Contents
Order 1 Preliminary
1 Short title [see Note 1] 21
2 Commencement 21
3 Repeal 21
4 Interpretation 21
4A Exercise of Court’s power 24
5 Order on terms 24
5A Filing and lodging documents 24
5AB Filing and lodging by facsimile transmission 27
5AC Filing and lodging by electronic communication 29
6 Serial number 31
7 Forms 31
8 Relief from rules 31
9 Proceedings wanting or in doubt 31
Order 2 Sittings and vacation
1 Sittings 33
Order 3 Time
1 Month 34
2 Reckoning 34
3 Extension and abridgment 34
4 Fixing times 35
6 Registry hours 35
Order 4 Commencement of proceedings
1 Commencement by application — Form 5 36
1A Certification of merits of application commencing migration litigation 36
2 Parties 36
3 Relief claimed 37
4 Name, address etc 37
5 Notice to appear 38
6 Affidavit or statement of claim — Form 7 38
7 Filing and copies 38
8 Date for hearing 38
9 Claim for interlocutory relief 39
10 Endorsement of date 39
11 Time for service 39
12 Alteration of hearing date 39
13 Alteration of date where service less than 5 days before hearing 39
14 Suit in person 40
15 Application for the issue of a summons (Corporations Act s 596A, s 596B) 40
Order 5 Cross‑claims and third party claims
1 Claim by respondent 41
2 Cross‑claim 41
3 Title 41
4 Rules applicable where statement of claim 42
5 Pleading — Forms 8, 9, 10 42
6 Service of prior pleadings — Form 11 42
7 Rules applicable where affidavit 43
8 Cross‑claims by leave 43
9 Cross‑claim after directions hearing 44
10 Service 44
11 Conduct of proceeding generally 44
12 Directions 45
15 Separate prosecution 46
16 Contribution or indemnity 46
17 Offer of contribution 47
Order 6 Parties, causes of action and interveners
1 Multiple claims 48
2 Joinder of parties generally 48
3 Joint right 48
4 Leave under rule 2 and subrule 3 (2) 49
5 Common liability 49
6 Inconvenient joinder 49
7 Misjoinder and non‑joinder of parties 49
8 Addition of parties 50
9 Removal of parties 50
10 Death, transmission etc 50
11 Further conduct of proceedings 50
12 Failure to proceed after death of party 51
13 Representation: concurrent interests 52
14 Representation of beneficiaries by trustees 53
15 Deceased person 53
16 Conduct 53
17 Interveners 54
Order 7 Service
1 Originating process 55
2 Personal service: how effected 55
3 Mode of service 56
4 Ordinary service: how effected 56
4A Service on principal solicitor 58
5 Identity 59
6 Address for service 59
7 Document exchange, facsimile number or email address — Form 12 59
8 Acceptance by solicitor 60
9 Substituted service 61
10 Informal service: confirmation 61
11 Service by filing 61
12 Notice etc by the Court 62
13 Injunction: service 62
14 Service under contract 63
Order 8 Service outside Australia
Division 1 General
1 Definitions for Order 8 64
2 When originating process may be served outside Australia 64
3 Application for leave to serve originating process outside Australia 67
4 Service of other documents 68
5 Application of other rules 69
6 Method of service 69
7 Substituted service 70
8 Proof of service 70
Division 2 Service through the diplomatic channel or by transmission to a foreign government
9 Documents to be lodged with the Court 71
10 Order for payment of expenses 72
Order 8A Service under the Hague Convention
Division 1 Preliminary
1 Definitions for Order 8A 73
2 Provisions of this Order to prevail 75
Division 2 Service abroad of local judicial documents
3 Application of Division 75
4 Application for request for service abroad 76
5 How application to be dealt with 77
6 Procedure on receipt of certificate of service 78
7 Payment of costs 79
8 Evidence of service 79
Division 3 Default judgment following service abroad of initiating process
9 Application of Division 80
10 Restriction on power to enter default judgment if certificate of service filed 80
11 Restriction on power to enter default judgment if certificate of service not filed 81
12 Setting aside judgment in default of appearance 82
Division 4 Local service of foreign judicial documents
13 Application of Division 82
14 Certain documents to be referred back to the Attorney‑General’s Department of the Commonwealth 83
15 Service 84
16 Affidavit as to service 85
Order 9 Appearance
1 Appearance by solicitor or in person 86
2 Time for appearance 86
3 Mode of entry 86
4 Notice of appearance 87
5 Service of appearance 87
6 Conditional appearance 88
7 Setting aside originating process etc 88
Order 10 Directions hearing
1 Directions hearing — general 89
2 Fixing of date 92
3 Determination of proceeding 92
4 Motion for summary judgment, stay or dismissal 92
5 Interlocutory orders 93
6 Motion on notice 93
9 Use of recording device or communication device in place where hearing taking place 93
Order 10A Cross‑vesting
1 Interpretation 95
2 Application of order 95
3 Application under the Act 95
4 Applications for transfer of proceedings 95
5 Proceedings in which jurisdiction under cross‑vesting laws is or may be invoked 96
6 Proceedings transferred under cross‑vesting laws 96
7 Conduct of proceedings 97
Order 11 Pleadings
Division 1 General
1 Paragraphs — Form 7 98
1A Pleading to include name of person who prepared it 98
1B Pleading prepared by lawyer 98
2 Facts not evidence 98
3 Brevity 99
4 Documents and spoken words 99
5 Presumed facts 99
6 Conditions precedent 99
7 New fact or matter 99
8 Departure 100
9 Points of law 100
10 Matters for specific pleading 100
11 Tender 100
12 Set‑off 100
13 Admissions and traverse 101
14 Joinder of issue 101
15 Close of pleadings 102
16 Embarrassment etc 102
17 General issue 102
18 Denial to be substantial answer 102
Division 2 Progress of pleadings
19 Times for filing and service of pleadings 103
20 Defence — Form 16 103
21 Defence to cross‑claim 103
22 Reply — Forms 17 and 18 103
Order 12 Particulars
1 General 105
2 Fraud etc 105
3 Conditions of mind 105
4 Damages 105
5 Order for particulars 106
Order 13 Amendment
1 Application of Order 107
2 General 107
3 Amendment of pleading without leave 108
3A Date when amendment takes effect 109
4 Consequential amendment of defence or reply 109
5 Disallowance of amendment 110
6 Duration of leave 110
7 Mode of amendment — directions 111
8 Mode of amendment — simple amendment — Form 19 111
9 Mode of amendment — fresh document 111
10 Service after amendment 111
Order 14 Affidavits
1 Time for swearing 113
2 Form of affidavit — Form 20 113
3 Alteration 115
4 Exhibits and annexures 115
5 Irregularity 115
5A Certificate of compliance — Form 20A 115
6 Use of affidavit 116
7 Service 116
8 Scandal etc 116
9 Cross‑examination 116
Order 15 Discovery and inspection of documents
Division 1 Discovery
1 Notice of discovery — Form 21 117
2 Discovery on notice 117
3 Limitation of discovery on notice 118
4 Co‑respondents 118
5 Order for general discovery 118
6 Contents of list — Form 22 119
6A Discovery of documents 119
7 Absence of privilege 120
7A Supplementary discovery 120
8 Order for particular discovery 120
9 Deponent 121
Division 2 Inspection
10 Document referred to in pleading or affidavit 122
11 Order for production 122
12 Copying of documents produced for inspection 123
13 Production to the Court 123
14 Inspection to decide objection 123
Division 3 General
15 Order only if necessary 124
17 Public interest 124
18 Use of documents 124
Order 15A Preliminary discovery and discovery from non‑party
1 Interpretation 125
2 Privilege 125
3 Discovery to identify a respondent 126
4 Conduct money 126
5 Party an applicant 127
6 Discovery from prospective respondent 127
7 Party an applicant 127
8 Discovery from non‑party 128
9 Procedure 128
10 Inspection of documents 128
11 Costs 128
12 Power to order inspection, preservation etc of property 129
Order 16 Interrogatories
1 Interrogatories by notice — Form 23 130
2 Answers pursuant to notice 130
3 Limitation of interrogatories by notice 130
4 Co‑respondents 131
5 Order to answer 131
6 Contents of statement — Form 24 131
7 Deponent — Form 24 132
8 Insufficient answer 133
10 Answers as evidence 133
11 Public interest 133
Order 17 Inspection of property
1 Inspection of property 134
2 Application and service 134
3 View 134
Order 18 Admissions
1 Voluntary admission 135
2 Notice to admit facts — Form 25 135
3 Admission of documents discovered 135
4 Judgment on admissions 136
Order 19 Motions
1 Application 137
2 Notice of motion — Form 27 137
3 Time for service of notice 138
4 Service 138
5 Absence of party 138
6 Notice of adjournment 138
7 Further hearing 139
Order 20 Summary disposal and stay of proceedings
1 Definitions 140
2 Summary judgment (proceedings commenced before 1 December 2005) 140
3 Stay of enforcement of summary judgment (proceedings commenced on or after 1 December 2005) 141
4 Stay or dismissal (proceedings commenced before 1 December 2005) 141
5 Stay or dismissal (proceedings commenced on or after 1 December 2005) 141
6 Residue of proceedings 142
Order 21 Vexatious litigants
1 Vexatious litigant 143
2 Vexatious proceeding against a person 143
3 Application 144
4 Rescission or variation of order 144
5 Leave to start or continue proceeding 144
Order 22 Withdrawal and discontinuance
1 Withdrawal of appearance — Form 28 145
2 Discontinuance — Form 29 145
3 Costs 146
4 Withdrawal of defence reply etc — Form 30 146
5 Mode of discontinuance or withdrawal 146
6 Service 146
7 Effect of discontinuance 146
8 Stay to secure costs 147
Order 23 Offer of compromise and payment into court
1 Interpretation 148
2 Application 148
3 Form of offer 148
4 Further requirements of offer 149
5 Time for making or accepting offer 149
6 Withdrawal of acceptance 150
7 Offer to be without prejudice 151
8 Offer not to be disclosed to Court 151
9 Failure to comply with accepted offer 151
10 Multiple respondents 152
11 Costs 153
12 Where tender before action pleaded 155
13 Payment of money out of Court 155
14 Notice of deposit — Form 31 155
15 Security to pay into Court — Form 36 155
16 Service 157
Order 24 Evidence taken in Australia or abroad or evidence taken under Part 2 of the Foreign Evidence Act 1994
1 Order for examination of witness — Forms 37, 38 and 39 158
2 Letter of request 158
2A Procedure where orders are made under paragraph 7 (1) (a) or (b) of the Foreign Evidence Act 1994 159
3 Documents for examiner 159
4 Appointment for examination 160
5 Conduct of examination 160
6 Examination of additional persons 161
7 Objection 161
8 Taking of depositions 161
9 Authentication and filing 162
10 Special report 162
11 Default of witness 162
12 Order for payment of expenses 163
13 Perpetuation of testimony 163
14 Exclusion of evidence in criminal proceedings 164
Order 25 Interim Orders
1 Order before commencement of proceeding 165
2 Preservation of property 165
3 Disposal of personal property 166
4 Interim distribution 166
5 Interim income 166
6 Payment before ascertainment of all persons interested 166
7 Terms: time for order 167
Order 25A Freezing Orders
1 Interpretation 168
2 Freezing order 168
3 Ancillary order 168
4 Respondent need not be party to proceeding 169
5 Order against judgment debtor or prospective judgment debtor or third party 169
6 Jurisdiction 171
7 Service outside Australia of application for freezing order or ancillary order 171
8 Costs 171
Order 25B Search Orders
1 Interpretation 172
2 Search order 172
3 Requirements for grant of search order 172
4 Jurisdiction 173
5 Terms of search order 173
6 Independent solicitors 174
7 Costs 174
Order 26 Receivers
1 Receiver and manager 175
2 Address for service 175
3 Security — Form 40 175
4 Remuneration 176
5 Accounts 176
6 Default 176
7 Powers 177
8 Account on death 177
Order 27 Subpoenas
1 Definitions 178
2 Issuing of subpoena 178
3 Form of subpoena 179
3A Change of date for attendance or production 180
4 Setting aside or other relief 180
5 Service 180
6 Compliance with subpoena 181
7 Production otherwise than upon attendance 182
8 Removal, return, inspection, copying and disposal of documents and things 182
9 Inspection of, and dealing with, documents and things produced otherwise than on attendance 183
10 Return of documents and things produced 184
11 Costs and expenses of compliance 185
12 Failure to comply with subpoena — contempt of court 185
13 Documents and things in the custody of a court 186
Order 27A Leave to issue subpoena
1 Application of Order 27A 187
2 Leave to issue subpoena 187
Order 28 Security for costs
1 Interpretation 189
2 Application 189
3 Cases for security 189
4 Manner of giving security 190
5 Stay or dismissal 190
6 Saving 190
Order 29 Separate decision of questions: consolidation
Division 1 Separate decision of questions
1 Interpretation 191
2 Order for decision 191
3 Orders, directions upon decision 191
4 Disposal of proceedings 191
Division 2 Consolidation
5 Consolidation etc 192
Order 30 Setting down
1 Interpretation 193
2 Request to fix date for trial (Form 44) 193
3 Fixing date for trial 193
4 Notice of date for trial (Form 44A) 194
6 Place of trial 194
7 Vacating date for trial 194
Order 31 Juries
1 Notice of motion for jury trial 195
Order 32 Trial
1 Interpretation 196
2 Absence of party 196
3 Default of appearance of both parties 196
4 Conduct of the trial 197
4A Limitation on time etc to be taken for trial 198
5 Record 198
6 Death before judgment 199
Order 32A Dealing with applications and matters in original jurisdiction without oral hearing
1 Court may deal with certain applications and matters without an oral hearing 200
2 Request that Court deal with application or matter without an oral hearing 200
3 Summary of argument 200
Order 33 Evidence: general
1 Witnesses at a trial 202
4 Depositions 202
5 Evidence in other proceedings 202
6 Plans, photographs and models 202
8 Production of court documents 203
9 Consent of trustee etc 203
10 Leading questions to witness 203
11 Privilege 204
12 Production on notice — Form 45 205
13 Attendance and production 205
14 Attendance of prisoner in proceedings before Court or examiner 206
15 Parties in lawful custody 206
16 Notice of intention to adduce evidence of previous representation — Form 144 206
17 Notice of objection to tender of hearsay evidence if maker available — Form 145 207
18 Notice of intention to adduce tendency evidence — Form 146 207
19 Notice of intention to adduce coincidence evidence — Form 147 208
20 Form of expert report 208
Order 34 Court expert
1 Application 210
1A Definition 210
2 Appointment 210
3 Report 210
4 Cross‑examination 211
5 Remuneration 211
6 Further expert evidence 211
Order 34A Evidence of expert witnesses
1 Application 213
2 Definitions 213
3 Evidence by expert witnesses 213
Order 34B Expert assistant
1 Application 215
2 Appointment of expert assistant 215
3 Assistance to be given 215
4 Remuneration of expert assistant 216
Order 35 Judgments and orders
1 General relief 217
2 Written reasons 217
