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Federal Court Rules 2011

Authoritative Version
  • - F2011L01551
  • In force - Superseded Version
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SLI 2011 No. 134 Rules/Court & Tribunal Rules as made
These Rules provide for the practice and procedure to be followed in the Court and its Registries, extending to all matters incidential to such practice or procedure that are necessary or convenient to be prescribed for the conduct of any business of the Court.
Administered by: Attorney-General's
Made 20 Jul 2011
Registered 28 Jul 2011
Tabled HR 18 Aug 2011
Tabled Senate 18 Aug 2011
Table of contents.

Federal Court Rules 20111

Select Legislative Instrument 2011 No. 134

We, Judges of the Federal Court of Australia, make the following Rules of Court under the Federal Court of Australia Act 1976.

Dated 20 July 2011

 

P.A. KEANE CJ

T.J. HIGGINS J

M.F. MOORE J

S.R. MARSHALL J

A.M. NORTH J

J.R. MANSFIELD J

A.R. EMMETT J

J.A. DOWSETT J

G.K. DOWNES J

A.C BENNETT J

B.T. LANDER J

A.N. SIOPIS J

A.P. GREENWOOD J

S.D. RARES J

B. COLLIER J

D.A. COWDROY J

A.J. BESANKO J

C.N. JESSUP J

J.E. MIDDLETON J

R.J. BUCHANAN J

J. GILMOUR J

M.M. GORDON J

J.A. LOGAN J

G.A. FLICK J

N.W. McKERRACHER J

J.E. REEVES J

N. PERRAM J

L.G. FOSTER J

M.L. BARKER J

D.M. YATES J

M. BROMBERG J

J. DODDS-STREETON J

A. J. KATZMANN J

A. ROBERTSON J

B.M. MURPHY J

 

Judges of the Federal

Court of Australia

 

W.G. SODEN


Contents

Chapter 1                Introductory provisions

Part 1                          Preliminary

Division 1.1                 Scope

                    1.01      Name of Rules                                                              35

                    1.02      Commencement                                                            35

                    1.03      Repeal of previous Rules                                               35

                    1.04      Application                                                                   35

Division 1.2             Application about procedures

                    1.21      Application for orders about procedures                        36

Division 1.3             General powers of the Court

                    1.31      Orders to have regard to nature and complexity of proceeding         36

                    1.32      Court may make any order it considers appropriate in the interests of justice 36

                    1.33      Orders may be subject to conditions                              36

                    1.34      Dispensing with compliance with Rules                           36

                    1.35      Orders inconsistent with Rules                                       37

                    1.36      Orders other than in open court                                      37

                    1.37      Directions to Registrars                                                 37

                    1.38      Fixing of time by Court                                                  37

                    1.39      Extension and shortening of time                                   37

                    1.40      Exercise of Court’s power                                              37

                    1.41      Other orders that may be made                                      38

                    1.42      Orders may include consequences of non‑compliance    38

Division 1.4             Interpretation

                    1.51      Definitions — the Dictionary                                          38

                    1.52      References to Forms                                                     38

Division 1.5                 Time

                    1.61      Calculation of time                                                        39

Part 2                    Registry and documents

Division 2.1             Registry

                    2.01      Use of seal and stamps of Court                                   40

                    2.02      Transfer of proceeding to another place                         41

Division 2.2                 Documents

                    2.11      General provisions about documents                             41

                    2.12      Compliance with approved forms                                   41

                    2.13      Titles of documents                                                       41

                    2.14      Subsequent documents to be endorsed with Court number 42

                    2.15      Signature                                                                      42

                    2.16      Details at foot of each document                                   43

Division 2.3                 Lodging and filing documents

                    2.21      How documents may be lodged with the Court               43

                    2.22      Faxing a document                                                        44

                    2.23      Sending a document by electronic communication          45

                    2.24      Documents sent by electronic communication                45

                    2.25      When is a document filed                                              46

                    2.26      Refusal to accept document for filing — abuse of process or frivolous or vexatious documents                                                                                    47

                    2.27      When documents will not be accepted in a Registry        47

Division 2.4                 Custody and inspection of documents

                    2.31      Custody of documents                                                  47

                    2.32      Inspection of documents                                               48

Division 2.5                 Administration of money paid into Court and payment out

                    2.41      Establishment of Litigants’ Fund                                    49

                    2.42      Dealing with money paid into Court                                50

                    2.43      Payment out of Litigants’ Fund                                      50

Part 3                    Registrars

Division 3.1                 Powers of Registrars

                    3.01      Powers of the Court that may be exercised by a Registrar 51

                    3.02      Authority to administer oaths and affirmations                52

                    3.03      Orders other than in open court                                      52

                    3.04      Application for orders in relation to Registrars                52

                    3.05      Application to the Registrar for an application to be determined by the Court            52

Division 3.2                 Reviewing a Registrar’s exercise of power

                    3.11      Application for review of the Registrar’s exercise of power 53

Part 4                    Lawyers

Division 4.1                 General

                    4.01      Proceeding by lawyer or in person                                 54

                    4.02      Power to act by lawyer                                                  54

                    4.03      Appointment of a lawyer — notice of acting                   54

                    4.04      Termination of retainer by party                                      54

                    4.05      Termination of retainer by lawyer                                    55

Division 4.2                 Court referral for legal assistance

                    4.11      Definitions for Division 4.2                                            55

                    4.12      Referral for legal assistance                                           56

                    4.13      A party has no right to apply for a referral                      56

                    4.14      Acceptance of referral certificate and provision of legal assistance   56

                    4.15      Ceasing to provide legal assistance                               56

                    4.16      Application for Registrar’s permission to cease providing legal assistance    57

                    4.17      Cessation of referral certificate                                      58

                    4.18      Disbursements                                                              58

                    4.19      Professional fees                                                          58

Part 5                    Court supervision of proceedings

Division 5.1                 Return date and directions

                    5.01      Parties to attend Court on return date                             60

                    5.02      Parties to file notice of address for service before return date          60

                    5.03      Respondent’s genuine steps statement                          60

                    5.04      Making directions                                                          61

                    5.05      Adjournment of directions hearing                                  63

                    5.06      Application for directions — cross-claims                       63

                    5.07      Interlocutory orders                                                       63

                    5.08      Hearing and determination of matter at directions hearing 64

Division 5.2                 Orders on default

                    5.21      Self-executing orders                                                    64

                    5.22      When a party is in default                                              64

                    5.23      Orders on default                                                          64

                    5.24      Contempt                                                                      65

Part 6                    Court supervision of parties and other persons

Division 6.1                 Vexatious proceedings

                    6.01      Scandalous, vexatious or oppressive matter                   66

                    6.02      Vexatious proceedings                                                  66

                    6.03      Applications for orders in relation to vexatious proceedings 66

Division 6.2                 Use of communication and recording devices in Court

                    6.11      Use of communication device or recording device in place where hearing taking place           67

                    6.12      Contempt                                                                      68

Chapter 2                Original jurisdiction — proceedings generally

Part 7                          Orders before start of a proceeding

Division 7.1                 Injunctions, preservation of property and receivers

                    7.01      Order before start of proceeding                                    69

Division 7.2                 Approval of agreement for person under a legal incapacity

                    7.11      Compromise or settlement of matter before proceeding  70

Division 7.3                 Preliminary discovery

                    7.21      Definitions for Division 7.3                                            71

                    7.22      Order for discovery to ascertain description of respondent 71

                    7.23      Discovery from prospective respondent                         72

                    7.24      Procedure for applications under this Division                73

                    7.25      List of documents                                                         73

                    7.26      Privilege                                                                       73

                    7.27      Inspection of documents                                               74

                    7.28      Copying of documents produced for inspection             74

                    7.29      Costs                                                                           74

Division 7.4                 Freezing orders

                    7.31      Definitions for Division 7.4                                            75

                    7.32      Freezing order                                                               75

                    7.33      Ancillary order                                                               75

                    7.34      Order may be against person not a party to proceeding  76

                    7.35      Order against judgment debtor or prospective judgment debtor or third party            76

                    7.36      Jurisdiction                                                                   77

                    7.37      Service outside Australia of application for freezing order or ancillary order   78

                    7.38      Costs                                                                           78

Division 7.5                 Search orders

                    7.41      Definitions for Division 7.5                                            78

                    7.42      Search order                                                                 79

                    7.43      Requirements for grant of search order                          79

                    7.44      Jurisdiction                                                                   79

                    7.45      Terms of search order                                                   79

                    7.46      Independent lawyers                                                      80

                    7.47      Costs                                                                           81

Part 8                          Starting proceedings

Division 8.1                 Originating applications

                    8.01      Starting proceeding — application                                 82

                    8.02      Applicant’s genuine steps statement                              82

                    8.03      Application to state relief claimed                                  83

                    8.04      Application starting migration litigation to include certificate 83

                    8.05      Application to be accompanied by statement of claim or affidavit    84

                    8.06      Service of originating documents                                   84

                    8.07      Changing return date                                                     85

Division 8.2                 Notice of constitutional matter

                    8.11      Notice of constitutional matter                                       85

                    8.12      Service of notice                                                           85

Division 8.3                 Amendments to an originating application

                    8.21      Amendment generally                                                    86

                    8.22      Date on which amendment takes effect                          87

                    8.23      Procedure for making amendment                                  88

                    8.24      Time for amending an originating application under Court order        88

                    8.25      Service of amended originating application                    88

Part 9                          Parties and proceedings

Division 9.1                 Parties, interveners and causes of action

                    9.01      Multiple causes of action                                               89

                    9.02      Joinder of parties — general                                          89

                    9.03      Joinder of applicants with joint entitlement                      89

                    9.04      Joinder of persons with common liability                        90

                    9.05      Joinder of parties by Court order                                   90

                    9.06      Application for separate trials — inconvenient joinder of causes of action or parties  91

                    9.07      Errors in joinder of parties                                             91

                    9.08      Removal of parties by Court order                                 91

                    9.09      Death, bankruptcy or transmission of interest                 91

                    9.10      No joinder or substitution after death of party                 92

                    9.11      Substitution of party                                                      92

                    9.12      Interveners                                                                    92

Division 9.2                 Representative proceedings

                    9.21      Representative party — general                                      93

                    9.22      Enforcement of order for or against representative party 93

                    9.23      Representative party — beneficiaries                              94

                    9.24      Deceased persons                                                        94

                    9.25      Conduct of proceeding by particular party                      95

Division 9.3                 Grouped proceedings under Part IVA of the Act

                    9.31      Interpretation for Division 9.3                                         95

                    9.32      Starting a representative proceeding                              95

                    9.33      Person may give consent to be a group member            95

                    9.34      Opt out notices                                                             96

                    9.35      Application for order relating to the procedure to be followed in a representative proceeding 96

Division 9.4                 Partnerships

                    9.41      Proceeding by or against partners in partnership name    96

                    9.42      Disclosure of partners’ names                                        97

                    9.43      Proceeding between members of partnerships                97

                    9.44      Denial by person served as partner                                97

                    9.45      Defence to be in partnership name                                 98

                    9.46      Entry of order                                                               98

Division 9.5                 Business name proceedings

                    9.51      Proceeding against a person who carries on a business under a business name        99

                    9.52      Proceeding against a business name                             99

                    9.53      Proceeding under this Division or Division 9.4                99

                    9.54      Amendment of parties                                                 100

                    9.55      Variation of order                                                        101

                    9.56      Order for discovery — proceeding brought against a person in the person’s business name  101

Division 9.6                 Persons under a legal incapacity

                    9.61      Proceeding by or against person under a legal incapacity 102

                    9.62      Persons who may be a litigation representative             102

                    9.63      Appointment of litigation representative by the Court     103

                    9.64      Consent to be filed                                                      103

                    9.65      Removal of litigation representative by the Court           104

                    9.66      Conduct of proceeding                                                104

                    9.67      No deemed admissions                                               104

                    9.68      Discovery and interrogatories                                       104

                    9.69      Payment into Court                                                      105

                    9.70      Compromise or settlement of matter in proceeding       105

                    9.71      Application by litigation representative for approval of agreement     105

Part 10                       Service

Division 10.1              Personal service

                  10.01      Service on individual                                                    107

                  10.02      Service on corporation                                                 107

                  10.03      Service on unincorporated association                         107

                  10.04      Service on organisation                                               108

                  10.05      Service on partnership                                                 108

                  10.06      Service in a proceeding brought against a person in the person’s business name      109

                  10.07      Service in a proceeding under the Patents Act 1990      109

                  10.08      Service in a proceeding under the Trade Marks Act 1995 109

                  10.09      Service on person under a legal incapacity                   110

                  10.10      Personal service on a person under a legal incapacity   111

                  10.11      Deemed service of originating application                    111

                  10.12      Refusal to accept document served personally             111

Division 10.2              Service other than by personal service

                  10.21      Identity of person served                                             112

                  10.22      Acceptance of service by lawyer                                  112

                  10.23      Deemed service                                                          112

                  10.24      Substituted service                                                      113

                  10.25      Service by filing                                                          113

                  10.26      Service by Court                                                          113

                  10.27      Service of interlocutory injunction                                 114

                  10.28      Service under agreement                                              114

Division 10.3              Ordinary service

                  10.31      Ordinary service                                                          114

                  10.32      Time of service                                                            115

Division 10.4              Service outside Australia

                  10.41      Definitions for Division 10.4                                         115

                  10.42      When originating application may be served outside Australia           116

                  10.43      Application for leave to serve originating application outside Australia          118

                  10.44      Service of other documents                                         120

                  10.45      Application of other rules                                             121

                  10.46      Method of service                                                       121

                  10.47      Proof of service                                                          121

                  10.48      Deemed service                                                          122

                  10.49      Substituted service                                                      122

Division 10.5              Service through diplomatic channel or by transmission to foreign government

                  10.51      Documents to be lodged with the Court                        122

                  10.52      Order for payment of expenses                                    123

Division 10.6              Service under Hague Convention

                  10.61      Definitions for Division 10.6                                         124

                  10.62      Provisions of this Division to prevail                            126

                  10.63      Service abroad of local judicial documents — application of rules 10.64 to 10.68      126

                  10.64      Application for request for service abroad                    126

                  10.65      How application to be dealt with                                   128

                  10.66      Procedure on receipt of certificate of service                129

                  10.67      Payment of costs                                                        130

                  10.68      Evidence of service                                                     130

                  10.69      Default judgment following service abroad of initiating process — application of rules 10.70 to 10.72                                                                      131

                  10.70      Restriction on power to enter default judgment if certificate of service filed   131

                  10.71      Restriction on power to enter default judgment if certificate of service not filed         132

                  10.72      Setting aside judgment in default of appearance           133

                  10.73      Local service of foreign judicial documents – application of rules 10.74 to 10.76       133

                  10.74      Certain documents to be referred to Attorney‑General’s Department  134

                  10.75      Service                                                                       134

                  10.76      Affidavit as to service                                                  135

Part 11                       Address for service

                  11.01      Address for service — general                                     137

                  11.02      Address for service — corporations                             137

                  11.03      Address for service — proceeding against person in person’s business name           138

                  11.04      Address for service — partnership                               138

                  11.05      Receivers                                                                    138

                  11.06      When must notice of address for service be filed          138

                  11.07      How to file notice of address for service                      138

                  11.08      Service of notice of address for service                       139

Part 12                       Submitting notices

                  12.01      Submitting notice                                                        140

Part 13                       Jurisdiction — setting aside originating application

                  13.01      Setting aside originating application etc                        141

Part 14                       Interlocutory orders for preservation of rights and property

Division 14.1              Inspection of property

                  14.01      Order for inspection etc of property                             142

                  14.02      Service of application                                                  143

                  14.03      View by Court                                                              143

Division 14.2              Preservation etc of property

                  14.11      Preservation of property                                              143

                  14.12      Disposal of personal property                                      143

                  14.13      Interim distribution of property or income from property 144

                  14.14      Payment before determination of all interested persons 144

Division 14.3              Receivers

                  14.21      Application to appoint receiver                                     144

                  14.22      Guarantee                                                                   144

                  14.23      Powers                                                                       145

                  14.24      Remuneration                                                              145

                  14.25      Accounts                                                                    145

                  14.26      Default                                                                        145

                  14.27      Death of receiver                                                         146

Part 15                       Cross-claims and third party claims

Division 15.1              Making cross-claim

                  15.01      Cross–claim by respondent                                          147

                  15.02      Starting cross-claim                                                     147

                  15.03      Title of cross-claim and subsequent documents            148

                  15.04      Time for bringing cross-claim                                       148

                  15.05      Application for extension of time to file cross-claim      148

                  15.06      Cross–claim to be accompanied by statement of cross-claim or affidavit      148

                  15.07      Cross–claim to state relief claimed                               149

                  15.08      Service of notice of cross-claim on cross‑respondent   149

                  15.09      Service of pleadings and documents                            150

                  15.10      Conduct of proceeding after cross-claim is filed           150

                  15.11      Separate proceeding in relation to cross-claim              151

                  15.12      Cross‑claim for contribution or indemnity                      151

                  15.13      Hearings in relation to cross-claims                              151

                  15.14      Co-cross-respondents                                                 152

Division 15.2              Amendment of cross-claim

                  15.15      Amendment generally                                                  152

                  15.16      Date on which amendment takes effect                        153

                  15.17      Procedure for making amendment                                153

                  15.18      Time for amending notice of cross-claim under Court order 154

                  15.19      Service of amended cross-claim                                  154

Part 16                       Pleadings

Division 16.1              General

                  16.01      Pleading to include name of person who prepared it     155

                  16.02      Content of pleadings — general                                   155

                  16.03      Pleading of facts                                                         156

                  16.04      References to documents or spoken words                  156

                  16.05      Conditions precedent                                                   156

                  16.06      Inconsistent allegations or claims                                 157

                  16.07      Admissions, denials and deemed admissions               157

                  16.08      Matters that must be expressly pleaded                        157

                  16.09      Defence of tender before start of proceeding               157

                  16.10      Defence claiming set‑off                                              158

                  16.11      Joinder of issue                                                          158

                  16.12      Close of pleadings                                                      158

Division 16.2              Striking out pleadings

                  16.21      Application to strike out pleadings                               158

Division 16.3              Progress of pleadings

                  16.31      Application of Division 16.3                                         159

                  16.32      Defence to application                                                 159

                  16.33      Reply                                                                          159

Division 16.4              Particulars

                  16.41      General                                                                       160

                  16.42      Fraud, misrepresentation etc                                        160

                  16.43      Conditions of mind                                                      160

                  16.44      Damages and exemplary damages                               161

                  16.45      Application for order for particulars                              161

Division 16.5              Amendment of pleadings

                  16.51      Amendment without needing the leave of the Court       162

                  16.52      Disallowance of amendment of pleading                      162

                  16.53      Application for leave to amend                                     163

                  16.54      Date on which amendment takes effect                        163

                  16.55      Consequential amendment of defence                          163

                  16.56      Consequential amendment of reply                               163

                  16.57      Implied joinder of issue after amendment                      164

                  16.58      Time for amending pleading under Court order              164

                  16.59      Procedure for making amendment to pleading              164

                  16.60      Service of amendment                                                 165

Part 17                       Interlocutory applications

                  17.01      Interlocutory application                                               166

                  17.02      Reliance on correspondence or undisputed documents 166

                  17.03      Service on others                                                        167

                  17.04      Hearing and determination of interlocutory application — absence of party   167

Part 18                       Interpleader proceedings

Division 18.1              Stakeholder’s interpleader

                  18.01      Application for relief by way of interpleader                  168

                  18.02      How application to be made                                         168

                  18.03      Orders that may be sought                                           169

                  18.04      Default by claimant                                                      169

                  18.05      Neutrality of stakeholder                                              169

                  18.06      Order in several proceedings                                        170

Division 18.2              Sheriff’s interpleader

                  18.11      Notice of claim                                                            170

                  18.12      Notice of claim to be served on execution creditor        171

                  18.13      Admission of claim by execution creditor                     171

                  18.14      Application by Sheriff for interpleader                          172

Part 19                       Security for costs

                  19.01      Application for an order for security for costs               173

                  19.02      Matters to be addressed by the respondent                  173

Part 20                       Discovery and inspection of documents

Division 20.1              General

                  20.01      Withholding documents on public interest grounds        174

                  20.02      Privilege                                                                      174

                  20.03      Undertakings or orders applying to documents             174

Division 20.2              Discovery

                  20.11      Discovery must be for the just resolution of the proceeding 175

                  20.12      No discovery without court order                                  175

                  20.13      Application for discovery                                             175

                  20.14      Standard discovery                                                     175

                  20.15      Non-standard and more extensive discovery                 176

                  20.16      Giving discovery                                                         177

                  20.17      List of documents                                                       177

                  20.18      Copies of documents                                                  178

                  20.19      Claim of privilege                                                        178

                  20.20      Supplementary discovery                                             178

                  20.21      Order for particular discovery                                       179

                  20.22      Deponent for affidavit for discovery                             179

                  20.23      Discovery from non‑party                                            180

                  20.24      Non-party’s obligation                                                  181

                  20.25      Non-party’s costs and expenses                                  181

Division 20.3              Production for inspection

                  20.31      Notice to produce document in pleading or affidavit     181

                  20.32      Order for production from party                                   182

                  20.33      Order for production from non-party                             182

                  20.34      Copying of documents produced for inspection           182

                  20.35      Production to Court                                                     183

Part 21                       Interrogatories

                  21.01      Order for interrogatories                                               184

                  21.02      When application may be made                                    184

                  21.03      Answers to interrogatories                                            184

                  21.04      Affidavit verifying written answers to interrogatories      185

                  21.05      Orders dealing with insufficient answers                        186

                  21.06      Answers tendered as evidence                                     186

                  21.07      Public interest                                                             186

Part 22                       Admissions

                  22.01      Notice to admit facts or documents                              187

                  22.02      Notice disputing facts or documents                            187

                  22.03      Disputing party to pay costs if document is proved etc 187

                  22.04      Facts or documents taken to be admitted if not disputed 187

                  22.05      Deemed admission                                                      188

                  22.06      Withdrawal of admissions                                            188

                  22.07      Judgment on admissions                                             188

Part 23                       Experts

Division 23.1              Court experts

                  23.01      Appointment of Court expert                                        189

                  23.02      Court expert’s report                                                    189

                  23.03      Court expert’s report — use at trial                               190

                  23.04      Other expert’s reports on the question                          190

Division 23.2              Parties’ expert witnesses and expert reports

                  23.11      Calling expert evidence at trial                                      190

                  23.12      Provision of guidelines to an expert                             191

                  23.13      Contents of an expert report                                        191

                  23.14      Application for expert report                                        191

                  23.15      Evidence of experts                                                    192

Part 24                       Subpoenas

Division 24.1              Leave to issue subpoena

                  24.01      Leave to issue subpoena                                             193

Division 24.2              Subpoenas to give evidence and to produce documents

                  24.11      Definitions for Division 24.2                                         193

                  24.12      Issuing of subpoena                                                    194

                  24.13      Form of subpoena                                                       195

                  24.14      Change of date for attendance or production                196

                  24.15      Setting aside or other relief                                          196

                  24.16      Service                                                                       196

                  24.17      Compliance with subpoena                                          196

                  24.18      Production otherwise than on attendance                      197

                  24.19      Removal, return, inspection, copying and disposal of documents and things            198

                  24.20      Inspection of, and dealing with, documents and things produced otherwise than on attendance                                                                                  198

                  24.21      Return of documents and things produced                   200

                  24.22      Costs and expenses of compliance                              200

                  24.23      Failure to comply with subpoena — contempt of court  201

                  24.24      Documents and things in custody of Court                   201

Part 25                       Offers to settle

                  25.01      Offer to compromise                                                   202

                  25.02      Notice to be signed                                                     202

                  25.03      Offer to compromise — content                                   202

                  25.04      Offer to be paid within 28 days                                    202

                  25.05      Timing of offer                                                            202

                  25.06      No communication to Court of offer                             203

                  25.07      Withdrawal of offer                                                      203

                  25.08      Acceptance of offer                                                    203

                  25.09      Withdrawal of acceptance                                            204

                  25.10      Failure to comply with offer                                          204

                  25.11      Multiple respondents                                                   204

                  25.12      Taxation of costs where offer accepted                        205

                  25.13      Contributor parties                                                       205

                  25.14      Costs where offer not accepted                                   206

Part 26                       Ending proceedings early

Division 26.1              Summary judgment and stay of proceedings

                  26.01      Summary judgment                                                      207

Division 26.2              Withdrawal and discontinuance

                  26.11      Withdrawal of defence etc                                            208

                  26.12      Discontinuance                                                            208

                  26.13      Service of notice                                                         209

                  26.14      Effect of discontinuance                                              209

                  26.15      Stay of proceeding until costs paid                              210

Part 27                       Transfer of proceedings

Division 27.1              Family Court of Australia

                  27.01      Transfer to Family Court of Australia                             211

Division 27.2              Federal Magistrates Court

                  27.11      Transfer to Federal Magistrates Court                           211

                  27.12      Factors to be taken into account                                  211

                  27.13      Transfer from Federal Magistrates Court                       212

Division 27.3              Cross-vesting

                  27.21      Transfer of proceeding from the Court                          213

                  27.22      Application by Attorney‑General for transfer of proceeding from the Court    213

                  27.23      Transfer of proceeding to the Court                              213

Part 28                       Alternative dispute resolution

Division 28.1              General

                  28.01      General                                                                       215

                  28.02      Orders that may be sought                                           215

                  28.03      Arbitration, mediation and ADR process                       215

                  28.04      Court may terminate mediation or ADR process            216

                  28.05      Parties may refer proceeding to mediation, arbitration or ADR process         216

Division 28.2              Arbitration

                  28.11      Appointment of arbitrator                                             216

                  28.12      Applications by interlocutory application                       217

                  28.13      Applications for registration                                         217

                  28.14      Applications for order in terms of an award                   218

Division 28.3              Mediation

                  28.21      Nomination of mediator                                               219

                  28.22      Conduct of mediation                                                  219

                  28.23      Report if only part of proceeding to be mediated          219

                  28.24      Termination of mediation — mediator initiated               219

                  28.25      Agreement at mediation                                               220

Division 28.4              ADR process

                  28.31      Nomination of person to conduct ADR process            220

                  28.32      Conduct of ADR process                                             220

                  28.33      Report if only part of proceeding to be subject of ADR process       220

                  28.34      Termination of ADR process                                        221

                  28.35      Agreement at ADR process                                          221

Division 28.5              International arbitration

                  28.41      Definitions for Division 28.5                                         221

                  28.42      Application of Division                                                221

                  28.43      Application for stay of arbitration                                 222

                  28.44      Enforcing foreign award                                               222

                  28.45      Application for relief under Model Law                          223

                  28.46      Subpoenas for Division 28.5                                        223

                  28.47      Application under section 23A of International Arbitration Act            224

                  28.48      Application under section 23F or 23G of International Arbitration Act 225

                  28.49      Recognition of award                                                   226

                  28.50      Documents not in English language                              226

Division 28.6              Referral by Court to referee

                  28.61      Order of referral                                                           226

                  28.62      Appointment of referees                                              227

                  28.63      Two or more referees                                                   227

                  28.64      Security for remuneration                                             227

                  28.65      Conduct of inquiry                                                       228

                  28.66      Report                                                                        229

                  28.67      Proceeding on report                                                   229

Part 29                       Evidence

Division 29.1              Affidavits

                  29.01      When affidavit may be sworn or affirmed                      230

                  29.02      Form of affidavit                                                         230

                  29.03      Content of affidavits                                                    231

                  29.04      Swearing or affirming affidavit by person who has disability 231

                  29.05      Service of exhibits and annexures                                232

                  29.06      Irregularity in form                                                        232

                  29.07      Use of affidavit not filed or in irregular form                  232

                  29.08      Serving of affidavits                                                    233

                  29.09      Cross‑examination of deponent                                    233

Division 29.2              Evidence on commission taken in Australia or abroad

                  29.11      Order for examination of witness                                  233

                  29.12      Letter of request                                                          234

                  29.13      Procedure for orders under section 7 (1) (a) or (b) of Foreign Evidence Act 1994        235

                  29.14      Documents for examiner                                              235

                  29.15      Appointment for examination                                       235

                  29.16      Conduct of examination                                               235

                  29.17      Examination of additional persons                               236

                  29.18      Objection                                                                    236

                  29.19      Taking of depositions                                                  237

                  29.20      Authentication and filing                                               237

                  29.21      Special report                                                              237

                  29.22      Default of witness                                                       238

                  29.23      Evidence of future right or claim                                   238

Part 30                       Hearings

Division 30.1              Separate decisions on questions

                  30.01      Application for separate trials                                       240

                  30.02      Disposal of proceedings after hearing separate questions 240

                  30.03      Attendance and production                                          240

Division 30.2              Consolidation

                  30.11      Consolidation of proceedings before trial                     241

Division 30.3              Trial

                  30.21      Absence of party at trial                                               241

                  30.22      No appearance by any party                                        242

                  30.23      Trial limitations                                                            242

                  30.24      Death before judgment                                                243

                  30.25      Evidence in other proceedings                                     243

                  30.26      Plans, photographs and models                                   243

                  30.27      Consent                                                                      243

                  30.28      Notice to produce                                                        244

                  30.29      Notice of intention to adduce evidence of previous representation    244

                  30.30      Notice of objection to tender of hearsay evidence if maker available 244

                  30.31      Notice of intention to adduce tendency evidence          245

                  30.32      Notice of intention to adduce coincidence evidence      245

                  30.33      Parties in lawful custody                                              245

Division 30.4              Assessment of damages

                  30.41      Order for calculation of amount of damages by Registrar 245

                  30.42      Notice of objection to calculation                                 246

                  30.43      Procedure if notice given                                             246

                  30.44      Procedure if notice not given                                       246

Division 30.5              Accounts

                  30.51      Order for account to be taken                                      247

                  30.52      Form and filing of account                                           247

                  30.53      Notice of additional charge or error in account              247

                  30.54      Orders to deal with delay                                             247

                  30.55      Order for account or inquiry before Registrar                248

                  30.56      Notice of objection to certificate                                  248

                  30.57      Procedure if notice given                                             248

                  30.58      Procedure if notice not given                                       248

Chapter 3                Original jurisdiction — special classes of proceedings

Part 31                       Judicial review

Division 31.1              Administrative Decisions (Judicial Review) Act 1977

                  31.01      Application for order of review                                     249

                  31.02      Application for extension of time                                  249

                  31.03      Documents to be filed and served                                250

                  31.04      Service                                                                       250

                  31.05      Notice of objection to competency                               251

Division 31.2              Judiciary Act 1903

                  31.11      Form of application                                                     251

                  31.12      Joinder of claims for relief                                           252

Division 31.3              Migration Act 1958

                  31.21      Definitions for Division 31.3                                         252

                  31.22      Application for review of migration decision                  252

                  31.23      Application for extension of time                                  253

                  31.24      Notice of objection to competency                               253

Division 31.4              Australian Crime Commission Act 2002

                  31.31      Applications under section 57 of Australian Crime Commission Act 2002       254

Part 32                       Remittals and referrals from the High Court

Division 32.1              Matters remitted from the High Court

                  32.01      Filing of order of remittal                                             255

                  32.02      Service of order and notice                                          255

                  32.03      Address for service                                                     256

                  32.04      Hearing of application to show cause                           256

Division 32.2              Referral of petition under Commonwealth Electoral Act 1918

                  32.11      Filing of order referring petition or part of petition         256

                  32.12      Service of order and notice                                          257

                  32.13      Address for service                                                     257

                  32.14      Lists of votes claimed or objected to                           257

                  32.15      Counter‑charges                                                          258

                  32.16      Notice of trial                                                              259

                  32.17      Withdrawal of petition and substitution of another petitioner 259

                  32.18      Death of petitioner                                                       259

Part 33                       Appeals from decisions of bodies other than courts

Division 33.1              Taxation appeals

                  33.01      Definitions for Division 33.1                                         260

                  33.02      Starting AOD appeals                                                  260

                  33.03      Documents to be filed and served by Commissioner — matters other than private rulings      262

                  33.04      Documents to be filed and served by Commissioner — private rulings          262

                  33.05      Starting DPO appeals                                                  263

                  33.06      Documents to be filed and served by Commissioner     264

Division 33.2              Administrative Appeals Tribunal

                  33.11      Definitions for Division 33.2                                         264

                  33.12      Starting an appeal — filing and service of notice of appeal 264

                  33.13      Application for extension of time to start appeal           265

                  33.14      Amendment of notice of appeal without leave — supplementary notice         266

                  33.15      Application for leave to raise other questions of law or rely on other grounds            266

                  33.16      Respondent’s address for service                                266

                  33.17      Form of application for stay of Tribunal decision          267

                  33.18      Registrar of Tribunal to send documents                       267

                  33.19      No written reasons for decision                                    268

                  33.20      Notice of cross‑appeal                                                268

                  33.21      Notice of contention                                                    269

                  33.22      Directions hearing                                                        269

                  33.23      Appeal books                                                             270

                  33.24      Assistance from Registrar                                            271

                  33.25      Title of appeal books                                                   271

                  33.26      Content of appeal books                                             272

                  33.27      Written submissions, chronology and lists of authorities 273

                  33.28      Filing of Part C documents                                          274

                  33.29      Further evidence on appeal                                          274

                  33.30      Notice of objection to competency of appeal               274

                  33.31      Discontinuance of appeal                                            275

                  33.32      Application to dismiss appeal                                      276

                  33.33      Absence of party                                                         276

Division 33.3              Appeals from the Superannuation Complaints Tribunal

                  33.34      Appeals under section 46 of the Superannuation (Resolution of Complaints) Act 1993 277

Division 33.4              Appeals from the National Native Title Tribunal

                  33.40      Appeals under section 169 of the Native Title Act 1993  277

Part 34                       Other proceedings

Division 34.1              Fair Work proceedings

                  34.01      Definitions for Division 34.1                                         278

                  34.02      Application of Division 34.1 and other provisions of these Rules      279

                  34.03      Application in relation to dismissal from employment in contravention of a general protection                                                                                  279

                  34.04      Application in relation to alleged unlawful termination of employment            280

                  34.05      Application in relation to alleged discrimination             280

                  34.06      Application for rule to show cause                                281

                  34.07      Requirements for applications for an inquiry or ballot    282

                  34.08      Application for interim orders                                       284

Division 34.2              Proceedings for an offence

                  34.11      Starting a prosecution                                                  284

                  34.12      Form of summons and information                               285

                  34.13      Proceeding on date to answer charge                           285

                  34.14      Warrant for arrest of respondent                                   285

                  34.15      Affidavits as to fine or penalty                                     285

                  34.16      Judge may issue a warrant                                           286

Division 34.3              Intellectual property

                  34.21      Definitions for Division 34.3                                         286

                  34.22      Application of Division 34.3                                         288

                  34.23      Appearance by Commissioner                                      288

                  34.24      Starting an appeal — filing and service of notice of appeal 288

                  34.25      Application for extension of time to file notice of appeal 289

                  34.26      Grounds of appeal or particulars not stated in notice of appeal        289

                  34.27      Particulars of non‑patentable invention                         290

                  34.28      Notice of cross‑appeal                                                290

                  34.29      Notice of contention                                                    291

                  34.30      Provision of documents by Commissioner                    291

                  34.31      Evidence                                                                     292

                  34.32      Application for determination of equitable remuneration 292

                  34.33      Applications for determination of terms of doing an act 292

                  34.34      Infringement of EL rights — particulars                         292

                  34.35      Infringement of copyright — particulars                        293

                  34.36      Infringement of registered designs — particulars           293

                  34.37      Application for compulsory licence — Designs Act       293

                  34.38      Revocation of registration or rectification of Register — Designs Act            293

                  34.39      Infringement of monopoly in protected design — particulars — Olympic Insignia Protection Act                                                                                  294

