given to the Commissioner by serving on the Commissioner the originating process by which proceedings on the application are commenced.rules 81.10, 81.11: Ins 30.8.1985. Am 10.12.1993.
11 Appearance of Commissioner
(1) In an intellectual property case, the Commissioner may:(a) appear and be heard,(b) file a statement in writing signed by the Commissioner giving particulars of:(i) any proceedings before the Commissioner in relation to the matter in issue,(ii) the grounds of a decision, determination or direction given or made by the Commissioner in respect of those proceedings, andand, on the day of filing, serve it on the other parties.(iii) the practice of the Commissioner’s Office in like cases,(2) The Court may make such use of a statement filed under subrule (1) (b) as the Court thinks just.rules 81.10, 81.11: Ins 30.8.1985. Am 10.12.1993.
12 Commissioner: notice of objection
If the Commissioner elects or is required by the Court to appear in proceedings before the Court, the Commissioner shall, unless the Court otherwise orders, give reasonable notice to the parties of the grounds of any objection the Commissioner proposes to take and of any evidence the Commissioner proposes to place before the Court.rule 81.12: Ins 30.8.1985.
13–15 (Repealed)
rules 81.13, 81.14: Ins 30.8.1985. Rep 10.12.1993.
rule 81.15: Ins 30.8.1985. Rep 22.11.1985.
16 Statement of facts
(1) The Court may direct each party to lodge a statement of facts alleged to establish infringement, validity and absence of infringement and validity.(2) Subrule (1) does not affect any requirement of the subject Acts or the rules for the giving or delivery of particulars.rule 81.16: Ins 30.8.1985.
Division 2 Patents Act
(1) An application for an order under section 105 (1) of the Patents Act may be made only after the applicant gives to the Commissioner a notice of intention to apply accompanied by an advertisement that states:(a) the identity of the proceedings in which the application will be made,(b) the particulars of the amendment sought,(c) the applicant’s address for service, and(d) that a person intending to oppose the application who is not a party to the proceedings must, not later than 28 days after publication of the advertisement, give written notice of that intention to the Commissioner and to the parties to the proceedings.(2) The Commissioner must publish the advertisement in the Official Journal once, unless the Court otherwise orders.(3) A person who gives notice under subrule (1) (d) is entitled to be heard in opposition to the application, subject to any direction of the Court as to costs.(4) The application may be instituted by filing a notice of motion in the relevant proceedings not later than 50 days after the date of publication of the advertisement.(5) The notice of motion together with a copy of the patent, patent request or complete specification, as appropriate, showing in ink of contrasting colour the amendment sought, must be served on the Commissioner, each party to the proceedings and each person who has given notice under subrule (1) (d).(6) On the hearing of the motion, the Court may give such directions as it thinks fit for the conduct of proceedings on the motion including a direction:(a) requiring the applicant to give, to each party or other person opposing the application, a statement of the grounds relied on for the amendment,(b) requiring a party or other person opposing the application to give to the applicant a statement of the grounds relied on in opposition to the amendment,(c) determining that the motion will be heard with the relevant proceedings or separately and, if separately, fixing the date for hearing the motion,(d) determining the manner in which evidence will be adduced and, in the case of evidence by affidavit, fixing the times within which the affidavits must be served.rule 81.17: Ins 30.8.1985. Subst 10.12.1993.
18 Infringement proceedings: s 120 (1)
(1) The originating process, by which proceedings under section 120 (1) of the Patents Act are commenced, must be served:(a) on the defendant in the proceedings,(b) if the plaintiff is an exclusive licensee—on the patentee, and(c) on the Commissioner.(2) Particulars of infringements complained of must give at least one instance of each type of infringement alleged and must specify, in proceedings for infringement of a standard patent, which of the claims of the complete specification of that patent are alleged to be infringed.(3) A defendant relying on a defence under section 144 (4) of the Patents Act must give particulars of:(a) the date of, and the parties to, a contract on which the defendant intends to rely for the defence, and(b) the provision of the contract that the defendant asserts is void.rule 81.18: Ins 30.8.1985. Am 26.9.1986. Subst 10.12.1993.
19 Non-infringement declarations: s 125 (1)
The originating process, by which proceedings under section 125 (1) of the Patents Act are commenced, must be served:(a) on the nominated person, or the patentee, as the case requires, and(b) on the Commissioner.rules 81.19–81.22: Ins 30.8.1985. Subst 10.12.1993.
20 Relief from unjustified threat: s 128 (1)
The originating process, by which proceedings under section 128 (1) of the Patents Act are commenced, must be served:(a) on the person making the threat, and(b) on the Commissioner.rules 81.19–81.22: Ins 30.8.1985. Subst 10.12.1993.
(1) The originating process, by which proceedings under section 133 (1), section 134 (1) or section 138 (1) of the Patents Act are commenced, must be served:(a) on the patentee,(b) as a further defendant—on any person who claims an interest in the patent as exclusive licensee, and(c) on the Commissioner.(2) A plaintiff in proceedings to which subrule (1) applies must comply with Chapter 12 of the Patents Regulations of the Commonwealth.(3) An application for leave under section 137 (4) of the Patents Act may be made by motion in the proceedings pending in the Court.rules 81.19–81.22: Ins 30.8.1985. Subst 10.12.1993.
(1) A party who disputes the validity of a patent must deliver, with the pleading or other document in which the party disputes the validity of registration, particulars of the grounds of invalidity on which the party relies.(2) If one of the grounds referred to in subrule (1) is that the invention is not a patentable invention because of information about the invention in a document or through the doing of an act, the particulars must specify:(a) in the case of a document—the time when, and the place where, the document is alleged to have become publicly available, and(b) in the case of an act:(i) the name of the person alleged to have done the act,(ii) the period in which, and the place where, the act is alleged to have been done publicly,(iii) a description that is sufficient to identify the act, and(iv) if the act relates to apparatus or machinery—whether the apparatus or machinery exists and, if so, where it can be inspected.(3) If:(a) one of the grounds referred to in subrule (1) is that the invention, so far as claimed in any claim of the complete specification of the patent, is not useful, andthe particulars must identify each such claim and state that fact and must include particulars of each such example, specifying the respect in which it is alleged that it does not work as described.(b) it is intended, in connection with that ground, to rely on the fact that an example of the invention which is the subject of any such claim cannot be made to work, either at all or as described in the specification,(4) Except by leave of the Court, evidence is not admissible in proof of a ground of invalidity of which particulars have not been given.rules 81.19–81.22: Ins 30.8.1985. Subst 10.12.1993.
23 Experiments
(1) The Court may give directions:(a) for the service on the other parties, by any party desiring to submit experimental proof, of particulars of the experiments proposed and of the facts which the party claims to be able to establish by the experiments,(b) for the conduct of, and the persons who may attend, the experiments.cf RSC (Rev) 1965, O 104, r 10 (2) (f).(2) In any action or proceedings for infringement or the revocation of, a patent, the Court may direct that evidence with respect to any experiment made shall not be admissible unless the experiment has been made substantially in accordance with directions given under subrule (1).rule 81.23 (previously rule 36): Ins 30.8.1985. Renumbered 10.12.1993.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
24–35 (Repealed)
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
36
(Renumbered as rule 23)
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
Division 3 Trade Marks Act
37 Particulars of infringements
Particulars of the infringements of a registered trade mark shall specify the manner in which the trade mark is alleged to be infringed and shall give at least one instance of each type of infringement alleged.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 81.37: Ins 30.8.1985.
38 Counter-claim to action for infringement
(1) The defendant in an action for infringement of a registered trade mark may apply by way of counter-claim for an order:(a) that the Register be rectified, or(b) directing the Registrar to remove the trade mark from the Register.(2) There shall be delivered with the counter-claim particulars of the grounds on which the order is sought.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 81.38: Ins 30.8.1985. Subst 22.12.1995.
38A Pending proceedings—defence etc to action for infringement
(1) This rule applies to proceedings:(a) to which section 250 of the Trade Marks Act applies (proceedings arising from an application to a court under section 22 of the Trade Marks Act 1955 which were pending immediately before 1 January 1996), or(b) to which section 251 of the Trade Marks Act applies (proceedings arising from an application to the Registrar or a court under section 23 of the Trade Marks Act 1955 which were pending immediately before 1 January 1996).(2) The defendant in an action for infringement of a registered trade mark may:(a) in a defence, dispute the validity of the registration of that trade mark,(b) apply by way of counter-claim for an order:(i) under section 22 (1) of the Trade Marks Act 1955 for the rectification of the Register by the expunging or amendment of the entry wrongly made or remaining in the Register, or(ii) under section 23 (1) of the Trade Marks Act 1955 (which subsection relates to removal of a trade mark from the Register), or(c) do both.(3) A person who:(a) in an action, disputes the validity of the registration of a registered trade mark,(b) applies for an order mentioned in (2) (b), orshall deliver, with the pleading in which the person disputes the validity of the trade mark, particulars of the grounds of invalidity on which the person relies.(c) does both,rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 81.38A–81.38C: Ins 22.12.1995.
38B Judgment in absence of defendant
(1) Unless the Court otherwise orders, a judgment based on infringement of a trade mark shall not be given or entered against a defendant in his or her absence, unless the plaintiff files an affidavit that the action is not in contravention of section 128 of the Trade Marks Act.(2) Unless the Court otherwise orders, a judgment based on section 129 of the Trade Marks Act shall not be given or entered against a defendant in his or her absence, unless the plaintiff files an affidavit that the action is not in contravention of section 129 (5) of the Trade Marks Act.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 81.38A–81.38C: Ins 22.12.1995.
38C Evidences for purposes of regulation 8.2
The evidence in support of an application to which regulation 8.2 of the Trade Marks Regulations (which relates to certain applications for rectification of the Register) applies shall, unless the Court otherwise orders, include evidence which is sufficient to enable the Court to comply with the regulation.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 81.38A–81.38C: Ins 22.12.1995.
Division 4 Designs Act
39 Particulars of infringements
Particulars of infringements of the monopoly in a registered design shall specify the manner in which the design is alleged to be infringed and shall give at least one instance of each type of infringement alleged.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 81.39, 81.40: Ins 30.8.1985.
40 Particulars of invalidity
cf Patents Act, s 166.
(1) A person who:(a) applies under section 28 (a) of the Designs Act for the cancellation of the registration of a design,(b) applies under section 32 of that Act for the rectification of the Register,shall deliver with the pleading or other document in which the person disputes the validity of the registered design, particulars of the grounds of invalidity on which the person relies.(c) in an action, disputes the validity of a registered design,(2) If one of those grounds is previous publication or user, the particulars shall state the time and place of the previous publication or user alleged, and, in the case of previous user, the particulars shall:(a) specify the name of the person who is alleged to have made the previous user,(b) specify the period during which the previous user is alleged to have continued,(c) contain a description sufficient to identify the previous user.(3) Except by leave of the Court, evidence is not admissible in proof of a ground of invalidity of which particulars have not been given.(4) The Court may extend the time for delivering particulars under this rule and may allow particulars so delivered to be amended.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rules 81.39, 81.40: Ins 30.8.1985.
Part 82 Public Notaries Act 1997
pt 82: Ins 3.1.1986. Subst 19.12.1997.
1 Interpretation
In this Part, unless the context or subject-matter otherwise indicates or requires:(a) Board means the Legal Practitioners Admission Board,(b) notary means a person appointed under the Public Notaries Act 1997,(c) roll means the roll of notaries mentioned in section 7 of the subject Act,(d) subject Act means the Public Notaries Act 1997.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.1: Ins 3.1.1986. Am 17.11.1989. Subst 19.12.1997.
2 Application by person approved by Board
A person who has been approved by the Board as a suitable candidate for appointment as a notary may, unless the Court otherwise orders, apply for appointment without having filed any originating process in the Court.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.2: Ins 3.1.1986. Am 26.9.1986; 22.9.1989. Subst 19.12.1997.
3 Appointment in the absence of the public etc
On an application under rule 2, the Court may make an order in the absence of the public and without any attendance by or on behalf of any person, unless the plaintiff has filed a request that the application not be dealt with under this rule.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.3: Ins 3.1.1986. Am 14.2.1986. Subst 19.12.1997.
4 Taking oath etc
(1) An applicant for appointment under section 6 of the subject Act shall, before applying to the Court for appointment, attend at a registry of the Court on appointment and:(a) take the oath of office prescribed in Form 157, and(b) sign a certificate that the oath was duly tendered and taken.(2) A registrar may administer the oath of office.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.4: Ins 3.1.1986. Subst 19.12.1997. Am 24.4.1998 (see erratum 1.5.1998).
5 Particulars to be entered in the roll
The officer designated under section 7 of the Act as the registrar of public notaries shall enter in the roll:(a) the date of the notary’s appointment,(b) particulars of any penalty imposed on the notary as the result of disciplinary action, and(c) where the name of the notary is removed from the roll, the date of removal and the provision under which the removal was authorised.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.5: Ins 3.1.1986. Am 24.2.1989; 22.9.1989; 13.12.1991; 30.10.1992; 24.6.1994. Subst 19.12.1997. Am 24.4.1998 (see erratum 1.5.1998).
6 (Repealed)
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
rule 82.6: Ins 3.1.1986. Subst 19.12.1997. Rep 2005 (407), Sch 1 [155].
7 Application under the Mutual Recognition Act
(1) This rule applies to proceedings commenced by notice under Section 19 (1) of the Mutual Recognition Act.(2) The notice must, unless the Court otherwise orders:(a) be lodged by filing it in the registry at Sydney,(b) show the name, residential address and business address of the applicant,(c) where the applicant is represented by a solicitor, show:(i) the name, address and telephone number of the solicitor, and(ii) if that solicitor has another solicitor as agent in the proceedings—the name, address and telephone number of the agent,(d) show an address for service,(e) be dated not more than 14 days before the date on which it is filed, and(f) be accompanied by a certificate which:(i) evidences the existing registration which gives rise to the entitlement of the applicant under the Mutual Recognition Act to entry in the roll,(ii) is given by the proper officer of the Supreme Court of the State or Territory where such existing registration occurred unless the document mentioned in Section 19 (3) of the Mutual Recognition Act, accompanying the notice, fulfils the requirements of this paragraph.(3) The applicant shall, on or before the day of filing, serve the notice and accompanying documents on the Society of Notaries of New South Wales Incorporated and the Board and shall file an affidavit of service within 14 days of filing the notice.(4) The applicant shall:(a) prior to, orfiling the notice, attend at a registry of the Court or at the office of the Supreme Court of his or her State or Territory and take the oath of office as a notary in Form 159A, and cause the certificate included in that form to be completed and shall:(b) within 14 days after,(c) at the time of, orfiling the notice, file the form of oath and the certificate.(d) within 14 days after,(5) Notwithstanding 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 section 19 (3) of the Mutual Recognition Act, certified under section 19 (4) of that Act, accompanying the notice, andare admissible in evidence and, unless the Court otherwise orders, shall not be the subject of oral evidence by the applicant.(c) the certificate referred to in subrule (2) (f),(6) (Repealed)(7) The Court may, of its own motion, obtain information under section 37 of the Mutual Recognition Act and such information is admissible in evidence without further proof.(8) The application for enrolment made by the notice may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant.(9) If the Court is satisfied that the applicant is entitled to enrolment, it shall order that the applicant be appointed as a notary.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.7: Ins 3.1.1986. Am 24.2.1989. Rep 17.11.1989. Ins 19.12.1997. Am 2005 (407), Sch 1 [156] [157].
8 Certificate of appointment
A person appointed as a notary shall be entitled to receive a certificate bearing the seal of the Court.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 82.8: Ins 3.1.1986. Rep 19.12.1997. Ins 22.10.1999.rules 82.9–82.14: Ins 3.1.1986. Rep 19.12.1997.rule 82.15: Rep 17.11.1989.rules 82.16, 82.17: Ins 3.1.1986. Rep 19.12.1997.rule 82.18: Ins 3.1.1986. Subst 24.9.1993. Rep 19.12.1997.rules 82.19–82.21: Ins 3.1.1986. Rep 19.12.1997.
Part 83 Admiralty List
pt 83: Ins 23.12.1988. Subst 23.10.1998.
1–4 (Repealed)
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
rules 83.1–83.3: Ins 23.12.1988. Subst 23.10.1998. Rep 2005 (407), Sch 1 [158].
rule 83.4: Ins 23.10.1998. Rep 2005 (407), Sch 1 [158].
5 Registrar and marshal
(1) The officer of the Court authorised for the purposes of rule 4 (1) (b) of the Admiralty Rules of the Commonwealth shall be the registrar.(2) The officer of the Court authorised for the purposes of rule 4 (2) (b) of those rules shall be the Sheriff.rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.rule 83.5: Ins 23.10.1998.
Schedules A–C (Repealed)
Schedule D Powers of associate Judges
Pt 60, r 1A.
sch D, hdg (side note to heading): Am 23.9.1988.
Part 1 Powers under NSW and Commonwealth Acts and regulations
Column 1 | Column 2 | Column 3 |
Act or regulation and provision | Description | Restriction |
• section 5 | Enforcement of judgment of British dominion | |
• section 12 (1) | Order to witness to attend | |
• section 4B | Extension of time for registering, filing etc | |
• section 14 | Persons in default; orders for compliance or stay of proceedings | |
• section 23 (2) | Contraventions of Act; orders for compliance or adjournment of proceedings | |
• section 32 | Disposition of assets | |
• section 18 (1) | Examination before the Court | |
• section 30 | Correcting award | |
• section 35 (1) (a) | Delivery of award | |
• section 36 | Costs of abortive arbitration | |
• section 46 (2) (a) | Terminating proceedings for delay | |
• section 48 | Extension of time | For making award only |
• section 53 | Stay of proceedings | |
• section 54 | Interpleader | |
• section 60 (d) | Service of notices | |
• section 363 | Security for costs | |
Companies Code: | ||
• section 123 | Reduction of capital | |
• section 212 | Rectification of Register of Company Charges | |
• Part 12, Division 2 | Winding up by the Court | Except sections 377 (5) and 388 |
• section 396 (4) | Members’ voluntary winding up: meeting | |
• section 401 | Creditors’ voluntary winding up | |
• section 402 | Creditors’ voluntary winding up: recognized company | |
• section 406 | Voluntary winding up: remuneration of liquidator | |
• Part 12, Division 4 | Winding up: companies | In a winding up by the Court and except sections 417 (2), 420, 423 (1), 427 (2), 454 and 462 (6) of the Code |
• Part 12, Division 6 | Winding up: bodies other than companies | Except in respect of sections 417 (2), 420, 423 (1), 427 (2), 454 and 462 (6) of the Code |
• section 533 | Security for costs, etc | |
• section 536 | Directions: meetings ordered by the Court | |
• section 539 | Irregularities, extension of time, etc | Restricted orders or declarations in or for the purposes of proceedings for other relief under the Code which the associate Judge may grant |
• section 541 | Examination of persons concerned with corporations | |
Companies (New South Wales) Regulations— | ||
• regulation 78 | Liquidator’s account | |
• regulation 81 | Deposit with liquidator | |
• regulation 87 | Costs of meeting | |
• regulation 90 | Adjournment of meeting | |
• regulation 96 | Votes of secured creditors | |
• regulation 118 | Bills of exchange | |
• regulation 123 | Costs of proof | |
• regulation 125 | Dealing with proof | |
• regulation 126 | Time for appeal | |
• regulation 134 | Time for appeal | |
• regulation 143 | Distribution of surplus | |
• section 77 | Registration of interstate forfeiture order etc | |
• section 82 (1) | Order for cancellation of registration of interstate forfeiture order etc | |
• section 14 | Attachment order | |
• section 77 | Directions relating to a receiver | |
• section 85 | Bill of costs | |
• section 36A | Division of chattels | |
• section 66G | Trustees for sale | |
• section 89 | Modification of easements, etc | |
• section 98 (1) | Amount due by absent, etc mortgagee | |
Corporations Act 2001 of the Commonwealth: | ||
• section 274 | Rectification of register of company charges | |
• Part 5.3A | Administration of company’s affairs with view to executing deed of company arrangement | |
• Part 5.4 | Winding up | |
• section 461 | Winding up | Where the application is not opposed |
• Part 5.4B | Winding up | Except ss 472 (2), (3) and (6), 486A, 486B and 487 |
• section 495 (4) | Members’ voluntary winding up: meeting | |
• section 500 | Creditor’s voluntary winding up | |
• section 504 | Voluntary winding up: remuneration of liquidator | |
• Part 5.6 | Winding up: companies | In a winding up by the court and except ss 532 (2), 536, 540 (1), 544 (2) and 568 |
• Part 5.7 | Winding up: bodies other than companies | Except in respect of ss 532 (2), 536, 540 (1), 544 (2) and 568 |
• section 597 | Examination of persons concerned with corporations | |
• section 1274 | Directions to make good default in lodgement of documents | |
• section 1319 | Directions, meetings ordered by the Court | |
• section 1321 | Appeals from decisions of receivers, liquidators etc | Restricted to appeals in respect of decisions under section 430 (3) or 475 (8) of the Corporations Act 2001 |
• section 1322 | Irregularities, extension of time etc | Restricted to orders or declarations in or for the purposes of proceedings for other relief under the Corporations Act 2001 which the associate Judge may grant |
• section 1324 | Injunctions | Restricted to orders where it is alleged that there has been an inappropriate reduction of capital or share buy back |
• section 1335 | Security for costs etc | |
Corporations Regulations 2001 of the Commonwealth: | ||
• Part 5.6 | Winding up | |
• section 4 | Sanctioning settlements, etc | |
• section 5 | Directions, etc, as to money paid to Public Trustee | |
• section 7 | Assessments, directions, certificates and references as to costs | |
• section 143 | Transfers to District Court | |
• section 145 | Removal of proceedings | |
• section 62 | Disputed claims for compensation | |
Family provision | ||
• sections 6, 8, 9 | Enforcement of judgment of a country | |
Foreign Judgments Act 1991 of the Commonwealth: | ||
• sections 6, 7, 8, 9 | Enforcement of judgment of a country | |
• section 17A (1) | Joinder of insurer etc | |
International War Crimes Tribunals Act 1995 of the Commonwealth: | ||
• section 45 (1) | Registration of a forfeiture order | |
• Part 5 | Charging orders | |
• section 38 (1) (b) | Excusing juror | |
• section 72 | Transfer to Land and Environment Court | |
• section 2A (3) | Time for writ of possession | |
• section 9 (1) | Payment into Court | |
• section 9 (2) | Direction for entry of judgment | |
• section 10 | Stay | |
• section 27 (2) | Relief relating to bond | |
• section 27 (3) | Cancellation of bond | |
• section 80 (7) (d) | Claim against Fidelity Fund; time | |
• section 87 (4) (b) | Final date for claim against Fund | |
• section 90C | Enforcement against Fund | |
• section 102 | Directions relating to a receiver | |
• section 208L | Appeal against decision of costs assessor | |
• section 208M | Leave to appeal, appeal: determination of costs assessor | |
• section 208N | Suspension of costs determination and ending suspension | |
• section 209C | Order for barrister or solicitor to give to a client a bill of costs or certain documents | |
• section 58 (2) | Extension of limitation period—personal injury action not surviving | |
• section 59 (2) | Extension of limitation period—personal injury action which survives | |
• section 60 (2) | Extension of limitation period—compensation to relatives claim | |
• sections 60C–60H | Personal injury cases | |
• section 73 (1) | Extension of limitation period—arbitration | |
• Schedule 5 clause 5 (5) | Transitional provisions | |
• section 13 | Fraudulent investment of spouse’s money | |
• section 41 (3) | Removal of proceedings | |
• section 42 (4) | Explanation for non compliance | |
• section 42 (5) | Allow proceedings to continue | |
• section 43A (7), 44B | Dismiss proceedings | |
• section 47A | Joinder of insurer | |
• section 48 | Co-operation with person against whom claim made and the person’s insurer | |
• section 52 (4) | Commencing proceedings | |
• section 66A (1) | Joinder of insurer | |
• section 36 (5) | Extension of time for giving notice | |
• section 36 (7), (8) | Joinder of Nominal Defendant | |
• section 70 (2) | Explanation for non- compliance | |
• section 70 (3) | Allow proceedings to continue | |
• section 73 (4), 76 | Dismiss proceedings | |
• section 79 | Joinder of insurer | |
• section 85 | Co-operation with person against whom claim made and the person’s insurer | |
• section 109 (1) | Commencing proceedings | |
• section 119 (1) | Joinder of insurer | |
• section 14E (1) and (2) | Joint hearing and transfer | |
Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth: | ||
• section 34A | Registration of a foreign forfeiture order, a foreign pecuniary penalty order or a foreign restraining order | |
• section 34A (5) | Registration of amendment to a foreign forfeiture order, a foreign pecuniary penalty order or a foreign restraining order | |
• section 34G | Order cancelling registration | |
Offshore Minerals Act 1994 of the Commonwealth: | ||
• section 351 (1) (a) | Removal of caveat | |
• section 351 (1) (c) | Extending caveat | |
• section 351 (2) | Non-registration of further caveat | |
• section 351 (1) (a) | Removal of caveat | |
• section 351 (1) (c) | Extending caveat | |
• section 351 (2) | Non registration of further caveat | |
Proceeds of Crime Act 1987 of the Commonwealth: | ||
• section 23A (2) | Direction to DPP to give or publish notice of registration | |
Proceeds of Crime Act 2002 of the Commonwealth: | ||
• Division 1 of Part 2-2 | Forfeiture order | |
De facto relationships Domestic relationships | ||
• section 83J | Directions relating to a receiver | |
• section 83V | Directions relating to a receiver | |
• section 160 | Directions relating to a receiver | |
• section 161 | Directions relating to a receiver | |
• section 74D (2) | Extending caveat | |
• section 74K (2) | Extending caveat | |
• section 74MA (2) | Withdrawal of caveat | |
• section 74O | Further caveat | |
Service and Execution of Process Act 1992 of the Commonwealth: | ||
• section 17 (1) | Shortening of time for appearance | |
• section 57 (1) | Leave to serve a subpoena outside the State etc | |
• section 67 (1) | Order to produce | |
• section 76 (1) | Leave to serve a subpoena outside the State etc | |
• section 79 (1) | Order to produce | |
Maintenance | Except sections 13 to 21 inclusive (guardianship) | |
• section 63 | Judicial advice | |
• section 70 | New trustees | |
• section 71 | Vesting orders | |
• section 75 (1) | Deceased mortgagee | |
• section 81 | Advantageous dealings | |
• Part 4 | Payment into Court | Except section 97 (2) |
• section 15B (4) | Directions | |
• section 21 (2) | Ordering account | |
• section 22 | Ordering audit | |
• section 27 (1) | Payment out | |
• section 13 | Gift to interested witness | |
• section 15A | Effect of termination of marriage | |
• section 84 | Application for legacy, etc | |
• section 146 | Caveat: application for grant to proceed | |
• section 151A (5) (as continued in effect by Part 18C of Schedule 6) | Leave to revoke election | |
• section 151C | Commencing proceedings | |
• section 151D | Commencing proceedings |
Part 2 Limitations of powers under provisions of the rules
Column 1 | Column 2 | Column 3 |
Provision of these rules | Description | Extent of power |
Part 14A | Technology and Construction List | |
Part 49— | ||
| Discharging or varying judgment or order. | |
Part 51 | Court of Appeal | |
Part 54 | Prerogative and other orders | Where paragraph 5 of Part 3 of this Schedule applies. |
Part 55— | ||
| Contempt in the face or hearing of the Court. | Where paragraph 6 of Part 3 of this Schedule applies. |
| Arrest | |
Part 60 | associate Judges | |
Part 67— | ||
| Defamation: statement in open Court. | |
| Defamation: offer of amends | |
Part 68— | ||
| General administration of an estate. | |
| Conduct of sale of property | |
Part 69 | Infants’ Custody and Settlements Act Rules. | |
Part 70— | ||
| Affidavit of fitness of new trustee. | |
| Joining a defendant | |
| Notice of payment into Court | |
| Inquiries relating to application of funds. | |
Part 73 | Adoption of Children | |
Part 75 | Criminal proceedings | |
Part 76 | Protective business | Except as provided in Part 76. |
Part 78 | Probate | Under Part 78 rules 34B (gift to witness), 60 (citation), 63, 69 and 70 (caveat). |
Part 3 General
1
Trial (except with a jury) of proceedings, where the only matters in question are the amount of damages and costs.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
2
Trial (except with a jury) of proceedings where the only matters in question are the value of goods and costs or the amount of damages, the value of goods and costs.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
3
Trial of proceedings pursuant to a direction under rule 9 of Part 56 (which relates to interpleader).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
3A
(Interest up to judgment) Trial of proceedings where the only matters in question are interest under section 94 of the Act and costs.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
4
Any:where referred to an associate Judge by an order of a Judge or of the Court of Appeal.
(a) trial or hearing of proceedings (except with a jury), or
(b) matter (other than a matter of proceedings tried or to be tried with a jury),
(c), (d) (Repealed)
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
5
An appeal from, or an application for prerogative or declaratory relief relating to, the Consumer, Trader and Tenancy Tribunal.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
5A
Proceedings referred to an associate Judge by a Judge where those proceedings are an appeal from, or an application for prerogative or declaratory relief relating to, the Administrative Decisions Tribunal.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
5B
An appeal from a Local Court in any civil matter.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
6
Punishment for contempt in the face of the Court or in the hearing of the Court, where the Court is constituted by the associate Judge concerned, and punishment for breach of an undertaking given to the Court constituted by an associate Judge.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
7
Under section 16 of the Act, the application of the Act to, and the effect of the repeals and amendments made by the Act on, proceedings commenced in the Court before the commencement of the Act.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
8
(Possession of land) Trial or hearing of proceedings (except with a jury) where:
(a) the only matter in question is a claim for the possession of land, or
(b) the only matters in question are a claim for the possession of land and one or more of the following:(i) a claim or cross-claim for damages,(ii) a claim or cross-claim for other money,(iii) a claim or cross-claim for costs.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
9
(Costs) Hearing of proceedings where the only matter in question is the matter of costs.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
10
Payment, transfer or delivery out of Court, and investment, of funds in Court in the Equity Division.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
11
Proceedings for perpetuation of testimony.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
12
Orders under section 100 of the Act (which section relates to an appointment to execute an instrument).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
13
(Extension of time for action) Under any provision mentioned in Schedule 1 of the Notice of Action and Other Privileges Abolition Act 1977 to which section 3 to that Act (which section relates to a cause of action accrued before the commencement of that Act) applies.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
14
(Lost bond or debenture) Orders under any provision by or under any Act that a debenture or bond issued by a corporation constituted by that Act, or a coupon annexed to that debenture or bond, has been lost or destroyed or defaced and directions by or under that Act for advertisement relating to that debenture, bond or coupon.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
15
Orders under any provision made by or under any Act for the appointment of a receiver of the income of a corporation which is constituted by that Act and which makes default in payment to the holder of any debenture, or coupon, issued or stock inscribed by that corporation.
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
16
Order under section 95 of the Act (which section relates to interest on money payable under a judgment).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
17
(Running down cases) Trial (except with a jury) of proceedings to which section 87 of the Act applies (which section relates to running down cases).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
17A
Trial (except with a jury) of proceedings in the Common Law Division on a claim in which:
(a) damages are claimed in respect of the death of or personal injuries to any person,
(b) damages are claimed in respect of damage to property and:(i) the proceedings include a claim in respect of the death of or personal injuries to any person, and(ii) if separate proceedings were brought in respect of:(A) the claim referred to in subparagraph (i), andsome common question of fact would arise in both claims, or(B) the claim in respect of damage to property,
(c) contribution is claimed under Part III of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of damages of the nature referred to in paragraph (a) or (b).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
18
(Companies Code) An appeal under section 538 of the Companies (New South Wales) Code in respect of a decision under section 329 (3) or section 375 (8) of that Code (which subsections relate to the costs, etc, of a person making a report to a receiver or liquidator).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
19
(Associations Incorporation Act) Appeal under section 58 of the Associations Incorporation Act 1984 in respect of a decision under section 375 (8) of the Companies Code in relation to an incorporated association (which subsection relates to the costs, etc of a person making a report to a liquidator).
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
20, 21 (Repealed)
rules 81.23–81.35: Ins 30.8.1985. Rep 10.12.1993.
22
Trial (except with a jury) of proceedings under section 205F (1) or section 206 (6) or section 207 (2) or section 243T (3) of the Customs Act 1901 of the Commonwealth.
23
Trial (except with a jury) of proceedings under section 69E (1) or section 69L or section 69R (3) or section 69W (4) of the Wildlife Protection (Regulation of Exports and Imports) Act 1982 of the Commonwealth.
24
Trial (except with a jury) of any proceedings arising out of or under the Partnership Act 1892 or any question arising in proceedings where the plaintiff alleges the plaintiff and any defendant were partners and that the partnership has terminated.
25
Trial (except with a jury) of proceedings for any of the following matters:
(a) the foreclosure or redemption of a mortgage or the enforcing of any charge or lien,
(b) the specific performance, rectification, delivery up or cancellation of any agreement for the sale or purchase of any property or the lease of any property,
(c) relief against fraud or mistake,
(d) the execution of a trust or a declaration that a trust subsists,
(e) the administration of the estate of a deceased person,
(f) any equitable claim or demand for recovery of money or damages, whether liquidated or unliquidated (not being a claim or demand of a kind to which paragraph (a), (b), (c), (d) or (e) applies).
26
Trial (except with a jury) of any proceedings in the Equity Division in which all the parties are related to each other by blood or marriage (other than adoption proceedings or matters arising in the Court’s parens patriae jurisdiction).
27
Trial (except with a jury) of any proceedings arising out of or under the Frustrated Contracts Act 1978, the Contracts Review Act 1980 or the Fair Trading Act 1987.
28
In proceedings in which an associate Judge has jurisdiction to determine a matter under these rules, any inherent jurisdiction of the Court to decide any associated or appendant matter in issue in the proceedings.
29
Any jurisdiction of the Court that is exercisable by a registrar of the Court.
sch D: Subst 20.10.1972.
Schedule E (Repealed)
sch E: Rep 2005 (407), Sch 1 [162].
Schedule F Forms
Pt 1, r 11.
Explanatory notes:
1. See Parts 1 and 65 generally, Part 66 rule 9, Part 76 rule 3 (protective proceedings), Part 78 rules 3 and 4 (probate proceedings).
2. Where a party is appearing in person, the appropriate alterations should be made to these forms.
3. The heading and title must appear in these forms as indicated in Form 1 unless otherwise indicated or required. As to the title, see Part 65 rule 1, Part 6 rule 3, Part 51 rules 49 and 57 and Forms 60, 60AA, 62, 62A, and 62AA (Court of Appeal), Part 73 rules 4 and 5 (Adoption Act 2000), Part 77 rule 24 (Testators’ Family Maintenance etc Act 1916), Part 77 rule 56 (Family Provision Act 1982), Part 76 rule 3 (protective proceedings), Part 78 rules 3 and 4 (probate proceedings), Part 80 rule 3 (Companies Code) and Part 80A rule 3 (3) (Corporations Law and ASC Law). The description of each form is part of the form.
4. Where Part 65 rule 8 and Part 66 rule 9 apply to a form, the form should conclude in accordance with form 4.
5. Underlining is not necessary.
6. Where Registrar appears, Prothonotary should be substituted if the proceedings are in the Common Law Division (section 119).
7. The requirements for folding a document and for a backsheet have been discontinued. See Form 1.
Form 1
(First page of a document. See Part 65 rule 1.)
(Leave clear a space of about 50 millimetres from the top of the page.)
IN THE SUPREME COURT OF NEW SOUTH WALES SYDNEY (or as the case may be) REGISTRY COMMON LAW (or as the case may be) DIVISION S10 of 19 (or as the case may require: see Part 1 rule 10 (1) and Part 65 rule 1 (1)) | (Do not describe the document here. The substance of the document shall be written within this space. A margin of not less than 25 millimetres shall be kept clear on the left hand side of the page. The dividing line to the left hand side shall be about 75 millimetres from the left hand edge of the page. The substance of a statement of accounts may commence on the following page. Where there is insufficient space on the left hand side of the page to include particulars of all the parties, this space may also be used to include particulars of parties and the substance of the document may be commenced on the following page. |
(Describe the document) NOTICE OF MOTION (or, in the case of an affidavit) AFFIDAVIT (and show the name of the deponent and date of swearing) J. Smith 7 May 19 | Above “COMMON LAW DIVISION”in the margin name the registry at the place for trial or hearing. In respect of proceedings under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001 omit “plaintiff” from the title and insert instead “appellant” and omit “defendant” from the title and insert instead “respondent”. |
Filed for (Full name of filing party) HENRY JONES | Highlight the name of the document and the filing party by including a solid line above and below that information.) |
JOHN LEE
JAMES STYLES
CROSS-CLAIM JAMES STYLES
JOHN LEE and HENRY JONES
SECOND CROSS-CLAIM HENRY JONES
WILLIAM SMITH
(and in every document continue) Principal & Co. 22 Main Street, Yass 2582. telephone: 202 Agent & Co. 22 Pitt Street Sydney 2000 telephone: 222 2222 DX 222, Sydney |
Form 1: Ins 2.6.1972. Subst 23.12.1977. Am 6.7.1979; 23.5.1980; 14.11.1980; 8.7.1983; 20.8.1993. Subst 25.8.1995 (see erratum 16.2.1996). Am 29.8.2003.
Form 2
(To be set out in accordance with Form 1)
JOHN LEE and others
plaintiffs
plaintiffs
JAMES STYLES
defendant
and cross-claims
defendant
and cross-claims
(See Part 65 rule 1 (4).)
Form 2: Ins 2.6.1972. Am 23.12.1977; 8.7.1983.
Form 3
(To be set out in accordance with Form 1)
The application of HENRY JONES
(See Part 65 rule 1 (3).)
Form 3: Ins 2.6.1972. Am 23.12.1977; 8.7.1983.
Form 4
(Conclusion of documents for signature by a party unless otherwise indicated or required.)
(Signature)
Plaintiff’s solicitor
Plaintiff’s solicitor
Filed (dated if not filed): 7 May 19 .
(On an originating process or notice of appearance add the full name of the solicitor after “solicitor”. The appropriate alteration must be made where Part 66 rule 9 (3) (relating to signature for a solicitor) applies. See also Part 65 generally.)
Form 4: Ins 2.6.1972. Am 23.12.1977.
Form 5
P 4, r 1.
STATEMENT OF CLAIM
1. | } | (plead as required by the rules) |
2. |
The plaintiff claims:
1. | } | (specify the relief claimed) |
2. |
(Particulars under Part 16 may be given by a heading, for example:
PARTICULARS OF INJURIES
1. | } | (state the particulars of injuries) |
2. |
(These particulars may appear in the relevant place in the statement of facts or separately after the relief claimed, whichever is convenient.)
To the defendant (address):
1. You are liable to suffer judgment or an order against you unless the prescribed form of notice of your appearance is received in the Registry (or where a place in the Riverina or the Central West or the Northern Rivers district is the nominated place of trial,“or Sub-Registry”) within (14) days after service of this Statement of Claim upon you and you comply with the rules of court relating to your defence.
(or, where the proceedings are or include proceedings on a claim in respect of defamation—
1. If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified below, the proceedings may be heard and you will be liable to suffer judgment or an order against you in your absence. Before any attendance at that time you must enter an appearance in the Registry (or, where a place in the Riverina or the Central West or the Northern Rivers district is the place named for attendance add“or Sub-Registry”).
2. (Where the defendant is a corporation, add: A Corporation may not enter an appearance in, or defend, any proceedings otherwise than by a solicitor or by a director authorised in accordance with Part 11 rule 1A of the Supreme Court Rules 1970.)
3. (Where Part 7 rule 4 applies, add: You may, within (14) days after service of this Statement of Claim upon you, pay to the plaintiff or his solicitor the amount claimed (and, where the claim is for a liquidated demand together with an order for interest under section 94 of the Act, add— together with interest at the rate claimed or at (specify the rate fixed by Part 7 rule 4) per cent yearly whichever is less, from the beginning of the period for which interest is claimed until the date of payment (or as the case may require: see Part 7 rule 4 (2)) and also $ for costs. Further proceedings against you will be stayed when you also file a prescribed form of notice of payment.)
4. (Where Part 7 rule 8 (1) (a) applies, add: The plaintiff does not seek to disturb the occupation of (name of occupier).)
(Where Part 33 rule 2 (2) applies, add: Nominated place for trial: (here state a place appointed for sittings of the Court).)
(Where the proceedings are or include proceedings on a claim in respect of defamation, add the time and place for attendance)
Plaintiff: (name, address) (a minor)
(Tutor: (name, address))
Plaintiff’s address for Service: (Part 9 rule 6)
Address of Registry:
(where a place in the Riverina is the nominated place of trial, add“Sub-Registries: the offices of clerks of the Court at Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora and Tumut”).
(where a place in the Central West is the nominated place of trial, add—“Sub-Registries: the offices of the clerks of the Court at Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Parkes and Wellington”).
(where a place in the Northern Rivers district is the nominated place of trial, add—“Sub-Registries: the offices of the clerks of the Court at Ballina, Bellingen, Byron Bay, Casino, Coffs Harbour, Dorrigo, Glen Innes, Grafton, Kempsey, Kyogle, Macksville, Maclean, Mullumbimby, Murwillumbah, Port Macquarie, Tenterfield, Tweed Heads and Wauchope.”).
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 5: Ins 2.6.1972. Am 4.4.1975; 1.8.1975; 23.12.1977; 21.4.1978; 24.4.1981 (see erratum 29.5.1981); 25.2.1983; 9.12.1983 (see erratum 13.1.1984); 7.12.1984; 24.10.1986; 20.2.1987; 20.2.1998; 29.11.2002. Subst 14.3.2003. Am 5.9.2003.
Form 6
P 5, r 3.
SUMMONS
The Plaintiff claims—(or)
1. An order that (or as required)
2. An order that (or as required)
1. A declaration that
2. An order that (or as required)
(or)
The plaintiff claims an order that
(Where there is a defendant, add the following:
To the defendant (address):
The return day of this summons is:
Date: Time: Place:
If there is no attendance before the Court by you or by your counsel or solicitor at the date, time and place specified above, the proceedings may be heard and you will be liable to suffer judgment or an order against you in your absence.
Before any attendance at that time you must enter an appearance in the Registry (or, where a place in the Riverina or the Central West or the Northern Rivers district is the place named for attendance add“or Sub-Registry”).
(Where the defendant is a corporation, add: A Corporation may not enter an appearance in, or defend, any proceedings otherwise than by a solicitor or by a director authorised in accordance with Part 11 rule 1A of the Supreme Court Rules 1970.)
(Where the time for service under Part 5 rule 3 (3) has been abridged, add—
The time before which this summons is to be served has been abridged by the Court to 5 p.m. on 5 May 19 , or as the case may require).
Plaintiff: (name, address) (a minor)
(Tutor: (name, address))
Plaintiff’s Address for Service: (Part 9 rule 6)
Address of Registry:
(where a place in the Riverina is the place named for attendance, add“Sub-Registries: the offices of clerks of the Court at Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora and Tumut”).
(where a place in the Central West is the place named for attendance, add—“Sub-Registries: the offices of the clerks of the Court at Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Parkes and Wellington”).
(where a place in the Northern Rivers District is the place named for attendance, add—“Sub-Registries: the offices of the clerks of the Court at Ballina, Bellingen, Byron Bay, Casino, Coffs Harbour, Dorrigo, Glen Innes, Grafton, Kempsey, Kyogle, Macksville, Maclean, Mullumbimby, Murwillumbah, Port Macquarie, Tenterfield, Tweed Heads and Wauchope”.).
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
(This form does not apply to proceedings in the Court of Appeal)
Form 6: Ins 2.6.1972. Am 4.4.1975; 23.12.1977; 24.4.1981 (see erratum 29.5.1981); 8.7.1983; 7.12.1984; 19.7.1985; 24.10.1986; 20.2.1987; 20.2.1998; 29.11.2002; 13.6.2003; 5.9.2003.
Form 7
Form 7: Ins 2.6.1972. Am 4.4.1975; 23.12.1977; 6.7.1979; 14.11.1980; 24.4.1981 (see erratum 29.5.1981); 7.12.1984; 24.10.1986; 20.2.1987; 20.2.1998; 29.11.2002. Rep 13.6.2003.
Form 8
P 5, r 5.
APPOINTMENT FOR HEARING
The Court appoints 7 May 19 , at 10 a.m. at (address of Court) for the hearing.
(Signature and description of officer of the Court)
Filed: 31 March 19 .
Form 8: Ins 2.6.1972.
Form 9
P 6, r 11.
(To be set out in accordance with Form 1)
JOHN LEE
Plaintiff
JAMES STYLES
defendant
JAMES STYLES
cross-claimant
JOHN LEE
cross-defendant
Plaintiff
JAMES STYLES
defendant
JAMES STYLES
cross-claimant
JOHN LEE
cross-defendant
DEFENCE AND CROSS-CLAIM
DEFENCE
1. | } | (plead as required by the rules and see the prescribed form of Defence under Part 15 rule 3) |
2. |
CROSS-CLAIM
1. | } | (plead as required by the rules) |
2. |
The cross-claimant JAMES STYLES claims—
1. | } | (specify the relief claimed) |
2. |
(Particulars under Part 16 may be given in the manner indicated in the prescribed form of Statement of Claim under Part 4 rule 1, Form 5.)