3 Date of effect 217
4 Time for compliance 217
5 Fine 218
6 Dismissal 218
7 Setting aside 219
8 Interest on judgment 219
9 Judicial notice of order 220
10 Consent orders by filing in a Registry 220
10A Consent orders 221
11 Undertakings 221
Order 35A Order or judgment on default
1 Definitions 222
2 When a party is in default 222
3 Orders on default 223
4 Contempt 225
Order 36 Entry of orders
1 Definition 226
2 When entry is required 226
3 Entry of an order 226
4 Lodgment of orders for entry 227
5 Courtroom entry 227
6 Date of effect 227
7 Authentication of orders 227
8 Service of orders 228
9 Certificate of judgment 228
Order 37 Judgments and orders: enforcement
1 Attendance 229
2 Service before committal or sequestration 229
3 Substituted performance 231
4 Enforcements by or against non‑party 231
5 Non‑performance of condition 232
6 Matters occurring after judgment 232
7 Enforcement as in State and Territory Supreme Courts 232
8 Ex parte application 233
9 Warrant for committal — Forms 49 and 49A 233
10 Stay of execution 233
Order 38 Assessment of damages
1 Ascertainment of damages where a matter of calculation 234
2 Certificate of Registrar 234
3 Damages in respect of continuing cause of action 235
Order 39 Accounts and inquiries
1 Account: summary order 236
2 Account or inquiry at any stage 236
3 Account: directions 236
4 Account: form and verification 236
5 Account: filing and service 237
6 Account: notice of charge or error 237
7 Account: allowances 237
8 Delay 237
9 Account: taken before Registrar 237
10 Certificate of Registrar 238
Order 40 Contempt
Division 1 Contempt in the face or hearing of the Court
1 Arrest 239
2 Charge, defence and determination 239
3 Interim custody 239
Division 2 Motion or proceedings for punishment
4 Application 240
5 Procedure generally 240
6 Statement of charge 240
7 Evidence 240
8 Service 241
9 Arrest — Form 48 241
10 Motion or proceedings by the Registrar 241
Division 3 General
11 Warrant — Form 48 242
12 Discharge 242
Order 41 Documents
1 First page of a document — Form 1 243
2 Documents 243
3 Details to be shown on first page of a document 244
4 Numbers 245
5 Scandalous, vexatious or oppressive material 245
6 Signing documents — Form 4 245
7 Signature by electronic means 245
7A Signature by electronic means — Registrar 246
8 Documents filed electronically 246
Order 42 Partnerships and business names
Division 1 Partnerships
1 Interpretation 247
2 Action in partnership name 247
3 Disclosure of names etc of partners 247
4 Service 248
5 Appearance of partners 248
6 Appearance under protest of person served as partner 249
7 Defence 249
8 Entry of order 249
9 Execution of judgment against a partnership 249
10 Judgment against individual partner 250
11 Application to proceedings between co‑partners 250
Division 2 Individuals trading under a business name
12 Interpretation 251
13 Proceedings in business name 251
14 Application of rules 252
15 Service 252
16 Appearance 252
17 Proceeding under either Division 252
18 Amendment as to parties 253
19 Execution 253
20 Variation of judgment or order 254
21 Discovery in aid of rules 18 and 20 254
Order 43 Disability
1 Proceeding by or against person under disability 255
2 Appointment of tutor by the court 255
3 Removal of tutor 255
4 Appointment of tutor generally 256
5 Conduct of proceedings by tutor 257
6 Cross‑claim 257
7 No imputed admission on pleadings 257
8 Discovery and interrogatories 257
9 Compromise etc of matter in suit 258
10 Payment into Court 258
11 Compromise etc before suit 258
12 Terms of approval 259
13 Service 259
Order 44 Interpleader
Division 1 Preliminary
1 Interpretation 261
Division 2 Stakeholder’s interpleader
2 Case for relief 261
3 Application in a pending proceeding 262
Division 3 Sheriff’s interpleader
4 Notice of claim — Form 50 262
5 Notice to execution creditor 263
6 Admission of claim 263
7 Interpleader motion 264
Division 3A Payment pursuant to statutory entitlement
7A Payment pursuant to statutory entitlement 264
Division 4 General
8 Powers generally 265
9 Default by claimant 265
10 Neutrality of applicant 266
11 Order in several proceedings 266
12 Disposal 267
Order 45 Solicitors
1 Power to act by solicitor 268
2 Adverse parties 268
3 Change of solicitor 268
4 Change of agent 268
5 Appointment of solicitor 269
6 Removal of solicitor 269
7 Withdrawal of solicitor 269
7A New address for service 270
8 Effect of change 270
9 Signature for lawyer 270
Order 46 Registries
1 Taking of oaths and affidavits 272
2 Seal of Court 272
3 Use of seal 273
4 Stamp of Court 273
4A Affixing the seal or stamp of the Court 273
5 Custody of documents 273
6 Inspection of documents 274
7 Operation of registries 276
7A Refusal to accept document for filing 276
7AA Powers of the Court that may be exercised by a Registrar (Act s 35A) 277
7B Registrar’s exercise of power (Act, s 35A) 278
8 Temporary venue 278
9 Transmission of documents 279
10 Transmission of order 280
11 Summary of order 280
12 Facsimile 280
Order 47 Sheriff
Division 1 General
1 Interpretation 281
2 Suspension of execution 281
3 Default 281
4 Execution: motion for directions 282
Division 2 Fees
5 Security 282
6 Liability of solicitor 282
7 Bill 283
8 Taxation 283
9 Determination 283
10 Default by solicitor 283
Order 48 Fair Work proceedings
Division 1 General
1 Definitions for Order 48 284
2 Expressions used in the Workplace Relations Act, the Fair Work Act and the Registered Organisations Act 284
3 Application of Order 48 285
Division 2 Unlawful termination of employment (Workplace Relations Act)
4 Application in relation to alleged unlawful termination of employment (Workplace Relations Act s 663) 285
Division 3 Unlawful dismissal from, or termination of, employment (Fair Work Act)
5 Application in relation to dismissal from employment in contravention of a general protection (Fair Work Act, s 539 (2), table, item 11) 286
6 Application in relation to alleged unlawful termination of employment (Fair Work Act, s 539 (2), table, item 35) 286
Division 4 Unlawful discrimination (Fair Work Act)
7 Application in relation to alleged discrimination (Fair Work Act, s 539 (2), table, item 11) 287
Division 5 Rules to show cause
8 Definition for Division 5 288
9 Application of Division 5 289
10 Requirements for applications (RAO Schedule ss 163, 164, 164A and 167 and Registered Organisations Act ss 163, 164, 164A and 167) 289
11 Form of rule to show cause — Form 6 291
12 Filing of rule to show cause 291
Division 6 Inquiries and ballots in relation to registered organisations
13 Application of Division 6 291
14 Form of application for an inquiry or ballot 292
15 Duties of District Registrar on receiving application 293
16 Service of application and supporting documents 294
17 Application for interim orders 294
18 Court directions to issue subpoenas 295
Order 49 Proceedings for an offence
1 Prosecutions 296
2 Form of summons, Forms 51 and 52 296
3 Summons in paragraphs 296
4 Appointment of date 296
5 Affidavits as to fine or penalty 297
Order 50 Case stated and questions reserved
1 Definition for Order 50 298
2 Application 298
3 Special case to be prepared etc 298
4 Setting down for hearing 299
5 Setting down for hearing (Fair Work Act 2009 s 608) 299
6 Party having carriage of the proceedings 299
Order 51 Judiciary Act 1903 — section 78B
1 Notice of a constitutional matter — Form 53 300
2 Notices of a constitutional matter 300
3 Affidavit of service 301
4 Additional papers for intervening Attorneys‑General 301
Order 1 Preliminary
1 Short title [see Note 1]
These Rules may be cited as the Federal Court Rules.
2 Commencement
These Rules shall come into operation on 1 August 1979.
3 Repeal
Upon the coming into operation of these Rules, the Federal Court of Australia Rules, being Statutory Rule No. 20 of 1977 and Statutory Rule No. 220 of 1977, are repealed.
4 Interpretation
In these Rules, unless the contrary intention appears:
the Act means the Federal Court of Australia Act 1976.
arbitration means arbitration conducted under an arbitration order.
arbitration order means an order referring a matter to an arbitrator as mentioned in Order 72, rule 1.
arbitrator means an arbitrator to whom a matter is referred under an arbitration order.
Australia or the Commonwealth means the Commonwealth of Australia and when used in a geographical sense includes external territories.
Bankruptcy Rules means the Federal Court (Bankruptcy) Rules 2005.
committee includes a person entrusted under a law of the Commonwealth, or of a State or Territory, with the care or management of the person or estate of a mentally disabled person.
Commonwealth means the Commonwealth of Australia and includes a Territory.
corporation includes any artificial person other than an organisation.
Corporations Rules means the Federal Court (Corporations) Rules 2000.
cross‑claim includes a counter‑claim, cross‑action, set‑off, and third party claim.
directions hearing means:
(a) a hearing appointed in an originating process; or
(b) except for the purpose of computation of time within which acts must be done — any other hearing fixed for the purpose of giving, or at which the Court in fact gives, directions about the conduct of a proceeding.
document includes any record of information which is a document within the definition contained in the Dictionary
in the Evidence Act 1995 and any other material data or information stored or recorded by mechanical or electronic means.
document exchange means a facility or service through which a member of the facility or service may send a document to another member of the facility or service.
document exchange box means a box in a document exchange.
electronic communication means a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, including an email or an email attachment.
email address means the mailing address to and from which an electronic communication may be sent and received using the Internet, an intranet or other similar network.
examination includes where relevant an examination held pursuant to an order made under Order 24, and, in proceedings under Division 1 of Part 2 of the Foreign Evidence Act 1994, includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by the Court under that Part.
examiner includes an officer of the Court or any other person appointed under Order 24, or under paragraph 7 (1) (a) or (b) of the Foreign Evidence Act 1994, for the purpose of an examination before the examiner of any person.
hearing includes any hearing before the Court, whether final or interlocutory, and whether in open court or in chambers.
image means a picture that has been created, copied, stored or transmitted in electronic form.
Judge means a Judge of the Court (including the Chief Justice) and in the expression ‘the Court or a Judge’ means a Judge sitting in chambers.
mediation means mediation conducted under a mediation order.
mediation or arbitration order means a mediation order or an arbitration order.
mediation order means an order referring a matter to a mediator as mentioned in Order 72, rule 1.
mediator means a mediator to whom a matter is referred under a mediation order.
mentally disabled person means a person who, owing to mental illness, is incapable of managing his or her affairs in respect of the proceedings.
oath includes affirmation.
organisation has the meaning given by section 6 of the Fair Work (Registered Organisations) Act 2009.
originating process means a document, filed in the Court, that commences a proceeding in the Court’s original jurisdiction.
person under disability means an infant, minor or mentally disabled person.
pleading includes a statement of claim and a cross‑claim to which Order 5 applies and subsequent pleadings, but does not include an application, notice of motion or affidavit.
proper place in relation to any proceeding:
(a) where there has been no transfer means the place at which the proceeding was commenced;
(b) where there has been a transfer means the place to which the proceeding was transferred.
Registrar means the Registrar or a District Registrar of the Court, and includes a Deputy Registrar or a Deputy District Registrar of the Court or other officer for the time being discharging the duties of any one of them, and when used in relation to any proceeding means the Registrar or District Registrar at the proper place.
Registry includes the Principal Registry and a District Registry.
Rules means Federal Court Rules.
Sheriff includes a Deputy Sheriff or any person for the time being discharging the duties of Sheriff or Deputy Sheriff.
trial includes any hearing other than an interlocutory hearing.
tutor means a next friend, guardian ad litem or committee of the person or estate of a person under disability.
4A Exercise of Court’s power
Unless these Rules provide otherwise, the Court may exercise a power under these Rules in a proceeding:
(a) on its own initiative; or
(b) on the application of a party, or a person who has sufficient interest in the proceeding.
5 Order on terms
Unless the contrary intention appears, where under these Rules the Court has the power to make an order or do any other act or thing, it may make that order or do that other act or thing on terms.
5A Filing and lodging documents
(1) A document that is required or permitted by these Rules to be filed or lodged may be:
(a) presented to a Registry when the Registry is open for business; or
(b) sent by post to a Registry with a written request for the processing required; or
(c) sent by document exchange by being left, addressed to the Federal Court of Australia, at its box at the Australian Document Exchange, with a written request for the processing required; or
(d) sent by facsimile transmission to a Registry in accordance with rule 5AB; or
(e) sent by electronic communication to a Registry in accordance with rule 5AC.
(2) However, a document may not be sent:
(a) by facsimile transmission if the document (including any annexure or attachment) is more than 20 pages long; or
(b) by electronic communication if the document (including any attachment) is more than 100 pages long; or
(c) by facsimile transmission or electronic communication if it is an affidavit referred to in paragraph 4.07 (b) of the Bankruptcy Rules.
Note Because of the Court’s computer security firewall, the Court cannot accept an electronic communication that is more than 5 megabytes in size.
(3) If a document is required to be signed or stamped, it must be accompanied by the number of copies required, unless it is sent by facsimile transmission or electronic communication.
(4) If the fee for a document to be filed is not payable, the document must be accompanied by a statement of the reason it is not payable and any supporting evidence.