                  34.40      Application for rectification of Register of Olympic Designs or dispute of validity of protected design                                                                        294

                  34.41      Applications under section 105 (1) of Patents Act         295

                  34.42      Applications under section 120 (1) of Patents Act         296

                  34.43      Applications under section 125 (1) of Patents Act         297

                  34.44      Applications under section 128 (1) of Patents Act         297

                  34.45      Applications under Chapter 12 of Patents Act               297

                  34.46      Dispute of validity of patent — particulars of invalidity  298

                  34.47      Infringement of PBR — particulars                                299

                  34.48      Infringement of registered trade marks — particulars     299

                  34.49      Dispute of validity of registration of trade mark — particulars of invalidity     300

                  34.50      Experimental proof as evidence                                   300

Division 34.4              Trans‑Tasman proceedings — general

                  34.61      Definitions for Division 34.4                                         301

                  34.62      Proceedings under the Trans-Tasman Proceedings Act  301

                  34.63      Originating application under Trans-Tasman Proceedings Act            302

                  34.64      Interlocutory application under Trans-Tasman Proceedings Act         302

                  34.65      Application for interim relief                                         302

                  34.66      Application for leave to serve subpoena in New Zealand 303

                  34.67      Form of subpoena                                                       304

                  34.68      Application to set aside subpoena                               304

                  34.69      Application for issue of certificate of non‑compliance with subpoena            305

                  34.70      Documents relating to application                                306

                  34.71      Application to enforce compliance with order made by New Zealand court    306

                  34.72      Notice of registration of NZ judgment                           306

                  34.73      Application for extension of time to give notice of registration of NZ judgment         307

                  34.74      Application to set aside registration of NZ judgment     307

                  34.75      Application for stay of enforcement of registered NZ judgment so that liable person can appeal judgment                                                                     308

                  34.76      Application for extension of time to apply for stay of enforcement of registered NZ judgment so that liable person can appeal judgment                         308

                  34.77      Application for order for use of audio link or audiovisual link            309

Division 34.5              Trans‑Tasman market proceedings

                  34.81      Definitions for Division 34.5                                         309

                  34.82      Application of Division 34.5                                         310

                  34.83      Filing documents in Australian market proceeding in New Zealand     310

                  34.84      Filing documents in a NZ market proceeding in Australia 310

                  34.85      Federal Court sittings in New Zealand                           311

                  34.86      Application of rules 34.72 to 34.76                               311

Division 34.5A           Transitional arrangements for Divisions 34.4 and 34.5

                34.86A      Transitional arrangements for Divisions 34.4 and 34.5    311

Division 34.6              Aboriginal and Torres Strait Islander Act 2005

                  34.91      Definition for Division 34.6                                           312

                  34.92      Form and service of election petition                            313

                  34.93      Response to election petition                                       313

                  34.94      Reference as to qualifications or vacancy                     314

Division 34.7              Native title proceedings

                34.101      Interpretation for Division 34.7                                      314

                34.102      Application of Division 34.7                                         315

                34.103      Main application (native title and compensation)            315

                34.104      Joinder of parties to main application within relevant period  316

                34.105      Joinder of parties to main application after relevant period 316

                34.106      Withdrawal of a party                                                   316

                34.107      Form of applications other than main applications         317

                34.108      Service of applications other than main applications     317

                34.109      Application for review of decision not to accept claim for registration           318

                34.110      Application to remove details of agreement from Register of Indigenous Land Use Agreements                                                                                  318

                34.111      Application for order about return of, or access to, records  319

                34.112      Question to be special case                                         319

                34.113      Special case to be prepared — referral by mediator      319

                34.114      Special case to be prepared — referral by NNTT           320

                34.115      Party having carriage of proceeding — referral by mediator  320

                34.116      Party having carriage of proceeding — referral by NNTT 320

                34.117      Referral of questions about whether a party should cease to be a party        320

                34.118      Report about breaches of good faith requirement         321

                34.119      Definition for rules 34.120 to 34.123                             322

                34.120      Evidentiary matters generally                                        322

                34.121      Orders to take account of cultural or customary concerns 322

                34.122      Disclosure of evidence or information of cultural or customary nature, contrary to court order                                                                                  323

                34.123      Evidence of cultural or customary nature                      324

                34.124      Documents referring to certain material                         324

                34.125      Evidence given in consultation with others                    324

                34.126      Evidence given not in normal course                            325

                34.127      Inspection                                                                   325

                34.128      Taking evidence                                                          325

                34.129      Conflict of interest                                                       326

                34.130      Short title of proceeding                                              326

                34.131      Notices of appointment of agent and change to agent’s address for service 326

                34.132      Application for leave to be represented by person who is not a lawyer          327

                34.133      Native Title Registrar application to Court for order as to notice        327

                34.134      Overlapping applications                                             327

                34.135      Court may order adjournment for purpose of agreement between parties       328

                34.136      Agreements regarding practical outcomes of native title determination          328

                34.137      Appearance by NNTT                                                   328

Division 34.8              Human rights proceedings

                34.161      Definitions for Division 34.8                                         329

                34.162      Application of Division 34.8                                         329

                34.163      Starting a proceeding — application and claim              329

                34.164      Copy of application to be given to Commission            330

                34.165      Address for service                                                     330

                34.166      Appearance by special‑purpose Commissioner             330

                34.167      Conduct of proceeding by litigation representative        330

Chapter 4                Appellate jurisdiction

Part 35                       Leave to appeal

Division 35.1              Oral applications for leave to appeal from interlocutory judgments of the Court

                  35.01      Oral application for leave to appeal                              331

Division 35.2              Written applications for leave to appeal

                  35.11      Application of Division                                                331

                  35.12      Form of application                                                     332

                  35.13      Time for filing application                                             332

                  35.14      Extension of time to seek leave to appeal                    332

                  35.15      Service of application                                                  333

                  35.16      Method of service                                                       333

                  35.17      Address for service of respondent                               334

                  35.18      Certain applications may be dealt with without an oral hearing           334

                  35.19      Submissions                                                               334

                  35.20      Objection to application being considered without oral hearing         335

                  35.21      Time for filing and serving affidavits                             335

                  35.22      Directions                                                                   335

Division 35.3              Ending applications early

                  35.31      Withdrawing an application                                           335

                  35.32      Dismissing application for want of prosecution             336

                  35.33      Absence of a party                                                      336

Division 35.4              Revocation of leave to appeal

                  35.41      Revocation or variation of grant of leave                      337

Part 36                       Appeals

Division 36.1              Institution of appeals

                  36.01      Form of notice of appeal                                             338

                  36.02      Filing of notice of appeal                                             339

                  36.03      Time for filing and serving notice of appeal                  340

                  36.04      Service on parties and lodgments                                340

                  36.05      Extension of time to file notice of appeal                     340

                  36.06      Method of service                                                       341

                  36.07      Address for service of respondent                               341

                  36.08      Stay of execution or proceedings under judgment appealed from     341

                  36.09      Security for costs of appeal                                         342

                  36.10      Amendment to notice of appeal                                   342

                  36.11      Directions                                                                   342

Division 36.2              Cross–appeals and notices of contention

                  36.21      Cross‑appeal                                                               344

                  36.22      Time to file notice of cross‑appeal                               344

                  36.23      Extension of time to file notice of cross‑appeal            344

                  36.24      Notice of contention                                                    345

Division 36.3              Parties to appeals and interveners

                  36.31      Parties                                                                        345

                  36.32      Applications to intervene                                              346

Division 36.4              Dealing with certain applications on the papers

                  36.41      Certain applications may be dealt with without an oral hearing           347

                  36.42      Submissions                                                               347

                  36.43      Objection to application being considered without oral hearing         348

Division 36.5              Preparation of appeals

                  36.51      Appeal books                                                             348

                  36.52      Assistance from Registrar                                            349

                  36.53      Title of appeal books                                                   350

                  36.54      Content of appeal books                                             350

                  36.55      Written submissions, chronology and lists of authorities 352

                  36.56      Filing of Part C documents                                          352

                  36.57      Further evidence on appeal                                          352

Division 36.6              Ending appeals

                  36.71      Definitions for Division 36.6                                         353

                  36.72      Notice of objection to competency of appeal               353

                  36.73      Discontinuance of appeal                                            354

                  36.74      Application to dismiss appeal                                      354

                  36.75      Absence of party                                                         355

Part 37                       Appeals in criminal cases from Supreme Court of a Territory

                  37.01      Court may request a report                                           356

                  37.02      Application for production of a prisoner                       356

Part 38                       Cases stated and questions reserved

                  38.01      Application for case stated or question reserved           357

                  38.02      Case stated to be prepared etc                                    358

                  38.03      Directions                                                                   358

Chapter 5                Judgments, costs and other general provisions

Part 39                       Orders

Division 39.1              Judgments and orders

                  39.01      Date of effect of judgment or order                              359

                  39.02      Time for compliance with orders                                   359

                  39.03      Dismissal of proceedings and stay of further proceedings 359

                  39.04      Varying or setting aside a judgment or order before it has been entered        360

                  39.05      Varying or setting aside judgment or order after it has been entered  360

                  39.06      Interest on judgment                                                    360

Division 39.2              Consent orders

                  39.11      Consent orders                                                            361

Division 39.3              Undertakings

                  39.21      Orders dealing with failure to fulfil undertakings            361

Division 39.4              Judgments and orders — entry

                  39.31      When entry is required                                                 361

                  39.32      Entry of an order                                                         362

                  39.33      Lodgment of orders for entry                                       362

                  39.34      Order entered in Court                                                  363

                  39.35      Authentication of orders                                               363

Part 40                       Costs

Division 40.1              General

                  40.01      Party and party costs                                                  364

                  40.02      Other order for costs                                                   364

                  40.03      Costs reserved                                                            364

                  40.04      Costs on interlocutory application or hearing                 364

                  40.05      Costs in other courts                                                   365

                  40.06      Costs improperly, unreasonably or negligently incurred 365

                  40.07      Liability of lawyer to their client for misconduct             365

                  40.08      Reduction in costs otherwise payable                           366

Division 40.2              Taxation of costs

                  40.12      Application of Division 40.2 and 40.3                           367

                  40.13      Taxation of costs awarded on an interlocutory application 367

                  40.14      Order for taxation not required                                     367

                  40.15      Failure to file bill of costs                                            367

                  40.16      Unnecessary expense in proceeding before taxing officer 368

                  40.17      Filing bill for taxation                                                   368

                  40.18      Contents of bill                                                            368

                  40.19      Service of a bill                                                           368

                  40.20      Estimate of costs                                                        369

                  40.21      Objection to estimate                                                   369

                  40.22      Resolution at confidential conference                           370

                  40.23      Provisional taxation                                                     370

                  40.24      Notice that bill is to be taxed                                        371

                  40.25      Notice of objection                                                      371

                  40.26      Response to notice of objection                                  371

                  40.27      Taxation                                                                      372

                  40.28      Powers of taxing officer                                              373

                  40.29      Costs to be allowed on taxation                                   373

                  40.30      Costs not to be allowed on taxation                             373

                  40.31      Exercise of taxing officer’s discretion                           374

                  40.32      Certificate of taxation                                                  374

                  40.33      Costs of taxation                                                         375

                  40.34      Review by Court                                                          375

                  40.35      Stay of costs                                                              376

Division 40.3              Short form bills

                  40.41      Short form bill on application for winding up under Corporations Act 2001     376

                  40.42      Procedure — short form bills under Corporations Act 2001 377

                  40.43      Short form bill on migration appeal                               378

                  40.44      Procedure — short form bills for migration appeals       378

Division 40.4              Determination of maximum costs

                  40.51      Maximum costs in a proceeding                                   380

Part 41                       Enforcement

Division 41.1              General

                  41.01      Application without notice for directions                       381

                  41.02      Condition precedent not fulfilled                                   381

                  41.03      Application for stay of judgment or order                     381

                  41.04      Failure to comply with Court order                                381

                  41.05      Failure to attend Court in response to subpoena or order 382

                  41.06      Endorsement on order                                                 382

                  41.07      Service of order                                                          383

                  41.08      Application where person fails to comply with order      383

                  41.09      Substituted performance                                              384

                  41.10      Execution generally                                                     384

                  41.11      Stay of execution                                                        385

Division 41.2              Enforcement against partnership

                  41.21      Execution of order against partnership                         385

                  41.22      Execution against individual partner                              385

                  41.23      Application to proceedings between co-partners           386

Division 41.3              Execution against business name

                  41.31      Execution of order — proceeding against person in person’s business name            386

Division 41.4              Sheriff

                  41.41      Suspension of execution of process                            387

                  41.42      Failure to execute process                                           387

                  41.43      Application for orders in relation to execution of process 387

Division 41.5              Fees

                  41.51      Definitions for Division 41.5                                         388

                  41.52      Security                                                                      388

                  41.53      Liability of lawyer                                                         389

                  41.54      Bill of fees                                                                  389

                  41.55      Taxation                                                                      389

                  41.56      Failure by lawyer to pay Sheriff’s fees                          389

Division 41.6              Reciprocal enforcement of judgments under Foreign Judgments Act 1991

                  41.61      Interpretation for Division 41.6                                      390

                  41.62      Application for an order for registration of foreign judgment 390

                  41.63      Further affidavit to be filed on day of hearing               391

                  41.64      Registration                                                                 392

                  41.65      Notice of registration                                                   392

                  41.66      Application to set aside registration of judgment or stay enforcement of judgment    393

                  41.67      Application to set aside registered foreign judgment     393

                  41.68      Security for costs                                                        393

                  41.69      Record of registered judgments                                   394

Chapter 6                Disciplinary

Part 42                       Contempt

Division 42.1              Contempt in face or hearing of Court

                  42.01      Arrest for contempt                                                     395

                  42.02      Charge, defence and determination                              395

                  42.03      Interim custody                                                            395

Division 42.2              Applications for contempt

                  42.11      Procedure generally                                                     396

                  42.12      Statement of charge                                                    396

                  42.13      Service                                                                       396

                  42.14      Arrest                                                                          397

                  42.15      Procedure on the hearing                                             397

                  42.16      Application or proceeding by the Registrar                   398

Division 42.3              General

                  42.21      Warrant for imprisonment                                             398

                  42.22      Discharge before end of prison term                            398

Schedule 1                  Dictionary                                                                   399

Schedule 2                  Powers of the Court that may be exercised by a Registrar 407

Part 3.1                          Corporations (Aboriginal and Torres Strait Islander) Act 2006  407

Part 3.2                          Trans-Tasman Proceedings Act 2010                            407

Part 3.3                          Federal Court of Australia Act 1976                               407

Part 3.4                          Foreign Evidence Act 1994                                           409

Part 3.5                          Foreign Judgments Act 1991                                         409

Part 3.6                          Native Title Act 1993                                                    410

Part 3.7                          Federal Court Rules 2011                                              410

Schedule 3                  Costs allowable for work done and services performed 420

 

 


Chapter 1    Introductory provisions

Part 1                 Preliminary

Division 1.1           Scope

1.01        Name of Rules

                These Rules are the Federal Court Rules 2011.

1.02        Commencement

                These Rules commence on 1 August 2011.

1.03        Repeal of previous Rules

                The Federal Court Rules are repealed.

1.04        Application

         (1)   These Rules apply to a proceeding started in the Court on or after 1 August 2011.

         (2)   These Rules apply to a step in a proceeding that was started before 1 August 2011, if the step is taken on or after 1 August 2011.

         (3)   However, the Court may order that the Federal Court Rules as in force immediately before 1 August 2011 apply, with or without modification, to a step mentioned in subrule (2).

Note 1   For the rules governing proceedings in the Court under the Bankruptcy Act 1966, see the Bankruptcy Regulations 1996 and the Federal Court (Bankruptcy) Rules 2005.

Note 2   For the rules governing proceedings in the Court under the Corporations Act 2001, see the Federal Court (Corporations) Rules 2000.

Note 3   For the rules governing proceedings in the Court under the Admiralty Act 1988, see the Admiralty Rules 1988.

Rules 1.05–1.20 left blank

Division 1.2           Application about procedures

1.21        Application for orders about procedures

                A person who wants to start a proceeding, or take a step in a proceeding, may apply to the Court for an order about the procedure to be followed if:

                (a)    the procedure is not prescribed by the Act, these Rules or by or under any other Act; or

               (b)    the person is in doubt about the procedure.

Rules 1.22–1.30 left blank

Division 1.3           General powers of the Court

1.31        Orders to have regard to nature and complexity of proceeding

         (1)   The Court may in making any order in the proceeding have regard to the nature and complexity of the proceeding.

         (2)   The Court may deal with the proceeding in a manner that is proportionate to the nature and complexity of that proceeding.

1.32        Court may make any order it considers appropriate in the interests of justice

                The Court may make any order that the Court considers appropriate in the interests of justice.

Note   See sections 23 and 28 of the Act.

1.33        Orders may be subject to conditions

                The Court may make an order subject to any conditions the Court considers appropriate.

1.34        Dispensing with compliance with Rules

                The Court may dispense with compliance with any of these Rules, either before or after the occasion for compliance arises.

1.35        Orders inconsistent with Rules

                The Court may make an order that is inconsistent with these Rules and in that event the order will prevail.

1.36        Orders other than in open court

                The Court may make orders other than in open court.

Note   For the power of a Judge sitting in Chambers to exercise the jurisdiction of the Court, see section 17 (2) of the Act.

1.37        Directions to Registrars

                The Court may direct a Registrar to do, or not to do, an act or thing.

1.38        Fixing of time by Court

                If no time for doing an act or thing in relation to a proceeding is fixed by these Rules, the Court may fix the time within which the act or thing is to be done.

1.39        Extension and shortening of time

                The Court may extend or shorten a time fixed by these Rules or by order of the Court:

                (a)    before or after the time expires; and

               (b)    whether or not an application for extension is made before the time expires.

1.40        Exercise of Court’s power

                The Court may, at any stage of the proceeding, exercise a power mentioned in these Rules in the proceeding:

                (a)    on its own initiative; or

               (b)    on the application of a party, or a person who has a sufficient interest in the proceeding.

1.41        Other orders that may be made

                If a party makes an application, the Court may:

                (a)    grant the order sought; or

               (b)    refuse to grant the order sought; or

                (c)    make a different order.

1.42        Orders may include consequences of non‑compliance

                The Court may specify in an order the consequences of not complying with the order.

Rules 1.43–1.50 left blank

Division 1.4           Interpretation

1.51        Definitions — the Dictionary

         (1)   In these Rules, a word or expression defined in Schedule 1 (the Dictionary) has the meaning given in the Dictionary.

Note   The Schedules to these Rules are deemed to form part of the Rules — see section 13 of the Acts Interpretation Act 1901.

         (2)   The Dictionary includes references to certain words and expressions that are defined elsewhere in these Rules (signpost definitions).

Note   The Dictionary includes a signpost definition for a word or expression that is defined elsewhere in these Rules only if the word or expression is used in more than one rule.

1.52        References to Forms

         (1)   In these Rules, a reference to a form by number is a reference to the form approved under subrule (2).

         (2)   The Chief Justice may approve a form for the purpose of a provision of these Rules.

Note   Approved forms are available on the Court’s website at http://www.fedcourt.gov.au.

Rules 1.53–1.60 left blank

Division 1.5           Time

1.61        Calculation of time

         (1)   A period of time for doing an act or thing fixed by these Rules or by an order of the Court is to be calculated in accordance with this rule.

         (2)   If the time fixed is to be calculated by reference to a particular day or event, and the time fixed is one day or more, the particular day or the day of the particular event is not to be counted.

         (3)   If the time fixed includes a day that is not a business day in the place where the act or thing is to be done, and the time fixed is 5 days or less, the day is not to be counted.

Example

The Court orders that a document is to be filed and served within 3 days from Wednesday. Under subrule (3), the document must be served on or before the following Monday (since Saturday and Sunday are not business days).

Note   Business day is defined in the Dictionary.

         (4)   An act or thing may be done on the next business day in a place if:

                (a)    the last day for doing the act or thing is not a business day in the place where the act or thing is to be done; and

               (b)    the act or thing may only be done on a day that is a business day in the place.

         (5)   If the time fixed includes a day in the period starting on 24 December in a year and ending on 14 January in the next year, the day is not to be counted.

Part 2                 Registry and documents

Division 2.1           Registry

2.01        Use of seal and stamps of Court

         (1)   The seal of the Court will be affixed to the following documents:

                (a)    Rules of Court;

               (b)    a commission issued by authority of the Court;

                (c)    a document issued by the Court for use outside Australia;

               (d)    any other document, as ordered by the Court or as provided under the Act or any other Act.

         (2)   The stamp of a District Registry will be affixed to the following documents:

                (a)    an originating application, notice of address for service, interlocutory application, notice of appeal, subpoena, summons or warrant filed in the District Registry;

               (b)    an order of the Court;

                (c)    any other document as ordered by the Court.

         (3)   The following may be affixed to a document by hand or by electronic means:

                (a)    the seal of the Court;

               (b)    the signature of the Registrar;

                (c)    the stamp of a District Registry;

               (d)    the signature of a District Registrar or Deputy District Registrar.

Note 1   Section 36 of the Act provides that the seal of the Court is to be kept in the Principal Registry. The Act provides for stamps for the Principal Registry and each District Registry designed as nearly as practicable to be the same as the seal.

Note 2   All documents to which the seal of the Court or the stamp of the District Registry has been affixed will also be signed by the Registrar, a District Registrar, a Deputy District Registrar or an officer acting with the authority of the Registrar or District Registrar — see section 37 of the Act.

2.02        Transfer of proceeding to another place

                A party may apply at the proper place for an order that the proceeding be transferred to another place.

Note 1   Proper place is defined in the Dictionary.

Note 2   See section 48 of the Act.

Rules 2.03–2.10 left blank

Division 2.2           Documents

2.11        General provisions about documents

                A document that is to be filed in a proceeding must be in accordance with any approved form and the Court’s requirements.

Note 1   Approved form is defined in the Dictionary.

Note 2   The Court’s requirements in relation to the preparation of documents are set out in practice notes issued by the Chief Justice.

2.12        Compliance with approved forms

                A requirement in these Rules that a document be in accordance with an approved form is complied with if the document:

                (a)    is substantially in accordance with the approved form and any practice notes issued by the Chief Justice; or

               (b)    has only those variations that the nature of the case requires.

2.13        Titles of documents

         (1)   The heading of a document in a proceeding must include a reference to:

                (a)    the District Registry where the document is filed; and

               (b)    the appropriate Division of the Court.

         (2)   A document in a proceeding between parties must include a title and details, in accordance with Form 1.

         (3)   A document in a proceeding in which there is no respondent must include a title and details, in accordance with Form 2.

         (4)   A document in a proceeding may include an abbreviated title, in accordance with Form 3, unless the document is:

                (a)    an originating application; or

               (b)    a notice of appeal; or

                (c)    a document to be served on a person not a party to the proceeding; or

               (d)    an order.

         (5)   The title of a document in a proceeding must be sufficient to identify the proceeding.

2.14        Subsequent documents to be endorsed with Court number

                Each subsequent document filed in a proceeding must be endorsed, by the party filing the document, with the same number as that assigned by the Registrar to the originating application for the proceeding or to the notice of appeal.

Note   When an originating application that is not a cross-claim or a notice of appeal is filed, the Registrar will assign a distinctive number to the document and will endorse the document with that number. The number will include a reference to the Registry in which the document is filed and the calendar year in which the document is filed. A new series of numbers will be started at the beginning of each calendar year.

2.15        Signature

         (1)   A document (other than an affidavit, annexure or exhibit attached to another document) filed by a party in a proceeding must be dated and signed by:

                (a)    the party’s lawyer; or

               (b)    the party, if the party does not have a lawyer.

         (2)   A signature affixed to a document by electronic means at the direction of the person required to sign the document complies with subrule (1).

Note   Lawyer is defined in the Dictionary.

2.16        Details at foot of each document

         (1)   A document filed in a proceeding must contain the following information under a horizontal line at the foot of the front page of the document:

                (a)    the name and role of the party on whose behalf the document is filed;

               (b)    the name of the person or lawyer responsible for preparation of the document;

                (c)    if the party is represented by a lawyer — the telephone number, fax number and email address of the lawyer;

               (d)    if the party is not represented by a lawyer — the telephone number, fax number and email address, if any, of the party;

                (e)    the address for service of the party.

         (2)   In this rule:

role of the party means the capacity in which the party is participating in the proceeding.

Rules 2.17–2.20 left blank

Division 2.3           Lodging and filing documents

2.21        How documents may be lodged with the Court

         (1)   A document may be lodged with the Court by:

                (a)    being presented to a Registry when the Registry is open for business; or

               (b)    being posted to a Registry with a written request for the action required in relation to the document; or

                (c)    being faxed to a Registry in accordance with rule 2.22; or

               (d)    being sent by electronic communication to a registry, in accordance with rule 2.23.

         (2)   A document in an existing proceeding that is to be lodged with the Court in accordance with paragraph (1) (b), (c) or (d) must be sent to the proper Registry.

         (3)   If a document in an existing proceeding is lodged with a Registry other than the proper Registry, the document must be accompanied by a letter:

                (a)    identifying the proper place for the proceeding; and

               (b)    requesting that the document be sent to the proper Registry.

         (4)   Subject to rules 2.22 and 2.23, a document that is required to be sealed, stamped or signed by the Court must be accompanied by the required number of copies for sealing, stamping or signing.

Note   Proper Registry is defined in the Dictionary.

2.22        Faxing a document

         (1)   A document that is faxed to a Registry for filing must:

                (a)    be sent to a fax number approved by the Registrar; and

               (b)    be accompanied by a cover sheet clearly stating:

                          (i)    the sender’s name, postal address, telephone number, fax number (if any) and email address (if any);

                         (ii)    the number of pages sent; and

                        (iii)    the action required in relation to the document.

         (2)   A document must not be faxed to a Registry if it is more than 20 pages.

         (3)   The sender of the document must:

                (a)    keep the original document and the transmission report showing that the document was faxed successfully; and

               (b)    produce the original document or transmission report if ordered to do so by the Court.

Note 1   If the document is accepted in the Registry, the Registrar will return a copy of the document by fax to the fax number stated on the cover sheet.

Note 2   Details of the opening times for each District Registry are on the Court’s website at http://www.fedcourt.gov.au.

2.23        Sending a document by electronic communication

         (1)   A document that is sent by electronic communication to a Registry for filing must:

                (a)    be sent by using the Court’s website at http://www.fedcourt.gov.au; and

               (b)    be in an electronic format approved by the Registrar for the Registry; and

                (c)    if a document is required to be in accordance with an approved form — so far as is practicable, be in an approved form that complies with rule 2.12 or 2.13; and

               (d)    be capable of being printed in the form in which it was created without any loss of content.

Note   The electronic format approved by the Registrar for a Registry is available on the Court’s website at http://www.fedcourt.gov.au.

         (2)   An affidavit must be sent as an image.

         (3)   If the document is in an existing proceeding, it must be sent to the proper Registry by using the Court’s website at http://www.fedcourt.gov.au.

         (4)   The person who sends the document must:

                (a)    keep a paper or electronic copy of the document prepared in accordance with this rule; and

               (b)    if ordered to do so by the Court, produce the hard copy of the document.

2.24        Documents sent by electronic communication

         (1)   If a document sent to a Registry by electronic communication in accordance with rule 2.23 is accepted at the Registry, and is a document that must be signed or stamped, the Registrar will:

                (a)    for a document that these Rules require to be endorsed with a date for hearing — insert a notice of filing and hearing as the first page of the document; or

               (b)    for any other document — insert a notice of filing as the first page of the document.

         (2)   If a notice has been inserted as the first page of the document in accordance with subrule (1), the notice is taken to be part of the document for the purposes of the Act and these Rules.

2.25        When is a document filed

         (1)   A document is filed if:

                (a)    it is lodged with the Court in accordance with rule 2.21 (1); and

               (b)    either:

                          (i)    for a document in an existing proceeding — it is accepted in the proper Registry by being stamped as ‘filed’; or

                         (ii)    in any other case — it is accepted in a Registry by being stamped as ‘filed’.

         (2)   A document in an existing proceeding is taken to have been filed on the day when it was received by a Registry that is not the proper Registry if the document:

                (a)    is presented to a Registry other than the proper Registry; and

               (b)    is sent by the Registry to the proper Registry; and

                (c)    is filed in accordance with subparagraph (1) (b) (i).

         (3)   If a document is faxed or sent by electronic communication to a Registry, the document is, if accepted by a Registry under subrule (1), taken to have been filed:

                (a)    if the whole document is received by 4.30 pm on a business day for the Registry — on that day; or

               (b)    in any other case — on the next business day for the Registry.

Note 1   Business day is defined in the Dictionary.

Note 2   File is defined in the Dictionary as meaning file and serve.

Note 3   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.

2.26        Refusal to accept document for filing — abuse of process or frivolous or vexatious documents

                A Registrar may refuse to accept a document (including a document that would, if accepted, become an originating application) if the Registrar is satisfied that the document is an abuse of the process of the Court or is frivolous or vexatious:

                (a)    on the face of the document; or

               (b)    by reference to any documents already filed or submitted for filing with the document.    

2.27        When documents will not be accepted in a Registry

                A document will not be accepted for filing if:

                (a)    it is not substantially complete; or

               (b)    it does not substantially comply with these Rules; or

                (c)    it is not properly signed; or

               (d)    a Registrar has refused to accept the document; or

                (e)    the Court has given a direction that the document not be accepted; or

                (f)    the Court has given a direction that the document not be accepted without the Court’s leave, and leave has not been obtained.

Note   If a document is lodged with the Court in accordance with paragraph 2.21 (1) (b), (c) or (d) and the Registry does not accept it, a Registrar will notify the sender of the document accordingly.

Rules 2.28–2.30 left blank

Division 2.4           Custody and inspection of documents

2.31        Custody of documents

         (1)   The District Registrar of a District Registry is to have custody of, and control over:

                (a)    each document filed in a Registry in a proceeding; and

               (b)    the records of the Registry.

         (2)   A person may remove a document from a Registry if:

                (a)    a Registrar has given written permission for the removal because it is necessary to transfer the document to another Registry; or

               (b)    the Court has given the person leave for the removal.

         (3)   If the Court or Registrar permits a person to remove a document from the Registry, the person must comply with any conditions on the removal imposed by the Court or Registrar.

2.32        Inspection of documents

         (1)   A party may inspect any document in the proceeding except:

                (a)    a document for which a claim of privilege has been made:

                          (i)    but not decided by the Court; or

                         (ii)    that the Court has decided is privileged; or

               (b)    a document that the Court has ordered be confidential.

         (2)   A person who is not a party may inspect the following documents in a proceeding in the proper Registry:

                (a)    an originating application or cross-claim;

               (b)    a notice of address for service;

                (c)    a pleading or particulars of a pleading or similar document;

               (d)    a statement of agreed facts or an agreed statement of facts;

                (e)    an interlocutory application;

                (f)    a judgment or an order of the Court;

               (g)    a notice of appeal or cross-appeal;

               (h)    a notice of discontinuance;

                (i)    a notice of change of lawyer;

                (j)    a notice of ceasing to act;

               (k)    in a proceeding to which Division 34.7 applies:

                          (i)    an affidavit accompanying an application, or an amended application, under section 61 of the Native Title Act 1993; or

                         (ii)    an extract from the Register of Native Title Claims received by the Court from the Native Title Registrar;

                (l)    reasons for judgment.

Note   Native Title Registrar and Register of Native Title Claims are defined in the Dictionary.

         (3)   However, a person who is not a party is not entitled to inspect a document that the Court has ordered:

                (a)    be confidential; or

               (b)    is forbidden from, or restricted from publication to, the person or a class of persons of which the person is a member.

Note   For the prohibition of publication of evidence or of the name of a party or witness, see section 50 of the Act.

         (4)   A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.

         (5)   A person may be given a copy of a document, except a copy of the transcript in the proceeding, if the person:

                (a)    is entitled to inspect the document; and

               (b)    has paid the prescribed fee.

Note 1   For the prescribed fee, see the Federal Court of Australia Regulations 2004.

Note 2   If there is no order that a transcript is confidential, a person may, on payment of the applicable charge, obtain a copy of the transcript of a proceeding from the Court’s transcript provider.

Note 3   For proceedings under the Trans-Tasman Proceedings Act, see also rule 34.70.

Rules 2.33–2.40 left blank

Division 2.5           Administration of money paid into Court and payment out

2.41        Establishment of Litigants’ Fund

         (1)   The Registrar will establish with a bank an account entitled ‘Federal Court of Australia Official Exempt SPM Litigants’ Fund’.

         (2)   The Litigants’ Fund comprises the money standing, from time to time, to the credit of the account established under subrule (1).

Note   Bank and Litigants’ Fund are defined in the Dictionary.

2.42        Dealing with money paid into Court

         (1)   Money paid into Court in a proceeding must:

                (a)    if the Court has made an order under subrule (2) — be paid, credited or applied in accordance with the order; or

               (b)    if paragraph (a) does not apply — be paid into the Litigants’ Fund.

         (2)   A party may apply to the Court for an order:

                (a)    that money paid, or to be paid, into Court be paid, credited or applied in a manner other than by payment into the Litigants’ Fund; and

               (b)    in relation to the disbursement of any interest earned on the money.

Note   As soon as practicable after money has been paid into Court in a proceeding, the relevant District Registrar will give a notice to each party stating that the money has been received and giving details of how the money has been paid, credited or applied.

2.43        Payment out of Litigants’ Fund

         (1)   Money paid into Court under rule 2.42 may be paid out or applied only in accordance with an order of the Court.

         (2)   However, the District Registrar may pay out of the Litigants’ Fund money that has been paid in as security for the costs of a taxation of a bill of costs.

Note 1   An order under this rule will state:

(a)   the details of the payment to be made; and

(b)   any other action to be taken by a Registrar in relation to the money.

Note 2   As soon as practicable after money is paid out of the Litigants’ Fund, the relevant District Registrar will give a notice to each party.

Part 3                 Registrars

  

Note   For the appointment of the Registrar, and of Deputy Registrars, District Registrars and Deputy District Registrars, see sections 18C and 18N of the Act.  For the powers of the Registrar, see section 18D of the Act.  Deputy Registrars, District Registrars and Deputy District Registrars have the duties, powers and functions given to them by the Act or the Chief Justice ― see this Part and sections 18N (2) and 35A of the Act .