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 9: Ins 2.6.1972. Am 29.3.1974; 23.12.1977; 8.7.1983; 20.2.1998; 29.11.2002; 5.9.2003.
Form 10
(Read this form with Form 1.)
P 6, r 11.
SECOND CROSS-CLAIM
1. | } | (plead as required by the rules including the facts required by Part 6 rule 11 (4)) |
2. |
The cross-claimant to the second cross-claim HENRY JONES claims—
1. | } | (specify the relief claimed) |
2. |
(Particulars under Part 16 may be given in the manner indicated in the form of Statement of Claim under Part 4 rule 1, Form 5.)
To WILLIAM SMITH (address):
1. You are liable to suffer judgment or an order against you unless the prescribed form of notice of your appearance is received in the Registry (or where a place in the Riverina or the Central West or the Northern Rivers district is the nominated place of trial,“or Sub-Registry)” within (14) days after service of this statement of cross-claim upon you and you comply with the rules of court relating to your defence.
2. (Where the defendant is a corporation, add: A Corporation may not enter an appearance in, or defend, any proceedings otherwise than by a solicitor or by a director authorised in accordance with Part 11 rule 1A of the Supreme Court Rules 1970.)
3. (Where Part 7 rule 4 applies, add: You may, within (14) days after service of this Second Cross-claim upon you, pay to HENRY JONES or his solicitor the amount claimed (and where the claim is for a liquidated demand together with an order for interest under section 94 of the Act, add—Together with interest at the rate claimed or at (Specify the rate fixed by Part 7 rule 4) per cent yearly whichever is less, from the beginning of the period for which interest is claimed until the date of payment (or as the case may require: see Part 7 rule 4 (2)) and also $ for costs. Further proceedings against you will be stayed when you also file a prescribed form of Notice of Payment.)
Cross-claimant to the second cross-claim: (name, address) (a minor).
(Tutor: (name, address))
Plaintiff’s address for Service:
Defendant’s Address for Service:
Address for Service for cross-claimant to the first cross-claim:
Address for Service for cross-defendant to the first cross-claim:
Address for Service for cross-claimant to the second cross-claim: (Part 9 rule 6)
Address of Registry:
(where a place in the Riverina is the nominated place of trial, add“Sub-Registries: the offices of clerks of the Court at Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora and Tumut”.).
(where a place in the Central West is the nominated place of trial, add—“Sub-Registries: the offices of the clerks of the Court at Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Parkes and Wellington”.).
(Where a place in the Northern Rivers district is the nominated place of trial, add—“Sub-Registries: the offices of the clerks of the Court at Ballina, Bellingen, Byron Bay, Casino, Coffs Harbour, Dorrigo, Glen Innes, Grafton, Kempsey, Kyogle, Macksville, Maclean, Mullumbimby, Murwillumbah, Port Macquarie, Tenterfield, Tweed Heads and Wauchope”.).
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 10: Ins 2.6.1972. Am 29.3.1974; 4.4.1975; 1.8.1975; 23.12.1977; 23.5.1980; 24.4.1981 (see erratum 29.5.1981); 25.2.1983; 9.12.1983 (see erratum 13.1.1984); 23.3.1984; 7.12.1984; 24.10.1986; 20.2.1987; 25.10.1996; 20.2.1998; 29.11.2002; 5.9.2003; 20.2.2004.
Form 11
Form 11: Ins 2.6.1972. Am 29.3.1974. Rep 23.5.1980.
Form 11A
P 6, r 13 (1).
(Cross-claim against plaintiff in summons)
(Heading and title as in Form 9)
(Heading and title as in Form 9)
CROSS-CLAIM
The cross-claimant JAMES STYLES claims—
1. | } | (state the relief claimed in the manner indicated in Form 6) |
2. |
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 11A: Ins 29.3.1974. Am 20.2.1998; 29.11.2002; 5.9.2003.
Form 11B
Form 11B: Ins 29.3.1974. Am 4.4.1975; 23.12.1977; 24.4.1981 (see erratum 29.5.1981); 8.7.1983; 7.12.1984; 24.10.1986; 20.2.1987; 20.2.1998; 29.11.2002. Rep 13.6.2003.
Form 12
P 7, r 4.
NOTICE OF PAYMENT
On 10 May 19 , the defendant paid to the plaintiff $ , made up as follows:
amount claimed | $ |
costs | $ |
(interest at the rate of % from 1 May 19 until the above date of payment) | $ |
total | $ |
Form 12: Ins 2.6.1972.
Form 13
P 7, r 8.
NOTICE OF CLAIM FOR POSSESSION
To (name of occupier or“the occupier”) of (describe land).
In the document served with this notice the plaintiff claims possession of the above land. You are served as a person in occupation of it or of part of it.
You may apply to the Court for an order that you be added as a defendant.
If you do not so apply within (10) days after this notice is served upon you (or, where the document served with this notice is a summons, at or before the appointment for hearing stated in the summons served with this notice) you may be evicted from the above land pursuant to a judgment entered in your absence.
Form 13: Ins 2.6.1972. Am 25.10.1996.
Form 13A
P 10, r 2A.
(Notice to defendant served outside Australia)
To the Defendant:
1. The Court may, on application made by you in accordance with the rules of Court, set aside the service on you of this statement of claim (or summons or as the case may be) where—
(a) service is not authorised by the rules of the Court; or
(b) this Court is an inappropriate forum for the trial of the proceedings.
2. Alternatively you may submit to the jurisdiction of the Court by filing the prescribed form of unconditional notice of appearance.
3. If you do not make an application under paragraph 1 or file a notice under paragraph 2, the Court may give leave to the plaintiff to proceed against you.
Form 13A: Ins 21.10.1977. Rep 6.7.1979. Ins 17.6.1988.
Form 14
P 10, r 8 (a) (v).
REQUEST FOR SPECIAL SERVICE
It is requested that the sealed copy of (description of document) be served on (name) (whose address is ) in (country) by (describe special manner).
(Follow the prescribed form of conclusion of documents for use by a party, Form 4 and, after the translation, add the certificate.)
I (name), of (address), certify—
1. that what appears above is a translation of the document annexed and marked “A”;
2. that my qualifications to translate from the English language to the (name) language are (state qualifications).
Dated 7 May 19 .
(signed)
(The annexure must bear a note in the same language—“This is the annexure marked “A” referred to in my certificate dated 7 May 19 ”.)
Form 14: Ins 2.6.1972.
Form 15
P 10, r 10.
REQUEST FOR SERVICE
To the Prothonotary:
I (name) request that a sealed copy of (description of document) be transmitted to (country) for service on (name), of (address) (pursuant to the Convention made between and ) and I undertake to pay to you an amount equal to the sum of all expenses incurred in consequence of this request.
Form 15: Ins 2.6.1972.
Form 16
P 11, r 4.
NOTICE OF APPEARANCE
JAMES STYLES
of (address) appears (where Part 51 rule 20 or Part 51AA rule 13B applies add and submits to the orders of the Court, save as to costs).
of (address) appears (where Part 51 rule 20 or Part 51AA rule 13B applies add and submits to the orders of the Court, save as to costs).
(Include any statement under Part 11 rule 4 (3).)
(He is a minor (mentally disabled person); his tutor is ROBERT STYLES.) (Where the appearance is entered under Part 78 rule 34H (1), add:
This appearance is entered under Part 78 rule 34H (1).)
(Where a defendant wishes to make a request under Part 11 rule 5 (3) add:
The Registrar is requested to deal with the copy (two copies) of this Notice under Part 11 rule 5 (3).)
(Add any other notices permitted by the rules to be added, for example, under Part 15 rule 12 relating to money claims.)
Address for service: (The office of his solicitor, or as the case may be; see Part 9 rule 6.)
(Follow the prescribed form of conclusion of documents for use by a party, Form 4.)
(This notice of appearance may be added to a Notice of Motion of a person applying to be added as a defendant, for example, under Part 8 rule 8 (3).)
Form 16: Ins 2.6.1972. Am 23.12.1977; 23.5.1980; 20.2.1987; 23.12.1988; 16.8.1991; 25.10.1991; 22.5.1992 (see erratum 12.6.1992); 27.11.1992; 23.5.1997.
Form 17
P 15, r 3.
DEFENCE
(Plead as required by the rules, for example— | |
1. | The defendant denies, etc.) |
(or) | |
(where one of two or more defendants, | |
DEFENCE OF JAMES STYLES
1. This defendant denies, etc.)
(For a Defence to a Cross-claim see the prescribed form of Defence and Cross-claim under Part 6 rule 3, Form 9.)
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 17: Ins 2.6.1972. Am 25.2.1983; 29.11.2002; 5.9.2003.
Form 18
P 15, r 4.
REPLY
(Plead as required by the rules, and see Part 15 rule 21, relating to joinder of issue.)
Form 18: Ins 2.6.1972.
Form 19
P 15, r 4 (2).
REPLY AND DEFENCE TO CROSS-CLAIM
REPLY
(Plead as required by the rules.)
DEFENCE TO CROSS-CLAIM
(Plead as required by the rules.)
(If required under Part 1 rule 9A (1A), add the following)
Certification under section 198L of the Legal Profession Act 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 19: Ins 2.6.1972. Am 29.11.2002; 5.9.2003.
Form 20
P 15, r 12 (3).
NOTICE TO PLEAD FACTS
To the plaintiff (cross-defendant): The defendant (cross-claimant), pursuant to Part 15 rule 12 (3) requires you (in respect of your Cross-claim) to plead the facts on which you rely.
Form 20: Ins 2.6.1972.
Form 20A
(Affidavit verifying statement of claim)
P 15, r 23.
AFFIDAVIT
On 19 (name) of (address), (occupation)
say on oath—
say on oath—
1. I am the plaintiff (or as the case may be; see Part 15 rule 23 (4) (a)).
2. I believe that the allegations of fact in the statement of claim set out above (or annexed hereto marked “A”) are true.
Sworn, etc.
Form 20A: Ins 25.2.1983.
Form 20B
(Affidavit verifying defence)
P 15, r 23.
AFFIDAVIT
On 7 May 19 I (name) of (address), (occupation) say on oath—
1. I am the defendant (or as the case may be; see Part 15 rule 23 (4) (a)).
2. I believe that the allegations of fact which are denied in the defence set out above (or annexed hereto marked “A”) are untrue.
3. Having made reasonable inquiries, I do not know that the allegations of fact which are stated in that defence to be not admitted are true.
4. I believe that the allegations of fact in that defence are true.
Sworn, etc.
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 20B: Ins 25.2.1983. Am 21.10.1994.
Form 20C
P 17, r 4 (2)
AFFIDAVIT OF DEBT
On (date) I, (name, address and occupation), say on oath:
1. (Set out the matters referred to in Part 17 rule 4 (2) (c))
2. (Set out the matters referred to in Part 17 rule 4 (2) (d))
3. I believe that the defendant is indebted to { me or the plaintiff} in respect to the cause of action the subject of these proceedings in the sum of $ (amount), made up as follows:
4. [If applicable Interest will continue to accrue at the rate of $ (amount) per day until judgment (subject to any future payment on account of the debt).][If an order for interest under section 94 of the Supreme Court Act 1970 is claimed, give sufficient particulars to enable the amount of that interest to be calculated and the daily rate in dollars and cents from the date of the affidavit until judgment]
5. No payment has been made, and no credit has accrued, since the commencement of proceedings that reduces the amount for which judgment is sought [if applicable other than as set out above].
6. {I am or The plaintiff is} entitled to judgment for costs of $ (amount) made up as follows:(Give particulars of how costs are made up)
Sworn at | } |
before me |
Form 20C: Ins 25.10.1996.
Form 21
NOTICE TO ADMIT FACTS
P 18, rr 2, 5.
(AND AUTHENTICITY OF DOCUMENTS)
To the defendant:
The plaintiff requires you to admit for the purpose of these proceedings only—
1. | } | (state each fact) |
2. |
(The plaintiff requires you to admit for the purpose of these proceedings only the authenticity of the following documents—
1. | } | (describe each document)) |
2. |
If you do not, within 14 days after service of this notice upon you, serve a notice upon the plaintiff disputing any fact (and the authenticity of any document) above specified, that fact (and the authenticity of that document) shall, for the purpose of these proceedings, be admitted by you in favour of the plaintiff.
Form 21: Ins 2.6.1972.
Form 22
NOTICE DISPUTING FACTS
P 18, rr 2, 5.
(AND AUTHENTICITY OF DOCUMENTS)
The defendant disputes the following facts specified in the plaintiff’s notice dated 7 May 19 —
1. | } | (state each fact) |
2. |
(The defendant disputes the authenticity of the following documents which were specified in the plaintiff’s notice (or list of documents) dated 7 May 19 —
1. | } | (describe each document)) |
2. |
(The defendant admits—
1. | } | (state each fact or describe each document)) |
2. |
Form 22: Ins 2.6.1972.
Form 23
P 19, r 2.
NOTICE OF MOTION
Applicant: (name and address and, if a party to the proceedings, description eg the plaintiff or the defendant JAMES STYLES) [where applicable a minor or as the case requires]
[Where applicable Tutor: (name and address)]
The applicant will at 9.30 am on (date) at (address of Court) apply to the Court for orders—
1. | } | (state concisely the nature of each order which is sought but not the grounds for the application.) |
2. |
[Where the time for service under Part 19 rule 3 has been abridged, add—
The time before which this notice of motion is to be served has been abridged by the Court to { 5 p.m. on 6 May 1995 or as the case requires}.]
To: The Respondent(s)
(set out name of each respondent and the address of any respondent who does not have an address for service in the proceedings).
If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified above, the application may be heard and an order may be made against you in your absence.
A respondent who has not already done so must enter an appearance in the proceedings before any attendance before the Court.
[Where the applicant does not have an address for service in the proceedings or any respondent is not a party to the proceedings, add—
Applicant’s address for service: (Part 9 rule 6)]
(Follow the prescribed form of conclusion of documents for use by a party, Form 4.)
(As to a notice of motion in the Court of Appeal, see Form 62AA)
Form 23: Ins 2.6.1972. Am 16.1.1981. Subst 24.2.1995.
Form 24
P 20, r 7.
NOTICE OF AMENDMENTS
The (describe document) was amended on 7 May 19 , pursuant to an order made on 19 (pursuant to Part rule ) by—
omitting | “....................” | |
(omitting | “....................” | and inserting |
“....................”) | ||
(inserting | “....................”) |
Form 24: Ins 2.6.1972.
Form 25: Ins 2.6.1972. Am 31.8.1984. Rep 23.6.1989.
Forms 26–30: Ins 2.6.1972. Rep 23.6.1989.
Form 30A: Ins 31.8.1984. Am 7.12.1984. Rep 23.6.1989.
Form 31: Ins 2.6.1972. Rep 19.7.1996.
Form 32: Ins 2.6.1972. Am 9.12.1983. Rep 19.7.1996.
Forms 25–32
Form 33
P 24, r 1.
NOTICE TO ANSWER INTERROGATORIES
Within (15) days after service of this notice upon each of them respectively, the defendant CD is required to answer interrogatories numbered 1 to 8 (and verify his answers) and the defendant EF is required to answer interrogatories numbered 1 to 12 (and verify his answers).
INTERROGATORIES
1. (State the question.)
2. (State the question.)
Form 33: Ins 2.6.1972.
Form 34
P 24, r 6.
STATEMENT IN ANSWER TO INTERROGATORIES
The defendant CD answers the plaintiff’s interrogatories specified in notice dated 7 May 19 as follows:
1A. | (State in full the interrogatory.) |
1B. | (State the answer.) |
2A. | (State in full the interrogatory.) |
2B. | (a) The defendant objects to answer on the grounds of privilege; (b) (State the facts on which this objection is based.) |
Form 34: Ins 2.6.1972. Am 26.9.1986.
Form 35
P 24, r 6.
VERIFIED STATEMENT IN ANSWER TO INTERROGATORIES
The defendant EF Pty Ltd answers the plaintiff’s interrogatories specified in notice dated 7 May 19 as follows:
1A. | (State in full the interrogatory.) |
1B. | (State the answer.) |
2A. | (State in full the interrogatory.) |
2B. | (a) The defendant objects to answer on the grounds of privilege; (b) (State the facts on which this objection is based.) |
(Follow the prescribed form of conclusion of documents for use by a party.)
AFFIDAVIT
On 19 , I (name), of (address) (occupation) say on oath:
1. I am the secretary of the defendant and am authorised to make this affidavit on its behalf.
2. (The deponent should state which of the answers are true to his own knowledge and which are true to the best of his knowledge, information and belief based on his inquiries of officers of the company and others and on his other investigations.)
Form 35: Ins 2.6.1972. Am 26.9.1986.
Form 36
Form 36: Ins 2.6.1972. Subst 23.3.1984. Rep 22.9.1995.
Form 37
P 26, r 2.
APPOINTMENT FOR DIRECTIONS
The Court appoints 19 at 10 a.m. at (address of Court) for a hearing for directions under Part 26 of the rules.
Dated 1984.
Registrar
Form 37: Ins 2.6.1972. Subst 23.3.1984.
Form 38
P 27, r 1D.
ORDER FOR EXAMINATION
THE COURT ORDERS that (name) of (address within the State) be examined on oath before (name and address, or describe examiner.)
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 38: Ins 2.6.1972. Am 19.5.1989.
Form 39
P 27, r 1D.
ORDER APPOINTING EXAMINER
THE COURT ORDERS—
1. That (name and address (or description)) be appointed examiner for the purpose of taking the examination of a witness (name) of (address out of the State) in accordance with the rules of this Court (but without the power to compel a witness to attend, if this is required by a convention).
2. That the party obtaining this order give to each other interested party (4) days’ notice in writing of the date on which he proposes to send the minute of this order to the examiner.
3. That not less than (4) days after that notice has been given each party shall give to the other the name of his agent at (place) to whom notices may be sent.
(Complete as in general form of minute of order under Part 41 rule 11.)
(This form does not apply where a Judge or an associate Judge or other officer of the Court is appointed examiner.)
Form 39: Ins 2.6.1972. Am 24.10.1986; 19.5.1989.
Form 40
P 27, r 1D.
ORDER
THE COURT ORDERS that a letter of request be issued to the judicial authorities of (country) to take or cause to be taken the evidence of (name) .
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 40: Ins 2.6.1972. Am 19.5.1989.
Form 41
P 29, r 2.
DEED
PARTICULARS
1. Date: 7 May 19 . | |
2. Receiver: | (name) |
(address for service) | |
3. Guarantor: | (name) |
(address for service) | |
4. Proceedings No. of 19 in the Division (or as the case may be) of the Supreme Court of New South Wales. | |
5. Date of order for appointment of Receiver: 10 April 19 . By this deed the Receiver promises the Registrar of the Division that if the Receiver does not account to the Court for what he receives as Receiver or does not deal with what he receives as Receiver as the Court directs the Guarantor will pay to the Registrar whatever is required to make good the default to a limit of $ . | |
Signed sealed and delivered (and so on) (or as the case may be).
Form 41: Ins 2.6.1972. Am 25.5.1990.
Form 41A: Ins 1.8.1975. Rep 29.8.2003.
Form 41B: Ins 1.8.1975. Rep 29.8.2003.
Forms 41A, 41B
Form 42
P 33, r 5.
NOTICE TO SET DOWN FOR TRIAL
The plaintiff requests that the proceedings be set down for trial—
(with a JURY) (omit this line if the trial is to be without a jury) at (state the place for trial as fixed by or under rule 2) generally (or for trial of the following issues: (state the issues)).
Form 42: Ins 2.6.1972. Am 31.5.1985; 24.4.1986; 21.11.1986.
Form 43
P 34, r 3.
REQUISITION FOR TRIAL WITH A JURY
The plaintiff requires trial with a jury.
(or, where application is made by all parties under section 87 (1) of the Act: All parties require trial with a jury.)
Form 43: Ins 2.6.1972.
Form 43A
P 36, r 12.
ORDER FOR PRODUCTION
To: (producing party)
Of: (address)
THE COURT ORDERS that:
1. You must produce this order for production and the documents specified in the schedule attached before the Court at (venue) at (time) on (date).
2. Instead of so attending, you may produce this order and the documents to the exhibits clerk on level 5 of the Supreme Court or post them to the said clerk c/- Supreme Court of New South Wales, GPO Box 3 Sydney 2001, in either case so that they are received no later than 2 days before the first date on which you are required to so attend.
3. You need not comply with this order if it is served on or after (a date which is 5 clear days before the first return date of the order).
ORDERED and ENTERED
By the Court | |
Deputy Registrar |
NOTICE PURSUANT TO Part 42 rule 8 (3)
TAKE NOTICE that you will be liable to imprisonment or to sequestration of property if you refuse or neglect to produce the documents or things within the time specified in this order.
NOTE that:
The documents and things produced by you in accordance with this order may be returned at the conclusion of the examination by post to you at your address shown on this order but you may in writing on or attached to this order request that they be posted to you at another address given by you.
If you have incurred substantial expenses in complying with this order you may apply to the Court for payment of those expenses.
SCHEDULE
Form 43A: Ins 4.3.2005.
Form 44
P 36, r 14.
ORDER
THE COURT ORDERS that—
1. The Superintendent of (see section 42 of the Correctional Centres Act 1952), shall have (name), a inmate, before this Court to be examined as a witness and duly returned to confinement.
2. The first day on which he is required to have the inmate before the Court is 7 May 19 at 10 a.m. at (address of Court).
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 44: Ins 2.6.1972. Am 21.2.1997.
Form 45
P 36, r 16.
NOTICE TO PRODUCE
To the plaintiff:
The defendant requires you to produce at the trial (or otherwise specify the occasion or place or, where the notice is served with leave given under Part 36 rule 16 (1) add 7 May 19 , a day fixed by the Court or where the notice is served pursuant to Part 36 rule 16 (1A) add 7 May 19 , a day fixed pursuant to Part 36 rule 16 (1A)) the following documents for the purpose of evidence—
(Enumerate the documents or things.)
[If Part 77 rule 134A applies, add the wording required by the rule]
Form 45: Ins 2.6.1972. Am 14.7.1989; 21.5.1999.
Form 45A
(Subpoena to a natural person)
P 36A, r 3 (5).
SUBPOENA FOR PRODUCTION—FOR SERVICE IN NEW ZEALAND
To | (1) |
(2). |
THE COURT ORDERS that you shall ATTEND AND PRODUCE this subpoena and the documents and things described in the schedule—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 am (3) and until you are excused by the Court from further attending; BUT—(i) INSTEAD OF so ATTENDING, YOU MAY PRODUCE this subpoena and the documents and things described in the schedule to—(A) a clerk of the Court at the above place by hand or by post, in either case so that the clerk receives them not later than 24 hours BEFORE THE DATE on which you are required so to attend; or(B) any registry of the High Court of New Zealand not later than (8) PROVIDED THAT you—(I) tender to the registry such portion of the amount provided to you on account of expenses as is necessary to meet the costs of transportation for the document or thing produced to the Supreme Court of New South Wales;(II) obtain from the New Zealand registry a receipt with a description of the document or thing produced in accordance with the subpoena; and(III) forthwith send a copy of the receipt and the subpoena by fax to the Sydney registry of the Supreme Court of New South Wales;(ii) you need not comply with this subpoena—(A) if—(I) allowances and travelling expenses; orsufficient to meet your reasonable expenses are not paid, or tendered to you, at the time of service or at some other reasonable time before you are required to comply with it;(II) vouchers,(B) if it is served on you after (9);(C) if the party who requested the issue of this subpoena has excused you from compliance; or(D) if it is not accompanied by—(I) a copy of the order giving leave to serve it in New Zealand; and(II) a notice in the prescribed form setting out your rights and obligations in relation to the subpoena and information on how to apply to set aside the subpoena;(iii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance and production to a later time.
SCHEDULE
(10)
(10)
Dated 19 . | By the Court, (11) |
Issued at the request of (12) whose address for service is (13).
See the reverse of this page.
On the reverse of the page, keeping clear a margin of 25 millimetres on the right hand side, add—
Note that—
(1) if you do not comply with this subpoena you may be arrested;
(2) if, by paragraph (c) (i) (A), you are permitted to produce this subpoena and other documents and things to a clerk of the Court at Queen’s Square, Sydney, you may produce them to the clerk by hand at the Exhibits Office, Level 5 at that place or by posting them to—in accordance with paragraph (c) (i) (A);Exhibits Clerk,
Exhibits Office, Level 5,
Supreme Court of N.S.W.
G.P.O. Box 3,
Sydney 2001.
AUSTRALIA
(3) in subparagraph (c) (i) (A) Saturdays, Sundays and other holidays are not counted in calculating time;
(4) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you;
(5) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(6) being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena; and
(7) if there is a dispute over the amount of your reasonable expenses, you may apply to the Court for a decision on what is reasonable.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) specify a date, for example 26 April 19 , having regard to Part 2 rule 2, Part 37 rule 4 (1) (b) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 10 days before the date mentioned in note (5) above.
(9) specify a date, for example 19 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d), Part 37 rules 4 (1) (b) and 7 (7) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 15 days before the date mentioned in note (5) above.
(10) description of documents and things.
(11) signature and description of officer of the Court.
(12) state person at whose request the subpoena was issued.
(13) address for service.
(This form applies only to subpoenas to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth) applies.)
Form 45A: Ins 1.3.1996. Am 31.8.2001.
Form 45B
(Subpoena to a corporation for production and for its proper officer to answer questions concerning possession, etc. of documents.)
P 36A, r 3 (5).
SUBPOENA FOR PRODUCTION AND TO ANSWER QUESTIONS FOR SERVICE IN NEW ZEALAND
To | (1) |
(2) |
THE COURT ORDERS that—
1. (1), “the corporation”, shall produce this subpoena and the documents and things described in the schedule by causing its proper officer to ATTEND AND PRODUCE them—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 am (3) and until the officer is excused by the Court from further attending; BUT—(i) INSTEAD OF causing its proper officer to so ATTEND, THE CORPORATION MAY PRODUCE this subpoena and the documents and things described in the schedule to—(A) a clerk of the Court at the above place by hand or by post, in either case so that the clerk receives them not later than 24 hours BEFORE THE DATE on which the officer is required so to attend; or(B) any registry of the High Court of New Zealand not later than (8) PROVIDED THAT you—(I) tender to the registry such portion of the amount provided to you on account of expenses as is necessary to meet the costs of transportation for the document or thing produced to the Supreme Court of New South Wales;(II) obtain from the New Zealand registry a receipt with a description of the document or thing produced in accordance with the subpoena; and(III) forthwith send a copy of the receipt and the subpoena by fax to the Sydney registry of the Supreme Court of New South Wales;(ii) the corporation need not comply with this subpoena—(A) if—(I) allowances and travelling expenses; orsufficient to meet the corporation’s reasonable expenses are not paid, or tendered to it, at the time of service or at some other reasonable time before it is required to comply with this subpoena;(II) vouchers,(B) if it is served on the corporation after (9);(C) if the party who requested the issue of this subpoena has excused the corporation from compliance; or(D) if it is not accompanied by—(I) a copy of the order giving leave to serve it in New Zealand; and(II) a notice in the prescribed form setting out the corporation’s rights and obligations in relation to the subpoena and information on how to apply to set aside the subpoena;(iii) if the corporation is a bank and is required by this subpoena to produce a banker’s book and the corporation is not a party to these proceedings and Part IV of the Evidence Act 1898 would have applied prior to its repeal, the corporation need not cause its officer to produce it if the corporation causes him to produce proof of the relevant entries in it in accordance with that Part;(iv) the party who requested the issue of this subpoena may, by written or oral notice to the corporation, alter the time for attendance or production to a later time.
2. the officer who is to attend shall make enquiries for the purpose of answering, and, on attending, shall answer, such questions as the Court requires him to answer concerning the possession or custody of those documents and things.
SCHEDULE
(10)
(10)
Dated 19 . | By the Court (11) |
Issued at the request of (12) whose address for service is (13).
Note that—
(1) where the corporation fails to comply with this subpoena, this subpoena may be enforced by sequestration of the property of the corporation or by arrest of an officer of the corporation or by both means;
(2) if, by paragraph (c) (i) (A), the corporation is permitted to produce this subpoena and other documents and things to a clerk of the Court at Queen’s Square, Sydney, it may produce them to the clerk by hand at the Exhibits Office, Level 5 at that place or by posting them to—in accordance with paragraph (c) (i) (A);Exhibits Clerk,
Exhibits Office,
Level 5,
Supreme Court of N.S.W.,
G.P.O. Box 3,
Sydney 2001.
AUSTRALIA
(3) in subparagraph (c) (i) (A) Saturdays, Sundays and other holidays are not counted in calculating time;
(4) documents and things produced by the corporation in accordance with this subpoena may be returned by post to it at its address shown on this subpoena but it may, in writing on or attached to this subpoena, request that they be posted to it at another address given by it;
(5) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(6) being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena;
(7) if there is a dispute over the amount of your reasonable expenses, you may apply to the Court for a decision on what is reasonable.
Directions for completing this form.
(1) name of corporation.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) specify a date, for example 26 April 19 , having regard to Part 2 rule 2, Part 37 rule 4 (1) (b) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 10 days before the date mentioned in note (5) above.
(9) specify a date, for example 19 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d), Part 37 rules 4 (1) (b) and 7 (7) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 15 days before the date mentioned in note (5) above.
(10) description of documents and things.
(11) signature and description of officer of the Court.
(12) state person at whose request the subpoena was issued.
(13) address for service.
If the reverse side of a page is used, add to the foot of the front of the page“See the reverse of this page.”and keep clear a margin of 25 millimetres on the right hand side.
(This form applies only to subpoenas to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth) applies.)
Form 45B: Ins 1.3.1996. Am 24.5.1996; 31.8.2001.
Form 45C
(Subpoena for production of original or photocopies of medical records.)
P 36A, r 3 (5).
SUBPOENA FOR PRODUCTION—FOR SERVICE IN NEW ZEALAND
To | (1) |
(2) |
THE COURT ORDERS that you shall ATTEND AND PRODUCE this subpoena and the medical records, or clear sharp photocopies of them, described in the schedule (in this subpoena called the “scheduled documents”)—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 am (3) and until you are excused by the Court from further attending; BUT—(i) INSTEAD OF so ATTENDING, YOU MAY PRODUCE this subpoena and the scheduled documents to—(A) a clerk of the Court at the above place by hand or by post, in either case so that the clerk receives them not later than 24 hours, BEFORE THE DATE on which you are required so to attend; or(B) any registry of the High Court of New Zealand not later than (8) PROVIDED THAT you—(I) tender to the registry such portion of the amount provided to you on account of expenses as is necessary to meet the costs of transportation for the document or thing produced to the Supreme Court of New South Wales;(II) obtain from the New Zealand registry a receipt with a description of the document or thing produced in accordance with the subpoena; and(III) forthwith send a copy of the receipt and the subpoena by fax to the Sydney registry of the Supreme Court of New South Wales;(ii) you need not comply with this subpoena—(A) if $ (the amount prescribed by Part 37 rule 7A (4)) have not been paid or tendered to you;(B) if, in addition to the amount referred to in the preceding paragraph,—(I) allowances and travelling expenses; orsufficient to meet your reasonable expenses are not paid, or tendered to you, at the time of service or at some other reasonable time before you are required to comply with it;(II) vouchers,(C) if it is served on you after (9);(D) if the party who requested the issue of this subpoena has excused you from compliance; or(E) if it is not accompanied by—(I) a copy of the order giving leave to serve it in New Zealand; and(II) a notice in the prescribed form setting out your rights and obligations in relation to the subpoena and information on how to apply to set aside the subpoena;(iii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance and production to a later time.
SCHEDULE
(10)
(10)
Dated 19 . | By the Court, (11) |
Issued at the request of (12) whose address for service is (13).
See the reverse of this page.
On the reverse of the page, keeping clear a margin of 25 millimetres on the right hand side, add—
Note that—
(1) if you do not comply with this subpoena you may be arrested;
(2) if, by paragraph (c) (i) (A), you are permitted to produce the subpoena and the scheduled documents to a clerk of the Court at Queen’s Square, Sydney, you may produce them to the clerk by hand at the Exhibits Office, Level 5 at that place or by posting them to—in accordance with paragraph (c) (i) (A);Exhibits Clerk,
Exhibits Office, Level 5,
Supreme Court of N.S.W.,
G.P.O. Box 3,
Sydney 2001.
AUSTRALIA
(3) in subparagraph (c) (i) (A) Saturdays, Sundays and other holidays are not counted in calculating time;
(4) documents produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you;
(5) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(6) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
Directions for completing the above form
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) specify a date, for example 26 April 19 , having regard to Part 2 rule 2, Part 37 rule 4 (1) (b) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 10 days before the date mentioned in note (5) above.
(9) specify a date, for example 19 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d), Part 37 rules 4 (1) (b) and 7 (7) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 15 days before the date mentioned in note (5) above.
(10) description of the medical records.
(11) signature and description of officer of the Court.
(12) state person at whose request the subpoena was issued.
(13) address for service.
(This form applies only to subpoenas to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth) applies.)
Form 45C: Ins 1.3.1996. Am 31.8.2001.
Form 45D
P 36A, r 3 (5).
SUBPOENA TO GIVE EVIDENCE—FOR SERVICE IN NEW ZEALAND
To | (1) |
(2) |
THE COURT ORDERS that you shall attend for the purpose of giving evidence—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (3) and until you are excused by the Court from further attending; but—(i) you need not comply with this subpoena—(A) if—(I) allowances and travelling expenses; orsufficient to meet your reasonable expenses are not paid, or tendered to you, at the time of service or at some other reasonable time before you are required to comply with it;(II) vouchers,(B) if it is served on you after (8);(C) if, as a medical expert, you are required by this subpoena to attend at a place in Sydney for the purposes of giving evidence on medical matters and it is served on you after (9);(D) if the party who requested the issue of this subpoena has excused you from compliance; or(E) if it is not accompanied by—(I) a copy of the order giving leave to serve it in New Zealand; and(II) a notice in the prescribed form setting out your rights and obligations in relation to the subpoena and information on how to apply to set aside the subpoena;(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance to a later time.
Dated 19 . | By the Court, (10) |
Issued at the request of (11) whose address for service is (12).
Note that—
(1) if you do not comply with this subpoena you may be arrested;
(2) if, as a medical expert, you are to give evidence of medical matters at a trial at Sydney and you are not called as a witness, you shall, unless the Court otherwise orders, be entitled to be paid $ (13) in addition to any sum paid or tendered to you as reasonable expenses of complying with this subpoena;
(3) being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena;
(4) if there is a dispute over the amount of your reasonable expenses, you may apply to the Court for a decision on what is reasonable.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) specify a date, for example, 29 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d)) and Part 37 rule 7 (7), which is not later than 5 days before the date mentioned in note (5) above.
(9) specify a date, for example, 15 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d) and Part 37 rule 7A (1), which is not later than 21 days before the date mentioned in note (5) above.
(10) signature and description of officer of the Court.
(11) state person at whose request the subpoena was issued.
(12) address for service.
(13) the amount prescribed by Part 37 rule 3A.
(This form applies only to subpoenas to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth) applies.)
Form 45D: Ins 1.3.1996.
Form 45E
P 36A, r 3 (5).
SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE—FOR SERVICE IN NEW ZEALAND
To | (1) |
(2) |
THE COURT ORDERS that you shall attend and produce this subpoena and the documents and things described in the schedule and attend for the purposes of giving evidence—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (3) and until you are excused by the Court from further attending; but—(i) you need not comply with this subpoena—(A) if—(I) allowances and travelling expenses; orsufficient to meet your reasonable expenses are not paid, or tendered to you, at the time of service or at some other reasonable time before you are required to comply with it;(II) vouchers,(B) if it is served on you after (8);(C) if, as a medical expert, you are required by this subpoena to attend at a place in Sydney for the purposes of giving evidence on medical matters and it is served on you after (9);(D) if the party who requested the issue of this subpoena has excused you from compliance; or(E) if it is not accompanied by—(I) a copy of the order giving leave to serve it in New Zealand; and(II) a notice in the prescribed form setting out your rights and obligations in relation to the subpoena and information on how to apply to set aside the subpoena;(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance or production to a later time;(iii) you may produce this subpoena and the documents and things described in the schedule to—(A) a clerk of the Court at the above place by hand or by post, in either case so that the clerk receives them not later than 24 hours BEFORE THE DATE on which you are required so to attend; or(B) any registry of the High Court of New Zealand not later than (10) PROVIDED THAT you—(I) tender to the registry such portion of the amount provided to you on account of expenses as is necessary to meet the costs of transportation for the document or thing produced to the Supreme Court of New South Wales;(II) obtain from the New Zealand registry a receipt with a description of the document or thing produced in accordance with the subpoena; and(III) forthwith send a copy of the receipt and the subpoena by fax to the Sydney registry of the Supreme Court of New South Wales;
SCHEDULE
(11)
(11)
Dated 19 . | By the Court (12) |
Issued at the request of (13) whose address for service is (14)
See the notes on the reverse of this page.
On the reverse of the page, keeping clear a margin of 25 millimetres on the right hand side, add—
Note that—
(1) if you do not comply with this subpoena you may be arrested;
(2) if, as a medical expert, you are to give evidence of medical matters at a trial at Sydney and you are not called as a witness, you shall, unless the Court otherwise orders, be entitled to be paid $ (15) in addition to any sum paid or tendered to you as reasonable expenses of complying with this subpoena;
(3) if, by paragraph (c) (iii) (A), you are permitted to produce this subpoena and other documents and things to a clerk of the Court at Queen’s Square, Sydney, you may produce them to him by hand at the Exhibits Office, Level 5 at that place or by posting them to—in accordance with paragraph (c) (iii) (A);Exhibits Clerk,
Exhibits Office, Level 5,
Supreme Court of N.S.W.
G.P.O. Box 3,
Sydney 2001.
AUSTRALIA
(4) in subparagraph (c) (iii) (A) Saturdays, Sundays and other holidays are not counted in calculating time;
(5) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you;
(6) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(7) being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena;
(8) if there is a dispute over the amount of your reasonable expenses, you may apply to the Court for a decision on what is reasonable.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) specify a date, for example 19 April 19 , having regard to Part 2 rule 2, Part 36A rule 3 (2) (d), Part 37 rules 4 (1) (b) and 7 (7) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 15 days before the date mentioned in note (5) above.
(9) specify a date, for example, 15 April 19 , having regard to Part 2 rule 2 and Part 36A rule 3 (2) (d) and Part 37 rule 7A (1), which is not later than 21 days before the date mentioned in note (5) above.
(10) specify a date, for example 26 April 19 , having regard to Part 2 rule 2, Part 37 rule 4 (1) (b) and section 12 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth), which is not later than 10 days before the date mentioned in note (5) above.
(11) description of documents and things.
(12) signature and description of officer of the Court.
(12) state person at whose request the subpoena was issued.
(14) address for service.
(15) the amount prescribed by Part 37 rule 3A.
(This form applies only to subpoenas to which Part 2 of the Evidence and Procedure (New Zealand) Act 1994 (Commonwealth) applies.)
Form 45E: Ins 1.3.1996. Am 31.8.2001.
Form 45F
P 36A, r 5 (1).
CERTIFICATE OF NON-COMPLIANCE WITH SUBPOENA
I certify that:—
(a) On (date) leave under section 9 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth was given to serve in New Zealand a subpoena issued by this Court;
(b) A copy of the subpoena and a copy of the order giving leave are annexed to this certificate;
(c) (name of person named), the person named in the subpoena, failed to comply with it; and
(d) {No application to set aside the subpoena either wholly or in part has been made.
OR
An application to set aside the subpoena was dismissed by order made on (date). A copy of this order is annexed to this certificate.}
Date: | |
By the Court | |
Registrar | |
(Seal of Court to be affixed) |
Forms 45F–45H: Ins 1.3.1996.
Form 45G
P 36A, r 6 (7).
OBJECTION TO DETERMINATION WITHOUT HEARING
The (identify objector) objects to the application to set aside the subpoena (identify subpoena) being determined without a hearing.
Forms 45F–45H: Ins 1.3.1996.
Form 45H
P 36A, r 6 (8).
REQUEST FOR HEARING BY VIDEO LINK OR TELEPHONE
The (applicant) requests that the hearing of the application to set aside the subpoena (identify subpoena) be heard by video link or telephone.
Forms 45F–45H: Ins 1.3.1996.
Form 46 Subpoena
(Part 37, rule 3 (1))
IN THE [name of court] | File number: |
APPLICANT/PLAINTIFF:
RESPONDENT/DEFENDANT:
SUBPOENA
To: | [name] |
[address] |
YOU ARE ORDERED:*Select one only of these three options
□ *to attend to give evidence—see section A of this form, or
□ *to produce this subpoena or a copy of it and the documents or things specified in the Schedule—see section B of this form, or
□ *to attend to give evidence and to produce this subpoena or a copy of it and the documents or things specified in the Schedule—see section C of this form
Failure to comply with this subpoena without lawful excuse is a contempt of court and may result in your arrest.
The last date for service of this subpoena is: ...............
(See Note 1)
(See Note 1)
Please read Notes 1 to 15 at the end of this subpoena.
[Seal or Stamp of the Court]
Date:
Issued at the request of [name of party], whose address for service is:
A Details of subpoena to attend to give evidence only
Date, time and place at which you must attend to give evidence:
Date:
Time:
Place:
You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed.
B Details of subpoena to produce only
You must comply with this subpoena:
(a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production, or
(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to the address below so that they are received not less than 2 clear days before the date specified for attendance and production. (See Notes 5–11)
Date, time and place at which you must attend to produce the subpoena or a copy of it and documents or things:
Date:
Time:
Place:
Address to which the subpoena (or copy) and documents or things may be delivered or posted:
The Exhibits Office
Level 5, Supreme Court of NSW
GPO Box 3, Sydney 2001
Schedule
The documents and things you must produce are as follows:
[If insufficient space attach list]
[If insufficient space attach list]
C Details of subpoena both to attend to give evidence and to produce
In so far as you are required by this subpoena to attend to give evidence, you must attend as follows:
Date:
Time:
Place:
You must continue to attend from day to day unless excused by the Court or the person authorised to take evidence in this proceeding or until the hearing of the matter is completed.
In so far as you are required by this subpoena to produce the subpoena or a copy of it and documents or things, you must comply with this subpoena:
(a) by attending to produce this subpoena or a copy of it and the documents or things specified in the Schedule below at the date, time and place specified for attendance and production, or
(b) by delivering or sending this subpoena or a copy of it and the documents or things specified in the Schedule below to the address below so that they are received not less than 2 clear days before the date specified for attendance and production. (See Notes 5–11)
Date, time and place at which you must attend to produce the subpoena or a copy of it and the documents or things:
Date:
Time:
Place:
Address to which the subpoena or a copy of it and documents or things may be delivered or posted:
The Exhibits Office
Level 5, Supreme Court of NSW
GPO Box 3, Sydney 2001
Schedule
The documents and things you must produce are as follows:
[If insufficient space attach list]
[If insufficient space attach list]
Notes
Last day for service | |
1 | You need not comply with the subpoena unless it is served on you on or before the date specified in the subpoena as the last date for service of the subpoena. |
Informal service | |
2 | Even if this subpoena has not been served personally on you, you must, nevertheless, comply with its requirements, if you have, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements. |
Addressee a corporation | |
3 | If the subpoena is addressed to a corporation, the corporation must comply with the subpoena by its appropriate or proper officer. |
Conduct money | |
4 | You need not comply with the subpoena in so far as it requires you to attend to give evidence unless conduct money sufficient to meet your reasonable expenses of attending as required by the subpoena is handed or tendered to you a reasonable time before the date on which your attendance is required. |
Production of subpoena or copy of it and documents or things by delivery or post | |
5 | In so far as this subpoena requires production of the subpoena or a copy of it and a document or thing, instead of attending to produce the subpoena or a copy of it and the document or thing, you may comply with the subpoena by delivering or sending the subpoena or a copy of it and the document or thing to the address specified in the subpoena for the purpose so that they are received not less than 2 clear days before the date specified in the subpoena for attendance and production. |
6 | If you object to a document or thing produced in response to this subpoena being inspected by a party to the proceeding or any other person, you must, at the time of production, notify the Registrar in writing of your objection and of the grounds of your objection. |
7 | Unless the Court otherwise orders, if you do not object to a document or thing produced by you in response to the subpoena being inspected by any party to the proceeding, the Registrar may permit the parties to the proceeding to inspect the document or thing. |
Production of a number of documents or things | |
8 | If you produce more than one document or thing, you must, if requested by the Registrar, produce a list of the documents or things produced. |
Production of copy instead of original | |
9 | You may, with the consent of the issuing party, produce a copy, instead of the original, of any document that the subpoena requires you to produce. |
Return or destruction of documents or copies | |
10 | You may, at the time of production, inform the Court that any document or copy of a document produced need not be returned and may be destroyed. |
11 | If you have so informed the Court, the Registrar may destroy the document or copy instead of returning it to you. |
Applications in relation to subpoena | |
12 | You have the right to apply to the Court: (a) for an order setting aside the subpoena (or a part of it) or for relief in respect of the subpoena, and (b) for an order with respect to your claim for privilege, public interest immunity or confidentiality in relation to any document or thing the subject of the subpoena. |
Loss or expense of compliance | |
13 | If you are not a party to the proceeding, you may apply to the Court for an order that the issuing party pay an amount (in addition to conduct money and any witness’s expenses) in respect of the loss or expense, including legal costs, reasonably incurred in complying with the subpoena. |
Contempt of court—arrest | |
14 | Failure to comply with a subpoena without lawful excuse is a contempt of court and may be dealt with accordingly. |
15 | Instruction 14 is without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. |
Form 46: Ins 2.6.1972. Subst 2.4.1982. Am 29.6.1984; 20.10.1989; 22.6.1990; 2.10.1992; 26.2.1993; 2.4.1993; 20.8.1993; 21.10.1994; 31.8.2001. Subst 26.3.2004.