(5) A document presented, or sent in accordance with paragraph (1) (b) or (c), to a Registry that is not the proper place for the proceeding, must be accompanied by a letter:
(a) identifying the proper place; and
(b) requesting that the document be sent to the proper place.
(6) A document is filed:
(a) for a document in an existing proceeding — if it is accepted in the Registry that is the proper place for the proceeding and stamped in accordance with Order 46, rule 4; or
(b) otherwise — if it is accepted in a Registry and stamped in accordance with Order 46, rule 4.
(6A) If a document in an existing proceeding:
(a) is presented to or sent in accordance with paragraph (1) (b) or (c) to a Registry that is not the proper place; and
(b) is sent by that Registry to the proper place; and
(c) is filed in accordance with paragraph (6) (a);
the document is taken to have been filed on the day when it was received by the Registry that is not the proper place.
(7) However, a document sent by facsimile transmission or electronic communication is, if accepted, taken to have been filed:
(a) if the whole document is received by 4.30 pm on a day when the Registry is open for business — on that day; and
(b) otherwise — on the next day when the Registry is open for business.
Note Because of the Court’s computer security firewall, there may be a delay between the time a document is sent by electronic communication and the time the document is received by the Court.
(8) A document must not be accepted, without leave of the Court, a Judge or a Registrar, if it appears to a Registrar that the document:
(a) is not substantially complete; or
(b) does not substantially comply in form with these Rules; or
(c) is not properly signed or executed.
(9) A document must not be accepted if a Registrar, under Order 46 rule 7A:
(a) refuses to accept or issue the document; or
(b) is directed by a Judge to refuse to accept or issue the document; or
(c) is directed by a Judge to refuse to accept or issue the document without first obtaining the leave of a Judge.
(10) If a document sent in accordance with paragraph (1) (b), (c), (d) or (e) is not accepted, the Registrar must notify the sender of the document:
(a) by telephone on the telephone number stated on the document, cover sheet or accompanying request; or
(b) in writing to the postal address or facsimile number stated on the document, cover sheet or accompanying request; or
(c) by electronic communication to the email address stated on the document, cover sheet or accompanying request.
(11) If a document sent to a Registry by post or document exchange is required to be signed or stamped, and is accepted at the Registry, the Registrar must:
(a) if the sender requests that the document be held for collection — hold it for collection for 7 days; or
(b) if the sender does not request the document to be held for collection, or having made a request does not collect the document within 7 days — return the document in the same way it was sent.
Note See Part 2 of the Federal Court of Australia Regulations 2004 in relation to fees for filing documents.
5AB Filing and lodging by facsimile transmission
(1) The Registrar must approve at least one facsimile number for each Registry for the purpose of receiving documents.
(2) A document sent to a Registry by facsimile transmission must be:
(a) sent to an approved facsimile number for the Registry; and
(b) accompanied by a cover sheet clearly stating:
(i) the sender’s name, postal address, document exchange number (if any), telephone number and facsimile number; and
(ii) the number of pages transmitted; and
(iii) the processing of the document required.
(3) If the document is in an existing proceeding, it must be sent to an approved facsimile number for the Registry which is the proper place for the proceeding.
(4) If the document is required to be signed or stamped, and is accepted at the Registry, the Registrar must:
(a) make one copy of the document; and
(b) if the sender requests that the document be held for collection — hold it for collection for 7 days; and
(c) if the sender does not request the document to be held for collection, or having made a request does not collect the document within 7 days — return the document by sending it:
(i) by facsimile transmission to the facsimile number stated on the cover sheet; or
(ii) if there is no facsimile number stated, to the postal address stated on the cover sheet.
(5) If more than one copy is required for issue, the sender of the document must send, or ask the Registry to make, any additional copies required.
(6) A person who sends a document to a Registry by facsimile transmission must:
(a) keep the original document and the transmission report evidencing successful transmission; and
(b) produce the original document or the transmission report as directed by the Court.
(7) If the court directs that the original document be produced, the first page of the document must be endorsed with:
(a) a statement that the document is the original of a document sent by facsimile transmission; and
(b) the date that the document was sent by facsimile transmission.
5AC Filing and lodging by electronic communication
(1) The Registrar:
(a) must approve the formats in which electronic versions of documents will be accepted by a Registry; and
(b) may approve at least one email address for any Registry for the purpose of receiving documents by electronic communication.
(2) A document sent to a Registry by electronic communication must:
(a) be sent:
(i) by using the Court’s Internet home page at http://www.fedcourt.gov.au or the Commonwealth Courts Portal at https://www.comcourts.gov.au; or
(ii) to an email address approved for the Registry; and
(b) be in an electronic format approved for the Registry; and
(c) to the extent practicable, be in a form that complies with rule 7; and
(d) be capable of being printed with the content and in the form in which it was created.
(3) An affidavit may only be filed by electronic communication by sending an image of the affidavit in accordance with subrule (2).
(4) If the document is in an existing proceeding, it must be sent to the Registry which is the proper place for the proceeding:
(a) by using the Court’s Internet home page at http://www.fedcourt.gov.au or the Commonwealth Courts Portal at https://www.comcourts.gov.au; or
(b) by addressing it to an email address approved for that Registry.
(5) Subject to subrule (5A), if the document is required to be signed or stamped, and is accepted at the Registry, the Registrar must:
(a) for a document that, under these Rules, must be endorsed with a date for hearing — insert a notice of filing and hearing in accordance with Form 173 as the first page of the document; and
(b) for any other document — insert a notice of filing in accordance with Form 174 as the first page of the document; and
(c) make one copy of the document (including the notice mentioned in paragraph (a) or (b) (whichever is applicable)); and
(d) if the sender requests that the document be held for collection — hold it for collection for 7 days; and
(e) if the sender does not request the document to be held for collection, or having made a request does not collect the document within 7 days — return the document by sending it:
(i) by electronic communication to the email address stated on the cover sheet; or
(ii) if there is no email address stated, to the postal address stated on the cover sheet.
(7) A person who sends a document to a Registry by electronic communication must:
(a) if the document is an image of an affidavit — produce the original of the affidavit as directed by the Court; or
(b) in any other case — produce a paper copy of the document as directed by the Court.
(8) If the Court directs that an original affidavit or a paper copy of a document be produced, the person who sent the document must:
(a) for an original affidavit — attach a statement that it is the original of the affidavit sent by electronic communication and the date that the affidavit was sent by electronic communication; or
(b) in any other case — endorse the first page with a statement that the paper copy is a true copy of the document sent by electronic communication and the date that the document was sent by electronic communication.
6 Serial number
(1) The first document filed in any proceeding shall have a serial number assigned to it for the Registry in which it is filed, and that and each other document in the proceeding shall bear that number preceded by a reference to the appropriate Registry together with a reference to the calendar year in which the first document is filed.
(2) A new series of numbers shall be commenced at the beginning of each calendar year.
7 Forms
(1) Subject to subrule (2), the forms in Schedule 1 shall be used where applicable notwithstanding the absence of any specific provision in the Rules in respect of the use of any particular form.
(1A) A reference in a provision of the Rules to a Form by number is to be read as a reference to the Form so numbered in Schedule 1.
(2) It shall be sufficient compliance with these Rules as to the form of any document if the document is substantially in accordance with the requirement or has only such variations as the nature of the case requires.
8 Relief from rules
The Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises.
9 Proceedings wanting or in doubt
(1) Where a person desires to commence a proceeding or take any step in a proceeding, 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 give directions.
(2) A proceeding commenced in accordance with the directions of the Court shall be well commenced.
(3) A step taken in accordance with the directions of the Court shall be regular and sufficient.
Order 2 Sittings and vacation
1 Sittings
The sittings of the Full Court in the Court’s appellate jurisdiction shall be held in each year at such times and places as the Chief Justice directs.
Order 3 Time
1 Month
In any judgment or order and in any document in any proceeding, unless the context or subject matter otherwise indicates or requires, month means calendar month.
2 Reckoning
(1) Any period of time fixed by rules or by any judgment or order or by any document in any proceeding, shall be reckoned in accordance with this rule.
(2) Where a time of one day or a longer time is to be reckoned by reference to a given day or event, the given day or the day of the given event shall not be counted.
(3) Where, apart from this subrule, the period in question, being a period of 5 days or less, would include a day on which the Registry is closed, that day shall be excluded.
(4) Where the last day for doing a thing is a day on which the Registry is closed, the thing may be done on the next day on which the Registry is open.
(4A) In calculating the time fixed by these Rules or by any order fixing, extending or abridging time, the period from 24 December to 14 January next following is excluded, unless the Court otherwise orders.
(5) Subsection 36 (2) of the Acts Interpretation Act 1901 does not apply to these Rules.
3 Extension and abridgment
(1) The Court or a Judge may by order extend or abridge any time fixed by the Rules or by any judgment or order.
(2) The time may be extended under this rule, or any other rule allowing for an extension of time (unless the rule provides otherwise):
(a) before or after the time expires; and
(b) whether or not an application for extension is made before the time expires.
(3) The period within which a person is required by rules or by any order to serve, file or amend any pleading or other document may be extended by consent without an order for extension.
4 Fixing times
Where no time is fixed by the Rules or by any judgment or order of the Court or a Judge for the doing of any thing in or in connection with any proceeding, the Court may, by order, fix the time within which the thing is to be done.
6 Registry hours
(1) The District Registries of New South Wales and Victoria shall be open to the public for business between 10 in the morning and 4 in the afternoon, except on Saturdays, Sundays and other holidays.
(2) The Principal Registry and the District Registries of the States other than New South Wales and Victoria and of the Territories, shall be open to the public for business from 10 in the morning until 1 in the afternoon and from 2 until 4 in the afternoon, except on Saturdays, Sundays and other holidays.
(3) A Registry may in the discretion of the Registrar, and shall on the direction of a Judge, be opened at other times for urgent business.
Order 4 Commencement of proceedings
1 Commencement by application — Form 5
(1) Except as otherwise provided in these Rules all proceedings in the Court’s original jurisdiction shall be commenced by filing an application.
(2) An application shall be in or substantially in the form numbered 5 in Schedule 1.
1A Certification of merits of application commencing migration litigation
(1) For the purposes of section 486I of the Migration Act 1958, a lawyer must not file an application commencing migration litigation unless the application includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer.
(2) In this rule:
lawyer has the meaning given by section 486K of the Migration Act 1958.
migration litigation has the meaning given by section 486K of the Migration Act 1958.
2 Parties
(1) A party claiming relief shall be called an applicant.
(2) A party against whom relief is claimed shall be called a respondent.
3 Relief claimed
(1) An application must specify:
(a) the relief claimed by the applicant; and
(b) if the relief depends on a provision of an Act — the Act and the provision.
(2) Where the claim for relief includes a claim for the determination or direction of the Court on any question, the application shall state the question.
(3) Costs need not be specifically claimed.
(4) Exemplary damages shall be specifically claimed.
4 Name, address etc
(1) An application shall contain:
(a) the name and address of the applicant;
(b) where a party sues or is sued in a representative capacity a statement of that fact;
(c) where the applicant sues by a solicitor, the name, address, telephone number, facsimile number and email address of the solicitor;
(d) where the applicant sues by a solicitor and that solicitor has another solicitor as agent for him in the proceeding, the name, address, telephone number, facsimile number and email address of the agent; and
(e) an address for service.
(2) Where it appears from an application that the applicant sues by a solicitor:
(a) the solicitor shall, on request in writing by a respondent, declare in writing whether the application was filed by the solicitor; and
(b) if the solicitor declares in writing that the application was not filed by the solicitor, the Court may stay the proceeding.
5 Notice to appear
Where there is a respondent, an application shall bear a note that:
(a) if there is no attendance before the Court by the respondent or a lawyer representing the respondent at the time and place stated in the application, the proceeding may be heard and an order may be made or judgment given against the respondent; and
(b) before any attendance at that time the respondent must enter an appearance in the Registry.
6 Affidavit or statement of claim — Form 7
(1) The applicant shall file and serve with the application either an affidavit in accordance with Form 20, or a statement of claim in accordance with Form 7, whichever is appropriate.
(1A) However, an applicant seeking to rely on an allegation of fraud, misrepresentation, breach of trust, wilful default or undue influence must file and serve a statement of claim.
(2) The affidavit or statement of claim shall show:
(a) the nature of the applicant’s claim; and
(b) the material facts on which it is based.
7 Filing and copies
(1) Upon an application and affidavit or statement of claim being filed, the Registrar on the applicant’s request shall sign, and affix the seal of the Court to, a sufficient number of copies of the application for service and proof of service.
(2) The serial number of the proceeding shall be endorsed on each document.
8 Date for hearing
An application must state a date for a hearing at which the Court may hear the proceeding in whole or in part, or give directions for the further conduct of the proceeding.
9 Claim for interlocutory relief
(1) Where by his application an applicant seeks interlocutory relief, he shall make a distinct claim for that relief.
(2) The Court may hear and determine the claim for interlocutory relief on the hearing date specified in the application.
(3) At the hearing of the claim for interlocutory relief the Court may give any directions it thinks fit.
10 Endorsement of date
(1) The date for a hearing under rule 8 or rule 9 to be endorsed on the application shall be obtained from the Registry.
(2) Where the Court has made an order abridging time, the application shall bear a note of the order made.
11 Time for service
An application and affidavit or statement of claim shall, unless the court otherwise orders, be served upon the respondent named in the application in accordance with Order 7, not less than five days before the date appointed for hearing pursuant to rule 8 or rule 9 of this Order.
12 Alteration of hearing date
If a date for hearing has been obtained or made, the Court may:
(a) alter the date for hearing to a later date; and
(b) authorise the lawyer for a party to make corresponding alterations in any copy for service of any application or notice.
13 Alteration of date where service less than 5 days before hearing
(1) Where an application and affidavit or statement of claim have been served upon the respondent named in the application less than five days before the date for hearing endorsed on the application pursuant to Order 4, rule 8 or rule 9, the Court or Registrar may alter the date to a later date and may authorise the solicitor for a party to give notice to that respondent of that altered date for hearing by posting an altered copy of the application by registered post to the usual or last known place of business or abode of the respondent or to the place at which the application was served if appropriate.