Division 3.1           Powers of Registrars

3.01        Powers of the Court that may be exercised by a Registrar

         (1)   For section 35A (1) (h) of the Act, the following powers of the Court are prescribed:

                (a)    a power of the Court under a provision of an Act mentioned in column 2 of an item in Schedule 2;

               (b)    a power of the Court under a provision of these Rules mentioned in column 2 of an item in Schedule 2;

                (c)    the power of the Court to receive evidence on any application that the Registrar is empowered to decide;

               (d)    if the parties consent in writing:

                          (i)    the power of the Court under section 23 of the Act to make an order for the dismissal of a proceeding and to make an order for the payment of costs;

                         (ii)    the power of the Court under section 53A of the Act to make an order referring a proceeding to arbitration.

                (e)    the power of the Court under section 20A (2) of the Act to deal with a matter without an oral hearing.

         (2)   A description in column 3 of an item in Schedule 2 is for information only.

         (3)   A Registrar may only exercise the power referred to in paragraph (1) (e) if:

                (a)    the requirements of sections 20A (2) (a) to (c) of the Act are met; and

               (b)    either:

                          (i)    the application was made without notice; or

                         (ii)    the parties to the proceeding consent.

Note 1   For the powers of the Court that may, if the Court so directs, be exercised by a Registrar, see section 35A (1) of the Act.

Note 2   Without notice is defined in the Dictionary.

Note 3   See also the following:

(a)   sections 35A (1) (a) to (g) of the Act;

(b)   rule 16.1 and Schedule 2 to the Corporations Rules;

(c)   rule 2.02 and Schedule 2 to the Bankruptcy Rules.

3.02        Authority to administer oaths and affirmations

                A Registrar may administer an oath or affirmation in a proceeding.

3.03        Orders other than in open court

                A Registrar may make an order other than in open court.

3.04        Application for orders in relation to Registrars

                A person may apply to the Court without notice for an order that a Registrar do any act or thing that the Registrar is required or entitled to do but has refused to do.

Note   Without notice is defined in the Dictionary.

3.05        Application to the Registrar for an application to be determined by the Court

                A party may apply orally to a Registrar under section 35A (7) (b) of the Act for the Registrar to arrange for the Court to determine an application for the exercise of a power mentioned in section 35A (1) of the Act.

Note   A party may apply to the Registrar to have the application determined by the Court — see section 35A (7) (b) of the Act.

Rules 3.06–3.10 left blank

Division 3.2           Reviewing a Registrar’s exercise of power

3.11        Application for review of the Registrar’s exercise of power

         (1)   A party may apply to the Court under section 35A (5) of the Act for review of the exercise of a power of the Court by a Registrar.

         (2)   The application must be made within 21 days after the day on which the power was exercised.

Part 4                 Lawyers

Division 4.1           General

4.01        Proceeding by lawyer or in person

         (1)   A person may be represented in the Court by a lawyer or may be unrepresented.

         (2)   A corporation must not proceed in the Court other than by a lawyer.

Note 1   Corporation and lawyer are defined in the Dictionary.

Note 2   A notice of address for service for a corporation must be filed by a lawyer ― see rule 11.02.

Note 3   The Court may dispense with compliance with this rule — see rule 1.34.

4.02        Power to act by lawyer

                A party’s lawyer may do an act or thing that the party is required or permitted to do unless the context or subject matter indicates otherwise.

4.03        Appointment of a lawyer — notice of acting

                If a party is unrepresented when a proceeding starts and later appoints a lawyer to represent the party in the proceeding, the lawyer must file a notice of acting, in accordance with Form 4.

Note   File is defined in the Dictionary as meaning file and serve.

4.04        Termination of retainer by party

         (1)   If a party terminates a lawyer’s retainer, and a new lawyer is appointed to represent the party, the new lawyer must file a notice of acting, in accordance with Form 5.

         (2)   If a party terminates a lawyer’s retainer, and a new lawyer is not appointed to represent the party, the party must file a notice of termination of the lawyer’s retainer, in accordance with Form 6, and a notice of address for service.

Note   Rule 11.01 contains requirements in relation to the address for service.

         (3)   If a party who has terminated a lawyer’s retainer does not file the documents required by rule 4.04 (2), the lawyer whose retainer has been terminated may file a notice of ceasing to act, in accordance with Form 8.

4.05        Termination of retainer by lawyer

         (1)   If a party’s lawyer terminates the retainer, the lawyer must:

                (a)    serve on the party a notice of intention of ceasing to act, in accordance with Form 7; and

               (b)    at least 7 days after serving the notice — file a notice of ceasing to act, in accordance with Form 8.

         (2)   A party whose lawyer has filed a notice under paragraph (1) (b) must file a notice of address for service within 5 days after the notice is filed.

Rules 4.06–4.10 left blank

Division 4.2           Court referral for legal assistance

4.11        Definitions for Division 4.2

                In this Division:

assisted party means a party receiving legal assistance under this Division.

legal assistance means any of the following:

                (a)    advice in relation to the proceeding;

               (b)    representation at a directions, interlocutory or final hearing or mediation;

                (c)    drafting or settling documents to be used in the proceeding;

               (d)    representation generally in the conduct of the proceeding.

Pro Bono lawyer means a lawyer who has agreed to accept a referral under rule 4.12 to provide pro bono legal assistance.

4.12        Referral for legal assistance

         (1)   The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate, in accordance with Form 9.

         (2)   When making a referral under subrule (1), the Court may take the following matters into account:

                (a)    the means of the party;

               (b)    the capacity of the party to otherwise obtain legal assistance;

                (c)    the nature and complexity of the proceeding;

               (d)    any other matters the Court considers appropriate.

         (3)   The referral certificate may state the kind of legal assistance for which the party has been referred.

         (4)   The Registrar will attempt to arrange for the provision of legal assistance in accordance with the referral certificate to a Pro Bono lawyer.

4.13        A party has no right to apply for a referral

                A party is not entitled to apply to the Court for a referral under rule 4.12.

4.14        Acceptance of referral certificate and provision of legal assistance

                If a lawyer agrees to accept a referral under rule 4.12, the lawyer must provide legal assistance in accordance with the referral certificate.

4.15        Ceasing to provide legal assistance

         (1)   A Pro Bono lawyer may cease to provide legal assistance to the assisted party only:

                (a)    with the assisted party’s written agreement; or

               (b)    with the Registrar’s permission under rule 4.16.

         (2)   If paragraph (1) (a) applies, the Pro Bono lawyer must, within 7 days after receiving the agreement, give the Registrar a copy of the agreement.

4.16        Application for Registrar’s permission to cease providing legal assistance

         (1)   A Pro Bono lawyer may apply to the Registrar for permission to cease to provide legal assistance to a party.

         (2)   An application must be in writing and include the reasons for making the application.

         (3)   The Pro Bono lawyer must give a copy of the application only to the assisted party.

         (4)   The application:

                (a)    will be treated as confidential; and

               (b)    will not be treated as part of the proceeding; and

                (c)    will not be included on the Court file of the proceeding.

         (5)   The Registrar may consider the application without further notice to the assisted party.

         (6)   In considering an application, the Registrar will take into account the following:

                (a)    whether the Pro Bono lawyer would be likely to be able to cease to provide legal assistance to the assisted party under any practice rules governing professional conduct applying to the lawyer;

               (b)    any conflict of interest that the Pro Bono lawyer may have;

                (c)    whether there is a substantial disagreement between the Pro Bono lawyer and the assisted party about the conduct of the litigation;

               (d)    any view of the Pro Bono lawyer:

                          (i)    that the assisted party’s case is not well founded in fact or law; or

                         (ii)    that the assisted party’s prosecution of the litigation is an abuse of process;

                (e)    whether the Pro Bono lawyer lacks the time to provide adequate legal assistance to the assisted party because of other professional commitments;

                (f)    whether the assisted party has refused or failed to pay any disbursements requested under rule 4.18;

               (g)    whether it is unfair to require the Pro Bono lawyer to continue to provide legal assistance to the assisted party;

               (h)    any other relevant matter.

4.17        Cessation of referral certificate

                A referral certificate ceases to have effect if:

                (a)    it is not accepted by a lawyer within 28 days after the referral; or

               (b)    a Pro Bono lawyer has provided the legal assistance mentioned in the referral certificate; or

                (c)    a Pro Bono lawyer has ceased to provide legal assistance under rule 4.15; or

               (d)    the proceeding to which the referral certificate relates is finalised or transferred to another court.

4.18        Disbursements

                A Pro Bono lawyer may ask the assisted party to pay any disbursements reasonably incurred, or reasonably to be incurred, by the Pro Bono lawyer on behalf of the assisted party in relation to the legal assistance.

4.19        Professional fees

         (1)   A Pro Bono lawyer must not seek or recover professional fees from an assisted party unless the Pro Bono lawyer and the assisted party have entered into a costs agreement.

         (2)   The costs agreement must provide that the Pro Bono lawyer be entitled to charge and the assisted party is liable to pay professional fees only:

                (a)    if an order for costs is made in favour of the assisted party; and

               (b)    to the extent that the party against whom the order for costs is made in fact pays the costs.

         (3)   If a costs agreement is entered into, the Court may order a party against whom an order for costs is made to pay the costs, including any disbursements incurred under rule 4.18, directly to the Pro Bono lawyer instead of the assisted party.

         (4)   A payment made to the Pro Bono lawyer under subrule (3) satisfies, to the extent of that payment, the order for costs made in favour of the assisted party.

Part 5                 Court supervision of proceedings

Division 5.1           Return date and directions

5.01        Parties to attend Court on return date

                A party, or the party’s lawyer, must attend the Court on the return date fixed in the originating application.

Note 1   Originating application is defined in the Dictionary.

Note 2   When a proceeding is started, the Registrar will fix a return date and place for hearing and endorse those details on the originating application.

5.02        Parties to file notice of address for service before return date

                A respondent who has been served with an originating application must file a notice of address for service, in accordance with Form 10, before the return date fixed in the originating application.

Note   Rule 11.01 contains requirements in relation to the address for service.

5.03        Respondent’s genuine steps statement

         (1)   If an applicant has filed a genuine steps statement the respondent must file the respondent’s genuine steps statement, in accordance with Form 11, before the return date fixed in the originating application.

         (2)   A genuine steps statement must comply with section 7 of the Civil Dispute Resolution Act.

Note 1   Civil Dispute Resolution Act is defined in the Dictionary.

Note 2   Rule 8.02 requires an applicant in a proceeding to which the Civil Dispute Resolution Act applies to file an applicant’s genuine dispute resolution statement at the same time as the originating application is filed.

5.04        Making directions

         (1)   At any hearing, the Court may make directions for the management, conduct and hearing of a proceeding.

Note   Direction is defined in the Dictionary.

         (2)   A party, or the party’s lawyer, must attend any hearing for the proceeding.

         (3)   Without limiting subrule (1), the Court may make a direction mentioned in the following table.

Item

A direction in relation to…

1

The defining of the issues by pleadings or otherwise

2

The proceeding continuing or becoming an expedited proceeding

3

The standing of affidavits as pleadings

4

The proceeding to continue on affidavits even though the originating application is supported by a statement of claim

5

The filing of affidavits

6

Amendments to an originating application and pleadings

7

The mode and sufficiency of service

8

The joinder of parties

9

The giving of particulars

10

Discovery and inspection of documents

11

Interrogatories

12

Admissions of fact or of documents

13

Inspection of real or personal property

14

The appointment of a court expert

15

The disclosure and exchange of reports of experts

16

The number of expert witnesses to be called

17

The parties jointly instructing an expert to provide a report of the expert’s opinion in relation to a particular issue in the proceeding

18

Requiring experts who are to give or have given reports to meet for the purpose of identifying and addressing the issues in dispute between the experts

19

An expert’s opinion to be received by way of submission, and the manner and form of that submission, whether or not the opinion would be admissible as evidence

20

The giving of evidence at the hearing, including whether the evidence in chief of witnesses is to be given orally or by affidavit or both

21

The filing and exchange of signed statements of evidence and outlines of evidence of intended witnesses and their use in evidence at the hearing

22

The number of witnesses to be called

23

The evidence of a particular fact or facts being given at the hearing:

   (a)  by statement on oath on information and belief; or

  (b)  by production of documents or entries in books; or

   (c)  by copies of documents or entries; or

  (d)  otherwise

24

The manner in which documentary evidence is to be presented at the hearing

25

The number of documents to be tendered

26

The taking of evidence and receipt of submissions by video link, audio link, electronic communication or other means that the Court considers appropriate

27

The providing and limiting of written submissions

28

The proportion in which the parties are to bear the costs (if any) of taking evidence or making submissions in accordance with a direction mentioned in item 25

29

The attendance by parties before a Registrar for a conference:

   (a)  to satisfy the Registrar that all reasonable steps for achieving a negotiated outcome of the proceeding have been taken; or

  (b) to clarify the real issues in dispute so that appropriate directions may be made:

         (i)   for the disposition of the matter; or

        (ii)   to shorten the time taken in preparation for, and at, the trial

30

The use of mediation, arbitration or an ADR process to assist in the conduct and resolution of all or part of the proceeding

31

Referring the proceeding, or a matter arising out of the proceeding, to an arbitrator, a mediator or a suitable person for resolution by an ADR process

32

The attendance by parties at a case management conference with a Judge or Registrar to consider the most economic and efficient means of bringing the proceeding to trial and of conducting the trial

33

The place, time and mode of hearing

34

The transfer of the proceeding to another place at which there is a Registry

35

Costs

Note 1   If a proceeding is transferred under a direction mentioned in item 34 of the table, the Registrar at the place from which the proceeding is transferred will send all documents in the Registrar’s custody relating to the proceeding to the Registrar at the place to which the proceeding is transferred.

Note 2   A Registrar may exercise the power in this rule — see rule 3.01 and Schedule 2.

Note 3   A party may seek directions as to the conduct of a hearing or trial — see rule 30.23.

5.05        Adjournment of directions hearing

                The Court may adjourn a directions hearing from time to time.

Note   Directions hearing is defined in the Dictionary.

5.06        Application for directions — cross-claims

         (1)   If a cross-claim is filed, the parties, or the parties’ lawyers, must attend the Court on the return date fixed in the cross-claim.

         (2)   A party may apply to the Court for directions for the management, conduct and hearing of the cross-claim.

5.07        Interlocutory orders

                A party who wants to obtain an interlocutory order must make an application in accordance with rule 17.01.

Note   Part 17 deals with interlocutory applications.

5.08        Hearing and determination of matter at directions hearing

                A party may apply to the Court at a directions hearing:

                (a)    to hear and determine the proceeding at the directions hearing; or

               (b)    to dispose of an originating application or a cross-claim at the directions hearing.

Rules 5.09–5.20 left blank

Division 5.2           Orders on default

5.21        Self-executing orders

                A party may apply to the Court for an order that, unless another party does an act or thing within a certain time:

                (a)    the proceeding be dismissed; or

               (b)    the applicant’s statement of claim be struck out; or

                (c)    the respondent’s defence be struck out; or

               (d)    the party have judgment against the other party.

5.22        When a party is in default

                A party is in default if the party fails to:

                (a)    do an act required to be done, or to do an act in the time required, by these Rules; or

               (b)    comply with an order of the Court; or

                (c)    attend a hearing in the proceeding; or

               (d)    prosecute or defend the proceeding with due diligence.

5.23        Orders on default

         (1)   If an applicant is in default, a respondent may apply to the Court for an order that:

                (a)    a step in the proceeding be taken within a specified time; or

               (b)    the proceeding be stayed or dismissed for the whole or any part of the relief claimed by the applicant:

                          (i)    immediately; or

                         (ii)    on conditions specified in the order.

         (2)   If a respondent is in default, an applicant may apply to the Court for:

                (a)    an order that a step in the proceeding be taken within a specified time; or

               (b)    if the claim against the respondent is for a debt or liquidated damages — an order giving judgment against the respondent for:

                          (i)    the debt or liquidated damages; and

                         (ii)    if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or

                (c)    if the proceeding was started by an originating application supported by a statement of claim, or if the Court has ordered that the proceeding continue on pleadings — an order giving judgment against the respondent for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled; or

               (d)    an order giving judgment against the respondent for damages to be assessed, or any other order; or

                (e)    an order mentioned in paragraph (b), (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order.

Note 1   The Court may make any order that the Court considers appropriate in the interests of justice — see rule 1.32.

Note 2   An order or judgment under this Division may be set aside or varied.

5.24        Contempt

                This Division does not limit the power of the Court to punish for contempt.

Part 6                 Court supervision of parties and other persons

Division 6.1           Vexatious proceedings

6.01        Scandalous, vexatious or oppressive matter

                If a document filed in a proceeding contains matter that is scandalous, vexatious or oppressive, a party may apply to the Court for an order that:

                (a)    the document be removed from the Court file; or

               (b)    the matter be struck out of the document.

6.02        Vexatious proceedings

                If a person starts a vexatious proceeding against another person in the Court, the respondent, the Attorney‑General of the Commonwealth or of a State or Territory, the Registrar or an interested person may apply to the Court for an order that the person must not continue the proceeding or start or continue any other proceeding in the Court, against that person or any other person, without the leave of the Court.

Note 1   Interested person and vexatious proceeding are defined in the Dictionary.

Note 2   The Court may exercise this power on its own initiative — see rule 1.40.

6.03        Applications for orders in relation to vexatious proceedings

         (1)   A person against whom the Court has made an order under rule 6.02 that the person must not start or continue a proceeding must not start or continue a proceeding without the leave of the Court.

         (2)   The Court may make an order under subrule (1) without notice to any other party.

Note 1   Without notice is defined in the Dictionary.

Note 2   The Court will give leave if satisfied that the proceeding is not vexatious and the person has a reasonable cause of action.

         (3)   The application under subrule (1) may be determined without an oral hearing.

Rules 6.04–6.10 left blank

Division 6.2           Use of communication and recording devices in Court

6.11        Use of communication device or recording device in place where hearing taking place

         (1)   In this rule:

communication device includes a mobile telephone, audio link, video link or 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 or digital audio recorder.

         (2)   A person must comply with any directions made by the Court at the hearing of any proceeding in the Court relating to the use of a communication device or recording device.

         (3)   A person must not use a recording device for the purpose of recording or making a transcript of the evidence or submissions in a hearing in the Court.

         (4)   A person must not use a communication device or a recording device that might:

                (a)    disturb a hearing in the Court; or

               (b)    cause any concern to a witness or other participant in the hearing; or

                (c)    allow a person who is not present in the Court to receive information about the proceeding or the hearing to which the person is not entitled.

Note 1   The Court may have regard to any relevant matter, including the following:

(a)   why the person needs to use the device in the hearing;

(b)   if an order has been given excluding one or more witnesses from the Court — whether there is a risk that the device could be used to brief a witness out of court;

(c)   whether the use of the device would disturb the hearing or distract or cause concern to a witness or other participant in the hearing.

Note 2   The Court may dispense with compliance with this rule — see rule 1.34.

6.12        Contempt

                Rule 6.11 does not limit the powers of the Court to punish for contempt.

Chapter 2    Original jurisdiction — proceedings generally

Part 7                 Orders before start of a proceeding

Division 7.1           Injunctions, preservation of property and receivers

7.01        Order before start of proceeding

         (1)   If a matter is urgent, a person who intends to start a proceeding (a prospective applicant) may apply to the Court, without notice, as if the prospective applicant had started the proceeding and the application had been made in the proceeding, for an order:

                (a)    granting an injunction; or

               (b)    if the matter relates to property:

                          (i)    for the detention, custody, preservation or inspection of the property; and

                         (ii)    to authorise any person to enter any land, or do any other act or thing, for the purpose of giving effect to the order; or

                (c)    if the matter relates to the right of a prospective applicant to an amount in a fund — that the amount in the fund be paid into Court or otherwise secured; or

               (d)    appointing a receiver with the power of a receiver and manager.

         (2)   An application mentioned in subrule (1) must be in accordance with Form 12 and accompanied by an affidavit stating the facts on which the prospective applicant relies.

         (3)   A prospective applicant seeking an order under this rule must give an undertaking to the Court to start a proceeding in relation to the subject matter of the application within 14 days after the application has been determined.

Note   Without notice is defined in the Dictionary.

Rules 7.02–7.10 left blank

Division 7.2           Approval of agreement for person under a legal incapacity

7.11        Compromise or settlement of matter before proceeding

         (1)   If a claim that is enforceable by a proceeding in the Court is made by, for or against a person under a legal incapacity, an interested person may apply to the Court for an order:

                (a)    approving an agreement made by or for the person for compromise or settlement of the claim before any proceeding is started; and

               (b)    enforcing the claim.

Note 1   Interested person, for a person under legal incapacity, and person under a legal incapacity are defined in the Dictionary.

Note 2   Division 9.6 deals with a proceeding by or against a person under a legal incapacity.

         (2)   An application must be:

                (a)    in accordance with Form 13; and

               (b)    accompanied by the following:

                          (i)    an affidavit stating the material facts on which the application relies;

                         (ii)    the agreement that is sought to be approved;

                        (iii)    an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity.

         (3)   The Court may, as a condition of an approval, require that any money or other property payable for the benefit of a person under a legal incapacity be dealt with by way of a settlement or in any other way that the Court considers appropriate.

Note   The Court may give approval subject to conditions — see rule 1.33.

         (4)   If the Court does not approve the agreement, the agreement is not binding on the person under a legal incapacity.

Rules 7.12–7.20 left blank

Division 7.3           Preliminary discovery

7.21        Definitions for Division 7.3

                In this Division:

prospective applicant means a person who reasonably believes that there may be a right for the person to obtain relief against another person who is not presently a party to a proceeding in the Court.

prospective respondent means a person, not presently a party to a proceeding in the Court, against whom a prospective applicant reasonably believes the prospective applicant may have a right to obtain relief.

7.22        Order for discovery to ascertain description of respondent

         (1)   A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant satisfies the Court that:

                (a)    there may be a right for the prospective applicant to obtain relief against a prospective respondent; and

               (b)    the prospective applicant is unable to ascertain the description of the prospective respondent; and

                (c)    another person (the other person):

                          (i)    knows or is likely to know the prospective respondent’s description; or

                         (ii)    has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the prospective respondent’s description.

         (2)   If the Court is satisfied of the matters mentioned in subrule (1), the Court may order the other person:

                (a)    to attend before the Court to be examined orally only about the prospective respondent’s description; and

               (b)    to produce to the Court at that examination any document or thing in the person’s control relating to the prospective respondent’s description; and

                (c)    to give discovery to the prospective applicant of all documents that are or have been in the person’s control relating to the prospective respondent’s description.

Note 1   Control and description are defined in the Dictionary.

Note 2   For how discovery is to be made, see rule 7.25.

         (3)   The prospective applicant must provide the person with sufficient conduct money to permit the person to travel to the Court.

Note   Conduct money is defined in the Dictionary.

7.23        Discovery from prospective respondent

         (1)   A prospective applicant may apply to the Court for an order under subrule (2) if the prospective applicant:

                (a)    reasonably believes that he or she may have the right to obtain relief in the Court from a prospective respondent whose description has been ascertained; and

               (b)    after making reasonable inquiries, does not have sufficient information to decide whether to start a proceeding in the Court to obtain that relief; and

                (c)    reasonably believes that:

                          (i)    the prospective respondent has or is likely to have or has had or is likely to have had in the prospective respondent’s control documents directly relevant to the question whether the prospective applicant has a right to obtain the relief; and

                         (ii)    inspection of the documents by the prospective applicant would assist in making the decision.

         (2)   If the Court is satisfied about matters mentioned in subrule (1), the Court may order the prospective respondent to give discovery to the prospective applicant of the documents of the kind mentioned in subparagraph (1) (c) (i).

7.24        Procedure for applications under this Division

         (1)   A prospective applicant who wants to make an application under rule 7.22 or 7.23 must file an originating application, in accordance with Form 14.

         (2)   An application must be accompanied by an affidavit:

                (a)    stating the facts on which the prospective applicant relies; and

               (b)    identifying, as precisely as possible, the documents or categories of documents to which the application relates.

         (3)   A copy of the application and affidavit must be served personally on each person against whom the order is sought.

7.25        List of documents

                If a person is ordered to give discovery under rule 7.22 or 7.23, the person must file a list of documents in accordance with rule 20.17.

Note  For the requirements for a list of documents, see rule 20.17.

7.26        Privilege

                An order made under this Division does not require the person against whom the order is made to produce any document that, on the ground of privilege, the person could not be required to produce if the prospective applicant had started a proceeding against the person or made the person a party to the proceeding.

7.27        Inspection of documents

         (1)   If a document is discovered in accordance with this Division, the prospective applicant may apply to the Court to have the document produced for inspection.

         (2)   Division 20.3, with any necessary modification, applies to the inspection of the documents mentioned in a list of documents made and served in accordance with this Division as if the list were a list of documents as mentioned in rule 20.17.

7.28        Copying of documents produced for inspection

                A prospective applicant to whom a document is produced for inspection may at the prospective applicant’s own expense copy the document subject to any reasonable conditions imposed by the person producing the document.

7.29        Costs

                A person against whom an order is sought or made under this Division may apply to the Court for an order that:

                (a)    the prospective applicant give security for the person’s costs and expenses including:

                          (i)    the costs of giving discovery and production; and

                         (ii)    the costs of complying with an order made under this Division; and

               (b)    the prospective applicant pay the person’s costs and expenses.

Note   Part 40 deals with costs and Division 40.2 deals with taxation of costs.

Rule 7.30 left blank

Division 7.4           Freezing orders

Note   This Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices' Rules Harmonisation Committee.

7.31        Definitions for Division 7.4

                In this Division:

ancillary order has the meaning given by rule 7.33.

another court means a court outside Australia or a court in Australia other than the Court.

applicant means a person who applies for a freezing order or an ancillary order.

freezing order has the meaning given by rule 7.32.

judgment includes an order.

respondent means a person against whom a freezing order or an ancillary order is sought or made.

7.32        Freezing order

         (1)   The Court may make an order (a freezing order), with or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.

         (2)   A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.

Note   Without notice is defined in the Dictionary.

7.33        Ancillary order

         (1)   The Court may make an order (an ancillary order) ancillary to a freezing order or prospective freezing order as the Court considers appropriate.

         (2)   Without limiting the generality of subrule (1), an ancillary order may be made for either or both of the following purposes:

                (a)    eliciting information relating to assets relevant to the freezing order or prospective freezing order;

               (b)    determining whether the freezing order should be made.

7.34        Order may be against person not a party to proceeding

                The Court may make a freezing order or an ancillary order against a person even if the person is not a party in a proceeding in which substantive relief is sought against the respondent.

7.35        Order against judgment debtor or prospective judgment debtor or third party

         (1)   This rule applies if:

                (a)    judgment has been given in favour of an applicant by:

                          (i)    the Court; or

                         (ii)    for a judgment to which subrule (2) applies — another court; or

               (b)    an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in:

                          (i)    the Court; or

                         (ii)    for a cause of action to which subrule (3) applies — another court.

         (2)   This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the Court.

         (3)   This subrule applies to a cause of action if:

                (a)    there is a sufficient prospect that the other court will give judgment in favour of the applicant; and

               (b)    there is a sufficient prospect that the judgment will be registered in or enforced by the Court.

         (4)   The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur:

                (a)    the judgment debtor, prospective judgment debtor or another person absconds;

               (b)    the assets of the judgment debtor, prospective judgment debtor or another person are:

                          (i)    removed from Australia or from a place inside or outside Australia; or

                         (ii)    disposed of, dealt with or diminished in value.

         (5)   The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the Court is satisfied, having regard to all the circumstances, that:

                (a)    there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because:

                          (i)    the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

                         (ii)    the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or

               (b)    a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.

         (6)   Nothing in this rule affects the power of the Court to make a freezing order or ancillary order if the Court considers it is in the interests of justice to do so.

7.36        Jurisdiction

                Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the Court to make a freezing order or ancillary order.

7.37        Service outside Australia of application for freezing order or ancillary order

                An application for a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia) if any of the assets to which the order relates are within the jurisdiction of the Court.

7.38        Costs

         (1)   The Court may make any order as to costs as it considers appropriate in relation to an order made under this Division.

         (2)   Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a freezing order or ancillary order.

Rules 7.39–7.40 left blank

Division 7.5           Search orders

Note   This Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices' Rules Harmonisation Committee.

7.41        Definitions for Division 7.5

                In this Division:

applicant means an applicant for a search order.

described includes described generally whether by reference to a class or otherwise.

premises includes a vehicle or vessel of any kind.

respondent means a person against whom a search order is sought or made.

search order has the meaning given by rule 7.42.

7.42        Search order

                The Court may make an order (a search order), in any proceeding or in anticipation of any proceeding in the Court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence that is, or may be, relevant to an issue in the proceeding or anticipated proceeding.

Note   Without notice is defined in the Dictionary.

7.43        Requirements for grant of search order

                The Court may make a search order if the Court is satisfied that:

                (a)    an applicant seeking the order has a strong prima facie case on an accrued cause of action; and

               (b)    the potential or actual loss or damage to the applicant will be serious if the search order is not made; and

                (c)    there is sufficient evidence in relation to a respondent that:

                          (i)    the respondent possesses important evidentiary material; and

                         (ii)    there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the Court.

7.44        Jurisdiction

                Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the Court to make a search order.

7.45        Terms of search order

         (1)   A search order may direct each person who is named or described in the order:

                (a)    to permit, or arrange to permit, other persons named or described in the order:

                          (i)    to enter premises specified in the order; and

                         (ii)    to take any steps that are in accordance with the terms of the order; and

               (b)    to provide, or arrange to provide, other persons named or described in the order with any information, thing or service described in the order; and

                (c)    to allow other persons named or described in the order to take and retain in their custody any thing described in the order; and

               (d)    not to disclose any information about the order, for up to 3 days after the date the order was served, except for the purposes of obtaining legal advice or legal representation; and

                (e)    to do or refrain from doing any act as the Court considers appropriate.

         (2)   Without limiting the generality of subparagraph (1) (a) (ii), the steps that may be taken in relation to a thing specified in a search order include:

                (a)    searching for, inspecting or removing the thing; and

               (b)    making or obtaining a record of the thing or any information it may contain.

         (3)   A search order may contain other provisions the Court considers appropriate.

         (4)   In subrule (2):

record includes a copy, photograph, film or sample.

7.46        Independent lawyers

         (1)   If the Court makes a search order, the Court must appoint one or more lawyers, each of whom is independent of the applicant’s lawyer, (the independent lawyers) to supervise the execution of the order, and to do any other acts or things in relation to the order that the Court considers appropriate.

         (2)   The Court may appoint an independent lawyer to supervise execution of the order at any one or more premises, and a different independent lawyer or lawyers to supervise execution of the order at other premises, with each independent lawyer having power to do any other acts or things in relation to the order that the Court considers appropriate.

7.47        Costs

         (1)   The Court may make any order for costs that it considers appropriate in relation to an order made under this Division.

         (2)   Without limiting the generality of subrule (1), an order for costs includes an order for the costs of any person affected by a search order.

Part 8                 Starting proceedings

Division 8.1           Originating applications

8.01        Starting proceeding — application

         (1)   A person who wants to start a proceeding in the Court’s original jurisdiction must file an originating application, in accordance with Form 15.

         (2)   An originating application must include:

                (a)    the applicant’s name and address; and

               (b)    the applicant’s address for service; and

                (c)    if an applicant sues in a representative capacity — a statement of that fact.

Note   The originating application must have the applicant’s address for service — see rule 11.01.

         (3)   If an originating application states that the applicant is represented by a lawyer:

                (a)    the lawyer must, if requested in writing by a respondent, declare in writing whether the lawyer filed the originating application; and

               (b)    if the lawyer declares in writing that the lawyer did not file the originating application, the respondent may apply to the Court to stay the proceeding.

Note   File is defined in the Dictionary as meaning file and serve.

8.02        Applicant’s genuine steps statement

         (1)   If Part 2 of the Civil Dispute Resolution Act applies to a proceeding, the applicant must, when filing the applicant’s originating application, file the applicant’s genuine steps statement, in accordance with Form 16.

         (2)   The applicant’s genuine steps statement must comply with section 6 of the Civil Dispute Resolution Act.

Note 1   Civil Dispute Resolution Act is defined in the Dictionary.

Note 2   A party who wants to start a proceeding must have regard to the Civil Dispute Resolution Act before starting that proceeding to determine whether the Civil Dispute Resolution Act applies to the proceeding that the party wants to start.

Note 3   A lawyer must comply with section 9 of the Civil Dispute Resolution Act, if that Act applies to the proceeding.

8.03        Application to state relief claimed

         (1)   An originating application must state:

                (a)    the relief claimed; and

               (b)    if the relief is claimed under a provision of an Act — the Act and the provision under which the relief is claimed.

         (2)   An originating application claiming relief of the kind mentioned in column 2 of following table must state the details mentioned in column 3 of the table.

Item

Relief sought

Details

1

Interlocutory relief

The interlocutory order sought

2

An injunction

The order sought

3

A declaration

The declaration sought

4

Exemplary damages

The claim for exemplary damages

         (3)   The originating application need not include a claim for costs.

8.04        Application starting migration litigation to include certificate

         (1)   For section 486I of the Migration Act 1958, a lawyer may file an originating application starting migration litigation only if the application includes a certificate in accordance with the certificate contained in Form 15, signed by the lawyer.

Note 1   See section 486I of the Migration Act 1958.

Note 2   The Court will refuse to accept an originating application unless a certificate is provided in accordance with this subrule.

         (2)   In this rule:

lawyer has the meaning given by section 5 of the Migration Act 1958.

Note   Migration litigation is defined in the Dictionary.

8.05        Application to be accompanied by statement of claim or affidavit

         (1)   An originating application must be accompanied by:

                (a)    if the applicant seeks relief that includes damages — a statement of claim, in accordance with Form 17; or

               (b)    if paragraph (a) does not apply — a statement of claim or an affidavit.

Note 1   When an originating application and a statement of claim or accompanying affidavit is filed, the Registrar will fix a return date and place for hearing and endorse those details on the application.

Note 2   If the Court has made an order shortening the time for service of the application, the Registrar will endorse details of the order on the application.

Note 3   In some cases in Chapter 3, the rules prescribe the documents that must accompany an originating application.

         (2)   An affidavit mentioned in paragraph (1) (b) must state the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at trial.

Note   Division 16.1 provides for the content of a statement of claim.

8.06        Service of originating documents

                The applicant must, at least 5 days before the return date fixed by the Registrar, serve a copy of the originating application and the statement of claim or accompanying affidavit personally on each respondent named in the originating application.

Note 1   The Court may extend or shorten the time for service — see rule 1.39.

Note 2   For the manner of service of a document personally on individuals, corporations, associations, partnerships and business names, see Part 10.

8.07        Changing return date

         (1)   A party may apply to a Registrar for a change of the return date.

         (2)   If a Registrar changes a return date in relation to an application that has not been served, the applicant must change the return date endorsed on the copy of the application that is to be served.