Form 46A: Ins 2.4.1982. Am 29.6.1984; 20.10.1989; 22.6.1990; 2.10.1992; 26.2.1993; 2.4.1993; 20.8.1993; 21.10.1994; 25.8.1995; 31.8.2001. Rep 26.3.2004.
Form 46B: Ins 20.10.1989. Am 22.6.1990; 2.10.1992; 26.2.1993; 2.4.1993; 20.8.1993; 31.8.2001. Rep 26.3.2004.
Form 47: Ins 2.6.1972. Subst 17.8.1979; 2.4.1982. Am 29.6.1984; 20.9.1985; 20.10.1989; 22.6.1990; 2.10.1992; 30.10.1992; 2.4.1993; 21.10.1994. Rep 26.3.2004.
Form 48: Ins 2.6.1972. Subst 17.8.1979; 2.4.1982. Am 29.6.1984; 20.9.1985; 20.10.1989; 22.6.1990; 2.10.1992; 30.10.1992; 26.2.1993; 2.4.1993; 21.10.1994; 31.8.2001. Rep 26.3.2004.
Forms 46A–48
Form 49
P 38, r 2.
AFFIDAVIT
On 7 May 19 I (name, address and occupation) say on oath—
1.
2.
Sworn at Sydney before me: (or) | } |
AFFIDAVIT
On 7 May 19 I (name, address and occupation) and on 11 May 19 I (name, address and occupation) say on oath—
1. We are the directors of etc.
2. I the said (name) am a director of etc.
Sworn by (name) at Bathurst before me: | } |
Sworn by (name) at Sydney before me: | } |
(where Part 38 rule 2 (3) (a) applies,
It appearing to me that the deponent is blind, I certify that this affidavit was read to him in my presence and that he seemed to understand it.
(signature))
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 49: Ins 2.6.1972. Am 21.10.1994.
Form 50
P 41, r 10.
1. General form of judgment:
JUDGMENT—
that—(terms of the judgment, in numbered paragraphs, if necessary).
This judgment takes effect on (insert the date fixed by reference to Part 40 rule 3).
By the Court Registrar (or Chief Clerk) |
2. Terms of particular judgments:
(a) Damages to be assessedJUDGMENT—that the defendant is liable to the plaintiff for damages and for costs.THE COURT ORDERS that the damages be assessed.
(b) Debt or damagesJUDGMENT—that the defendant pay to the plaintiff $ (amount of debt or damages) and $ costs (or as the case may be).
(c) Possession of landJUDGMENT—1. that the defendant give the plaintiff possession of the land described in the schedule (but so as not to disturb the occupation of (name of occupier));2. that the defendant pay to the plaintiff $ costs (or as the case may be).SCHEDULE(describe land)
(d) Detention of goods.JUDGMENT—that the defendant is liable to the plaintiff—1. for the value of (or delivery to the plaintiff of) the goods described in the schedule;2. (for damages; and3. ) for costs.THE COURT ORDERS that the value of the goods (and the damages) be assessed.SCHEDULE(describe goods)(In the above form, where judgment is entered by default under Part 17 rule 6, omit the appropriate words in brackets according to whether rule 6 (a) or (b) applies.)
(e) Detention of goods.JUDGMENT—1. that the defendant deliver to the plaintiff the goods described in the schedule (or pay to the plaintiff $ , the value of the goods described in the schedule);2. that the defendant pay to the plaintiff $ damages; and3. that the defendant pay to the plaintiff $ costs (or as the case may be).
SCHEDULE
(described goods)
(Where judgment is obtained under section 93 omit the words in brackets.)
Form 50: Ins 2.6.1972. Am 30.3.1979.
Form 51
(General form of minute of order.)
P 41, r 11.
ORDER
THE COURT ORDERS that—
1.
2.
3.
Ordered 7 May 19 and entered 11 May 19 .
(Judge) (or associate Judge) (or by the Court Registrar (or Chief Clerk) (Prothonotary)) |
Form 51: Ins 2.6.1972. Am 30.3.1979.
Form 51A: Ins 5.10.1973. Am 22.5.1992. Subst 2.10.1992. Am 24.6.1994.
FORM 51A
(Certificate under section 13 of the Foreign Judgments Act 1973 or section 15 of the Foreign Judgments Act 1991 of the Commonwealth)
P 41, r 15B (2).
CERTIFICATE
I certify that—
(a) a statement of claim (or summons), a copy of which is annexed hereto marked “A”, was filed in the registry of the Division of this Court on (date) by (name), the abovenamed plaintiff, claiming against (name), the abovenamed defendant, payment of the sum of (amount) (or state shortly the nature of the relief claimed) in respect of (state shortly the causes of action);
(b) the said statement of claim (or summons) was on (date) served on the said defendant (state the mode of service) (or the said defendant entered an appearance on (date) );
(c) the said plaintiff obtained judgment against the said defendant in this Court for payment of the sum of (amount) (or state shortly the terms of the judgment) in respect of (state shortly the causes of action) together with $ for costs;
(d) the said judgment was obtained (state the grounds on which the judgment was based);
(e) the following (or no) objections have been made to the jurisdiction of this Court (state the objections, if any);
(f) (state the position relating to the time for appealing or discharging or setting aside the judgment or for apply for a new trial or for a stay of execution);
(g) (where the judgment was entered by default), the defendant may apply, but has not applied, to set aside the judgment;
(h) notice of appeal has (or has not) been filed;
(If interest is payable on the judgment
(i) (where the rate of interest is specified in the judgment interest is payable from (date of judgment) at the rate of (rate) % yearly on so much of the sum of (amount) as is from time to time unpaid;)
(otherwise
interest is payable—(i) from (date of judgment) up to and including the date hereof at the following rate (or rates)—(rate prescribed by Part 40 rule 7 (2) or, where more than one rate applies, the prescribed rates and the period during which each rate applies); andon so much of the sum of (amount) as is from time to time unpaid;))(ii) from the date hereof at the rate of (prescribed rate applicable at the date of the certificate), or at such other rate or rates as may be prescribed from time to time,
(j) (give information, similar to that contained in (j), in respect of costs of the proceedings.)
(k) (any other necessary particulars);
(l) the costs of obtaining this certificate and copy of a minute of the judgment are $ (see Part 52A rule 47).
Dated
(signature) (title of person certifying) |
Form 52
P 42, r 4.
WRIT OF POSSESSION
TO THE SHERIFF:
In respect of the judgment entered on 7 May 19 , enter the land described in the schedule and cause the plaintiff (name) to have possession of it (but, so as not to disturb the occupation of (name, description and extent of restriction as directed in the judgment)) , (and levy on the property of (name) , which is authorised to be taken in execution for—
continue as in Writ for Levy of Property, Form 57)
SCHEDULE
(Describe the land as in the judgment.)
Issued 19 .
By the Court Registrar (or Chief Clerk) |
Issued at the request of (the plaintiff (name and address) or (name) of (address and telephone number) solicitor for the plaintiff (name and address) ),
(The defendant resides at (address) ).
Form 52: Ins 2.6.1972. Am 30.3.1979; 30.9.1988.
Form 53
P 42, r 5.
WRIT OF SPECIFIC DELIVERY
TO THE SHERIFF:
In respect of the judgment entered on 7 May 19 , cause the goods described in the schedule to be delivered to (name) (and levy on the property of (name) which is authorised by law to be taken in execution for—
continue as in Writ for Levy of Property, Form 57)
SCHEDULE
(Describe the goods as in the judgment.)
Issued 19 .
By the Court Registrar (or Chief Clerk) |
Issued at the request of (the plaintiff (name and address) or (name) of (address and telephone number) solicitor for the plaintiff (name and address) ),
(The defendant resides at (address) .)
Form 53: Ins 2.6.1972. Am 30.3.1979.
Form 54
P 42, r 5.
WRIT OF DELIVERY
TO THE SHERIFF:
In respect of the judgment entered on 7 May 19 , cause the goods described in the schedule to be delivered to (name) (and levy on the property of (name) , which is authorised by law to be taken in execution—continue as in Writ for Levy of Property, Form 57)(where applicable)and pay the amount so levied other than your fees, to (name) or otherwise as the law may require.
(a) if you cannot cause the goods to be so delivered, for $ (amount of value of goods assessed under the judgment);
(b) for the amount payable under the judgment, being $ (amount of damages) on 1 June 19
(c) for $ , being costs of this writ;
(d) for your fees; and
(e) for $ , being amount recoverable under section 107 (1) of the Service and Execution of Process Act 1992,
SCHEDULE
(Describe the goods as in the judgment.)
Issued 19 .
By the Court Registrar (or Chief Clerk) |
Issued at the request of (the plaintiff (name and address) or (name) of (address and telephone number) solicitor for the plaintiff (name and address) ),
(The defendant resides at (address) ).
Form 54: Ins 2.6.1972. Am 30.3.1979; 2.4.1993.
Form 55
P 42, r 8 (3).
(No heading or title: for subscribing to the minute of order.)
To (name of corporation) and (name of officer):
If (name of corporation) neglects to obey this order within the time specified in the order (disobeys this order, as the case may be) (name of officer) and (name of corporation) will be liable to sequestration of property and (name of officer) to imprisonment.
Form 55: Ins 2.6.1972.
Form 56
P 43, r 1.
ORDER
THE COURT ORDERS that—
1. JAMES STYLES of (address) shall attend—
(a) before (the Prothonotary or as the case may be);
(b) at (address of Court or place);
(c) on 7 May 19 at 10 a.m. and until he is excused from further attending;
(d) for the purpose of being examined as to the questions—(i) whether any and, if so, what debts are owing to him; and(ii) whether he has any and, if so, what other property or means of satisfying the judgment or order by which he is bound;(iii) as to the whereabouts of the goods which he is bound, pursuant to the judgment which has been entered against him, to deliver to the plaintiff, or as the case may be.
2. JAMES STYLES shall attend and produce all documents or things in his possession, power or custody relating to those questions (and—here specify particular documents or things, if any).
(Complete as in general form of minute or order under Part 41 rule 11.)
Form 56: Ins 2.6.1972. Am 19.2.1988.
Form 57
P 45, r 2.
WRIT FOR LEVY OF PROPERTY
TO THE SHERIFF:
In respect of the judgment (order) entered on 1 March 19 , levy on the property of (name) , which is authorised by law to be taken in execution, for—(where applicable)any pay the amount so levied, less your fees, to (name) or otherwise as the law may require.
(a) the amount payable under the judgment (order) being $ on 7 May 19 (plus interest from the date at (if ordered, the rate ordered for example, the yearly rate of ..........% or, if the judgment (order) is registered in the Court under the Service and Execution of Process Act 1992 (Commonwealth), the yearly rate of .....% or such rates as may be notified to you by the Court otherwise such rates as are prescribed) on so much of the sum of $............... as is from time to time unpaid), subject to any payment in reduction thereof;
(b) $ being costs of this writ*;
(c) for your fees*; and
(d) $ , being the amount recoverable under section 107 (1) of the Service and Execution of Process Act 1992,
Issued 19 .
By the Court Registrar (or Chief Clerk) |
Issued at the request of the plaintiff (name and address) (or (name) of (address and telephone number) solicitor for the plaintiff (name and address) ).
(The defendant resides at (address) .)
*omit if irrecoverable by reason of Part 52A rule 46
Form 57: Ins 2.6.1972. Am 30.3.1979; 23.10.1987; 2.4.1993; 24.6.1994.
Form 57A
P 45, r 15 (2).
NOTICE TO JUDGMENT DEBTOR OF INTENTION TO SELL LAND
To the judgment debtor:
1. A writ of execution has been registered against the title to your land described in the Schedule below and the land is bound by the writ.
2. Unless the writ is satisfied or you make arrangements as mentioned in paragraph 3 or obtain an order mentioned in paragraph 4, your land, described in the Schedule below, may be sold by the Sheriff under the authority of the writ.
3. You may make arrangements for the sale or mortgage of the land by you subject to the judgment creditor’s consent. That consent will only be given on condition that an amount for the proceeds of the sale or mortgage, stipulated by the judgment creditor, is paid to the Sheriff towards satisfaction of the writ of execution. If you wish to make any such arrangements you should contact the judgment creditor’s solicitor immediately.
4. You may apply to the Court for an order staying proceedings on terms, which may include terms as to payment by instalments of the money to be levied under the writ.
SCHEDULE
(description of land by street number, etc.)
By the Court, Registrar. |
Form 57A: Ins 28.5.1982. Am 23.2.1990.
Form 57B
(Memorandum to be endorsed on notice of sale for service on judgment debtor.)
P 45, r 18.
To the judgment debtor:
You may apply to the Court for an order staying proceedings on terms, which may include terms as to payment by instalments of the money to be levied under the writ.
Form 57B: Ins 28.5.1982. Am 23.2.1990.
Form 58
P 46, r 3.
GARNISHMENT NOTICE
1. Particulars—
(a) | Judgment creditor: | (name) |
(b) | Judgment debtor: | (name, address and occupation). |
(c) | Garnishee: | (name, address and occupation). |
(d) | Debt: (Give the particulars required under Part 46 rule 3 (6), including also, if the debt is a wage or salary, the provisions of section 99 of the Act.) | |
(e) | leave granted on 10 April 19 . | |
(f) | amount due to judgment creditor at the date leave granted | $ |
provision for subsequent interest and for costs | $ | |
(where applicable amount recoverable under s. 107 (1) of the Service and Execution of Process Act 1992 (Commonwealth) | $ ) | |
sum required | $ | |
2. All debts which are due or accruing from the garnishee to the judgment debtor at the time of service of this notice are attached and bound in the hands of the garnishee to the extent of the sum required.
3. The judgment creditor will at 10 a.m. on 7 May 19 , at (address of Court) move the Court for an order for payment under Part 46 of the rules of Court.
4. The garnishee may pay the debts attached into Court to the extent of the sum required, retaining, if he pays into Court before 7 May 19 , $ for his costs. Otherwise the Court may order him to pay the debts attached to the judgment creditor to the extent of the sum required and interest thereon and costs.
5. Provision exists for the determination, at the hearing, of any dispute concerning the liability of the garnishee to pay the debts attached.
(Follow the prescribed form of conclusion of documents for use by a party, Form 4, and add—
The address for service of the judgment creditor is (address)
Form 58: Ins 2.6.1972. Am 24.8.1973. Subst 1.5.1987. Am 2.4.1993.
Form 59
(To be set out in accordance with Form 1.)
[Where Part 51, rule 57 (a) applies, add, above the name of the claimant in the title—
In the matter of section of the (name) Act 19 .]
P 51, rr 4 (1) (a), (2) (a).
ORDINARY SUMMONS FOR LEAVE TO {APPEAL or CROSS-APPEAL}
The proceedings in respect of which leave to { appeal or cross-appeal}is sought were heard on 7 and 8 May 19 and decided on May 19 .
The claimant claims an order granting leave to { appeal or cross-appeal} from the decision of (or as the case may be)
(or the following part of the decision of (or as the case may be)—
(state the part)).
The summons is returnable before the Court of Appeal on: Time: (date) at 9.45 am.
Place: (address of Court)
[Where there is an opponent, add—
To the opponent (address):
The rules require you to file and serve a response (as to which see Part 51 rule 4C) within 28 days of service of this summons and the documents referred to in Part 51 rule { 4B (1) or 4C (3)} upon you, in default of which the summons may be disposed of:
(a) in your absence; and
(b) solely on the basis of the claimant’s argument.
[If opponent has not filed a summons in the proceedings add—
Before you file the notice or take any other step in the proceedings, you must enter an appearance in the Registry unless you have by then filed a summons in the proceedings.]]
Place: (address of Court).
[Where the time for service under Part 51 rule 4 (3) (b) or (4) (b) has been abridged, add—
The time before which this summons is to be served has been abridged by the Court to 5 p.m. on 5 May 19 or as the case may require.]
The time before which this summons is to be served has been abridged by the Court to 5 p.m. on 5 May 19 or as the case may require.]
[Where proceedings have been stayed, add—
By order made on (date) by {Justice or as the case may be} all proceedings under (describe judgment or order) were stayed until {the above date or after the hearing of these proceedings or as the case may be}.]
Claimant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
[Tutor: (name, address)]
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
By order made on (date) by {Justice or as the case may be} all proceedings under (describe judgment or order) were stayed until {the above date or after the hearing of these proceedings or as the case may be}.]
Claimant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
[Tutor: (name, address)]
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 59: Ins 2.6.1972. Am 23.5.1997. Subst 5.12.1997. Am 23.5.2003; 13.6.2003.
Form 59A
(To be set out in accordance with Form 1.)
[Where Part 51, rule 57 (a) applies, add, above the name of the claimant in the title—
In the matter of section of the (name) Act 19 .]
In the matter of section of the (name) Act 19 .]
P 51, rr 4 (1) (b), (2) (b).
HOLDING SUMMONS FOR LEAVE TO {APPEAL or CROSS-APPEAL}
The proceedings in respect of which leave to { appeal or cross-appeal} is sought were heard on 7 and 8 May 19 and decided on May 19 .
The claimant claims an order granting leave to { appeal or cross-appeal} from the decision of (or as the case may be) (or the following part of the decision of (or as the case may be)—
(state the part)).
[Where there is an opponent, add—
To the opponent (address):
This summons is filed under Part 51 rule 4 and allows the claimant to proceed with its application for leave, at any time up to 3 months after the date of service of the summons, by filing and serving an ordinary summons.
[If opponent has not filed a summons in the proceedings add—
Before you file the notice or take any other step in the proceedings, you must enter an appearance in the Registry unless you have by then filed a summons in the proceedings.]
Before you file the notice or take any other step in the proceedings, you must enter an appearance in the Registry unless you have by then filed a summons in the proceedings.]
[Where proceedings have been stayed, add—
By order made on (date) by {Justice or as the case may be} all proceedings under (describe judgment or order) were stayed until {the above date or after the hearing of these proceedings or as the case may be}.]
By order made on (date) by {Justice or as the case may be} all proceedings under (describe judgment or order) were stayed until {the above date or after the hearing of these proceedings or as the case may be}.]
Claimant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
[Tutor: (name, address)]
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
[Tutor: (name, address)]
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 59A: Ins 5.12.1997.
Form 60
(Notice of appeal with appointment)
P 51, r 6 (1) (a), (1) (b) (ii), (2) (b).
(To be set out in accordance with Form 1.)
JAMES STYLES
appellant
JOHN LEEin the Court below—
respondent
JOHN LEE
plaintiff
JAMES STYLES
defendant
NOTICE OF APPEAL
The proceedings appealed from were heard on 7 and 8 May 19 and decided on May 19 .
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(or as the case may be)
(or the following part of the decision of
(or as the case may be)—
(or as the case may be)—
(state the part)).
GROUNDS: (state briefly but specifically the grounds relied upon in support of the appeal).
ORDER SOUGHT: (state what judgment, order, verdict or determination the appellant seeks in place of the decision in the court below).
The appeal will be called over at (address) on (date) (time).
The appeal will be called over at (address) on (date) (time).
To the respondent, (address)—
Before you take any step in these proceedings you must enter an appearance in the Registry.
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
Solicitor’s agent: (name, address and telephone number)
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
Solicitor’s agent: (name, address and telephone number)
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 60: Ins 23.5.1997.
Form 60AA
(Notice of appeal with appointment)
P 51, r 5 (1) (a), (b) (ii).
(To be set out in accordance with Form 1.)
JAMES STYLES
appellant
JOHN LEEin the Court below—
respondent
JOHN LEE
plaintiff
JAMES STYLES
defendant
NOTICE OF APPEAL
The proceedings appealed from were heard on 7 and 8 May 19 and decided on May 19 .
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(or as the case may be)
(or the following part of the decision of
(or as the case may be)—
(or as the case may be)—
(state the part)).
GROUNDS: (state briefly but specifically the grounds relied upon in support of the appeal).
ORDER SOUGHT: (state what judgment, order, verdict or determination the appellant seeks in place of the decision in the court below).
Appeal papers will be settled on 7 May 1972, at 11 a.m. in the Registry of the Court of Appeal.
Appeal papers will be settled on 7 May 1972, at 11 a.m. in the Registry of the Court of Appeal.
To the respondent, (address)—
Before you take any step in these proceedings you must enter an appearance in the Registry.
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
Solicitor’s agent: (name, address and telephone number)
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter)
Solicitor’s agent: (name, address and telephone number)
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
(This Form must not be used in respect of an Appeal which is subject to Division 3A)
Form 60AA (previously Form 60): Ins 2.6.1972. Am 20.12.1974; 4.4.1975; 23.12.1977; 23.5.1980; 8.7.1983; 20.2.1987; 3.9.1993; 23.12.1994; 22.9.1995. Renumbered 23.5.1997.
Form 60A
(Notice of appeal without appointment)
P 51, r 5 (1).
(To be set out in accordance with Form 1.)
JAMES STYLES
appellant
JOHN LEEin the Court below—
respondent
JOHN LEE
plaintiff
JAMES STYLES
defendant
NOTICE OF APPEAL
The proceedings appealed from were heard on 7 and 8 May 19 and decided on May 19 .
The appellant appeals from the decision of
(or as the case may be)
(or the following part of the decision of
(or as the case may be)—
The appellant appeals from the decision of
(or as the case may be)
(or the following part of the decision of
(or as the case may be)—
(state the part)).
To the respondent, (address)—Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Before you take any step in these proceedings you must enter an appearance in the Registry.
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 60A: Ins 3.9.1993. Am 22.9.1995.
Form 60B
(Notice of appeal with hearing date)
P 51AA, r 5 (1) (b) (iii).
(To be set out in accordance with Form 1.)
JAMES STYLES
appellant
JOHN LEEin the Court below—
respondent
JOHN LEE
plaintiff
JAMES STYLES
defendant
NOTICE OF APPEAL
The proceedings appealed from were heard on 7 and 8 May 19 and decided on May 19 .
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(or as the case may be) (or the following part of the decision of (or as the case may be)—
(state the part)).
(Where leave to appeal has been granted, add—
Leave to appeal was granted on 12 May 19 .)
The appellant appeals from the decision of
(or as the case may be) (or the following part of the decision of (or as the case may be)—
(state the part)).
GROUNDS: (state briefly but specifically the grounds relied upon in support of the appeal).
ORDER SOUGHT: (state what judgment, order, verdict or determination the appellant seeks in place of the decision in the court below).
The appeal will be heard by the Court at (address) on Monday the day of 19 or on a later day during that week to be fixed.
The appeal will be heard by the Court at (address) on Monday the day of 19 or on a later day during that week to be fixed.
To the respondent, (address)—
Before you take any step in these proceedings you must enter an appearance in the Registry.
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Appellant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
Appellant’s Address for Service: (Part 9 rule 6)
Address of Registry:
(This form must be used only in respect of an appeal which is subject to Division 3A.)
Form 60B: Ins 23.12.1994. Am 22.9.1995; 23.5.1997.
Form 60C
P 51, rr 4A (1), 6 (5), P 51AA, r 5 (5).
NOTICE OF DISCONTINUANCE OF {APPEAL or APPLICATION FOR LEAVE}
The appellant hereby discontinues the { appeal or application for leave} the subject of these proceedings.
Form 60C: Ins 23.12.1994. Am 24.2.1995; 23.5.1997. Subst 5.12.1997.
Form 61
P 51, r 17 (1), P 51AA, r 12 (1).
SUPPLEMENTARY NOTICE OF APPEAL
1.
GROUNDS in place of (or in addition to) the grounds specified in the Notice of Appeal: (state amendments and see Part 20).
2.
ORDERS SOUGHT in place of (or in addition to) orders specified in the Notice of Appeal: (state amendments and see Part 20 and continue as in Notice of Appeal, Form 60).
Form 61: Ins 2.6.1972. Am 23.5.1997.
Form 61AA
P 51, r 27 (1) (b) (ii), P 51AA, r 18A (1) (b).
NOTICE OF NON-OBJECTION
The respondent (or as the case may be) does not object to the hearing of the appeal being expedited.
Form 61AA: Ins 3.9.1993. Am 23.5.1997.
Form 61A
P 51AA, r 21.
INDEX
(Follow the order of arrangement prescribed by Part 51AA rule 24 (8), for example)
No. | Document | Text Included | Date | Page | |
1 | Statement of Claim (if relevant to the appeal) | Y | 17-2-77 | (Leave this column blank in the draft index) | |
2 | Defence | Y | |||
3 | Amended Statement of Claim | Y | 10-6-77 | ||
4 | Affidavit of (name) except paragraph 3 | Y | 27-7-77 | ||
5 | Annexure “A” | Y | 27-7-77 | ||
6 | Statement under Part 33 r 8A | Y | 27-7-77 | ||
7 | Transcript of evidence taken before Mr. Justice (name) | Y | 1-3-78 | ||
Y | 2-3-78 | ||||
Y | 6-3-78 | ||||
LEE, John Examined Cross-Examined JONES, Dr. Henry Examined Cross-Examined Re-Examined | |||||
8 | Further cross-examined Exhibits-mark, description and page of appeal book where tender recorded (In the draft index, list all exhibits, whether relevant to the appeal or not) | ||||
Page | |||||
“A” Reports Dr. H. Jones | Y | 28-1-75 | |||
Y | 16-4-75 | ||||
“B” Discharge summary from Royal North Short Hospital (inclusion objected to by respondent as irrelevant and insisted upon by appellant | Y | 27-7-73 | |||
“C” Copies of wage records | Y | ||||
“1” Reports of Dr. J. Smith | Y | 21-9-76 | |||
“2” Reports of Dr. J. Styles | N | 29-10-75 | |||
9 | “MFI 1” Plan by A. Brown | Y | 1-3-78 | ||
10 | Reasons for judgment of Mr. Justice (name) | Y | 10-3-78 | ||
11 | Minute of Judgment | Y | 31-3-78 | ||
12 | Notice of Appeal | Y | 31-3-78 | ||
13 | Notice of Cross-Appeal | Y | 4-4-78 | ||
Solicitor for the respondent
| Solicitor for the appellant
|
To the Registrar of the Court of Appeal:
[Where the appeal books are to be prepared by the Registry, add—
I, (name of solicitor) request you to prepare (number, to be left blank in the index) copies of the appeal papers and acknowledge my liability to pay the Court fees payable in respect of their preparation.]
No part of any affidavit listed above was struck out or rejected or not read or expressly admitted for a limited purpose only, except as shown above.
Filed (date)
Appellant’s solicitor
Form 61A: Ins 21.12.1979. Am 24.8.1990. Subst 14.12.1990; 23.12.1994. Am 22.9.1995; 23.5.1997.
Form 61B
P 51, r 40, P 51AA, r 25B.
SCHEDULE OF DAMAGES
JUDGMENT QUANTUM $ | APPELLANT’S QUANTUM $ | |
1. PAST ECONOMIC LOSS | ||
2. INTEREST ON PAST ECONOMIC LOSS
| ||
3. GENERAL DAMAGES 3.1 Past 3.2 Future | ||
4. INTEREST ON PAST GENERAL DAMAGES
| ||
5. GRIFFITHS v KERKEMEYER | ||
6. FOX v WOOD | ||
7. OUT OF POCKET EXPENSES 7.1 Past 7.2 Future | ||
8. FUTURE ECONOMIC LOSS | ||
9. CONTRIBUTORY NEGLIGENCE | ||
GROSS TOTAL | ||
LESS | ||
NET TOTAL |
BASIS OF THE CHALLENGE TO THE JUDGMENT
(Set out brief but specific statement of the basis of the challenge)
LIKELY LENGTH OF HEARING
......................... Counsel for appellant (if any) | |
or | |
Solicitor for appellant (if any) | |
or Appellant |
Filed: (date)
(adapt as necessary)
(attach calculation sheets as necessary)
(attach calculation sheets as necessary)
Form 61B: Ins 23.12.1994. Am 23.5.1997.
Form 62
(To be set out in accordance with Form 1.)
(Where Part 51, rule 57 (a) or Part 51AA, rule 35 (a) applies, add, above the name of the claimant in the title—
In the matter of section of the (name) Act 19 .)
P 51, rr 50, 57, P 51AA, rr 32, 35.
SUMMONS
The claimant claims—(state the relief claimed as prescribed in Form 6, and, where Part 51 rule 57 (b) or Part 51AA rule 35 (b) applies, add—
GROUNDS:
or, where Part 51 rule 4 (7) or Part 51AA rule 3 (7) applies, add the statement prescribed in Form 59).
(Where there is an opponent, add—
To the opponent (address):
To the opponent (address):
If there is no attendance before the Court by you or by your counsel or solicitor at the time and place specified below, the proceedings may be heard and you will be liable to suffer judgment or an order against you in your absence.
Before any attendance at that time you must enter an appearance in the Registry.
Time: 7 May 19 at 10.15 a.m.
Place: (address of Court).)
Time: 7 May 19 at 10.15 a.m.
Place: (address of Court).)
(Where there is no opponent, add—
Time and place for attendance.
Time: 7 May 19 at 10.15 a.m.
Place: (address of Court).)
Time and place for attendance.
Time: 7 May 19 at 10.15 a.m.
Place: (address of Court).)
(Where the time for service under Part 5 rule 3 (3) has been bridged, add—
The time before which this summons is to be served has been abridged by the Court to 5 p.m. on 5 May 19 or as the case may require.)
The time before which this summons is to be served has been abridged by the Court to 5 p.m. on 5 May 19 or as the case may require.)
(Where proceedings have been stayed, add—
By order made on (date) by Mr Justice (or as the case may be) all proceedings under (describe judgment or order) were stayed until the above date (or after the hearing of these proceedings or as the case may be).)
Claimant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
(Tutor: (name, address))
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
By order made on (date) by Mr Justice (or as the case may be) all proceedings under (describe judgment or order) were stayed until the above date (or after the hearing of these proceedings or as the case may be).)
Claimant: (name, address)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
(Tutor: (name, address))
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 62: Ins 2.6.1972. Am 4.4.1975; 23.12.1977; 23.5.1980; 19.7.1985; 20.2.1987; 22.9.1995; 22.3.1996; 23.5.1997; 13.6.2003.
Form 62A
(To be set out in accordance with Form 1).
(Where Part 51 rule 56 (a) or Part 51AA rule 35 (a) applies, add above the name of the claimant in the title—
In the matter of section of the (name) Act 19 .)
P 51, rr 50 (2), 57, P 51AA, rr 32 (2), 35.
SUMMONS
The claimant claims the decision or determination of the question and matters stated for decision or determination in the stated case filed herewith.
To the opponent, (address):
You are liable to suffer judgment or an order against you unless the prescribed form of notice of your appearance is received in the Registry within (14) days after service of this summons upon you.
and continue—
Claimant: (name, address) (a minor)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
(Tutor: (name, address))
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Claimant: (name, address) (a minor)
Solicitor: (name, address, telephone and fax numbers and the name of the person in the solicitor’s office handling the matter).
(Tutor: (name, address))
Claimant’s Address for Service: (Part 9 rule 6)
Address of Registry:
Form 62A: Ins 22.8.1975. Am 23.12.1977; 23.5.1980; 20.2.1987; 22.9.1995; 23.5.1997.
Form 62AA
(Notice of motion in the Court of Appeal)
P 51, r 49, P 51AA, r 31.
(To be set out in accordance with Form 1)
(Where Part 51 rule 57 (a) or Part 51AA rule 35 (a) applies, insert—
In the matter of section .......... of the (name) Act 19 )
(Where Part 51 rule 49 (2) or Part 51AA rule 31 (2) applies.
JAMES STYLES | |
Claimant | |
JOHN LEE | |
Opponent |
NOTICE OF MOTION
The claimant will, at 10.15 a.m. on 7 May 19 , at (address), move the Court for orders—
continue as in Form 23).
(Where neither Part 51 rule 49 (2) nor Part 51AA rule 31 (2) apply,
(name of claimant in the summons) | |
Claimant | |
(name of opponent in the summons) | |
Opponent |
NOTICE OF MOTION
The (title of person applying on the motion, for example, opponent) will, at 10.15 a.m. on 7 May 19 at (address) move the Court for orders—
continue as in Form 23).
Form 62AA: Ins 16.1.1981. Am 8.7.1983; 23.5.1997 (see erratum 14.11.1997).
Form 62AA1: Ins 24.7.1998. Am 23.10.1998; 20.4.2000.
Form 62AA1
P 51, r 59, P 51AA, r 37.
(Title of proceedings)
SHORT REASONS FOR DECISION
The appeal is dismissed (insert particulars of any costs order) and the Court is of the unanimous opinion that the appeal does not raise any question of general principle. Pursuant to section 45 (4) of the Supreme Court Act 1970, the Court’s reasons in short form are (set out short reasons).
(Date)
Form 62AAA
(Items, etc. in a bill of costs).
P 52, r 49 (1).
Work done.
1. | } | (number the items consecutively) |
2. | ||
3. |
Skill care and responsibility.
4. | } | (continue the consecutive numbers) |
5. | ||
6. |
Disbursements.
7. | } | (continue the consecutive numbers) |
8. | ||
9. |
(add the note required by Part 52 rule 49 (1B) and, if Part 52 rule 49 (1) (e) applies, the statement required by that rule.)
Form 62AAA: Ins 20.4.1990. Am 2.10.1992.
Form 62AB
(Undertaking to pay disbursement).
P 52, r 49 (3A).
UNDERTAKING
I undertake to the Court that, out of any money received at any time and from time to time by me or from or on behalf of my client in payment of the costs which are the subject of my bill, I will, subject to any appropriation by the payer, within 21 days of receipt pay (if there is only one unpaid disbursement—to (name) his fee or, if the money received is less than his fee, the amount received, until his fee is paid) (if there is more than one unpaid disbursement—to (name) and (name) their fees or, if the amount received is less than their fees, to each of them that proportion of the amount received as his fee bears to the total fees, until their fees are paid).
Date
solicitor.
Form 62AB: Ins 9.12.1983.
Form 62AC
(Notice to serve objections to bill of costs. No heading or title: for attaching or subscribing to the bill.)
P 52, r 50A (4).
To the party liable to pay the costs in the within bill:
Costs claimed in (the attached or this as the case may require) bill may be allowed and the taxation may be concluded unless, within 21 days after service on you of this notice, you serve on the party entitled to the costs a notice in the prescribed form stating the item or items to which you object and the nature and grounds of your objection.
Form 62AC: Ins 23.12.1983. Am 2.10.1992.
Form 62AD
P 52, r 50A (5).
NOTICE OF OBJECTION TO A BILL
ITEM NO | NATURE AND GROUND OF OBJECTION | AMOUNT OBJECTED TO | OBJECTION CONCEDED | ||
$ | ¢ | $ | ¢ | ||
(1)(3) | (1) (4) | (1) | (5) | (2) | (6) |
(7) | (8) | ||||
(signature) | |
Solicitor for (party objecting) | |
(signature) | |
Solicitor for (party who served bill) |
(1) This column to be completed by party objecting.
(2) This column to be completed by party who served bill.
(3) State the number of the item objected to. Where the objection is that Part 52 rule 49 (1) (e) has not been complied with, state “not applicable”.
(4) State these shortly but specifically. Where the objection is that Part 52 rule 49 (1) (e) has not been complied with, state the proportion by which the costs claimed are reduced by Part 52 rule 23 (4) or by an order under Part 52 rule 6 (2) (a) or Part 52 rule 24 (4).
(5) State how much of the item is objected to. Do not include an amount in respect of any objection that Part 52 rule 49 (1) (e) has not been complied with.
(6) Where an objection is wholly or partly conceded, write the amount conceded beside the objection. Where the objection is that Part 52 rule 49 (1) (e) has not been complied with, do not state any amount but write instead “conceded”.
(7) & (8) Total this column but do not take account of any item solely for skill, care and responsibility.
(9) Subtract the total at (8) from the total at (7) and show remainder.
Form 62AD: Ins 2.10.1992.
Form 62AE
P 52, r 50A (7).
CERTIFICATE OF TAXATION
I certify that (pursuant to judgment (order) entered date) (or pursuant to Part 52 rule 16 the plaintiff having filed notice of discontinuance on date) (or pursuant to section 10 of (state Act)) the defendant’s costs as between party and party, which are payable after making any reduction required by Part 52 rule 24 (4) or by an order under Part 52 rule 6 (2) (a) or by an order under Part 52 rule 24 (4), are $ .
Dated
(description of officer)
Form 62AE: Ins 2.10.1992.
Form 62B
REQUEST FOR APPOINTMENT FOR HEARING
P 52, r 50 (4) (ii).
The (plaintiff) requests an appointment for hearing before a taxing officer.
The items or other matter with which the (plaintiff) disagrees are—
Form 62B: Ins 23.5.1980. Am 2.10.1992.
Form 63
(No heading or title if made on a filed bill; see rule 59 (5).)
P 52, r 59.
CERTIFICATE OF TAXATION
I certify that (pursuant to judgment (order) entered
19 ) (or pursuant to Part 52 rule 16, the plaintiff having filed notice of discontinuance on 19 ) (or pursuant to section 10 of (state Act)) the defendant’s costs as between party and party have been taxed and allowed at $ .
19 ) (or pursuant to Part 52 rule 16, the plaintiff having filed notice of discontinuance on 19 ) (or pursuant to section 10 of (state Act)) the defendant’s costs as between party and party have been taxed and allowed at $ .
The amount payable, after making any reduction required by Part 52 rule 24 (4) or by an order under Part 52 rule 6 (2) (a) or by an order under Part 52 rule 24 (4), is $ .
Dated
Taxing Officer
Form 63: Ins 2.6.1972. Am 23.12.1983; 2.10.1992.
Form 64
P 52, r 60.
STATEMENT OF OBJECTION TO TAXATION OF PLAINTIFF’S BILL
(Classify the items and divide them into separate paragraphs according to the nature or grounds of the objection or set them out as follows:
Number of item | Page of bill | Item or part objected to | Nature and grounds of grounds |
7 | 2 | .......... | (State these shortly but specifically). |
10 | 2 | .......... |
Form 64: Ins 2.6.1972.
Form 64A
P 52, r 68 (7).
(Request for taxation or moderation)
(no heading or title)
I have read this bill of costs. I request that it be taxed (or moderated). I wish (or do not wish) to be present when the bill is taxed (or moderated).
Dated 7 May 19 .
(signature) | |
executor (or administrator or trustee) |
Form 64A: Ins 7.7.1972.
Form 64B
P 53, r 3.
(Security for costs)
DEED
PARTICULARS
1. | Date: | 7 May, 19.. |
2. | Guarantor: (name) | |
(address for service) | ||
3. | state the party claiming the relief for example: | |
Plaintiff: (name) | ||
(address for service) | ||
4. | state the party against whom the relief is claimed for example: | |
Defendant: (name) | ||
(address for service) | ||
5. | Proceedings No .. of 19.. in the .. Division (or as the case may be) of the Supreme Court of New South Wales. | |
6. | Date of order to give this security: 10 April, 19.. | |
By this deed the guarantor promises the (defendant) that, (as ordered, for example if the (plaintiff) does not pay to the (defendant) all costs which the (plaintiff) may have been ordered to pay to the (defendant) in the above proceedings, the guarantor will pay to the (defendant) whatever is required to make good the (plaintiff’s) default to a limit of $ ..).
Signed sealed and delivered (and so on) (or as the case may be).
Form 64B: Ins 25.5.1990.
Form 65
P 55, r 10.
WARRANT FOR ARREST
TO THE SHERIFF—
Arrest (name) and bring him before the Court to answer a charge of contempt detaining him in custody in the meantime unless, by paying the sum of $ into Court (or as the case may be) he gives security for his appearance in person before the Court to answer the charge and to submit to the (judgment or) order of the Court.
Dated 7 May 19 .
Judge
Form 65: Ins 2.6.1972.
Form 66
P 55, r 12.
WARRANT FOR COMMITTAL
TO THE SHERIFF—
Take (name) to (name of correctional centre) and deliver him to the Superintendent of that correctional centre.
TO THE SUPERINTENDENT OF (name of correctional centre)
Receive (name) into your custody and keep him there until the further order of this Court (or as the case may be).
His committal is for contempt of court in that he (state the nature of the contempt, for example, wilfully insulted the Judge while the Judge was sitting in Court).
Dated 7 May 19 .
Judge
Form 66: Ins 2.6.1972. Am 28.7.1978; 21.2.1997.
Form 67
(Heading and title if possible.)
P 56, r 5.
NOTICE OF CLAIM
The claimant claims the property described in the schedule, being (part of) the property taken (intended to be taken) in execution by the Sheriff at (address) under process against (name) .
SCHEDULE
(description)
(description)
Dated 7 May 19 .
(signature) claimant’s solicitor |
Claimant: (name)
Place of abode:
Address for service:
To the execution creditor:
If you do not, within (4) days after service of this notice upon you, serve on the Sheriff a notice that you admit this claim, the Court may on application by the Sheriff grant relief by way of interpleader.
If you admit the claim, you will not be liable to the Sheriff for any fees or expenses incurred by him after you serve on him notice that you admit it.
(signature) Sheriff |
Form 67: Ins 2.6.1972.
Form 68
P 59, r 4.
ORDER
THE COURT ORDERS THAT—
(where the 1924 Act applies(where the 1973 Act applies(if the judgment may be enforced for the amount for which it is to be registered,(otherwise
(where the 1924 Act applies
1. the judgment dated (date) of the (court) by which it was adjudged that (name) pay money to (name) be registered under Part 2 of the Administration of Justice Act 1924;
2. (name) may within ..... days after service upon him of notice of registration apply to set aside the registration;
3. the amount for which judgment may be enforced is $ ;
4. the costs of and incidental to the application for this order and of registration of the judgment be added to the amount specified in paragraph 3 of this order.)
1. The judgment dated (date) of the (court) by which it was adjudged that (name) pay money to (name) (or state shortly the terms of and identify the judgment) be registered under Part 2 of the Foreign Judgments Act 1973 for—(a) the sum of $ ;(b) (where, by the law of the country of the original court, interest becomes due under the judgment, specify amount of interest that will become due up to time of registration or how interest is to be calculated);(c) the costs of and incidental to the application for this order and of registration of the judgment.
2. (name) may, within ..... days after service upon him of notice of registration, apply to set aside the registration;
3. the judgment may be enforced for the amount for which it is registered.)
3. the amount for which judgment may be enforced is $ ;
4. the judgment may also be enforced for the interest and costs for which judgment is registered.) )
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 68: Ins 2.6.1972. Am 23.12.1988. Subst 2.10.1992.
Form 69
P 59, r 6.
NOTICE OF REGISTRATION OF JUDGMENT
To: (name)
(where the 1924 Act applies(where the 1973 Act applies(where either Act applies(If applicable and see Part 59 rule 6 (4),
(where the 1924 Act applies
1. The judgment of (here follow the terms of the order) has been registered in this Court under Part 2 of the Administration of Justice Act 1924;
2. the amount including costs, for which judgment may be enforced against you is $ )
1. The judgment of (here follow the terms of the order) has been registered in this Court under Part 2 of the Foreign Judgments Act 1973 for—(a) the sum of $ ;(b) (where applicable interest of $ ;)(c) costs of $ .
2. The judgment may be enforced for the amount for which it is registered (or specify total amount for which judgment may be enforced).)
3. you may, within ..... days after the service of this notice upon you, file notice of motion to set aside the registration;
4. the address for service of the above plaintiff, the judgment creditor, is (address).) )Dated:
.................... Solicitor for plaintiff |
Form 69: Ins 2.6.1972. Am 23.12.1988. Subst 2.10.1992.
Form 69A
P 59A, r 5.
ORDER
THE COURT ORDERS THAT—(if the terms of the judgment to be registered are enforceable in full(otherwise(if applicable
1. The judgment dated (date) of the (court) by which it was adjudged that (name) pay money to (name) (or state shortly the terms of and identify the judgment) be registered under Part 2 of the Foreign Judgments Act 1991 of the Commonwealth for—(a) (specify the terms of the judgment that are to be registered and, where a sum of money is payable under a term, include the sum of (amount));(b) (where, by the law of the country of the original court, interest becomes due under the judgment, specify amount of interest that will become due up to time of registration or how interest is to be calculated);(c) the costs of and incidental to the application for this order and of registration of the judgment.
2. (name) may, within ..... days after service upon him of notice of registration, apply to set aside the registration;
3. the judgment may be enforced to the full extent of the terms that are to be registered.)
3. (specify extent to which judgment may be enforced);
4. the judgment may also be enforced for the interest and costs for which judgment is registered.))
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 69A: Ins 2.10.1992.
Form 69B
P 59A, r 7.
NOTICE OF REGISTRATION OF JUDGMENT
To: (name)(If applicable and see Part 59A rule 7 (4),
1. The judgment of (here follow the terms of the order) has been registered in this Court under Part 2 of the Foreign Judgments Act 1991 of the Commonwealth for—(a) (specify the terms of the judgment that have been registered and, where a sum of money is payable under a term, include the sum of (amount));(b) (where applicable interest of (amount));(c) costs of (amount).