(2) The Registrar may give the authority by telephone or by some other means as the Registrar thinks fit.
14 Suit in person
(1) Subject to subrule (2) and to Order 43 (which relates to disability), any person may proceed in the Court by a solicitor or in person.
(2) Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor.
15 Application for the issue of a summons (Corporations Act s 596A, s 596B)
An application for the issue of a summons under section 596A or 596B of the Corporations Act 2001 may be made to:
(a) the Court or a Judge; or
(b) if the Court or a Judge has, under paragraph 35A (1) (h)
of the Act, directed that a Registrar may exercise the power of the Court under section 596A or 596B of the Corporations Act 2001 — a Registrar, including a Registrar sitting in chambers.
Order 5 Cross‑claims and third party claims
Note Order 35A deals with the procedure on default.
1 Claim by respondent
(1) A respondent may cross‑claim against an applicant for any relief to which the respondent would be entitled against the applicant if the applicant were a respondent in a separate proceeding commenced in the Court by the respondent for that purpose.
(2) A respondent may cross‑claim against any person whether another party or a third party for any relief which is related to or connected with the subject of the proceeding.
(3) Without prejudice to the generality of subrule (2), a respondent may cross‑claim for contribution or indemnity.
2 Cross‑claim
(1) A cross‑claim shall be entitled in the proceeding with an addition showing the names of the parties to the cross‑claim.
(2) Order 4, rule 3 applies to a cross‑claim whether the cross‑claim is against an applicant or any other person.
3 Title
On a cross‑claim being filed, a document afterwards filed or used in the proceeding shall be entitled in the manner in which the cross‑claim is entitled.
4 Rules applicable where statement of claim
Rules 5 and 6 of this Order apply where a proceeding is commenced by application supported by statement of claim, or where the Court has ordered that the proceeding continue on pleadings.
5 Pleading — Forms 8, 9, 10
(1) A respondent may file a pleading by way of cross‑claim within the time fixed for filing his defence or any extension thereof.
(2) A cross‑claim under subrule (1) shall be in or substantially in the forms numbered 8, 9 or 10 in Schedule 1.
(3) Where a cross‑claimant cross‑claims solely against a party who claims in the proceeding against the cross‑claimant, the cross‑claimant may add the cross‑claim to his defence.
(4) Subject to Order 11, rule 16 (which relates to embarrassing proceedings and the like), a cross‑claimant may in his cross‑claim plead all or any of the facts on which he relies by reference to the prior pleadings in the proceeding.
(5) A cross‑claimant shall, in addition to pleading any other facts on which he relies, plead the facts showing that the cross‑claim is one to which rule 1 of this Order applies.
6 Service of prior pleadings — Form 11
(1) Where a respondent to a cross‑claim is made a party to the proceeding by the filing of the cross‑claim, he may, by notice in accordance with Form 11 filed and served on the cross‑claimant, require the cross‑claimant to serve on him all or any of the pleadings in the proceeding filed before the filing of the cross‑claim.
(2) A respondent to a cross‑claim may add a notice under subrule (1) to his notice of appearance.
(3) Where a notice under subrule (1) is served on a cross‑claimant then, unless the Court otherwise orders, he shall, within three days after service of the notice or such longer times as may be specified in the notice, serve on the respondent to the cross‑claim giving the notice each pleading mentioned in the notice.
7 Rules applicable where affidavit
Rules 8 and 9 apply where a proceeding is commenced by application supported by affidavit and where:
(a) a cross‑claim is filed before the directions hearing; or
(b) a cross‑claim is filed after the directions hearing and the Court has not ordered that the proceedings continue on pleadings.
8 Cross‑claims by leave
(1) Subject to subrules 9 (1) and (2), a respondent may cross‑claim against an applicant or any other party without the leave of the Court, but may not cross‑claim against any other person not being a party without such leave.
(2) Subject to subrule (4), a respondent shall not cross‑claim against an applicant before he has filed an affidavit in reply to the applicant’s claim.
(3) A cross‑claim shall be in or substantially in the forms numbered 8 or 9 in Schedule 1, and shall be accompanied by an affidavit stating:
(a) the nature of the cross‑claim;
(b) the material facts on which the cross‑claimant relies; and
(c) the facts showing that the cross‑claim is one to which rule 1 of this Order applies.
(4) A respondent who cross‑claims against an applicant only may include the matters referred to in subrule (3) in his affidavit in reply to the applicant’s claim, and need not file a separate affidavit in support of the cross‑claim.
9 Cross‑claim after directions hearing
(1) A respondent desiring to cross‑claim after the directions hearing shall obtain all necessary directions at the directions hearing in relation to the cross‑claim, including the time within which the cross‑claim is to be filed.
(2) A respondent who does not obtain directions pursuant to subrule (1) shall not cross‑claim after the directions hearing without the leave of the Court.
10 Service
(1) Where a respondent to a cross‑claim has, on the date of filing the cross‑claim, an address for service in the proceeding, the cross‑claimant shall, on that date, serve the cross‑claim on the respondent to the cross‑claim.
(2) Where a respondent to a cross‑claim has an address for service in the proceeding, personal service of the cross‑claim on him is not required.
(3) Order 7, rule 11 (which relates to cases where filing operates as service) does not apply to the service of a cross‑claim.
11 Conduct of proceeding generally
(1) Subject to this Order and to Order 11, a proceeding on a cross‑claim shall follow as nearly as may be the course of the proceeding on the originating process in respect of which the cross‑claim is filed.
(2) Subject to this Order and to Order 11, and without limiting the generality of subrule (1), these Rules apply to a cross‑claim and the proceeding arising from it as they apply to the originating process in respect of which the cross‑claim is filed and the proceeding arising from it.
(3) Subrules (1) and (2) apply as if:
(a) the cross‑claim were the originating process in respect of which the cross‑claim is filed;
(b) the cross‑claimant were an applicant; and
(c) the respondent to the cross‑claim were a respondent.
(4) An applicant in an originating process need not enter an appearance to a cross‑claim in the same proceeding.
(5) An appearance entered by a party to the proceeding shall, upon service of a cross‑claim on him, operate as an appearance to the cross‑claim.
(6) A cross‑respondent who has not previously entered an appearance in the original proceedings shall enter an appearance:
(a) where the cross‑claim is served on him before the date appointed for a directions hearing in the application in the original proceeding — before that date; or
(b) in any other case — within 14 days after service of the cross‑claim on him.
(7) Subject to this Order, the trial or hearing and all other steps in the proceeding on the cross‑claim shall as far as practicable be carried on together with the trial or hearing and similar steps in the proceeding on the originating process in respect of which the cross‑claim is filed.
12 Directions
(1) A party to the proceeding may, at any time after the filing of a cross‑claim, move for directions.
(2) On any directions hearing, or on the trial or hearing of the cross‑claim, the Court may:
(a) make any order or direction it may make under Order 10 (which relates to directions hearings);
(b) order that any claim, question or issue in or arising on the cross‑claim be tried in such manner as the Court may direct;
(c) give to a respondent to the cross‑claim leave to defend the claim on the originating process or any other cross‑claim in the proceeding, either alone or in addition to any other party;
(d) give to a respondent to the cross‑claim leave to appear at the trial or hearing of the claim on the originating process or on any other cross‑claim in the proceeding and to take such part in the trial or hearing as the Court thinks fit;
(e) dismiss the cross‑claim;
(f) determine the extent to which the cross‑claimant and a respondent to the cross‑claim shall be bound as between themselves by a judgment (including a judgment by consent or by default) or decision (including a decision by consent) on the claim on the originating process or any other cross‑claim in the proceeding;
(g) pronounce such judgment as the nature of the case may require;
(h) give such directions as the Court thinks fit for having the rights and liabilities of the parties determined and enforced, including any order or direction which may be made or given under this Order.
(3) Order 10, rules 4 to 6 (directions hearing) apply to a motion for directions under this rule.
15 Separate prosecution
A cross‑claim may proceed notwithstanding that judgment has been pronounced and an order made and entered on the originating process or any other cross‑claim in the proceeding, or that the proceeding on the originating process or any other cross‑claim is stayed, dismissed or discontinued.
16 Contribution or indemnity
Where a respondent makes a cross‑claim for contribution or indemnity in respect of a claim against him in the proceeding:
(a) an order on a judgment for the claimant on the cross‑claim shall not be entered except by direction of the Court;
(b) judgment for the claimant on the cross‑claim shall not, unless the Court otherwise orders, be enforced by execution until satisfaction of any judgment in the proceeding against the cross‑claimant.
17 Offer of contribution
Where in any proceeding:
(a) a party (in this rule called the first party) stands to be held liable to another party (in this rule called the second party) to contribute towards any debt or damages which may be recovered against the second party in the proceeding; and
(b) the first party, at any time after he has entered an appearance, makes an offer to the second party to contribute to a specific extent to the debt or damages;
then, if the first party makes the offer without prejudice to his defence, the offer shall not be brought to the attention of the Court until all questions of liability or amount of debt or damages have been decided.
Order 6 Parties, causes of action and interveners
1 Multiple claims
Subject to rule 6 an applicant, whether claiming in the same or different capacities, may, in any proceeding, claim relief in respect of more than one cause of action.
2 Joinder of parties generally
Two or more persons may be joined as applicants or respondents in any proceeding:
(a) where:
(i) if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b) where the Court gives leave so to do.
3 Joint right
(1) Where, in any proceeding, the applicant claims relief to which any other person is entitled jointly with him:
(a) all persons so entitled shall be parties to the proceeding; and
(b) any of them who does not consent to being joined as an applicant shall be made a respondent.
(2) Subrule (1) applies subject to any Act and subject to section 62 of the Bankruptcy Act 1966 and applies unless the Court gives leave to the contrary.
4 Leave under rule 2 and subrule 3 (2)
(1) The Court may grant leave under rule 2 before or after the joinder and may grant leave under subrule 3 (2) before or after the non‑joinder.
(2) An applicant may apply for leave under rule 2 or subrule 3 (2) either before or after the filing of his originating process and may apply without serving notice of the motion on any person on whom the application has not been served.
5 Common liability
(1) Where, in any proceeding, relief is claimed against a respondent who is jointly liable with some other person and also severally liable, that other person need not be made a respondent to the proceeding.
(2) Where persons may be jointly, but not severally, liable and relief is claimed against some but not all of those persons in a proceeding, the Court may stay the proceeding until the other persons so liable are added as respondents.
6 Inconvenient joinder
Where any joinder of parties or of causes of action may complicate or delay trial of the proceeding or is otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit.
7 Misjoinder and non‑joinder of parties
(1) A proceeding shall not be defeated by reason of the misjoinder of a party or the non‑joinder of any person as a party.
(2) The Court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the parties.
8 Addition of parties
(1) Where a person who is not a party:
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon;
the Court may order that the person be added as a party and make orders for the further conduct of the proceeding.
(2) A person shall not be added as an applicant without the person’s consent.
9 Removal of parties
If a person:
(a) has been improperly or unnecessarily joined as a party to a proceeding; or
(b) has ceased to be a proper or necessary party to a proceeding;
the Court may order that the person cease to be a party and make orders for the further conduct of the proceeding.
10 Death, transmission etc
(1) Where a party dies or becomes bankrupt but a cause of action in the proceeding survives, the proceeding shall not abate by reason of the death or bankruptcy.
(2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or re‑arrangement of parties and may make orders for the further conduct of the proceeding.
11 Further conduct of proceedings
(1) Without limiting the generality of the powers of the Court under rules 8, 9 and 10, orders under those rules for the further conduct of the proceeding may include orders relating to:
(a) service of the order and other documents in the proceeding;
(b) amendment;
(c) appearance of added parties; and
(d) substitution of one party for another party or former party.
(2) Where the Court orders that a party be substituted for another party or a former party, all things done in the proceeding 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.
(3) Subject to subrule (2), where a party is added pursuant to an order under rule 8 or rule 10, the date of commencement of the proceeding so far as concerns him shall be the date of filing of the originating process amended so as to add him as a party or, where an amended originating process is not filed, the date of the amendment adding him as a party.
12 Failure to proceed after death of party
(1) Where:
(a) a party dies but a cause of action in the proceeding survives the party’s death; and
(b) an order under rule 10 for the addition of a party in substitution for the deceased party is not made within three months after the death;
the Court may order that, unless, within a specified time after service of the order in accordance with subrule (2), a party is added in substitution for the deceased party, the proceedings be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon, as the case may be, survives on the death.
(2) On making an order under subrule (1), the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceeding.
13 Representation: concurrent interests
(1) Where numerous persons have the same interest in any proceeding the proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) At any stage of a proceeding pursuant to this rule the Court may appoint any one or more of the respondents or other persons (as representing whom the respondents are sued) to represent all, or all except one or more, of those persons in the proceeding.
(3) Where, under subrule (2), the Court appoints a person who is not a respondent, the Court shall make an order under rule 8 adding him as a respondent.
(4) A judgment pronounced or an order made in a proceeding pursuant to this rule shall be binding on all the persons as representing whom the applicants sue or, as the case may be, the respondents are sued but shall not be enforced against any person not a party to the proceeding except with the leave of the Court.
(5) An application for leave under subrule (4) shall be made by motion, notice of which shall be served personally on the person against whom it is sought to enforce the judgment or order.
(6) Notwithstanding that a judgment or order to which an application under subrule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.
(7) This rule does not apply to a proceeding concerning property subject to a trust or included in a deceased estate.
14 Representation of beneficiaries by trustees
(1) A proceeding concerning property subject to a trust or included in a deceased estate may be brought by or against the trustees or personal representatives without joining a person having a beneficial interest in the trust or estate and unless the Court otherwise orders on the ground that the trustees or personal representatives could not or did not represent the interest of that person, an order granted or made in the proceedings is binding on that person.
(2) Subrule (1) does not limit the power of the Court to order a person having an interest to be made a party.
15 Deceased person
(1) Where in any proceeding it appears to the Court that a deceased person was interested, or that the estate of a deceased person is interested, in any matter in question in the proceeding and that the deceased person has no personal representative, the Court may:
(a) order that the proceeding continue in the absence of a person representing the estate of the deceased person; or
(b) by order (with the consent of the person appointed) appoint a person to represent that estate for the purposes of the proceeding.