         (3)   This rule does not apply to a proceeding to which the Corporations Rules apply if a public notice or advertisement is required under those Rules or under an order made by the Court in the proceeding.

Rules 8.08–8.10 left blank

Division 8.2           Notice of constitutional matter

8.11        Notice of constitutional matter

         (1)   In this Division:

constitutional matter means a matter arising under the Constitution or involving its interpretation, within the meaning of section 78B of the Judiciary Act 1903.

         (2)   If a proceeding in the Court involves a constitutional matter, the party who has raised the matter must file a notice in the proper Registry, in accordance with Form 18, stating:

                (a)    briefly but specifically, the nature of the constitutional matter; and

               (b)    the facts showing that the matter is one to which this rule applies.

8.12        Service of notice

         (1)   The party filing the notice must:

                (a)    serve a copy of the notice on:

                          (i)    each person as required by section 78B of the Judiciary Act 1903; and

                         (ii)    each other party; and

               (b)    as soon as practicable after serving the notice, file an affidavit of service; and

                (c)    give a copy of each document filed in the proceeding relevant to the constitutional matter (whether filed before or after the notice) to any Attorney‑General who has intervened, as soon as practicable after notice of the intervention is given to the party.

         (2)   The notice must be served:

                (a)    if the matter arises in any originating application — within 7 days after the day the application is filed; or

               (b)    if the matter arises in any pleading — within 7 days after the pleading is filed; or

                (c)    if the matter arises before the date fixed for a hearing of a proceeding and paragraph (a) or (b) does not apply — not later than 14 days before the date fixed for the hearing; or

               (d)    in any other case — within the time that the Court directs.

Note   For the Court’s powers when a constitutional matter arises, see sections 78B (2) and (5) of the Judiciary Act 1903.

Rules 8.13–8.20 left blank

Division 8.3           Amendments to an originating application

8.21        Amendment generally

         (1)   An applicant may apply to the Court for leave to amend an originating application for any reason, including:

                (a)    to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding; or

               (b)    to avoid the multiplicity of proceedings; or

                (c)    to correct a mistake in the name of a party to the proceeding; or

               (d)    to correct the identity of a party to the proceeding; or

                (e)    to change the capacity in which the party is suing in the proceeding, if the changed capacity is one that the party had when the proceeding started, or has acquired since that time; or

                (f)    to substitute a person for a party to the proceeding; or

               (g)    to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:

                          (i)    out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or

                         (ii)    in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

Note   For paragraph (1) (b) and the avoidance of multiplicity of proceedings, see section 22 of the Act.

         (2)   An applicant may apply to the Court for leave to amend an originating application in accordance with paragraph (1) (c), (d), (e) or subparagraph (g) (i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started.

         (3)   However, an applicant must not apply to amend an originating application in accordance with subparagraph (1) (g) (ii) after the time within which any statute that limits the time within which a proceeding may be started has expired.

Note 1   Applicant, claim and originating application are defined in the Dictionary.

Note 2   For the Court’s power to make rules amending a document, see section 59 (2B) of the Act.

Note 3   Rule 9.05 deals with joinder of parties by court order.

8.22        Date on which amendment takes effect

                If an originating application is amended with the effect that another person is substituted as a party to the proceeding, the proceeding is to be taken to have started for that person on the day the originating application is amended.

8.23        Procedure for making amendment

         (1)   An applicant given leave to amend an originating application must:

                (a)    make the alterations on the originating application; and

               (b)    write on the originating application the following information:

                          (i)    the date on which the amendment is made;

                         (ii)    the date on which the order permitting the amendment was made.

         (2)   If the amendments to the originating application are so numerous or lengthy to make it difficult to read, the applicant must file an amended originating application that:

                (a)    incorporates and distinguishes the amendments; and

               (b)    is marked with the information mentioned in subrule (1).

8.24        Time for amending an originating application under Court order

                An order that an applicant be permitted to amend an originating application ceases to have effect unless the applicant amends the originating application in accordance with the order within:

                (a)    the period specified in the order; or

               (b)    if no period is specified in the order — 14 days after the date on which the order permitting the amendment was made.

Note   If the Court permits an applicant to amend an originating application, the Court may also make orders about the procedure for amending the originating application and serving the originating application.

8.25        Service of amended originating application

                If an originating application is amended after it has been served, the applicant who made the amendment must, as soon as practicable after the amendment is made, serve a copy of the amended originating application on the parties on whom the originating application was served.

Note   The Court may dispense with service of the amended document.

Part 9                 Parties and proceedings

Division 9.1           Parties, interveners and causes of action

9.01        Multiple causes of action

                An applicant may claim relief in the same proceeding in relation to as many causes of action as the applicant has against a respondent, whether or not the applicant is claiming the relief in the same capacity.

9.02        Joinder of parties — general

                An application may be made by 2 or more persons, or against 2 or more persons, if:

                (a)    a separate proceeding could be made by or against each person in which the same question of law or fact might arise for decision; and

               (b)    all rights to relief claimed in the proceeding (whether joint, several or alternative) arise out of the same transaction or event or series of transactions or events.

9.03        Joinder of applicants with joint entitlement

                If an applicant claims relief to which any other person is entitled jointly with the applicant:

                (a)    each person so entitled must be joined as a party to the proceeding; and

               (b)    any person so entitled who does not consent to being joined as an applicant must be made a respondent to the proceeding.

Note   For actions in relation to joint contracts, where one of the contractors is bankrupt, see section 62 of the Bankruptcy Act 1966.

9.04        Joinder of persons with common liability

         (1)   If relief is claimed against a respondent who is both jointly and severally liable with another person, the other person need not be made a respondent to the proceeding.

         (2)   If 2 or more persons may be jointly, but not severally, liable and relief is claimed against some, but not all, of the persons, a respondent may apply to the Court for an order that the proceeding be stayed until each person who is jointly liable is made a respondent to the proceeding.

9.05        Joinder of parties by Court order

         (1)   A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:

                (a)    ought to have been joined as a party to the proceeding; or

               (b)    is a person:

                          (i)    whose cooperation might be required to enforce a judgment; or

                         (ii)    whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or

                        (iii)    who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.

         (2)   A person must not be added as an applicant without the person’s consent.

         (3)   If a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made.

         (4)   An application under subrule (1) need not be served on any person who was not served with a copy of the originating application.

Note   The Court may make an order for any of the following:

(a)   service of the order and any other document in the proceeding;

(b)   amendment of a document in the proceeding;

(c)   the filing of a notice of address for service by a party.

9.06        Application for separate trials — inconvenient joinder of causes of action or parties

                A party may apply to the Court for an order that separate trials be held on the ground that a joinder of parties, or causes of action, in a proceeding may:

                (a)    complicate or delay the trial of the proceeding; or

               (b)    cause any other inconvenience.

9.07        Errors in joinder of parties

                A proceeding will not be defeated only because:

                (a)    a party has been improperly or unnecessarily joined as a party; or

               (b)    a person who should have been joined as a proper or necessary party has not been joined.

9.08        Removal of parties by Court order

                A party may apply to the Court for an order that a party that has been improperly or unnecessarily joined as a party, or has ceased to be a proper or necessary party, cease to be a party.

Note   The Court may make an order for the future conduct of the proceeding.

9.09        Death, bankruptcy or transmission of interest

         (1)   If a party dies, or becomes bankrupt, during a proceeding but a cause of action in the proceeding survives, the proceeding is not dismissed only because of the party’s death or bankruptcy.

         (2)   If the interest or liability of a party passes to another person during a proceeding, by assignment, transmission, devolution or by any other means, the party or the person may apply to the Court for an order for the joinder of the person as a party or for the removal of the party.

         (3)   If a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made.

Note   The Court may make an order for the future conduct of the proceeding.

9.10        No joinder or substitution after death of party

                A person may apply to the Court for an order that, unless an order for substitution is made within a specified time, the proceeding be dismissed to the extent that it relates to relief on a cause of action if:

                (a)    a party dies during a proceeding and the cause of action survives the party’s death; and

               (b)    no order is made substituting another party for the deceased party within 3 months after the death.

Note   The Court may make orders for service of the order on any person who has an interest in continuing the proceeding.

9.11        Substitution of party

                If a party (the new party) is substituted for another party (the old party):

                (a)    any thing done, or action taken, in the proceeding before the substitution has the same effect in relation to the new party as it had in relation to the old party; and

               (b)    the new party must file a notice of address for service.

9.12        Interveners

         (1)   A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as may be determined by the Court.

         (2)   The Court may 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 the parties wish; and

                (c)    any other matter that the Court considers relevant.

         (3)   When giving leave, the Court may specify the form of assistance to be given by the intervener and the manner of participation of the intervener, including:

                (a)    the matters that the intervener may raise; and

               (b)    whether the intervener’s submissions are to be oral, in writing, or both.

Note 1   The Court may give leave subject to conditions — see rule 1.33.

Note 2  The Court may appoint an amicus curiae.

Rules 9.13–9.20 left blank

Division 9.2           Representative proceedings

9.21        Representative party — general

         (1)   A proceeding may be started and continued by or against one or more persons who have the same interest in the proceeding, as representing all or some of the persons who have the same interest and could have been parties to the proceeding.

         (2)   The applicant may apply to the Court for an order appointing one or more of the respondents or other persons to represent all or some of the persons against whom the proceeding is brought.

         (3)   If the Court makes an order appointing a person who is not a respondent, the order has the effect of joining the person as a respondent to the proceeding.

         (4)   This rule does not apply to a proceeding dealing with property that is subject to a trust or included in a deceased estate.

Note   For the representation of beneficiaries in a proceeding dealing with property that is subject to a trust or included in a deceased estate, see rule 9.23.

9.22        Enforcement of order for or against representative party

         (1)   An order made in a proceeding for or against a representative party is binding on each person represented by the representative party.

         (2)   However, the order can be enforced against a person who is not a party only if the Court gives leave.

         (3)   An application for leave under subrule (2) must be served personally on the person against whom it is sought to enforce the order.

         (4)   A person who is served with a notice under subrule (3) may dispute liability to have the order to which the notice relates enforced against the person on the ground that facts and matters particular to the person entitle the person to be exempt from liability.

9.23        Representative party — beneficiaries

         (1)   A proceeding dealing with property that is subject to a trust or included in a deceased estate may be started by or against a trustee or personal representative without joining as a party a person who has a beneficial interest in the trust or estate (a beneficiary).

         (2)   However, a person may apply to the Court for an order that a beneficiary be joined as a party to the proceeding.

9.24        Deceased persons

         (1)   If:

                (a)    a deceased person was interested in, or the estate of a deceased person is interested in, any matter or question in a proceeding; and

               (b)    the deceased person has no personal representative;

a party may apply to the Court for an order:

                (c)    that the proceeding continue in the absence of a person representing the deceased person; or

               (d)    that a person who has consented in writing represent the deceased person’s estate for the purpose of the proceeding.

         (2)   An order under subrule (1) and any subsequent order made in the proceeding binds the estate of the deceased person as the estate would have been bound if the deceased person’s personal representative had been a party to the proceeding.

Note   Before making an order under this rule, the Court may require the application to be served on persons having an interest in the estate, as the Court considers appropriate.

9.25        Conduct of proceeding by particular party

                A person may apply to the Court for an order that the whole, or any part, of a proceeding be conducted by the person or a particular party.

Rules 9.26–9.30 left blank

Division 9.3           Grouped proceedings under Part IVA of the Act

9.31        Interpretation for Division 9.3

                A word or expression that is used in this Division and in Part IVA of the Act has the same meaning in this Division as it has in that Part.

Note   Group member, representative party and representative proceeding are defined in section 33A of Part IVA of the Act.  Part IVA of the Act provides for the procedure that must be adopted in representative proceedings.

9.32        Starting a representative proceeding

                A person who wants to start a representative proceeding under Part IVA of the Act must file an originating application, in accordance with Form 19.

Note   For the contents of an application starting a representative proceeding, or a document filed in support of such an application, see section 33H of the Act.

9.33        Person may give consent to be a group member

                A person mentioned in section 33E (2) of the Act may give consent to be a group member, in accordance with Form 20.

9.34        Opt out notices

                An opt out notice under section 33J (2) of the Act must be in accordance with Form 21.

Note   A group member may opt out in accordance with section 33J of the Act.

9.35        Application for order relating to the procedure to be followed in a representative proceeding

         (1)   A party may apply to the Court for an order under section 33K, 33W, 33X or 33ZA of the Act, in accordance with Form 22.

         (2)   An application for an order under subrule (1) must be accompanied by an affidavit stating:

                (a)    the identity of the group members; and

               (b)    the whereabouts of the group members; and

                (c)    the means by which a notice is most likely to come to the attention of the group members.

Rules 9.36–9.40 left blank

Division 9.4           Partnerships

9.41        Proceeding by or against partners in partnership name

         (1)   Two or more persons claiming as partners may start a proceeding in the partnership name.

         (2)   A proceeding may be brought against 2 or more persons who it is claimed are liable as partners in the partnership name.

         (3)   The partnership name must be the name of the partnership when the cause of action arose.

         (4)   The proceeding must continue in the partnership name and not in the names of the individual partners.

Note 1   Partnership name is defined in the Dictionary.

Note 2   For service of a proceeding against partners in the partnership name, see rule 10.05.

Note 3   An address for service must be entered if a proceeding is brought against a partnership name — see rule 10.05.

9.42        Disclosure of partners’ names

         (1)   A party may, by written notice, require a partnership that is a party to a proceeding to disclose the description of each person who was a partner in the partnership at the time when the cause of action is claimed to have arisen.

         (2)   If the partnership does not give the required information to the party as soon as practicable after being requested to do so, the party may apply to the Court:

                (a)    for an order requiring the partnership to give the information to the party; and

               (b)    if the partnership is an applicant or a cross-claimant in the proceeding — for an order that the proceeding be stayed until the information is given.

Note 1   Description is defined in the Dictionary.

Note 2   See Part 10 in relation to service.

9.43        Proceeding between members of partnerships

         (1)   If one or more partnerships carry on business in Australia, this Division applies to:

                (a)    a proceeding between a partnership and one or more of its members; and

               (b)    a proceeding between partnerships having one or more common members.

         (2)   However, no order may be executed in a proceeding to which subrule (1) applies without the leave of the Court.

Note   Division 41.2 deals with enforcement proceedings involving partnerships.

9.44        Denial by person served as partner

         (1)   If a proceeding is brought against a person (the respondent) as a partner, the respondent may deny being a partner:

                (a)    at the date specified in the originating application as the date that the cause of action arose; or

               (b)    when the proceeding was started.

         (2)   If the respondent makes a denial under subrule (1), the respondent must, when filing the respondent’s notice of address for service, file an affidavit stating the facts on which the denial is based.

         (3)   The respondent may also make the denial at a later stage of the proceeding.

9.45        Defence to be in partnership name

         (1)   Despite rule 9.44, if a proceeding has been brought against a partnership, a partner must not file a defence in the partner’s name.

         (2)   However, the partner may file a defence in the partnership name.

         (3)   If, under subrule (2), 2 or more partners file a defence and the defences raise different grounds of defence, the applicant is only entitled to an order against the partnership if none of the grounds of defence is a proper defence to the applicant’s claim.

Note   For defences, see rule 16.32.

9.46        Entry of order

                An order for or against a partnership must be entered in the partnership name and not in the name of an individual partner.

Note   For execution of judgment against a partnership, see rule 41.21.  For execution of judgment against an individual partner, see rule 41.22.

Rules 9.47–9.50 left blank

Division 9.5           Business name proceedings

9.51        Proceeding against a person who carries on a business under a business name

                A proceeding must be started against a person in the person’s name or under Division 9.4 if:

                (a)    the proceeding is started against the person in relation to anything done, omitted to be done or otherwise related to a business carried on in Australia by that person under a business name; and

               (b)    the business name is registered in a register in a State or Territory in which the business is carried on and discloses the name and residential address of the person.

Note 1   Business name and description are defined in the Dictionary.

Note 2   In a proceeding against a person in the person’s business name the person must file a notice of address for service in the person’s name — see rule 11.03.

9.52        Proceeding against a business name

         (1)   A proceeding may be started against a business name if:

                (a)    the proceeding relates to anything done, omitted to be done or otherwise related to a business carried on by a person under that business name; and

               (b)    the person’s name is not registered in any register mentioned in paragraph 9.51 (1) (b).

         (2)   If a proceeding is brought under subrule (1), the business name is sufficient designation of the person in any process.

         (3)   Any judgment or order made in the proceeding may be enforced against the person.

9.53        Proceeding under this Division or Division 9.4

                A party to a proceeding may proceed under this Division or Division 9.4 if:

                (a)    a proceeding is brought against a person in the person’s business name; and

               (b)    the person files a notice of address for service under rule 11.03; and

                (c)    a statement filed with the notice of address for service sets out the name of at least one other person with whom the person carried on business under the business name:

                          (i)    at the date specified in the originating application as the date that the cause of action arose; or

                         (ii)    when the proceeding was started.

Note   Rule 11.03 provides that if an originating application is brought against a business name, the person served must file an address for service in the person’s name.

9.54        Amendment of parties

         (1)   As soon as practicable after filing an originating application against a person in the person’s business name, the applicant must:

                (a)    take all reasonable steps to find out the person’s description; and

               (b)    apply to the Court for leave to amend the application, and any other document filed in the proceeding, to enable the proceeding to continue against the person in the person’s name.

Note 1   Description is defined in the Dictionary.

Note 2   Amendments to originating applications are dealt with in Division 8.3 and amendments to pleadings are dealt with in Division 16.5.

         (2)   The applicant may take a step in the proceeding (other than those mentioned in paragraph (1) (a) and arranging for service of a copy of the application under paragraph (1) (b)) only if the amendments required under paragraph (1) (b) are made or the Court gives leave.

Note   For service on a person under a legal incapacity, see rule 10.09.

         (3)   Nothing in this rule prevents a party from amending a document under rule 16.51 or 16.53.

9.55        Variation of order

         (1)   Despite rule 41.31, a person may apply to the Court for the variation of an order made against a person in the person’s business name so that the order is made against the person in the person’s name.

         (2)   An application for a variation of an order under subrule (1) must be served personally on the person against whom the order was made.

         (3)   An order that is varied under subrule (1) may be enforced personally against the person against whom the order was made.

Note   Rule 41.31 deals with enforcement against a business name.

9.56        Order for discovery — proceeding brought against a person in the person’s business name

         (1)   An applicant may apply to the Court for an order under subrule (2) if the applicant:

                (a)    starts a proceeding against a person (the respondent) in the respondent’s business name; and

               (b)    satisfies the Court that another person:

                          (i)    knows or is likely to know the respondent’s description; or

                         (ii)    has or is likely to have or has had or is likely to have had control of a document that would help ascertain the respondent’s description.

         (2)   If the Court is satisfied of the matters mentioned in paragraph (1) (b), the Court may order the other person:

                (a)    to attend before the Court to be examined orally about the respondent’s description; and

               (b)    to produce to the Court at that examination any document or thing in the person’s control relating to the respondent’s description; and

                (c)    to give discovery to the applicant of all documents that are or have been in the other person’s control relating to the respondent’s description.

Note   Description is defined in the Dictionary.

         (3)   The applicant must provide the person with sufficient conduct money to permit the person to travel to the Court.

Note   Conduct money is defined in the Dictionary.

Rules 9.57–9.60 left blank

Division 9.6           Persons under a legal incapacity

9.61        Proceeding by or against person under a legal incapacity

                A person under a legal incapacity may start, or defend, a proceeding only by the person’s litigation representative.

Note   Litigation representative and person under a legal incapacity are defined in the Dictionary.

9.62        Persons who may be a litigation representative

         (1)   A person, other than the following persons, may consent to being appointed a litigation representative:

                (a)    a person under a legal incapacity;

               (b)    a person who has a different interest in the proceeding to the person under a legal incapacity;

                (c)    a corporation or organisation.

         (2)   However, the following corporations or organisations may be a litigation representative:

                (a)    the NSW Public Trustee and Guardian;

               (b)    the State Trustees of Victoria;

                (c)    the Public Trustee of Queensland;

               (d)    the Public Trustee of Western Australia;

                (e)    the Public Trustee of South Australia;

                (f)    the Public Trustee of Tasmania;

               (g)    the Public Trustee for the Australian Capital Territory;

               (h)    the Public Trustee for the Northern Territory;

                (i)    a trustee company that, under a law of a State or Territory, is authorised to act as a trustee, executor or administrator.

9.63        Appointment of litigation representative by the Court

         (1)   A party or an interested person may apply to the Court for an order appointing a person as a litigation representative.

Note   Interested person, in relation to a person under a legal incapacity, is defined in the Dictionary.

         (2)   A copy of the application must be served on the person under a legal incapacity.

         (3)   The application must be accompanied by an affidavit stating:

                (a)    that the person for whom the appointment is to be made is a person under a legal incapacity and giving details of the nature of the legal incapacity; and

               (b)    that the proposed litigation representative:

                          (i)    has consented, in writing, to the appointment; and

                         (ii)    is a person who, under rule 9.62, may be appointed as a litigation representative.

Note   For service on a person under a legal incapacity, see rule 10.09.

9.64        Consent to be filed

                A litigation representative must not take a step in the proceeding unless the following documents have been filed:

                (a)    the litigation representative’s consent;

               (b)    a certificate, including a statement that the litigation representative has no interest in the proceeding that is adverse to the interest of the person under a legal incapacity, signed by:

                          (i)    if the person is a lawyer — the person; and

                         (ii)    if the person is not a lawyer — the person’s lawyer.

9.65        Removal of litigation representative by the Court

         (1)   The following persons may apply to the Court for an order that the litigation representative be removed:

                (a)    a party to the proceeding;

               (b)    the litigation representative;

                (c)    the person being represented if that person is no longer a person under a legal incapacity;

               (d)    an interested person in relation to a person under a legal incapacity.

         (2)   A person mentioned in paragraph (1) (a), (b) or (d) may apply to the Court for an order that the proceeding be stayed until a replacement litigation representative has been appointed.

9.66        Conduct of proceeding

         (1)   Anything in a proceeding that is required or authorised by these Rules to be done for a person under a legal incapacity by the person may only be done by the person’s litigation representative.

Note   A litigation representative who is defending a proceeding for a person under a legal incapacity may bring a cross-claim under Part 15.

         (2)   If a litigation representative (the first representative) has been appointed for a person under a legal incapacity, no other litigation representative may be appointed for the person unless the first representative dies or is removed.

         (3)   A litigation representative who is not a lawyer must be represented by a lawyer.

9.67        No deemed admissions

                Rule 16.07 does not apply to a person under a legal incapacity.

Note   For deemed admissions, see rule 16.07.

9.68        Discovery and interrogatories

                Parts 20 and 21 apply to a person under a legal incapacity and the person’s litigation representative.

Note   Part 20 deals with discovery and Part 21 deals with interrogatories.

9.69        Payment into Court

                A litigation representative must not:

                (a)    pay money into Court in a proceeding; or

               (b)    other than on condition that the settlement is subject to the Court’s approval — agree to the compromise or settlement of any matter in dispute in the proceeding.

Note   The Court may dispense with compliance with this rule — see rule 1.34.

9.70        Compromise or settlement of matter in proceeding

         (1)   If a litigation representative agrees to the compromise or settlement of any matter in dispute in a proceeding, the litigation representative must apply to the Court for approval of the agreement.

         (2)   If the Court approves the agreement, the agreement is binding on the person by or for whom it was made as if:

                (a)    the person were not under a legal incapacity; and

               (b)    the litigation representative had made the agreement as the person’s agent.

         (3)   The Court may, as a condition of approval, require that any money or other property payable for the benefit of a person under a legal incapacity be dealt with by way of a settlement, or in any other way that the Court considers appropriate.

Note   The Court may give approval subject to conditions — see rule 1.33.

         (4)   If the Court does not approve the agreement, the agreement is not binding on the person under a legal incapacity.

9.71        Application by litigation representative for approval of agreement

         (1)   An application by a litigation representative for approval of an agreement must be made by filing an interlocutory application.

         (2)   The interlocutory application must be accompanied by the following:

                (a)    an affidavit stating the material facts on which the application relies;

               (b)    the agreement that is sought to be approved;

                (c)    an opinion of an independent lawyer that the agreement is in the best interests of the person under a legal incapacity.

Part 10               Service

Division 10.1         Personal service

10.01      Service on individual

                A document that is to be served personally on an individual must be served by leaving the document with the individual.

10.02      Service on corporation

                A document that is to be served personally on a corporation, or on the liquidator or administrator of a corporation, must be served in accordance with section 109X (1) of the Corporations Act 2001.

Note   Section 109X (1) of the Corporations Act 2001 is as follows:

‘(1)   For the purposes of any law, a document may be served on a company by:

(a)    leaving it at, or posting it to, the company’s registered office; or

(b)    delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or

(c)     if a liquidator of the company has been appointed—leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with ASIC; or

(d)    if an administrator of the company has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC.’.

10.03      Service on unincorporated association

                A document that is to be served personally on an unincorporated association must be served at the principal place of business, or principal office, of the association by leaving the document with a person who:

                (a)    is apparently an adult; and

               (b)    appears to be engaged in the service of the association.

10.04      Service on organisation

                A document that is to be served personally on an organisation must be served at the office of the organisation shown in the records of the organisation lodged with Fair Work Australia in accordance with section 233 of the Fair Work (Registered Organisations) Act 2009, by leaving the document with a person who:

                (a)    is apparently an adult; and

               (b)    appears to be engaged in the service of the organisation.

Note   Organisation is defined in the Dictionary.

10.05      Service on partnership

         (1)   A document that is to be served personally on a partnership must be served:

                (a)    on any one or more of the partners; or

               (b)    at a place where the partnership business is carried on, by leaving a copy of the document with a person who:

                          (i)    is apparently an adult; and

                         (ii)    appears to be engaged in the service of the partnership.

         (2)   Service of the document is taken to be service on each partner of the partnership, including any partner who was not in Australia at the time the proceeding was started.

         (3)   If the applicant is aware that a partnership has been dissolved before the proceeding was started, a document must be served on any person:

                (a)    against whom a claim is made in the proceeding; and

               (b)    who the applicant is aware was a partner in the partnership at the time that the cause of action arose.

10.06      Service in a proceeding brought against a person in the person’s business name

                A document that is to be served personally in a proceeding brought against a person in the person’s business name must be served at a place where the business is carried on by leaving the document with:

                (a)    the person; or

               (b)    another person who:

                          (i)    is apparently an adult; and

                         (ii)    appears to be engaged in the service of the business.

10.07      Service in a proceeding under the Patents Act 1990

                In a proceeding brought against a patentee (the respondent) in relation to a cause of action under the Patents Act 1990, a document to be served on the respondent may be served:

                (a)    if the respondent has an address for service under section 221 of the Patents Act 1990, at that address for service;

               (b)    by leaving the document with a person who is apparently an adult.

10.08      Service in a proceeding under the Trade Marks Act 1995

                In a proceeding brought against the owner of a registered trade mark (the respondent) in relation to a cause of action under the Trade Marks Act 1995, a document to be served on the respondent may be served:

                (a)    if the respondent has an address for service under section 215 of the Trade Marks Act 1995, at that address for service;

               (b)    by leaving the document with a person who is apparently an adult.

10.09      Service on person under a legal incapacity

         (1)   If a person under a legal incapacity has a litigation representative, a document that must be served personally on the person must be served on the litigation representative.

         (2)   If the person is under a legal incapacity only because of minority and does not have a litigation representative, the document must be served:

                (a)    if the minor is at least 16 and is not a mentally disabled person:

                          (i)    on the minor; and

                         (ii)    on the minor’s parent or guardian; or

               (b)    if the minor has no parent or guardian:

                          (i)    on a person with whom the minor lives; or

                         (ii)    on a person who is responsible for the care of the minor.

         (3)   If the person under a legal incapacity is a mentally disabled person and does not have a litigation representative, the document must be served:

                (a)    on the mentally disabled person’s guardian; or

               (b)    if the mentally disabled person has no guardian:

                          (i)    on a person with whom the mentally disabled person lives; or

                         (ii)    on a person who is responsible for the care of the mentally disabled person.

         (4)   If the person under a legal incapacity cannot be served in any of the ways mentioned in subrule (2) or (3), a party may apply to the Court for an order that the document be served in some other way or on some other person.

         (5)   The application may be made before or after the document has been given to some other person.

10.10      Personal service on a person under a legal incapacity

         (1)   Despite rule 10.09, the following documents must be served personally on a person under a legal incapacity:

                (a)    if the person is a respondent to the originating application, and an order has been made requiring the person to do or not do an act or thing — the application or order;

               (b)    a subpoena requiring the person to attend before the Court.

         (2)   However, subrule (1) does not apply to an order:

                (a)    to answer interrogatories; or

               (b)    for discovery; or

                (c)    to produce documents for inspection.

Note   Mentally disabled person, minor and person under a legal incapacity are defined in the Dictionary.

10.11      Deemed service of originating application

                Unless an application has been made under rule 13.01, if a respondent files a notice of address for service, defence or affidavit, or appears before the Court in response to an originating application, the originating application is taken to have been served personally on the respondent:

                (a)    on the date on which the first of those events occurred; or

               (b)    if personal service on the respondent is proved on an earlier date — on the earlier date.

10.12      Refusal to accept document served personally

         (1)   If a person refuses to accept a document that is required to be served personally on the person, the document is taken to have been served personally if the person serving the document:

                (a)    puts it down in the individual’s presence; and

               (b)    tells the individual what the document is.

         (2)   It is not necessary to show the original of the document to the person being served.

Rules 10.13–10.20 left blank

Division 10.2         Service other than by personal service

10.21      Identity of person served

                For the purpose of proving service, a statement by a person of the person’s identity, or that the person holds a particular office or position, is evidence of the person’s identity or that the person holds the office or position.

10.22      Acceptance of service by lawyer

         (1)   A lawyer may accept service of an originating application for a respondent if:

                (a)    the lawyer has authority to accept service of an originating application for the respondent; and

               (b)    the lawyer endorses a note on a copy of the document that the lawyer accepts service of the document for the respondent.

         (2)   A document that is endorsed by a lawyer under paragraph (1) (b) is taken to have been served personally:

                (a)    on the date that the endorsement is made; or

               (b)    if personal service on the respondent is proved on an earlier date — on the earlier date.

10.23      Deemed service

                A party may apply to the Court, without notice, for an order that a document is taken to have been served on a person on a date mentioned in the order if:

                (a)    it is not practicable to serve a document on the person in a way required by these Rules; and

               (b)    the party provides evidence that the document has been brought to the attention of the person to be served.

Note   Without notice is defined in the Dictionary.

10.24      Substituted service

                If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:

                (a)    substituting another method of service; or

               (b)    specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

                (c)    specifying that the document is taken to have been served:

                          (i)    on the happening of a specified event; or

                         (ii)    at the end of a specified time.

Note   Without notice is defined in the Dictionary.

10.25      Service by filing

                The filing of a document has effect as service of the document on the person to be served if:

                (a)    personal service of the document is not required; and

               (b)    the person to be served:

                          (i)    has not filed an address for service; or

                         (ii)    does not have a current address for service; and

                (c)    the document was sent to the person’s proper address and there is proof of non‑delivery of the document.

Note   Proper address, for a person to be served, is defined in the Dictionary.

10.26      Service by Court

                An order, notice or other document in a proceeding that is to be given to, or served on, a person by the Court or an officer of the Court may be given or served in any way permitted under rule 10.31.

10.27      Service of interlocutory injunction

                If the Court grants an interlocutory injunction, a party may serve a copy of the Court’s order by sending a copy of it by fax or electronic communication to each party on whom the order is to be served.

10.28      Service under agreement

         (1)   If a respondent in a proceeding has agreed that an originating application or other document in the proceeding may be served on the respondent, or on another person for the respondent, in a way or at a place mentioned in the agreement, the document may be served in accordance with the agreement.

         (2)   If an applicant in a proceeding has agreed that a document in the proceeding may be served on the applicant, or on another person for the applicant, in a way or at a place mentioned in the agreement, the document may be served in accordance with the agreement.

Rules 10.29–10.30 left blank

Division 10.3         Ordinary service

10.31      Ordinary service

                A document that is not required to be served personally may be served in any of the following ways:

                (a)    by serving the document personally, in accordance with Division 10.1;

               (b)    by sending the document by pre‑paid post addressed to the person at the person’s proper address;

                (c)    if the person has filed a notice authorising service by fax — by sending the document to the fax number;

               (d)    if the person has filed a notice authorising service by electronic communication — by sending the document to the email address;

                (e)    at a party’s lawyer’s email address if:

                          (i)    the party is represented by a lawyer; and

                         (ii)    the lawyer has filed a notice of address for service that conforms with rule 11.01.

Note   Proper address, for a person to be served, is defined in the Dictionary.

10.32      Time of service

                A document that is served on a person under rule 10.31 is taken to be served on the person:

                (a)    if the document was sent by pre‑paid post — on the fourth business day after the document was sent; or

               (b)    if the document was sent by fax — on the next business day after the document was sent; or

                (c)    if the document was sent by electronic communication — on the next business day after the document was sent.

Rules 10.33–10.40 left blank

Division 10.4         Service outside Australia

10.41      Definitions for Division 10.4

                In this Division:

convention, for 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, if 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.

Note 1   Originating application is defined in the Dictionary.

Note 2   The Trans-Tasman Proceedings Act provides for service in New Zealand of initiating documents in civil proceedings started in Australian courts. An initiating document includes a document by which a civil proceeding is started in an Australian court. An Australian court includes a federal court. Division 2 of Part 2 of the Trans-Tasman Proceedings Act provides for the manner of service of initiating documents. An applicant in a proceeding in this Court may proceed under that Act rather than this Division.

10.42      When originating application may be served outside Australia

                Subject to rule 10.43, an originating application, or an application under Part 7 of these Rules, may be served on a person in a foreign country in a proceeding that consists of, or includes, any one or more of the kinds of proceeding mentioned in the following table.

Item

Kind of proceeding in which originating application 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 in Australia 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 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 for an order under Division 28.5 in relation to an arbitration under the International Arbitration Act 1974

11

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)

12

Proceeding based on a contravention of an Act that is committed in Australia

13

Proceeding based on a contravention of an Act (wherever occurring) seeking relief in relation to damage suffered wholly or partly in Australia

14

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

15

Proceeding seeking any relief or remedy under an Act, including the Judiciary Act 1903

16

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

17

Proceeding seeking contribution or indemnity in relation to a liability enforceable by a proceeding in the Court

18

Proceeding in which:

   (a)  the person to be served is domiciled or ordinarily resident in Australia; or

  (b)  if the person to be served 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

19

Proceeding in which the person to be served has submitted to the jurisdiction of the Court

20

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

21

Proceeding in which the subject matter, to the extent that it concerns the person to be served, is property in Australia

22

Proceeding seeking the perpetuation of testimony in relation to property in Australia

23

Proceeding seeking an injunction ordering a person to do, or to refrain from doing, anything in Australia (whether or not damages are also sought)

24

 

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

10.43      Application for leave to serve originating application outside Australia

         (1)   Service of an originating application 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 (6); or

                (c)    the person served waives any objection to the service by filing a notice of address for service without also making an application under rule 13.01.