2. the judgment may be enforced to the full extent of the terms that are registered (or specify extent to which judgment may be enforced).
3. You may, within .. days after the service of this notice upon you, file notice of motion to set aside the registration.
4. The address for service of the above plaintiff, the judgment creditor, is (address).)
Dated:
.................... Solicitor for plaintiff |
Form 69B: Ins 2.10.1992. Am 30.10.1992.
Form 70
P 60, r 12.
NOTICE OF APPEAL
APPELLANT: JAMES STYLES
RESPONDENT: JOHN LEE
The appellant appeals to the Court constituted by a Judge from the decision (or as the case may be) of the associate Judge (or the following part of the decision of the associate Judge: (state the part)).
GROUNDS: (state briefly but specifically the grounds relied upon in support of the appeal).
ORDER SOUGHT: (state what judgment order or determination the appellant seeks in place of the decision of the associate Judge).
To the respondent:
If there is no attendance before the Court by you or your counsel or solicitor at the time and place specified below, the appeal may be dealt with and you may suffer a judgment or order against you in your absence.
If there is no attendance before the Court by you or your counsel or solicitor at the time and place specified below, the appeal may be dealt with and you may suffer a judgment or order against you in your absence.
Time and place for attendance:
Time: at (10 a.m.)
Place: (address of Court).
Time: at (10 a.m.)
Place: (address of Court).
Form 70: Ins 2.6.1972. Am 19.7.1985.
Form 70AA
P 65C, rr 3 (4), 4 (4).
OATH OF OFFICE
I, (name) of (address) do swear that (if the oath is taken in relation to proceedings commenced or proposed to be commenced under the Mutual Recognition Act 1992 of the Commonwealth or under the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth, add if I am enrolled as a legal practitioner by the Supreme Court of New South Wales) I will truly and honestly conduct myself in the practice of a legal practitioner of the Supreme Court of New South Wales and I shall faithfully serve as such in the administration of the laws and the usages of that State according to the best of my knowledge, skill and ability.
(Signature of person taking oath) | |
.................... |
CERTIFICATE
I, (name) of (address), certify that I duly administered the above oath on (date)
(date)
(date)
(Signature of a person administering oath) | |
......................... (Office of person administering oath) |
Form 70AA: Ins 21.5.1993. Am 24.6.1994; 24.4.1998.
Form 70A
P 66, r 7 (2).
NOTICE OF INTENTION TO CEASE ACTING AS SOLICITOR
To (name of former client):
After (number of days not less than seven) days from (date), I (or, name of solicitor corporation) will file in the registry of the Court a notice that I have (or, it has) ceased to act as your solicitor in these proceedings.
You must therefore cause to be filed in the registry of the Court and served upon the defendant (or as the case may be, or, if the defendant has a solicitor, the defendant’s solicitor) a notice in the prescribed form stating the name of, and address of the office of, the solicitor who is to act for you, or, if you do not have a solicitor who is to act for you, stating your address for service of documents, which address shall be the address of a place within three kilometres of the General Post Office, Sydney (or as the case may require; see Part 9 rule 6 (2)).
Until that notice is so filed and served, any document to be served on you in the proceedings will be taken to have been served on you if a copy of it is left at or sent to (address of the usual or last known place of business or of abode of the former client).
Form 70A: Ins 20.12.1985. Am 20.9.1991.
Form 70B
P 66A, r 4 (3).
REFERRAL CERTIFICATE
I, (name), Associate to the Honourable Justice (name), certify that on (date){ his or her} Honour has determined, pursuant to Part 66A subrule 4 (1), that it is in the interests of the administration of justice that the following litigant be referred for legal assistance under that Part.
Name of litigant referred:
Nature of legal assistance for which referral made (eg to obtain advice, to appear at the hearing of the matter listed on a particular date; see Part 66A r 5):
Date:
(Signature of associate)
Form 70B: Ins 20.4.2000.
Form 71
P 69, (2).
WRIT OF HABEAS CORPUS
To: (name and address)
Have (name of person detained) before the Court at (address) on 7 May 1972 at 10 a.m. and thereafter submit to the further order of this Court as to his custody.
Witness (name) Chief Justice, 1972.
By the Court | |
Registrar (or Chief Clerk) |
This writ is issued at the request of (name and address).
Form 71: Ins 2.6.1972. Am 30.3.1979.
Form 71A: Ins 24.10.1986. Rep 24.9.1993.
Form 71B: Ins 24.10.1986. Rep 24.9.1993.
Forms 71A, 71B
Form 71C
P 72B, r 3 (1).
ARBITRATOR’S AWARD AND REGISTRAR’S NOTICE TO PARTIES
I have determined these proceedings under the Arbitration (Civil Actions) Act 1983 and have made the following award:
Award made in favour of
in the sum of $
in the sum of $
(Where applicable, This award is made with the consent of all parties.)
I attach my reasons for the award (where a party failed to attend a hearing before the arbitrator) and information which I wish to bring to the attention of the Court.
Arbitrator. (Date) |
Date of sending by the Court:
(Unless the award is made with the consent of all parties add the following notice:
Notice by Registrar to parties.
Unless a party makes application to the Court for a rehearing before the Court, and pays the prescribed fee, before the expiration of 28 days from the above date of sending by the Court, this award may be deemed to be the judgment of the Court and enforceable as such.
Registrar. |
Form 71C: Ins 22.12.1989.
Form 71D
P 72B, r 3 (2).
ARBITRATOR’S REASONS FOR AWARD
Reasons for my award dated are as follows:
(Set out reasons sufficient to make the parties aware of the arbitrator’s view of the case made by each party).
(Where a party failed to attend the hearing before the arbitrator add:
The defendant (or as the case may be) failed to attend the hearing before me on (date).
and set out any information known to the arbitrator relating to reasons for the failure).
and set out any information known to the arbitrator relating to reasons for the failure).
Arbitrator. (date) |
Form 71D: Ins 22.12.1989.
Form 71E
P 72B, r 5 (1) (a).
APPLICATION FOR REHEARING
I apply for an order under section 18 (2) of the Arbitration (Civil Actions) Act 1983 for a [if applicable full or limited] rehearing of these proceedings.
(Date) | Solicitor for |
This application was filed on and a rehearing of the proceedings before the Court has been ordered.
(Add any notice of appointment for directions or as required)
Registrar. |
Form 71E: Ins 22.12.1989. Am 21.8.1998.
Form 72
P 73, rr 4, 5.
SUMMONS (APPLICATION FOR ADOPTION ORDER)
The plaintiff claims:
(1) an order for the adoption of (given name or names and surname)
In favour of (name) solely (or, alternatively)
In favour of (name) and (name) jointly.
(2) an order that the Court approves that the child have (name or names) as the child’s given and (surname) as the child’s surname.
The plaintiff asks for a preliminary hearing and claims:
(3) (state orders claimed, for example) directions for the conduct of the hearing and for notice to (named persons).
PARTICULARS
CHILD | APPLICANT(S) | |
(surname) | (surname) | |
(other names) | (other names) | |
(sex) | (occupation) | |
Born 1 May 20 . | (address) | |
at | (place) | AND |
Father: | (surname) | (surname) |
(other names) | (other names) | |
Mother: | (maiden surname) | (occupation) |
(other names) | (address) | |
The proceedings commenced by this summons will be dealt with by a Judge out of court. However, the Court may, of its own motion, appoint a date for the hearing in Court of the proceedings.
Appointment for preliminary hearing
Time: 7 May 20 , at a.m.
Place: (address of Court, for example, Court 9A, Level 9, Supreme Court, Queen’s Square, Sydney)
Plaintiff: (name, address)
Plaintiff’s address for service: (Part 9 rule 6)
Address of Registry:
Place: (address of Court, for example, Court 9A, Level 9, Supreme Court, Queen’s Square, Sydney)
Plaintiff: (name, address)
Plaintiff’s address for service: (Part 9 rule 6)
Address of Registry:
(The Summons should follow Forms 1, 3 and 4 and Pt 73 rules 4 and 5 with such modifications as the case may require. If there is a defendant the heading and title should follow Form 2. Form 72 should be adapted for singular, plural and otherwise as the case may require. Italic indications in the Form should not appear in the Summons.)
Form 72: Ins 2.6.1972. Am 23.12.1977; 19.7.1985; 20.2.1987. Subst 24.4.2003. Am 13.6.2003.
Form 73: Ins 2.6.1972. Am 25.10.1996. Rep 24.4.2003.
Form 73A: Ins 27.3.1987. Rep 24.4.2003.
Form 73B: Ins 27.3.1987. Am 22.11.1996. Rep 24.4.2003.
Forms 73–73B
Form 74
P 73, r 7.
ADOPTION ORDER
CHILD | ADOPTIVE PARENTS |
Surname: | Surname: |
Given names: | Other names: |
(sex) | (occupation) |
born 1 May 20 . | (address) |
at (place) | AND |
Father’s surname: | Surname: |
Other names: | Other names: |
Mother’s maiden surname: | (occupation) |
Other names: | (address) |
The Court makes orders:
(1) for the adoption of the child in favour of the adoptive parent(s)
(2) that the given name(s) of the child be (name or names)
And the surname of the child be (surname)
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 74: Ins 2.6.1972. Subst 24.4.2003.
Form 74AA
(Subpoena to a natural person: criminal proceedings)
P 75, r 2 (1) (r).
SUBPOENA FOR PRODUCTION
To | (1) |
(2) |
THE COURT ORDERS that you shall attend and produce this subpoena and the documents and things described in the schedule—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (7) and until you are excused by the Court from further attending; but—(i) you need not comply with this subpoena if the party who requested its issue has excused you from compliance;(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance and production to a later time.
SCHEDULE
(8)
Dated 19 | By the Court, (9) |
Issued at the request of (10) whose address for service is (10A).
Note that—
(1) if you do not comply with this subpoena you may be arrested.(If the subpoena is issued at the request of the Solicitor for Public Prosecutions other than on behalf of the accused) add—
(2) If you wish to be paid the expenses allowable in respect of your attendance, you must produce the certificate endorsed duly completed).or(If the subpoena is issued at the request of the accused or at the request of the Solicitor (for Public Prosecutions on behalf of the accused) add—
(2) You are not entitled to payment by the Crown of your expenses in respect of your attendance unless legal aid has been granted to the accused.
(3) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you.
(4) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena.
(5) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, [7 May 19 .]
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) description of documents and things.
(9) signature and description of officer of the Court.
(10) state person at whose request the subpoena was issued.
(10A) address for service.
(11) notwithstanding Part 65 rule 3 (3), the reverse of the page may be used, keeping clear a margin of 25 millimetres on the right hand side.
Form 74AA: Ins 29.6.1984 (see erratum 27.7.1984). Am 2.10.1992; 2.4.1993; 25.10.1996.
Form 74AB
(Subpoena to a corporation for production and for its proper officer to answer questions concerning (possession, etc., of documents: criminal proceedings.)
P 75, r 2 (1) (r).
SUBPOENA FOR PRODUCTION AND TO ANSWER QUESTIONS
To | (1) |
(2) |
THE COURT ORDERS that—
1. (1) “the corporation” shall produce this subpoena and the documents and things described in the schedule by causing its proper officer to attend and produce them—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (7) and until the officer is excused by the Court from further attending; but—(i) the corporation need not comply with this subpoena if the party who requested its issue has excused the corporation from compliance;(ii) if the corporation is a bank and is required by this subpoena to produce a banker’s book and the corporation is not a party to these proceedings and Part IV of the Evidence Act 1898 would have applied prior to its repeal, the corporation need not cause its officer to produce it if the corporation causes him to produce proof of the relevant entries in it in accordance with that Part;(iii) the party who requested the issue of this subpoena may, by written or oral notice to the corporation, alter the time for attendance or production to a later time.
2. the officer who is to attend shall make inquiries for the purpose of answering, and, on attending, shall answer, such questions as the Court requires him to answer concerning the possession or custody of those documents and things.
SCHEDULE
(8)
(8)
Dated 19 . | By the Court, (9) |
Issued at the request of (10) whose address for service is (10A).
Note that—
(1) where the corporation fails to comply with this subpoena, this subpoena may be enforced by sequestration of the property of the corporation or by arrest of an officer of the corporation or by both means.
(If the subpoena is issued at the request of the Solicitor for Public Prosecutions other than on behalf of the accused, add—
(2) if you wish to be paid the expenses allowable in respect of your attendance, you must produce the certificate endorsed duly completed);
or
(If the subpoena is issued at the request of the accused or at the request of the Solicitor for Public Prosecutions on behalf of the accused) add—
(2) you are not entitled to payment by the Crown of your expenses in respect of your attendance unless legal aid has been granted to the accused;
(3) documents and things produced by the corporation in accordance with this subpoena may be returned by post to it at its address shown on this subpoena but it may in writing on or attached to this subpoena request that they be posted to it at another address given by it;
(4) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena;
(5) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
Directions for completing this form.
(1) name of corporation.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) description of documents and things.
(9) signature and description of officer of the Court.
(10) state person at whose request the subpoena was issued.
(10A) address for service.
(11) notwithstanding Part 65 rule 3 (3), the reverse of the page may be used, keeping clear a margin of 25 millimetres on the right hand side.
Form 74AB: Ins 29.6.1984. Am 2.10.1992; 2.4.1993; 25.8.1995; 25.10.1996.
Form 74AC
(Subpoena to give evidence: criminal proceedings)
P 75, r 2 (1) (r).
SUBPOENA TO GIVE EVIDENCE
To | (1) |
(2) |
THE COURT ORDERS that you shall attend for the purpose of giving evidence—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (7) and until you are excused by the Court from further attending; but—(i) you need not comply with this subpoena if the party who requested its issue has excused you from compliance;(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance to a later time.
Dated 19 . | By the Court, (8) |
Issued at the request of (9) whose address for service is (9A)
Note that—
(1) If you do not comply with this subpoena you may be arrested; and
(If the subpoena is issued at the request of the Solicitor for Public Prosecutions other than on behalf of the accused, add—
(2) If you wish to be paid the expenses allowable in respect of your attendance, you must produce the certificate endorsed duly completed);
or
(If the subpoena is issued at the request of the accused or at the request of the Solicitor for Public Prosecutions on behalf of the accused) add—
(2) You are not entitled to payment by the Crown of your expenses in respect of your attendance unless legal aid has been granted to the accused;
(3) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) signature and description of officer of the Court.
(9) state person at whose request the subpoena was issued.
(9A) address for service.
(10) notwithstanding Part 65 rule 3 (3), the reverse of the page may be used, keeping clear a margin of 25 millimetres on the right hand side.
Form 74AC: Ins 29.6.1984. Am 2.10.1992; 2.4.1993; 25.10.1996.
Form 74AD
(Subpoena for production and to give evidence: criminal proceedings).
P 75, r 2 (1) (r).
SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE
To | (1) |
(2) |
THE COURT ORDERS that you shall attend and produce this subpoena and the documents and things described in the schedule and attend for the purposes of giving evidence—
(a) before the Court (3);
(b) at (4);
(c) on (5) (6) at 10 a.m. (7) and until you are excused by the Court from further attending; but—(i) you need not comply with this subpoena if the party who requested its issue has excused you from compliance;(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for production or attendance to a later time.
SCHEDULE
(8)
(8)
Dated 19 . | By the Court, (9) |
Issued at the request of (10) whose address for service is (10A).
Note that—
(1) if you do not comply with this subpoena you may be arrested.
(If the subpoena is issued at the request of the Solicitor for Public Prosecutions other than on behalf of the accused, add—
(2) If you wish to be paid the expenses allowable in respect of your attendance, you must produce the certificate endorsed duly completed).
or
(If the subpoena is issued at the request of the accused or at the request of the Solicitor for Public Prosecutions on behalf of the accused add—
(2) You are not entitled to payment by the Crown of your expenses in respect of your attendance unless legal aid has been granted to the accused.
(3) documents and things produced by you in accordance with this subpoena may be returned by post to you at your address shown on this subpoena but you may in writing on or attached to this subpoena request that they be posted to you at another address given by you.
(4) any questions relating to the requirements of this subpoena should be directed not to the Court but to the person who requested the issue of this subpoena.
(5) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
Directions for completing the above form.
(1) name.
(2) address.
(3) or as the case may require.
(4) address of Court or other place.
(5) date, for example, 7 May 19 .
(6) or on a date during the sittings beginning on (5) and ending on (7), notice of which date will be given to you.
(7) date, for example, 21 May 19 .
(8) description of documents and things.
(9) signature and description of officer of the Court.
(10) state person at whose request the subpoena was issued.
(10A) address for service.
(11) notwithstanding Part 65 rule 3 (3), the reverse of the page may be used, keeping clear a margin of 25 millimetres on the right hand side.
Form 74AD: Ins 29.6.1984 (see erratum 27.7.1984). Am 2.10.1992; 2.4.1993; 25.10.1996.
Form 74AE
(Form of indictment)
P 75, r 3D (1).
(Under the description INDICTMENT on the form insert a statement of the nature of the offence, for example for murder and, if a statutory offence, insert under that statement under s. ..... of the Crimes Act 1900or as the case may require.
New South Wales
On 7 May 20 the Attorney General (or Director of Public Prosecutions) on behalf of Her Majesty (or as the case may require: see ss. 8 and 9 of the Criminal Procedure Act 1986) charges that (state the offence and its Law Part Code, if any).
(signature, full name and capacity of signatory: see s 126 of the Criminal Procedure Act 1986.)
Form 74AE: Ins 31.12.1987. Am 25.2.2000; 29.8.2003; 17.12.2004.
Form 74AF
P 75, r 3E.
(No heading or title)
BAIL ACT 1978
APPLICATION TO THE SUPREME COURT OR THE COURT OF CRIMINAL APPEAL FOR BAIL OR REVIEW OF BAIL OR VARIATION OF EXISTING BAIL CONDITIONS.
1.
I, ............................................. (full name)
of ............................................................
.......... (address) (..... Phone No) (..... MIN if known)
of ............................................................
.......... (address) (..... Phone No) (..... MIN if known)
make application for— | |
[ ] | bail |
[ ] | review of bail determination |
[ ] | variation of existing bail conditions only |
NOTE
(a) You must nominate only ONE of the above choices.
(b) If you—(i) remain in custody because any bail condition has not been complied with; andyou should choose “variation of existing bail conditions only” above. If the bail condition you want varied was imposed by a court other than the Supreme Court and you remain in custody because that bail condition has not been complied with, you must make your application to that other court, not to the Supreme Court.(ii) want only bail conditions varied,
2.
What is your date of birth? ...............
3.
Do you need an interpreter? [ ] Yes [ ] No
If Yes, what language? ..............................
4.
If you are an Aborigine or Torres Strait Islander—
(a) Do you want the Aboriginal Legal Service to represent you in your application? [ ] Yes [ ] No
(b) If Yes, do not answer Question 5.
5.
Do you want the Legal Aid Commission to represent you in your application?
[ ] Yes No [ ]
[ ] Yes No [ ]
If No, who will represent you at the hearing of your application? ............................................................
............................................................
.......... (name of solicitor and firm and, if known, fax no)
............................................................
.......... (name of solicitor and firm and, if known, fax no)
6.
To what charges does your application apply? ............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
Page 1 of 4
7. at ...............
(a) What is the date of your next appearance in court on these charges? ............................................................
(b) In which court are you appearing next?
8.
Have you had a committal hearing at the Local Court?
[ ] Yes [ ] No
[ ] Yes [ ] No
(a) If Yes—(i) What was the date? ....................(ii) Which Local Court? ....................
(b) If No, has a date been set for the committal hearing at the Local Court?
[ ] Yes [ ] NoIf Yes—(i) What was the date? ....................(ii) Which Local Court? ....................
(c) Have you been committed for trial or sentence?
[ ] Yes [ ] NoIf Yes—(i) was it for [ ] trial [ ] sentence(ii) which court [ ] Supreme Court [ ] District Court
at....................
(d) Are you presently on appeal after trial or sentence?
[ ] Yes [ ] No
If Yes, which court? [ ] Court of Criminal Appeal [ ] District Court
9.
Are there any co-accused (or co-defendants) in this matter?
[ ] Yes [ ] No
[ ] Yes [ ] No
If Yes, who? ............................................................
............................................................
............................................................
............................................................
............................................................
10.
Are you presently in custody? [ ] Yes [ ] No
If Yes, please answer the following—
(a) What date were you taken into custody of these charges? ............................................................
..............................
(b) Are you presently serving a sentence? [ ] Yes [ ] NoIf Yes, when are you due for release? ..........
(c) Which gaol are you presently in? ...............
(d) If released on bail, where do you intend to live? ............................................................
11.
Who is the police officer in charge of your case? ............................................................
............................................................
............................................................
Page 2 of 4
ANSWER QUESTIONS 12 TO 15 ONLY IF YOU REPLIED “VARIATION OF EXISTING BAIL CONDITIONS ONLY” TO THE CHOICE IN PARAGRAPH 1.
12.
If you are you in custody, is it only because you have not complied with a condition of the bail which you are seeking to have varied? [ ] Yes [ ] No
13.
What court granted the bail, a condition of which you seek to have varied?
[ ] Court of Criminal Appeal | [ ] Supreme Court | [ ] District Court | [ ] Local Court |
NB If the bail condition you want varied was imposed by a court other than the Supreme Court and you remain in custody because that bail condition has not been complied with, you must make your application to that other court, not to the Supreme Court.
14.
What variation are you asking for? ............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
15.
On the previous grant of bail, was there any surety involved?
[ ] Yes [ ] No
[ ] Yes [ ] No
If Yes, please state the name and address of each surety ............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
NOTE
If a surety was involved, unless the surety appears in person at the hearing of this application and consents to it, you will be required to produce at court at the hearing of this application—
(a) evidence of notification of the surety of the date of listing of this application and of the nature of the variation sought; AND
(b) the written consent of the surety to that variation.
16.
If this application is to the Supreme Court—
(a) Is this your [ ] 1st [ ] 2nd [ ] 3rd [ ] 4th [ ] More application of any kind to the Supreme Court in relation to bail?
(b) If the answer to (a) is not “1st”, please state the special facts or special circumstances which justify the making of this further application.
IF THIS APPLICATION IS TO THE SUPREME COURT, YOUR APPLICATION WILL NOT BE ENTERTAINED UNTIL A SATISFACTORY ANSWER IS GIVEN TO THIS QUESTION.
REPRESENTATIVES OF THE LEGAL AID COMMISSION (OR, WHERE APPLICABLE, THE ABORIGINAL LEGAL SERVICE) WILL ASSIST APPLICANTS WITH THIS QUESTION IF REQUIRED
Page 3 of 4
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
17.
If this form is completed by a solicitor on behalf of the applicant, what approximate time is it anticipated that the hearing of the application will take? ............................................................
............................................................
............................................................
............................................................
............................................................
18.
Any other comments you wish to make ............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
............................................................
NOTE
(a) This note applies only if—(i) this application is to the Supreme Court and will be heard in Sydney; and(ii) at the time this application is filed in the Court, you are in custody but are NOT in a detention centre within the meaning of the Children (Detention Centres) Act 1987 or in the Long Bay Correctional Complex.
(b) Subject to paragraph (c), the hearing of this application will be conducted by means of video link facilities without your personal attendance at court. Video link facilities allow two-way audio and visual communication of television standard between the Court and the Metropolitan Remand and Reception Centre, including private communication between you and your legal representative. If you are in another correctional centre, you will be sent to the Metropolitan Remand and Reception Centre for the hearing.
(c) The Court may, if it is in the interests of justice to do so, order that the hearing of this application is not to be conducted by video link. An application for such an order—(i) must be in the prescribed form, which is available on request;(ii) must be filed with this application, together with any supporting documents;(iii) will be dealt with before this application is placed in the list for hearing; and(iv) may be dealt with by the Court in the absence of the public and without any attendance by or on behalf of yourself.
Signed .................... | Date ............... 199.. |
Page 4 of 4
Form 74AF: Ins 25.6.1993. Am 20.8.1993. Subst 19.11.1993. Am 19.11.1993; 22.3.1996. Subst 26.4.1996 (see errata 3.5.1996). Am 19.12.1997; 20.10.2000.
Form 74AG
Form 74AG: Ins 19.11.1993. Am 19.11.1993; 22.3.1996. Rep 26.4.1996.
Form 74AH
P 75, r 3F.
(No heading or title)
ACCEPTABLE PERSON—INFORMATION FORM
ACCUSED NAME: | ........................................ |
AMOUNT OF SECURITY/ CASH REQUIRED: | ........................................ |
PROPOSED ACCEPTABLE PERSON................................... | |
ADDRESS: | ........................................ |
OCCUPATION: | ........................................ |
SOURCE OF IDENTIFICATION: ................................... | |
1. | How long have you known the accused? .............................. | ||
2. | What is the nature of your acquaintance with the accused? .................... .................................................. | ||
3. | Have you had any criminal convictions? | [ ] Yes | [ ] No |
4. | Do you have any criminal charges outstanding? | [ ] Yes | [ ] No |
5. | Do you have any bankruptcy proceedings pending/in process? | [ ] Yes | [ ] No |
6. | If Yes to any of the above three questions, provide details here ............... ....................................................... ....................................................... ....................................................... ....................................................... ....................................................... | ||
7. | Are you currently surety in any other matter? | [ ] Yes | [ ] No |
8. | If Yes, provide details ........................................ ....................................................... ....................................................... ....................................................... ....................................................... ....................................................... | ||
9. | IF YOU PROPOSE TO ENTER INTO AN AGREEMENT WITHOUT SECURITY TO FORFEIT AN AMOUNT OF MONEY. Provide full details of your financial resources to pay the amount required, should the accused fail to comply with the Bail Undertaking (eg. Bank accounts, furniture etc.) ..... ....................................................... ....................................................... | ||
10. | IF YOU PROPOSE TO DEPOSIT AN ACCEPTABLE SECURITY. What security are you providing? ............................................. ....................................................... ....................................................... ....................................................... ....................................................... ....................................................... | ||
11. | IF YOU PROPOSE TO DEPOSIT CASH. Is this your money? | [ ] Yes | [ ] No |
Provide details of where you obtained the money ......................... ....................................................... ....................................................... ....................................................... ....................................................... ....................................................... | |||
I hereby offer myself for consideration as an acceptable person under the provisions of the Bail Act 1978, and I understand that should any answer that I have given be untrue or wilfully misleading I may be charged with a Criminal Offence.
I further understand that if the Accused person fails to comply with any conditions of his/her Bail Undertaking then the money/security that I am lodging may be forfeited to the Crown, and, should I desire to be discharged from my obligation under the Bail Act 1978, I must make application to the Court whilst the accused person is present before the Court.
I do solemnly and sincerely declare and affirm that the answers that I have given in this document are true and correct to the best of my knowledge, information and belief. AND I make this solemn declaration as to such matters according to the Oaths Act 1900, and subject to the punishment by law provided for any wilfully false statement in any such declaration.
.........................
PROPOSED ACCEPTABLE PERSON
Declared this day of 199 , at the Supreme Court, Queen’s Square, Sydney before me
....................
JUSTICE OF THE PEACE
Form 74AH: Ins 19.11.1993.
Form 74AHA
P 75, r 3FA.
OBJECTION TO CONFIRMATION OF FORFEITURE ORDER BY THE SUPREME COURT OR THE COURT OF CRIMINAL APPEAL
I, (full name) of
(address) object to confirmation of the forfeiture order made by the Supreme Court*/Court of Criminal Appeal* on (date) in these proceedings.
(address) object to confirmation of the forfeiture order made by the Supreme Court*/Court of Criminal Appeal* on (date) in these proceedings.
*delete as required
The order affects me in the following manner—
(state how you are affected)
(state how you are affected)
I rely on the following grounds—
(state grounds of objection)
(state grounds of objection)
Signed:
Date:
Time for hearing:
Place:
Form 74AHA: Ins 24.11.2000.
Form 74AHB
P 75, r 3FB.
APPLICATION TO SET ASIDE FORFEITURE ORDER BY THE SUPREME COURT OR THE COURT OF CRIMINAL APPEAL
I, (full name) of
(address) apply to set aside the forfeiture order made by the Supreme Court*/Court of Criminal Appeal* on (date) in these proceedings.
(address) apply to set aside the forfeiture order made by the Supreme Court*/Court of Criminal Appeal* on (date) in these proceedings.
*delete as required
The order affects me in the following manner—
(state how you are affected)
(state how you are affected)
I rely on the following grounds—
(state grounds of application)
(state grounds of application)
Signed:
Date:
Time for hearing:
Place for hearing:
Form 74AHB: Ins 24.11.2000.
Form 74AI
Form 74AI: Ins 19.11.1993. Am 22.3.1996; 19.12.1997. Subst 20.10.2000. Rep 23.11.2001.
Form 74AJ
P 75, r 3H (1)
ELECTION UNDER S. 132 (1) OF THE CRIMINAL PROCEDURE ACT 1986
I, , of , being charged with (short details of the charge, or all of the charges, in the proceedings), elect to be tried by a Judge alone in respect of the alleged offence(s).
I have before making this election sought and received advice in relation to the election from barrister (or solicitor).
The date fixed for my trial is 19 .
Dated:
Accused | |
Witness to signature of accused |
Full name and address of witness:
The Director of Public Prosecutions consents to this election.
Dated:
The Director of Public Prosecutions consents to this election.
Dated:
(Signature and description)
Form 74AJ: Ins 22.9.1995. Am 25.2.2000; 29.8.2003.
Form 74AK
P 75, r 3H (1)
ELECTION UNDER S. 132 (5) OF THE CRIMINAL PROCEDURE ACT 1986
I, , having previously elected to be tried by a Judge alone in respect of these proceedings, now elect to be tried by a jury.
The date fixed for my trial is 19 .
Dated:
Accused | |
Witness to signature of accused |
Full name and address of witness:
Form 74AK: Ins 22.9.1995. Am 25.2.2000; 29.8.2003.
Form 74A
(Summons under the Part 5 of Chapter 4 of the Criminal Procedure Act 1986.)
(To be set out in accordance with Form 1.)
(name)
prosecutor
(name)
defendant
prosecutor
(name)
defendant
SUMMONS
The plaintiff claims—
1. An order that the defendant (name) appear before a Judge of the Court to answer to the offence that (state the offence).
or
1. An order that the defendant (name) be apprehended for the purpose of being brought before a Judge of the Court to answer to the offence that (state the offence).
2. That the defendant be dealt with according to law for commission of the above offence.
Time and place for hearing the application for the above orders—
Time: 19 19 at 10 a.m.
Place: (address of Court)
Prosecutor: (name and address)
Prosecutor’s address for service: (Part 9 rule 6).
Address of Registry:
Time: 19 19 at 10 a.m.
Place: (address of Court)
Prosecutor: (name and address)
Prosecutor’s address for service: (Part 9 rule 6).
Address of Registry:
(signature)
Plaintiff’s solicitor
Plaintiff’s solicitor
Filed: 19 .
Form 74A: Ins 21.12.1973. Am 4.4.1975; 23.12.1977; 19.10.1979; 8.7.1983; 29.8.2003.
Form 74B
P 75, r 8.
(Minute of order under section 246 (1) (a) of the Criminal Procedure Act 1986.)
(Heading and title as in Form 74A.)
ORDER
To the defendant (name, address and occupation):
THE COURT ORDERS you to appear before a Judge of the Court at (address of Court) on 19 , at 10 a.m., to answer to the offence alleged by the prosecutor that (state the offence alleged).
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 74B: Ins 21.12.1973. Am 19.10.1979; 29.8.2003.
Form 74C
P 75, r 8.
(Minute of order under section 246 (1) (b) of the Criminal Procedure Act 1986.)
(Heading and title as in Form 74A.)
ORDER
To all members of the police force (add, where section 246 (4) of the Criminal Procedure Act 1986 applies, and to ):
THE COURT ORDERS you to arrest (name) and bring him before a Judge of the Court to answer to the offence alleged by the prosecutor that (state offence alleged).
(Complete as in general form of minute of order under Part 41 rule 11.)
Form 74C: Ins 21.12.1973. Am 19.10.1979; 29.8.2003.
Form 74D: Ins 21.12.1973. Am 25.5.1990. Rep 19.12.1997.
Form 74E: Ins 21.12.1973. Rep 19.10.1979.
Forms 74D, 74E
Form 75
(Summons under section 13 [and section 68])
P 76, r 5.
SUMMONS
The plaintiff claims—
1. a declaration that (name) is (if applicable, mentally ill and) incapable of managing his affairs;
2. an order that the estate of the defendant be subject to management under the subject Act;
3. an order that the plaintiff (or other named person) or some other fit and proper person may be appointed, with or without security as the Court may determine, manager of the estate if applicable, and guardian of the person of the defendant to act in relation to his (or her) estate (if applicable and person) under the order and direction of the Court;(Where two or more persons are to be appointed, add—an order that, on the death or discharge of one (or one or more) of the said managers, the management of the estate (if applicable and guardianship of the person) of the defendant continue to the surviving or continuing manager (managers) (manager and guardian) (managers and guardians), and the custody of the estate of the defendant continue to the surviving or continuing manager (or managers).
4. an order that the assessed costs of the plaintiff of and incident to these proceedings be paid to the plaintiff out of the estate of the defendant.
(continue as in Form 6)
Form 75: Ins 23.6.1972. Subst 29.6.1984. Am 24.6.1994.
Form 76: Ins 23.6.1972. Rep 29.6.1984.
Form 77: Ins 23.6.1972. Rep 29.6.1984.
Forms 76, 77
Form 78
(Affidavit of medical practitioner etc.)
P 76, r 11.
AFFIDAVIT
On 7 May 19 I (name, address and profession), say on oath—
1. I am duly qualified medical practitioner in this State (or as the case may be).
2. I have been in practice for years.
3. I hold the degree of (or as the case may be) (and state special qualifications in regard to questions relating to the defendant’s condition).
4. On 19 I spoke to the abovenamed
at and carefully examined him (her).(The deponent must state his diagnosis in his own handwriting.)
5. (State similarly findings on any other occasions.)
6. In my opinion the said is incapable of managing his (her) affairs.
or where application is also made under section 68 of the subject Act—In my opinion the said is mentally ill and incapable of managing his (her) person.
7. The reasons for my opinion are—or The tests conducted upon which my opinion is based are—(set these out in the deponent’s own handwriting)
SWORN, etc.
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 78: Ins 23.6.1972. Subst 29.6.1984. Am 21.10.1994.
Form 79
(Affidavit of fitness of manager)
P 76, r 11.
AFFIDAVIT
On 7 May 19 I (name, address and occupation) say on oath—
1. I am (state occupation).
2. I have known (name of proposed manager) for about years and I am not related to him.
3. I am informed and believe that the said has consented to be manager of the estate (if applicable and guardian of the person) of if this Court sees fit so to appoint him, to act under the order and direction of the Court.
4. (State opinion of character of proposed manager.)
5. (State opinion of fitness of proposed manager to act, giving where possible details of business experience known to deponent.)
SWORN, etc.
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 79: Ins 23.6.1972. Subst 29.6.1984. Am 21.10.1994.
Form 80
(Consent of proposed manager and affidavit verifying)
P 76, r 11.
CONSENT
I (name, address and occupation) consent to act as manager of the estate of the abovenamed if I am so appointed.—
DATED 19
Witness:
Witness:
AFFIDAVIT
On 19 I (name, address and occupation) say on oath—
1. I am (state occupation).
2. On 19 I saw (name) sign “(as written)”, as appears above.
3. On the same date, I, as a witness, signed “(as written)”, as appears above.
Form 80: Ins 23.6.1972. Subst 29.6.1984.
Form 81
(Consent where proposed manager is a company and affidavit verifying)
P 76, r 11.
CONSENT
(name) , a company duly incorporated in the State of New South Wales, whose registered office at in the said State (or as the case may be) consents to act as manager of the estate (if applicable and guardian of the person) of the above named if it is so appointed.
(date and execute in writing under the common seal of the Company)
Witness:
Witness:
AFFIDAVIT
On 19 I (name, address and occupation) say on oath—
1. I am the Manager (or as the case may be) of Limited, the registered office of which is at .
2. On 19 I saw the seal of the said Company duly affixed as appears above.
3. On the same date I saw and , directors of the said Company, sign “(as written)” and “(as written)” respectively, as appears above.
4. On the same date, I, as a witness, signed “(as written)”, as appears above.
Form 81: Ins 23.6.1972. Subst 29.6.1984.
Form 82
Form 82: Ins 23.6.1972. Rep 29.6.1984.
Form 83
(Order under section 13 (and 68))
P 76, r 13.
ORDER
THE COURT DECLARES that the defendant is incapable of managing his (her) affairs (and is mentally ill and incapable of managing his (her) person).
THE COURT ORDERS that—
1. the estate of the defendant be subject to management under the subject Act.
2. (name of manager(s)) be appointed without security (or, subject to the giving of security to the satisfaction of the Commissioner (name of manager(s)) be appointed) manager(s) of the estate (if applicable and guardian of the person) of the defendant to act in relation thereto under the order and direction of the Court (with, to the exclusion of any other person, all such powers as guardian as would be exercisable by him (her) in relation to the protected person if he (she) were the father (mother) of the protected person and the protected person were under the age of 14 years);
3. (where two or more persons are appointed, on the death or discharge of either (or any one or more) of the said manager(s) the management of the estate (and guardianship of the person) shall continue to the surviving or continuing manager (or, where two or more managers are also appointed guardians, on the death or discharge of either (or any one or more) of the said managers the management of the estate and guardianship of the person of the said defendant shall continue to the surviving or continuing manager(s));
4. the assessed costs of the plaintiff (and, where the defendant appears, of the defendant) of and incident to these proceedings be paid to the parties entitled thereto out of the estate of the defendant;
5. all parties are at liberty to apply as they may be advised.
(Complete as in general form of minute of order under Part 41, rule 11 Form 51.)
Form 83: Ins 23.6.1972. Am 1.6.1973. Subst 29.6.1984. Am 24.6.1994.
Form 83A
(Order under section 21C)
P 76, r 13A.
ORDER
THE COURT DECLARES that the defendant is a missing person.
THE COURT ORDERS that—
1. the estate of the defendant be subject to management under the subject Act.
2. (name of manager(s)) be appointed without security (or, subject to the giving of security to the satisfaction of the Commissioner (name of manager(s)) be appointed) manager(s) of the estate of the defendant to act in relation thereto under the order and direction of the Court;
3. (where two or more persons are appointed, on the death or discharge of either (or any one or more) of the said manager(s) the management of the estate shall continue to the surviving or continuing manager(s));
4. the assessed costs of the plaintiff (and, where the defendant appears, of the defendant) of and incident to these proceedings be paid to the parties entitled thereto out of the estate of the defendant;
5. all parties are at liberty to apply as they may be advised.
(Complete as in general form of minute of order under Part 41, rule 11 Form 51.)
Form 83A: Ins 2005 (171), Sch 1 [11].
Form 84: Ins 23.6.1972. Am 1.6.1973. Rep 29.6.1984.
Form 85: Ins 23.6.1972. Rep 29.6.1984.
Forms 84, 85
Form 86
(Order pursuant to section 35)
P 76, r 23.
ORDER
THE COURT DECLARES that it has been proved to its satisfaction that (name of protected person) is capable of managing his affairs.
THE COURT ORDERS that—
1. (name of manager) is discharged from the office of manager of the estate (or, manager of the estate and guardian of the person) of (name of protected person);
2. the said (name of manager) shall within (state period of time) file and pass his account in the registry in accordance with the rules;
3. the said (name of manager) shall, within days after the taking of the said account, hand over and transfer the residue, if any, of the said estate to the said (name of protected person);
4. The assessed costs of all parties be paid to the persons entitled thereto out of the estate of the said (name of protected person).
(Complete as in general form of order under Part 41, rule 11 Form 51.)
Form 86: Ins 23.6.1972. Subst 29.6.1984. Am 24.6.1994.
Form 86A
(Order pursuant to section 35A)
P 76, r 23D.
ORDER
THE COURT DECLARES that it has been proved to its satisfaction that (name of protected person) is alive.
THE COURT ORDERS that—
1. (name of manager) is discharged from the office of manager of the estate of (name of protected person);
2. the said (name of manager) shall within (state period of time) file and pass his account in the registry in accordance with the rules;
3. the said (name of manager) shall, within days after the taking of the said account, hand over and transfer the residue, if any, of the said estate to the said (name of protected person);
4. The assessed costs of all parties be paid to the persons entitled thereto out of the estate of the said (name of protected person).
(Complete as in general form of order under Part 41, rule 11 Form 51.)
Form 86A: Ins 2005 (171), Sch 1 [12].
Form 87: Ins 23.6.1972. Am 29.6.1984; 19.2.1999. Rep 4.5.2001.
Form 88: Ins 23.6.1972. Am 29.6.1984; 21.10.1994. Rep 4.5.2001.
Form 89: Ins 30.6.1972. Rep 30.5.1980.
Forms 87–89
Form 89A
P 77, r 38.
(Minute of order under section 21 (2) of the Status of Children Act 1996)
ORDER
THE COURT DECLARES that the relationship of parent and child exists between the person named below and the child named below—
CHILD
Surname:
Other names:
Sex:
Date of birth:
Place of birth: (full name and address of hospital or house)
CHILD
Surname:
Other names:
Sex:
Date of birth:
Place of birth: (full name and address of hospital or house)
PARENT
Surname:
Other names:
Occupation:
Sex:
Date of birth:
Where born: (town or locality)
Surname:
Other names:
Occupation:
Sex:
Date of birth:
Where born: (town or locality)
(State or country)
(Complete as in general form of minute of order under Part 41 rule 11, Form 51)
Form 89A: Ins 27.10.1972. Subst 29.3.1974. Am 1.7.1977; 24.7.1992. Subst 21.7.2000.
Form 89B
(Notice of claim for provision under the Family Provision Act 1982)
P 77, r 63.
NOTICE OF CLAIM
The plaintiff has applied to the Court under the Family Provision Act 1982, for an order for provision for him out of the estate of (name) deceased who died on 19 .
If you are entitled to, and wish to apply for, an order for provision for you out of that estate you must apply within a period prescribed by the Act or allowed by the Court. If you do not, before the Court deals with the plaintiff’s application, apply for an order for provision for you out of that estate, the Court may deal with the plaintiff’s application without regard to any possible application by you.
Dated:
(signature) | |
Solicitor for the administrator (address for service) (or as the case may be) |
Form 89B: Ins 22.8.1975. Rep 1.7.1977. Ins 8.7.1983. Am 19.7.1985.
Form 89C
Form 89C: Ins 21.12.1984. Am 20.7.1990; 19.7.1996. Rep 24.7.1998.
Form 89D
(Defendant’s notice under s. 31 (5) of the Confiscation of Proceeds of Crime Act 1989)
P 77, r 87A.
The defendant (name) accepts the allegations in the statement, a copy of which is annexed hereto marked “A”, (where applicable) except so far as it is alleged that: |
(set out the allegations)
as to which the defendant says:
(set out the matter on which the defendant proposes to rely).
(set out the matter on which the defendant proposes to rely).
Dated:
Defendant
Form 89D: Ins 12.7.1985. Rep 24.10.1986. Ins 14.12.1990.
Form 89E
(Prosecution’s notice under s. 31 (5) of the Confiscation of Proceeds of Crime Act 1989)
P 77, r 87A.
The prosecution accepts the allegations in the statement, a copy of which is annexed hereto marked “A”, (where applicable) except so far as it is alleged that:
(set out allegations)
Dated: | Solicitor for Public Prosecutions (or as the case may require) |
Form 89E: Ins 12.7.1985. Rep 24.10.1986. Ins 14.12.1990.
Form 89F
(Notice under section 44 (2) of the Confiscation of Proceeds of Crime Act 1989)
P 77, r 87B.
To: (name and address):
Where the notice is added to the minute of order:
On (date) the Court made the above order.
Where the notice is added to the minute of order:
On (date) the Court made the above order.
OR
Where the order is annexed:
On (date) the Court made the order annexed hereto, and make an annexure note on the minute of order.
On (date) the Court made the order annexed hereto, and make an annexure note on the minute of order.
Form 89F: Ins 23.5.1986. Subst 15.12.1989; 14.12.1990.
Form 89G
(Certificate under section 85 (1) of the Confiscation of Proceeds of Crime Act 1989)
P 77, r 87G.
I certify that this copy order is a true sealed copy of an order of the (name of court which made the order).
OR
I certify that this copy amendment to an order is a true sealed copy of an amendment to an order of the (name of court which made the order).
(as the case may require)
Dated:
(signature)
Form 89G: Ins 23.5.1986. Subst 15.12.1989; 14.12.1990.
Form 89H
(Order under s. 3 (1) of the Restricted Premises Act 1943)
P 77, r 91.
ORDER
THE COURT DECLARES, pursuant to section 3 (1) of the Restricted Premises Act 1943, the premises described below to be premises to which Part 2 (Disorderly houses) of that Act applies.
(describe the premises)
(Complete as in general form of minute of order, Form 51)
(Complete as in general form of minute of order, Form 51)
Form 89H: Ins 13.3.1987. Subst 15.12.1989. Am 28.5.2004.
Form 89I
(Order under s. 4 (1) or s 14 (3) of the Restricted Premises Act 1943)
P 77, r 91.
ORDER
THE COURT ORDERS that the declaration made under section 3 (1) of the Restricted Premises Act 1943 on (date) in respect of the premises described below be rescinded.