(2) An order under subrule (1), and any judgment or order subsequently pronounced or made in the proceeding, shall bind the estate of the deceased person to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceeding.
(3) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.
16 Conduct
The Court may give the conduct of the whole or any part of any proceeding to such person as it thinks fit.
17 Interveners
(1) The Court, at any stage of a proceeding, may give leave to a person (the intervener) to intervene in the proceeding, on the terms and conditions, and with the rights, privileges and liabilities (including liabilities for costs), determined by the Court.
(2) In deciding whether to give leave, the Court must have regard to:
(a) whether the intervener’s contribution will be useful and different from the contribution of the parties to the proceeding; and
(b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as they wish; and
(c) any other matter that the Court considers relevant.
(3) The role of the intervener is solely to assist the Court in its task of resolving the issues raised by the parties.
(4) For subrule (3), assisting the Court includes suggesting witnesses to be called by the Court, but does not include filing pleadings, leading evidence or examining witnesses.
(5) When giving leave, the Court must specify the form of assistance to be given by the intervener and the manner of participation of the intervener, and, in particular, must specify:
(a) the matters that the intervener may raise; and
(b) whether the intervener’s submissions are to be oral, in writing, or both.
Order 7 Service
1 Originating process
(1) Subject to the provisions of this Order, originating process shall be served personally on each respondent.
(2) The copy for service shall be signed and sealed as mentioned in Order 4, rule 7.
(3) If a respondent to an originating process:
(a) enters an appearance; or
(b) files a defence; or
(c) appears before the Court in response to the process;
the originating process is taken to have been served on the respondent personally when the earliest of those events occurred, unless personal service on an earlier day is established.
2 Personal service: how effected
(1) Personal service of a document is effected on:
(a) an individual — by leaving a copy of the document with him;
(b) a corporation — by leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently of or above the age of sixteen years:
(i) at the registered office of the corporation; or
(ii) if there is no registered office, at the principal place of business or the principal office of the corporation; and
(c) an unincorporated association — by leaving a copy of the document at the principal place of business or the principal office of the association with some person apparently an officer of or in the service of the association and apparently of or above the age of sixteen years; and
(d) an organisation — by leaving a copy of the document with a person apparently an officer of or in the service of the organisation and apparently of or above the age of 16 years at the office of the organisation shown in the records of the organisation lodged with Fair Work Australia under section 233 of the Fair Work (Registered Organisations) Act 2009.
(2) If a person refuses to accept service of a document, personal service may be effected on him by putting the document down in his presence and telling him the nature of it.
(3) It shall not be necessary in order to effect personal service that the original document be shown.
(4) Despite subrule 2 (1), for the purposes of the Corporations Rules, personal service may be effected:
(a) on a company, as defined in section 9 of the Corporations Act 2001 (the Corporations Act), in any way permitted by section 109X of the Corporations Act; and
(b) on a liquidator of a company, in the way described in paragraph 109X (1) (c) of the Corporations Act; and
(c) on an administrator of a company, in the way described in paragraph 109X (1) (d) of the Corporations Act.
3 Mode of service
A document which is not an originating process and which is required or permitted to be served in any proceeding may be served personally, but unless personal service is expressly required, it need not be served personally.
4 Ordinary service: how effected
(1) Where personal service of a document is not required, the document may be served:
(a) by leaving a copy of the document at the proper address of the person to be served between the hours of nine in the morning and five in the afternoon on any day on which the Registry in that State or Territory is open; or
(b) by sending a copy of the document by pre‑paid post addressed to the person to be served at his or her proper address; or
(c) where any enactment of the Commonwealth or of the State or Territory in which service is to be effected provides for service of a document on a corporation or organisation by serving the document in accordance with such provision; or
(d) if a person to be served has filed a notice for service at an exchange box of a solicitor under paragraph 7 (1) (a) of this Order — by leaving a copy of the document, addressed to that solicitor, in that exchange box; or
(e) if a person to be served has filed a notice for service by facsimile transmission under paragraph 7 (1) (b) of this Order — by sending the document to the facsimile number specified in the notice; or
(f) if a person to be served has filed a notice for service by electronic communication under paragraph 7 (1) (c) of this Order — by sending the document to the email address specified in the notice.
(2) For the purposes of subrule (1), the proper address of a person shall be the address for service of that person in the proceeding but if, at the time when the copy is left or posted pursuant to subrule (1), the person has no address for service in the proceeding, the person’s usual or last known place of business or of abode shall be the person’s proper address.
(3) The time of service of any document for the purpose of any proceeding shall, where the copy of the document:
(a) is sent by pre‑paid post in accordance with paragraph (1) (b) — be seven days after the copy is so sent; or
(b) is left in an exchange box in accordance with paragraph (1) (d) — be two days after the copy is so left; or
(c) is sent by facsimile transmission in accordance with paragraph (1) (e) — be one day after the copy is transmitted excluding Saturdays, Sundays and public holidays; or
(d) is sent by electronic communication in accordance with paragraph (1) (f) — be one day after the copy is sent.
(4) For paragraphs (3) (b), (c) and (d), mention of a day or days does not include a Saturday, Sunday or a public holiday.
4A Service on principal solicitor
(1) Where personal service of a document is not required and the person to be served has a solicitor acting for him or her which solicitor has another solicitor as agent whose address is that person’s proper address the document may be served:
(a) by leaving a copy of the document at the address of the first‑named solicitor; or
(b) by sending a copy of the document by pre‑paid post addressed to the person to be served at the address of the first‑named solicitor; or
(c) where an appropriate notice has been given under rule 7 of this Order by leaving a copy of the document addressed to the first‑named solicitor at the exchange box of that solicitor; or
(d) by sending a copy of the document by facsimile transmission directed to the facsimile number operated at the premises of, or in connection with, the first‑named solicitor; or
(e) by sending a copy of the document by electronic communication directed to the email address of the first‑named solicitor.
(2) The time of service of any document for the purpose of any proceedings shall, where the copy of the document:
(a) is sent by pre‑paid post in accordance with paragraph (1) (b) — be 7 days after the copy is so sent; or
(b) is left in an exchange box in accordance with paragraph (1) (c) — be 2 days after the copy is so left; or
(c) is sent by facsimile transmission in accordance with paragraph (1) (d) — be one day after the copy is sent; or
(d) is sent by electronic communication in accordance with paragraph (1) (c) — be one day after the copy is sent.
(3) For paragraphs (2) (b), (c) and (d), mention of a day or days does not include a Saturday, Sunday or a public holiday.
5 Identity
For the purposes of the proof of service, evidence of a statement by a person of his identity or that he holds some office is evidence of his identity or that he holds that office, as the case may be.
6 Address for service
(1) Unless the Court or a Judge otherwise orders, an address for service for a person must be the address of a place within Australia at which documents in the proceeding may, during ordinary business hours, be left for the person and to which documents in the proceeding may be posted to the person.
(2) If a person is represented by a solicitor, the address for service for the person must be the address of the solicitor or of the solicitor’s agent.
(3) A person may change his address for service by filing a notice of the change showing his new address for service.
(4) A person who files a notice of a change of his address for service shall, on the date of filing, serve the notice on each party to the proceedings.
7 Document exchange, facsimile number or email address — Form 12
(1) A person may, by filing a notice in accordance with Form 12, or by adding a notice to that effect to the person’s originating process (other than a cross‑claim) or notice of appearance, authorise that documents in the proceeding may be served on the person:
(a) if the person’s address for service is the office of a solicitor who uses the facilities of a document exchange — at the solicitor’s document exchange box specified in the notice; or
(b) by sending the documents to the facsimile number specified in the notice; or
(c) by sending the documents by electronic communication to the email address specified in the notice.
(2) A person may:
(a) change the particulars stated in the notice by filing a further notice showing the new particulars; or
(b) cancel the notice by filing a further notice to that effect.
(3) A person who files a notice under subrule (1) (other than a notice added to an originating process or a notice of appearance), a notice of change or notice of cancellation must, on the date of filing, serve the notice on each party to the proceeding.
(4) A change or cancellation of which notice is required to be served under this rule shall not be effective as between the person to be served and another party until the notice is filed and served on that other party.
8 Acceptance by solicitor
(1) This rule applies to:
(a) any originating process; and
(b) any document required or permitted to be served in any proceeding, but not required to be served personally.
(2) Where a solicitor makes on a copy of a document to which this rule applies a note that he accepts service of the document on behalf of any person, the document shall, unless he is shown not to have had authority to act for such person, be taken to have been duly served on that person on the date on which the solicitor makes the note or on such earlier date of service as may be proved.
9 Substituted service
(1) Where for any reason it is impractical to serve a document in the manner set out in the Rules, the Court may by motion in an existing proceeding made ex parte order that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person to be served.
(2) Where the Court makes an order under subrule (1), the Court may order that the document be taken to have been served on the happening of any specified event, or on the expiry of any specified time.
10 Informal service: confirmation
Where for any reason it is impractical to serve a document in the manner set out in the Rules, but steps have been taken to bring the document to the notice of the person to be served, the Court may order that the document be taken to have been served on that person on a date specified in the order.
11 Service by filing
(1) Unless the Court otherwise orders, the filing of a document has effect as service of the document on a person, if personal service is not required and:
(a) the person to be served:
(i) is in default of appearance; or
(ii) has entered an appearance but has no address for service in the proceeding; or
(b) there is proof of non‑delivery of the document, being a document sent by the Court to the person’s proper address.
(2) For paragraph (1) (b), the proper address of a person is:
(a) the address for service of the person in the proceeding; or
(b) if, when the document is left or posted the person has no address for service in the proceeding, the person’s last known place of business or of abode.
(3) Unless the Court otherwise orders, the filing of a document in a proceeding has effect as service of the document on a party to the proceeding if:
(a) personal service of the document is not required; and
(b) the party has not filed a new address for service in accordance with Order 45, rule 7A although:
(i) the party has changed the solicitor acting for the party in the proceeding; or
(ii) the principal solicitor acting for the party has changed the solicitor acting as the principal solicitor’s agent; or
(iii) the party, having acted for him or herself in the proceeding, has appointed a solicitor to act for the party in the proceeding; or
(iv) the party has determined the authority of the party’s solicitor to act for the party in the proceeding; or
(v) the party’s solicitor has ceased to act for the party in the proceeding.
12 Notice etc by the Court
Where, under the Rules or under an order, any notice or other document is to be given to or served on any party by the Court or any officer of the Court, the notice or document shall, unless the Rules otherwise provide or the Court otherwise orders, be sufficiently given or served in any manner in which a document not requiring personal service may be served under this Order.
13 Injunction: service
Where the Court grants an interlocutory injunction, the party may serve notice of the injunction, if desired, by telegram or letter signed by or on behalf of the Registrar.
14 Service under contract
Where a respondent in any proceeding has, before or after the commencement of the proceeding, agreed that originating process or any other document in the proceeding may be served on the respondent or on some other person on behalf of the respondent in a manner or at a place (whether in or outside the Commonwealth) specified in the agreement, service in accordance with the agreement shall be sufficient service on the respondent.
Order 8 Service outside Australia
Division 1 General
1 Definitions for Order 8
In this Order, unless the contrary intention appears:
Attorney‑General’s Department means the Commonwealth Attorney‑General’s Department.
convention, in relation to a foreign country, means a convention (other than the Hague Convention), agreement, arrangement or treaty about service abroad of judicial documents to which the Crown in right of the Commonwealth or, where appropriate, in right of a State, and a foreign country are parties.
foreign country means a country other than Australia.
Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.
originating process means an application commencing a proceeding, and includes a cross‑claim in the proceeding against a person who was not previously a party to the proceeding.
2 When originating process may be served outside Australia
Subject to rule 3, an originating process may be served on a person in a foreign country in a proceeding which consists of, or includes, any 1 or more of the kinds of proceeding mentioned in the following table:
| Item | Kind of proceeding in which originating process may be served on a person outside Australia |
| 1 | Proceeding based on a cause of action arising in Australia |
| 2 | Proceeding based on a breach of a contract in Australia |
| 3 | Proceeding in relation to a contract that: (a) is made in Australia; or (b) is made on behalf of the person to be served by or through an agent who carries on business, or is resident, in Australia; or (c) is governed by the law of the Commonwealth or of a State or Territory; in which the applicant seeks: (d) an order for the enforcement, rescission, dissolution, rectification or annulment of the contract; or (e) an order otherwise affecting the contract; or (f) an order for damages or other relief in relation to a breach of the contract |
| 4 | Proceeding based on a tort committed in Australia |
| 5 | Proceeding based on, or seeking the recovery of, damage suffered wholly or partly in Australia caused by a tortious act or omission (wherever occurring) |
| 6 | Proceeding seeking the construction, rectification, setting aside or enforcement of: (a) a deed, will or other instrument; or (b) a contract, obligation or liability; affecting property in Australia |
| 7 | Proceeding seeking the execution of a trust governed by a law of the Commonwealth, or of a State or Territory, or any associated relief |
| 8 | Proceeding that affects the person to be served in relation to the person’s membership of a corporation that carries on business in Australia or is registered in a State or Territory as a foreign company |
| 9 | Proceeding in relation to an arbitration carried out in Australia |
| 10 | Proceeding in which the Court has jurisdiction, seeking relief in relation to the guardianship, protection, or care, welfare and development of a person under 18 years (whether or not the person is in Australia) |
| 11 | Proceeding based on a breach of a provision of an Act that is committed in Australia |
| 12 | Proceeding based on a breach of a provision of an Act (wherever occurring) seeking relief in relation to damage suffered wholly or partly in Australia |
| 13 | Proceeding in relation to the construction, effect or enforcement of an Act, regulations or any other instrument having, or purporting to have, effect under an Act |
| 14 | Proceeding in relation to the effect or enforcement of an executive, ministerial or administrative act done, or purporting to be done, under an Act, regulations or any other instrument having, or purporting to have, effect under an Act |
| 15 | Proceeding seeking contribution or indemnity in relation to a liability enforceable by a proceeding in the Court |
| 16 | Proceeding in which: (a) the person to be served is domiciled or ordinarily resident in Australia; or (b) if the person is a corporation, the corporation is incorporated in Australia, carries on business in Australia or is registered in a State or Territory as a foreign company |
| 17 | Proceeding in which the person to be served has submitted to the jurisdiction of the Court |
| 18 | Proceeding properly brought against a person who is served, or is to be served, in Australia, if the person to be served has been properly joined as a party |
| 19 | Proceeding in which the subject matter, so far as it concerns the person to be served, is property in Australia |
| 20 | Proceeding seeking the perpetuation of testimony in relation to property in Australia |
| 21 | Proceeding seeking an injunction ordering a person to do, or to refrain from doing, anything in Australia (whether or not damages are also sought) |
| 22 | Proceeding affecting the person to be served in relation to: (a) the person’s membership of, or office in, a corporation incorporated, or carrying on business, in Australia; or (b) the person’s membership of, or office in, an association or organisation formed, or carrying on business, in Australia; or (c) the person’s conduct as a member or officer of such a corporation, association or organisation |
3 Application for leave to serve originating process outside Australia
(1) Service of an originating process on a person in a foreign country is effective for the purpose of a proceeding only if:
(a) the Court has given leave under subrule (2) before the application is served; or
(b) the Court confirms the service under subrule (5); or
(c) the person served waives any objection to the service by entering an appearance in the proceeding.