Note   A respondent may apply to set aside an originating application or service of that application — see rule 13.01.

         (2)   A party may apply to the Court for leave to serve an originating application on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country.

         (3)   The application under subrule (2) must be accompanied by an affidavit stating:

                (a)    the name of the foreign country where the person to be served is or is likely to be; and

               (b)    the proposed method of service; and

                (c)    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)   For subrule (2), the party must satisfy the Court that:

                (a)    the Court has jurisdiction in the proceeding; and

               (b)    the proceeding is of a kind mentioned in rule 10.42; and

                (c)    the party has a prima facie case for all or any of the relief claimed in the proceeding.

Note 1   The law of a foreign country may permit service through the diplomatic channel or service by a private agent — see Division 10.5.

Note 2   Rules 10.63 to 10.68 deal with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.

Note 3   The Court may give permission under subrule (4) on conditions — see rule 1.33.

         (5)   A party may apply to the Court for leave to give notice, in a foreign country, of a proceeding in the Court, if giving the notice takes the place of serving the originating application.

         (6)   If an originating application was served on a person in a foreign country without the leave of the Court, a party may apply to the Court for an order confirming the service.

         (7)   For subrule (6), the party must satisfy the Court that:

                (a)    paragraphs (4) (a) to (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)    there is a sufficient explanation for the failure to apply for leave.

10.44      Service of other documents

         (1)   A party may apply to the Court for leave to serve a document filed in or issued by the Court, other than an originating application, on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country.

Note 1   The law of a foreign country may permit service through the diplomatic channel or service by a private agent — see Division 10.5.

Note 2   Rules 10.63 to 10.68 deal with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.

Note 3   The Court may give permission under subrule (4) on conditions — see rule 1.33.

         (2)   An application under subrule (1) must be accompanied by an affidavit that includes the information mentioned in paragraphs 10.43 (3) (a) to (c).

         (3)   If a document, other than an originating application, was served on a person in a foreign country without the leave of the Court, a party may apply to the Court for an order confirming the service.

         (4)   For subrule (3), the party must satisfy the Court 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; and

               (b)    there is a sufficient explanation for the failure to apply for leave.

10.45      Application of other rules

                The other provisions of Part 10 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, to the extent that they are:

                (a)    relevant and consistent with this Division; and

               (b)    consistent 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.

10.46      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 according to the law of the foreign country.

10.47      Proof of service

         (1)   This rule does not apply to a document served in accordance with the Hague Convention.

Note   Rules 10.63 to 10.68 deal 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, a certificate or declaration mentioned in subrule (2):

                (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.

10.48      Deemed service

                A party may apply to the Court without notice for an order that a document is taken to have been served on a person on the date mentioned in the order if:

                (a)    it is not practicable to serve the document on the person in a foreign country in accordance with a convention, the Hague Convention or the law of a foreign country; and

               (b)    the party provides evidence that the document has been brought to the attention of the person to be served.

Note   Without notice is defined in the Dictionary.

10.49      Substituted service

                If service was not successful on a person in a foreign country, in accordance with a convention, the Hague Convention or the law of a foreign country, a party may apply to the Court without notice for an order:

                (a)    substituting another method of service; or

               (b)    specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or

                (c)    specifying that the document is taken to have been served:

                          (i)    on the happening of a specified event; or

                         (ii)    at the end of a specified time.

Note   Without notice is defined in the Dictionary.

Rule 10.50 left blank

Division 10.5         Service through diplomatic channel or by transmission to foreign government

10.51      Documents to be lodged with the Court

                If a party 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);

the party must lodge in the District Registry:

                (c)    a request for service, in accordance with Form 23; and

               (d)    a request for transmission, in accordance with Form 24; and

                (e)    the party’s or the party’s lawyer’s written undertaking, to pay to the Registrar the amount of the expenses incurred by the Court in giving effect to the party’s request; and

                (f)    the number of copies of each document that are required by the relevant conventions to be served; and

               (g)    if necessary, a translation into the foreign country’s official language (including a statement by the translator attesting to the accuracy of the translation) of the following:

                          (i)    the request for transmission mentioned in paragraph (d);

                         (ii)    each document to be served.

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 Division 10.6.

10.52      Order for payment of expenses

                If a party, or a party’s lawyer, gives an undertaking under paragraph 10.51 (e) and 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, the Court may without notice make an order that:

                (a)    the amount of the expenses be paid to the Registrar within a specified period of time; and

               (b)    the proceeding be stayed, to the extent that it concerns the whole or any part of a claim for relief by the party, until the amount of the expenses is paid.

Note   Without notice is defined in the Dictionary.

Rules 10.53–10.60 left blank

Division 10.6         Service under Hague Convention

Note 1   This Division 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 Division provides (in rules 10.63 to 10.68) for service in overseas Convention countries of local judicial documents (documents that relate to proceedings in the Court) and (in rules 10.69 to 10.72) for default judgment in proceedings in the Court after service overseas of such a document. Rules 10.74 to 10.76, on the other hand, deal 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.

10.61      Definitions for Division 10.6

                In this Division:

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 started.

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 rule 10.64 (1).

request for service in this jurisdiction means a request for service in this jurisdiction of a foreign judicial document mentioned in rule 10.73 (1).

this jurisdiction means Australia.

10.62      Provisions of this Division to prevail

                The provisions of this Division prevail to the extent of any inconsistency between those provisions and any other provisions of these Rules.

10.63      Service abroad of local judicial documents — application of rules 10.64 to 10.68

         (1)   Subject to subrule (2), rules 10.64 to 10.68 apply to service in a Convention country of a local judicial document.

         (2)   Rules 10.64 to 10.68 do 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.

10.64      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)    the draft request for service abroad, which must be in accordance with Part 1 of Form 25;

               (b)    the document to be served;

                (c)    a summary of the document to be served, which must be in accordance with Form 26;

               (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 lawyer on the record for the applicant in the proceeding to which the local judicial document relates or, if there is no lawyer on the record for the applicant in the proceeding, 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 rule 10.66 (3); and

                (c)    to give such security for those costs as the Registrar may require.

         (4)   The draft request for service abroad, in accordance with Form 25:

                (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 proceeding 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 paragraph (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 the translator’s qualifications for making the translation.

10.65      How application to be dealt with

         (1)   If satisfied that the application and its accompanying documents comply with rule 10.64, 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 paragraph (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 10.64 (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 10.64, the Registrar must inform the applicant of the respects in which the application or document fails to comply.

10.66      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 proceeding to which the document relates; and

               (b)    must send a copy of the certificate to:

                          (i)    the lawyer on the record for the applicant in the proceeding; or

                         (ii)    if there is no lawyer on the record for the applicant in the proceeding — 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 25; 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 applicant or the applicant’s lawyer who gave the undertaking mentioned in rule 10.64 (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 10.64 (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 10.64 (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.

10.67      Payment of costs

         (1)   On receipt of a notice under rule 10.66 (3) in relation to the costs of service, the applicant or the applicant’s lawyer, 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 applicant or the applicant’s lawyer 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 proceeding 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.

10.68      Evidence of service

                A certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of rule 10.66 (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.

10.69      Default judgment following service abroad of initiating process — application of rules 10.70 to 10.72

                Rules 10.70 to 10.72 apply 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.

10.70      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 proceeding (being a certificate in due form (within the meaning of rule 10.66 (2)), stating that service has been duly effected; and

               (b)    the respondent 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 respondent unless the Court is satisfied that:

                (a)    the initiating process was served on the respondent:

                          (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 respondent or to the respondent’s 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 respondent accepted the document voluntarily; and

               (b)    the initiating process was served in sufficient time to enable the respondent to enter an appearance in the proceeding.

         (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 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 respondent to enter an appearance in the proceeding.

10.71      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 proceeding; or

               (b)    a certificate of service of initiating process has been filed in the proceeding (being a certificate in due form within the meaning of rule 10.66 (2)), stating that service has not been effected;

and the respondent has not appeared or filed a notice of address for service.

         (2)   If this rule applies, default judgment may not be given against the respondent 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 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.

10.72      Setting aside judgment in default of appearance

         (1)   This rule applies if default judgment has been entered against the respondent in proceedings to which this Division applies.

         (2)   If this rule applies, the Court may set aside the judgment on the application of the respondent if it is satisfied that the respondent:

                (a)    without any fault on the respondent’s part, did not have knowledge of the initiating process in sufficient time to defend the proceeding; and

               (b)    has a prima facie defence to the proceeding 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 the judgment was given; or

               (b)    after the expiry of that 12‑month period, within such time after the respondent 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.

10.73      Local service of foreign judicial documents – application of rules 10.74 to 10.76

         (1)   Rules 10.74 to 10.76 apply 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, whether in the first instance or following a referral under rule 10.74; 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 Form 27 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 26;

                (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 the translator’s qualifications for making the translation.

10.74      Certain documents to be referred to Attorney‑General’s Department

                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 10.73; 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, together with a statement of the Registrar’s opinion.

Note   The Attorney-General’s Department 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.

10.75      Service

         (1)   Subject to rule 10.73, 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.

10.76      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 of service stating:

                (a)    the time, day of the week and date 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 stating:

                (a)    the attempts made to serve the document; and

               (b)    why service has not been possible.

         (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 25; or

               (b)    if a form or certificate that substantially corresponds to Part 2 of Form 25 accompanies the request for service, in that accompanying form.

Part 11               Address for service

  

11.01      Address for service — general

         (1)   An address for service for a party must include the address of a place within Australia at which a document in the proceeding may, during ordinary business hours, be left for the party and to which a document in the proceeding may be posted to the party.

         (2)   If a party is represented by a lawyer who has general authority to act for that party, the address for service for the party must be the address of the lawyer.

         (3)   The address for service must contain the information mentioned in rule 2.16.

         (4)   If the party is represented by a lawyer, the party agrees for the party’s lawyer to receive documents at the lawyer’s email address.

         (5)   If the party is not represented by a lawyer but provides an email address, the party agrees to receive documents at the email address.

Note   The parties may agree on how service is to be effected.  For example, the parties may agree that service be at a fax number.

11.02      Address for service — corporations

                A notice of address for service for a corporation must be filed by a lawyer.

Note 1   Division 4.1 deals with lawyers.

Note 2   A corporation must not proceed in the Court other than by a lawyer — see rule 4.01 (2).

Note 3   The Court may dispense with compliance with the Rules — see rule 1.34.

11.03      Address for service — proceeding against person in person’s business name

         (1)   If an originating application is brought against a business name, the person served must file an address for service in the person’s name.

         (2)   A notice of address for service must be accompanied by a statement setting out the name and residential address of any person with whom, at the start of the proceeding or the date specified in the originating application (if any) when the cause of action arose, the person carried on business under the business name.

11.04      Address for service — partnership

         (1)   If an originating application claims that 2 or more persons are liable as partners, a person who is served with the originating application must file a notice of address for service in the person’s name.

         (2)   However, the proceeding continues in the partnership name.

Note   For the filing of a defence in a proceeding against a partnership, see rule 9.45.

11.05      Receivers

                A person who is appointed as a receiver must, within 7 days after the appointment, file a notice of address for service.

Note   Divisions 7.1 and 14.3 relate to receivers.

11.06      When must notice of address for service be filed

                A person who is required to file a notice of address for service in a proceeding must do so before the return date fixed in the originating application and before filing any other document in the proceeding.

11.07      How to file notice of address for service

                A person who is required to file a notice of address for service must do so in accordance with Form 10.

11.08      Service of notice of address for service

                As soon as practicable after a person files a notice of address for service, the person must serve a stamped copy of the notice on each other party to the proceeding.

Note   The stamp of the District Registry will be affixed to the notice of address for service — see paragraph 2.01 (2) (a).

11.09    Change of address for service

                A person may change the person’s address for service in a proceeding by:

                (a)    filing a notice of the change showing the new notice of address for service, in accordance with Form 28; and

               (b)    as soon as reasonably practicable, serving a copy of the new notice on each party to the proceeding.

Part 12               Submitting notices

  

12.01      Submitting notice

         (1)   A party who has been served with an originating application or a notice of appeal who does not want to contest the relief sought in the originating application or the notice of appeal may file a submitting notice, in accordance with Form 29.

Note   Submitting notice is defined in the Dictionary.

         (2)   A submitting notice must:

                (a)    state that the party submits to any order that the Court may make; and

               (b)    state whether the party wants to be heard on the question of costs; and

                (c)    include an address for service; and

               (d)    be filed:

                          (i)    for a party served with an originating application — before the return date; or

                         (ii)    for a party served with a notice of appeal — within 14 days after being served with the notice of appeal.

         (3)   A party who has filed a submitting notice may apply to the Court for leave to withdraw the notice.

         (4)   An application under subrule (3) must be accompanied by an affidavit stating:

                (a)    why the party wants to withdraw the submitting notice; and

               (b)    the party’s intentions in relation to the further conduct of the proceeding.

Part 13               Jurisdiction — setting aside originating application

  

13.01      Setting aside originating application etc

         (1)   A respondent may apply to the Court for an order:

                (a)    setting aside an originating application; or

               (b)    setting aside the service of an originating application on the respondent; or

                (c)    declaring that an originating application has not been duly served on the respondent; or

               (d)    discharging any order giving leave to serve an originating application outside Australia or confirming service of an originating application outside Australia.

Note   Rule 10.43 deals with the procedures for serving originating applications outside of Australia.

         (2)   If an order under paragraph (1) (b) or (c) is sought, the application must be accompanied by an affidavit stating:

                (a)    the date on which the originating application was served on the respondent; and

               (b)    details of the service.

         (3)   A respondent applying for an order under subrule (1) must file the interlocutory application and affidavit at the same time that the respondent files a notice of address for service.

Part 14               Interlocutory orders for preservation of rights and property

Division 14.1         Inspection of property

14.01      Order for inspection etc of property

         (1)   A party may apply to the Court for an order:

                (a)    for any of the following:

                          (i)    inspection of any property;

                         (ii)    taking a sample of any property;

                        (iii)    making an observation of any property;

                        (iv)    trying an experiment on or with any property;

                         (v)    observation of a process;

                        (vi)    copying, transcription or production of a document or other material, data or information (however stored or recorded); or

               (b)    authorising a person to enter land, or do any other act or thing, for the purpose of gaining access to the property.

         (2)   An application under subrule (1) must be accompanied by an affidavit stating the following:

                (a)    the property to be inspected, sampled, observed or subject to experiment;

               (b)    the process to be observed;

                (c)    the document, material, data or information to be copied or transcribed;

               (d)    why the order is necessary;

                (e)    the access required for entry on to the land or for doing any other act or thing.

         (3)   In this rule:

property includes land, a document or any other thing, whether or not the land, document or other thing is in the possession, custody or power of a party to the proceeding.

14.02      Service of application

                An application for an order under rule 14.01 must be served personally on each other party.

Note   Division 10.1 deals with personal service.

14.03      View by Court

                A party may apply to the Court to have the Court inspect any place, process or other thing that relates to a matter in question.

Rules 14.04–14.10 left blank

Division 14.2         Preservation etc of property

14.11      Preservation of property

         (1)   A party may apply to the Court for an order:

                (a)    for the detention, custody, preservation or inspection of property; or

               (b)    authorising a person to do any act or thing for the purpose of giving effect to an order

Note   A party may apply in a proceeding concerning property, or in a proceeding in which any question may arise as to any property.

         (2)   In a proceeding about the right of any party to a fund, a party may apply for an order that the fund be paid into Court or otherwise secured.

Note   Division 14.1 deals with the inspection of property.

14.12      Disposal of personal property

                A party may apply to the Court for an order for the sale or disposal of personal property, or any part of the property, if:

                (a)    the proceeding concerns personal property; and

               (b)    the property is perishable or is of a kind that requires that it be sold or disposed of before the hearing of the proceeding.

14.13      Interim distribution of property or income from property

                If a proceeding concerns property, a party may apply to the Court for an order that:

                (a)    the property be conveyed, transferred or delivered to a person having an interest in the property; or

               (b)    the income, or a part of the income, from the property be paid, during a specified period, to a person having an interest in the income.

Note   In considering whether to make an order under rule 14.13, the Court will take into account whether an order would defeat a party’s claim or defence.

14.14      Payment before determination of all interested persons

                If 2 or more persons are entitled to share an amount in a fund, any of the persons may apply to the Court for an order for the immediate payment to the person of the amount of the person’s share.

Rules 14.15–14.20 left blank

Division 14.3         Receivers

14.21      Application to appoint receiver

                A party may apply to the Court for an order:

                (a)    appointing a receiver to have the powers of a receiver and manager; and

               (b)    requiring the person appointed as receiver to file a guarantee; and

                (c)    providing that the person’s appointment does not take effect until the guarantee is filed.

14.22      Guarantee

                A guarantee mentioned in rule 14.21 must:

                (a)    be in accordance with Form 30; and

               (b)    be approved by the Court.

Note 1   The Court may order that any guarantee filed under this rule be discharged.

Note 2   A receiver must file a notice of address for service — see rule 11.05.

14.23      Powers

                A receiver may apply to the Court for authority to do any act or thing in a proceeding in the receiver’s name or in the name of another party.       

14.24      Remuneration

                A receiver may apply to the Court to have the Court fix the receiver’s remuneration.

14.25      Accounts

         (1)   A receiver must file accounts at the times ordered by the Court.

         (2)   On the date on which the receiver files an account, the receiver must serve a copy of the account, endorsed with the time and the return date for the examination of the account, on:

                (a)    each party who has an address for service in the proceeding; and

               (b)    any interested person.

Note   The Registrar will fix a return date and a place for hearing on the account.

         (3)   The receiver must attend the appointment for examination of an account.

14.26      Default

         (1)   If a receiver fails to pay into Court an amount due by the receiver, a party or an interested person may apply to the Court for an order for:

                (a)    the discharge of the receiver; and

               (b)    the appointment of another person as receiver; and

                (c)    the payment of costs.

         (2)   If a receiver fails to pay into Court an amount due by the receiver, a party or an interested person may apply to the Court for an order that the receiver be charged interest on the unpaid amount.

         (3)   For subrule (2) the rate of interest is the cash rate of interest set by the Reserve Bank of Australia from time to time during the period of the receiver’s failure, plus 4%.

Note 1   Interested person is defined in the Dictionary.

Note 2   This rule is in addition to the Court’s power to punish a person for contempt.

14.27      Death of receiver

         (1)   If a receiver dies, a party or an interested person affected by the receiver’s death may apply to the Court for an order for:

                (a)    the filing and examination of accounts prepared by the deceased receiver’s representative; or

               (b)    the payment into Court of any amount shown to be due from the receiver; or

                (c)    the delivery of any property that is subject to the receivership.

         (2)   The application must be served on the deceased receiver’s representative personally.

Note   See Part 10 for rules for service.

Part 15               Cross-claims and third party claims

Division 15.1         Making cross-claim

15.01      Cross–claim by respondent

                A respondent may make a cross-claim in a proceeding:

                (a)    against an applicant — for any relief to which the respondent would be entitled against the applicant in a separate proceeding; or

               (b)    against any other respondent or person — for any relief, including for contribution or indemnity, that is related to the subject of the proceeding.

Note   Cross-claim, cross-claimant and cross-respondent are defined in the Dictionary.

15.02      Starting cross-claim

         (1)   A respondent who wants to start a cross-claim against any party or person must file a notice of cross-claim, in accordance with Form 31.

         (2)   A notice of cross-claim must include the following:

                (a)    the cross-claimant’s name and address;

               (b)    the cross-claimant’s address for service that is the same as in the principal proceeding;

                (c)    if a cross-claimant sues in a representative capacity — a statement of that fact.

Note 1   Principal proceeding is defined in the Dictionary.

Note 2   A respondent who starts a cross‑claim is the cross‑claimant. The party or person against whom the cross‑claim is brought is the cross‑respondent.

Note 3   The Registrar will fix a return date and place for hearing and endorse those details on the notice of cross‑claim.

15.03      Title of cross-claim and subsequent documents

                All documents filed in a cross‑claim must have the same title as the notice of cross‑claim that started the cross‑claim.

15.04      Time for bringing cross-claim

                A notice of cross‑claim must be filed at the same time as the filing of:

                (a)    the respondent’s defence; or

               (b)    the respondent’s affidavit in reply to the applicant’s affidavit in the principal proceeding.

15.05      Application for extension of time to file cross-claim

         (1)   A respondent who wants to file a notice of cross‑claim, but has not complied with rule 15.04, must apply to the Court for leave to file a notice of cross‑claim.

         (2)   An application under subrule (1) must be accompanied by:

                (a)    an affidavit stating:

                          (i)    briefly but specifically, the nature of the cross‑claim and its relationship to the subject matter of the proceeding; and

                         (ii)    why the notice of cross‑claim was not filed in accordance with rule 15.04; and

               (b)    a draft notice of cross‑claim that complies with rule 15.02.

15.06      Cross–claim to be accompanied by statement of cross-claim or affidavit

         (1)   A notice of cross‑claim must be accompanied by:

                (a)    if the originating application was accompanied by a statement of claim — a statement of cross‑claim; or

               (b)    if the originating application was accompanied by an affidavit — an affidavit; or

                (c)    if an order has been made in the principal proceeding that the principal proceeding continue on pleadings — a statement of cross‑claim.

Note 1   In some cases in Chapter 3, the rules prescribe the documents that must accompany an originating application.

Note 2   A cross-claimant’s statement of cross-claim must comply with rule 16.02.

         (2)   An affidavit mentioned in paragraph (1) (b) must state the material facts on which the cross-claimant relies that are necessary to give the cross-respondent fair notice of the case to be made against the cross-respondent at trial.

Note   Division 16.1 provides for the content of a statement of claim.

15.07      Cross–claim to state relief claimed

         (1)   A notice of cross‑claim must state:

                (a)    the relief claimed; and

               (b)    if the relief is claimed under a provision of an Act — the Act and the provision under which the relief is claimed.

         (2)   A notice of cross‑claim claiming relief of the kind mentioned in column 2 of following table must state the details mentioned in column 3 of the table.

Item

Relief sought

Details

1

Interlocutory relief

The interlocutory order sought

2

An injunction

The order sought

3

A declaration

The declaration sought

4

Exemplary damages

The claim for exemplary damages

         (3)   A notice of cross‑claim need not include a claim for costs.

15.08      Service of notice of cross-claim on cross‑respondent

         (1)   A cross‑claimant must, as soon as reasonably practicable, serve a copy of the notice of cross‑claim on each cross‑respondent who has an address for service.

         (2)   If a cross‑respondent has not filed a notice of address for service, the notice of cross‑claim must be served personally.

         (3)   Rule 10.25 does not apply to the service of a notice of cross‑claim.

Note   Rule 10.25 provides for filing to have effect as service in certain circumstances.

15.09      Service of pleadings and documents

         (1)   If a person has been made a cross‑respondent to the proceeding by the filing of a notice of cross‑claim, the person:

                (a)    must file a notice of address for service; and

               (b)    may file a notice, in accordance with Form 32, requiring the cross‑claimant to serve all or any of the pleadings or documents filed in the proceeding before the filing of the cross‑claim.

         (2)   A cross‑claimant who has been served with a notice under subrule (1) must, within 3 days after service of the notice on the cross-claimant, serve on the cross‑respondent issuing the notice the pleadings and documents mentioned in the notice.

15.10      Conduct of proceeding after cross-claim is filed

         (1)   To the extent practicable and not inconsistent with this Part:

                (a)    the parties must conduct a cross‑claim in the same way as the principal proceeding; and

               (b)    these Rules apply to the cross‑claim in the same way as they apply to the principal proceeding; and

                (c)    the trial or a hearing, or any other step, in relation to the cross‑claim is to be carried out at the same time as the trial or hearing, or any other step, in relation to the originating application.

         (2)   For the purpose of giving effect to this rule:

                (a)    a cross‑claimant is to be treated as an applicant; and

               (b)    a cross‑respondent is to be treated as a respondent.

15.11      Separate proceeding in relation to cross-claim

                A cross‑claim may proceed even if:

                (a)    an order has been made and entered in the principal proceeding or any other cross‑claim in the proceeding; or

               (b)    the principal proceeding or any other cross‑claim has been stayed, dismissed or discontinued.

15.12      Cross‑claim for contribution or indemnity

                If a cross-claimant makes a cross-claim for contribution or indemnity against another party or person and an order for contribution is made, the order must not be enforced until any order for the applicant against that cross-claimant has been satisfied.

15.13      Hearings in relation to cross-claims

                A party to a cross-claim may apply to the Court for an order:

                (a)    that any claim, question or issue arising in the cross‑claim be tried in accordance with an order of the Court; or

               (b)    permitting a cross‑respondent to defend the claim made in the principal proceeding or any other cross‑claim in the proceeding, either alone or with another party; or

                (c)    permitting a cross‑respondent to appear at the hearing of the principal proceeding or any other cross‑claim in the proceeding, and to participate in the hearing as the Court considers appropriate; or

               (d)    determining the extent to which the cross‑claimant, and a cross‑respondent, are to be bound as between each other by an order or a decision made in relation to the principal proceeding or any other cross‑claim in the proceeding; or

                (e)    for the hearing and determination of the principal proceeding and the cross‑claim; or

                (f)    dismissing the cross‑claim.

15.14      Co-cross-respondents

                If a cross‑claimant claims relief against 2 or more cross‑respondents, and requires any cross‑respondent to give discovery under Part 20, the cross‑respondent must serve the cross‑respondent’s list of documents and affidavit on the cross‑claimant and on each other cross-respondent who has filed a defence.

Division 15.2         Amendment of cross-claim

15.15      Amendment generally

         (1)   A cross‑claimant may apply to the Court for leave to amend a notice of cross-claim for any reason, including:

                (a)    to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the cross-claim; or

               (b)    to avoid the multiplicity of proceedings; or

                (c)    to correct a mistake in the name of a party to the proceeding; or

               (d)    to correct the identity of a party to the proceeding; or

                (e)    to change the capacity in which the party is suing in the proceeding, if the changed capacity is one that the party had when the proceeding was started, or has acquired since that time; or

                (f)    to substitute a person for a party to the proceeding; or

               (g)    to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:

                          (i)    out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or

                         (ii)    in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.

Note   For paragraph (1) (b) and the avoidance of multiplicity of proceedings, see section 22 of the Act.

         (2)   A cross-claimant may apply to the Court for leave to amend a notice of cross-claim in accordance with paragraph (1) (c), (d) or (e) or subparagraph (g) (i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started.

         (3)   However, a cross-claimant must not apply to amend a notice of cross-claim in accordance with subparagraph (1) (g) (ii) after the time within which any statute that limits the time within which a proceeding may be started has expired.

Note 1   Cross claim and cross-claimant are defined in the Dictionary.

Note 2   For the Court’s power to make rules amending a document, see section 59 (2B) of the Act.

Note 3   Rule 9.05 deals with joinder of parties by court order.

15.16      Date on which amendment takes effect

                If a notice of cross-claim is amended with the effect that another person is substituted as a party to the proceeding, the cross-claim is to be taken to have started for that person on the date on which the notice of cross-claim is amended.

15.17      Procedure for making amendment

         (1)   A cross-claimant given leave to amend a cross-claim must:

                (a)    make the alterations on the notice of cross-claim; and

               (b)    write on the notice of cross-claim the following information:

                          (i)    the date on which the amendment is made;

                         (ii)    the date on which the order permitting the amendment was made.

         (2)   If the amendments to the notice of cross-claim are so numerous or lengthy to make it difficult to read, the cross-claimant must file an amended notice of cross-claim that:

                (a)    incorporates and distinguishes the amendments; and

               (b)    is marked with the information mentioned in subrule (1).

15.18      Time for amending notice of cross-claim under Court order

                An order that a cross-claimant be permitted to amend a notice of cross-claim ceases to have effect unless the cross-claimant amends the notice of cross-claim in accordance with the order within:

                (a)    the period specified in the order; or

               (b)    if no period is specified in the order — 14 days after the date on which the order permitting the amendment was made.

Note   If the Court permits a cross-claimant to amend a notice of cross-claim, the Court may also make orders about the procedure for amending the cross-claim and serving the notice of cross-claim.

15.19      Service of amended cross-claim

                If a notice of cross-claim is amended after it has been served, the cross-claimant who made the amendment must, as soon as practicable after the amendment is made, serve a copy of the amended notice of cross-claim on the parties on whom the notice of cross-claim was served.

Note   The Court may dispense with service of the amended document.

Part 16               Pleadings

Division 16.1         General

16.01      Pleading to include name of person who prepared it

                A pleading must:

                (a)    state the name of the person who prepared the pleading; and

               (b)    include a statement by the person that the person prepared the pleading; and

                (c)    if prepared by a lawyer — include a certificate signed by the lawyer that any factual and legal material available to the lawyer provides a proper basis for:

                          (i)    each allegation in the pleading; and

                         (ii)    each denial in the pleading; and

                        (iii)    each non-admission in the pleading.

16.02      Content of pleadings — general

         (1)   A pleading must:

                (a)    be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and

               (b)    be as brief as the nature of the case permits; and

                (c)    identify the issues that the party wants the Court to resolve; and

               (d)    state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and

                (e)    state the provisions of any statute relied on; and

                (f)    state the specific relief sought or claimed.

         (2)   A pleading must not:

                (a)    contain any scandalous material; or

               (b)    contain any frivolous or vexatious material; or

                (c)    be evasive or ambiguous; or

               (d)    be likely to cause prejudice, embarrassment or delay in the proceeding; or

                (e)    fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

                (f)    otherwise be an abuse of the process of the Court.

         (3)   A pleading may raise a point of law.

         (4)   A party is not entitled to seek any additional relief to the relief that is claimed in the originating application.

         (5)   A party may plead a fact or matter that has occurred or arisen since the proceeding started.

16.03      Pleading of facts

         (1)   A party must plead a fact if:

                (a)    it is necessary to plead it to meet an express denial of the fact pleaded by another party; or

               (b)    failure to plead the fact may take another party by surprise.

         (2)   However, a party need not plead a fact if the burden of proving the fact does not lie on that party.

16.04      References to documents or spoken words

         (1)   A pleading that refers to a document or spoken words need only state the effect of the document or words without including the terms of the document or the words themselves.

         (2)   However, if the words are material to the pleading, the pleading must include the words.

16.05      Conditions precedent

         (1)   A party need not state in a pleading that a condition precedent to the party’s right of action has been satisfied.

         (2)   However, a party who wants to deny that a condition precedent has been satisfied must expressly plead the denial.

16.06      Inconsistent allegations or claims

                A party must not plead inconsistent allegations of fact or inconsistent grounds or claims except as alternatives.

16.07      Admissions, denials and deemed admissions

         (1)   A party pleading to an allegation of fact in another party’s pleading must specifically admit or deny every allegation of fact in the pleading.

         (2)   Allegations that are not specifically denied are taken to be admitted.

         (3)   However, a party may state that the party does not know and therefore cannot admit a particular fact.

         (4)   If a party makes a statement mentioned in subrule (3), the particular fact is taken to be denied.

Note   This rule requires a party to address each material fact pleaded in an opposing party’s pleading. A general denial or an evasive answer will not be sufficient.

16.08      Matters that must be expressly pleaded

                In a pleading subsequent to a statement of claim, a party must expressly plead a matter of fact or point of law that:

                (a)    raises an issue not arising out of the earlier pleading; or

               (b)    if not expressly pleaded, might take another party by surprise if later pleaded; or

                (c)    the party alleges makes another party’s claim or defence not maintainable.

16.09      Defence of tender before start of proceeding

                A respondent cannot plead the defence of tender before the start of the proceeding unless the respondent has made an offer to pay the money, in accordance with Part 25.

16.10      Defence claiming set‑off

                A respondent who relies on a claim to an amount of money as a defence to the whole or part of an applicant’s claim may include the claim in the respondent’s defence by way of set off against the applicant’s claim, whether or not the respondent also cross-claims for the money.

16.11      Joinder of issue

         (1)   If no reply to a defence is filed, a joinder of issue is implied in relation to any allegation of fact in the defence and each allegation of fact is taken to be denied.

         (2)   If, in a reply, a party admits, or expressly pleads to an allegation of fact, a joinder of issue operates as a denial of any other allegation of fact in the pleading.

Note   A joinder of issues means that the fact alleged in the pleading is taken to be denied. Joinder of issue only relates to any pleading subsequent to a defence.

16.12      Close of pleadings

         (1)   As between an applicant and a respondent, the pleadings close at the end of the latest of the times fixed by these Rules for filing a defence or reply, or other pleading between those parties.

         (2)   The pleadings close under subrule (1) even if a request or order for particulars has not been complied with.

Rules 16.13–16.20 left blank

Division 16.2         Striking out pleadings

16.21      Application to strike out pleadings

         (1)   A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:

                (a)    contains scandalous material; or

               (b)    contains frivolous or vexatious material; or

                (c)    is evasive or ambiguous; or

               (d)    is likely to cause prejudice, embarrassment or delay in the proceeding; or

                (e)    fails to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or

                (f)    is otherwise an abuse of the process of the Court.

         (2)   A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1) (a), (b) or (c) or is otherwise an abuse of the process of the Court.

Rules 16.22–16.30 left blank

Division 16.3         Progress of pleadings

16.31      Application of Division 16.3

                This Division applies if a proceeding is started by an originating application supported by a statement of claim or the Court has ordered that the proceeding continues on pleadings.

16.32      Defence to application

                A respondent must file a defence, in accordance with Form 33, within 28 days after service of the statement of claim.

16.33      Reply

                If a respondent files a defence and the applicant wants to plead a matter of fact or point of law of the kind mentioned in rule 16.08, the applicant must file a reply, in accordance with Form 34, within 14 days after being served with the defence.

Rules 16.34–16.40 left blank

Division 16.4         Particulars

16.41      General

         (1)   A party must state in a pleading, or in a document filed and served with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party.

Note   See rule 16.45.

         (2)   Nothing in rules 16.42 to 16.45 is intended to limit subrule (1).

Note 1   The object of particulars is to limit the generality of the pleadings by:

(a)   informing an opposing party of the nature of the case the party has to meet; and

(b)   preventing an opposing party being taken by surprise at the trial; and

(c)   enabling the opposing party to collect whatever evidence is necessary and available.

Note 2   The function of particulars is not to fill a gap in a pleading by providing the material facts that the pleading must contain.

Note 3   A party does not plead to the opposite party’s particulars.

Note 4   Particulars should, if they are necessary, be contained in the pleading but they may be separately stated if sought by the opposite party or ordered by the Court.

16.42      Fraud, misrepresentation etc

                A party who pleads fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence must state in the pleading particulars of the facts on which the party relies.

16.43      Conditions of mind

         (1)   A party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.

         (2)   If a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge.

         (3)   In this rule:

condition of mind, for a party, means:

                (a)    knowledge; and

               (b)    any disorder or disability of the party’s mind; and

                (c)    any fraudulent intention of the party.

16.44      Damages and exemplary damages

         (1)   A party who claims damages that includes money that the party has paid, or is liable to pay, must state in a pleading the amount of the money paid or liable to be paid.