(describe the premises)
(Complete as in general form of minute of order, Form 51)
(Complete as in general form of minute of order, Form 51)
Form 89I: Ins 13.3.1987. Subst 15.12.1989. Am 23.2.1996; 28.5.2004.
Form 89J
(Notice of declaration under s. 5 (1) of the Restricted Premises Act 1943)
P 77, r 91.
(No heading or title)
On (date), pursuant to the Disorderly Houses Act 1943, the Supreme Court declared the premises described below to be premises to which Part 2 (Disorderly houses) of that Act applies.
(describe the premises)
(name) Superintendent or Inspector of Police. |
Form 89J: Ins 13.3.1987. Am 28.5.2004.
Form 89K
(Notice of rescission under s. 5 (1) of the Restricted Premises Act 1943)
P 77, r 91.
(No heading or title)
On (date) the Supreme Court, on the application of the undersigned, rescinded an order made pursuant to the Restricted Premises Act 1943 on (date) declaring the premises described below to be premises to which Part 2 (Disorderly houses) of that Act applies.
(describe the premises)
(name)
Applicant.
Applicant.
Form 89K: Ins 13.3.1987. Am 28.5.2004.
Form 89KA
P 77, r 133A
(No heading or title)
APPLICATION TO THE SUPREME COURT FOR A DIRECTION THAT THE HEARING OF BAIL PROCEEDINGS OR OF OTHER PRELIMINARY CRIMINAL PROCEEDINGS NOT BE CONDUCTED BY VIDEO LINK
Important information about this application
Hearings in the Supreme Court at Sydney of bail proceedings and of other preliminary criminal proceedings relating to a person who is in custody, but is not in a detention centre within the meaning of the Children (Detention Centres) Act 1987, will be conducted by means of video link facilities without your personal attendance at Court, unless the Court in the interests of justice otherwise orders.
Video link facilities allow two-way audio and visual communication of television standard between the Court and correctional centres, including private communication between you and your legal representatives.
If you wish to apply for an order that the hearing of the bail application or preliminary criminal proceedings not be conducted by video link facilities, you must complete this form and file it and any supporting documents. If you are the person in custody this form (and any annexure) can be filed by forwarding it by facsimile to the Criminal Registry on (02) 9230 8060.
The application for a direction that video link facilities not be used:
(a) will be dealt with before the application relating to bail or the other preliminary criminal proceedings are to be heard, and
(b) may be dealt with by the Court in the absence of the public and without any attendance by the person who is in custody or on behalf of the person who is in custody.
Application
Name of person in custody (full name):
Date of birth of person in custody (if known):
Place person is being kept in custody (at the moment, if known):
Date of birth of person in custody (if known):
Place person is being kept in custody (at the moment, if known):
Supreme Court file number (if known):
Nature of proceedings (tick appropriate box): | bail application □ | |
arraignment □ | ||
I am (tick appropriate box): | the person in custody □ | |
other (specify) □ | ||
The reasons why this bail application or this other preliminary criminal proceeding should not in the interests of justice be conducted by video link, and why I should appear physically before the court, are (state below):
Signed:Print full name:
Date:
Address:
Telephone number:
Form 89KA: Ins 23.11.2001.
Form 89L
(Certificate under s. 75 or s 77F of the Victims Compensation Act 1996)
P 77, r 137A.
CERTIFICATE
1.
A direction was made by this Court in these proceedings on (date) under section {71 or 77B} of the Victims Compensation Act 1996 that a sum be paid to the registrar of this Court out of the property of (name).
2.
The amount required by the direction that has not, as at the date hereof, been paid to the registrar of this Court is $ (amount).
Dated: (date)
Registrar |
Form 89L: Ins 25.2.2000.
Form 90
(Summons for probate, administration or resealing)
P 78, r 8.
SUMMONS
The plaintiff (name) the executor named in the will dated 1 July 1971 (where applicable and 2 codicils dated (date) and (date)) of (name) late of (place) labourer deceased claims that probate of the will (where applicable and 2 codicils) be granted to him.
or
The plaintiff (name) a beneficiary named in the will dated 1 July 1971 (where applicable and 2 codicils dated (date) and (date)) of (name) late of (place) labourer deceased claims that administration with the will (where applicable and 2 codicils) annexed of the estate of the deceased be granted to him (where applicable (name) the executor named in the will having renounced probate) (where applicable and that the administration bond be dispensed with).
or
The plaintiff (name) the (relationship to the deceased, for example widow or de facto spouse) of (name) late of (place) labourer deceased claims that administration of the estate of the deceased be granted to her (where applicable and that the administration bond be dispensed with).
or
The plaintiff (name) (where applicable as attorney of (name)) claims that probate of the will dated 1 July 1971 (or where applicable letters of administration of the estate) of (name) late of (place) labourer granted by (description of court) to (name) be sealed with the seal of this Court (where applicable and that the administration bond be dispensed with).
or
(Application for administration under s. 41A of the Probate Act)
The plaintiff (name) claims that administration in respect of (name) late of (place), (occupation) be granted to him for the purposes only of an application being made under the Family Provision Act 1982 by him (or him on behalf of (name)).
(If a declaration under section 18A of the Probate Act is claimed, alter the claim accordingly.)
The proceedings commenced by this summons will be dealt with by a Judge or a registrar out of court. However, the Court may, of its own motion, appoint a date for the hearing in Court of the proceedings.
Plaintiff: (name, address and occupation)
Plaintiff’s address for service: (Part 9 rule 6, Part 78 rule 8)
Filed: (date)
Plaintiff’s address for service: (Part 9 rule 6, Part 78 rule 8)
Filed: (date)
(signature) Plaintiff’s Solicitor. |
Form 90: Ins 30.6.1972. Am 23.12.1977; 25.5.1984; 23.8.1985 (see erratum 6.9.1985); 13.12.1991; 20.8.1999; 13.6.2003.
Form 91
P 78, r 10.
(Notice of intended application for probate.)
In the Supreme Court of New South Wales Equity Division.
After 14 days from publication of this notice an application for probate of the will dated 1 July 1971 (where applicable, and 2 codicils dated (date) and (date) of (name in capitals) late of (place), labourer, will be made by (name). Creditors are required to send particulars of their claims upon his estate to (name) solicitors (address) (and, where applicable, or their agents, name, address).
(Form 4 does not apply.)
Form 91: Ins 30.6.1972. Am 19.2.1999.
Form 92
P 78, r 10.
(Notice of intended application for administration.)
In the Supreme Court of New South Wales Equity Division.
After 14 days from publication of this notice and application for administration (or where applicable administration with the will dated 7 May 1970, annexed) of the estate of (name in capitals) late of (place), labourer, will be made by (name) the (relationship to deceased or capacity of applicant). Creditors are required to send particulars of their claims upon his estate to (name) solicitors (address) (and, where applicable, or their agents, name, address).
(Form 4 does not apply.)
Form 92: Ins 30.6.1972. Am 19.2.1999.
Form 92A
P 78, r 10.
(Notice of intended application for administration under s. 41A of the Probate Act)
In the Supreme Court of New South Wales Equity Division.
After 14 days from publication of this notice an application for administration in respect of (name in capitals) late of (place), (occupation) will be made by (name) for the purposes only of an application being made under the Family Provision Act 1982, by him (or him on behalf of (name)).
(Solicitor’s name and address.)
(Form 4 does not apply.)
Form 92A: Ins 25.5.1984. Am 20.8.1999.
Form 93
P 78, r 10.
(Notice of intended application for resealing.)
In the Supreme Court of New South Wales Equity Division.
After 14 days from publication of this notice an application will be made that the Probate of the will and codicils (or where applicable Letters of administration of the estate) of (name in capitals) late of (place) granted by (court) to (name) be sealed with the seal of this Court. Creditors are required to send particulars of their claims upon his estate to (name) solicitors (address) (and, where applicable, or their agents, name, address).
(Form 4 does not apply.)
Form 93: Ins 30.6.1972. Am 19.2.1999.
Form 94
P 78, r 14.
RENUNCIATION OF PROBATE
I, (name) of (address of place of residence) (labourer) declare—
1. I am the executor (or one of the executors or as the case may be) appointed by the will dated 1 July 1971 (where applicable), and 2 codicils dated (date) and (date) of (name) late of (place) labourer who died on (date).
2. I have not intermeddled in the estate of the deceased.
3. I renounce all right to probate of the will (where applicable and codicils) and to all trusts, powers and authorities expressed by the will (where applicable and codicils) to be made or given to me.
Dated: (date).
Signed in the | } |
presence of |
Form 94: Ins 30.6.1972.
Form 95
P 78, r 15.
AFFIDAVIT OF ATTESTING WITNESS
On 7 May 19 I (name, address and occupation) say on oath—
1. On (date) the document annexed and marked “A” was signed as now appears on the document by (name) the deceased as his will in the presence of me and of (name of other witness) present at the same time and then at the request of the deceased attested and subscribed by us in his presence and in the presence of each other.
2. The signatures (set out) and (set out) subscribed as witnesses to the will are respectively those of me and (name of other witness).
Sworn at | } |
before me |
Form 95: Ins 30.6.1972.
Form 96
Forms 97, 98, 104, 106.
ANNEXURE “.....”
INVENTORY OF PROPERTY
of the estate of (name) of (place, occupation), deceased.
Property owned solely by deceased
Description | Estimated or known value |
(Describe each item sufficiently to identify it) | $ (Amount) (Total) |
Property owned by deceased as joint tenant with another or others
Description | Particulars of other joint owner | Estimated or known value |
(Describe each item sufficiently to identify it) | (Name and address of other joint owner) | $ (Amount) (Total) |
This is Annexure “.....” to the affidavit of (name) sworn at (place) this (date) before me.
(signatures of the applicant and the person before whom the affidavit is sworn)
Form 96: Ins 30.6.1972. Am 23.8.1985 (see erratum 6.9.1985). Subst 19.8.1994.
Form 97
P 78, r 24 (1) (a).
AFFIDAVIT OF EXECUTOR
On (date) I, (name, address and occupation), say on oath—
1. My full residential address is (address).
2. The document dated (date) and signed in the margin by me and by the person before whom this affidavit is sworn is, I believe, the last will of (name), late of (place, occupation), the deceased, and I am not aware of the existence of any other document purporting to embody the testamentary intentions of the deceased [where applicable except for (specify document)].
3. My means of identifying the will are (state these).
4. The attesting witnesses to the will are (name) and (name).
5. The deceased died on (date) aged (number) years and I believe that the deceased is (name in certificate of registration of death) referred to in the certificate of registration of death which is annexed and marked “A”.
6. The deceased { did or did not} marry after the will was made [where applicable namely to (name) on (date)].
7. The deceased left assets within New South Wales.
8. I am the executor named in the will and I am over 18 years of age.
9. [Where applicable (name) one of the executors named in the will { died on (date) as evidenced by the death certificate annexed and marked “.....”or renounced probate of the will on (date)}.]
10. If I am granted probate of the will of the deceased—(a) I will administer the estate according to law; and(b) I will—(i) verify and file; ormy accounts relating to the estate of the deceased within 12 months from the date of grant [where neither paragraph (a) nor (b) of section 85 (1AA) of the Probate Act applies and the whole of the estate does not pass to one or more charities or public benevolent institutions, add if so required by the Court].(ii) verify, file and pass,
11. [Where the deceased resided at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a newspaper circulating in the district where the deceased resided at the date of the deceased’s death, evidenced by the tear sheet annexed and marked “.....”.]or[Where the deceased did not reside at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a Sydney daily newspaper, as evidenced by the tear sheet annexed and marked “.....”.]
12. The names, ages and entitlements of the persons entitled in distribution of the estate of the deceased are-(state these).
13. A statement of all assets of the deceased of which I am presently aware is annexed and marked “..”. I will disclose to the Court any other asset which comes to my notice.(The statement shall be in Form 96)
14. The liabilities of the deceased of which I am presently aware are as follows—LIABILITIES
(date)
(name)
(description)
(amount)
(total)
(amount)
(total)
15. The estate has a gross value of $ (amount) and a net value of $ (amount).
16. I am not aware of any circumstances which raise doubt as to my entitlement to a grant of probate of the will of the deceased [where applicable except for (specify matter)].
Sworn at | } |
before me |
Form 97: Ins 30.6.1972. Am 24.12.1981; 25.8.1989; 13.12.1991. Subst 19.8.1994. Am 25.11.1994; 25.8.1995; 22.11.1996.
Form 98
P 78, rr 24A (2) (a), 25 (2) (a), 25A (2) (a).
AFFIDAVIT OF APPLICANT FOR ADMINISTRATION
On (date) I, (name, address and occupation) say on oath—
1. My full residential address is (address).
2. I am (state relationship to deceased) of (name, occupation) late of (place) who died on (date) aged (number) years and I believe that the deceased is (name in certificate of registration of death) referred to in the certificate of registration of death which is annexed and marked “A”.
3. I believe that the deceased did not leave a will or document purporting to embody the testamentary intentions of the deceased [where applicable except for (specify document)].
4. (State what searches have been made for a will or document purporting to embody the testamentary intentions of the deceased.)
5. The names, ages, relationship to the deceased and entitlements of the persons entitled in distribution of the estate of the deceased are—(state these).
6. (State the facts establishing that the persons named in paragraph 5 are the persons entitled in distribution of the estate. Annex appropriate certificate evidence).
7. The deceased left assets within New South Wales.
8. I am not an undischarged bankrupt, I have not assigned or encumbered my interest in the estate and I am over 18 years of age.
9. If I am granted administration of the estate of the deceased—(a) I will administer the estate according to law; andmy accounts relating to the estate of the deceased within 12 months from the date of grant [where neither paragraph (a) nor (b) of section 85 (1AA) of the Probate Act applies, add if so required by the Court].(b) I will—(i) verify and file; or(ii) verify, file and pass,
10. [Where the deceased resided at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a newspaper circulating in the district where the deceased resided at the date of { his or her} death, evidenced by the tear sheet annexed and marked “B”.]or[Where the deceased did not reside at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a Sydney daily newspaper, as evidenced by the tear sheet annexed and marked “B”.]
11. A statement of all assets of the deceased of which I am presently aware is annexed and marked “C”. I will disclose to the Court any other asset which comes to my notice.(The statement shall be in Form 96)
12. The liabilities of the deceased of which I am presently aware are as follows—LIABILITIES
(date)
(name)
(description)
(amount)
(total)
(amount)
(total)
13. The estate has a gross value of $ (amount) and a net value of $ (amount).[Where Part 78 rule 25A applies
14. The names, ages and relationship to the deceased of the persons who, if the deceased had not left a de facto spouse*, would have been entitled in distribution of the estate are—(state these).
15. (State the facts establishing that the persons named in paragraph 14 are the persons who would have been entitled in distribution of the estate. Annex appropriate certificate evidence.)]
16. I am not aware of any circumstances which raise doubt as to my entitlement to a grant of administration of the estate of the deceased [where applicable except for (specify matter)].
Sworn at | } |
before me |
(* If deceased died before the commencement of Schedule 2.25 of the Property (Relationships) Legislation Amendment Act 1999, substitute de facto wife or de facto husband.)
Form 98: Ins 30.6.1972. Am 25.5.1984; 23.8.1985 (see erratum 6.9.1985); 26.9.1986. Subst 13.12.1991; 19.8.1994. Am 23.9.1994; 25.8.1995; 22.11.1996. Subst 20.8.1999.
Form 98A
(Affidavit showing deceased had no de facto spouse)
P 78, rr 24A (2) (c).
On (date) I (name, address and occupation) say on oath—
State the facts showing the competency of the deponent to make this affidavit, for example—
1. I am the widow of the deceased.
2. I lived with the deceased up to the time of his death and for a continuous period of ..... years beforehand.
State the facts complying with Part 78 rule 24A (2) (c) for example, where the widow is the deponent and the following is true—
3. The deceased did not leave any person who at the time of his death was a partner with him in a de facto relationship within the meaning of section 4 of the Property (Relationships) Act 1984.
4. I am aware that sections 4 and 5A of the Property (Relationships) Act 1984 are as follows:
(Here set out the sections)
Sworn at | } |
before me |
Form 98A: Ins 24.12.1981. Am 23.8.1985 (see erratum 6.9.1985). Rep 19.8.1994. Ins 20.8.1999. Am 21.3.2003.
Form 99
(Affidavit showing deceased had no de facto spouse)
P 78, r 25 (2) (f).
On 7 May 19 I (name, address and occupation) say on oath—
(State the facts showing the competency of the deponent to make this affidavit, for example—
1. I am the widow of the deceased.
2. I lived with the deceased up to the time of his death and for a continuous period of ..... years beforehand.)
(State the facts complying with Part 78 rule 25 (2) (f) for example, where the widow is the deponent and the following is true—
3. The deceased did not leave any person who at the time of his death was a partner with him in the relationship of a man and a woman living together as husband and wife on a domestic basis although not married to each other).
Sworn at | } |
before me: |
Form 99: Ins 30.6.1972. Am 24.12.1981. Rep 19.8.1994.
Form 99 (previously Form 100A): Ins 23.8.1985. Renumbered 19.8.1994. Am 23.9.1994; 21.3.2003.
Form 99A: Ins 24.12.1981. Am 23.8.1985 (see erratum 6.9.1985). Rep 19.8.1994.
Form 100: Ins 30.6.1972. Am 1.7.1977; 24.12.1981; 23.8.1985; 25.8.1989; 13.12.1991. Rep 19.8.1994.
Form 100A: Renumbered (as Form 99) 19.8.1994.
Form 100B: Ins 23.8.1985. Am 25.8.1989; 13.12.1991. Rep 19.8.1994.
Forms 99A–100B
Form 101
P 78, rr 24A, 25, 25A.
CONSENT TO ADMINISTRATION
I, (name) of (place)labourer am (state relationship) of (name) late of (place)labourer. I am over 18 years of age. I am not an undischarged bankrupt and I have not assigned or encumbered my interest in the estate of the deceased.
I consent to letters of administration being granted to (name) who is (state relationship) of the deceased (where applicable and to administration bond being dispensed with).
[Where the estate or part is required to be held in trust for a de facto spouse* of the deceased, add— |
I have read the Affidavit of the Applicant for Administration and understand how the entitlement of the de facto spouse* affects the distribution of the estate of the deceased.]
Dated: (date)
Signed in the presence | } |
of |
[* If deceased died before the commencement of Schedule 2.25 of the Property (Relationships) Legislation Amendment Act 1999, substitute de facto wife or de facto husband.]
AFFIDAVIT OF WITNESS TO CONSENT
On (date) I, (name, address and occupation) say on oath—
1. The above document was signed in my presence on (date) by (name).
2. The signatures (set these out) are respectively my signature and that of (name of person consenting).
Sworn at | } |
before me |
Form 101: Ins 30.6.1972. Am 23.8.1985 (see erratum 6.9.1985); 25.8.1995. Subst 20.8.1999.
Form 102
P 78, rr 24A, 25, 25A, 26, 27.
ADMINISTRATION BOND
We (state the name, address and occupation of the proposed administrator and of each surety to the bond) jointly and severally covenant to pay to Her Majesty the Queen and her successors $ (penalty of bond) if administration of the estate of (name) late of (place) labourer deceased is granted by the Supreme Court of New South Wales to the said (name of proposed administrator) and any one or more of the following occurs, namely:
1. he does not collect, get in and administer the estate according to law;
2. he does not pay out of the estate the just debts of the deceased;
3. he prefers any debt of the deceased to him;
(and, where the deceased died before 31 December 1981)
4. he does not file or file and pass his accounts relating to the estate within 12 months after the grant and whenever ordered to do so by the Court.
(or, where the deceased died on or after 31 December 1981)
5. he does not verify and file or verify, file and pass his accounts relating to the estate (where section 85 (1AA) of the Probate Act (which relates to certain executors, etc.) applies) within 12 months after the grant or as the Court may order in respect of him (or, where that subsection does not apply) as the Court may order in respect of him.Dated: (date)
Signed sealed and delivered etc.
Form 102: Ins 30.6.1972. Am 24.12.1981; 23.8.1985 (see erratum 6.9.1985); 20.8.1999.
Form 103
P 78, rr 24A, 25, 25A, 26.
AFFIDAVIT OF SURETY
On 7 May 19 I (name, address and occupation) say on oath—
1. My full residential address is (state this).
2. I am one of the sureties for (name) the intended administrator of the estate of (name) late of (place) labourer.
3. I am possessed of property to the value of $ (state value) after deduction of all my just debts and every sum for which I am bail or surety in any civil or criminal matter, action or proceeding.
4. My property consists of (set out in detail the location and nature of assets and whether held severally or jointly with any other person, and state particulars of encumbrances).
Sworn at | } |
before me |
Form 103: Ins 30.6.1972. Am 23.8.1985 (see erratum 6.9.1985); 20.8.1999.
Form 103A
(Affidavit relating to de facto relationships)
P 78, r 25A (2) (d).
AFFIDAVIT
On 19.. I (name, address and occupation) say on oath—
1. The deceased left (or did not leave) a wife (or husband).
2. At the time of death of the deceased (and, where either s 61B (3A) (a) of the Probate Act applies (deceased leaving a husband or wife) or s 61B (3B) (a) of the Probate Act applies (no husband or wife but issue) add and for a continuous period of not less than two years prior to the death of the deceased) (a) I was the sole partner in the relationship with the deceased of a man and a woman living together as husband and wife on a bona fide domestic basis although not married to each other and (b) I was not a partner in any other relationship of a man and a woman living together as husband and wife on that basis although not married to each other (and, where the deceased left a wife or husband, add and (c) the deceased did not, during the whole or any part of that period, live with the person to whom he (or she) was married).
3. (State the facts showing that the deponent is a person for whom the estate of the deceased is required to be held in trust, including dates and periods of the relationship, places where the partners lived together, financial and property matters, children and so on).
Sworn at | } |
before me: |
Form 103A: Ins 23.8.1985. Am 25.10.1996.
Form 103AA
(Affidavit relating to de facto relationships)
P 78, r 25A (2) (d).
AFFIDAVIT
On (date) I (name, address and occupation) say on oath—
1. The deceased { left or did not leave} a { husband or wife}
2. At the time of death of the deceased [and, where either s 61B (3A) (a) of the Probate Act applies (deceased leaving a husband or wife) or s 61B (3B) (a) of the Probate Act applies (no husband or wife but issue) add and for a continuous period of not less than two years prior to the death of the deceased]—(a) I was the sole partner with the deceased in a de facto relationship; and[Where the deceased left a wife or husband, add; and(b) I was not a partner in any other de facto relationship.(c) the deceased did not, during the whole or any part of that period, live with the person to whom the deceased was married.]
3. (State the facts showing that the deponent is a person for whom the estate of the deceased or part thereof is required to be held in trust, including dates and periods of the relationship, places where the partners lived together, financial and property matters, children and so on).
4. In this affidavit “de facto relationship” has the same meanings as it has in the Property (Relationships) Act 1984. I am aware that sections 4 and 5A of that Act are as follows:
(Here set out the sections)
Sworn at | } |
before me |
Form 103AA: Ins 20.8.1999.
Form 103B
(Notice, where the deceased leaves a de facto wife or de facto husband or de facto spouse)
P 78, r 25A (3) (b) (iv).
NOTICE OF APPLICATION FOR ADMINISTRATION
To: (name and address:)
After (42 days or 3 months: see Part 78, rule 25A (3) (b)) from the date of service of this notice on you, an application for a grant of administration of the estate of the deceased will be made by (name). There is a claim that the deceased left a de facto spouse*, (name). Served on you with this notice are—
(a) affidavits setting out facts relating to the de facto relationship claimed and other matters;
(b) an affidavit showing the assets and liabilities of the estate and the persons who are entitled in distribution of the estate and who would, if the deceased had not left a de facto spouse* have been so entitled.
If you do not oppose the application, the Court may grant administration to the applicant who may then be at liberty to distribute in due course to the de facto spouse* the estate or part of the estate to which she is entitled.
If the deceased did not leave a de facto spouse* and you were entitled to the estate or part, you may have been entitled to a grant of administration of the estate of the deceased.
Dated:
(signature) Solicitor for the applicant. (address for service) (or as the case may be) |
(* If deceased died before the commencement of Schedule 2.25 of the Property (Relationships) Legislation Amendment Act 1999, substitute de facto wife or de facto husband.) |
Form 103B: Ins 23.8.1985. Subst 20.8.1999.
Form 104
P 78, r 26.
AFFIDAVIT OF APPLICANT FOR ADMINISTRATION WITH THE WILL ANNEXED
On (date) I, (name, address and occupation), say on oath—
1. My full residential address is (address).
2. The document dated (date) and signed in the margin by me and by the person before whom this affidavit is sworn is, I believe, the last will of (name), late of (place, occupation), the deceased, and I am not aware of the existence of any other document purporting to embody the testamentary intentions of the deceased [where applicable except for specify document].
3. My means of identifying the will are (state these).
4. The attesting witnesses to the will are (name) and (name).
5. The deceased died on (date) aged (number) years and I believe that the deceased is (name in certificate of registration of death) referred to in the certificate of registration of death which is annexed and marked “A”.
6. The deceased { did or did not} marry after the will was made.
7. The deceased left assets within New South Wales.
8. I am not an undischarged bankrupt, I have not assigned or encumbered my interest in the estate of the deceased and I am over 18 years of age.
9. [Where applicable (name) the executor named in the will { died on (date) as evidenced by the death certificate annexed and marked “.....”or renounced probate of the will on (date)}.]
10. The names, ages and entitlements of the persons entitled in distribution of the estate are (state these) [where the names of all the persons entitled do not appear on the face of the will, state the facts establishing that the persons named in this paragraph are the persons entitled].
11. If I am granted administration of the estate of the deceased—(a) I will administer the estate according to law; and(b) I will—(i) verify and file; ormy accounts relating to the estate of the deceased within 12 months from the date of grant [where neither paragraph (a) nor (b) of section 85 (1AA) of the Probate Act applies and the whole of the estate does not pass to one or more charities or public benevolent institutions, add if so required by the Court].(ii) verify, file and pass,
12. [Where the deceased resided at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a newspaper circulating in the district where the deceased resided at the date of his or her death, evidenced by the tear sheet annexed and marked “..........”.]or[Where the deceased did not reside at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a Sydney daily newspaper, as evidenced by the tear sheet annexed and marked “..........”.]
13. A statement of all assets of the deceased of which I am presently aware is annexed and marked “..........”. I will disclose to the Court any other asset which comes to my notice.(The statement shall be in Form 96)
14. The liabilities of the deceased of which I am presently aware are as follows—LIABILITIES
(date)
(name)
(description)
(amount)
(total)
(amount)
(total)
15. The estate has a gross value of $ (amount) and a net value of $ (amount).
16. I am not aware of any circumstances which raise doubt as to my entitlement to a grant of administration of the estate of the deceased [where applicable except for (specify matter)].
Sworn at | } |
before me |
Form 104: Ins 30.6.1972. Am 24.12.1981 (see erratum 19.2.1982); 23.8.1985; 25.8.1989; 13.12.1991. Subst 19.8.1994. Am 23.9.1994; 25.8.1995; 22.11.1996.
Form 105
P 78, r 26.
RENUNCIATION IN FAVOUR OF PUBLIC TRUSTEE
I, (name) of (address of place of residence) labourer declare—
1. I am the executor (or one of the executors or as the case may be) appointed by will dated 1 July 1971 (where applicable and 2 codicils dated (date) and (date) of (name) late of (place) labourer who died on (date)).
2. I have not intermeddled in the estate of the deceased.
3. I renounce all right to probate of the will (where applicable and codicils) and to all trusts, powers and authorities expressed by the will (where applicable and codicils) to be made or given to me.
4. I request the Public Trustee to apply for administration with the will (where applicable and codicils) annexed of the estate.
Dated: (date).
Signed in the | } |
presence of |
Form 105: Ins 30.6.1972.
Form 105A
P 78, r 26A (1) (a).
(Affidavit of applicant for administration for the purposes of the Family Provision Act 1982.)
AFFIDAVIT OF APPLICANT FOR ADMINISTRATION
On (date) I, (name, address and occupation), say on oath—
1. My full residential address is (address) and I am over the age of 18 years.
2. I am (state relationship to deceased) of (name, occupation) late of (place) who died on (date) aged (number) years and I believe that the deceased is (name in certificate of registration of death) referred to in the certificate of registration of death which is annexed and marked “A”.
3. I am not aware of any will or document purporting to embody the testamentary intentions of the deceased.orThe document dated (date) and signed in the margin by me and by the person before whom this affidavit is sworn is a copy of the { last will or document purporting to embody the testamentary intentions} of the deceased.orI believe that the deceased left a { will or document purporting to embody the testamentary intentions of the deceased} but no copy of it is available.
4. I am not aware of any proposal by any other person to make an application for a grant.orI believe that (name) of (address, occupation), proposes to make an application for a grant.
5. [If applicable I intend to make an application under the Family Provision Act 1982 on behalf of (name, address and occupation)].
6. (State the facts showing that—(a) if the plaintiff intends to make an application under the Family Provision Act 1982 on behalf of another person—that person; oris an eligible person within the meaning of the Family Provision Act 1982.)(b) otherwise—the plaintiff,
7. A copy of an affidavit which { has been or will be} sworn and which I intend to file in compliance with Part 77 rule 59 (1) (a)–(d) in the proceedings on the application intended to be made under the Family Provision Act 1982 is annexed and marked “B”.
8. The matters referred to in paragraphs (identify numbers of paragraphs in the lastmentioned annexure relating to the matters mentioned in Part 77 rule 59 (1) (a)–(d)) of annexure “B” are true.
9. [Where the deceased resided at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a newspaper circulating in the district where the deceased resided at the date of his or her death, evidenced by the tear sheet annexed and marked “C”.]or[Where the deceased did not reside at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a Sydney daily newspaper, as evidenced by the tear sheet annexed and marked “C”.]
10. I am not aware of any circumstances which raise doubt as to my entitlement to a grant of administration of the estate of the deceased [where applicable except for (specify matter)].
Sworn at | } |
before me |
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 105A: Ins 25.5.1984. Am 25.8.1989. Subst 19.8.1994. Am 21.10.1994; 25.8.1995.
Form 106
P 78, r 28.
AFFIDAVIT OF APPLICANT FOR RESEALING
On (date) I, (name, address and occupation), say on oath—
1. My full residential address is (address).
2. The deceased died intestate on (date) aged (number) years.orThe deceased died on (date) aged (number) years and left a will dated (date) by which { he or she} appointed { me or (name)} executor.
3. I am not aware of the existence of any document purporting to embody the testamentary intentions of the deceased [where applicable except for { the said will or (specify document)}].
4. {Probate of the will was or Letters of Administration of the estate of the deceased were} granted by (name of court) to { me or (name)} on (date).
5. The grant has not been revoked.
6. The deceased left assets within New South Wales.
7. The names, ages, relationship to deceased and entitlements of the persons entitled in distribution of the estate of the deceased are—(state these).
8. [Where the application is for resealing Letters of Administration I am not an undischarged bankrupt and I have not assigned or encumbered my interest (if any) in the estate.]
9. I am over 18 years of age.
10. I am aware that, if the grant is sealed by this Court, accounts relating to the estate must be—(a) verified and filed; orwithin 12 months after the sealing [where neither paragraph (a) nor (b) of section 85 (1AA) of the Probate Act applies and the whole of the estate does not pass to one or more charities or public benevolent institutions, add if so required by the Court].(b) verified, filed and passed,
11. [Where the deceased resided at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a newspaper circulating in the district where the deceased resided at the date of { his or her} death, evidenced by the tear sheet annexed and marked “A”.]or[Where the deceased did not reside at the date of his or her death in the State Notice of this application was published on (date) in the (name), which is a Sydney daily newspaper, as evidenced by the tear sheet annexed and marked “A”.]
12. A statement of all assets of the deceased of which I am presently aware is annexed and marked “B”. I will disclose to the Court any other asset which comes to my notice.(The statement shall be in Form 96)
13. The liabilities of the deceased of which I am presently aware are as follows—LIABILITIES
(date)
(name)
(description)
(amount)
(total)
(amount)
(total)
14. The estate has a gross value of $ (amount) and a net value of $ (amount).[Where the application for reseal is made pursuant to a Power of Attorney
15. By Power of Attorney dated (date, name) appointed me { his or her } attorney to apply to this Court to reseal the grant.
16. A certified copy of the Power of Attorney is annexed and marked “C”.
17. I have not received any notice of revocation of the Power of Attorney by death, unsoundness of mind, act of donor or otherwise.]
18. I am not aware of any circumstances which raise doubt as to my entitlement to have the grant sealed by this Court [where applicable except for (specify matter)].
Sworn at | } |
before me |
Form 106: Ins 30.6.1972. Am 24.12.1981 (see erratum 23.7.1982); 13.12.1991. Subst 19.8.1994. Am 25.11.1994; 25.8.1995; 22.11.1996.
Form 106A
P 78, r 28A.
AFFIDAVIT OF ADDITIONAL ASSETS (or LIABILITIES or ASSETS AND LIABILITIES)
On (date) I, (name, address and occupation) say on oath—
1. I am the { executor or (as the case may be)} of the estate of the deceased.
2. {Assets or (as the case may require)} of the deceased not disclosed to the Court before the date of swearing this affidavit are listed below—
(list)
Sworn at | } |
before me |
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 106A: Ins 24.12.1981. Subst 19.8.1994. Am 21.10.1994.
Form 106B
P 78, r 34A.
CONSENT TO DISTRIBUTION OF GIFT
I (name) of (place) (occupation) would benefit directly from the avoidance of the beneficial gift given or made by the will dated (date) of (name of deceased) to (name of interested witness). My benefit would have been (specify the benefit). I am over 18 years of age. I am not an undischarged bankrupt. I have not assigned or encumbered any interest that I may have in the estate of the deceased.
I consent to the distribution of the gift according to the will.
I consent to the distribution of the gift according to the will.
Dated: (date).
Signed in the | } |
presence of |
AFFIDAVIT OF WITNESS TO CONSENT
On 7 May 19..... I (name, address and occupation) say on oath:
1. The above document was signed in my presence on (date) by (name).
2. The signatures (set these out) are respectively my signature and that of (name of person consenting).
}
Form 106B: Ins 25.8.1989.
Form 106CA
P 78, r 34A (1A).
CONSENT TO ORDER
I (name) of (place)(occupation) would receive the following benefit under the will dated (date) of (name of deceased) if the order set out below is not made (specify benefit).
If the order is made my benefit would be (specify benefit).
I am over 18 years of age. I am not an undischarged bankrupt. I have not assigned or encumbered any interest that I may have in the estate of the deceased.
I consent to an order being made that (specify order).
Dated: (date).
Signed in the | } |
presence of |
AFFIDAVIT OF WITNESS TO CONSENT
On (date) I (name, address and occupation) say on oath:
1. The above document was signed in my presence on (date) by (name).
2. The signatures (set these out) are respectively my signature and that of (name of person consenting).
Sworn at | } |
before me |
Form 106CA: Ins 26.4.1996.
Form 106C
P 78, r 34D.
(Notice to interested witness of intention to distribute estate.)
(heading and title.)
NOTICE OF INTENTION TO DISTRIBUTE ESTATE
To (name of interested witness or interested witness’s spouse, as the case requires) (address).
After one month from the date on which this notice is served on you, I, (name), of (address), the executor of the will and codicils (or where applicable administrator of the estate) of (name) late of (place) (occupation) intend to make a distribution of that part of the estate the subject of a beneficial gift to you.
I would make the distribution otherwise than to you on the ground that the gift is void because you (or your spouse) attested the will.
You may, before I make the distribution, take such steps as the law permits to have the gift made not void.
Dated: (date).
(signature)
Form 106C: Ins 25.8.1989.
Form 106D
Consent by Affected Person
P 78, r 34E (1).
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
CONSENT
1.
I, (name) of (place) (occupation) am over the age of 18 years, am not an undischarged bankrupt and have not assigned or encumbered any interest that I may have in the estate of the abovenamed deceased.
2.
I have read and understood copies of the following documents which relate to the application for a grant of probate (or administration) in relation to the estate of the deceased:
(a) Summons (or Statement of Claim);
(b) Affidavit of Executor (or Affidavit of Applicant for Administration); and
(c) (where the informal testamentary document is not annexed to the abovementioned documents a document purporting to embody the testamentary intentions of the deceased which is not executed in accordance with the formal requirements of the Wills, Probate and Administration Act 1898.)
3.
Copies of the documents referred to in paragraph 2 are annexed hereto and marked “A” and “B”(or to “C”if applicable) respectively.
4.
I consent to the Court:
(a) declaring whether it is satisfied that the deceased intended the document (identify informal testamentary document in respect of which consent is given) to constitute:(i) a will of the deceased;(ii) an amendment of a will of the deceased; or(iii) the revocation of a will of the deceased, and
(b) making the declaration in my absence and without my becoming a party to the proceedings or having any opportunity to put forward argument or evidence.
5.
In this consent “will” extends to a testament and to a codicil and to any appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child, and to any other testamentary disposition.
Dated: (date). | ||
Signed in the | } | |
presence of |
AFFIDAVIT OF WITNESS TO CONSENT
On (date), I (name, address and occupation) say on oath:
1. The above document was signed in my presence on (date) by (name).
2. The signatures (set these out) are respectively my signature and that of (name of person consenting).
Sworn at | } |
before me | |
Form 106D: Ins 13.12.1991. Am 25.8.1995; 19.2.1999.
Form 106E
P 78, r 34E (1).
(Notice to Affected Person)
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
NOTICE
To (name and address)
1.
An application for grant of probate (or administration) has been made by me (or us) in respect of the estate of the abovenamed deceased. Copies of the Summons (or Statement of Claim) and Affidavit of Executor (or Affidavit of Applicant for Administration) are annexed and marked “A” and “B” respectively.
2.
A copy of a document purporting to embody the testamentary intentions of the deceased, which is not executed in accordance with the formal requirements of the Wills, Probate and Administration Act 1898, is annexed hereto and marked with the letter “C”(or as the case may be). The Court will decide whether the lastmentioned document is:
(a) a will of the deceased;
(b) an amendment of a will of the deceased; or
(c) the revocation of a will of the deceased.
3.
In the preceding paragraph “will” extends to a testament and to a codicil and to any appointment by will or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament or devise of the custody and tuition of any child and to any other testamentary disposition.
4.
Unless the prescribed form of notice of your appearance is received in the Registry within 14 days after service of this notice upon you (or, if this notice is served outside New South Wales and the Australian Capital Territory, within 28 days of service of this notice upon you), the Court may hear and determine the proceedings in your absence with such consequences as may ensue according to law.
5.
Upon filing an appearance you will become a defendant to the proceedings in so far as they relate to the declaration by the Court as to the effect of the document referred to in paragraph 2.
Plaintiff: (name, address and occupation)
Plaintiff’s address for service: (Part 9 rule 6)
Dated: (date)
Plaintiff’s address for service: (Part 9 rule 6)
Dated: (date)
(Signature) Plaintiff’s Solicitor |
Form 106E: Ins 13.12.1991. Am 25.8.1995; 19.2.1999.
Form 106F
P 78, r 34E (3).
(Notice to Caveator)
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
NOTICE
To (name and address)
1.
An application for grant of probate (or administration) has been made by me (or us) in respect of the estate of the abovenamed deceased. Copies of the Summons (or Statement of Claim) and Affidavit of Executor (or Affidavit of Applicant for Administration) are annexed and marked “A” and “B” respectively.
2.
You have lodged a caveat under rule 62A of the Supreme Court Rules 1970 in respect of the estate of the deceased.
3.
Unless the prescribed form of notice of your appearance is received in the Registry within 14 days after service of this notice upon you (or, if this notice is served outside New South Wales and the Australian Capital Territory, within 28 days of service of this notice upon you), the caveat will lapse and the Court may hear and determine the proceedings in your absence with such consequences as may ensue according to law.
4.
Upon filing an appearance you will become a defendant to the proceedings in respect of such aspects of the proceedings as the Court directs.
Plaintiff: (name, address and occupation)
Plaintiff’s address for service: (Part 9 rule 6)
Dated: (date)
Plaintiff’s address for service: (Part 9 rule 6)
Dated: (date)
(Signature) Plaintiff’s Solicitor |
Form 106F: Ins 13.12.1991. Am 25.8.1995; 20.8.1999.
Form 107
Form 107: Ins 30.6.1972. Am 23.12.1977. Rep 13.6.2003.
Form 108
P 78, rr 46, 54.
(Request for issue of citation.)
(To be set out in accordance with Form 1)
In the Supreme Court
of New South Wales
Equity Division
Probate
of New South Wales
Equity Division
Probate
Estate of (name) late of | |
(place) labourer |
REQUEST FOR ISSUE OF CITATION
I request that a citation do issue to each of (name of each person to be cited) to take probate of the will dated (date) (or where applicable pray for administration of the estate) of (name) late of (place) labourer.
(Where applicable) I request that the time limited for (name) to answer the citation be (number) days after service on him of the citation.
Person applying: (name, address and occupation)
Filed: (date)
Filed: (date)
(signature) Solicitor for person applying |
or
(Title, etc., as in originating process)
I request that a citation to see these proceedings do issue to each of (name of each person to be cited)
Party applying: (name)
Filed: (date)
Party applying: (name)
Filed: (date)
(signature) Solicitor for party applying |
Form 108: Ins 30.6.1972. Am 23.12.1977; 19.2.1999.
Form 109
P 78, r 51.
(Citation to pray for administration.)
(To be set out in accordance with Form 1)
In the Supreme Court
of New South Wales
Equity Division
Probate
of New South Wales
Equity Division
Probate
Estate of (name) late of | |
(place) labourer |
CITATION TO PRAY FOR ADMINISTRATION
To (name)
This citation is issued at the request of (name) of (address) labourer who has filed in this Court an affidavit by him stating that—
1. (name) late of (place) labourer died at (place) on (date);
2. he believes that the deceased died without leaving a will or document purporting to embody the testamentary intentions of the deceased (or where applicable he believes that the deceased left a will, a copy of which is annexed and marked “A”);
3. (where applicable) No executor was appointed by the will (or where applicable (name) the executor appointed by the will has renounced probate or where applicable (name) the executor appointed by the will died on (date));
4. he is (state relationship to the deceased) of the deceased (or where applicable he is a beneficiary under the will or where applicable he is a creditor of the deceased).
You are cited to pray for administration of the estate of the deceased. If you wish to comply with this citation you must—
1. within 14 days after service on you of this citation (or if this citation is served on you outside New South Wales within 3 months after service of it on you) file in the registry of this Court an answer stating that you intend to apply to the Court for a grant to you of administration of the estate of the deceased; and
2. With reasonable promptness commence proceedings in this Court for a grant to you of administration of the estate of the deceased and pursue those proceedings diligently.
If you do not comply with this citation the Court may grant administration of the estate of the deceased to (name) without further notice to you in your absence.
Dated: (date)
By the Court Registrar |
Form 109: Ins 30.6.1972. Am 23.12.1977; 25.8.1989; 19.2.1999.
Form 110
(Title, etc., as in citation.)
P 78, r 51.
ANSWER TO CITATION TO PRAY FOR ADMINISTRATION
I (name) of (address) labourer having been served on (date) at (place) with a citation issued at the request of (name) and dated (date) to pray for administration of the estate of (name) late of (place) labourer answer that I intend to apply to this court for a grant to me of administration of the estate of the deceased.
Filed: (date)
(signature) Solicitor for the person cited |
Form 110: Ins 30.6.1972. Am 23.12.1977.
Form 111
P 78, r 52.
(Citation to take probate.)
(To be set out in accordance with Form 1.)
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
CITATION TO TAKE PROBATE
To (name)
This citation is issued at the request of (name) of (address) labourer who has filed in this Court an affidavit by him stating that—
1. (name) late of (place) labourer died at (place) on (date);
2. he believes that the deceased left a will, a copy of which is annexed and marked “A”, which appoints you the executor (or one of the executors) of it;
3. he is a beneficiary under the will (or where applicable) he is (state relationship to the deceased) of the deceased (or where applicable he is a creditor of the deceased).
You are cited to take probate of the will. If you wish to comply with this citation you must—
1. within 14 days after service on you of this citation (or if this citation is served on you outside New South Wales within 3 months after service of it on you) file in the registry of this Court an answer stating that you intend to apply to this Court for a grant to you of probate of the will; and
2. with reasonable promptness commence proceedings in this Court for a grant to you of probate of the will and pursue those proceedings diligently.
If you do not comply with this citation your right in respect of the executorship shall wholly cease, and the representation to the deceased and the administration of his estate shall, without any further renunciation, go, devolve, and be committed in like manner as if you had not been appointed executor.
Dated: (date)
By the Court Registrar |
Form 111: Ins 30.6.1972. Am 23.12.1977; 19.2.1999.
Form 112
P 78, r 52.
ANSWER TO CITATION TO TAKE PROBATE
I, (name) of (address) labourer having been served on (date) at (place) with a citation issued at the request of (name) and dated (date) to take probate of the will, a copy of which is annexed to the citation, of (name) late of (place) labourer answer that I intend to apply to this Court for a grant to me of probate of the will.
Filed: (date)
Solicitor for the person cited (signature) |
Form 112: Ins 30.6.1972. Am 23.12.1977.
Form 113
P 78, r 53.
(Title, etc. as in originating process.)