(2) The Court may give leave to a party to serve an originating process on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country, on such terms and conditions as it considers appropriate, if the Court is satisfied that:
(a) the Court has jurisdiction in the proceeding; and
(b) the proceeding is of a kind mentioned in rule 2; and
(c) the person seeking leave has a prima facie case for all or any of the relief claimed by the person in the proceeding.
Note 1 The law of a foreign country may permit service through the diplomatic channel or service by a private agent.
Note 2 Order 8A, Division 2 deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.
(3) The evidence on an application for leave under subrule (2) must include the following:
(a) the name of the foreign country where the person to be served is or is likely to be;
(b) the proposed method of service;
(c) a statement that the proposed method of service is permitted by:
(i) if a convention applies — the convention; or
(ii) if the Hague Convention applies — the Hague Convention; or
(iii) in any other case — the law of the foreign country.
(4) Nothing in this rule prevents the Court from giving leave to a person to give notice, in a foreign country, of a proceeding in the Court on the basis that giving the notice takes the place of serving the originating process in the proceeding.
(5) If an originating process was served on a person in a foreign country without the leave of the Court, the Court may, by order, confirm the service if the Court is satisfied that:
(a) paragraphs (2) (a), (b) and (c) apply to the proceeding; and
(b) the service was permitted by:
(i) if a convention applies — the convention; or
(ii) if the Hague Convention applies — the Hague Convention; or
(iii) in any other case — the law of the foreign country; and
(c) the failure to apply for leave is sufficiently explained.
4 Service of other documents
(1) The Court may give leave to a party to serve a document issued by the Court (other than an originating process) on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country, on such terms and conditions as it considers appropriate.
Note 1 The law of a foreign country may permit service through the diplomatic channel or service by a private agent.
Note 2 Order 8A, Division 2 deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.
(2) The evidence on an application for leave under subrule (1) must include the information mentioned in paragraphs 3 (3) (a) to (c).
(3) If a document (other than an originating process) was served on a person in a foreign country without the leave of the Court, the Court may confirm the service if the Court is satisfied that:
(a) the service was permitted by:
(i) if a convention applies — the convention; or
(ii) if the Hague Convention applies — the Hague Convention; or
(iii) in any other case — the law of the foreign country.
(b) the failure to apply for leave is sufficiently explained.
5 Application of other rules
The other Orders of these Rules apply to service of a document on a person in a foreign country in the same way as they apply to service on a person in Australia, so far as they are:
(a) relevant and not inconsistent with this Order; and
(b) not inconsistent with:
(i) if a convention applies — the convention; or
(ii) if the Hague Convention applies — the Hague Convention; or
(iii) in any other case — the law of the foreign country.
6 Method of service
A document that is to be served on a person in a foreign country need not be served personally on the person if it is served on the person in accordance with the law of the foreign country.
7 Substituted service
(1) This rule applies if an official certificate or declaration (whether made on oath or otherwise) is sent to the Court by the government or a court of a foreign country stating that attempts to serve a document on a person in the foreign country, in accordance with a convention, the Hague Convention or through the diplomatic channel, have not been successful.
(2) On application by the person seeking service, the Court may order such steps be taken, as are specified in an order, for the purpose of bringing the document to the notice of the person to be served.
(3) If the Court makes an order under subrule (2), the Court may order that a document is taken to have been served when a specified event happens or on the expiry of a specified time.
8 Proof of service
(1) This rule does not apply to a document served in accordance with the Hague Convention.
Note Order 8A, Division 2 deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.
(2) An official certificate or declaration (whether made on oath or otherwise) stating that a document has been personally served on a person in a foreign country, or served on the person in another way in accordance with the law of the foreign country, is sufficient proof of the service of the document.
(3) If filed, the certificate or declaration:
(a) is taken to be a record of the service of the document; and
(b) has effect as if it were an affidavit of service.
Division 2 Service through the diplomatic channel or by transmission to a foreign government
9 Documents to be lodged with the Court
(1) This rule applies if a person has been given leave to serve a document on a person in a foreign country:
(a) through the diplomatic channel; or
(b) by transmission to a foreign government in accordance with a convention (the relevant convention).
Note This rule does not apply if a person has been given leave to serve a document on a person in a foreign country that is a party to the Hague Convention. Service in a foreign country that is a party to the Hague Convention is dealt with in Order 8A, Division 2.
(2) The person given leave must lodge in the District Registry:
(a) a request for service in accordance with Form 14A; and
(b) a request for transmission in accordance with Form 14B; and
(c) a written undertaking by the person, or the person’s lawyer, to pay to the Registrar the amount of the expenses incurred by the Court in giving effect to the person’s request; and
(d) 2 copies (or such other number of copies as may be required by the relevant convention) of each document to be served; and
(e) if necessary, a translation into an official language of the foreign country (including a statement by the translator attesting to the accuracy of the translation) of the following:
(i) the request for transmission mentioned in paragraph (b);
(ii) each document to be served.
10 Order for payment of expenses
(1) This rule applies if:
(a) a person files an undertaking under paragraph 9 (2) (c) in relation to a request for service on a person in a foreign country in accordance with a convention or through the diplomatic channel; and
(b) the person does not, within 14 days after being sent an account for expenses incurred in relation to the request, pay to the Registrar the amount of the expenses.
(2) On application by the Registrar, the Court may:
(a) order the person to pay the amount of the expenses to the Registrar; and
(b) stay the proceeding, so far as it concerns the whole or any part of a claim for relief by the person, until the amount of the expenses is paid.
Order 8A Service under the Hague Convention
Division 1 Preliminary
Note 1 This Order forms part of a scheme to implement Australia’s obligations under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the Convention, the Attorney‑General’s Department of the Commonwealth is designated as the Central Authority (under Article 2 of the Convention) and certain courts and government departments are, for certain purposes, designated as ‘other ‘ or ‘additional ‘ authorities (under Article 18 of the Convention).
Note 2 This Order provides (in Division 2) for service in overseas Convention countries of local judicial documents (documents that relate to proceedings in the Court) and (in Division 3) for default judgment in proceedings in the Court after service overseas of such a document. Division 4, on the other hand, deals with service by the Court or arranged by the Court in its role as an other or additional authority, of judicial documents emanating from overseas Convention countries.
Note 3 The Attorney‑General’s Department of the Commonwealth maintains a copy of the Convention, a list of all Convention countries, details of declarations and objections made under the Convention by each of those countries and the names and addresses of the Central and other authorities of each of those countries. A copy of the Convention can be found at http://www.hcch.net.
1 Definitions for Order 8A
In this Order:
additional authority, for a Convention country, means an authority that is:
(a) for the time being designated by the country, under Article 18 of the Hague Convention, to be an authority (other than the Central Authority) for the country; and
(b) competent to receive requests for service abroad emanating from Australia.
applicant, for a request for service abroad or a request for service in this jurisdiction, means the person on whose behalf service is requested.
Note The term applicant may have a different meaning in other provisions of these Rules.
Central Authority, for a Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Convention, to be the Central Authority for that country.
certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Convention.
certifying authority, for a Convention country, means the Central Authority for the country or some other authority that is for the time being designated by the country, under Article 6 of the Hague Convention, to complete certificates of service in the form annexed to the Hague Convention.
civil proceedings means any judicial proceedings in relation to civil or commercial matters.
Convention country means a country, other than Australia, that is a party to the Hague Convention.
defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served.
foreign judicial document means a judicial document that originates in a Convention country and relates to civil proceedings in a court of that country.
forwarding authority means:
(a) for a request for service of a foreign judicial document in this jurisdiction — the authority or judicial officer of the Convention country in which the document originates that forwards the request (being an authority or judicial officer that is competent under the law of that country to forward a request for service under Article 3 of the Hague Convention); or
(b) for a request for service of a local judicial document in a Convention country — the Registrar.
Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.
initiating process means any document by which proceedings (including proceedings on any cross‑claim or third party notice) are commenced.
local judicial document means a judicial document that relates to civil proceedings in the Court.
request for service abroad means a request for service in a Convention country of a local judicial document mentioned in subrule 4 (1).
request for service in this jurisdiction means a request for service in this jurisdiction of a foreign judicial document mentioned in subrule 13 (1).
this jurisdiction means Australia.
2 Provisions of this Order to prevail
The provisions of this Order prevail to the extent of any inconsistency between those provisions and any other provisions of these Rules.
Division 2 Service abroad of local judicial documents
3 Application of Division
(1) Subject to subrule (2), this Division applies to service in a Convention country of a local judicial document.
(2) This Division does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Convention.
4 Application for request for service abroad
(1) A person may apply to the Registrar, in the Registrar’s capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document.
(2) The application must be accompanied by 3 copies of each of the following documents:
(a) a draft request for service abroad, which must be in accordance with Part 1 of Form 14D;
(b) the document to be served;
(c) a summary of the document to be served, which must be in accordance with Form 14E;
(d) if, under Article 5 of the Hague Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, an official language or one of the official languages of that country, a translation into that language of both the document to be served and the summary of the document to be served.
(3) The application must contain a written undertaking to the Court, signed by the legal practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no legal practitioner on the record for the applicant in the proceedings, by the applicant:
(a) to be personally liable for all costs that are incurred:
(i) by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Convention country in which the documents are to be served; or
(ii) by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served; and
(b) to pay the amount of those costs to the Registrar within 28 days after receipt from the Registrar of a notice specifying the amount of those costs under subrule 6 (3); and
(c) to give such security for those costs as the Registrar may require.
(4) The draft request for service abroad:
(a) must be completed (except for signature) by the applicant; and
(b) must state whether (if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected) the applicant wants service to be attempted after the expiry of that time; and
(c) must be addressed to the Central Authority, or to an additional authority, for the Convention country in which the person is to be served; and
(d) may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority.
(5) Any translation required under subrule (2) (d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating:
(a) that the translation is an accurate translation of the documents to be served; and
(b) the translator’s full name and address and his or her qualifications for making the translation.
5 How application to be dealt with
(1) If satisfied that the application and its accompanying documents comply with rule 4, the Registrar:
(a) must sign the request for service abroad; and
(b) must forward 2 copies of the relevant documents:
(i) if the applicant has asked for the request to be forwarded to a nominated additional authority for the Convention country in which service of the document is to be effected — to the nominated additional authority; or
(ii) in any other case — to the Central Authority for the Convention country in which service of the document is to be effected.
(2) The relevant documents mentioned in subrule (1) (b) are the following:
(a) the request for service abroad (duly signed);
(b) the document to be served;
(c) the summary of the document to be served;
(d) if required under paragraph 4 (2) (d), a translation into the relevant language of each of the documents mentioned in paragraphs (b) and (c).
(3) If not satisfied that the application or any of its accompanying documents complies with rule 4, the Registrar must inform the applicant of the respects in which the application or document fails to comply.
6 Procedure on receipt of certificate of service
(1) Subject to subrule (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the Registrar:
(a) must arrange for the original certificate to be filed in the proceedings to which the document relates; and
(b) must send a copy of the certificate to:
(i) the legal practitioner on the record for the applicant in the proceedings; or
(ii) if there is no legal practitioner on the record for the applicant in the proceedings — the applicant.
(2) For the purposes of subrule (1), a certificate of service is in due form if:
(a) it is in accordance with Part 2 of Form 14D; and
(b) it has been completed by a certifying authority for the Convention country in which service was requested; and
(c) if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority, it has been so countersigned.
(3) On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in subrule (1), the Registrar must send to the legal practitioner or applicant who gave the undertaking mentioned in subrule 4 (3) a notice specifying the amount of those costs.
(4) For the purposes of subrule (3), a statement of costs is in due form if:
(a) it relates only to costs of a kind mentioned in paragraph 4 (3) (a); and
(b) it has been completed by a certifying authority for the Convention country in which service was requested.
(5) Subrule (1) does not apply unless:
(a) adequate security to cover the costs mentioned in subrule (3) has been given under paragraph 4 (3) (c); or
(b) to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to the Registrar.
7 Payment of costs
(1) On receipt of a notice under subrule 6 (3) in relation to the costs of service, the legal practitioner or applicant, as the case may be, must pay to the Registrar the amount specified in the notice as the amount of the costs.
(2) If the legal practitioner or applicant fails to pay that amount within 28 days after receiving the notice:
(a) except by leave of the Court, the applicant may not take any further step in the proceedings to which the local judicial document relates until the costs are paid to the Registrar; and
(b) the Registrar may take such steps as are appropriate to enforce the undertaking for payment of the costs.
8 Evidence of service
A certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of subrule 6 (2)) that certifies that service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that:
(a) service of the document was effected by the method specified in the certificate on that date; and
(b) if that method of service was requested by the applicant, that method is compatible with the law in force in the Convention country in which service was effected.
Division 3 Default judgment following service abroad of initiating process
9 Application of Division
This Division applies to civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Convention country.
10 Restriction on power to enter default judgment if certificate of service filed
(1) This rule applies if:
(a) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form (within the meaning of subrule 6 (2)) that states that service has been duly effected; and
(b) the defendant has not appeared or filed a notice of address for service.