         (2)   If the party claims exemplary damages, the pleading must also state particulars of the facts on which the claim is based.

16.45      Application for order for particulars

         (1)   If a pleading does not give a party fair notice of the case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of the party’s case, the party may apply to the Court for an order that the party who filed the pleading serve on the party:

                (a)    particulars of the claim, defence or other matter stated in the pleading; or

               (b)    a statement of the nature of the case relied on; or

                (c)    if there is a claim for damages — particulars of the damages claimed.

         (2)   An application under subrule (1) may be made only if:

                (a)    the particulars in the pleading are inadequate; and

               (b)    the party seeking the order could not conduct the party’s case without further particulars.

         (3)   A respondent who applies to the Court for an order under subrule (1) before filing the respondent’s defence must satisfy the Court that an order is necessary or desirable to enable the respondent to plead.

Note   The intent of the pleading rules is that a party should include all material facts in its pleadings as initially filed so that there is no unfairness to another party by any lack of particularity. If the party has not done so, the Court may at trial refuse to allow the party to present a case that is outside the terms of their pleading.

Rules 16.46–16.50 left blank

Division 16.5         Amendment of pleadings

16.51      Amendment without needing the leave of the Court

         (1)   A party may amend a pleading once, at any time before the pleadings close, without the leave of the Court.

         (2)   However, a party may not amend a pleading if the pleading has previously been amended in accordance with the leave of the Court.

         (3)   A party may further amend a pleading at any time before the pleadings close if each other party consents to the amendment.

         (4)   An amendment may be made to plead a fact or matter that has occurred or arisen since the proceeding started.

Note 1   The object of this rule is to ensure that all necessary amendments may be made to enable the real questions between the parties to be decided and to avoid multiplicity of proceedings.

Note 2   For when the pleadings close, see rule 16.12.

16.52      Disallowance of amendment of pleading

         (1)   If a party amends a pleading under rule 16.51 (1), another party may apply to the Court for an order disallowing the amendment.

         (2)   If a party purports to amend a pleading under rule 16.51 (3) without obtaining the consent of another party, any other party may apply to the Court for an order disallowing the amendment.

         (3)   A party applying for an order under subrule (1) or (2) must apply by interlocutory application within 14 days after the date on which the amended pleading was served on the party.

Note   The Court will disallow the amendment if the Court is satisfied that it would not have given leave on the date on which the amendment was made.

16.53      Application for leave to amend

                Unless rule 16.51 applies, a party must apply for the leave of the Court to amend a pleading.

16.54      Date on which amendment takes effect

                An amendment of a pleading that is made under rule 16.51 takes effect on the date the amendment is made.

16.55      Consequential amendment of defence

         (1)   The respondent may amend the defence if:

                (a)    an applicant amends the statement of claim; and

               (b)    the respondent has filed a defence before being served with a copy of the amended statement of claim.

         (2)   The amended defence must identify the statement of claim to which it relates.

         (3)   The right to amend the defence under subrule (1) is in addition to the right to amend a pleading under rule 16.51.

         (4)   The respondent must file an amended defence within 28 days after the respondent is served with a copy of the amended statement of claim.

16.56      Consequential amendment of reply

         (1)   The applicant may amend the reply if:

                (a)    a respondent amends the defence; and

               (b)    the applicant has filed a reply before being served with a copy of the amended defence.

         (2)   The amended reply must identify the defence to which it relates.

         (3)   The right to amend the reply under subrule (1) is in addition to the right to amend a pleading under rule 16.51.

         (4)   The applicant must file an amended reply within 14 days after the applicant is served with a copy of the amended defence.

Note   For when an amended reply must be filed, see rule 16.58.

16.57      Implied joinder of issue after amendment

         (1)   If a party does not amend a defence or reply when entitled to do so under rules 16.55 or 16.56, the party’s existing defence or reply operates as a pleading in answer to the other party’s amended pleading.

         (2)   Rule 16.11 does not apply to the pleadings but, if no further pleading between the parties is filed, there is taken to be, at the close of pleadings, an implied joinder of issue in relation to the second pleading.

16.58      Time for amending pleading under Court order

                An order that a party be permitted to amend a pleading ceases to have effect unless the party amends the pleading in accordance with the order within:

                (a)    the period specified in the order; or

               (b)    if no period is specified in the order — 14 days after the date of the order.

Note   If the Court permits a party to amend a pleading, the Court may also make orders about the procedure for amending the pleading and serving the amended pleading.

16.59      Procedure for making amendment to pleading

         (1)   A party entitled to amend a pleading without the leave of the Court, or a party who has been given leave to amend a pleading, must:

                (a)    make the alterations on the pleading; and

               (b)    write on the pleading the following information:

                          (i)    the date on which the amendment is made;

                         (ii)    the date on which the order permitting the amendment was made.

         (2)   If the amendments to the pleading are so numerous or lengthy to make it difficult to read, the applicant must file an amended pleading that:

                (a)    incorporates and distinguishes the amendments; and

               (b)    is marked with the information mentioned in subrule (1).

16.60      Service of amendment

                If a pleading is amended after it has been served, the party who made the amendment must, as soon as reasonably practicable, serve a copy of the revised pleading on the parties on whom the previous pleading was served.

Part 17               Interlocutory applications

  

17.01      Interlocutory application

         (1)   A party who wants to apply for an order in a proceeding that has already started must file an interlocutory application, in accordance with Form 35, that must:

                (a)    state, briefly but specifically, each order that is sought; and

               (b)    if appropriate, be accompanied by an affidavit.

         (2)   The party filing the interlocutory application must serve the interlocutory application and any accompanying affidavit on any other party at least 3 days before the date fixed for the hearing.

         (3)   However, a party may make an oral application for an interlocutory order at a hearing.

Example

If a party is seeking to have a proceeding dismissed as disclosing no cause of action, the application should be made by interlocutory application.

Note 1   Interlocutory application is defined in the Dictionary.

Note 2   File is defined in the Dictionary as meaning file and serve.

Note 3   On the filing of an interlocutory application, the Registrar will fix the return date and place for hearing and endorse those details on the interlocutory application for service.

17.02      Reliance on correspondence or undisputed documents

         (1)   An interlocutory application need not be accompanied by an affidavit if a party (the first party) wants to rely on correspondence or other documents, the authenticity of which is not in dispute.

         (2)   However:

                (a)    the first party must provide a list of the correspondence or other documents to each other party; and

               (b)    each other party must notify the first party of any further documents that should be added to the list; and

                (c)    the first party must file the documents mentioned in paragraphs (a) and (b); and

               (d)    if the documents mentioned in paragraphs (a) and (b) number more than 6 documents, the documents must be indexed and paginated.

17.03      Service on others

                A party may apply to the Court for an order that the interlocutory application be served:

                (a)    on a party who has not filed a notice of address for service; and

               (b)    on a person who is not then a party.

17.04      Hearing and determination of interlocutory application — absence of party

                An interlocutory application may be heard and determined in the absence of a party if:

                (a)    service of the interlocutory application on that party is not required; or

               (b)    service has been effected but the party does not appear; or

                (c)    the Court has dispensed with service.

Part 18               Interpleader proceedings

Division 18.1         Stakeholder’s interpleader

18.01      Application for relief by way of interpleader

                A person (the stakeholder) may apply to the Court for relief by way of interpleader if:

                (a)    the stakeholder is liable for a debt or personal property in the stakeholder’s possession (the property in dispute); and

               (b)    the stakeholder:

                          (i)    does not know the identity of the person to whom the property in dispute is owed or belongs; or

                         (ii)    has received competing claims about the property in dispute; or

                        (iii)    expects to be sued in the Court for the property in dispute by 2 or more persons making adverse claims.

Note   Interpleader is a special procedure available to a person who is faced with 2 or more claims about the same debt or personal property.  The procedure enables the competing claimants to litigate their difference while the stakeholder abides by the result.

18.02      How application to be made

         (1)   An application for relief by way of interpleader must be made:

                (a)    if a proceeding has been started against the stakeholder in relation to the property in dispute — by filing an interlocutory application in the proceeding; or

               (b)    if paragraph (a) does not apply — by filing an originating application, joining each claimant as a respondent.

         (2)   If an application is made under paragraph (1) (a), the interlocutory application must be served:

                (a)    on each party to the proceeding who claims any interest in the property in dispute; and

               (b)    personally on each claimant who is not a party to the proceeding.

18.03      Orders that may be sought

         (1)   A stakeholder may, in an application for relief by way of interpleader, apply for:

                (a)    if a proceeding has been started against the stakeholder in relation to the property in dispute — an order that any claimant be added as a respondent in that proceeding in addition to, or in substitution for, the stakeholder; or

               (b)    an order that the stakeholder pay or transfer part or all of the property in dispute into Court or otherwise to dispose of part or all of the property in dispute; or

                (c)    an order for the sale of part or all of the property in dispute and for the application of the proceeds of sale.

         (2)   A party may apply to the Court for an order determining any or all questions of fact or law, in which the party is interested, arising on the application.

18.04      Default by claimant

         (1)   A stakeholder may apply to the Court for an order that the claimant and those claiming under the claimant be barred from starting or continuing a proceeding against the stakeholder and those claiming under the stakeholder if:

                (a)    a claimant has been served with an application for relief by way of interpleader and does not appear at the hearing; or

               (b)    a claimant does not comply with an order made on the application.

         (2)   An order under subrule (1) does not affect the claimants’ rights amongst themselves.

18.05      Neutrality of stakeholder

                If a stakeholder applies for relief by way of interpleader, the Court will dismiss the application unless the Court is satisfied that the stakeholder:

                (a)    claims no interest in the property in dispute except for charges or costs; and

               (b)    has not colluded with any claimant.

Note   This rule does not affect the Court’s power to dismiss the application or to pronounce judgment against the stakeholder for other reasons.

18.06      Order in several proceedings

         (1)   A stakeholder may apply to the Court for orders in any or all of several proceedings if:

                (a)    an application for relief by way of interpleader is made; and

               (b)    2 or more of the proceedings are pending in the Court for or in relation to part or all of the property in dispute.

         (2)   An order under subrule (1) is binding on each party in the proceeding in which it is made.

Rules 18.07–18.10 left blank

Division 18.2         Sheriff’s interpleader

Note   The Sheriff is responsible for the service and execution of all processes of the Court directed to the Sheriff — see section 18P of the Act.

18.11      Notice of claim

         (1)   If a Sheriff takes, or intends to take, any personal property in execution under process, a person making a claim for the property, or the proceeds or value of the property, may give notice of a claim to the Sheriff, in accordance with Form 36.

         (2)   A notice of claim given under this rule must:

                (a)    state the description of the claimant; and

               (b)    specify the claim; and

                (c)    state an address for service.

Note   Description is defined in the Dictionary.

         (3)   A person entitled to give notice of a claim under subrule (1) must do so as soon as practicable after having knowledge of the facts.

         (4)   However, the Sheriff may apply to the Court for an order restraining a person starting or continuing a proceeding in any Court against the Sheriff for an act or thing done by the Sheriff in execution of the process.

         (5)   An application under subrule (4) must be made:

                (a)    if a proceeding has been started in the Court against the Sheriff — by filing an interlocutory application in the proceeding; or

               (b)    if paragraph (a) does not apply — by filing an interlocutory application in the proceeding in which the process is issued.

         (6)   The Sheriff must serve a copy of the application personally on the person against whom the order is sought.

18.12      Notice of claim to be served on execution creditor

                If the Sheriff is given a notice of claim, the Sheriff must serve a copy of the notice on the execution creditor.

18.13      Admission of claim by execution creditor

         (1)   An execution creditor served with a notice of claim who wants to admit the claim must serve the Sheriff with a notice of admission, in accordance with Form 37 (a notice of admission).

         (2)   If the execution creditor serves a notice of admission, the execution creditor is not liable to the Sheriff for any fees or expenses incurred by the Sheriff under the process after the notice is served.

         (3)   On being served with a notice of admission, the Sheriff must withdraw from possession of the property claimed.

         (4)   However, the Sheriff may apply to the Court for an order that the person whose claim is admitted be restrained from starting or continuing any proceeding in any Court against the Sheriff for an act or thing done by the Sheriff in execution of the processes.

         (5)   An application under subrule (4) must be made:

                (a)    if a proceeding has been started in the Court against the Sheriff — by filing an interlocutory application in the proceeding; or

               (b)    if paragraph (a) does not apply — by filing an interlocutory application in the proceeding in which the process is issued.

18.14      Application by Sheriff for interpleader

         (1)   The Sheriff may apply to the Court for relief by way of interpleader if:

                (a)    the Sheriff has served a copy of a notice of claim on the execution creditor; and

               (b)    the execution creditor has not, within 4 days after service of the notice, served on the Sheriff a notice of admission; and

                (c)    the claim has not been withdrawn.

         (2)   An application by the Sheriff under this rule must be made by filing an interlocutory application in the proceeding in which the process is issued.

         (3)   The Sheriff must serve the interlocutory application on each party to the proceeding who claims an interest in the property in dispute and on each claimant.

Note   The Court may require the Sheriff to satisfy the Court:

(a)   that the Sheriff claims no interest in the property in dispute except for charges or costs;

(b)   that the Sheriff has not colluded with any claimant.

Part 19               Security for costs

  

19.01      Application for an order for security for costs

         (1)   A respondent may apply to the Court for an order:

                (a)    that an applicant give security for costs and for the manner, time and terms for the giving of the security; and

               (b)    that the applicant’s proceeding be stayed until security is given; and

                (c)    that if the applicant fails to comply with the order to provide security within the time specified in the order, the proceeding be stayed or dismissed.

         (2)   An application under subrule (1) must be accompanied by an affidavit stating the facts on which the order for security for costs is sought.

19.02      Matters to be addressed by the respondent

                The respondent’s affidavit should state the following:

                (a)    whether there is reason to believe that the applicant will be unable to pay the respondent’s costs if so ordered;

               (b)    whether the applicant is ordinarily resident outside Australia;

                (c)    whether the applicant is suing for someone else’s benefit;

               (d)    whether the applicant is impecunious;

                (e)    any other relevant matter.

Note   Section 56 of the Act deals with security for costs.

Part 20               Discovery and inspection of documents

Division 20.1         General

20.01      Withholding documents on public interest grounds

                This Part does not affect any rule of law under which a document may be withheld on the ground that its disclosure would injure the public interest.

20.02      Privilege

                An order made under this Part does not require the person against whom the order is made to produce any document that is privileged.

20.03      Undertakings or orders applying to documents

         (1)   If a document is read or referred to in open court in a way that discloses its contents, any express order or implied undertaking not to use the document except in relation to a particular proceeding no longer applies.

         (2)   However, a party, or a person to whom the document belongs, may apply to the Court for an order that the order or undertaking continue to apply to the document.

Rules 20.04–20.10 left blank

Division 20.2         Discovery

Note   A party should have regard to any Practice Note for discovery.

20.11      Discovery must be for the just resolution of the proceeding

                A party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible.

20.12      No discovery without court order

         (1)   A party must not give discovery unless the Court has made an order for discovery.

         (2)   If a party gives discovery without being ordered by the Court, the party is not entitled to any costs or disbursements for the discovery.

Note   Party is defined in the Dictionary.

20.13      Application for discovery

         (1)   A party may apply to the Court for an order that another party to the proceeding give discovery.

         (2)   The application must state:

                (a)    whether the party is seeking standard discovery; or

               (b)    the proposed scope of the discovery.

         (3)   An application may not be made until 14 days after all respondents have filed:

                (a)    a defence; or

               (b)    an affidavit in response to the affidavit accompanying the originating application.

         (4)   The Court may order that discovery be given by an electronic means.

20.14      Standard discovery

         (1)   If the Court orders a party to give standard discovery, the party must give discovery of documents:

                (a)    that are directly relevant to the issues raised by the pleadings or in the affidavits; and

               (b)    of which, after a reasonable search, the party is aware; and

                (c)    that are, or have been, in the party’s control.

         (2)   For paragraph (1) (a), the documents must meet at least one of the following criteria:

                (a)    the documents are those on which the party intends to rely;

               (b)    the documents adversely affect the party’s own case;

                (c)    the documents support another party’s case;

               (d)    the documents adversely affect another party’s case.

         (3)   For paragraph (1) (b), in making a reasonable search, a party may take into account the following:

                (a)    the nature and complexity of the proceeding;

               (b)    the number of documents involved;

                (c)    the ease and cost of retrieving a document;

               (d)    the significance of any document likely to be found;

                (e)    any other relevant matter.

         (4)   In this rule, a reference to an affidavit is a reference to:

                (a)    an affidavit accompanying an originating application; and

               (b)    an affidavit in response to the affidavit accompanying the originating application.

Note   Control is defined in the Dictionary.

20.15      Non-standard and more extensive discovery

         (1)   A party seeking an order for discovery (other than standard discovery) must identify the following:

                (a)    any criteria mentioned in rules 20.14 (1) and (2) that should not apply;

               (b)    any other criteria that should apply;

                (c)    whether the party seeks the use of categories of documents in the list of documents;

               (d)    whether discovery should be given in an electronic format;

                (e)    whether discovery should be given in accordance with a discovery plan.

         (2)   An application by a party under subrule (1) must be accompanied by the following:

                (a)    if categories of documents are sought — a list of the proposed categories; and

               (b)    if discovery is sought by an electronic format — the proposed format; and

                (c)    if a discovery plan is sought to be used  — a draft of the discovery plan.

         (3)   An application by a party seeking more extensive discovery than is required under rule 20.14 must be accompanied by an affidavit stating why the order should be made.

         (4)   For this Division:

category of documents includes documents, or a bundle of documents, of the same or a similar type of character.

Note   A discovery plan is a plan that has regard to the issues in dispute and the likely number, nature and significance of the documents discoverable in relation to those issues — see the Court’s Practice Note CM6, ‘Electronic Technology in Litigation’.

20.16      Giving discovery

         (1)   A party gives discovery by serving on all parties to the proceeding a list of documents, in accordance with rule 20.17.

         (2)   The list must specify any category of documents for which a search was not made and state why a search was not made.

Note 1   The list of documents must not be filed in the Court.

Note 2   The Court will, in its order, specify the time for compliance.

20.17      List of documents

         (1)   A list of documents must be in accordance with Form 38.

         (2)   The list must describe:

                (a)    each category of documents in the party’s control sufficiently to identify the category but not necessarily the particular document; and

               (b)    each document that has been, but is no longer in the party’s control, a statement of when the document was last in the party’s control and what became of it; and

                (c)    each document in the party’s control for which privilege from production is claimed and the grounds of the privilege.

         (3)   A party may apply to the Court, before or after the list of documents has been served, for an order:

                (a)    about the use of categories in the list; or

               (b)    that a more detailed list of documents be provided; or

                (c)    that each document in a category be separately described.

         (4)   The list of documents must be verified by an affidavit sworn in accordance with rule 20.22.

Note   Control is defined in the Dictionary.

20.18      Copies of documents

                If a party is required to give discovery and the party has or has had in the party’s control one or more copies of a particular document, the party need not give discovery of the copies only because the original or any other copy is discoverable.

20.19      Claim of privilege

                A party may not claim that a document is privileged from production on the ground that:

                (a)    it relates solely to, and does not tend to undermine, the party’s own case; and

               (b)    it does not relate to or tend to support another party’s case.

20.20      Supplementary discovery

         (1)   A party who has been ordered to give discovery is under a continuing obligation to discover any document:

                (a)    not previously discovered; and

               (b)    that would otherwise be necessary to be discovered to comply with the order.

         (2)   However, a party is not obliged to discover any document that has been created after the proceeding was started, if the party is entitled to claim privilege from production for the document.

20.21      Order for particular discovery

         (1)   If a party (the first party) claims that a document or category of documents may be or may have been in another party’s control (the second party), the first party may apply to the Court for an order that the second party file an affidavit stating:

                (a)    whether the document or any document of that category is or has been in the second party’s control; and

               (b)    if the document or category of documents has been but is no longer in the second party’s control — when it was last in the second party’s control and what became of it.

         (2)   The first party seeking an order under subrule (1) must identify the document or category of documents as precisely as possible.

20.22      Deponent for affidavit for discovery

         (1)   An affidavit verifying a party’s list of documents or an affidavit to be filed by a party under an order under rule 20.21 must be made by one of the following:

                (a)    the party;

               (b)    if the party is a person under a legal incapacity — the party’s litigation representative;

                (c)    if the party is a corporation or organisation — an officer of the corporation or organisation;

               (d)    if the party is a body or persons lawfully suing or being sued in the name of the body or in the name of any officer or other person — a member or officer of the body;

                (e)    if the party is the Crown or an officer of the Crown suing or being sued in the party’s official capacity — an officer of the Crown.

         (2)   However, if the party is a person mentioned in paragraph (1) (b), (c), (d) or (e), the party to whom discovery is made may apply to the Court for an order specifying:

                (a)    by name or otherwise — the person to make the affidavit; or

               (b)    by reference to an officer or office — the persons from whom the party may choose the person to make the affidavit.

         (3)   A person making an affidavit under paragraph (1) (c), (d) or (e) must know the facts to make the affidavit.

20.23      Discovery from non‑party

         (1)   If a party believes that a person who is not a party has or is likely to have, or has had or is likely to have had, in the person’s control, documents that are directly relevant to an issue raised on the pleadings or affidavits, the party may apply to the Court for an order that the person make discovery of the documents to the party.

         (2)   An application under this rule must:

                (a)    be served personally on the person; and

               (b)    be accompanied by an affidavit:

                          (i)    stating the facts on which the applicant relies; and

                         (ii)    identifying, as precisely as possible, the documents, or categories of documents to which the application relates.

         (3)   A copy of the accompanying affidavit for an application must be served on each person on whom the application is served.

         (4)   In this rule, a reference to an affidavit is a reference to:

                (a)    an affidavit accompanying an originating application; and

               (b)    an affidavit in response to the affidavit accompanying the originating application.

20.24      Non-party’s obligation

                If the Court orders a person who is not a party to make discovery, the person must file a list of documents, in accordance with rule 20.17.

Note   For production by a non-party, see rule 20.33.

20.25      Non-party’s costs and expenses

                A person against whom an order is sought or made under rule 20.23 may apply to the Court for an order:

                (a)    that the party applying for the discovery give security for the person’s costs and expenses; and

               (b)    that the party who applied for the discovery pay the person’s costs and expenses, including:

                          (i)    the expense of making discovery and giving production; and

                         (ii)    the expense of complying with the order made under rule 20.23.

Rules 20.26–20.30 left blank

Division 20.3         Production for inspection

20.31      Notice to produce document in pleading or affidavit

         (1)   A party (the first party) may serve on another party (the second party) a notice to produce, in accordance with Form 39, for the inspection of any document mentioned in a pleading or affidavit filed by the second party.

         (2)   The second party must, within 4 days after being served with the notice to produce, serve the first party with a notice:

                (a)    stating:

                          (i)    a time, within 7 days after service of the notice, when the document may be inspected; and

                         (ii)    a place where the document may be inspected; or

               (b)    stating:

                          (i)    that the document is not in the second party’s control; and

                         (ii)    to the best of the second party’s knowledge — where the document is and in whose control it is; or

                (c)    claiming that the document is privileged and stating the grounds of the privilege.

         (3)   If the second party does not comply with paragraph (2) (a) or (b) or claims that the document is privileged, the first party may apply to the Court for an order for production and inspection of the document.

Note   Control is defined in the Dictionary

20.32      Order for production from party

         (1)   A party (the first party) may apply to the Court for an order that another party (the second party) produce for inspection any document that is included in the second party’s list of documents and that is in that party’s control.

         (2)   The Court may order that inspection be given by electronic means.

20.33      Order for production from non-party

                If a non-party is ordered to give discovery under rule 20.23 but refuses or neglects to allow inspection of the documents, the party who applied for the discovery may apply to the Court for an order that the non-party produce for inspection any document that is included in the non-party’s list of documents and that is in the person’s control.

20.34      Copying of documents produced for inspection

                A party to whom a document is produced for inspection under this Division may, at the party’s expense, copy or make an electronic image of the document subject to any reasonable conditions imposed by the person producing the document.

20.35      Production to Court

         (1)   A party may apply to the Court for an order that another party produce to the Court a document in the party’s control relating to an issue in the proceeding.

         (2)   The Court may inspect a document to decide the validity of an objection to production, including a claim that the document is privileged from production.

Part 21               Interrogatories

  

21.01      Order for interrogatories

         (1)   A party may apply to the Court for an order that another party provide written answers to interrogatories.

         (2)   The application must be accompanied by an affidavit annexing the proposed interrogatories.

21.02      When application may be made

                A party must not make an application under rule 21.01 until 14 days after the pleadings have closed and, if an order has been made under Division 20.2, the parties have served any lists of documents.

21.03      Answers to interrogatories

         (1)   A party who is ordered to answer interrogatories must do so by filing:

                (a)    written answers in accordance with:

                          (i)    Form 40; and

                         (ii)    subrules (3) and (4); and

               (b)    an affidavit verifying the answers in accordance with rule 21.04.

         (2)   The party must serve the documents mentioned in subrule (1) on each party who has filed a notice of address for service.

         (3)   The answers must address each interrogatory:

                (a)    by directly answering the substance of the interrogatory; or

               (b)    by objecting to answer the interrogatory on a ground mentioned in subrule (4) and briefly stating the facts on which the objection is based.

         (4)   A party may object to answering an interrogatory only on one or more of the following grounds:

                (a)    that the interrogatory does not relate to an issue raised on the pleadings and in issue;

               (b)    that the interrogatory is vexatious or oppressive;

                (c)    privilege.

Note   The Court will, in its order, specify the time for compliance.

21.04      Affidavit verifying written answers to interrogatories

         (1)   An affidavit verifying a party’s written answers to interrogatories must be made by one of the following:

                (a)    the party;

               (b)    if the party is a person under a legal incapacity — the person’s litigation representative;

                (c)    if the party is a corporation or organisation — an officer of the corporation or organisation;

               (d)    if the party is a body of persons lawfully suing or being sued in the name of the body or in the name of any officer or other person — a member or officer of the body;

                (e)    if the party is the Crown or an officer of the Crown suing or being sued in the party’s official capacity — an officer of the Crown.

         (2)   However, if the party is a person mentioned in paragraph (1) (b), (c), (d) or (e), the party applying for the written answers may apply to the Court for an order specifying:

                (a)    by name or otherwise, the person to make the affidavit; or

               (b)    by reference to an officer or an office — the persons from whom the party may choose the person to make the affidavit.

         (3)   A person making an affidavit under paragraph (1) (b), (c), (d) or (e) must know the facts to make the affidavit.

21.05      Orders dealing with insufficient answers

                If a party fails to answer an interrogatory sufficiently, the party applying for the written answers may apply to the Court for an order:

                (a)    that the other party give a sufficient answer verified by affidavit in accordance with rule 21.04; or

               (b)    that the party, or a person mentioned in paragraph 21.04 (1) (b), (c), (d) or (e), attend before the Court or a Registrar to be interrogated orally.

21.06      Answers tendered as evidence

         (1)   A party other than the party who made the answers may tender as evidence:

                (a)    an answer to an interrogatory without tendering the answers to the other interrogatories; or

               (b)    part of an answer to an interrogatory without tendering the whole of the answer.

         (2)   If a party applies to tender:

                (a)    an answer, but not the answers to all the other interrogatories; or

               (b)    part of an answer to an interrogatory, but not the whole answer;

the party against whom the interrogatory is sought to be tendered may ask the Court:

                (c)    to consider all of the other answers or the whole of the answer; and

               (d)    to reject the tender unless all the other answers are, or the whole answer is, also tendered.

21.07      Public interest

                This Part does not affect any rule of law that authorises or requires the withholding of any matter on the ground that its disclosure would be injurious to the public interest.

Part 22               Admissions

  

22.01      Notice to admit facts or documents

                A party (the first party) may serve on another party (the second party) a notice, in accordance with Form 41 (the notice to admit), requiring the second party, for the purpose of the proceeding only, to admit the truth of any fact and the authenticity of any document specified in the notice to admit.

Note   Authenticity of a document is defined in the Dictionary.

22.02      Notice disputing facts or documents

                The second party may, within 14 days after service of the notice to admit, serve on the first party a notice of dispute, in accordance with Form 42, disputing the truth of any fact or the authenticity of any document specified in the notice to admit.

22.03      Disputing party to pay costs if document is proved etc

                If a party serves a notice of dispute under rule 22.02 and the truth of any fact or the authenticity of any document disputed in the notice is proved, the party that served the notice of dispute must pay the costs of proving the truth of the fact or the authenticity of the document.

22.04      Facts or documents taken to be admitted if not disputed

                If the second party does not serve a notice of dispute in accordance with rule 22.02, the second party will be taken to have admitted the truth of each fact or the authenticity of each document specified in the notice to admit.

Note   The Court may dispense with compliance with this rule — see rule 1.34.

22.05      Deemed admission

                A party (the first party) will be taken to have admitted the authenticity of any document specified in another party’s list of documents for which inspection has been permitted unless:

                (a)    the authenticity has been denied in the first party’s pleadings or affidavits; or

               (b)    the first party has given the other party notice within 14 days after inspection was permitted that the authenticity of the document is denied.

Note   The Court may dispense with compliance with this rule — see rule 1.34.

22.06      Withdrawal of admissions

                A party may apply for the leave of the Court to withdraw an admission made under this Part.

22.07      Judgment on admissions

                If a party makes an admission, another party may apply to the Court for any judgment or order to which the party is entitled on the admission.

Part 23               Experts

Division 23.1         Court experts

23.01      Appointment of Court expert

         (1)   A party may apply to the Court for an order:

                (a)    that an expert be appointed (a Court expert) to inquire into and report on any question or on any facts relevant to any question arising in a proceeding; and

               (b)    fixing the Court expert’s remuneration, including the cost of preparing the expert’s report; and

                (c)    for the Court expert’s attendance before the Court; and

               (d)    terminating the liability to pay the Court expert’s remuneration.

Note 1   Expert is defined in the Dictionary.

Note 2   The Court may give instructions relating to the inquiry and report including the carrying out of an experiment or test.

Note 3   The Court may make an order of its own motion — see rule 1.40.

         (2)   If the Court makes an order under paragraph (1) (b), the expert’s remuneration is payable jointly and severally by the parties.

23.02      Court expert’s report

         (1)   The Court expert must provide the report to the Court within the time fixed by the Court.

Note   The Registrar will provide a copy of the report to any party interested in the question.

         (2)   The Court expert’s report must:

                (a)    be signed by the Court expert; and

               (b)    contain particulars of the training, study or experience by which the Court expert has acquired specialised knowledge; and

                (c)    identify the questions that the Court expert was asked to address; and

               (d)    set out separately each of the factual findings or assumptions on which the Court expert’s opinion is based; and

                (e)    set out separately from the factual findings or assumptions each of the Court expert’s opinions; and

                (f)    set out the reasons for those opinions.

23.03      Court expert’s report — use at trial

         (1)   A report that complies with rule 23.02 will be admissible at trial as the evidence of the Court expert.

Note   Section 177 of the Evidence Act 1995 deals with the tender of an expert’s report.

         (2)   A party may apply to the Court for an order:

                (a)    to cross-examine a Court expert before or at trial; and

               (b)    if the cross-examination is to take place before trial — that the cross-examination take place before a Registrar or an examiner.

Note   Examiner is defined in the Dictionary.

23.04      Other expert’s reports on the question

                A party who has delivered to another party interested in the question a copy of another expert’s report that complies with Division 23.2 may apply to the Court for leave to adduce the evidence of the other expert on the question.

Note   The question is referred to in rule 23.02.

Rules 23.05–23.10 left blank

Division 23.2         Parties’ expert witnesses and expert reports

23.11      Calling expert evidence at trial

                A party may call an expert to give expert evidence at a trial only if the party has:

                (a)    delivered an expert report that complies with rule 23.13 to all other parties; and

               (b)    otherwise complied with this Division.

Note   Expert and expert report are defined in the Dictionary.

23.12      Provision of guidelines to an expert

                If a party intends to retain an expert to give an expert report or to give expert evidence, the party must first give the expert any practice note dealing with guidelines for expert witnesses in proceedings in the Court (the Practice Note).

Note   A copy of any practice notes may be obtained from the
District Registry or downloaded from the Court’s website at http://www.fedcourt.gov.au.

23.13      Contents of an expert report

         (1)   An expert report must:

                (a)    be signed by the expert who prepared the report; and

               (b)    contain an acknowledgement at the beginning of the report that the expert has read, understood and complied with the Practice Note; and

                (c)    contain particulars of the training, study or experience by which the expert has acquired specialised knowledge; and

               (d)    identify the questions that the expert was asked to address; and

                (e)    set out separately each of the factual findings or assumptions on which the expert’s opinion is based; and

                (f)    set out separately from the factual findings or assumptions each of the expert’s opinions; and

               (g)    set out the reasons for each of the expert’s opinions; and

               (h)    comply with the Practice Note.

         (2)   Any subsequent expert report of the same expert on the same question need not contain the information in paragraphs (1) (b) and (c).

23.14      Application for expert report

                A party may apply to the Court for an order that another party provide copies of that other party’s expert report.

23.15      Evidence of experts

                If 2 or more parties to a proceeding intend to call experts to give opinion evidence about a similar question, any of those parties may apply to the Court for one or more of the following orders:

                (a)    that the experts confer, either before or after writing their expert reports;

               (b)    that the experts produce to the Court a document identifying where the expert opinions agree or differ;

                (c)    that the expert’s evidence in chief be limited to the contents of the expert’s expert report;

               (d)    that all factual evidence relevant to any expert’s opinions be adduced before the expert is called to give evidence;

                (e)    that on the completion of the factual evidence mentioned in paragraph (d), each expert swear an affidavit stating:

                          (i)    whether the expert adheres to the previously expressed opinion; or

                         (ii)    if the expert holds a different opinion;

                                   (A)     the opinion; and

                                   (B)     the factual evidence on which the opinion is based.

                (f)    that the experts give evidence one after another;

               (g)    that each expert be sworn at the same time and that the cross‑examination and re-examination be conducted by putting to each expert in turn each question relevant to one subject or issue at a time, until the cross‑examination or re‑examination is completed;

               (h)    that each expert gives an opinion about the other expert’s opinion;

                (i)    that the experts be cross‑examined and re‑examined in any particular manner or sequence.

Note 1   For the directions a Court may make before trial about, expert reports and expert evidence, see rule 5.04 (items 14 to 18).

Note 2   The Court may dispense with compliance with the Rules and may make orders inconsistent with the Rules — see rules 1.34 and 1.35.

Part 24               Subpoenas

Division 24.1         Leave to issue subpoena

24.01      Leave to issue subpoena

         (1)   A subpoena may be issued only with the leave of the Court.

         (2)   A party may apply to the Court for leave to issue a subpoena without notice to any other party.

Note 1   Without notice is defined in the Dictionary.

Note 2   The Court may give leave to issue a subpoena:

(a)   generally or in relation to a particular subpoena or subpoenas; and

(b)   subject to conditions.