CITATION TO SEE PROCEEDINGS
To (name)
This citation is issued at the request of (name) of (address) labourer who is the plaintiff (or where applicable a defendant) in proceedings commenced in this Court by statement of claim (or where applicable summons). A copy of the statement of claim (or where applicable summons) is annexed and marked “A”.
(Where a will is referred to in the statement of claim or summons). A copy of the will referred to in the statement of claim (or where applicable summons) is annexed and marked “B”.
The plaintiff has filed an affidavit stating that you have an interest adverse to him in the proceedings in that (state the adverse interest) (or, where the citation is issued pursuant to Part 78 rule 34C) The plaintiff has filed an affidavit stating that you have not consented to the order sought in the statement of claim (or summons).
If you do not answer this citation by entering an appearance in the proceedings before the proceedings are heard and determined, the Court may hear and determine the proceedings in your absence with such consequences as may ensue according to law.
Dated: (date) | By the Court Registrar |
Form 113: Ins 30.6.1972. Am 25.8.1989.
Form 114
P 78, rr 61, 62, 62A.
CAVEAT
In the Supreme Court | Estate of (name) |
of New South Wales | late of (place), (occupation) |
Equity Division | |
Probate |
I require that: (1)
(a) | (Rule 61) (2) no grant of probate or reseal be made in the estate of (name) late of (place), (occupation) who died on (date of death) without prior notice to me. |
or | |
(b) | (Rule 62) (3) any will (or where applicable, the will dated (date) (or otherwise identify the will)) of (name) late of (place), (occupation) who died on (date of death) be proved in solemn form. |
or | |
(c) | (Rule 62A) (4) no grant be made in the estate of (name) late of (place), (occupation) who died on (date of death) unless I am given the opportunity to be heard on the question of whether a declaration as to the Court’s satisfaction under s 18A of the Wills, Probate and Administration Act 1898 should be made in respect of a document made by the deceased. |
My interest is: | (state this) |
Caveator: | (name, address and occupation) |
Caveator’s address for service | (Part 9 rule 6) |
Lodged: | (date) |
(signature) Caveator’s solicitor |
Notes | |
(1) | Delete whichever of (a), (b) or (c) is inapplicable. As to the procedures applicable to the type of caveat filed, see Divisions 5B, 6, 8, 9 and 10 of Part 78. |
(2) | This paragraph is appropriate where the caveator wishes to make a general objection to grant or reseal. |
(3) | This paragraph is appropriate where the caveator wishes to put the admissibility of the will beyond doubt or where the only issue is whether the will was executed in accordance with the formal requirements for execution of wills. A person requiring proof in solemn form may not raise issues such as testamentary capacity, undue influence or fraud but may examine witnesses, and raise questions, as to the proper execution of the will. |
(4) | This paragraph is appropriate where the only issue is whether an appropriate declaration should be made under section 18A of the Wills, Probate and Administration Act 1898 (which relates to testamentary documents and amendments to testamentary documents which are not executed in accordance with the formal requirements of the Act). |
Form 114: Ins 30.6.1972. Am 23.12.1977; 26.4.1996; 19.2.1999. Subst 1.11.2002.
Form 115
P 78, r 64.
NOTICE OF WITHDRAWAL OF CAVEAT
I (name) of (address) withdraw the caveat filed by me on (date) and numbered (number of caveat).
Dated: (date)
(signature)
Caveator or Caveator’s solicitor
Caveator or Caveator’s solicitor
Form 115: Ins 30.6.1972. Am 23.12.1977; 25.8.1989; 26.4.1996; 19.2.1999. Rep 1.11.2002. Ins 26.11.2004.
Form 115A
Form 115A: Ins 13.12.1991. Am 26.4.1996; 19.2.1999. Rep 1.11.2002.
Form 116
P 78, r 76.
(Notice of filing of accounts.)
In the Supreme Court of New South Wales Equity Division
After 14 days from publication of this notice the { executor of the will or administrator of the estate or as the case may be} of (name in capitals) late of (place, occupation) will make application for an order passing { his or her or as the case may be} accounts [if applicable and an order for commission]. Any person wishing to object to the application may obtain a copy of it by filing a Notice of Intended Objection and must file an Appearance in the proceedings before they are concluded.
Address for Service: (Part 9 rule 6)
(Form 4 does not apply.)
Form 116: Ins 30.6.1972. Am 19.8.1994. Subst 22.11.1996. Am 19.2.1999.
Form 116A
P 78, r 77A.
Notice of Intended Objection to {Accounts or Commission or Accounts and Commission}
(name) of (address, occupation) intends to object to the { passing of accounts or allowance of commission or passing of accounts and allowance of commission} in the estate of (name) late of (place, occupation) who died on (date).
Address for Service: (Part 9 rule 6)
Form 116A: Ins 22.11.1996.
Form 117
P 78, r 89.
(Acknowledgment under s. 83 of the Probate Act.)
ACKNOWLEDGMENT made under the Wills, Probate and Administration Act 1898, between (name or names) executor (or where applicable executors) of the duly proved Will (or where applicable administrator (or where applicable administrators) with the Will annexed) of (name) late of (address and occupation as in will) deceased, of the one part, and (name or names) devisee (or where applicable devisees) under the said Will, of the other part, whereby the said executor (or as the case may be executors or administrator or administrators) doth (or where applicable do) acknowledge that the said devisee (or where applicable devisees) is (or where applicable are) entitled for the estate for which the same is devised to him (or where applicable them) by the said Will to the real estate described in the said Will as (describe as in Will).
Dated this day of 19 .
(Signature or signatures of executor or executors or administrator or administrators).
Form 117: Ins 30.6.1972.
Form 118
P 78, r 90.
(Notice of appointment of executor or administrator.)
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
NOTICE OF APPOINTMENT OF EXECUTOR (or ADMINISTRATOR)
To (name)
After 28 days from the date of service on you of this notice I (name) of (address) the executor of the will and codicils (or where applicable administrator of the estate) of (name) late of (place) labourer propose pursuant to section 75A of the Wills, Probate and Administration Act 1898, to appoint by deed (name) to be an executor of the will and codicils (or where applicable administrator of the estate) of the deceased in my place and stead (or where applicable as co-executor or co-administrator) with me (or where applicable the continuing executors or the continuing administrators).
If you object to the appointment you may within the period of 28 days lodge with the Registrar in Probate notice that you object to the appointment being made and serve a copy of that notice on me at (address).
Dated: (date)
(signature) |
Form 118: Ins 30.6.1972. Am 19.2.1999.
Form 119
P 78, r 90.
DEED OF APPOINTMENT OF EXECUTOR OR ADMINISTRATOR
THIS INDENTURE made the (date) BETWEEN (name) of (address) (hereinafter called the “Appointor”) of the one part and (name) of (address) (hereinafter called the “Appointee” of the other part WHEREAS (name) late of (place) by his will dated (date) gave all his estate to the Appointor and appointed him sole executor of his will (or as the case may be, reciting the will) (or where applicable died intestate) AND WHEREAS (where applicable probate of the will) (or where applicable letters of administration of the estate) of the deceased was (or where applicable were) granted to the Appointor (where applicable and to (name)) by the Supreme Court of New South Wales on (date) AND WHEREAS the Appointor has not yet renounced or taken probate of the will (or where applicable fully administered the estate) of the deceased AND WHEREAS the Appointor is desirous of retiring from the office of executor of the will (or where applicable administrator of the estate) and of appointing the Appointee to act in his place and stead or is desirous of appointing the Appointee as co-executor with him (or as the case may be) NOW THIS DEED WITNESSES that the Appointor HEREBY APPOINTS the Appointee executor of the will in his place and stead or as co-executor with him of the will (or as the case may be).
Signed sealed and delivered etc.
Form 119: Ins 30.6.1972.
Form 120
P 78, r 90.
(Notice of objection to appointment of executor or administrator.)
In the Supreme Court of New South Wales Equity Division Probate | Estate of (name) late of (place) labourer |
OBJECTION TO APPOINTMENT OF EXECUTOR (or ADMINISTRATOR)
I (name) of (address) object to the proposal by (name) to appoint (name) as (state the proposed appointment).
My interest in the will (or where applicable estate) is (state the interest).
Filed: (date)
Filed: (date)
(signature) |
Form 120: Ins 30.6.1972. Am 19.2.1999.
Form 121
P 78, r 91, P 77, rr 31, 69 and P 70 r 16 (2) (b).
(Notice of intended distribution of an estate under—
(a) section 92 of the Wills, Probate and Administration Act 1898;
(b) section 11 of the Testator’s Family Maintenance and Guardianship of Infants Act 1916;
(c) section 60 of the Trustee Act 1925 where Part 70 r 16 (1) applies; or
(d) section 35 of the Family Provision Act 1982.)
(No heading or title is necessary.)
NOTICE OF INTENDED DISTRIBUTION OF ESTATE
Any person having any claim upon the estate of (name in capitals) late of (place, occupation) who died on (date) [where the notice is given in respect of trust property add or in respect of (describe the property to be conveyed or distributed and identify the trust)] must send particulars of the claim to the executor* (name) at {address of executor* or care of name of solicitor, solicitor, address, [where applicable add or their agents, name, address]} within { one calendar month or longer period} from publication of this notice. After that time the { assets of the estate [where appropriate add and the property] or property} may be conveyed and distributed having regard only to the claims of which at the time of conveyance or distribution the executor* has notice. {Probate was or Letters of administration were} granted in N.S.W. on (date).
(Form 4 does not apply. It is not necessary to add the name of the person authorising publication.)
*or as the case may be
Form 121: Ins 4.5.1973. Subst 23.12.1977 (see erratum 23.6.1978). Am 8.7.1983; 13.12.1991. Subst 19.3.1999. Am 25.6.1999.
Form 121A: Ins 19.3.1999.
FORM 121A
P 70, r 16 (3) (b).
(No heading or title is necessary.)
NOTICE OF INTENDED DISTRIBUTION OF TRUST PROPERTY
Any person having any claim in respect of (describe the property to be conveyed or distributed and identify the trust) must send particulars of the claim to the trustee (name) at {address of trustee or care of name of solicitor, solicitor, address, [where applicable add or their agents, name, address]} within { one calendar month or longer period} from publication of this notice. After that time the trustee may convey and distribute the abovementioned property having regard only to the claims of which at the time of conveyance or distribution the trustee had notice.
(Form 4 does not apply. It is not necessary to add the name of the person authorising publication.)
Form 122
P 79, r 8.
(Petition under the Parliamentary Electorates and Elections Act 1912.)
(To be set out in accordance with Form 1.)
In the Matter of the Election of a Member of the Legislative Assembly for the Electoral District of (place). | |
(name) petitioner (name) respondent |
PETITION
To the Court of Disputed Returns—
(The statement of facts shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject matter. The facts shall include a description of the petitioner in terms of section 157 (c) of the subject Act, the date and result of the election, the date on which the writ was returned and the facts relied on to invalidate the election or return.)
The petitioner prays that—
(a)
(b)
To the respondent (address)—
You are liable to suffer judgment or an order against you unless the prescribed form of notice of your appearance is received in the Registry (or where a place in the Riverina or the Central West or the Northern Rivers district is the nominated place of trial,“or Sub-Registry”) within 14 days after service of this petition upon you.
Petitioner: (name, address).
Petitioner’s Address for Service: (Part 9 rule 6 (1)).
Address of Registry:
Petitioner’s Address for Service: (Part 9 rule 6 (1)).
Address of Registry:
(where a place in the Riverina is the nominated place of trial, add
“Sub-Registries: the offices of clerks of the Court at Albury, Cootamundra, Deniliquin, Griffith, Gundagai, Leeton, Narrandera, Temora and Tumut”.)
(where a place in the Central West is the nominated place of trial, add
“Sub-Registries: the offices of the clerks of the Court at Bathurst, Cowra, Dubbo, Forbes, Lithgow, Mudgee, Parkes and Wellington”.)
(where a place in the Northern Rivers district is the nominated place of trial, add
“Sub-Registries: the offices of the clerks of the Court at Ballina, Bellingen, Byron Bay, Casino, Coffs Harbour, Dorrigo, Glen Innes, Grafton, Kempsey, Kyogle, Macksville, Maclean, Mullumbimby, Murwillumbah, Port Macquarie, Tenterfield, Tweed Heads and Wauchope”.).
(signature) Petitioner |
Signed by the Petitioner in our presence at (place) on (date).
(signature) (full name, address and occupation) | |
(signature) (full name, address and occupation) |
(The rules which apply where a deponent making an affidavit if illiterate or blind shall apply in respect of each witness, making such changes as it is necessary to make, where a petitioner is illiterate or blind.)
(Form 4 does not apply.)
Form 122: Ins 27.5.1977. Am 23.12.1977; 24.4.1981 (see erratum 29.5.1981); 8.7.1983; 7.12.1984; 24.10.1986; 20.2.1987; 26.8.1988.
Form 123
P 79, r 9.
(Notice of filing petition under the Parliamentary Electorates and Elections Act 1912.)
NOTICE OF DISPUTED ELECTION (OR RETURN) OF A MEMBER OF THE LEGISLATIVE ASSEMBLY
A petition was, on (date), filed with the Prothonotary of the Supreme Court disputing the election (or return) of (name) as a member of the Legislative Assembly for the Electoral District of (place).
The facts relied on to invalidate the election (or return) are as follows—
(a)
(state the facts as concisely as may be)
(b) The petition prays that—
(set out the claims for relief prayed for in the petition)
Petitioner: (name, address and occupation).
(Form 4 does not apply.)
Form 123: Ins 27.5.1977.
Form 124
P 79, r 31.
(Notice of a reference under the Parliamentary Electorates and Elections Act 1912.)
NOTICE OF A REFERENCE OF A QUESTION TO THE COURT OF DISPUTED RETURNS
The following question respecting the qualification of a member of the Legislative Assembly (or respecting a vacancy in the Legislative Assembly) was, on ,
19 , referred to the Court of Disputed Returns for its determination, namely—
19 , referred to the Court of Disputed Returns for its determination, namely—
(state the question)
(name), Speaker of the Legislative Assembly.
(Form 4 does not apply)
Form 124: Ins 27.5.1977.
Form 125
(Notice of application for reduction of capital and of list of creditors.)
P 80, r 9.
(No heading or title.)
NOTICE OF APPLICATION RELATING TO
(name of company in capitals.)
An application has been made to the Supreme Court to confirm a resolution of the above Company for reducing its capital from $ (or as the case may be). A list of the persons admitted to have been creditors of the Company on (date), may be inspected at the office of the Company at (address) or at the office of the undersigned at any time during usual business hours, on payment of the charge of ($ Schedule G item 22).
Any person who claims to have been, on the last mentioned day and still to be, a creditor of the company, unless he belongs to the following class or classes (set out class or classes) and is not entered on the said list and claims to be so entered, must on or before (date), send his name and address, and the particulars of his debt or claim (and the name and address of his solicitor, if any) to the undersigned or in default thereof he will be precluded from objecting to the proposed reduction of capital.
Every admitted creditor who does not consent thereto shall be entitled to object.
Any creditor who has not received notice that his name is entered on the list of creditors must send to the undersigned particulars of his name and address.
(name of plaintiff’s solicitor) | |
(No date is required.) | (address for service) |
(Form 4 is not applicable.) |
Form 125: Ins 30.6.1982.
Form 126
(Notice of application under ss. 123 (5), 320 and 363 (1) of the Code.)
(No heading or title.)
NOTICE OF APPLICATION RELATING TO
(Name of Company in capitals.)
(Name of Company in capitals.)
P 80, rr 9 (4) (b), 10 and 18.
In respect of proceedings commenced on (date), application will be made by (name of plaintiff) (or if applicable, name of substituted plaintiff, who has, with the leave of the Court, in respect of a summons filed on (date) been substituted as plaintiff) to the Supreme Court of New South Wales at a.m. on (date) at
(address of Court)
where application is made for an order under section 123 (5) of the Code without fixing a date for (settling a list of creditors to confirm a resolution of the Company to reduce its share capital from $ to $ , such reduction to be effected by (state how the reduction is to be effected).
or
where application is made for an order under section 320 of the Code for an order under section 320 of the Companies (New South Wales) Code, in respect of the above Company and, where an order for winding up is sought including an order that the Company be wound up.
or
where application is made for an order under section 364 (1) of the Companies (New South Wales) Code, for an order that the Company be wound up.
or
(state the orders sought)
Copies of documents filed may be obtained under the rules.
Any person intending to appear at the hearing must serve a notice in the prescribed form so as to reach the address below not later than 1 p.m. on (specify the date, for example 7 May 19 by reference to Part 80 rule 20 (3)).
(name of plaintiff’s solicitor) | |
(No date is required.) | (address for service) |
(Form 4 is not applicable.)
Form 126: Ins 30.6.1982 (see erratum 9.7.1982).
Form 127
(Affidavit verifying list of creditors.)
P 80, r 10.
AFFIDAVIT
On 7 May 19 I (name, address and occupation) say on oath—
1. I am the secretary, (or as the case may be) of the plaintiff.
2. The document produced to me, and marked “A”, contains a list of the creditors of and persons having claims upon the said Company (or a list of the creditors of and persons having claims upon the said Company except those of the following class (or classes—set out class or classes) on (date) (the date fixed by the Court) together with their addresses, and the nature and amount of their debts or claims, and such list is, to the best of my knowledge and belief, a true and accurate list of persons having claims on that day, and of the nature and amount or estimated value of their debts or claims.
3. To the best of my knowledge and belief there was not, at that date, any debt or claim which, if that date were the commencement of the winding up of the said Company, would be admissible in proof against the said Company other than and except the debts and claims set forth in the said list.
4. I am able to make this statement from facts within my knowledge as the of the said Company, and from information derived upon investigation of the books of the said Company.
Sworn at | } | |
“A” | ||
before me |
Name, address and description of creditor or claimant | Nature of debt or claim | Amount of estimated value of debt or claim |
This list of creditors and claimants marked “A” was produced and shown to AB at the time of swearing his affidavit before me on (date).
XY
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 127: Ins 30.6.1982. Am 21.10.1994.
Form 128
(Notice to creditors.)
P 80, r 10.
To (name and address of creditor).
An application has been made to the Supreme Court to confirm a special resolution of the above Company for reducing its capital from $ to $ . In the list of persons admitted by the Company to have been its creditors on (date) (here insert any qualification which may have been directed) your name is entered as a creditor for (nature and amount or estimated value of debt or claim).
If you claim to have been on the last-mentioned day a creditor in a larger amount than is stated above, you must on or before (date), send the particulars of your claim, your name and address (and the name and address of your solicitor, if any) to the undersigned otherwise the above entry in the list of creditors will, in all the proceedings under the above application to reduce the capital of the Company, be treated as correct.
Dated 19 .
(Name of plaintiff’s solicitors.)
Form 128: Ins 30.6.1982.
Form 129
(Affidavit as to claims.)
P 80, r 10.
AFFIDAVIT
On 7 May 19 I, CD, of &c (for example, the secretary of the said Company) and on 11 May 19 , I, EF, of &c (for example, the solicitor for the said Company) and on 12 May 19 I, AB, of &c (for example, the managing director of the said Company) say on oath—
I, the said CD for myself say—
1. I did, on 19 , in the manner hereinafter mentioned, serve a true copy of the notice now produced to me and marked “B” upon each of the respective persons whose names, addresses, and descriptions appear in the first column of the list of creditors, marked “A”, referred to in the affidavit of filed on 19 . | |
2. I served the copies of the said notice by (for example putting such copies duly addressed to such persons according to their respective names and addresses appearing in the said list (being the last known addresses or places of abode of such persons) and with the proper postage stamps affixed thereto as prepaid letters, into the post office in (street) between a.m. and a.m. on 19 ). |
And I, the said EF, for myself say—
3. A true copy of the notice now produced to me, and marked “C”, has appeared in the of 19 , 19 , &c. | |
4. I have, in the document now produced and shown to me and marked “D”, set forth a list of all claims, the particulars of which have been sent in to me pursuant to the said notice “B”, now produced and shown to me by persons claiming to be creditors of the Company for larger amounts than are stated in the list of creditors, marked “A”, referred to in the affidavit of sworn on 19 , (or no person has sent to me pursuant to the said notice “B” a claim to be entered on the said list for a larger sum than in respect of which he is entered in the said list marked “A”.) | |
5. I have, in the document now produced and shown to me, marked “E”, set forth a list of all claims, the particulars of which have been sent to me pursuant to the notice referred to in the third paragraph of this affidavit by persons claiming to be creditors of the Company on 19 , not appearing on the said list of creditors marked “A”, and who claimed to be entered thereon (or no claims have been sent to me pursuant to the notice referred to in paragraph 3 hereof by persons not entered on the said list “A” and claimed to be so entered). |
And we, CD and AB, for ourselves say—
6. We have in the first part of the said document marked “D”, (now produced and shown to us), and also in the first part of the said document marked “E”, (also produced and shown to us), respectively set forth such of the said debts and claims as are admitted by the Company to be due wholly or in part, and how much is admitted to be due in respect of such of the same debts and claims respectively as are not wholly admitted by the Company to be due wholly or in part, and how much is admitted to be due in respect of such of the same debts and claims respectively as are not wholly admitted, and such of the same debts and claims as the Company contends are wholly or as to any and what part thereof not included in the enquiry in this matter. | |
7. We have, in the second part of such of the said documents marked “D” and “E”, set forth such of the said debts and claims as are wholly disputed by the Company and such of the same debts and claims as the Company contends would even if admitted be wholly (or as to what part thereof) not included in the enquiry in this matter. |
And I, the said CD further say—
8. All rents, rates, taxes, salaries, wages and other incidental expenses current on 19 and since become due have been paid and discharged by the Company. |
Sworn by (name) at | } |
before me (and so on) |
EXHIBIT D
D
(heading and title.)
(heading and title.)
LIST OF DEBTS AND CLAIMS of which the particulars have been sent to
by persons claiming to be creditors of the Company for larger amounts than are stated in the list of creditors made out by the Company.
by persons claiming to be creditors of the Company for larger amounts than are stated in the list of creditors made out by the Company.
This document marked “D”, was produced and shown to CD, EF, and AB, respectively, and is the same as is referred to in their affidavit sworn before me on
19 .
19 .
XY
First Part
Debts and claims wholly or partly admitted by the Company
Debts and claims wholly or partly admitted by the Company
Names and addresses and description of creditors | Particulars of debt or claim | Amount claimed | Amount admitted by the Company to be owing to creditor | Amounts admitted by the Company to be owing but which it is contended are not within the enquiry |
Second Part
Debts and claims wholly disputed by the Company
Debts and claims wholly disputed by the Company
Names, addresses and descriptions of claimants | Particulars of claim | Amount claimed | Amounts which, even if admitted, it is contended would not be within the enquiry |
EXHIBIT E
E
(heading and title.)
(heading and title.)
LIST OF DEBTS AND CLAIMS of which the particulars have been sent to
by persons claiming to be creditors of the Company and to be entered on the list of the creditors made out by the Company.
by persons claiming to be creditors of the Company and to be entered on the list of the creditors made out by the Company.
This document marked “E” was produced and shown to CD, EF and AB, respectively, and is the same as is referred to in their affidavit sworn before me on
19 .
19 .
XY
First Part
(Same as in Exhibit D.)
(Same as in Exhibit D.)
Second Part
(Same as in Exhibit D.)
(Same as in Exhibit D.)
(Note: names are to be inserted alphabetically.)
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 129: Ins 30.6.1982. Am 21.10.1994.
Form 130
P 80, r 10.
(Notice to creditors to prove debts.)
To (Name and address).
You are hereby required to prove the debt claimed by you against the above company by filing your affidavit in the registry of the Court, Sydney, and serving a copy on the undersigned on or before 19 , and you are to attend before in at the Supreme Court, Sydney, on 19 , at a.m. being the time appointed for hearing and adjudicating on the claim, and produce any securities or documents relating to your claim.
In default of your complying with the above directions, you will be precluded from objecting to the proposed reduction of the capital of the company (or, in all proceedings relative to the proposed reduction of the capital of the company be treated as a creditor for such amount only as is set against your name in the list of creditors).
Dated 19 .
(Signed) Solicitor for the Company (address) |
Form 130: Ins 30.6.1982.
Form 131
(Summons under section 184 (3) of the Code.)
P 80, r 12.
SUMMONS UNDER SECTION 184 (3) OF THE COMPANIES (NEW SOUTH WALES) CODE
THE COURT ORDERS that—
(name) of (address) shall appear before the Court at (place) on (date) at a.m. and show cause why the document mentioned in the schedule below should not be delivered up and produced by bringing the said document into the office of (name of Company) at (office of Company) within (state the period as ordered) to have the said document cancelled (or as the notice required) and the transfer of the said document registered (or as ordered).
SCHEDULE
(description of document.)
(Complete as in general form of minute or order, Form 51.)
Form 131: Ins 30.6.1982.
Form 132
(Summons claiming winding up order under section 364 (1) of the Code.)
P 80, r 18.
SUMMONS
The plaintiff claims—
1. An order that the defendant be wound up under the Companies (New South Wales) Code.
2. An order that a liquidator of the defendant be appointed (or where a person is proposed that (name) be appointed liquidator of the defendant).
Form 132: Ins 30.6.1982. Am 22.10.1982.
Form 133
(Note of intention to appear on hearing.)
P 80, r 20.
He intends to appear on the hearing (add, where he intends to support the plaintiff’s application and support the plaintiff’s application or where he intends to oppose the plaintiff’s application and oppose the plaintiff’s application). He is a creditor for $ of the Company (or a contributory holding number and class of shares held shares in the Company).
(No date is required.)
(Form 4 is not applicable.)
Form 133: Ins 30.6.1982.
Form 134
P 80, r 20.
NOTICE RELATING TO PERSONS INTENDING TO APPEAR ON THE HEARING
Particulars relating to persons who have given notice of their intention to appear on the hearing are set out below.
Name | Address | Solicitor | Creditor’s debt $ | Contributory’s shares: number and class | “Supporting”, “Opposing” or leave blank |
Form 134: Ins 30.6.1982. Am 22.10.1982.
Form 135
(Minute of order substituting a plaintiff in a winding up application)
(Title before this order)
P 80, r 21.
ORDER
THE COURT ORDERS that—
1. (name) be substituted as plaintiff;
2. the substituted plaintiff amends the summons accordingly;
3. the substituted plaintiff serve on the defendant personally a minute of this order and the amended summons;
4. the substituted plaintiff publish a notice in accordance with Form 126 and otherwise comply with the requirements of the rules as if he were the former plaintiff making the application made in the summons;
5. the date appointed for hearing be adjourned to (date);
6. the costs of the substituted plaintiff of this application be the substituted plaintiff’s costs of proceedings on the application (or as ordered).
(Complete as in general form of minute of order, Form 51.)
Form 135: Ins 30.6.1982.
Form 135A
(Notice to liquidator of appointment)
P 80, r 22A.
To: (name and address of liquidator).
(name and registered office of Company) was wound up by order of the Court on (date) and you were appointed to be the liquidator. The application for the winding up was filed on (date on which the summons was filed).
(name and registered office of Company) was wound up by order of the Court on (date) and you were appointed to be the liquidator. The application for the winding up was filed on (date on which the summons was filed).
Form 135A: Ins 14.2.1986. Am 20.4.1990.
Form 136
(Minute of winding up order.)
P 80, r 23.
ORDER
THE COURT ORDERS that—
1. the defendant be wound up by the Court under the provisions of the Companies (New South Wales) Code;
2. (name and address) be the liquidator of the defendant;
3. (any directions under section 370 (2) (b) of the Code);
4. that the plaintiff be at liberty to apply as he may be advised (or as ordered).
(Complete as in general form of minute of order, Form 51.)
Form 136: Ins 30.6.1982.
Form 136A
(Notice to provisional liquidator of appointment)
P 80, r 26.
To: (name and address of provisional liquidator):
On: (date) the Court appointed you to be the liquidator of (name and registered office of the Company) provisionally.
Form 136A: Ins 20.4.1990.
Form 137
(Notice of appointment of provisional liquidator.)
(No heading or title.)
P 80, r 26.
NOTICE OF APPOINTMENT OF PROVISIONAL LIQUIDATOR
On (date), the Supreme Court appointed (name in capitals, address) to be the liquidator of (name of company in capitals) provisionally.
(name of plaintiff’s solicitor)
(address for service)
(address for service)
(No date required.)
(Form 4 is not applicable.)
(Form 4 is not applicable.)
Forms 137–140: Ins 30.6.1982.
Form 138
(No heading or title.)
NOTICE OF WINDING-UP ORDER
(Name of Company in capitals.)
P 80, r 28.
On (date) the Supreme Court made an order that the Company be wound up by the Court and appointed me to be liquidator.
(name of liquidator) (address) | |
(No date required.) (Form 4 does not apply.) |
Forms 137–140: Ins 30.6.1982.
Form 139
(Certificate of liquidator of resolution of meeting of Committee of Inspection (or creditors and/or contributories))
P 80, r 33.
(Title)
I certify that the document attached hereto and marked “A” is a true copy of the resolution of a meeting of the Committee of Inspection (creditors and contributories or creditors or contributories) of the Company held at on (date).
Dated .
(Signature) | |
Liquidator |
Forms 137–140: Ins 30.6.1982.
Form 140
(Report.)
P 80, r 36, 52.
REPORT BY LIQUIDATOR (or as the case may be)
1.
I, (name and address) am the liquidator (or as the case may be) of (name of Company).
(Continue in paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct part of the subject matter. For example, where the liquidator makes a report under section 431 (2) of the Code—
2.
I was chairman of a meeting of the creditors (or contributories) of the Company held on (date) at (place).
3.
The meeting was convened by a notice given on (date) and by notice published in the (name of newspaper) on (date) and in the Government Gazette on (date).
4.
The meeting was attended, either personally or by proxy, by (number) creditors whose proofs of debt against the Company were admitted for voting purposes and amounted in all to the value of $ .
or
4.
The meeting was attended, either personally or by proxy, by (number) contributories who held in all (number) shares in the Company and were entitled respectively by the regulations of the Company to (number) votes.)
5.
The proposals submitted to the meeting were (state the proposals).
6.
Certify the resolution of the meeting, showing that the voting was unanimous or if not, the (total number and value of creditors, or the total number and voting power of contributories, voting for and against each proposal.)
Dated: | (signature) |
Chairman |
Forms 137–140: Ins 30.6.1982.
Form 141
(Affidavit by special manager verifying his accounts.)
P 80, r 38.
AFFIDAVIT
On 19 I (name, address and occupation) say on oath—
1. I am the special manager of the property and business (or as the case may be) of the Company.
2. The account of receipts and payments set out above contains a full and true account of my receipts and payments as special manager from (date) to (date).
3. I have not, nor has any other person by my order or for my use, during the period, received or paid any moneys on account of the Company other than the items mentioned in that account.
Sworn at | } |
before me |
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 141: Ins 30.6.1982. Am 21.10.1994.
Form 142
(Requirement by liquidator under section 384 (1) of the Code.)
P 80, r 40.
REQUIREMENT TO PAY MONEY, etc. TO LIQUIDATOR
To (name and address):
1. I am the liquidator of (name of Company.)
2. Pursuant to section 384 (1) of the Companies (New South Wales) Code, I require you to pay (or deliver, convey, surrender or transfer) to me, forthwith (or not later than (number) days from the date of this requirement) (or such time as the liquidator directs) $ (or describe the property or books)
[or any money, property or books to which the Company is prima facie entitled.
In this requirement—
(a) “accounting records” includes invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes, vouchers and other documents of prime entry and also includes such working papers and other documents as are necessary to explain the methods and calculations by which accounts are made up;
(b) “books” includes any register or other record of information and any accounts or accounting records, however compiled, recorded or stored, and also includes any document;
(c) a reference to writing shall be construed as including a reference to any mode of representing or reproducing words, figures or symbols in a visible form;
(d) “printed” includes type-written, lithographed or reproduced by any mechanical means; and
(e) “document” includes—(i) any paper or other material on which there is writing or printing, or on which there are marks, symbols, or perforations having a meaning for persons qualified to interpret them; and(ii) a disc, tape or other article from which sounds, images or messages are capable of being reproduced and, without limiting the generality of the foregoing, includes any summons, order and other legal process and any notice;
(f) “property” means any legal or equitable interest (whether present or future and whether vested or contingent) in real or personal property of any description and includes things in action].
Dated:
(signature)
(name)
(address)
(name)
(address)
(Form 4 does not apply.)
Form 142: Ins 30.6.1982 (see erratum 9.7.1982).
Form 143
(Notice of meeting of committee of inspection to sanction a call.)
P 80, r 41.
A meeting of the committee of inspection will be held at on (date) at a.m. for the purpose of considering, and if thought fit passing, a resolution that the making by the liquidator of a call of $ per share on all of the contributories (or as the case may be) be sanctioned.
Dated:
(signature) | |
Liquidator | |
(address) |
Forms 143–147: Ins 30.6.1982.
Form 144
(Statement with notice of meeting of committee of inspection to sanction a call.)
P 80, r 41.
STATEMENT IN SUPPORT OF PROPOSAL FOR CALL
(state the matters required to be stated by Form 148.)
Dated:
(signature) | |
Liquidator | |
(address) |
Forms 143–147: Ins 30.6.1982.
Form 145
(Notice of meeting of committee of inspection to sanction a call.)
P 80, r 41.
(No heading or title.)
I have convened a meeting of the committee of inspection of (name of Company) to be held at on (date) at a.m. to sanction the making of a call of $ per share on all of the contributories of the Company (or as the case may be). Any contributory may make representations to me or the members of the committee in writing before, at, or orally at, the meeting. A statement showing the necessity for the making of the call may be obtained from me.
(name and address of liquidator)
(No date is required.)
(Form 4 is not applicable.)
(Form 4 is not applicable.)
Forms 143–147: Ins 30.6.1982.
Form 146
(Resolution of committee of inspection sanctioning a call.)
P 80, r 41.
Resolved on (date) that the making by the liquidator of a call of $ per share on all of the contributories of the Company (or as the case may be) be sanctioned.
(signatures)
Members of the Committee of Inspection.
Members of the Committee of Inspection.
Forms 143–147: Ins 30.6.1982.
Form 147
(Summons for leave to make a call.)
P 80, r 42.
SUMMONS
The plaintiff claims an order—
1. under section 389 (2) (a) of the Companies (New South Wales) Code that he be granted leave (to make a call of $ per share on all of the contributories of the Company named in column 2 of the schedule below.
2. under section 384 (4) of the Code that each contributory pay into (name of bank) to the account of the liquidator the amount of the call made on him.
SCHEDULE
Column 1 | Column 2 | Column 3 | Column 4 |
Serial number. | Name and address. | In what character included. | Amount due $ |
Forms 143–147: Ins 30.6.1982.
Form 148
(Affidavit in support of application for leave to make a call.)
P 80, r 42.
AFFIDAVIT
On 19 I (name, address and occupation) say on oath—
1. I am the liquidator of the Company.
2. The statement annexed hereto marked “A” shows—(a) the amount due in respect of the debts proved and admitted against the Company and the estimated amount of the costs, charges and expenses of and incidental to the winding up (which amounts form in the aggregate about $ );(b) the property of the Company which amounts to about $ .
3. There is no other property of the Company (where applicable) except amounts due from some of the contributories and I believe that these will realise about $ .
4. (number) persons have been settled by me on the list of contributories of the Company in respect of the total number of shares.
5. To satisfy the debts and liabilities of the Company and the costs, charges, and expenses of and incidental to its winding-up, I believe $ will be required in addition to the proceeds of the realization of the profit of the said Company and the amounts referred to in paragraph 3.
6. To provide $ (as in 5), it is necessary to make a call upon the persons settled on the list of contributories, and, having regard to the probability that some of such contributories will partly or wholly fail to pay the amount of such call, I believe that a call of $ per share should be made.
Sworn at | } |
before me |
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 148: Ins 30.6.1982. Am 21.10.1994.
Form 149
(Notice of application for leave to make a call.)
P 80, r 42.
(No heading or title.)
An application will be made to the Supreme Court on (date) at a.m. (or p.m.) at (address of Court) for leave to make a call of $ per share on all of the contributories of the company (or as the case may be). All persons interested are entitled to attend the hearing. A copy of an affidavit showing the necessity for the call may be obtained from me.
(name and address of liquidator)
(No date is required.)
(Form 4 is not applicable.)
Forms 149–153: Ins 30.6.1982.
Form 150
(Minute of order giving leave to make a call.)
P 80, r 42.
ORDER
THE COURT ORDERS that—
1. leave be given to the liquidator to make a call of $ per share on all of the contributories (or as the case may be);
2. each contributory pay into (name of Bank) to the account of the liquidator the amount of the call made on him (or as the case may be).
(Complete as in general form of minute of order, Form 51.)
Forms 149–153: Ins 30.6.1982.
Form 151
(Notice of amount of call per share.)
P 80, r 43.
Pursuant to the order of the court made (or the resolution of the committee of inspection passed) on (date) I will make a call of $ per share on all of the contributories of the Company (or as the case may be).
Dated:
(signature)
Liquidator
Liquidator
Forms 149–153: Ins 30.6.1982.
Form 152
(Notice of call sanctioned by committee of inspection.)
P 80, r 44.
On (date of resolution) the committee of inspection sanctioned the making by me of a call of $ per share on all of the contributories of the Company (or as the case may be).
I call on you accordingly to pay $ to me on or before (date).
If you do not pay that sum to me on or before that date, I will claim interest on that sum from that date until payment of that sum.
(signature) | |
Liquidator | |
Dated: | |
(name and address) |
Forms 149–153: Ins 30.6.1982.
Form 153
(Notice of call permitted by leave of the Court.)
P 80, r 44.
On (date of making of order) the Court granted leave to me to make a call of $ per share on all of the contributories of the Company (or as the case may be) and to pay the amount of the call into (bank named in the order) to my account. I call on you accordingly to pay $ into (bank) to my account on or before (date).
If you do not so pay the sum on or before that date, I will claim interest on that sum from that date until payment of that sum.
Dated:
(signature) | |
Liquidator | |
(name and address) |
Forms 149–153: Ins 30.6.1982.
Form 154
(Minute of order under section 541 (3) of the Code for examination.)
P 80, r 63.
ORDER
THE COURT ORDERS that—
1. (name) (address) attend before the Court at a time and place appointed by the registrar and from day to day until the conclusion of his examination, to be examined in public on oath or affirmation on any matters relating to the promotion, formation, management, administration or winding up of the Company and produce any books in his possession or under his control relevant to those matters;
2. (any directions under section 541 (5) of the Code).
3. the questions put to him and the answers given by him be recorded in writing;
4. subject to any further order of the Court, the plaintiff be paid or retain out of the property of the Company his costs of this application and the examination.
(or as ordered).
(Complete as in general form of minute of order, Form 51.)
(There may be added to a minute of the above order—
APPOINTMENT FOR HEARING
I appoint (date) at 10 a.m. at (address of Court) for the examination (or as appointed).
(Signature) | |
Registrar |
Form 154: Ins 30.6.1982 (see erratum 9.7.1982).
Form 154A
(Summons under section 596A or 596B of the Corporations Law)
SUMMONS TO ATTEND FOR EXAMINATION UNDER SECTION 596A (OR 596B) OF THE CORPORATIONS LAW
P 80, r 1D (2).
To: | (Name) (Address) |
1. | You are required to attend before the Court at the time and place appointed by the Registrar and specified below, to be examined on oath or affirmation about the examinable affairs (as defined in the Corporations Law) of (name of corporation) (“the Corporation”). |
2. | Section 597 (6) of the Corporations Law provides that a person who is summoned under section 596A or section 596B to attend before the Court shall not, without reasonable excuse— (a) fail to attend as required by the summons; or (b) fail to attend from day to day until the conclusion of the examination. |
3. | (If applicable) You are also required to produce at the examination the books (as defined in the Corporations Law) specified in the Schedule below that— (a) are in your possession or custody or under your control; and (b) relate to the Corporation or to any of its examinable affairs. |
4. | (If applicable) Section 597 (7) of the Corporations Law provides that a person who attends before the Court for examination must not— (a) without reasonable excuse, refuse or fail to take an oath or make an affirmation; or (b) without reasonable excuse, refuse or fail to answer a question that the Court directs him or her to answer; or (c) make a statement that is false or misleading in a material particular; or (d) without reasonable excuse, refuse or fail to produce books that the summons requires him or her to produce. |
SCHEDULE
(if applicable)
(description of books)
(description of books)
Dated: 19
By the Court | |
Registrar (or as the case may be) |
APPOINTMENT
I appoint (date) at (time) at (address of Court) for the examination.
(Signature) Registrar |
Form 154A: Ins 2.7.1993.
Form 154BA
P 80A, r 4.
SUMMONS UNDER SECTION 1092 (3) OF THE CORPORATIONS LAW
THE COURT ORDERS that:
(name) of (address) shall appear before the Court at (place) on (date) at a.m. and show cause why the document mentioned in the Schedule below should not be delivered up and produced by bringing the said document into the office of (name of company) at (office of the company) within (state the period as ordered) to have the said document cancelled (or as the notice required) and the transfer of the said document registered (or as ordered).
SCHEDULE
(Description of document)
(Complete as in general form of minute or order, Form 51.)
Form 154BA: Ins 10.12.1993.
Form 154B
(Notice of Application under ss. 246D (5), 254E (1), 411 (4) (b) and (6), 413 (1), 459A, 461, 601FP or 601ND (1))
P 80A, r 10 (5).
(No heading or title.)
NOTICE OF APPLICATION RELATING TO
(Name of Company in capitals)
A.C.N. (specify Australian Company Number of Company)
(Name of applicant) will apply to the Supreme Court of New South Wales at (time) on (date) at (address of Court) for an order (describe order using appropriate description hereunder)
validating an issue of shares (or confirming the terms of an issue of shares) in the capital of (name of Company) under section 254E;
validating an issue of shares (or confirming the terms of an issue of shares) in the capital of (name of Company) under section 254E;
or
setting aside a modification of the constitution of (name of Company) under section 246D;
or
setting aside a variation or cancellation of rights of members of (name of Company) under section 246D;
or
approving a compromise or arrangement by (name of Company) with its creditors or members, or a class of creditors or members, under section 411 (4) and (6);
or
that (name of Company) be wound up in insolvency under section 459A;
or
that (name of Company) be wound up on the ground of (specify ground) under section 461;
or
that (name of proposed temporary responsible entity) be appointed as the temporary responsible entity of (specify scheme) under section 601FP;
or
that (name of responsible entity) wind up (specify registered scheme) under section 601ND (1);
or
(state other order sought).
Any person intending to appear at the hearing must file a notice of appearance in the prescribed form and serve that notice on the applicant at its address for service shown below not later than (specify the date by reference to Part 80A rule 9 (1)).
(name of applicant’s solicitor)
(address for service)
(address for service)
(no date is required)
(Form 4 does not apply)
(Form 4 does not apply)
Form 154B: Ins 10.12.1993. Am 25.2.1994; 19.8.1994. Subst 23.10.1998.
Form 154C: Ins 10.12.1993. Rep 23.10.1998.
Form 154D: Ins 10.12.1993. Rep 23.10.1998.
Form 154E: Ins 10.12.1993. Am 21.10.1994. Rep 23.10.1998.
Forms 154C–154E
Form 154FA
P 80A, r 15.
(No heading or title)
(name of creditor)
Creditor
(name of company)
Debtor
Creditor
(name of company)
Debtor
AFFIDAVIT UNDER SECTION 459E OF THE CORPORATIONS LAW
On (date), I, (name, address and occupation) say on oath:
1 (Set out the matters referred to in paragraph (b) of Part 80A, rule 15 (1)).
2 I believe that the amount of $ , being the debt (or the total of the amounts of the debts) specified in the accompanying demand, is due and payable by the debtor to the creditor.
3 (Set out the matters referred to in paragraph (c) of Part 80A, rule 15 (1)).
4 I believe that there is no genuine dispute about the existence or amount of the debt (or debts) referred to in paragraph 2.
Sworn at | } |
before me |
[IMPORTANT NOTE:
(1) This affidavit accompanies a statutory demand under section 459E of the Corporations Law.
(2) No proceedings (or, if applicable, no winding up proceedings) have been commenced in respect of any debt to which this affidavit relates.
(3) Any questions relating to this affidavit or any debt to which it relates should be directed either to the person named as creditor or the creditor’s solicitors.]
Form 154FA: Ins 24.11.1995.
Form 154FB
P 80A, r 16.
AFFIDAVIT VERIFYING DEBT UNDER SECTION 459Q OF THE CORPORATIONS LAW
On (date), I, (name, address and occupation) say on oath:
1 (Set out the matters referred to in paragraph (c) of Part 80A, rule 16 (1))
2 I believe that the amount of $ , being the debt (or the total of the amounts of the debts) specified in the statutory demand served on the defendant, is due and payable by the defendant to the plaintiff.
3 (Set out the matters referred to in paragraph (d) of Part 80A, rule 16 (1))
4 I believe that there is no genuine dispute about the existence or amount of the debt (or debts) referred to in paragraph 2.
5 The defendant has failed to pay the said amount to the plaintiff or to secure or compound for that amount to the reasonable satisfaction of the plaintiff.
Sworn at | } |
before me |
Form 154FB: Ins 24.11.1995.
Form 154F
P 80A, r 20 (1) (a) (i).