(2) In circumstances to which this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that:
(a) the initiating process was served on the defendant:
(i) by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory; or
(ii) if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in the country, by that method; or
(iii) if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily; and
(b) the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.
(3) In paragraph (2) (b), sufficient time means:
(a) 42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or
(b) such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.
11 Restriction on power to enter default judgment if certificate of service not filed
(1) This rule applies if:
(a) a certificate of service of initiating process has not been filed in the proceedings; or
(b) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of subrule 6 (2)) that states that service has not been effected;
and the defendant has not appeared or filed a notice of address for service.
(2) If this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that:
(a) the initiating process was forwarded to the Central Authority, or to an additional authority, for the Convention country in which service of the initiating process was requested; and
(b) a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which initiating process was so forwarded; and
(c) every reasonable effort has been made:
(i) to obtain a certificate of service from the relevant certifying authority; or
(ii) to effect service of the initiating process;
as the case requires.
12 Setting aside judgment in default of appearance
(1) This rule applies if default judgment has been entered against the defendant in proceedings to which this Division applies.
(2) If this rule applies, the Court may set aside the judgment on the application of the defendant if it is satisfied that the defendant:
(a) without any fault on the defendant’s part, did not have knowledge of the initiating process in sufficient time to defend the proceedings; and
(b) has a prima facie defence to the proceedings on the merits.
(3) An application to have a judgment set aside under this rule may be filed:
(a) at any time within 12 months after the date on which the judgment was given; or
(b) after the expiry of that 12‑month period, within such time after the defendant acquires knowledge of the judgment as the Court considers reasonable in the circumstances.
(4) Nothing in this rule affects any other power of the Court to set aside or vary a judgment.
Division 4 Local service of foreign judicial documents
13 Application of Division
(1) This Division applies to service in this jurisdiction of a foreign judicial document in relation to which a due form of request for service has been forwarded to the Court:
(a) by the Attorney‑General’s Department of the Commonwealth, whether in the first instance or following a referral under rule 14; or
(b) by a forwarding authority.
(2) Subject to subrule (3), a request for service in this jurisdiction is in due form if it is in accordance with Part 1 of Form 14D and is accompanied by the following documents:
(a) the document to be served;
(b) a summary of the document to be served, which must be in accordance with Form 14E;
(c) a copy of the request and of each of the documents mentioned in paragraphs (a) and (b);
(d) if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.
(3) Any translation required under paragraph (2) (d) must bear a certificate (in English) signed by the translator stating:
(a) that the translation is an accurate translation of the document; and
(b) the translator’s full name and address and his or her qualifications for making the translation.
14 Certain documents to be referred back to the Attorney‑General’s Department of the Commonwealth
If, after receiving a request for service in this jurisdiction, the Registrar is of the opinion:
(a) that the request does not comply with rule 13; or
(b) that the document to which the request relates is not a foreign judicial document; or
(c) that compliance with the request may infringe Australia’s sovereignty or security;
the Registrar must refer the request to the Attorney‑General’s Department of the Commonwealth together with a statement of his or her opinion.
Note The Attorney General’s Department of the Commonwealth will deal with misdirected and non‑compliant requests, make arrangements for the service of extrajudicial documents and assess and decide questions concerning Australia’s sovereignty and security.
15 Service
(1) Subject to rule 14, on receipt of a request for service in this jurisdiction, the Court must arrange for the service of the relevant documents in accordance with the request.
(2) The relevant documents mentioned in subrule (1) are the following:
(a) the document to be served;
(b) a summary of the document to be served;
(c) a copy of the request for service in this jurisdiction;
(d) if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.
(3) Service of the relevant documents may be effected by any of the following methods of service:
(a) by a method of service prescribed by the law in force in this jurisdiction:
(i) for the service of a document of a kind corresponding to the document to be served; or
(ii) if there is no such corresponding kind of document — for the service of initiating process in proceedings in the Court;
(b) if the applicant has requested a particular method of service and that method is compatible with the law in force in this jurisdiction — by that method;
(c) if the applicant has not requested a particular method of service and the person requested to be served accepts the document voluntarily — by delivery of the document to the person requested to be served.
16 Affidavit as to service
(1) If service of a document has been effected pursuant to a request for service in this jurisdiction, the person by whom service has been effected must lodge with the Court an affidavit specifying:
(a) the time, day of the week and date on which the document was served; and
(b) the place where the document was served; and
(c) the method of service; and
(d) the person on whom the document was served; and
(e) the way in which that person was identified.
(2) If attempts to serve a document pursuant to a request for service in this jurisdiction have failed, the person by whom service has been attempted must lodge with the Court an affidavit specifying:
(a) details of the attempts made to serve the document; and
(b) the reasons that have prevented service.
(3) When an affidavit as to service of a document has been lodged in accordance with this rule, the Registrar:
(a) must complete a certificate of service, sealed with the seal of the Court, on the reverse side of, or attached to, the request for service in this jurisdiction; and
(b) must forward the certificate of service, together with a statement as to the costs incurred in relation to the service or attempted service of the document, directly to the forwarding authority from which the request was received.
(4) A certificate of service must be:
(a) in accordance with Part 2 of Form 14D; or
(b) if a form or certificate that substantially corresponds to Part 2 of Form 14D accompanies the request for service, in that accompanying form.
Order 9 Appearance
1 Appearance by solicitor or in person
(1) A respondent may enter an appearance and may defend a proceeding by a solicitor or in person.
(2) Where a respondent is a person under disability subrule (1) has effect subject to Order 43.
(3) Notwithstanding subrule (1) and subject to any Act, a corporation may not without the leave of the Court or a Judge enter an appearance or defend any proceeding except by a solicitor.
(4) For the purposes of this Order respondent includes a person who is required to enter an appearance but is not named as a respondent.
2 Time for appearance
(1) Subject to these Rules a respondent shall enter an appearance before the date appointed for a directions hearing and before filing any document.
(2) Notwithstanding subrule (1) a respondent who has not entered an appearance by the date appointed for a directions hearing, may enter an appearance after that date without leave.
3 Mode of entry
(1) An appearance shall be entered by filing a notice of appearance in accordance with Form 15.
(2) Two or more persons entering an appearance by the same solicitor on the same date may do so by a single notice of appearance.
(3) The date of entry of an appearance shall be the date when notice of the appearance is received in the Registry.
(4) On the filing of the notice of appearance, the Registrar must:
(a) affix the stamp of the Court to the notice and to any copies of the notice; and
(b) write the date when the stamp has been affixed on the notice and on any other copies; and
(c) return the documents to the person entering the appearance.
4 Notice of appearance
(1) A notice of appearance shall show:
(a) the name and address of the person entering the appearance;
(b) where the person entering the appearance appears by a solicitor, the name, address and telephone number of the solicitor;
(c) where the person entering the appearance appears by a solicitor and that solicitor has another solicitor as agent for him in the proceeding, the name, address and telephone number of the agent; and
(d) an address for service in accordance with rule 6 of Order 7.
(2) Where an address shown in a notice of appearance by which a respondent enters an appearance is not genuine, the applicant may, with the leave of the Court, continue the proceeding as if the appearance had not been entered.
5 Service of appearance
A respondent shall, upon receiving the copies of the notice of appearance stamped with the stamp of the Registry, forthwith serve on the applicant at his place for service one of the copies so received.
6 Conditional appearance
(1) A respondent may enter a conditional appearance.
(2) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless the Court otherwise orders or the respondent applies under and in accordance with rule 7 and the Court makes an order under that rule.
7 Setting aside originating process etc
(1) The Court may make an order:
(a) setting aside an originating process; or
(b) setting aside the service of an originating process on the respondent; or
(c) declaring that an originating process has not been duly served on the respondent; or
(d) discharging any order giving leave to serve an originating process outside Australia or confirming service of an originating process outside Australia.
(2) A respondent applying for an order under subrule (1) must file and serve the notice of motion:
(a) before the respondent enters an appearance; or
(b) within 14 days after the respondent enters a conditional appearance.
Order 10 Directions hearing
Note Order 35A deals with the procedure on default.
1 Directions hearing — general
(1) On a directions hearing the Court shall give such directions with respect to the conduct of the proceeding as it thinks proper.
(1A) In any proceeding which is to be heard by a Full Court, whether in the original or appellate jurisdiction, such directions as is thought proper with respect to the conduct of the proceeding may be given by the Court constituted by a single Judge.
(2) Without prejudice to the generality of subrule (1) or (1A) the Court may:
(a) make orders with respect to:
(i) discovery and inspection of documents;
(ii) interrogatories;
(iii) inspections of real or personal property;
(iv) admissions of fact or of documents;
(v) the defining of the issues by pleadings or otherwise;
(vi) the standing of affidavits as pleadings;
(vii) the joinder of parties;
(viii) the mode and sufficiency of service;
(ix) amendments;
(x) cross‑claims;
(xi) the filing of affidavits;
(xii) the giving of particulars;
(xiii) the place, time and mode of hearing;
(xiv) the giving of evidence at the hearing, including whether evidence of witnesses in chief shall be given orally or by affidavit, or both;
(xv) the disclosure of reports of experts;
(xvi) costs;
(xvii) the filing and exchange of signed statements of evidence of intended witnesses and their use in evidence at the hearing;
(xviii) the taking of evidence and receipt of submissions
by video link, or audio link, or electronic communication, or such other means as the Court considers appropriate;
(xix) the proportion in which the parties are to bear
the costs (if any) of taking evidence or making submissions in accordance with a direction under subparagraph (xviii); and
(xx) the use of mediation, arbitration or an alternative dispute resolution process to assist in the conduct and resolution of all or part of the proceeding.
(aa) where, in any proceeding commenced in respect of any alleged or threatened breach of a provision of Part IV of the Trade Practices Act 1974, an order pursuant to section 80 of that Act is sought, direct that notice be given of the order sought by public advertisement or in such other form as the Court directs;
(b) notwithstanding that the application is supported by a statement of claim, order that the proceeding continue on affidavits;
(c) order that evidence of a particular fact or facts be given at the hearing:
(i) by statement on oath upon information and belief;
(ii) by production of documents or entries in books;
(iii) by copies of documents or entries; or
(iv) otherwise as the Court directs;
(ca) order that an agreed bundle of documents be prepared by the parties;
(cab) direct that the parties give consideration to jointly instructing an expert to provide to the parties a report of the expert’s opinion in relation to a particular issue or issues in the proceeding, on the basis that the parties concerned will be jointly responsible to pay the expert’s fees and expenses;
(d) order, under paragraph 37P (3) (c) of the Act, that no more than a specified number of expert witnesses may be called;
(da) order that the reports of experts be exchanged;
(e) appoint a court expert in accordance with Order 34, rule 2;
(f) direct that the proceeding be transferred to a place at which there is a Registry other than the then proper place. Where the proceeding is so transferred, the Registrar at the proper place from which the proceeding is transferred shall transmit all documents in his charge relating to the proceeding to the Registrar at the proper place to which the proceeding is transferred;
(g) order, under section 53A of the Act, that proceedings, a part of proceedings or a matter arising out of proceedings be referred to a mediator, arbitrator or a person suitable to conduct an alternative dispute resolution process;
(h) order that the parties attend before a Registrar for a conference with a view to satisfying the Registrar that all reasonable steps to achieve a negotiated outcome of the proceedings have been taken, or otherwise clarifying the real issues in dispute so that appropriate directions may be made for the disposition of the matter, or otherwise to shorten the time taken in preparation for and at the trial;
(i) in a case in which the Court considers it appropriate, direct the parties to attend a case management conference with a Judge or Registrar to consider the most economic and efficient means of bringing the proceedings to trial and of conducting the trial, at which conference the Judge or Registrar may give further directions;
(j) in proceedings in which a party seeks to rely on the opinion of a person involving a subject in which the person has specialist qualifications, direct that all or part of such opinion be received by way of submission in such manner and form as the Court may think fit, whether or not the opinion would be admissible as evidence.
(3) The Court may revoke or vary any order made under (1), (1A) or (2).
(4) Paragraph (aa) of subrule (2) does not limit the power of the Court to direct at any stage of the proceeding that such notice be given.
2 Fixing of date
(1) On the directions hearing the Court may:
(a) fix a date for a further directions hearing;
(b) fix a date for trial;
(c) direct the parties to arrange with the Registrar a date for trial;
(d) fix a date after which either party may request a date for trial; or
(e) stand the matter out of the list.
3 Determination of proceeding
If the Court thinks fit and the parties agree, the Court may hear and determine the proceeding on a directions hearing.
4 Motion for summary judgment, stay or dismissal
(1) A party may, at the directions hearing, move for:
(a) an order under Order 20, rule 4 or 5; or
(b) judgment under Order 20, rule 2 or section 31A of the Act.
(2) The party must serve notice of the motion on each other party to the proceeding at least 3 days before the directions hearing.
(3) The Court may dispense with service under subrule (2).
5 Interlocutory orders
On a directions hearing, each party shall, so far as is practicable, apply for any interlocutory order or directions which he may require.
6 Motion on notice
A party may move on notice for any interlocutory order or directions not made at the directions hearing appointed in the application.
9 Use of recording device or communication device in place where hearing taking place
(1) In this rule:
communication device includes a mobile telephone, audio link, video link and any other electronic communication equipment.
recording device means a device that is capable of being used to record images or sound (including a camera, tape recorder, video recorder, mobile telephone and digital audio recorder).
(2) Except with the leave of the Court or a Judge, a person must not use a communication device or recording device in a place where a hearing is taking place.
(3) An application for leave under subrule (2) may be made to the Court or a Judge at any time before the date of the hearing in which the communication device or recording device is sought to be used.
(4) The Court or a Judge may:
(a) grant leave under subrule (2) subject to any conditions that the Court or Judge considers appropriate; and
(b) either generally or in relation to a particular part of a hearing:
(i) withdraw such leave; or
(ii) impose new conditions or vary or remove any existing conditions to which such leave is subject.
(5) In considering whether to grant leave under subrule (2) for the use of a communication device or recording device, the Court or a Judge may have regard to any relevant matter including the following:
(a) whether the person seeking leave has a reasonable need to use the device in relation to the hearing;
(b) if a direction has been given excluding one or more witnesses from the Court, the risk that the device could be used for the purpose of briefing a witness out of court;
(c) any possibility that use of the device would disturb the hearing or distract or cause concern to a witness or other participant in the hearing.