Note 3   The Registrar will, in accordance with the leave given under subrule (2) and on the request of a party, issue:

(a)   a subpoena to attend to give evidence; or

(b)   a subpoena to produce the subpoena or a copy of it and a document or thing; or

(c)   a subpoena to do both of those things.

Rules 24.02–24.10 left blank

Division 24.2         Subpoenas to give evidence and to produce documents

Note   This Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices' Rules Harmonisation Committee.

24.11      Definitions for Division 24.2

         (1)   In this Division:

addressee means the person who is the subject of the order expressed in a subpoena.

issuing officer means an officer empowered to issue a subpoena for the Court.

issuing party means the party at whose request a subpoena is issued.

subpoena means an order in writing requiring the addressee:

                (a)    to attend to give evidence; or

               (b)    to produce the subpoena or a copy of it and a document or thing; or

                (c)    to do both of those things.

         (2)   To the extent that a subpoena requires the addressee to attend to give evidence, it is called a subpoena to attend to give evidence.

         (3)   To the extent that a subpoena requires the addressee to produce the subpoena or a copy of it and a document or thing, it is called a subpoena to produce.

24.12      Issuing of subpoena

         (1)   The Court may, in any proceeding, by subpoena, order the addressee:

                (a)    to attend to give evidence as directed by the subpoena; or

               (b)    to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or

                (c)    to do both of those things.

         (2)   An issuing officer must not issue a subpoena:

                (a)    if the Court has made an order, or there is a rule of the Court, having the effect of requiring that the proposed subpoena:

                          (i)    not be issued; or

                         (ii)    be issued only with the leave of the Court and that leave has not been given; or

               (b)    requiring the production of a document or thing in the custody of the Court or another court.

Note for paragraph (a)   Division 24.1 deals with applications to the Court for leave to issue a subpoena.

         (3)   The issuing officer must seal with the seal of the Court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service.

         (4)   A subpoena is taken to have been issued when it is sealed or otherwise authenticated in accordance with subrule (3).

24.13      Form of subpoena

         (1)   A subpoena must be in accordance with:

                (a)    for a subpoena to give evidence — Form 43A; or

               (b)    for a subpoena to produce documents — Form 43B;

                (c)    for a subpoena to give evidence and produce documents — Form 43C.

         (2)   A subpoena must not be addressed to more than one person.

         (3)   A subpoena must identify the addressee by name or by description of office or position.

         (4)   A subpoena to produce must:

                (a)    identify the document or thing to be produced; and

               (b)    specify the date, time and place for production.

         (5)   A subpoena to attend to give evidence must specify the date, time and place for attendance.

         (6)   The date specified in a subpoena must be the date of trial or any other date as permitted by the Court.

         (7)   The place specified for production may be the Court or the address of any person authorised to take evidence in the proceeding as permitted by the Court.

         (8)   The last date for service of a subpoena:

                (a)    is:

                          (i)    the date 5 days before the earliest date the addressee is required to comply with the subpoena; or

                         (ii)    an earlier or later date fixed by the Court; and

               (b)    must be specified in the subpoena.

         (9)   If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer.

24.14      Change of date for attendance or production

         (1)   The issuing party may give notice to the addressee of a date or time later than the date or time specified in a subpoena as the date or time for attendance or for production or for both.

         (2)   If notice is given under subrule (1), the subpoena has the effect as if the date or time notified appeared in the subpoena instead of the date or time that appeared in the subpoena.

24.15      Setting aside or other relief

         (1)   The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in relation to it.

         (2)   An application under subrule (1) must be made on notice to the issuing party.

         (3)   The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest.

24.16      Service

         (1)   A subpoena must be served personally on the addressee.

         (2)   The issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee.

24.17      Compliance with subpoena

         (1)   An addressee need not comply with the requirements of a subpoena to attend to give evidence if conduct money has not been handed or tendered to the addressee a reasonable time before the date attendance is required.

         (2)   An addressee need not comply with the requirements of a subpoena if it is not served on or before the date specified in the subpoena as the last date for service of the subpoena.

         (3)   Despite rule 24.16 (1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on the addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.

         (4)   The addressee must comply with a subpoena to produce by:

                (a)    attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the Court or to the person authorised to take evidence in the proceeding as permitted by the Court; or

               (b)    delivering or sending the subpoena or a copy of it and the document or thing to the Registrar at the address specified for the purpose in the subpoena, or, if more than one address is specified, at any of those addresses, so that they are received not less than 2 clear business days before the date specified in the subpoena for attendance and production.

         (5)   For a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and of the document or thing in any of the ways permitted by subrule (4) does not discharge the addressee from the obligation to attend to give evidence.

         (6)   Unless a subpoena specifically requires the production of the original document, the addressee may produce a copy of any document required to be produced by the subpoena.

         (7)   The copy of a document may be:

                (a)    a photocopy; or

               (b)    in an electronic form that the issuing party has indicated will be acceptable.

Note   Conduct money is defined in the Dictionary.

24.18      Production otherwise than on attendance

         (1)   This rule applies if an addressee produces a document or thing in accordance with paragraph 24.17 (4) (b).

         (2)   The Registrar must, if requested by the addressee, give a receipt for the document or thing to the addressee.

         (3)   If the addressee produces more than one document or thing, the addressee must, if requested by the Registrar, provide a list of the documents or things produced.

         (4)   The addressee may, with the consent of the issuing party, produce a copy, instead of the original, of any document required to be produced.

         (5)   The addressee may at the time of production tell the Registrar in writing that any document or copy of a document produced need not be returned and may be destroyed.

24.19      Removal, return, inspection, copying and disposal of documents and things

                The Court may give directions about the removal from and return to the Court, and the inspection, copying and disposal, of any document or thing that has been produced to the Court in response to a subpoena.

24.20      Inspection of, and dealing with, documents and things produced otherwise than on attendance

         (1)   This rule applies if an addressee produces a document or thing in accordance with rule 24.17.

         (2)   On the request in writing of a party, the Registrar must tell the party whether production in response to a subpoena has occurred and, if so, include a description, in general terms, of the documents and things produced.

         (3)   Subject to this rule, a person may inspect a document or thing produced only if the Court has granted leave and the inspection is in accordance with the leave.

         (4)   The Registrar may permit the parties to inspect at the Registry any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule.

         (5)   If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the Registrar in writing of the objection and of the grounds of the objection.

         (6)   If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the Registrar in writing of the objection and of the grounds of the objection.

         (7)   On receiving notice of an objection under this rule, the Registrar:

                (a)    must not permit any, or any further, inspection of the document or thing the subject of the objection; and

               (b)    must refer the objection to the Court for hearing and determination.

         (8)   The Registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard.

         (9)   After being notified by the Registrar under subrule (8), the issuing party must notify the addressee, the objector and each other party of the date, time and place at which the objection will be heard.

       (10)   The Registrar may permit any document or thing produced to be removed from the Registry only on application in writing signed by the lawyer for a party.

       (11)   A lawyer who signs an application under subrule (10) and removes a document or thing from the Registry is taken to undertake to the Court that:

                (a)    the document or thing will be kept in the personal custody of the lawyer or a barrister briefed by the lawyer in the proceeding; and

               (b)    the document or thing will be returned to the Registry in the same condition, order and packaging in which it was removed, as and when directed by the Registrar.

       (12)   The Registrar may grant an application under subrule (10) subject to conditions or refuse to grant the application.

24.21      Return of documents and things produced

         (1)   The Registrar may return to the addressee any document or thing produced in response to the subpoena.

         (2)   The Registrar may return any document or thing under subrule (1) only if the Registrar has given to the issuing party at least 14 days’ notice of the intention to do so and that period has expired.

         (3)   The issuing party must attach, to the front of a subpoena to produce to be served on the addressee, a notice and declaration, in accordance with Form 44.

         (4)   The addressee must complete the notice and declaration and attach it to the subpoena or copy of the subpoena that accompanies the documents produced to the Court under the subpoena.

         (5)   Subject to subrule (6), the Registrar may, on the expiry of 4 months from the conclusion of the proceeding, cause to be destroyed all the documents produced in the proceeding in compliance with a subpoena, that were declared by the addressee to be copies.

         (6)   The Registrar may cause to be destroyed those documents, declared by the addressee to be copies, that have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal.

24.22      Costs and expenses of compliance

         (1)   The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.

         (2)   If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs.

         (3)   An amount fixed under this rule is separate from and in addition to:

                (a)    any conduct money paid to the addressee; and

               (b)    any witness expenses payable to the addressee.

24.23      Failure to comply with subpoena — contempt of court

         (1)   Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly.

         (2)   Despite rule 24.16 (1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.

         (3)   Subrules (1) and (2) are without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.

24.24      Documents and things in custody of Court

         (1)   A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Registrar in writing, identifying the document or thing.

         (2)   If the document or thing is in the custody of the Court, the Registrar must produce the document or thing:

                (a)    in Court or to any person authorised to take evidence in the proceeding, as required by the party; or

               (b)    as the Court directs.

         (3)   If the document or thing is in the custody of another court, the Registrar must:

                (a)    ask the other court to send the document or thing to the Registrar; and

               (b)    after receiving it, produce the document or thing:

                          (i)    in Court or to any person authorised to take evidence in the proceeding as required by the party; or

                         (ii)    as the Court directs.

Part 25               Offers to settle

  

25.01      Offer to compromise

         (1)   A party (the offeror) may make an offer to compromise by serving a notice, in accordance with Form 45, on another party (the offeree).

         (2)   The notice must not be filed in the Court.

25.02      Notice to be signed

                The notice must be signed by the offeror.

Note    A lawyer may do any act or thing that the party is required to do — see rule 4.02.

25.03      Offer to compromise — content

         (1)   The notice must state whether:

                (a)    the offer is inclusive of costs; or

               (b)    costs are in addition to the offer.

         (2)   If the offer is of a sum of money, the notice may separately specify the amount that represents:

                (a)    the offer in respect to the claim; and

               (b)    interest (if any).

25.04      Offer to be paid within 28 days

                An offer to pay a sum of money is, unless the notice provides otherwise, taken to be an offer that the sum will be paid within 28 days after acceptance of the offer.

25.05      Timing of offer

         (1)   An offer may be made at any time before judgment is given.

         (2)   A party may make more than one offer.

         (3)   An offer may be limited in time for which it is open to be accepted, however the time must not be less than 14 days after the offer is made.

         (4)   Unless the notice provides otherwise, an offer is taken to have been made without prejudice.

25.06      No communication to Court of offer

         (1)   A pleading or affidavit must not contain a statement that an offer has been made.

         (2)   No communication about the existence or terms of an offer is to be made to the Court until:

                (a)    the offer is accepted; or

               (b)    judgment is given; or

                (c)    an application is made under rule 25.07, 25.09 or 25.10.

         (3)   However, subrule (2) applies only if the offer is made without prejudice.

25.07      Withdrawal of offer

                An offer may be withdrawn within 14 days after it is made only if:

                (a)    the Court, on an application by the offeror, gives leave; or

               (b)    the offer is superseded by an offer in more favourable terms to the offeree.

25.08      Acceptance of offer

         (1)   An offer is open to be accepted within the time stated in the notice, which must not be less than 14 days after the offer has been made.

         (2)   If no time for acceptance is stated in the notice, an offeree may accept the offer at any time before judgment is given.

         (3)   An offeree may accept the offer by serving a notice of acceptance, in accordance with Form 46 on the offeror, at any time while the offer is open.

25.09      Withdrawal of acceptance

         (1)   An offeree who has accepted an offer for a sum of money may withdraw the acceptance if:

                (a)    the sum of money is not paid within 28 days after acceptance of the offer or within the time provided by the offer; and

               (b)    the Court, on the application of the party who accepted the offer, gives leave.

         (2)   An offeree seeking the leave of the Court under paragraph (1) (b) may also seek orders:

                (a)    to restore the parties as nearly as may be to each party’s position in the proceeding at the time of acceptance; and

               (b)    as to the further conduct of the proceeding.

25.10      Failure to comply with offer

                If, after acceptance of an offer by an offeree, an offeror fails to comply with the offer’s terms, the offeree may apply to the Court for an order:

                (a)    giving effect to the accepted offer; or

               (b)    staying or dismissing the proceeding if the applicant is in default; or

                (c)    striking out the respondent’s defence if the respondent is in default; or

               (d)    that a cross‑claim, not the subject of the offer, proceed.

25.11      Multiple respondents

         (1)   Rule 25.10 does not apply if:

                (a)    2 or more respondents are alleged to be jointly, or jointly and severally, liable to the applicant for a debt or damages; and

               (b)    rights of contribution or indemnity appear to exist between the respondents.

         (2)   However, rule 25.10 applies if:

                (a)    for an offer made by the applicant — the offer:

                          (i)    is made to all respondents; and

                         (ii)    is an offer to compromise the claim against all of them; or

               (b)    for an offer made to the applicant:

                          (i)    the offer is to compromise the claim against all respondents; and

                         (ii)    if the offer is made by 2 or more respondents — those respondents offer to be jointly, or jointly and severally, liable to the applicant for the whole amount of the offer.

25.12      Taxation of costs where offer accepted

                If an offer does not include the offeree’s costs of the proceeding and the offeree accepts the offer, the offeree may tax costs on a party and party basis against the offeror up to and including 14 days after the offer was made.

Note 1   Costs as between party and party is defined in the Dictionary.

Note 2   For taxation of costs, see Division 40.2.

25.13      Contributor parties

         (1)   If 2 or more parties (the contributor parties) may be held liable to contribute towards an amount of debt or damages that may be recovered from the contributor parties, any of those contributor parties may, without prejudice to that contributor party’s defence, make an offer to another contributor party, to contribute, to a specified extent, to the amount of the debt or damages.

         (2)   If an offer is made by a contributor party (the first contributor party) and not accepted by another contributor party, and the first contributor party obtains a judgment against the other contributor party more favourable than the terms of the offer, the first contributor party is entitled to an order that the contributor party who did not accept the offer pay the costs incurred by the first contributor party:

                (a)    before 11.00 am on the second business day after the offer was served — on a party and party basis; and

               (b)    after the time mentioned in paragraph (a) — on an indemnity basis.

25.14      Costs where offer not accepted

         (1)   If an offer is made by a respondent and not accepted by an applicant, and the applicant obtains a judgment that is less favourable than the terms of the offer:

                (a)    the applicant is not entitled to any costs after 11.00 am on the second business day after the offer was served; and

               (b)    the respondent is entitled to an order that the applicant pay the respondent’s costs after that time on an indemnity basis.

         (2)   If an offer is made by a respondent and an applicant unreasonably fails to accept the offer and the applicant’s proceeding is dismissed, the respondent is entitled to an order that the applicant pay the respondent’s costs:

                (a)    before 11.00 am on the second business day after the offer was served — on a party and party basis; and

               (b)    after the time mentioned in paragraph (a) — on an indemnity basis.

         (3)   If an offer is made by an applicant and not accepted by a respondent, and the applicant obtains a judgment that is more favourable than the terms of the offer, the applicant is entitled to an order that the respondent pay the applicant’s costs:

                (a)    before 11.00 am on the second business day after the offer was served — on a party and party basis; and

               (b)    after the time mentioned in paragraph (a) — on an indemnity basis.

Note 1  Costs on an indemnity basis is defined in the Dictionary.

Note 2   The Court may make an order inconsistent with these rules — see rule 1.35.

Part 26               Ending proceedings early

Division 26.1         Summary judgment and stay of proceedings

26.01      Summary judgment

         (1)   A party may apply to the Court for an order that judgment be given against another party because:

                (a)    the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or

               (b)    the proceeding is frivolous or vexatious; or

                (c)    no reasonable cause of action is disclosed; or

               (d)    the proceeding is an abuse of the process of the Court; or

                (e)    the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.

         (2)   The application must be accompanied by an affidavit stating:

                (a)    the grounds of the application; and

               (b)    the facts and circumstances relied on to support those grounds.

         (3)   The application and the accompanying affidavit must be served on the party against whom the order is sought at least 14 days before the hearing of the application.

         (4)   If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not disposed of by the order.

         (5)   If an order is made under subrule (1) giving judgment for the applicant against the respondent for the whole or part of the applicant’s claim, a respondent who has a cross‑claim against the applicant or some other party may:

                (a)    continue to prosecute the cross‑claim against the applicant or other party; and

               (b)    apply to the Court for an order staying execution on or enforcement of the judgment until the respondent’s cross‑claim is determined.

Note   See also section 31A of the Act.

Rules 26.02–26.10 left blank

Division 26.2         Withdrawal and discontinuance

26.11      Withdrawal of defence etc

         (1)   A party may, at any time, withdraw a plea raised in the party’s pleading by filing a notice of withdrawal, in accordance with Form 47.

         (2)   However, a party must not withdraw an admission or any other plea that benefits another party, in a defence or subsequent pleading unless:

                (a)    the other party consents; or

               (b)    the Court gives leave.

         (3)   The notice of withdrawal must:

                (a)    state the extent of the withdrawal; and

               (b)    if the withdrawal is by consent — be signed by each consenting party.

26.12      Discontinuance

         (1)   A party claiming relief may discontinue a proceeding in whole or in part by filing a notice of discontinuance, in accordance with Form 48.

         (2)   The party may file the notice of discontinuance:

                (a)    without the leave of the Court or the other party’s consent:

                          (i)    at any time before the return date fixed in the originating application; or

                         (ii)    if the proceeding is continuing on pleadings — at any time before the pleadings have closed; or

               (b)    with the opposing party’s consent — before judgment has been entered in the proceeding; or

                (c)    with the leave of the Court — at any time.

Note 1   For when pleadings close, see rule 16.12.

Note 2   The Court may give leave subject to conditions including costs — see rule 1.33.

         (3)   The notice of discontinuance must:

                (a)    state the extent of the discontinuance; and

               (b)    if the discontinuance is by consent — be signed by each consenting party.

         (4)   However, a litigation representative or a representative party must not discontinue a party’s claim without first obtaining the leave of the Court.

         (5)   An application for a winding up order under section 459P or 461 (1) (a) of the Corporations Act 2001 may be discontinued only with the leave of the Court.

         (6)   A notice of discontinuance filed by one party does not affect any other party to the proceeding.

         (7)   Unless the terms of a consent or an order of the Court provide otherwise, a party who files a notice of discontinuance under subrule (2) is liable to pay the costs of each other party to the proceeding in relation to the claim, or part of the claim, that is discontinued.

26.13      Service of notice

                A party who files a notice under rule 26.11 or 26.12 must, as soon as reasonably practicable, serve a copy of the notice on each other party to the proceeding.

26.14      Effect of discontinuance

                Discontinuance under this Division cannot be pleaded as a defence to a proceeding in relation to the same, or substantially the same, cause of action.

Note   The Court may permit a party to discontinue on terms inconsistent with this rule — see rule 1.35.

26.15      Stay of proceeding until costs paid

                An opposing party may apply to the Court for an order that a subsequent proceeding be stayed until the costs are paid if:

                (a)    a party (the first party) discontinues a proceeding, whether in relation to the whole, or a part, of a claim for relief; and

               (b)    the first party therefore becomes liable to pay the costs of an opposing party to the proceeding; and

                (c)    before paying those costs, the first party starts another proceeding against the opposing party on the basis of the same, or substantially the same, cause of action as the cause of action on which the discontinued proceeding was based.

Part 27               Transfer of proceedings

Division 27.1         Family Court of Australia

27.01      Transfer to Family Court of Australia

                A party may apply to the Court to transfer a proceeding to the Family Court of Australia, under any of the Administrative Decisions (Judicial Review) Act 1977, the Australian Consumer Law, the Bankruptcy Act 1966 or the Income Tax Assessment Act 1936.

Note   If the Court makes an order transferring the proceeding to the Family Court, the Registrar will send all documents filed and all orders made in the proceeding to the proper officer of the Family Court.

Rules 27.02–27.10 left blank

Division 27.2         Federal Magistrates Court

27.11      Transfer to Federal Magistrates Court

                A party may apply to the Court to transfer to the Federal Magistrates Court:

                (a)    a proceeding other than an appeal; or

               (b)    an appeal under the AAT Act.

Note 1   AAT Act and proceeding are defined in the Dictionary.

Note 2   The Court may make an order of its own motion — see rule 1.40.

Note 3   For a party’s right to appeal under the AAT Act, see section 44 of the AAT Act.

27.12      Factors to be taken into account

         (1)   For an appeal under the AAT Act, the parties must address the matters mentioned in section 44AA (7) of that Act.

         (2)   For a proceeding, the parties must address the matters mentioned in section 32AB (6) of the Act.

         (3)   For an appeal under the AAT Act or a proceeding, the parties should address the following:

                (a)    whether the appeal or proceeding is likely to involve questions of general importance;

               (b)    whether it would be less expensive and more convenient to the parties if the appeal or proceeding were transferred;

                (c)    whether an appeal or proceeding would be determined more quickly if transferred;

               (d)    the wishes of the parties.

Note   If the Court makes an order transferring an appeal or proceeding to the Federal Magistrates Court, the Registrar will send all documents filed and all orders made to the proper officer of the Federal Magistrates Court.

27.13      Transfer from Federal Magistrates Court

         (1)   If the Federal Magistrates Court makes an order transferring a proceeding to the Court, the party who applied for the order or, if the order was made on the Federal Magistrates Court’s own initiative, the applicant must file a copy of the order in the District Registry named in the order or, if not named, in the District Registry of the State or Territory where the order was made.

         (2)   The Registrar will attach a notice to the order, in accordance with Form 49.

Note   On receipt of the order, and at the time of attaching the notice, the Registrar will allocate a serial number to the order, as if the order were an originating application filed in the Registry, and attach a notice to the order.

         (3)   The party who files the order must serve a sealed copy of the order, and the notice that has been attached by the Registrar, on each party to the proceeding in the Federal Magistrates Court:

                (a)    at the party’s address for service; or

               (b)    if the party does not have an address for service — personally.

         (4)   After an order is filed and a notice attached, these Rules apply to the proceeding as if it were started in the Court.

Rules 27.14–27.20 left blank

Division 27.3         Cross-vesting

27.21      Transfer of proceeding from the Court

                A party may apply to the Court for an order that a proceeding be transferred to another court.

Note 1   Applications may be made under the Jurisdiction of Courts (Cross‑vesting) Act 1987.

Note 2   If the Court orders that a proceeding be transferred to another court, the Registrar will send each document filed, and any orders made, in the proceeding to the appropriate officer of the other court.

27.22      Application by Attorney‑General for transfer of proceeding from the Court

                If an application for transfer of a proceeding from the Court is made by the Attorney‑General, or by the Attorney-General of a State or Territory, the Attorney‑General does not, because of the application, become a party to the proceeding in relation to which the application is made.

27.23      Transfer of proceeding to the Court

         (1)   If a court makes an order transferring a proceeding to the Court, the party who applied for the order must file a copy of the order in:

                (a)    the District Registry named in the order;

               (b)    if no District Registry is name named in the order — the District Registry of the State or Territory where the order was made.

         (2)   The Registrar will attach a notice to the order, in accordance with Form 49.

         (3)   The party who files the order must serve a sealed copy of the order, and the notice that has been attached by the Registrar, on each party to the proceeding in the court that has made the order transferring the proceeding:

                (a)    at the party’s address for service; or

               (b)    if the party does not have an address for service — personally.

         (4)   After an order is filed and the notice is attached, these Rules apply to the proceeding as if it had been started in the Court.

         (5)   The party who files the order must, as soon as practicable after service of the order and the notice attached to the order, and before taking any further step in the proceeding, apply to the Court for directions in relation to the further conduct of the proceeding.

Note   On receipt of the order, and at the time of attaching the notice, the Registrar will allot a serial number to the order, as if the order were an originating application filed in the Registry.

Part 28               Alternative dispute resolution

Division 28.1         General

28.01      General

                Parties must, and the Court will, consider options for alternative dispute resolution, including mediation, as early as is reasonably practicable. If appropriate, the Court will help implement those options.

28.02      Orders that may be sought

         (1)   A party may apply to the Court for an order that:

                (a)    the proceeding or part of the proceeding be referred to an arbitrator, mediator, or some suitable person for resolution by an ADR process; and

               (b)    the proceeding be adjourned or stayed; and

                (c)    the arbitrator, mediator, or person appointed to conduct an ADR process report to the Court on progress in the arbitration, mediation or ADR process.

         (2)   In this Part:

suitable person means a person who has been appointed under paragraph 28.02 (1) (a).

Note 1   ADR process is defined in the Dictionary.

Note 2   The Court may refer a proceeding to an arbitration, a mediation or an ADR process of its own motion — see section 53A of the Act. The Court can only refer a proceeding to arbitration with the consent of the parties — see section 53A (1A) of the Act.

28.03      Arbitration, mediation and ADR process

                If the Court orders that a proceeding, part of a proceeding or matter arising in a proceeding be referred to an arbitrator, mediator or suitable person, the arbitration, mediation or the ADR process must be carried out in accordance with this Part.

Note   The Court may make further orders including an order for the time within which the mediation must start and finish.

28.04      Court may terminate mediation or ADR process

                A party may apply to the Court for an order:

                (a)    terminating a mediation or ADR process; or

               (b)    terminating the appointment of a mediator or suitable person.

28.05      Parties may refer proceeding to mediation, arbitration or ADR process

         (1)   Nothing in this Division prevents the parties to a proceeding referring the proceeding to:

                (a)    an arbitrator, in accordance with an arbitration agreement for arbitration; or

               (b)    a mediator for mediation; or

                (c)    a person to conduct an ADR process.

         (2)   However, if the parties refer the proceeding under subrule (1), the applicant must, within 14 days of the referral, apply to the Court for directions as to the future management and conduct of the proceeding.

Rules 28.06–28.10 left blank

Division 28.2         Arbitration

28.11      Appointment of arbitrator

         (1)   If the Court makes an order referring a proceeding, or part of a proceeding, to arbitration, a party may apply to the Court for any of the following orders:

                (a)    nominating a person as arbitrator;

               (b)    specifying the manner in which the arbitration is to be conducted;

                (c)    specifying the time by which the arbitration is to be completed;

               (d)    specifying how the arbitrator’s fees and expenses are to be paid;

                (e)    specifying how the arbitrator’s report on the proceeding, part of the proceeding or any matter arising out of the proceeding is to be reported to the Court.

Note   An order referring a proceeding to an arbitrator may be made only with the consent of the parties — see section 53A of the Act.

         (2)   A nomination under paragraph (1) (a) must be accompanied by the arbitrator’s written consent to the appointment.

28.12      Applications by interlocutory application

                The following applications must be made by interlocutory application in the proceeding in which the order was made referring the proceeding to arbitration:

                (a)    an application by an arbitrator under section 53AA of the Act; or

               (b)    an application by a party under section 53AB (2) of the Act.

28.13      Applications for registration

         (1)   If a proceeding has been referred to arbitration under rule 28.02 and an award has been made, a party to the arbitration may apply to the Court for an order that the arbitrator’s award be registered.

         (2)   The application must be made by interlocutory application in the proceeding in which the order was made referring the proceeding to arbitration.

         (3)   The application must be accompanied by:

                (a)    a copy of the award; and

               (b)    an affidavit stating:

                          (i)    the extent to which the award has not been complied with, at the date the application is made; and

                         (ii)    the usual or last-known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last-known registered office of the company.

         (4)   If an order is made under subrule (1), the award:

                (a)    has the force and effect of an order of the Court; and

               (b)    accrues interest calculated in accordance with rule 39.06.

         (5)   The application may be made without notice.

Note   Without notice is defined in the Dictionary.

28.14      Applications for order in terms of an award

         (1)   A party may apply to the Court for an order in the terms of the award if:

                (a)    the matter has not been referred to the arbitrator by the Court; but

               (b)    the matter is a matter in which the Court has original jurisdiction.

         (2)   A party who wants to make an application under subrule (1) must file an originating application, in accordance with Form 50.

         (3)   The application must be accompanied by:

                (a)    a copy of the arbitration agreement; and

               (b)    a copy of the award; and

                (c)    an affidavit stating:

                          (i)    the material facts demonstrating why the Court has original jurisdiction in the matter that is the subject of the award; and

                         (ii)    the extent to which the award has not been complied with, at the date the application is made; and

                        (iii)    the usual or last-known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last-known registered office of the company.

         (4)   The application may be made without notice.

Note   Without notice is defined in the Dictionary.

Rules 28.15–28.20 left blank

Division 28.3     Mediation

28.21      Nomination of mediator

                If an order referring a proceeding to mediation does not nominate a mediator, the Registrar will, as soon as practicable after an order for a mediation is made:

                (a)    nominate a Registrar or some other person as the mediator; and

               (b)    give the parties written notice of:

                          (i)    the name and address of the mediator; and

                         (ii)    the time, date and place of mediation; and

                        (iii)    any further documents that any of the parties must give to the mediator for the purposes of the mediation.

Note   In fixing the time and date for the mediation, the Registrar will:

(a)   consult with the parties; and

(b)   have regard to any order of the Court fixing the time within which the mediation must be started or completed, or both.

28.22      Conduct of mediation

                A mediation must be conducted in accordance with any orders made by the Court.

28.23      Report if only part of proceeding to be mediated

                If part only of a proceeding is the subject of a mediation order, the mediator may, on the conclusion of the mediation, report to the Court in terms agreed between the parties.

28.24      Termination of mediation — mediator initiated

                If the mediator considers that a mediation should not continue, the mediator must:

                (a)    terminate the mediation; and

               (b)    report to the Court on the outcome of the mediation.

28.25      Agreement at mediation

                If the parties reach an agreement at a mediation, the parties may file consent orders in accordance with rule 39.11.

Rules 28.26–28.30 left blank

Division 28.4         ADR process

28.31      Nomination of person to conduct ADR process

                If an order referring a proceeding to an ADR process does not nominate a suitable person, the Registrar will, as soon as practicable after the order is made for an ADR process:

                (a)    nominate a Registrar or some other person to conduct the ADR process; and

               (b)    give the parties written notice of:

                          (i)    the name and address of that person; and

                         (ii)    the time, date and place of the ADR process; and

                        (iii)    any further documents that any of the parties must give to the person for the purpose of the ADR process.

Note 1   Suitable person is defined in rule 28.02 (2).

Note 2   In fixing the time and date for the ADR process, the Registrar will:

(a)   consult with the parties; and

(b)   have regard to any order of the Court fixing the time within which the ADR must be started or completed, or both.

28.32      Conduct of ADR process

                An ADR process must be conducted in accordance with any orders made by the Court.

28.33      Report if only part of proceeding to be subject of ADR process

                If part only of a proceeding is the subject of an ADR process order, the person conducting the ADR process may, on the conclusion of the ADR process, report to the Court in terms agreed between the parties.

28.34      Termination of ADR process

                If the person conducting the ADR process considers that the ADR process should not continue, the person must, subject to any order of the Court:

                (a)    terminate the ADR process; and

               (b)    report to the Court on the outcome of the ADR process.

28.35      Agreement at ADR process

                If the parties reach an agreement at an ADR process, the parties may file consent orders in accordance with rule 39.11

Rules 28.36–28.40 left blank

Division 28.5         International arbitration

28.41      Definitions for Division 28.5

         (1)   In this Division:

International Arbitration Act means the International Arbitration Act 1974.

Model Law means the UNCITRAL Model Law on International Commercial Arbitration, adopted by the United Nations Commission on International Trade Law on 21 June 1985, and as amended by the United Nations Commission on International Trade Law on 7 July 2006, the English text of which is set out in Schedule 2 to the International Arbitration Act.

party to an arbitral proceeding means a party to an arbitral proceeding to which the International Arbitration Act applies.

         (2)   Unless the contrary intention appears, expressions used in this Division have the same meaning as in the International Arbitration Act.

28.42      Application of Division

                A party to an arbitral proceeding must comply with:

                (a)    this Division; and

               (b)    any other Rules that are relevant and consistent with this Division.

28.43      Application for stay of arbitration

         (1)   A party to an arbitration agreement who wants an order under section 7 of the International Arbitration Act to stay the whole or part of a proceeding must file an originating application, in accordance with Form 51.

         (2)   The originating application must be accompanied by:

                (a)    a copy of the arbitration agreement; and

               (b)    an affidavit stating the material facts on which the claim for relief is based.

28.44      Enforcing foreign award

         (1)   A person who wants to enforce a foreign award under section 8 (3) of the International Arbitration Act must file an originating application, in accordance with Form 52.

         (2)   The originating application must be accompanied by:

                (a)    the documents mentioned in section 9 of the International Arbitration Act; and

               (b)    an affidavit stating:

                          (i)    the extent to which the foreign award has not been complied with, at the date the application is made; and

                         (ii)    the usual or last-known place of residence or business of the person against whom it is sought to enforce the foreign award or, if the person is a company, the last-known registered office of the company.

         (3)   The application may be made without notice to any person.

Note   Without notice is defined in the Dictionary.

28.45      Application for relief under Model Law

         (1)   A party who wants relief under article 11 (3), 11 (4), 13 (3), 14, 16 (3), 17H (3), 17I, 17J, 27 or 34 of the Model Law must file an originating application, in accordance with Form 53.

         (2)   The application must be accompanied by an affidavit stating the material facts on which the claim for relief is based.

28.46      Subpoenas for Division 28.5

         (1)   A party to an arbitral proceeding who wants the Court to issue a subpoena under section 23 (3) of the International Arbitration Act (the issuing party) must file an application, in accordance with Form 54.

         (2)   The application must be accompanied by:

                (a)    a draft subpoena, in accordance with subrule (3); and

               (b)    an affidavit stating the following:

                          (i)    the parties to the arbitral proceeding;

                         (ii)    the name of the arbitrator conducting the arbitral proceeding;

                        (iii)    the place where the arbitral proceeding is being conducted;

                        (iv)    the nature of the arbitral proceeding;

                         (v)    the terms of the permission given by the arbitral tribunal for the application;

                        (vi)    the conduct money (if appropriate) to be paid to the addressee;

                       (vii)    the witness expenses payable to the addressee.

         (3)   For paragraph (2) (a), the draft subpoena must be in accordance with:

                (a)    for a subpoena to attend for examination before an arbitral tribunal — Form 55A; or

               (b)    for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena — Form 55B; or

                (c)    for a subpoena to attend for examination and produce documents — Form 55C.

         (4)   The Court may:

                (a)    fix an amount that represents the reasonable loss and expense the addressee will incur in complying with the subpoena; and

               (b)    direct that the amount be paid by the issuing party to the addressee before or after the addressee complies with the subpoena.

         (5)   An amount fixed under subrule (4) is in addition to any conduct money or witness expenses payable under paragraph (2) (b).

28.47      Application under section 23A of International Arbitration Act

         (1)   A party to an arbitral proceeding who wants an order under section 23A (3) of the International Arbitration Act must file:

                (a)    if a proceeding has not been started in relation to the arbitral proceeding — an originating application, in accordance with Form 56; or

               (b)    if a proceeding has been started in relation to the arbitral proceeding — an interlocutory application in that proceeding.