NOTICE TO LIQUIDATOR (or PROVISIONAL LIQUIDATOR) OF APPOINTMENT
To: (name and address of liquidator or provisional liquidator)
(if liquidator was appointed, add:
(if liquidator was appointed, add:
(Name and registered office of Company) was wound up by order of the Supreme Court of New South Wales on (date) and you were appointed to be the liquidator. The application for the winding up was filed on (date on which the summons was filed).)
(if provisional liquidator was appointed, add:
(if provisional liquidator was appointed, add:
By order of the Court on (date) you were appointed to be provisional liquidator of (name and registered office of Company).)
Form 154F: Ins 10.12.1993. Am 25.2.1994.
Form 154G
P 80A, r 20 (1) (b).
(No heading or title)
NOTICE OF WINDING UP ORDER AND APPOINTMENT OF LIQUIDATOR
(Name of Company in capitals)
A.C.N. (specify Australian Company Number of Company)
On (date) the Supreme Court of New South Wales made an order that the Company be wound up by the Court and appointed me to be liquidator.
(name of liquidator) (address) |
(No date required)
(Form 4 does not apply)
(Form 4 does not apply)
Form 154G: Ins 10.12.1993.
Form 154H
P 80A, r 20 (1) (b).
(No heading or title)
NOTICE OF APPOINTMENT OF PROVISIONAL LIQUIDATOR
(Name of Company in capitals)
A.C.N. (specify Australian Company Number of Company)
On (date) the Supreme Court of New South Wales appointed me to be provisional liquidator of the Company.
(name of provisional liquidator) (address) |
(No date required)
(Form 4 does not apply)
(Form 4 does not apply)
Form 154H: Ins 10.12.1993.
Form 154I
P 80A, rr 13A (1), 13B (1) (b), 13C (1), 22 (2), 23 (2) (b).
(No heading or title)
NOTICE OF INTENTION OF LIQUIDATOR (or PROVISIONAL LIQUIDATOR or RECEIVER or ADMINISTRATOR or SPECIAL MANAGER) TO APPLY FOR DETERMINATION OF REMUNERATION
(Name of Company in capitals)
A.C.N. (specify Australian Company Number of Company)
To: (name and address of person to whom notice is given)
I, (name and address), the liquidator (or provisional liquidator or receiver or administrator or special manager) of the abovenamed Company, will, not earlier than 21 days after service on you of this notice and the accompanying affidavit, seek a determination by the Court of my remuneration.
If you object to my application, you should, within 21 days after service of this notice, serve on me a notice of objection stating the grounds of objection to the remuneration claimed. You will then be entitled to receive notice of the time and place of hearing of the application.
Dated (date)
(signature) liquidator (or provisional liquidator or receiver or administrator or special manager) |
(Form 4 does not apply)
Form 154I: Ins 10.12.1993. Subst 21.10.1994.
Form 154J
(Report)
P 80A, rr 25, 31.
REPORT BY LIQUIDATOR (or as the case may be)
1.
I, (name and address) am the liquidator (or as the case may be) of (name of Company).
(Continue in paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct part of the subject matter. For example, where the liquidator makes a report under section 547 (1) of the Corporations Law:
2.
I was chairman of a meeting of the creditors (or contributories) of the Company held on (date) at (place).
3.
The meeting was convened by a notice given on (date) and by notice published in the (name of newspaper) on (date) and in the Commonwealth of Australia Gazette on (date).
4.
The meeting was attended, either personally or by proxy, by (number) creditors whose proofs of debt against the Company were admitted for voting purposes and amounted in all to the value of $
or
4.
The meeting was attended, either personally or by proxy, by (number) contributories who held in all (number) shares in the Company and were entitled respectively by the regulations of the Company to (number) votes.
5.
The proposals submitted to the meeting were (state the proposals).
6.
(Certify the resolution of the meeting, showing that if the voting was unanimous of, if not, the total number and value of creditors, or the total number in voting power of contributories, voting for and against each proposal.)
Dated:
(signature) Chairman |
Form 154J: Ins 10.12.1993.
Form 154K
(Affidavit by special manager verifying his accounts.)
P 80A, r 27.
AFFIDAVIT
On 19 I (name, address and occupation) say on oath:
1. I am the special manager of the property and business (or as the case may be) of the Company.
2. The account of receipts and payments set out above contains a full and true account of my receipts and payments as special manager from (date) to (date).
3. I have not, nor has any other person by my order or for my use, during the period, received or paid any moneys on account of the Company other than the items mentioned in that account.
SWORN at | } |
before me |
[Where applicable, include the note required by Part 38 rule 6 (4) (a)]
Form 154K: Ins 10.12.1993. Am 21.10.1994.
Form 154L
P 80A, r 33 (3) (a) (i).
NOTICE OF INTENTION OF LIQUIDATOR TO SEEK RELEASE
To: (name and address of creditor or contributory)
I, (name and address of liquidator), the liquidator of the above Company, intend to apply to the Supreme Court of New South Wales for a release as liquidator of the Company (if applicable, add and that the company be dissolved).
If you object to the grant of my release, you must, within 21 days of publication in the Commonwealth of Australia Gazette of my notice of intention to apply for a grant of release, deliver to me a notice of objection stating the grounds of objection.
(NOTE—
Section 481 (3) of the Corporations Law provides that an order of the Court releasing the liquidator discharges him or her from all liability in respect of any act done or default made by him or her in the administration of the affairs of the Company or otherwise in relation to his or her conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.)
Dated: (date)
(Form 4 does not apply)
Form 154L: Ins 10.12.1993.
Form 154M
P 80A, r 33 (3) (b).
(No heading or title)
NOTICE OF INTENTION OF LIQUIDATOR TO SEEK RELEASE
(Name of Company in capitals)
A.C.N. (specify Australian Company Number of Company)
I, (name and address of liquidator), the liquidator of the above company, intend to apply to the Supreme Court of New South Wales for a release as liquidator of the Company (if applicable, add and that the company be dissolved).
Any creditor or contributory who wishes to object to the grant of my release may, within 21 days of publication of this notice, deliver to me a notice of objection stating the grounds of objection.
(NOTE—
Section 481 (3) of the Corporations Law provides that an order of the Court releasing the liquidator discharges him or her from all liability in respect of any act done or default made by him or her in the administration of the affairs of the Company or otherwise in relation to his or her conduct as liquidator, but any such order may be revoked on proof that it was obtained by fraud or by suppression or concealment of any material fact.)
(No date is required)
(Form 4 does not apply)
(Form 4 does not apply)
Form 154M: Ins 10.12.1993. Am 25.2.1994.
Form 154N
P 80A, r 36 (6).
SUMMONS TO ATTEND FOR EXAMINATION
UNDER SECTION 596A (or 596B) OF THE CORPORATIONS LAW
To: | (Name) (Address) |
1.
You are required to attend before the Court at the time and place appointed by the Registrar and specified below, to be examined on oath or affirmation about the examinable affairs (as defined in the Corporations Law) of (name of corporation) (“the Corporation”).
2.
Section 597 (6) of the Corporations Law provides that a person who is summoned under section 596A or section 596B to attend before the Court shall not, without reasonable excuse:
(a) fail to attend as required by the summons; or
(b) fail to attend from day to day until the conclusion of the examination.
3.
(If applicable) You are also required to produce at the examination the books (as defined in the Corporations Law) specified in the Schedule below that:
(a) are in your possession or custody or under your control; and
(b) relate to the Corporation or to any of its examinable affairs.
4.
(If applicable) Section 597 (7) of the Corporations Law provides that a person who attends before the Court for examination must not:
(a) without reasonable excuse, refuse or fail to take an oath or make an affirmation; or
(b) without reasonable excuse, refuse or fail to answer a question that the Court directs him or her to answer; or
(c) make a statement that is false or misleading in a material particular; or
(d) without reasonable excuse, refuse or fail to produce books that the summons requires him or her to produce.
SCHEDULE
(if applicable)
(description of books)
(description of books)
Dated: 19
By the Court Registrar (or as the case may be) |
Form 154N: Ins 10.12.1993.
Form 155: Ins 30.8.1985 (see erratum 11.10.1985). Rep 10.12.1993.
Form 156: Ins 30.8.1985 (see erratum 11.10.1985). Rep 10.12.1993.
Forms 155, 156
Form 157
P 82, rr 9, 7 (4).
OATH OF OFFICE
I, (name) of (address and occupation) do swear that if I am appointed as a public notary by the Supreme Court of New South Wales I will truly and honestly conduct myself in the practice of a public notary in New South Wales according to the best of my knowledge, skill and ability.
(Signature of person taking oath)
CERTIFICATE
I, (name) of (address), certify that I duly administered the above oath on (date) at (place).
(date)
........................................(Signature of a person administering oath)
........................................(Office of person administering oath)
Form 157: Ins 3.1.1986. Subst 14.2.1986; 19.12.1997. Am 24.4.1998 (see erratum 1.5.1998).
Form 158
P 1, r 9A (1A)
CERTIFICATION UNDER SECTION 198L OF THE LEGAL PROFESSION ACT 1987
I, (full name), certify that there are reasonable grounds for believing on the basis of facts provable on the material available to me to date and a reasonably arguable view of the law that this claim for damages (or, as the case may be, this defence/this cross-claim/this defence to cross-claim) has reasonable prospects of success.
(Signature) Date (Date certification signed)
Solicitor/barrister for the plaintiff/defendant/cross-claimant/cross-defendant (as the case may be)
Form 158: Ins 3.1.1986. Am 17.11.1989. Rep 19.12.1997. Ins 29.11.2002. Am 5.9.2003.
Form 159: Ins 3.1.1986. Rep 19.12.1997.
Form 160: Ins 3.1.1986. Am 24.9.1993; 23.2.1996. Rep 19.12.1997.
sch F, tbl 1 (Index of Forms): Ins 2.6.1972. Am 23.6.1972; 30.6.1972; 17.7.1972; 4.5.1973; 5.10.1973; 21.12.1973; 29.3.1974; 1.8.1975; 22.8.1975; 27.5.1977; 1.7.1977; 21.10.1977; 23.12.1977; 6.7.1979; 19.10.1979; 21.12.1979; 23.5.1980; 24.12.1981; 28.5.1982; 30.6.1982; 25.2.1983; 8.7.1983; 9.12.1983; 23.12.1983; 25.5.1984; 29.6.1984; 31.8.1984; 21.12.1984; 12.7.1985; 23.8.1985 (see erratum 6.9.1985); 30.8.1985; 20.12.1985; 3.1.1986; 14.2.1986; 23.5.1986; 24.10.1986; 13.3.1987; 27.3.1987; 31.12.1987; 17.6.1988; 19.5.1989; 23.6.1989; 20.10.1989; 15.12.1989; 22.12.1989; 20.4.1990; 25.5.1990; 14.12.1990; 13.12.1991; 24.9.1993; 19.11.1993; 10.12.1993; 25.2.1994; 19.8.1994; 21.10.1994; 23.12.1994; 22.9.1995; 24.11.1995; 1.3.1996; 26.4.1996; 25.10.1996; 22.11.1996; 21.2.1997; 23.5.1997; 5.12.1997; 19.12.1997; 24.7.1998; 19.3.1999; 20.8.1999; 25.2.2000; 21.7.2000; 24.11.2000; 1.11.2002; 29.11.2002; 21.3.2003; 24.4.2003; 13.6.2003; 29.8.2003; 26.3.2004; 28.5.2004; 26.11.2004; 4.3.2005; 2005 (171), Sch 1 [13] [14].
Forms 159, 160
Index of Forms
1. | First page of a document (See P 65, r 1). | |
2. | } | Heading and title (See P 65, r 1). |
3. | } | |
4. | Conclusion of documents for use by a party. | |
5. | Statement of Claim (P 4, r 1). | |
6. | Summons (P 5, r 4A). | |
7. | (Repealed) | |
8. | Appointment for hearing (P 5, r 5). | |
9. | Defence and cross-claim (P 6, r 13). | |
10. | Cross-claim (pleaded) (P 6, r 13). | |
11. | (Repealed) | |
11A. | Cross-claim against plaintiff in summons (P 6, r 16 (1)). | |
11B. | (Repealed) | |
12. | Notice of payment (P 7, r 4). | |
13. | Notice of claim for possession (P 7, r 8). | |
13A. | Notice to defendant served outside Australia (P 10, r 2A). | |
14. | Request for special service (P 10, r 8 (a) (v)). | |
15. | Request for service (P 10, r 10). | |
16. | Notice of Appearance (P 11, r 4). | |
17. | Defence (P 15, r 3). | |
18. | Reply (P 15, r 4). | |
19. | Reply and defence to cross-claim (P 15, r 4 (2)). | |
20. | Notice to plead facts (P 15, r 12 (3)). | |
20A. | Affidavit verifying statements of claim (P 15, r 23). | |
20B. | Affidavit verifying defence (P 15, r 23). | |
20C. | Affidavit of debt (P 17, r 4 (2)) | |
21. | Notice to admit facts and authenticity of documents (P 18, rr 2, 5). | |
22. | Notice disputing facts and authenticity of documents (P 18, rr 2, 5). | |
23. | Notice of Motion (P 19, r 2). | |
24. | Notice of amendments (P 20, r 7). | |
25–30A. | (Repealed) | |
31. | Notice for discovery (P 23, r 1). | |
32. | List of documents (P 23, r 6). | |
33. | Notice to answer interrogatories (P 24, r 6). | |
34. | Statement in answer to interrogatories (P 24, r 6). | |
35. | Verified statement in answer to interrogatories (P 24, r 6). | |
36. | (Repealed) | |
37. | Notice of motion for directions (P 26, r 2). | |
38. | Minutes of Order for examination (P 27, r 1D). | |
39. | Minutes of Order appointing examiner (P 27, r 1D). | |
40. | Minutes of Order to send letter of request (P 27, r 1). | |
41. | Receiver’s deed of security (P 29, r 2). | |
41A, 41B. | (Repealed) | |
42. | Notice to set down for trial (P 33, r 5). | |
43. | Requisition for trial with a jury (P 34, r 3). | |
43A. | Order for Production (P 36, r 12). | |
44. | Minutes of order (inmate a witness) (P 36, r 14). | |
45. | Notice to produce (P 36, r 16). | |
45A. | Subpoena for production for service in New Zealand (P 36A r 3 (5)) | |
45B. | Subpoena to a corporation for production and for its proper officer to answer questions concerning possession, etc of documents for service in New Zealand (P 36A r 3 (5)). | |
45C. | Subpoena for production of original or photocopies of medical records for service in New Zealand (P 36A r 3 (5)). | |
45D. | Subpoena to give evidence for service in New Zealand (P 36A r 3 (5)). | |
45E. | Subpoena for production and to give evidence for service in New Zealand (P 36A r 3 (5)). | |
45F. | Certificate of non-compliance with subpoena (P 36A, r 5 (1)). | |
45G. | Objection to determination without hearing (P 36A r 6 (7)). | |
45H. | Request for hearing by video link or telephone (P 36A r 6 (8)). | |
46. | Subpoena (P 37, r 3). | |
46A–48. | (Repealed) | |
49. | Affidavit (P 38, r 2). | |
50. | Minute of judgment (P 41, r 10) and particular judgments. | |
51. | Minute of order (P 41, r 11). | |
51A. | Certificate under section 13 of the Foreign Judgments (Reciprocal Enforcement) Act 1973 (P 41, r 15A (2)). | |
52. | Writ of possession (and for levy of property) (P 42, r 4). | |
53. | Writ of specific delivery (P 42, r 5). | |
54. | Writ of delivery (P 42, r 5). | |
55. | Notice to corporation and officer before sequestration or committal (P 4, r 8 (3)). | |
56. | Minute of order (examination as to debts) (P 43, r 1). | |
57. | Writ for levy of property (P 45, r 2). | |
57A. | Notice to judgment debtor of intention to sell land (P 45, r 9 (2)). | |
57B. | Memorandum to be endorsed on notice of sale for service on judgment debtor. (P45, r 12). | |
58. | Garnishment notice (P 46, r, 3). | |
59. | Ordinary summons for leave to appeal or cross-appeal (P 51, rr 4 (1) (a), (2) (a)). | |
59A. | Holding summons for leave to appeal or cross-appeal (P 51 rr 4 (1) (b), (2) (b)). | |
60. | Notice of Appeal (P 51, r 6 (1) (a), (b) (ii), (2) (b), P 51AA, r 5 (1) (a), (b) (ii)). | |
60AA. | Notice of Appeal (P 51AA, r 5 (1) (a), (b) (ii), (2) (c)). | |
60A. | Notice of Appeal without appointment (P 51, r 6 (1), P 51AA, r 5 (1) (a), (b) (ii)). | |
60B. | Notice of Appeal with hearing date (P 51AA, r 5 (1) (b) (iii)). | |
60C. | Notice of discontinuance of appeal or application for leave (P 51, rr 4A (1), 6 (5), P 51AA, r 5 (5)). | |
61. | Supplementary Notice of Appeal (P 51, r 17, P 51AA, r 12). | |
61AA. | Notice of non objection (P 51, r 27 (1) (b), P 51AA, r 18A (1) (b)). | |
61A. | Index (Court of Appeal) (P 51AA, 21). | |
61B. | Schedule of damages (P 51, r 40, P 51AA, r 25B). | |
62. | Summons (P 51, rr 50, 57, P 51AA, rr 32, 35). | |
62A. | Summons (stated case in the Court of Appeal) (P 51, r 50 (2), r 57, P 51AA, rr 32 (2), 35). | |
62AA. | Notice of motion in the Court of Appeal (P 51, r 49, P 51AA, r 31). | |
62AA1. | Short reasons for decision (P 51, r 59, P 51AA, r 37). | |
62AAA. | Items, etc in a bill of costs (P 52, r 49 (1)). | |
62AB. | Undertaking to pay disbursement (P 52, r 49 (3A)). | |
62AC. | Notice to file objections to bill of costs (P 52, r 50A (3)). | |
62AD. | Notice of objection to a bill (P 52, r 50A (5)). | |
62AE. | Certificate of taxation (P 52, r 50A (7)). | |
62B. | Request for appointment for hearing before taxing officer (P 52, r 50 (4) (ii)). | |
63. | Certificate of taxation (P 52, r 59). | |
64. | Statement of objection (to item of costs disallowed) (P 52, r 60). | |
64A. | Request for taxation or moderation (P 52, r 68 (8)). | |
64B. | Security for costs (P 53, r 3). | |
65. | Warrant for arrest (P 55, r 10). | |
66. | Warrant for committal (P 55, r 13). | |
67. | Notice of claim to Sheriff (interpleader) (P 56, r 5). | |
68. | Minute of order (registration of judgment) (P 59, r 4). | |
69. | Notice of registration of judgment (P 59, r 6). | |
69A. | Order (P 59A, r 5). | |
69B. | Notice of registration of judgement (P 59A, r 7). | |
70. | Notice of Appeal from associate Judge (P 60, r 11 (1)). | |
(The form prescribed under Pt 65 r 1 is Form 1). | ||
70AA. | Oath of office (P 65C, rr 3 (4), 4 (4)). | |
70A. | Notice of intention to cease acting as solicitor (P 66, r 7 (2)). | |
71. | Writ of Habeas Corpus (s 69 (2)). | |
71A, 71B. | } | (Repealed) |
71C. | Arbitrator’s award and Registrar’s notice to parties (P 72B, r 3 (1)). | |
71D. | Arbitrator’s reasons for award (P 72B, r 3 (2)). | |
71E. | Application for rehearing (P 72B, r 5 (1)). | |
72. | Summons (application for adoption order) (P 73, rr 4 (2), 5). | |
73–73B. | (Repealed) | |
74. | Minute of adoption order (P 73, r 7). | |
74AA. | Subpoena to a natural person: criminal proceedings (P 75, r 2 (q)). | |
74AB. | Subpoena to a corporation for production and for its proper officer to answer questions concerning possession etc of documents: criminal proceedings (P 75, r 2 (q)). | |
74AC. | Subpoena to give evidence: criminal proceedings (P 75, r 2 (q)). | |
74AD. | Subpoena for production and to give evidence: criminal proceedings (P 75, r 2 (q)). | |
74AE. | Form of indictment (P 75, r 3D (1)). | |
74AF. | Application to the Supreme Court or the Court of Criminal Appeal for variation of bail (P 75, r 3E (c)). | |
74AG. | Application to the Supreme Court or the Court of Criminal Appeal for bail (P 75, r 3E (d)). | |
74AH. | Acceptable person—Information form (P 75, r 3F). | |
74AHA. | Objection to confirmation of forfeiture order by the Supreme Court or the Court of Criminal Appeal (p 75, r 3FA). | |
74AHB. | Application to set aside forfeiture order by the Supreme Court or the Court of Criminal Appeal (P 75, r 3FB). | |
74AI. | Application to the Supreme Court for an order that the hearing of an application in relation to bail be not conducted by video link (P 75, r 3G). | |
74AJ. | Election under s 132 (1) of the Criminal Procedure Act 1986 (P 75, r 3H (1)). | |
74AK. | Election under s 132 (5) of the Criminal Procedure Act 1986 (P 75, r 3H (1)). | |
74A. | Summons: Part 5 of Chapter 4 of theCriminal Procedure Act 1986 (P 75, r 7). | |
74B. | Minute of order: s 246 (1) (a), Criminal Procedure Act 1986 (P 75, r 8). | |
74C. | Minute of order: s 246 (1) (b), Criminal Procedure Act 1986 (P 75, r 8). | |
74D, 74E. | (Repealed) | |
75. | Summons under s 13 (and section s 68) of the Protected Estates Act 1983 (P 76, r 5). | |
76, 77. | (Repealed) | |
78. | Affidavit of medical practitioner, etc (P 76, r 11). | |
79. | Affidavit of fitness of manager (P 76, r 11). | |
80. | Consent of proposed manager (P 76, r 11). | |
81. | Consent where proposed manager is a company (P 76, r 11). | |
82. | (Repealed) | |
83. | Order under s 13 (and s 68) of the Protected Estates Act 1983 (P 76, r 13). | |
83A. | Order under s 21C of the Protected Estates Act 1983 (P 76, r 13A). | |
84, 85. | (Repealed) | |
86. | Order under s 35 of the Protected Estates Act 1983 (P 76, r 23). | |
86A. | Order under s 35A of the Protected Estates Act 1983 (P 76, r 23D). | |
87. | Statement of account (P 76, r 37 (1)). | |
88. | Affidavit verifying account (P 76, r 37 (1)). | |
89. | (Repealed) | |
89A. | Minute of order under section 21 (2) of the Status of Children Act 1996 (P 77, r 38). | |
89B. | Notice of claim for provision under the Family Provision Act 1982 (P 77, r 63). | |
89C. | (Repealed) | |
89D. | Defendant’s notice under s 31 (5) of the Confiscation of Proceeds of Crime Act 1989 (P 77, r 87A). | |
89E. | Prosecution’s notice under s 31 (5) of the Confiscation of Proceeds of Crime Act 1989 (P 77, r 87A). | |
89F. | Notice under 44 (2) of the Confiscation of Proceeds of Crime Act 1989 (P 77, r 87B). | |
89G. | Certificate under section 85 (1) of the Confiscation of Proceeds of Crime Act 1989 (P 77, r 87G). | |
89E. | Notice under s 24 of the Crimes (Confiscation of Profits) Act 1985 (P 77, r 86). | |
89H. | Order under s 3 (1) of the Restricted Premises Act 1943 (P 77, r 91). | |
89I. | Order under s 4 (1) or 14 (3) of the Restricted Premises Act 1943 (P 77, r 91). | |
89J. | Notice of declaration under s 5 (1) of the Restricted Premises Act 1943 (P 77, r 91). | |
89K. | Notice of rescission under s 5 (1) of the Restricted Premises Act 1943 (P 77, r 91). | |
89L. | Certificate under s 77F of the Victims Compensation Act 1996 (P 77, r 137A). | |
90. | Summons for probate, administration or resealing (P 77, r 8). | |
91. | Notice of intended application for probate (P 78, r 10). | |
92. | Notice of intended application for administration (P 78, r 10). | |
92A. | Notice of intended application for administration under s 41A of the Probate Act (P 78, r 10). | |
93. | Notice of intended application for resealing (P 77, r 10). | |
94. | Renunciation of probate (P 78, r 14). | |
95. | Affidavit of attesting witness (P 78, r 15). | |
96. | Inventory of Property (Forms 97, 98, 104, 106). | |
97. | Affidavit of executor (P 78, r 24). | |
98. | Affidavit of applicant for administration (P 78, rr 24A (1) (a), 25 (1) (a), 25A (2) (a)). | |
98A. | Affidavit showing deceased had no de facto spouse (P 78, r 24A (2) (c)). | |
99. | Affidavit showing deceased had no de facto spouse (P 78, r 25 (2) (f)). | |
99A– 100B. | (Repealed) | |
101. | Consent to administration (P 78, rr 24A, 25, 25A). | |
102. | Administration bond (P 78, rr 24A, 25, 26). | |
103. | Affidavit of surety (P 78, rr 24A, 25, 25A, 26, 34). | |
103A. | Affidavit relating to de facto relationship (P 78, r 25A (2) (e)). | |
103AA. | Affidavit relating to de facto relationships (P 78, r 25A (2) (d)). | |
103B. | Notice where the deceased leaves a de facto wife or de facto husband (P 78, r 25A (3) (b) (iv)). | |
104. | Affidavit of applicant for administration with the will annexed (P 78, r 26). | |
105. | Renunciation in favour of Public Trustee (P 78, r 26). | |
105A. | Affidavit of applicant for administration for the purposes of the Family Provision Act 1982 (P 78, r 26A). | |
106. | Affidavit of applicant for resealing (P 78, r 28). | |
106A. | Affidavit of additional assets (P 78, r 28A). | |
106B. | Consent to distribution of gift (P 78, r 34A). | |
106CA. | Consent to order (P 78, r 34A (1A)). | |
106C. | Notice of intention to distribute estate (P 78, r 34D). | |
106D. | Consent by affected person (P 78, r 34E (1)). | |
106E. | Notice to affected person (P 78, r 34E (1)). | |
106F. | Notice to affected person (P 78, r 34E (3)). | |
107. | (Repealed) | |
108. | Request for issue of citation (P 78, rr 46, 54). | |
109. | Citation to pray for administration (P 78, r 51). | |
110. | Answer to citation to pray for administration (P 78, r 51). | |
111. | Citation to take probate (P 78, r 52). | |
112. | Answer to citation to take probate (P 78, r 52). | |
113. | Citation to see proceedings (P 78, r 53). | |
114. | Caveat in respect of grant of probate or proof of will (P 78, rr 61, 62, 62A). | |
Form 115 | Notice of withdrawal of caveat (P 78, r 64). | |
115A. | (Repealed) | |
116. | Notice of filing of accounts (P 78, r 76). | |
116A. | Notice of Intended Objection to Accounts or Commission or Accounts and Commission (P 78, r 77A). | |
117. | Acknowledgment under s 83 of the Probate Act (P 78, r 80). | |
118. | Notice of appointment of executor or administrator (P 78, r 90). | |
119. | Deed of appointment of executor or administrator (P 78, r 90). | |
120. | Notice of objection to appointment of executor or administrator (P 78, r 90). | |
121. | Notice of intended distribution of an estate under s 92 of the Probate Act, s 60 of the Trustee Act, s 11 of the Testator’s Family Maintenance etc Act, and s 35 of the Family Provision Act (P 78, r 91, P 70, r 16 (3) (a), and P 77, rr 31, 69). | |
121A. | Notice of intended conveyance or distribution of trust property (P 70, r 16 (3) (b). | |
122. | Petition: Parliamentary Electorates etc Act 1912 (P 79, r 8). | |
123. | Notice of filing petition: Parliamentary Electorates etc Act 1912 (P 79, r 9). | |
124. | Notice of reference: Parliamentary Electorates etc Act 1912 (P 79, r 31). | |
125. | Notice of application for reduction of capital and of list of creditors (P 80, r 9). | |
126. | Notice of application under ss 123 (5), 320 and 363 (1) of the Code (P 80, rr 9, 10, 18). | |
127. | Affidavit verifying list of creditors (P 80, r 10). | |
128. | Notice to creditors (P 80, r 10). | |
129. | Affidavit as to claims (P 80, r 10). | |
130. | Notice to creditors to prove debts (P 80, r 10). | |
131. | Summons under s 184 (3) of the Code (P 80, r 12). | |
132. | Summons claiming winding up order under the Code (P 80, r 18). | |
133. | Note of intention to appear on hearing (P 80, r 20). | |
134. | Notice relating to persons intending to appear on hearing (P 80, r 20). | |
135. | Minute of order substituting plaintiff in a winding up application (P 80, r 21). | |
135A. | Notice to liquidator of appointment (P 80, r 22A). | |
136. | Minute of winding up order (P 80, r 23). | |
136A. | Notice to provisional liquidator of appointment (P 80, r 26). | |
137. | Notice of appointment of provisional liquidator (P 80, r 26). | |
138. | Notice of winding up order (P 80, r 28). | |
139. | Certificate of liquidator of resolution of meeting (P 80, r 33). | |
140. | Report (P 80, rr 36, 52). | |
141. | Affidavit by special manager (P 80, r 38). | |
142. | Requirement by liquidator under s 384 (1) of the Code (P 80, r 40). | |
143. | Notice of meeting of committee of inspection: calls (P 80, r 41). | |
144. | Statement with notice of meeting of committee of inspection: calls (P 80, r 41). | |
145. | Notice of meeting of committee of inspection: calls (P 80, r 41). | |
146. | Resolution of committee of inspection: calls (P 80, r 41). | |
147. | Summons for leave to make a call (P 80, r 42). | |
148. | Affidavit: leave to make a call (P 80, r 42). | |
149. | Notice of application for leave to make a call (P 80, r 42). | |
150. | Minute of order: leave to make a call (P 80, r 42). | |
151. | Notice of amount of call per share (P 80, r 43). | |
152. | Notice of call sanctioned by committee of inspection (P 80, r 44). | |
153. | Notice of call permitted by leave of the Court (P 80, r 44). | |
154. | Minute of order under s 541 (3) of the Code for examination (P 80, r 63). | |
154A. | Summons under section 596A or 596B of the Corporations Law (P 80, r 1D (2)). | |
154BA. | Summons under section 1092 (3) of the Corporations Law (P 80A, r 4). | |
154B. | Notice of application under ss 167 (7), 168 (4), 172 (10), 190 (3), 194 (1), 195 (5), 197 (6), 198 (6), 411 (4) (b) and (6), 413 (1), 459A, or 461 of the Corporations Law (P 80A, r 10 (5)). | |
154C. | Notice of application for reduction of capital and of list of creditors (P 80A, r 13 (5) (a)). | |
154D. | Notice to creditors (P 80A, r 13 (5) (b)). | |
154E. | Affidavit verifying list of creditors (P 80A, r 13 (7)). | |
154FA. | Affidavit under s 459E of the Corporations Law (P 80A, r 15). | |
154FB. | Affidavit under s 459Q of the Corporations Law (P 80A, r 16). | |
154F. | Notice to liquidator (or provisional liquidator) of appointment (P 80A, r 20 (1) (a) (i)). | |
154G. | Notice of winding up order and appointment of liquidator (P 80A, r 20 (1) (b)). | |
154H. | Notice of appointment of provisional liquidator (P 80A, r 20 (1) (b)). | |
154I. | Notice of intention of liquidator (or provisional liquidator or receiver or administrator or special manager) to apply for determination of remuneration (P 80A, rr 13A (1), 13B (1) (b), 13C (1), 22 (2), 23 (2) (b)). | |
154J. | Report by liquidator (or as the case may be) (P 80A, rr 25, 31). | |
154K. | Affidavit by special manager verifying his accounts (P 80A, r 27). | |
154L. | Notice of intention of liquidator to seek release (P 80A, r 33 (3) (a) (i)). | |
154M. | Notice of intention of liquidator to seek release (P 80A, r 33 (3) (b)). | |
154N. | Summons to attend for examination under section 596A (or 596B) of the Corporations Law (P 80A, r 36 (6)). | |
155, 156. | (Repealed) | |
157. | Oath of office (P 82, rr 9, 7 (4)). | |
158. | Certification under section 198L of the Legal Profession Act 1987. | |
159–160. | (Repealed) | |
sch F: Ins 2.6.1972.
sch F (explanatory notes): Ins 2.6.1972. Am 23.12.1977; 16.1.1981; 22.10.1982; 18.12.1987; 25.2.1994; 23.5.1997; 19.2.1999; 24.4.2003.
Schedule G Costs
P 52, rr 67, 68.
Table 1
General
Appendix A
Statement of claim etc—
$ | ||
1. | Drawing statement of claim | 9.50 |
or per folio | 1.60 | |
2. | Drawing summons | 9.50 |
or per folio | 1.60 | |
3. | Drawing and attending to obtain— | |
(a) a subpoena to give evidence, including copy for service | 6.50 | |
| 1.00 | |
(b) a subpoena for production or for production and to give evidence, including copy for service | 6.50 | |
| 1.60 | |
4. | Writs of execution or other writs, including drawing and engrossing and all endorsements and copies for service and attending to issue | 9.25 |
Service | ||
5. | Service or attempted service by a solicitor or his employee or filing in lieu of service, where service by post is not authorised | 3.75 |
6. | If at a distance beyond 3 kilometres from the nearest place of business of the solicitor serving a document, at the Scale under section 9 of the Sheriff Act 1900, except in special circumstances. | |
7. | Where a service by post or by leaving a copy of a document in an exchange box or at a document exchange under Part 9 rule 4 (1) (d) or by transmitting information in a document to a facsimile transmission number under Part 9 rule 4 (1) (e) is authorised | 2.25 |
8. | Service by persons other than those specified in items 5, 6 and 7, discretionary, but not exceeding the amount payable under those items. | |
Appearances | ||
9. | Preparing and filing notice of appearance (including copy for service) | 5.75 |
10. | If entered at the one time for more than one person, for every defendant beyond the first | 0.50 |
Preparing for hearing | ||
11. | (Repealed) | |
Drawing | ||
12. | Any document where no other provision is made, per folio or part | 1.60 |
Copies | ||
13. | Of any document, where no other provision is made— | |
(a) typed or written, per folio | 0.50 | |
(b) printed or carbon, per folio | 0.25 | |
(c) photographed, per page, discretionary. | ||
Perusal | ||
14. | Of any document where no other provision is made, per folio | 0.50 |
or per hour | 15.00 | |
Attendance | ||
15. | To file any document where not elsewhere included, to lodge any document for, or to pick up after signature, or any other attendance involving analogous work or any formal attendance | 1.75 |
16. | To file or lodge any document which requires an appointment to be signed by a clerk in the registry or to get any consent order signed | 2.25 |
17. | To settle any minute of order or judgment or obtain signature of a judge, associate Judge or officer of the Court to an order which is not consented to | 3.75 |
or per hour | 15.00 | |
18. | To search the list or for appearance or other document | 1.75 |
19. | To pay money into Court (including filing any necessary document), or to bespeak payment out (including receiving cheque) | 3.75 |
20. | To obtain consent of tutor | 3.75 |
21. | To obtain or give any consent or undertaking | 3.75 |
or if by telephone | 1.75 | |
22. | To produce documents for inspection | 3.75 |
or if personal supervision necessary, per hour | 15.00 | |
or if unqualified clerk attends, discretionary. | ||
23. | To inspect documents | 7.50 |
or per hour | 15.00 | |
or if unqualified clerk attends, discretionary. | ||
Any necessary clerical assistance, per hour | 3.75 | |
24. | To examine and sign admissions | 5.50 |
or per folio | 1.25 | |
25. | For collating necessary material for appeal papers; attendances on the printer, examining and general oversight of their proper preparation | 11.00 |
or per hour | 15.00 | |
26. | On deponent to swear an affidavit or for a solicitor or his clerk to swear an affidavit or such additional amount as the taxing officer thinks fit | 3.75 |
27. | To mark annexure | 0.25 |
28. | On counsel to deliver brief | 1.75 |
29. | On counsel to appoint conference or consultation | 1.75 |
30. | On conference or consultation with counsel, per hour | 15.00 |
or if unqualified clerk attends, discretionary. | ||
31. | In Court instructing counsel on any hearing, per hour | 15.00 |
or if unqualified clerk attends, discretionary. | ||
32. | For any short attendance in Court without counsel | 7.50 |
33. | For any other attendance in Court on any hearing without counsel or for any attendance by a solicitor which involves a high degree of skill and responsibility, per hour | 22.00 |
or such additional amount as the taxing officer thinks fit. | ||
34. | Clerk’s attendance, if in the opinion of the taxing officer, his attendance was reasonably necessary in view of the number of witnesses expected to be called on any day, per day | 15.00 |
35. | To hear reserved judgment | 7.50 |
or per hour | 15.00 | |
or if unqualified clerk attends, discretionary. | ||
36. | To tax a bill of costs | 5.50 |
or per hour | 15.00 | |
or if unqualified clerk attends, discretionary. | ||
37. | To bespeak and obtain a transcript copy of evidence, judgment, copy of the jury panel or any other necessary document | 3.75 |
38. | Any telephone attendance | 1.75 |
or such additional amount as the taxing officer thinks fit. | ||
39. | Attendance where no other provision is made | 3.75 |
or per hour | 15.00 | |
or if unqualified clerk attends, discretionary. | ||
Travelling and Waiting | ||
40. | For each day of not less than six hours employed in travelling or in waiting (plus reasonable travelling expenses and sustenance) | 90.00 |
Where less time than six hours is so employed, per hour | 15.00 | |
or for an unqualified clerk, discretionary. | ||
Letters | ||
40A. | Where no other provision is made— | |
(a) ordinary | 2.75 | |
(b) short formal | 1.75 | |
(c) circular after the first | 0.75 | |
(d) others discretionary. | ||
41. | Skill, care and responsibility, discretionary. | |
Winding up proceedings | ||
41A. | For work done for the applicant in proceedings in a winding up by the Court under the Companies Act 1961 or Companies (New South Wales) Code— | |
(a) in respect of an application for an order appointing a provisional liquidator, up to and including lodgment and delivery of a copy of the order under Rule 50 (3) of the Companies Rules 1968 or delivery of an office copy of the order under Part 80 rule 26, | ||
| 130.00 | |
| 115.00 | |
(b) in respect of an application for an order appointing a liquidator, but not in respect of an application for an order appointing a provisional liquidator, up to and including lodgment, service and delivery of a copy of the order under Rule 54 of the Companies Rules 1968 or lodgment, service and delivery of an office copy of the order under section 370 (2) of the Companies (New South Wales) Code, | ||
| 240.00 | |
| 215.00 | |
Appendix B
Business Done After 8 February 1974
In respect of business done after 8 February 1974, and on or before 1 August 1975, the costs in Appendix A shall be increased by 36 per cent.
Appendix C
Business Done After 1 August 1975
In respect of business done after 1 August 1975 and on or before 23 September 1977 the costs in Appendix A shall be increased by 80 per cent.
Appendix D
Business Done After 23 September 1977
In respect of business done after 23 September 1977 and on or before 31 October 1980 the costs in Appendix A shall be increased by 110 per cent.
Appendix E
Business done after 31 October 1980
In respect of business done after 31 October 1980 and on or before 16 April 1982 the costs in Appendix A shall be increased by 160 per cent.
Appendix F
Business done after 16 April 1982
In respect of business done after 16 April 1982 and on or before 31 December 1983 the costs in Appendix A shall be increased by 225 per cent.
Appendix G
Business done after 31 December 1983
In respect of business done after 31 December 1983 the costs in Appendix A shall be increased by 294 per cent.
Table 2
Fixed costs
Higher scale $ | Lower scale $ | ||
42. | Under Part 7 rule 4 (money claim) | 182 | 91 |
43. | Under Part 52 rule 10 where judgment is entered under Part 17 (except where item 44 applies) in default of appearance or of defence or of verification of defence | 253 | 127 |
44. | Under Part 52 rule 10 where judgment for possession of land is entered under Part 17 in default of appearance or of defence | 326 | - |
45. | Amount to be allowed where a solicitor is the plaintiff and acts for himself or where a member of his firm acts for him, instead of the amounts fixed by item 42 | 127 | 64 |
and instead of the amounts fixed by item 43 | 199 | 100 | |
and instead of the amounts fixed by item 44 | 271 | - | |
46. | Amount to be added where an order under Part 10 rule 2, for leave to proceed has been obtained | 40 | 21 |
47. | Amount to be allowed on a writ of execution | 91 | 46 |
47A. | Amount to be allowed on a writ of possession after the first | 122 | - |
NOTE—
1
In this Table—
(a) “Higher scale” means the amount payable apart from Part 52 rule 24 (3),
(b) “Lower scale” means the amount payable where Part 52 rule 24 (3) (d) applies,
(c) the amounts allowed in items 42–45 include out of pocket expenses, other than those properly paid for filing the originating process, which fee must be added to those amounts,
(d) the amounts allowed in items 47 and 47A include out of pocket expenses, other than the fees properly paid for service or execution of the writ, but not in excess of the scale under section 9 of the Sheriff Act 1900, which fees must be added to those amounts.
2
The costs mentioned in items 42–46 apply in respect of proceedings commenced after 31 December 1983.
3
The costs mentioned in items 47 and 47A apply in respect of a writ issued after 31 December 1983.
Table 3
Allowances to Witnesses
$ | ||
48. | Barristers, solicitors, medical practitioners, surveyors, architects, accountants, pharmacists and other professional persons | 76 |
or per hour | 56 | |
49. | Whenever the persons mentioned in Item 48 are called to give expert evidence and not evidence of fact— | |
(a) to give expert evidence, including travelling to Court, where period from departure from home, hospital, place of practice, office, place of employment or other place to return thereto from attendance at Court does not exceed one and a half hours | 116 | |
(b) for every full hour after the first half hour, or a proportion thereof if not for a full hour | 56 | |
(c) the amounts payable under (a) and (b) above shall not exceed a total of $462 per day. | ||
50. | Travelling and other allowances— (a) payment to be made at the rate of 70 cents per kilometre one way after the first kilometre up to and including 80 kilometres, (b) exceeding 80 kilometres—the reasonable cost thereof plus the cost of reasonable accommodation and meals. | |
51. | Other witnesses: | |
Such allowance as is commensurate with the witness’s remuneration or circumstances but not exceeding the allowances provided by the preceding three items. | ||
52. | Such additional sum as is reasonable for travelling expenses and sustenance and in cases where accommodation is required such further sum as having regard to all the circumstances is reasonable and has been paid in respect thereof. | |
53. | The taxing officer may also allow such amount as he thinks has been reasonably and properly incurred and paid to witnesses for qualifying to give skilled evidence. |
Table 4
Medical examinations and reports
$ | ||
54. | (a) report made by an attending general practitioner— | |
| 32 | |
| 58 | |
(b) report made by an attending specialist— | ||
| 48 | |
| 80 | |
(c) report made by a specialist who has not previously treated the patient— | ||
| 58 | |
| 97 | |
(d) attending a joint examination (including travelling time where the distance does not exceed 8 kilometres)— | ||
| 116 | |
| 48 | |
| 48 | |
|
Table 5
Probate
55. | In respect of proceedings commenced after 23 December 1977, in respect of the estates of persons who died before 31 December 1981, costs of and incident to the obtaining for the first time of probate or administration or of resealing of probate or letters of administration (including satisfying any requisition made by the Commissioner of Stamp Duties after the date of grant, the perusal and checking of the assessment of duty and the payment of duty under the Stamp Duties Act 1920 and all work and attendances incidental to these matters including the uplifting of the grant) shall be allowed in accordance with the scale below. | |
Costs allowed $ | ||
Gross value of the estate as accepted by the Commissioner of Stamp Duties | ||
not exceeding $1,000 | 80 | |
exceeding $1,000 but not exceeding $2,000 | 100 | |
exceeding $2,000 but not exceeding $4,000 | 120 | |
exceeding $4,000 but not exceeding $6,000 | 155 | |
exceeding $6,000 but not exceeding $8,000 | 170 | |
exceeding $8,000 but not exceeding $10,000 | 190 | |
exceeding $10,000 but not exceeding $12,000 | 215 | |
exceeding $12,000 but not exceeding $14,000 | 250 | |
exceeding $14,000 but not exceeding $16,000 | 290 | |
exceeding $16,000 but not exceeding $18,000 | 330 | |
exceeding $18,000 but not exceeding $20,000 | 390 | |
and thereafter at the rate of $15.60 for each $2,000 in excess of $20,000 and a maximum of $4,134 costs. | ||
55A. | In respect of the estates of persons who die on or after 31 December 1981, costs of and incident to the obtaining for the first time of probate or administration or of resealing of probate or letters of administration and costs of and incident to the disclosure of assets and liabilities under section 81A (1) and (2) of the Wills, Probate and Administration Act 1898 and the uplifting of documents issued under section 91 (2) of that Act shall be allowed in accordance with the scale below— | |
Disclosed value of assets $ | Costs allowed $ | |
not exceeding 7,500 | 250 | |
exceeding 7,500 but not exceeding 15,000 | 375 | |
exceeding 15,000 but not exceeding 25,000 | 435 | |
exceeding 25,000 but not exceeding 40,000 | 500 | |
exceeding 40,000 but not exceeding 55,000 | 565 | |
exceeding 55,000 but not exceeding 70,000 | 630 | |
exceeding 70,000 but not exceeding 85,000 | 695 | |
exceeding 85,000 but not exceeding 100,000 | 760 | |
exceeding 100,000 but not exceeding 125,000 | 855 | |
exceeding 125,000 but not exceeding 150,000 | 950 | |
exceeding 150,000 but not exceeding 175,000 | 1,045 | |
exceeding 175,000 but not exceeding 200,000 | 1,140 | |
exceeding 200,000 but not exceeding 250,000 | 1,300 | |
exceeding 250,000 but not exceeding 300,000 | 1,460 | |
exceeding 300,000 but not exceeding 400,000 | 1,680 | |
exceeding 400,000 but not exceeding 500,000 | 1,900 | |
exceeding 500,000 | 2,100 | |
56. | In respect of proceedings commenced after 23 December 1977, costs of and incident to the obtaining of any grant or resealing after the first up to and including the uplifting of the probate or letters of administration so granted or resealed shall be allowed in accordance with the scale below. | |
Value of the assets remaining to be administered at the time of application for the grant | Costs allowed $ | |
not exceeding $1,000 | 80 | |
exceeding $1,000 but not exceeding $2,000 | 100 | |
exceeding $2,000 but not exceeding $4,000 | 120 | |
exceeding $4,000 but not exceeding $6,000 | 155 | |
exceeding $6,000 but not exceeding $8,000 | 170 | |
exceeding $8,000 but not exceeding $10,000 | 190 | |
exceeding $10,000 but not exceeding $12,000 | 215 | |
exceeding $12,000 but not exceeding $14,000 | 235 | |
exceeding $14,000 but not exceeding $16,000 | 250 | |
exceeding $16,000 but not exceeding $18,000 | 270 | |
exceeding $18,000 but not exceeding $20,000 | 295 | |
and thereafter at the rate of $4 for each $2,000 in excess of $20,000 and a maximum of $1,255 costs. | ||
Table 6
Miscellaneous
57– 58A. | (Repealed) |
58. | The prescribed amount under Part 52 rule 69 (1) (adoption application) shall be $460 plus disbursements (including counsel’s fees and registration fees, if any). |
59. | The prescribed amount under Part 52 rule 70 (obtaining certificate of judgment) shall be $264. |
60, 61. | (Repealed) |
sch G: Ins 7.7.1972.
sch G, tbl 1: Ins 7.7.1972. Am 11.1.1974; 1.8.1975; 23.7.1976; 23.9.1977; 21.10.1977; 21.12.1979; 24.10.1980; 16.4.1982; 30.6.1982; 22.10.1982; 19.8.1983; 23.12.1983; 26.9.1986; 20.10.1989.
sch G, tbl 2: Ins 7.7.1972. Am 28.9.1973; 21.12.1973. Subst 11.1.1974. Am 1.8.1975; 5.12.1975; 17.12.1976; 23.9.1977; 28.4.1978. Subst 24.10.1980; 16.4.1982. Am 13.5.1983; 23.12.1983; 1.10.2004.
sch G, tbl 3: Ins 7.7.1972. Am 22.3.1974; 1.8.1975; 23.9.1977; 24.10.1980; 24.7.1981; 16.4.1982; 23.12.1983.
sch G, tbl 4: Ins 7.7.1972. Am 6.9.1974; 23.9.1977; 24.10.1980; 16.4.1982; 23.12.1983.
sch G, tbl 5: Ins 7.7.1972. Subst 22.3.1974; 23.12.1977. Am 16.4.1982.
sch G, tbl 6: Ins 7.7.1972. Am 5.10.1973; 22.3.1974; 6.9.1974; 1.8.1975; 5.12.1975; 26.3.1976; 23.9.1977; 30.5.1980; 24.10.1980; 16.4.1982; 23.12.1983; 29.6.1984; 27.6.1986 (see erratum 18.7.1986); 20.3.1987; 2.12.1988; 20.10.1989; 6.3.1992.
sch G1: Ins 6.3.1992 (see errata 7.8.1992). Am 26.2.1993. Subst 23.2.2001. Am 26.3.2004.