(6) This rule does not prevent:
(a) the making of, or the use of a recording device for the purpose of making, an official transcript of a hearing; or
(b) the use of a communication device for the purpose of allowing a person to appear before, or make a submission to, the Court or a Judge.
(7) This rule does not limit the powers of the Court to punish for contempt.
Order 10A Cross‑vesting
1 Interpretation
In this Order:
the Act means the Jurisdiction of Courts (Cross‑vesting) Act 1987 of the Commonwealth.
cross‑vesting law means any law of the Commonwealth or a State or Territory (including the Act) relating to the cross‑vesting of jurisdiction.
special federal matter has the same meaning as in the Act.
2 Application of order
The other Orders of the Rules apply to proceedings referred to in this Order in so far as they are not inconsistent with the Rules contained in it.
3 Application under the Act
(1) An application under the Act for transfer of proceedings shall be made by motion.
(2) The heading of the notice of motion shall refer to the Act.
4 Applications for transfer of proceedings
(1) An application under the Act for the transfer of proceedings shall be heard and determined by a Judge.
(2) If an application for the transfer of proceedings is made by the Attorney‑General of the Commonwealth or of a State or Territory, the Attorney‑General does not, by reason of the application, become a party to the proceedings in respect of which the application is made.
5 Proceedings in which jurisdiction under cross‑vesting laws is or may be invoked
(1) If a party to a proceeding proposes to invoke a jurisdiction arising under a cross‑vesting law, or relies on a cross‑vesting law in any other way:
(a) the statement of claim or the affidavit accompanying the application or a subsequent pleading (in each instance hereinafter called the pleading) shall include a statement of the provision on which the party relies, of the claim in relation to which the party relies on it and of the grounds on which the party relies on it; and
(b) the party shall seek directions as soon as practicable on whether the proceeding should be transferred under the Act.
(2) If a pleading raises a question involving a special federal matter, the pleading shall identify the special federal matter as such and state the grounds on which it is a special federal matter.
6 Proceedings transferred under cross‑vesting laws
(1) On the transfer of proceedings by the court under the Act the Registrar shall send to the proper officer of the Court to which the proceedings are transferred all documents filed and orders made in the proceedings.
(2) On the transfer of proceedings to the court under a cross‑vesting law the proper officer shall enter and number the documents received in respect of those proceedings so that the proceedings are distinguished by year of filing and number.
(3) On the transfer of proceedings to the court under a cross‑vesting law the plaintiff or applicant (as the case may be) shall make an application for directions as soon as practicable.
7 Conduct of proceedings
(1) If the law of a State or Territory may be applied under paragraph 11 (1) (b) of the Act in determining a right of action arising under a written law of that State or Territory, the pleading must identify the right of action and the written law under which it arises.
(2) If a party proposed to claim that the law of a State or Territory should be applied under paragraph 11 (1) (b) of the Act or that rules of evidence and procedure other than those of the Court should be applied under paragraph 11 (1) (c) of the Act:
(a) the party must seek directions on that matter before the proceedings are set down for trial;
(b) the Court may at any time give directions in relation to such matter and may revoke or vary any direction given by it in relation to any such matter.
Order 11 Pleadings
Division 1 General
1 Paragraphs — Form 7
Where a pleading alleges or otherwise deals with several matters:
(a) the pleading shall be divided into paragraphs;
(b) each matter shall, so far as convenient, be put in a separate paragraph; and
(c) the paragraphs shall be numbered consecutively.
1A Pleading to include name of person who prepared it
A pleading must:
(a) set out the name of the person who prepared the pleading; and
(b) include a statement by the person that the person prepared the pleading.
1B Pleading prepared by lawyer
(1) If a pleading is prepared by a lawyer representing a party, the pleading must, when filed, be accompanied by a certificate in accordance with Form 15B signed by the lawyer.
(2) The certificate required by subrule (1) may be incorporated in the pleading that is being certified.
2 Facts not evidence
Subject to these Rules:
(a) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved; and
(b) paragraph (a) has effect subject to this Order and to Order 4 (which relates to commencement of proceedings) and to Order 12 (which relates to particulars).
3 Brevity
A pleading shall be as brief as the nature of the case admits.
4 Documents and spoken words
Where any document or spoken words are referred to in a pleading, it is permissible to state the effect of the document or spoken words without setting out the precise terms thereof.
5 Presumed facts
A party need not plead a fact if:
(a) the fact is presumed by law to be true; or
(b) the burden of disproving the fact lies on the other party;
except so far as may be necessary to meet a specific denial of that fact by the other party in his pleading or failure to plead such fact is likely to cause the other party to be taken by surprise.
6 Conditions precedent
(1) It shall not in any pleading be necessary to make a general allegation of fulfilment of a condition precedent to a right of action.
(2) Any party wishing to deny the fulfilment of any such condition precedent shall plead such denial.
7 New fact or matter
A party may plead a fact or matter that has occurred or arisen since the commencement of the proceeding.
8 Departure
(1) A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with a previous current pleading of his.
(2) Subrule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative.
9 Points of law
A party may by his pleading raise any point of law.
10 Matters for specific pleading
In a pleading subsequent to a statement of claim a party shall plead specifically any matter of fact or point of law (for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality) that:
(a) the party alleges makes a claim or defence of the opposite party not maintainable;
(b) if not specifically pleaded might take the other party by surprise; or
(c) raises issues of fact not arising out of the preceding pleading.
11 Tender
Where in any proceeding a defence of tender before the commencement of the proceeding is pleaded, the respondent shall bring into Court in accordance with Order 23 the amount alleged to have been tendered, and the tender shall, unless the Court has dispensed with compliance with this rule, not be available as a defence unless and until the amount has been brought into Court.
12 Set‑off
Where a claim by a respondent to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by an applicant, it may be included in the defence and set off against the applicant’s claim, whether or not the respondent also cross‑claims for that sum of money.
13 Admissions and traverse
(1) Subject to subrule (3) and to Order 43, rule 7 (which deals with persons under disability), an allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading or a joinder of issue under rule 14 operates as a denial of it.
(2) A traverse may be made either by a specific denial or by a statement of specific non‑admission.
(3) Subject to subrule (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit must be specifically traversed by him in his defence or defence to counterclaim, as the case may be; and a general denial of such allegations, or a general statement on non‑admission of them is not a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any allegations as to the amount of damages is deemed to be traversed unless specifically admitted.
14 Joinder of issue
(1) If there is no reply to a defence, there shall be an implied joinder of issue on that defence.
(2) Subject to subrule (3), a joinder of issue operates as a denial of every allegation of fact made in the pleading on which there is a joinder of issue.
(3) A party may admit or specifically plead to allegations of fact made in the pleading on which there is a joinder of issue, in which case the joinder shall operate as a denial of every other allegation of fact.
15 Close of pleadings
(1) The pleadings on a statement of claim shall, unless the Court otherwise orders, be closed, as between any applicant and any respondent, on the date of expiry of the last of the times fixed by or under these Rules for filing a defence or reply or other pleading between those parties.
(2) Subrule (1) shall have effect notwithstanding that, on the date mentioned in that subrule, a request or order for particulars has been made but has not been complied with.
16 Embarrassment etc
Where a pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or
(c) is otherwise an abuse of the process of the Court;
the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.
17 General issue
A party shall not plead the general issue.
18 Denial to be substantial answer
When a party in any pleading denies an allegation of fact in the previous pleading of the opposite party, he must not do so evasively or generally, but must answer the point of substance, in accordance with rule 13 of this Order.
Division 2 Progress of pleadings
Note Order 35A deals with the procedure on default.
19 Times for filing and service of pleadings
Where a proceeding commenced by application supported by statement of claim continues on pleadings after the directions hearing, or at the directions hearing it is ordered that the proceeding continue on pleadings, the times for filing and serving pleadings shall, unless the Court otherwise directs, be in accordance with rules 20 to 22 of this Order.
20 Defence — Form 16
(1) Where the application was accompanied by a statement of claim, a defence in accordance with Form 16 must be filed within 7 days after the directions hearing.
(2) Where at the directions hearing it is ordered that the applicant file and serve a statement of claim or points of claim, the defence or points of defence shall be filed and served within 14 days after service of the statement of claim or the points of claim.
21 Defence to cross‑claim
Where a cross‑claim is filed and served pursuant to Order 5, a cross‑respondent shall file and serve a defence to the cross‑claim within 21 days after service on him of the cross‑claim or within 7 days after the directions hearing appointed in the application, whichever is the later.
22 Reply — Forms 17 and 18
(1) Where a respondent serves a defence on an applicant or a cross‑respondent serves a defence to cross‑claim on a cross‑claimant, and a reply is needed for compliance with rule 10 of this Order, the applicant or cross‑claimant as the case may be must file and serve the reply, in accordance with Form 17, within 14 days after service on him of the defence or defence to the cross‑claim.
(2) Where an applicant files both a reply and a defence to a cross‑claim, both must be put in one document, in accordance with Form 18.
Order 12 Particulars
1 General
(1) A party pleading shall state in the pleading or in a document filed and served with it the necessary particulars of any claim, defence or other matter pleaded by him.
(2) Rules 2 to 4 do not affect the generality of subrule (1).
2 Fraud etc
A party pleading shall give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which he relies.
3 Conditions of mind
(1) A party pleading any condition of mind shall give particulars of the facts on which he relies.
(2) In subrule (1) condition of mind includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge.
4 Damages
(1) Where a party pleading claims damages which include moneys which he has paid or is liable to pay, he shall give particulars of those moneys.
(2) Where a party pleading claims exemplary damages, he shall give particulars of the facts and matters on which he relies to establish that claim.
5 Order for particulars
(1) The Court may order a party to file and serve on any other party:
(a) particulars of any claim, defence or other matter stated in his pleading, or in any affidavit ordered to stand as his pleading;
(b) a statement of the nature of the case on which he relies; or
(c) where he claims damages, particulars relating to general or other damages.
(2) Without limiting the generality of subrule (1), where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, the Court may order that party to file and serve on any other party:
(a) where he alleges knowledge, particulars of the facts on which he relies; and
(b) where he alleges notice, particulars of the notice.
(3) The Court shall not make an order under this rule before the filing of the defence unless, in the opinion of the Court, the order is necessary or desirable to enable the respondent to plead or for some other special reason.
Order 13 Amendment
1 Application of Order
This Order does not apply to the amendment of a judgment or order or draft thereof.
2 General
(1) Subject to the following provisions of this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.
(3) Where an application to the Court for leave to make the amendment mentioned in subrules (4), (5) or (6) or paragraph (7) (a) is made after any relevant period of limitation current at the date of commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that subrule if it thinks it is just to do so.
(4) Where there has been a mistake in the name or identity of a party, an amendment to correct the name of the party may be made notwithstanding that the effect of the amendment is to substitute another person as a party.
(5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced.
(6) An amendment to alter the capacity in which a party sues may be made if the new capacity is one which that party had at the date of the commencement of the proceeding or has since acquired.
(7) An amendment may be made even if the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief (whether by way of substitution for an existing claim for relief or foundation in law or not) if the new claim for relief or foundation in law:
(a) arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party applying for leave to make the amendment; or
(b) subject to subrule (9), arises, in whole or in part, out of facts or matters that have occurred or arisen since the commencement of the proceeding.
(8) Subject to subrule (9), an amendment of a pleading may be made even if the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.
(9) Paragraph (7) (b) and subrule (8) do not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.
3 Amendment of pleading without leave
(1) A party may, without leave, amend any pleading filed by the party unless:
(a) the time for pleadings has closed; or
(b) the party has previously amended the pleading.
(3) Subject to subrule (4), an amendment may be made even if:
(a) the effect of the amendment is to add a new claim for relief or foundation in law for a claim for relief, whether by way of substitution for an existing claim for relief or foundation in law or not; or
(b) the amendment pleads a fact or matter that has occurred or arisen since the commencement of the proceeding.
(4) Subrule (3) does not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or a proceeding of a particular kind may be brought or instituted.
3A Date when amendment takes effect
Unless the Court otherwise orders, an amendment of a document that is made under rule 2 or 3 takes effect:
(a) if the amendment is made under paragraph 2 (7) (b), subrule 2 (8) or subrule 3 (3) — on the date when the amendment is made; and
(b) in any other case — on the date when the document was first filed.
4 Consequential amendment of defence or reply
(1) Where an applicant amends his statement of claim:
(a) if the respondent has filed his defence, he may amend his defence; and
(b) the time for filing his defence or amended defence, as the case may be, shall be either the time fixed by these Rules for filing his defence or 14 days after service on him under rule 10 whichever expires later.
(2) Where a respondent amends his defence:
(a) if the applicant has filed a reply, he may amend his reply; and
(b) the time for filing his reply or amended reply, as the case may be, shall be either the time fixed by these Rules for filing his reply or 14 days after service on him under rule 10, whichever expires later.
(3) The rights to amend under paragraph (1) (a) and paragraph (2) (a) are in addition to the right to amend under rule 3.
(4) Where the following is the order of events:
(a) a party (in this rule called the first party) files a pleading (in this rule called the first pleading);
(b) an opposite party files a pleading (in this rule called the second pleading) in answer (whether by way of defence, reply or otherwise) to the first pleading;
(c) the first party amends the first pleading;
(d) the opposite party does not amend the second pleading within the time allowed by this rule;
then:
(e) the second pleading shall have effect as a pleading in answer to the amended first pleading; and
(f) Order 11, subrule 14 (1) shall not apply but, if no further pleading between those parties is filed, there shall be, at the close of pleadings, an implied joinder of issue on the second pleading.
5 Disallowance of amendment
(1) If a party amends a pleading under subrule 3 (1), the Court may, subject to subrule (3), by order disallow the amendment.
(2) If a party amends a pleading under subrule 3 (2) but without obtaining the consent of a party, the Court may, subject to subrule (3), by order disallow the amendment.
(3) A person applying for an order under subrule (1) or (2) must file and serve the notice of motion within 14 days after the date on which the amended pleading was served on the person under rule 10 of thi