Schedule G1
(P 37, rr 3A (1) (b), 7A (4)
P 46, r 6 (2) (a)
P 77, r 102)
$ | ||
2 | Amount prescribed under Part 36 rule 13BC (2) (medical expert producing photocopies) | 36.00 |
3 | Amount prescribed under Part 46 rule 6 (2) (a) (costs of garnishee) | 25.00 |
5 | Fees prescribed under Part 77 rule 102 (fees chargeable by a person authorised under section 27 (2) of the Oaths Act 1900): | |
(a) for each oath | 4.00 | |
(b) or, if not at the office of the person so authorised | 4.90 | |
(c) or, if more than 5 kilometres from the office of the person so authorised, in addition to travelling expenses | 18.90 | |
(d) for marking any annexure or exhibit | 1.60 | |
(e) for attesting any document | 4.00 | |
6 | Amount prescribed under Part 36 rule 13BA (1) | 214.00 |
The above items include a GST component and section 6 of the Intergovernmental Agreement Implementation (GST) Act 2000 does not apply to them.
Schedule H (Repealed)
sch H: Ins 24.8.1973. Rep 2005 (407), Sch 1 [162].
Schedule I Assignment of business
(Part 12, rule 1)
Part 1 Legislation of New South Wales
Column 1 | Column 2 | Column 3 | Column 4 |
Act or instrument | Provisions | Division | List |
Section 118 or 119 | Common Law | Administrative Law | |
Equity | |||
Common Law | |||
Section 45 | Equity | ||
Section 40, 54, 55B or 58 | Equity | ||
Equity | |||
Section 7 | Equity | ||
Common Law | Administrative Law | ||
Common Law | Administrative Law | ||
Section 33, 34 or 155 | Common Law | Administrative Law | |
Equity | |||
Equity | |||
Equity | |||
Common Law | |||
Commercial Arbitration Act 1984, except in relation to arbitration proceedings that are appropriate for assignment to the Technology and Construction List | Equity | Commercial | |
Commercial Arbitration Act 1984, in relation to arbitration proceedings that are appropriate for assignment to the Technology and Construction List | Equity | Technology and Construction | |
Equity | |||
Equity | |||
Community Services (Complaints, Reviews and Monitoring) Act 1987 | Equity | ||
Common Law | |||
Section 9 or 166B | Common Law | Administrative Law | |
Companies (Acquisition of Shares) (New South Wales) Code | Equity | ||
Equity | |||
Equity | |||
Common Law or Equity (as appropriate in the circumstances) | |||
Common Law | |||
Section 65–67 | Common Law | ||
All provisions except in relation to proceedings assigned to the Court of Appeal | Common Law | ||
Equity | |||
Equity | |||
any “national scheme law” as defined in section 60 | Equity | ||
Section 172 or 474E | Common Law | ||
Section 74 | Common Law | ||
Common Law | |||
Section 30, Part 5 of Chapter 4 or Part 2 of Chapter 7 | Common Law | ||
Section 34A (5) | Common Law | Administrative Law | |
Section 19 (2) or (3) | Common Law | Administrative Law | |
Section 39 (1) | Common Law | Administrative Law | |
Section 39R | Common Law | ||
Common Law | |||
Common Law | |||
All provisions except in relation to proceedings specified in the Third Schedule to the Supreme Court Act 1970 or assigned by Part 75 | Common Law or Equity (as appropriate in the circumstances) | ||
Equity | |||
Common Law or Equity (whichever the other proceedings to which the proceedings relate have been assigned) | |||
Section 75 (9) | Common Law | Administrative Law | |
Equity | |||
Section 58A (1) | Common Law | Administrative Law | |
Part 6 | Common Law | Administrative Law | |
Section 74 | Equity | ||
Futures Industry (New South Wales) Code | Equity | ||
Equity | |||
Gas Pipelines Access (New South Wales) Law | Section 35 or 37 | Equity | |
Section 17 | Common Law | ||
Equity | |||
Common Law | Administrative Law | ||
Common Law | |||
Section 171H | Common Law | ||
Common Law | |||
Common Law | |||
Section 64 | Common Law | Administrative Law | |
Section 330 or 485 | Common Law | Administrative Law | |
Section 113 | Equity | ||
Section 13 | Equity | ||
Married Persons (Property and Torts) Act 1901 | Equity | ||
Section 174, 281 or 285 | Equity | ||
Common Law | |||
Section 319 | Common Law | ||
Equity | |||
Common Law | |||
Common Law | |||
Section 38 (2), 38 (3B) (a) or Part 5A | Common Law | Administrative Law | |
Other than proceedings under section 38 (2), 38 (3B) (a) or Part 5A | Common Law | ||
Section 11 | Common Law | Administrative Law | |
Mutual Recognition (New South Wales) 1992 | Common Law | ||
Equity | |||
Section 12, 13, 19 (1) or (2) or 20 | Common Law | ||
Section 21 | Common Law | Administrative Law | |
National Crime Authority (State Provisions) Regulation 1986 | Regulation 5 | Common Law | |
National Electricity (NSW) Law | Section 46 or 48 | Common Law | Administrative Law |
Equity | |||
Common Law | Administrative Law | ||
Common Law | |||
Section 67 | Common Law | ||
Section 49 (2), 136 (2), 196 (2), 351, 354 (1) or 355 (1) | Equity | ||
Section 21A, 35A or 35B | Common Law | Administrative Law | |
Common Law | |||
Equity | |||
Section 8 or 73 | Common Law | Administrative Law | |
Section 33 or 52 | Common Law | Administrative Law | |
Common Law | Administrative Law | ||
Equity | |||
Common Law or Equity (as appropriate in the circumstances) | |||
Section 16 | Common Law | ||
Section 15 | Common Law | ||
Equity | |||
Equity | |||
Common Law | |||
Section 6 or 10 | Common Law | ||
Equity | |||
Section 42 (1) | Common Law | ||
Common Law | |||
Equity | |||
Common Law | |||
Section 76A or 77 (2) or (4) | Equity | ||
All sections other than section 183 (1) | Equity | ||
Section 18B | Common Law | Administrative Law | |
Section 11B | Common Law | Administrative Law | |
Section 54 | Common Law | Administrative Law | |
Equity | |||
Equity | |||
Securities Industry (New South Wales) Code | Equity | ||
Section 10 | Equity | ||
Section 42, 45 or 72 | Equity | ||
Equity | |||
Equity | |||
Equity | |||
Section 200 | Equity | ||
Section 25 or 26 | Common Law | Administrative Law | |
Section 70 | Common Law | ||
Common Law | Administrative Law | ||
Part 10 | Equity | ||
Equity | |||
Section 39 or 46 | Common Law | Administrative Law | |
Section 44 | Common Law | Administrative Law | |
Section 39 | Common Law | ||
Equity | |||
Section 18 | Equity | ||
Common Law | |||
Section 13 | Equity | ||
Section 17, 19 or 34 (2) | Common Law | ||
Common Law | |||
Section 188 | Equity |
Part 2 Legislation of the Commonwealth
Column 1 | Column 2 | Column 3 | Column 4 |
Act or instrument | Provisions | Division | List |
Equity | Admiralty | ||
Section 383 | Common Law | ||
Equity | |||
Section 51AA (1) (b) or (2) (d) | Common Law | ||
Section 40 (1) | Common Law | ||
Common Law | |||
Section 205F (1), 206 (6), 207 (2), 221 or 245 (1) | Common Law | ||
Equity | |||
Equity | |||
Common Law | |||
Section 39B (1B) (b) or 39B (1C) (d) | Common Law | Administrative Law | |
Equity | |||
Common Law | |||
Equity | |||
Section 32 or 32A | Common Law | Administrative Law | |
Regulation 7 | Common Law | ||
Equity | Admiralty | ||
Section 49 (2), 136 (2), 196 (2), 351, 354 (1) or 355 (1) | Equity | ||
Equity | |||
Common Law | |||
Common Law | Administrative Law | ||
Section 43, 74, 76 (2), 119, 158 (4), 160, 161 (1), (2), (8) or (10), 162, 163, 166 or 176 | Equity | ||
Section 57 (1), 67 (1), 76 (1), 79 (1), 93 (1), 101 or 105 Section 72 (1) or 86 (except in relation to proceedings before the Court) | Common Law | ||
Equity | Admiralty | ||
Section 43 (1) or (7), 44, 45, 46 or 48 | Equity | ||
Section 107A (3) or (4) | Common Law | ||
Equity | |||
Section 69E (1), 69L or 69R (3) | Common Law |
sch I: Ins 3.1.1986. Am 22.9.1989. Subst 2005 (407), Sch 1 [163].
Schedule J Procedure under various Acts
(Part 12, rule 1A)
Part 1 Acts of New South Wales
1 Winding up
(cf Part 80 rule 57, Part 80A rule 38 and Supreme Court (Corporations) Rules 1999 rule 10.3)
(1) The rules relating to the winding up of bodies other than companies (including, where applicable, the Supreme Court (Corporations) Rules 1999) apply, so far as applicable, to, and in relation to, the winding up by the Court of an incorporated association.(2) Part 80 rule 3 and Part 80A rule 3 (3) (which relate to additions to the title) and the instructions concerning the title of the corporation contained in Form 1 of the Supreme Court (Corporations) Rules 1999 do not apply to proceedings under the Act.(3) Documents in proceedings for relief under section 50, 51, 53 or 58 must bear above the title, a reference to the name of the incorporated association to which the proceedings relate together with “the Corporations Act 2001 and the Associations Incorporation Act 1984”.
2 Appeal from liquidator etc (section 58)
A person mentioned in section 58, may, on application in writing made to the person before the expiration of the time limited for instituting an appeal from his or her act, omission or decision (other than the time extended by the Court), grant, by notice in writing, an extension of that time and if he or she does so, he or she must deliver the notice to the applicant, who must file the notice with the summons instituting the appeal.
Application of rules
(1) The provisions of Part 80A, so far as applicable and making such changes as it is necessary to make, apply to proceedings under the Act commenced before the Supreme Court (Corporations) Rules 1999 commenced.(2) The provisions of the Supreme Court (Corporations) Rules 1999, so far as applicable and making such changes as it is necessary to make, apply to all other proceedings under the Act.
1 Statement in summons or notice of motion
(1) The applicant for an order under the Act must file with his or her summons or notice of motion a statement in summary form of the general nature of the facts and circumstances relied on.(2) This clause does not apply to an application under section 77 or 82.
2 Notice of discharge of order (section 26)
Notice of discharge of an order mentioned in section 26 (2) must be given by the appropriate officer on whose application the order was registered by filing, in the court in which the order was registered, a notice stating that the order was discharged and annexing a sealed copy of the order quashing or discharging on appeal.
3 Form of acceptance etc of allegation (section 31)
An allegation may be accepted or a matter may be indicated for the purposes of section 31 (5) (b) in Form 89D or 89E, whichever is appropriate.
4 Form (section 44 (2))
The form prescribed for the purposes of section 44 (2) is Form 89F.
5 Examination order: prescribed officer (section 45)
An officer prescribed for the purposes of section 45 (1) (c) is an associate Judge or a registrar.
6 Notice (section 56 (2))
Notice of an application for the purpose of section 56 (2) must be given by serving the notice of motion by which the application was made personally on each other person who is entitled, by virtue of section 45 (3) (a)–(c), to make an application under section 45 in relation to the restraining order.
7 Information for production order or search warrant (sections 58 (1) and 66 (1))
An information setting out the grounds mentioned in section 58 (1) or 66 (1) may be laid before the Court by filing an affidavit setting out those grounds.
8 Registration of interstate orders (section 77)
(1) A register of orders to which section 77 applies (interstate orders) must be kept in the registry.(2) A copy mentioned in section 77 (2) is registered when it is included in the register.(3) Proceedings for registration of an interstate order must be commenced by summons joining as defendant the person against whom the order was made.(4) The plaintiff may, unless the Court otherwise orders, proceed without service of the summons on the defendant.(5) If the plaintiff adds to the summons a request that the application be granted under this subclause, the Court may make the order in the absence of the public and without any attendance by or on behalf of the plaintiff.(6) If an order is made for registration of an interstate order, the plaintiff must forthwith serve a minute of the order and the interstate order on the defendant.(7) The registration of an order mentioned in section 82 (1) is cancelled when the registrar notes its cancellation on the copy order included in the register.
9 Certifying facsimile copy (section 85 (1))
A facsimile copy of a sealed copy is certified for the purposes of section 85 (1) if it includes a facsimile copy certificate in Form 89G.
1 Application under section 7 (1) or 14 to be by motion
An application for an order under section 7 (1) or section 14 must be made by motion in the proceedings in the Court in which judgment is given (the principal proceedings).
2 Application under section 7 (1)
(1) This clause applies if an application for a certificate under section 7 (1) is made otherwise than at the hearing of the principal proceedings.(2) The evidence in support of the application must include evidence showing:(a) how much of the judgment debt is for work done or for materials supplied (the subject debt), and(b) whether the subject debt consists of daily, weekly or monthly wages, and(c) if the subject debt so consists—whether the subject debt exceeds 120 days’ wages, and(d) if the subject debt so consists and exceeds 120 days’ wages—an amount to be included in the certificate that does not exceed 120 days’ wages, and(e) whether work resulting in the subject debt was done on something moveable and, if so, whether it would be practicable for the applicant to exercise a lien by retaining the thing in the applicant’s possession.(3) The applicant may, unless the Court otherwise orders, proceed without service of notice of the motion or other documents on any person.(4) The application may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of any person.
3 Application under section 14 (1)
On an application under section 14 (1), the applicant may, unless the Court otherwise orders, proceed without service of notice of the motion or other documents on any person.
1 “Prescribed officer”: section 66G (5) (b)
The officer of the Court prescribed pursuant to section 66G (5) (b) (which paragraph relates to service of notice where a co-owner is under mental disability) is the Registrar in Equity.
2 “Prescribed officer”: section 98 (1F)
The officer of the Court prescribed pursuant to section 98 (1F) (which subsection relates to certificates relating to repayments under mortgages) is the Registrar in Equity.
Applicability of the Supreme Court (Corporations) Rules 1999
The provisions of the Supreme Court (Corporations) Rules 1999 relating to applications under the Corporations Act 2001 of the Commonwealth, so far as applicable and making such changes as it is necessary to make, apply to applications under the Act.
Applicability of Parts 80A and 80 and the Supreme Court (Corporations) Rules 1999
(1) The provisions of the Supreme Court (Corporations) Rules 1999 relating to applications under the Corporations Law, so far as applicable and making such changes as it is necessary to make, apply to:(a) proceedings under the Act commenced in the Court after those rules commence, and(b) applications made under the Act in those proceedings.(2) The provisions of Part 80A relating to applications under the Corporations Law, so far as applicable and making such changes as it is necessary to make, apply to:(a) proceedings under the Act commenced in the Court after 31 March 1994 and before the Supreme Court (Corporations) Rules 1999 commence, and(b) applications made under the Act after 31 March 1994 in proceedings in the Court commenced before the Supreme Court (Corporations) Rules 1999 commence.(3) The provisions of Part 80 relating to applications under the Companies Code and under the Corporations Law, so far as applicable and making such changes as it is necessary to make, apply to all other proceedings commenced and applications made under the Act.
Service of notice and order
(1) For the purposes of section 47 (2A), the notice of application must be served by serving the summons by which proceedings on the application are commenced.(2) The plaintiff must serve the minute of order required to be served under section 47 (2C).
1 Statement in summons or notice of motion
The applicant for an order under the Act must file with his or her summons or notice of motion a statement in summary form of the general nature of the facts and circumstances relied on.
2 Examination order: “prescribed officer” (section 12)
An officer prescribed for the purposes of section 12 (1) (b) and (b1) is an associate Judge or registrar.
3 Information for production order
An information setting out the grounds mentioned in section 33 (1), 44 or 48 (1) may be laid before the Court by filing an affidavit setting out those grounds.
Service of certificate
The Minister must serve any certificate made pursuant to section 95 (3) on the appellant.
1 Evidence taken by audio link or audio visual link
(1) An application for a direction under section 5B or 7 may be made orally or by notice of motion.(2) The application must be supported by an affidavit stating the following:(a) the reasons why such a procedure is desirable,(b) the nature of the evidence to be taken,(c) the number of witnesses to be examined,(d) the expected duration of the evidence,(e) whether issues of character are likely to be raised,(f) in the case of submissions—the expected duration of the submissions,(g) the facilities available for such a procedure or that can reasonably be made available, including the minimum transmission rate that will be available,(h) that the requirements of section 20A or 20B are able to be met,(i) an undertaking to pay all appropriate fees/charges for this facility.(3) In deciding whether to grant the application, the Court may take account of the matters set out in the applicant’s affidavit in addition to any other matters considered to be material, including cost and convenience to the witness and all parties.(4) If the Court makes a direction under section 5B (1) or 7 (1), it may direct the registrar to arrange and co-ordinate the appropriate facilities in New South Wales and the other place and may give detailed directions, including a direction that:(a) if applicable—an officer of the Supreme Court of the other State, orbe requested to be present to assist in the transmission of the evidence or submissions and, in particular, to:(b) another person approved by the Court,(c) introduce witnesses to be called and legal representatives, and(d) assist with the administration of oaths, if necessary, and(e) assist with the implementation of any directions or requests given or made by the judge or officer hearing the evidence or submissions.
2 Application that bail proceedings or other preliminary criminal proceedings not be conducted by video link
An application for a direction under section 5BA that proceedings relating to bail or other preliminary criminal proceedings before the Court are not to be conducted by video link:(a) must be in Form 89KA, and(b) if the application is in relation to bail proceedings and is made by the detained applicant—must be filed with the application, made pursuant to section 22 or 44 of the Bail Act 1978, to which it relates, and(c) may be determined or dealt with by the Court in the absence of the public and without any attendance by or on behalf of the applicant.
3 Subpoenas
(1) This clause applies if a party requests the issue of a subpoena in Form 46 to produce at the place where evidence is to be given, or submissions are to be made, pursuant to the direction under section 5B (1) or 7 (1) .(2) In paragraph (c) (i) of Form 46, the words “post, in either case so that he or she receives them—(A) where this subpoena is served within New South Wales—NOT LATER THAN 48 HOURS, andBEFORE THE DATE on which you are required so to attend;”(B) where this subpoena is served out of New South Wales—not later than 24 hours,
are to be replaced by:(a) if service is effected under the Service and Execution of Process Act 1992 of the Commonwealth—“post, PROVIDED THAT in either case he or she receives them not later than 24 hours BEFORE THE DATE on which you are required so to attend;”, or(b) otherwise—“post, PROVIDED THAT in either case he or she receives:(A) them, andNOT LATER THAN 7 days BEFORE THE DATE on which you are required so to attend;”(B) if an officer of the Court considers it appropriate—an amount that the officer considers is sufficient to meet the cost of transmitting them, by a means that the officer considers reasonable, to the place where production is required,(3) The words “PRODUCTION UNDER THE EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) ACT 1998” are to be added immediately under the description of the subpoena on the first page of the subpoena.
4 Notice to produce
A notice to produce at the place where evidence is to be given, or submissions are to be made, pursuant to a direction under section 7 (1) must:(a) be served not later than 14 days before the date on which production is required, unless the Court otherwise orders, and(b) contain the following note:“You may produce the documents and things described above by hand to a clerk of the Court at the Exhibits Office, Level 4 Queen’s Square, Sydney, or by posting them to:Exhibits Clerk,
Prothonotary’s Office, Level 4,
Supreme Court of NSW,
GPO Box 3,
Sydney NSW 2001,PROVIDED THAT in either case he or she receives:(A) them, andNOT LATER THAN 7 days before the date on which you are required so to attend.(B) if an officer of the Court considers it appropriate—an amount that the officer considers is sufficient to meet the cost of transmitting them, by a means that the officer considers reasonable, to the place where production is required,You need not comply with this notice if it is served on you after (date calculated in accordance with paragraph (a)).”, and(c) contain the words “PRODUCTION UNDER THE EVIDENCE (AUDIO AND AUDIO VISUAL LINKS) ACT 1998” immediately under the heading “NOTICE TO PRODUCE”.
1 Commencement of proceedings
Proceedings in the Court on an application for relief under the Act must be commenced by summons.
2 Additions to title
A summons in proceedings for relief under the Act must bear, above the title, the words “Estate of”, the full name of the deceased person and the words “deceased and the Family Provision Act 1982”.
3 Search in index
Any person may, on payment of the fee (if any) fixed under the Act, search in the index kept in the registry against the name of the deceased person in relation to whom any application for an order under the Act has been made.
4 Extension of time for application for provision
A claim for an order under section 16 (2) or (5) may be included in a claim for an order under section 7.
5 Affidavit of administrator
(1) In proceedings for an order under section 7, the administrator must make an affidavit setting out the following:(a) the nature and value of the assets and liabilities at the date of death,(b) what is or is likely to be the nature and value of:(i) any distributed estate, and(ii) the net distributable estate,(c) what is the nature and value of any property which, in his or her opinion, is or may be the subject of any prescribed transaction,(d) the names and addresses of every person who, in his or her opinion, is or may be:(i) an eligible person (designating as a person under legal incapacity any eligible person who, in his or her opinion, is or may be a person under legal incapacity), or(ii) a person beneficially entitled to the distributable estate, or(iii) a disponee, within the meaning of section 21, or(iv) a person holding property as a result of a distribution from the estate,(e) the persons to whom notice was given under clause 9 (2).(2) The affidavit mentioned in subclause (1) must be served within a reasonable time after service of the originating process.
6 Parties
(1) In proceedings on an application by summons for an order under section 7 or 16 (2) or (5), the summons must, subject to subclause (2), join as a defendant every administrator.(2) The summons must not join as a defendant:(a) any person, if any plaintiff is the sole administrator, or(b) any person, if there is sufficient reason for not doing so.
7 Directions as to parties and service
(1) Despite clause 6, 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.(2) Subclause (1) does not affect the powers of the Court under Part 7 of the Uniform Civil Procedure Rules 2005 in relation to the joinder of parties.
8 Representative orders
Rule 7.6 of the Uniform Civil Procedure Rules 2005 applies to proceedings under the Act as it applies to proceedings mentioned in subrule (1) of that rule.
9 Notice to eligible persons
(1) The plaintiff claiming an order under section 7 must, unless he or she is the administrator, when serving the summons, also serve a notice on the administrator showing who, in his or her opinion, is or may be an eligible person (designating as a person under legal incapacity any eligible person who, in his or her opinion, is or may be a person under legal incapacity).(2) The administrator must serve a notice in Form 89B on the following:(a) the surviving spouse (if any) of the deceased person,(b) every child of the deceased person,(c) every person not mentioned in paragraph (a) or (b) who is entitled to share in the distributable estate of the deceased person,(d) any person mentioned by the plaintiff in his or her notice served under subclause (1) and not mentioned in paragraph (a), (b) or (c),(e) any other person who, in his or her opinion, is or may be an eligible person.
10 Additional provision
An application for an order under section 8 (which section relates to the making of additional provision) must be made by motion in the proceedings for the order under section 7.
11 Certified copies of orders
(1) If an order is made under section 7 (not being an interim order), 8, 19 (2) or (3) or 30, an administrator must, unless the Court otherwise orders, within the time prescribed by subclause (2), lodge in the registry:(a) the probate, letters of administration or copy of election, as the case may require, bearing a copy of the minute of order, and(b) a copy of the minute of order.(2) The time prescribed for the purpose of subclause (1) is:(a) if an administrator is a defendant—14 days after the date of service of an office copy of the minute of order on him or her, and(b) in any other case—28 days after the order is entered.(3) The registrar must, unless the Court otherwise orders:(a) certify on each copy that it is a true copy of the minute of order, and(b) send the copy mentioned in subclause (1) (b) to the Registrar in Probate.
12 Revocation etc of order for provision
An application for an order under section 19 (2) must be made by motion in the proceedings for the order under section 7.
13 Discharge of property from liability
An application for an order under section 30 (1) or (2) must be made by motion in the proceedings in which the order for provision has been, or is proposed to be, made.
14 Revocation of release
An application for an order under section 31 (8) or (9) must be made by motion in the proceedings for the order under section 31 (6).
15 Notice of intended distribution
(1) A notice under section 35 must be published:(a) if the deceased person was resident at the date of the deceased person’s death in the State—in a newspaper circulating in the district where the deceased person resided, orand must be served on all persons of whose intention to bring an application under the Act the administrator has notice.(b) otherwise—in a Sydney daily newspaper,(2) The notice may be in or to the effect of Form 121.
1 Interpretation
In these clauses:ineffective judgment and relevant order have, unless the contrary intention appears, in relation to proceedings under the Act, the same meaning as in the Act.
2 Application for order under section 7
A person seeking the aid of the Court in respect of a right or liability to which section 7 refers, other than in respect of an appeal, must commence proceedings:(a) by summons joining as defendants all persons whose interests may be affected by the application, and(b) in the Division to which the proceedings, in which the ineffective judgment was given or recorded, would have been assigned if it had been commenced in the Court.
3 Application for order under section 10
An applicant for an order under section 10 must commence proceedings for the order:(a) by summons joining as defendants all other parties to the proceedings in which the ineffective judgment was given or recorded, and(b) in the Division to which the proceedings, in which the ineffective judgment was given or recorded, would have been assigned if it had been commenced in the Court.
4 Application for order under section 11 (2)
(1) An applicant for an order under section 11 (2) (the order) must commence proceedings for the order by summons, joining as defendants all other parties to the proceeding in which the relevant order was made (the relevant proceedings), in:(a) where the relevant proceedings, if commenced in the Court, would have been commenced in the Court of Appeal—the Court of Appeal, or(b) otherwise—the Division to which the relevant proceedings would have been assigned if they had been commenced in the Court.(2) If the order is made:(a) subject to any order of the Court:(i) the registrar or clerk of the court in which the relevant proceedings were brought must send the record of the proceeding to the Court, and(ii) the Court must proceed as if:(A) the relevant proceedings had been originally commenced in the Court, and(B) the same steps had been taken in the Court as have been taken in any other court or courts in which the relevant proceedings were for the time being pending, and(C) any order made by any other court or courts in which the relevant proceedings were for the time being pending had been made by the Court,(b) the plaintiff must, within 28 days of the order being made, move the Court for directions.(3) The registrar may, without a direction of the Court or a request of a party, file and seal a minute of the order.(4) The registrar must serve a minute of the order on the registrar of the court by which the relevant order was made.
Commencement of proceedings
Proceedings in the Court must be commenced by summons.
Service of certificate
The Minister must serve any certificate made pursuant to section 17 (3) on the appellant.
Joinder of insurer etc (section 17A)
(1) Notice of motion in any proceedings in the Court for an order under section 17A (1) must be filed:(a) if the Court by notice to the parties fixes a date for determining the date for trial—before the date fixed by the notice, and(b) if the venue for trial is elsewhere than Sydney—not later than 6 weeks before the beginning of the sitting at that venue, and(c) in any other case—before the date on which the Court determines the date for trial.(2) The applicant must serve the notice on each other party to the proceedings and on such other person as the Court may direct.
1 Application (section 24)
(1) An application for a declaration of satisfaction that the Sheriff is interested in a trial must be made a reasonable time before the trial by motion in the proceedings to which the application relates.(2) Notice of the motion must be served on the Sheriff.(3) The Sheriff is entitled to be heard on the application without becoming a party to the proceedings.
2 Application under section 26 (3)
An application to the Court for an order under section 26 (3) must be made by summons without joining any person as a defendant.
1 Sealed copy of application under section 208KA
The officer of the Court accepting an application under section 208KA must, on request by the applicant, seal with the seal of the Court a copy of the application provided by the applicant.
2 Affidavit showing compliance with section 208KA
A person applying for a review of a determination under section 208KA must file with the application an affidavit showing compliance with subsection (5) of that section.
Entry of order of Warden’s Court (section 319)
(1) Proceedings for entry in the Court under section 319 of an order for the payment of money must be commenced by summons, joining as defendant the person against whom the order was made.(2) The plaintiff may, unless the Court otherwise orders, proceed without service of the summons on the defendant.(3) If the plaintiff adds to the summons a request that the application be granted under this subclause, the Court may make the order for entry in the absence of the public and without any attendance by or on behalf of the plaintiff.(4) If an order for entry is made in proceedings to which this clause applies, the plaintiff must forthwith serve on the defendant a minute of:(a) the order for entry, and(b) the order which is the subject of the proceedings.(5) An order mentioned in section 319 is entered when a copy of the order (being a copy sealed by the court that made the order) is filed in accordance with an order of the Court.
Joinder of insurer etc (section 66A)
(1) Notice of motion in any proceedings for an order under section 66A (1) must be filed:(a) if the Court by notice to the parties fixes a date for determining the date for trial—before the date fixed by the notice, and(b) if the venue of trial is elsewhere than Sydney—not later than 6 weeks before the beginning of the sittings at that venue, and(c) in any other case—before the date on which the Court determines the date for trial.(2) The applicant must serve the notice on each other party to the proceedings and on such other person as the Court may direct.
Joinder of insurer etc (section 119)
(1) Notice of motion in any proceedings in the Court for an order under section 119 (1) must be filed:(a) if the Court by notice to the parties fixes a date for determining the date for trial—before the date fixed by the notice, and(b) if the venue for trial is elsewhere than Sydney—not later than 6 weeks before the beginning of the sittings at that venue, and(c) in any other case—before the date on which the Court determines the date for trial.(2) The applicant must serve the notice on each other party to the proceedings and on such other person as the Court may direct.
Review of decision
(1) The appropriate officer for the purposes of section 19 (15) is the Prothonotary.(2) The appropriate Registry for the purposes of section 19 (15) is the Registry of the Common Law Division.
Commencement of proceedings under section 354
Proceedings for an order under section 354 (1) must be commenced by summons joining as a defendant the Minister and each person who is directly affected by the relief sought in the proceedings.
Commencement of proceedings
(1) Proceedings in the Court for an order under section 15 in respect of a scheme are to be commenced by summons joining as a defendant the occupational association on whose application the scheme was approved by the Professional Standards Council.(2) The plaintiff must, within one day of commencing proceedings, lodge a copy of the summons at the office of the Professional Standards Council.
1 Death of party to application (section 24)
(1) The Court may, on application by the legal personal representative mentioned in section 24 (1) or of its own motion, order the substitution of that representative as a party to the application under section 20.(2) Rule 6.32 of the Uniform Civil Procedure Rules 2005 applies to proceedings in which the Court makes an order under subrule (1) in the same way as it applies to proceedings in which the Court makes an order under Division 5 or 6 of Part 6 of those rules.
2 Additions to title
Documents in proceedings under the Act must bear above the title the words “Property (Relationships) Act 1984”.
3 Pleading and particulars
(1) Proceedings in the Court under the Act must be commenced by statement of claim.(2) The material facts required in the statement of claim must include the facts alleged to constitute any contribution within the meaning of section 20 (1) on which the plaintiff relies.(3) The particulars required in relation to a statement of claim must include particulars of:(a) any payment relied on in respect of any contribution, and(b) any voucher relied on in respect of any payment.
1 Statement in summons or notice of motion
The applicant under section 232 (1), 235 (3), 238 (2) or 239 (1) must file with his or her summons or notice of motion a statement in summary form of the general nature of the facts and circumstances relied on.
2 Examination order: prescribed officer (section 235 (2) (a))
An officer prescribed for the purposes of section 235 (2) (a) is an associate Judge or registrar.
1 Commencement of proceedings
Proceedings in the Court under the Act must be commenced by summons.
2 Application for declaration: section 3 (1)
The Court may make a declaration under section 3 (1) even if the summons has not been served on the owner or occupier of the premises.
3 Forms
(1) A minute of order under section 3 (1) may be in Form 89H.(2) A minute of order under section 4 (1) or 14 (3) may be in Form 89I.(3) A notice under section 5 (1) may be in Form 89J or 89K, as appropriate.
1 Consent of administrator
In an application for an order under section 84, the plaintiff must:(a) file the consent mentioned in section 85 with the application, and(b) serve the consent with the application.
2 Application under section 88
An application for an order under section 88 revoking or varying an order appointing an administrator may be made by motion in the proceedings in which the order appointing the administrator was made.
1 Form of declaration
A declaration under section 21 (2) (which relates to a declaration of parentage) must be in the prescribed form.
2 Parentage testing procedure: service of notice of motion on non-party
If a party moves under section 26 for an order requiring a parentage testing procedure to be carried out on a person who is not a party to the proceedings, notice of the motion must, unless the Court otherwise orders, be served personally on that person.
3 Service of notice of motion on person under legal incapacity
If the notice of motion for an order requiring a parentage testing procedure to be carried out on a person is to be served personally on a person under legal incapacity and the person served under rule 10.12 of the Uniform Civil Procedure Rules 2005 does not appear to have the care and control of the person under legal incapacity, then, unless the Court otherwise orders, the notice must also be served personally on the person who appears to have that care and control and on such other person as the Court may direct.
4 Service of order on non-party
If the Court makes an order under section 26 (1), the registrar must serve the minute of order on any person on whom a parentage testing procedure is required to be carried out and who is not a party to the proceedings.
5 Person under legal incapacity
If the Court makes an order under section 26 (1), requiring a parentage testing procedure to be carried out on a person under legal incapacity, the order must name the person having the care and control of the person under legal incapacity.
6 Service of order on person under legal incapacity
If any minute of order under section 26 (1) is to be served on a person under legal incapacity and the person served is not the person having the care and control of the person under legal incapacity, then, unless the Court otherwise orders, the minute must also be served personally on the person having that care and control and on such other person as the Court may direct.
7 Service of report
On receipt of a report under clause 18 of the Status of Children Regulation 2003, the registrar must serve the report on the parties to the proceedings and on any person from whom the taking of bodily samples was directed and who is not a party to the proceedings.
Readjustment etc and authorising acts
(1) Proceedings under section 32 (1), 50 (1) or 51 (1) must be commenced by summons, joining as defendants the persons referred to in section 32 (2), 50 (2) or 51 (2), respectively.(2) Notice under section 32 (2), 50 (2) or 51 (2) must be served by serving the summons.(3) An application under section 50 (10) or 51 (2) for variation of an order must be made by motion in the proceedings for the order.
Readjustment etc and authorising acts
(1) Proceedings in the Court under section 37 (4), 61 (1), 79 (1) or 80 (1) must be commenced by summons joining as defendants the persons referred to in section 37 (5), 61 (2), 79 (2) or 80 (3), respectively.(2) Notice under section 37 (5) or (8), 61 (2), 79 (2) or 80 (3) must be served by serving the summons by which the application is made.(3) An application under section 37 (13), 79 (10) or 80 (13) for variation of an order must be made by motion in the proceedings for the order.
Evidence of jurisdiction
A plaintiff must file and serve, with a summons by which application for review is made under section 97, an affidavit:(a) showing:(i) that the application is made under section 97 (1) (a), or(ii) that:(A) the application is made under section 97 (1) (b), and(B) the application is not in breach of the time prescribed by section 97 (1) (b), and(C) section 100 (1) has been complied with, and(b) showing that the application is not in breach of section 97 (2) or (3).
1 Commencement of proceedings
(1) The summons commencing proceedings under the Act may state an appointment for hearing.(2) The summons must bear, above the title, the words “Estate of”, the full name of the deceased person and the words “deceased and the Testator’s Family Maintenance, etc Act 1916”.
2 Parties
(1) This clause applies to proceedings for an order under section 3 or 5 (2A).(2) In proceedings to which this clause applies, subject to subclause (3), the summons must join as a defendant every executor or administrator.(3) The summons must not join as a defendant:(a) any person, if any plaintiff is the sole executor or administrator, or(b) an executor or administrator who is a plaintiff, or(c) any person, if there is sufficient reason for not doing so.
3 Extension of time for application
A claim for an order under section 5 (2A) may be included in the summons claiming an order under section 3.
4 Affidavit of executor
(1) In proceedings for an order under section 3, the executor or administrator, as the case may be, must make an affidavit setting out:(a) the nature and value of the assets and liabilities at the date of death, and(b) what is or is likely to be the nature and net amount of the distributable estate, and(c) such information as is available to the deponent as to the family of the deceased, and(d) the person beneficially entitled.(2) The affidavit mentioned in subclause (1) must be served within a reasonable time after service of the summons commencing the proceedings.
5 Additional provision
An application for an order under section 6A (which section relates to the making of additional provision) may be made by motion in the proceedings for an order under section 3.
6 Directions as to parties and service
(1) The Court may, at any stage of the proceedings to which these clauses apply, direct that any person be added as a party or substituted for another party or a former party or that notice of the proceedings be served on any person in addition to or instead of the defendant.(2) Subclause (1) does not affect the powers of the Court under Part 7 of the Uniform Civil Procedure Rules 2005 in relation to the joinder of parties.
7 Representative orders
Rule 7.6 of the Uniform Civil Procedure Rules 2005 applies to proceedings under the Act as it applies to proceedings mentioned in subrule (1) of that rule.
8 Certified copies of order
(1) The Court may, but need not, make any direction or requirement under section 6 (3).(2) Unless the Court otherwise orders, in every case in which provision is made under the Act, a certified copy of the minute of the order making the provision must be made on the probate, the letters of administration, or a copy of an election under section 18A of the Public Trustee Act 1913, whichever is appropriate.(3) Unless the Court otherwise orders, an executor or administrator must, within the time prescribed by subclause (4), lodge in the registry:(a) the probate, the letters of administration or the copy of the election, as the case may require, bearing a copy of the minute of order, and(b) a copy of the minute of order.(4) The time prescribed for the purpose of subclause (3) is:(a) if an executor or administrator is a defendant—14 days after the date of service of an office copy of the minute of order on the defendant, and(b) in any other case—28 days after the order is entered.(5) The registrar must:(a) certify on each copy that it is a true copy of the minute of order, and(b) send the copy mentioned in subclause (3) (b) to the Registrar in Probate.
9 Notice of intended distribution
A notice under section 11 may be in or to the effect of Form 121.
1 Statement in summons or notice of motion
The applicant for an order under the Act must file with his or her summons or notice of motion a statement in summary form of the general nature of the facts and circumstances relied on.
2 Examination order: prescribed officer (section 58H (2) (a))
An officer prescribed for the purposes of section 58H (2) (a) is an associate Judge or registrar.
3 Certificate of amount payable
A certificate issued by the registrar under section 75 or 77F may be in the prescribed form.
1 Section 17 applications
Proceedings for an order under section 17 must be commenced by summons without joining any person as a defendant.
2 Section 19 (2) applications
Proceedings for an order under section 19 (2) in respect of an entry must be commenced by summons joining as a defendant the person to whom the entry relates.
3 Section 34 (2) applications
Proceedings for an order under section 34 (2) must be commenced by summons joining as a defendant the person against whom the order is sought.
Proof of payments
A defendant pleading a defence under section 151Z (1) (e), or under section 150 (1) (e) as in force immediately prior to its omission by the Workers Compensation (Benefits) Amendment Act 1989 need not, in his or her pleading, state the amount of any payments made under the Act, but may, by affidavit filed and served not later than 3 days before the date for which the proceedings are set down for trial, adduce evidence of any such payments.
Part 2 Acts of the Commonwealth
Statement in summons or notice of motion
The applicant for an order under the Act must file with his or her summons or notice of motion a statement in summary form of the facts and circumstances relied on.
Registration (section 45)
(1) A register of orders to which section 45 applies must be kept in the registry.(2) A copy mentioned in section 45 (2) is registered when it is included in the register.(3) Proceedings for registration of an order to which section 45 (1) applies must be commenced by summons joining as defendant the person against whom the order was made.(4) The plaintiff may, unless the Court otherwise orders, proceed without service of the summons on the defendant.(5) If the plaintiff adds to the summons a request that the application be granted under this subclause, the Court may make the order in the absence of the public and without any attendance by or on behalf of the plaintiff.(6) The plaintiff must file with the summons an affidavit setting out such particulars as are necessary to enable the Court to comply with section 45 (1).(7) If an order is made under section 45 (1) for registration of an order, the plaintiff must serve a minute of the order for registration and the registered order on the defendant.
Commencement of proceedings under section 354
Proceedings for an order under section 354 (1) must be commenced by summons joining as a defendant the Designated Authority and each person who is directly affected by the relief sought in the proceedings.
1 Statement in summons or notice of motion
The applicant for an order under the Act must file with his or her summons or notice of motion a statement in summary form of the facts and circumstances relied on.
2 Information for production order or search warrant (sections 66 (1) and 71 (1))
An information setting out the grounds mentioned in section 66 (1) or 71 (1) may be laid before the Court by filing an affidavit setting out those grounds.
1 Application by Regulator under section 119 (3)
An application by the Regulator for an inquiry or order under section 119 (3) must be made by summons, filed with the certificate under section 119 (2), and joining as a defendant the person who is the subject of the certificate.
2 Notice of certain applications to be given to Regulator
Unless the Court otherwise orders, an applicant for an order under section 158 (1) or (4) or 160 (5) must serve on the Regulator, a reasonable time before the hearing of the application, a copy of the originating process, or interlocutory process, and supporting affidavit in respect of the application.
3 Intervention by Regulator
(1) The Regulator may intervene under section 168 by filing a notice of appearance that includes a statement that the Regulator intervenes under the section.(2) On complying with subclause (1), the Regulator must be added as a defendant.
sch J: Ins 24.8.1990. Am 15.2.1991; 16.8.1991; 21.2.1992; 21.8.1992; 20.8.1993; 24.2.1995; 21.2.1997; 22.8.1997; 21.8.1998; 25.2.2000; 25.8.2000; 31.8.2001; 1.3.2002. Subst 2005 (407), Sch 1 [163].
Schedule K (Repealed)
sch K: Ins 28.1.2000. Rep 2005 (407), Sch 1 [163].