         (2)   An application under subrule (1) must be accompanied by an affidavit stating the following:

                (a)    the person against whom the order is sought;

               (b)    the order sought;

                (c)    the ground under section 23A (1) relied on;

               (d)    the terms of the permission given by the arbitral tribunal for the application;

                (e)    the material facts relied on for the making of the order.

28.48      Application under section 23F or 23G of International Arbitration Act

         (1)   A party to an arbitral proceeding who wants an order under section 23F or 23G of the International Arbitration Act must file:

                (a)    if a proceeding has not been started in relation to the arbitral proceeding — an originating application, in accordance with Form 57;

               (b)    if a proceeding has been started in relation to the arbitral proceeding — an interlocutory application in that proceeding.

         (2)   An application under subrule (1) must be accompanied by an affidavit stating the following:

                (a)    the person against whom the order is sought;

               (b)    the order sought;

                (c)    the material facts relied on for the making of the order;

               (d)    either:

                          (i)    if the application is made under section 23F — the terms of the order of the arbitral tribunal allowing disclosure of the information and the date the order was made; or

                         (ii)    if the application is made under section 23G:

                                   (A)     the date the arbitral tribunal’s mandate was terminated; and

                                   (B)     the terms of the request made to the arbitral tribunal for disclosure of the confidential information and the date the request was made; and

                                   (C)     the terms of the arbitral tribunal’s refusal to make the order and the date the refusal was made.

28.49      Recognition of award

         (1)   A party to an arbitral proceeding who wants to enforce an award under section 35 (4) of the International Arbitration Act must file an originating application, in accordance with Form 58.

Note   Award is defined in section 31 (1) of the International Arbitration Act.

         (2)   The application must be accompanied by an affidavit stating:

                (a)    the extent to which the award has not been complied with, at the date the application is made; and

               (b)    the usual or last-known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a company, the last-known registered office of the company.

         (3)   The application may be made without notice.

Note   Without notice is defined in the Dictionary.

28.50      Documents not in English language

                A party to a proceeding to which this Division applies who wants to rely on a document that is not in the English language must provide a certified English translation of the document to the Court and to any other party to the proceeding.

Note   Section 9 of the International Arbitration Act also deals with the translation of awards and arbitration agreements in proceedings to which Part II of the International Arbitration Act applies.

Rules 28.51–28.60 left blank

Division 28.6     Referral by Court to referee

28.61      Order of referral

         (1)   A party may apply to the Court for an order under section 54A of the Act referring any of the following matters to one or more referees for inquiry and report:

                (a)    a proceeding in the Court;

               (b)    one or more questions or issues arising in a proceeding, whether of fact or law or both, and whether raised by pleadings, agreement of parties or otherwise.

         (2)   A referee to whom a matter has been referred under section 54A of the Act must give, in a report, the referee’s opinion on the matter.

         (3)   If the Court sets a time for a referee to give an opinion, the referee must provide the opinion within the set time.

Note   The Court may make directions about the remuneration of the referee.

28.62      Appointment of referees

                The Court may appoint a person the Court considers appropriate as:

                (a)    a referee; or

               (b)    a senior referee.

28.63      Two or more referees

         (1)   The decision of the senior referee is to prevail if:

                (a)    the Court appoints 2 referees; and

               (b)    the 2 referees cannot agree on a decision to be made during an inquiry.

         (2)   If the Court appoints 3 or more referees:

                (a)    the decision of the majority prevails in relation to a decision to be made during the inquiry; or

               (b)    if there is no majority — the decision of the senior referee prevails.

28.64      Security for remuneration

                A party may apply to the Court for an order that another party give security for a referee’s remuneration.

28.65      Conduct of inquiry

         (1)   A party may apply to the Court, before or after an inquiry has started:

                (a)    for directions about:

                          (i)    how the inquiry should be conducted; or

                         (ii)    any matter arising in the inquiry; or

               (b)    to authorise the referee to take evidence for the purpose of a subpoena issued under Division 24.2.

         (2)   A referee must conduct an inquiry in accordance with any directions made by the Court.

         (3)   However, if the Court has not made any directions about how the inquiry should be conducted, the referee may conduct the inquiry in any way the referee thinks fit.

         (4)   A referee is not bound in the inquiry by the rules of evidence but may be informed in any way that the referee thinks fit.

         (5)   Evidence before a referee in an inquiry:

                (a)    may be given orally or in writing; and

               (b)    must, if the Court requires, be given:

                          (i)    on oath or by affirmation; or

                         (ii)    by affidavit.

         (6)   A referee may administer an oath or affirmation to a witness giving evidence in an inquiry.

         (7)   Each party to an inquiry must, before the time fixed by the referee conducting the inquiry, give a brief statement of the findings of fact and law contended by the party to:

                (a)    the referee; and

               (b)    any other party to the inquiry.

         (8)   A party to an inquiry must:

                (a)    do all things required of the party by the referee to enable the referee to form an opinion about the matter; and

               (b)    not wilfully do, or cause to be done, any act to delay or prevent the referee forming an opinion.

28.66      Report

                A referee must give to the Court a written report about the matter referred to the referee that:

                (a)    has attached to it the statements given by the parties under rule 28.65 (7); and

               (b)    sets out the referee’s opinion on the matter; and

                (c)    sets out the referee’s reasons for the opinion.

Note   The Court will send the report to the parties on receipt of the report.

28.67      Proceeding on report

         (1)   After a report has been given to the Court, a party may, on application, ask the Court to do any of the following:

                (a)    adopt, vary or reject the report, in the whole or in part;

               (b)    require an explanation by way of a further report by the referee;

                (c)    remit on any ground, for further consideration by the referee, the whole or any part of the matter that was referred to the referee for inquiry and report;

               (d)    decide any matter on the evidence taken before the referee, with or without additional evidence;

                (e)    give judgment or make an order in relation to the proceeding or question.

         (2)   A party must not adduce in the Court evidence given in an inquiry.

Part 29               Evidence

Division 29.1         Affidavits

29.01      When affidavit may be sworn or affirmed

                An affidavit may be sworn or affirmed before or after the proceeding starts.

Note 1   Sections 21 and 23 of the Evidence Act 1995 allow a witness in a proceeding to choose whether to take an oath or affirmation.

Note 2   Section 45 of the Act provides the persons before whom an affidavit may be sworn. See also section 186 of the Evidence Act 1995.

29.02      Form of affidavit

         (1)   An affidavit must comply with Form 59 and be made in the first person.

         (2)   The first visible page (being the first page, the cover page or the front cover page) must state:

                (a)    the deponent’s description; and

               (b)    the date on which the affidavit was sworn.

Note   Description is defined in the Dictionary.

         (3)   An affidavit must be divided into numbered paragraphs and, to the extent practicable, each paragraph must deal with a separate subject.

         (4)   A document that accompanies an affidavit must be annexed to the affidavit unless the document is:

                (a)    an original; or

               (b)    of such dimensions that it cannot be annexed.

         (5)   If paragraph (4) (a) or (b) applies, the document must be exhibited.

         (6)   Each page, including any annexure, must be clearly and consecutively numbered starting with page ‘1’.

         (7)   Each page of the affidavit (but not any annexure) must be signed by the deponent (other than a deponent who is unable to sign the affidavit because of a physical disability) and by the person before whom it is sworn.

         (8)   Each annexure and exhibit must be identified on its first page by a certificate entitled in the same manner as the affidavit and by the deponent’s initials followed by a number (starting with ‘1’ for the first annexure or exhibit).

         (9)   The annexures and exhibits must be numbered sequentially.

       (10)   No subsequent annexure or exhibit in any later affidavit sworn by the same deponent may duplicate the number of a previous annexure or exhibit.

       (11)   Each exhibit to an affidavit must be signed on the first page of the exhibit by the person before whom the affidavit is sworn.

29.03  Content of affidavits

         (1)   An affidavit must not:

                (a)    contain any scandalous material; or

               (b)    contain any frivolous or vexatious material; or

                (c)    be evasive or ambiguous; or

               (d)    otherwise be an abuse of the process of the Court.

         (2)   If an affidavit contains any of the material mentioned in subrule (1), a party may apply to the Court for an order that the affidavit, or a part of the affidavit, be removed from the Court file.

29.04      Swearing or affirming affidavit by person who has disability

         (1)   If the deponent is illiterate, the person before whom the affidavit is sworn must certify in or below the jurat that the affidavit was read to the deponent, in the person’s presence.

         (2)   If the deponent is blind, the person before whom the affidavit is sworn must certify in or below the jurat that the affidavit was read in the person’s presence to the deponent.

         (3)   However, subrule (2) does not apply if the deponent:

                (a)    has read the affidavit by means of a computer with a screen reader, text-to-speech software or a Braille display; and

               (b)    includes in the affidavit a statement that the deponent:

                          (i)    is blind; and

                         (ii)    has read the affidavit; and

                        (iii)    specifies the means by which it was read.

         (4)   If the deponent is, because of a physical disability, incapable of signing the affidavit, the person before whom the affidavit is sworn must certify in or below the jurat that the deponent signified that the deponent swore the affidavit.

         (5)   If an affidavit is made by:

                (a)    an illiterate deponent and does not include a certificate in accordance with subrule (1); or

               (b)    a blind deponent and does not include:

                          (i)    a certificate in accordance with subrule (2); or

                         (ii)    a statement in accordance with subrule (3);

the affidavit may be used only if the party seeking to use the affidavit satisfies the Court that the affidavit was read to the deponent.

29.05      Service of exhibits and annexures

                Copies of any documents exhibited or annexed to an affidavit must be served with the affidavit.

29.06      Irregularity in form

                An affidavit may be accepted for filing despite an irregularity in form.

29.07      Use of affidavit not filed or in irregular form

                A party must apply for the leave of the Court to use an affidavit that has not been filed, or that has been filed but is irregular in form.

29.08      Serving of affidavits

                A party intending to use an affidavit must serve it on each other interested party at least 3 days before the occasion for using it arises.

29.09      Cross‑examination of deponent

         (1)   A party may give notice requiring a person making an affidavit to attend for cross‑examination.

         (2)   The notice under subrule (1) must be given to the party filing the affidavit or proposing to use it.

         (3)   If a person required to attend under subrule (1) fails to do so, the person’s affidavit may not be used.

Note   The Court may dispense with compliance with the Rules — see rule 1.34.

         (4)   If a person making an affidavit is cross‑examined, the party using the affidavit may re-examine the person.

Rule 29.10 left blank

Division 29.2         Evidence on commission taken in Australia or abroad

29.11      Order for examination of witness

         (1)   A party may apply to the Court for an order for:

                (a)    the examination of any person on oath or affirmation before a Judge or before such person appointed by the Court as examiner at any place whether in or out of Australia; or

               (b)    the sending or issue of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.

         (2)   A party seeking an order under subrule (1) must lodge, with the application, a draft of the order:

                (a)    for an examination; and

               (b)    for the appointment of an examiner; and

                (c)    for a letter of request.

Note   Examiner is defined in the Dictionary.

29.12      Letter of request

         (1)   On the making of an order under section 7 (1) (b) or (c) of the Foreign Evidence Act 1994 for the sending or issue of a letter of request, the party obtaining the order must lodge with the Registrar:

                (a)    a form of the appropriate letter of request; and

               (b)    the interrogatories (if any) and cross-interrogatories (if any) to accompany the letter of request; and

                (c)    if English is not an official language of the country to whose judicial authorities the letter of request is to be sent — a translation of each of the documents mentioned in paragraphs (a) and (b) in an official language of the country appropriate to the place where the evidence is to be taken; and

               (d)    an undertaking by the party obtaining the order, or the party’s lawyer:

                          (i)    to be responsible for all expenses incurred by the Court, or by any person at the request of the Court, for the letter of request; and

                         (ii)    on being given notice of the amount of those expenses — to pay the amount to the Registrar.

Note   If expenses are not paid, an order may be made under rule 29.22 (4).

         (2)   A translation lodged under paragraph (1) (c) must be certified by the person making it to be a correct translation, and the certificate must state the person’s full name and address and the person’s qualifications for making the translation.

29.13      Procedure for orders under section 7 (1) (a) or (b) of Foreign Evidence Act 1994

                If an order is made under section 7 (1) (a) or (b) of the Foreign Evidence Act 1994, rules 29.14 to 29.22 apply, with any necessary changes, and subject to any directions given by the Court under section 8 (1) of that Act.

29.14      Documents for examiner

                The party obtaining an order for examination before an examiner under section 7 (1) (a) or (b) of the Foreign Evidence Act 1994 must give the examiner copies of the documents in the proceeding that are necessary for the examiner to know the questions to which the examination is to relate.

29.15      Appointment for examination

         (1)   The examiner must:

                (a)    appoint a place and time for the examination; and

               (b)    give notice of the place and time appointed to the party obtaining the order.

         (2)   The time appointed for the examination must be as soon as practicable after the order for examination is made.

         (3)   The party must, not later than 3 days before the time appointed, give notice of the appointment to each other party.

29.16      Conduct of examination

         (1)   The examiner must permit each party and any lawyer representing the party to attend the examination.

         (2)   The examiner must proceed in accordance with the procedure of the Court.

         (3)   A person examined may be cross-examined and re-examined.

         (4)   The examination, cross-examination and re-examination of a person must be conducted in the same manner as a trial.

         (5)   The examiner may put any question to a person examined before him or her about:

                (a)    the meaning of any answer made by the person; or

               (b)    any matter arising in the course of the examination.

         (6)   The examiner may adjourn the examination from time to time or from place to place.

29.17      Examination of additional persons

         (1)   The examiner may, with the consent in writing of each party to the proceeding, examine any person, in addition to the person named or provided for in the order for examination.

         (2)   If the examiner examines a person under subrule (1), the examiner must attach to the person’s deposition the consent of each of the parties.

29.18      Objection

                If, during an examination, a person being examined objects to answering a question or producing a document or thing:

                (a)    the examiner must state to the parties the examiner’s opinion on, but must not decide, the validity of the ground for the objection; and

               (b)    the following information must be set out in the deposition of the person:

                          (i)    the question objected to;

                         (ii)    the ground for the objection;

                        (iii)    the opinion of the examiner;

                        (iv)    the answer that the person gave to the question (if any); and

                (c)    the Court may decide the validity of the ground for the objection; and

               (d)    if the Court decides against the person making the objection or any party, the Court may order the person or party to pay the costs arising from the objection.

29.19      Taking of depositions

         (1)   The deposition of a person examined must be recorded by the examiner or some other person attending the examination.

         (2)   The deposition must include, as precisely as possible, a record of the statement, questions and answers of the person examined.

29.20      Authentication and filing

         (1)   The deposition of a person examined must be provided to the person for reading.

         (2)   The examiner must, if any party requests, ask the person examined to sign the person’s deposition.

         (3)   The examiner must authenticate the deposition by the examiner’s signature.

         (4)   The examiner must make on, or attach to, the deposition a note signed by the examiner of the time occupied in the examination and the fees received by the examiner for the examination.

         (5)   The examiner must send the deposition to the Registrar for filing.

         (6)   The examiner must send any exhibits to the Registrar.

29.21      Special report

         (1)   The examiner may give the Court a special report on an examination about the absence of any person from, or the conduct of any person at, the examination.

         (2)   The Court may direct proceedings to be taken, or make any order, on the report that the Court thinks fit.

29.22      Default of witness

         (1)   If a person has been required by subpoena to attend before an examiner, and the person refuses to be sworn for the purpose of the examination or to answer any lawful question, or to produce any document or thing, the examiner must, at the request of any party, give to that party a certificate, signed by the examiner, of the refusal.

         (2)   The party who requested the certificate must file the certificate.

         (3)   The party who has filed the certificate may apply to the Court for an order that:

                (a)    the person answer the question or produce the document or thing; and

               (b)    the person pay the costs arising from the person’s refusal.

         (4)   If a party, or a party’s lawyer, gives an undertaking under subparagraph 29.12 (1) (d) (ii) and 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, the Court may without notice make an order that:

                (a)    the amount of the expenses be paid to the Registrar within a specified period of time; and

               (b)    the proceeding be stayed, to the extent that it concerns the whole or any part of a claim for relief by the party, until the amount of the expenses is paid.

Note   Without notice is defined in the Dictionary.

29.23      Evidence of future right or claim

         (1)   If a person claims to be entitled to any property or office on the happening of a future event, the person may apply to the Court for an order that evidence that may be material to establishing the right or claim be taken and preserved.

         (2)   An application mentioned in subrule (1) must be made by filing an originating application, in accordance with Form 60.

         (3)   The respondent to the application is the person against whom the right is alleged or the claim is made.

         (4)   If the application is about any matter or thing in which the Crown may have an interest, the Attorney-General may be made a respondent.

         (5)   If the Attorney-General is made a respondent under subrule (4), a deposition taken in the proceeding may be admissible in other proceedings despite the Crown not being a party to the proceeding to obtain evidence for a future right or claim.

         (6)   The Court may take the evidence in a proceeding to obtain evidence for a future right or claim or it may appoint an examiner under rule 29.11.

Part 30               Hearings

Division 30.1         Separate decisions on questions

30.01      Application for separate trials

         (1)   A party may apply to the Court for an order that a question arising in the proceeding be heard separately from any other questions.

         (2)   The application must be made before a date is fixed for trial of the proceeding.

Note 1   The Court may order that a party state a case and the question for decision.

Note 2   The Court will give any directions that are necessary for the hearing of the separate question.

30.02      Disposal of proceedings after hearing separate questions

                If a decision on a question substantially disposes of the proceeding or renders any further trial of the proceeding unnecessary, a party may apply to the Court for:

                (a)    judgment; or

               (b)    an order dismissing the whole or any part of the proceeding.

30.03      Attendance and production

         (1)   At any hearing of a proceeding, including the trial of the proceeding, a party may apply to the Court for an order for the attendance of any person before the Court, a Registrar, an examiner, a referee, or other person authorised to take evidence:

                (a)    for examination; or

               (b)    for production by that person of any document or thing specified in the order.

         (2)   An order may be made under subrule (1) even if the person whose attendance is required by the order has also been required to attend by subpoena.

Rules 30.04–30.10 left blank

Division 30.2         Consolidation

30.11      Consolidation of proceedings before trial

                If several proceedings are pending in the Court and the proceedings:

                (a)    involve some common question of law or fact; or

               (b)    are the subject of claims arising out of the same transaction or series of transactions;

any party to any of the proceedings may apply to the Court for an order that the proceedings be:

                (c)    consolidated; or

               (d)    heard together; or

                (e)    heard immediately after one another; or

                (f)    stayed until after the determination of any of the other proceedings.

Rules 30.12–30.20 left blank

Division 30.3         Trial

30.21      Absence of party at trial

         (1)   If a party is absent when a proceeding is called on for trial, another party may apply to the Court for an order that:

                (a)    if the absent party is the applicant:

                          (i)    the application be dismissed; or

                         (ii)    the application be adjourned; or

                        (iii)    the trial proceed only if specified steps are taken; or

               (b)    if the absent party is the respondent:

                          (i)    the hearing proceed generally or in relation to a particular aspect of the application; or

                         (ii)    the hearing be adjourned; or

                        (iii)    the trial proceed only if specified steps are taken.

         (2)   If a trial proceeds in a party’s absence and during or at the conclusion of the trial an order is made, the party who was absent may apply to the Court for an order:

                (a)    setting aside or varying the order; and

               (b)    for the further conduct of the proceeding.

30.22      No appearance by any party

                If no party appears when a proceeding is called on for trial the Court may:

                (a)    adjourn the proceeding to a specific date or generally; or

               (b)    order that the proceeding be dismissed.

30.23      Trial limitations

                A party may apply to the Court at or before the trial for an order:

                (a)    limiting the time for examining, cross-examining or re-examining a witness; or

               (b)    limiting the number of witnesses (including expert witnesses) that a party may call; or

                (c)    limiting the time that may be taken in making any oral submissions; or

               (d)    limiting the time that may be taken by a party in presenting the party’s case; or

                (e)    limiting the time that may be taken by the hearing; or

                (f)    limiting the number of documents that a party may tender in evidence; or

               (g)    that all or any part of any submissions be in writing; or

               (h)    limiting the length of any written submissions.

Note   For other directions, see rule 5.04.

30.24      Death before judgment

                If a party dies after the hearing of the proceeding has concluded, the Court may still proceed to give judgment, and an order be made for the entry of the judgment.

30.25      Evidence in other proceedings

                A party may apply to the Court to read evidence taken in another proceeding.

Note   Evidence includes an affidavit filed in another proceeding.

30.26      Plans, photographs and models

                If a party intends to tender any plan, photograph or model in a proceeding, the party must give the other parties at least 7 days before the start of the trial or hearing, an opportunity to inspect it and to agree to its admission without proof.

30.27      Consent

         (1)   A document is evidence of consent if it purports:

                (a)    to contain the written consent of a person to act:

                          (i)    as litigation representative of a person under a legal incapacity; or

                         (ii)    as trustee; or

                        (iii)    as receiver; or

                        (iv)    in any other office on appointment of the Court; and

               (b)    to be executed in accordance with subrule (2).

         (2)   A document is sufficiently executed for subrule (1):

                (a)    if the consenting person is not a corporation — the document is signed by the consenting person and the signature is verified by another person; or

               (b)    if the consenting person is a corporation — the document is executed in accordance with section 127 of the Corporations Act 2001.

Note   Litigation representative and person under a legal incapacity are defined in the Dictionary.

30.28      Notice to produce

         (1)   A party may serve on another party a notice, in accordance with Form 61, requiring the party served to produce any document or thing in the party’s control:

                (a)    at any trial or hearing in the proceeding; or

               (b)    at any hearing before a Registrar or any examiner or other person having authority to take evidence in the proceeding.

         (2)   If the document or thing required to be produced under subrule (1) is not produced, the party serving the notice may lead secondary evidence of the contents or nature of the document or thing.

         (3)   If a notice under subrule (1) specifies a date for production, and is served 5 days or more before that date, the party served with the notice must produce the document or thing in accordance with the notice, without the need for a subpoena for production.

Note   A party who fails to comply with a notice under subrule (1) may be liable to pay any costs incurred because of the failure.

30.29      Notice of intention to adduce evidence of previous representation

                A notice of intention to adduce evidence of a previous representation, under section 67 of the Evidence Act 1995:

                (a)    must be in accordance with Form 62; and

               (b)    may have attached to it an affidavit that sets out evidence of the previous representation.

Note   The Court may dispense with compliance with the Rules — see rule 1.34.

30.30      Notice of objection to tender of hearsay evidence if maker available

                A notice of objection to tender hearsay evidence if the maker is available, under section 68 of the Evidence Act 1995, must be in accordance with Form 63.

Note   The Court may dispense with compliance with the Rules — see rule 1.34.

30.31      Notice of intention to adduce tendency evidence

                A notice of intention to adduce tendency evidence, under section 97 (1) of the Evidence Act 1995, must be in accordance with Form 64.

Note   The Court may dispense with compliance with the Rules — see rule 1.34.

30.32      Notice of intention to adduce coincidence evidence

                A notice of intention to adduce coincidence evidence, under section 98 (1) of the Evidence Act 1995, must be in accordance with Form 65.

Note   The Court may dispense with compliance with the Rules — see rule 1.34.

30.33      Parties in lawful custody

                If a party or a witness is in lawful custody, the Court may make an order:

                (a)    that the party or the witness be produced; and

               (b)    for the continuing custody of the party or the witness.

Rules 30.34 – 30.40 left blank

Division 30.4         Assessment of damages

30.41      Order for calculation of amount of damages by Registrar

         (1)   An applicant may apply to the Court for an order that an amount of damages be calculated by the Registrar if:

                (a)    a respondent admits liability on an applicant’s claim, but denies liability to the extent of the damages claimed; or

               (b)    the Court finds that a party is liable to pay damages.

         (2)   A party may apply to a Registrar who is calculating damages under subrule (1) for an order to compel the attendance of witnesses and the production of documents by subpoena.

         (3)   The Registrar will calculate the amount of damages and give a certificate of the amount of damages to each party.

Note   The Court may make an order under this rule if the Court is satisfied that the amount of damages is substantially a matter of calculation.

30.42      Notice of objection to calculation

                A party who wants to object to a Registrar’s certificate must, within 7 days after receiving the Registrar’s certificate:

                (a)    give the Registrar a notice objecting to the certificate; and

               (b)    serve a copy of the notice on each other party.

Note   If the Registrar receives a notice the Registrar will provide a copy of the notice together with the Registrar’s certificate to the Court and notify the parties.

30.43      Procedure if notice given

                The party who has given notice under rule 30.42 must, within 21 days after giving notice, apply to the Court for an order that the Court assess the amount of damages payable.

30.44      Procedure if notice not given

                If no notice has been given under rule 30.42, the party who is entitled to a judgment for the damages calculated by the Registrar may apply to the Court:

                (a)    for a judgment on the Registrar’s certificate; and

               (b)    any other consequential orders.

Note 1   If no notice is received, the Registrar will give the Registrar’s certificate to the Court and notify the parties that the certificate has been given to the Court.

Note 2   The party may seek to have prejudgment interest included in the award — see section 51A of the Act. The party may also apply for costs.

Rules 30.45–30.50 left blank

Division 30.5         Accounts

30.51      Order for account to be taken

                A party who has claimed an account or makes a claim that involves taking an account may apply to the Court for an order:

                (a)    that an account be taken; and

               (b)    for the manner of taking or vouching the account; and

                (c)    that the relevant books of account be evidence of the matters contained in them; and

               (d)    that any amount certified on taking the account to be due to any party be paid to the party.

30.52      Form and filing of account

                An accounting party must:

                (a)    number each side of an account consecutively; and

               (b)    file an affidavit to which the account is exhibited verifying the account.

30.53      Notice of additional charge or error in account

         (1)   If a party seeks to charge an accounting party with an amount not mentioned in the accounting party’s account, the party must give the accounting party notice of the charge.

         (2)   The notice must state, to the extent that the party is able, the amount the party seeks to charge and brief details about the amount.

         (3)   If a party claims that an item in an accounting party’s account contains an error, the party must give the accounting party notice of the claim and the grounds of the claim.

30.54      Orders to deal with delay

                If there is delay in the prosecution of an account, inquiry or other matter under an order, a party may apply to the Court for an order:

                (a)    staying or expediting the proceeding; or

               (b)    for the future conduct of the proceeding.

30.55      Order for account or inquiry before Registrar

         (1)   A party may apply to the Court for an order that the Registrar take an account or hold an inquiry under this Division.

         (2)   If the Court makes an order under subrule (1), the Registrar will take the account or hold the inquiry and give a certificate to each party stating:

                (a)    the amount due to any party; and

               (b)    the person liable to pay the amount.

30.56      Notice of objection to certificate

                A party who wants to object to a Registrar’s certificate must, within 7 days after receiving the Registrar’s certificate:

                (a)    give the Registrar a notice objecting to the certificate; and

               (b)    serve a copy of the notice on each other party.

Note   If the Registrar receives a notice the Registrar will provide a copy of the notice together with the Registrar’s certificate to the Court and notify the parties.

30.57      Procedure if notice given

The party who has given notice under rule 30.56 must, within 21 days after giving notice, apply to the Court for an order that the Court take the account or hold the inquiry.

30.58      Procedure if notice not given

                If no notice has been given under rule 30.56, the accounting party may apply to the Court:

                (a)    for a judgment on the Registrar’s certificate; and

               (b)    any other consequential orders.

Note 1   If no notice is received, the Registrar will provide the Registrar’s certificate to the Court and notify the parties that the certificate has been provided to the Court.

Note 2  The party might seek to have prejudgment interest included in the award — see section 51A of the Act. The party may also apply for costs.

Chapter 3    Original jurisdiction — special classes of proceedings

Part 31               Judicial review

Division 31.1         Administrative Decisions (Judicial Review) Act 1977

31.01      Application for order of review

         (1)   A person who wants to apply for an order under section 11 (1) of the AD(JR) Act must file an originating application, in accordance with Form 66.

         (2)   If the grounds of the application include an allegation of fraud or bad faith, the originating application must include details of the alleged fraud or bad faith.

         (3)   An application under the AD(JR) Act may be joined with an application for relief of a kind mentioned in section 39B of the Judiciary Act 1903 that arises out of, relates to or is connected with the same subject matter.

Note 1   AD(JR) Act is defined in the Dictionary.

Note 2   Division 31.2 deals with applications under section 39B of the Judiciary Act 1903.

31.02      Application for extension of time

         (1)   A person who wants to apply for an extension of time within which to lodge an application for an order of review under section 11 (1) (c) of the AD(JR) Act must file an application for an extension of time, in accordance with Form 67.

         (2)   An application for an extension of time must be accompanied by:

                (a)    an affidavit stating:

                          (i)    briefly but specifically, the facts on which the application relies; and

                         (ii)    why the application was not filed within time; and

               (b)    a draft application that complies with rule 31.01.

31.03      Documents to be filed and served

         (1)   An applicant must, at the time of filing an originating application or as soon as practicable thereafter, file the following documents if they are in the applicant’s possession:

                (a)    a statement of the terms of the decision that is the subject of the application; or

               (b)    a statement with respect to the decision:

                          (i)    given to the applicant under section 13 of the AD(JR) Act or section 28 of the AAT Act; or

                         (ii)    given by or on behalf of the person who made the decision, purporting to set out findings of facts, or a reference to the evidence or other material on which those findings were based or the reasons for making the decision.

         (2)   A copy of each document must be served, within 5 days after filing, on each other party.

Note   AAT Act is defined in the Dictionary.

31.04      Service

                A party to an application may apply to the Court for an order that:

                (a)    the application be served on the Attorney‑General; or

               (b)    the application be served on a specified person or class of persons in a specified manner.

31.05      Notice of objection to competency

         (1)   A respondent who objects to the competency of an application must, within 14 days after being served with the application, file a notice of objection to competency:

                (a)    in accordance with Form 68; and

               (b)    that, briefly but specifically, states the grounds of the objection.

         (2)   The applicant carries the burden of establishing the competency of an application.

         (3)   A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the application.

         (4)   If a respondent has not filed a notice under subrule (1), and the application is dismissed by the Court as incompetent, the respondent is not entitled to any costs of the application.

         (5)   If the Court decides that an application is not competent, the application is dismissed.

Rules 31.06–31.10 left blank

Division 31.2         Judiciary Act 1903

31.11      Form of application

         (1)   A person who wants to make an application for relief under section 39B of the Judiciary Act 1903 must file an originating application, in accordance with Form 69.

         (2)   An application under this rule may be joined with an application under Division 31.1 that arises out of, relates to or is connected with the same subject matter.

Note   Division 31.1 deals with applications under the AD(JR) Act.

31.12      Joinder of claims for relief

         (1)   A claim for relief under Division 31.1 that arises out of, relates to or is connected with the same matter as the application under this Division must be made in one application.

Note   Division 31.1 provides for applications for review under the AD(JR) Act.

         (2)   A claim for relief, other than an application under Division 31.1, may be joined in an application under this Division if the claim for relief:

                (a)    is within the jurisdiction of the Court; and

               (b)    arises out of, or relates to or is connected with, the same subject matter as the application.

Rules 31.13–31.20 left blank

Division 31.3         Migration Act 1958

31.21      Definitions for Division 31.3

                An expression used in this Division that is defined in the Migration Act 1958 has the same meaning in this Division as it has in that Act.

Note  For the definition of lawyer and migration decision, see section 5 of the Migration Act 1958. For the definition of tribunal decision, see section 486D of the Migration Act 1958.

31.22      Application for review of migration decision

         (1)   A person who wants to make an application for the review of a migration decision must file an originating application, in accordance with Form 70.

Note 1   The Federal Court only has original jurisdiction in relation to migration decisions of the kind identified in section 476A of the Migration Act 1958.

Note 2   A lawyer may file an application only if the application includes, or is accompanied by, a certificate under section 486I of the Migration Act 1958 signed by the lawyer.

Note 3   An application in relation to a tribunal decision must include a disclosure under section 486D of the Migration Act 1958.

Note 4   The application must be made within 35 days of the migration decision — see section 477A of the Migration Act 1958.

         (2)   If the grounds of the application include an allegation of fraud or bad faith, the application must include details of the alleged fraud or bad faith.

31.23      Application for extension of time

         (1)   A person who wants to apply for an extension of time within which to lodge an application for the review of a migration decision under section 477A (2) of the Migration Act 1958 must file an application for extension of time, in accordance with Form 67.

         (2)   An application for an extension of time must be accompanied by:

                (a)    an affidavit stating:

                          (i)    briefly but specifically, the facts on which the application relies; and

                         (ii)    why the application was not filed within time; and

               (b)    a draft originating application that complies with rule 31.22.

Note   The notes to rule 31.22 also apply to applications for extensions of time.

31.24      Notice of objection to competency

         (1)   A respondent who objects to the competency of an application, must, within 14 days after being served with the application, file a notice of objection to competency:

                (a)    in accordance with Form 68; and

               (b)    that, briefly but specifically, states the grounds of the objection.

         (2)   The applicant carries the burden of establishing the competency of an application.

         (3)   A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the application.

         (4)   If a respondent has not filed a notice under subrule (1), and the application is dismissed by the Court as incompetent, the respondent is not entitled to any costs of the application.

         (5)   If the Court decides that an application is not competent, the application is dismissed.

Rules 31.25–31.30 left blank

Division 31.4         Australian Crime Commission Act 2002

31.31      Applications under section 57 of Australian Crime Commission Act 2002

                Division 31.1 applies to an application for review of a matter arising under section 57 of the Australian Crime Commission Act 2002, except that:

                (a)    a document that is required to be served under rule 31.03 (2) must be served within 1 day after filing the statement; and

               (b)    a notice of objection to competency under rule 31.05 must be filed within 5 days after being served with the application.

Part 32               Remittals and referrals from the High Court

Division 32.1         Matters remitted from the High Court

32.01      Filing of order of remittal

                If the High Court has made an order remitting a proceeding to the Court, the applicant must file the order in:

                (a)    the District Registry specified in the order of remittal; or

               (b)    if a District Registry is not specified in the order of remittal — the District Registry of the State or Territory in which the proceeding in which the order for remittal was started.

Note 1   On receipt of an order of remittal, the Registrar will allot a serial number to the order, as if the order was an originating application filed in the Registry, and attach a notice to the order.

Note 2   The notice will be in accordance with Form 71 and will state:

(a)   a return date and place of hearing; and

(b)   that, before taking any step in the proceeding, a party must file a notice of address for service unless the party has already filed a notice of address for service in the High Court.

32.02      Service of order and notice

         (1)   The applicant must serve on each party to the proceeding in the High Court a sealed copy of the order of the High Court, that has attached to it a notice completed by the Registrar, in accordance with Form 71.

         (2)   The applicant may serve the notice on a party at the party’s address for service for the proceeding in the High Court.

32.03      Address for service

                A party who has not filed a notice of address for service in the High Court must, within 7 days of being served with the documents mentioned in rule 32.02 (1), file a notice of address for service.

32.04      Hearing of application to show cause

                If the High Court remits an application for an order to show cause, the applicant may, without first obtaining an order to show cause, apply to the Court for:

                (a)    an injunction; or

               (b)    an order for the issue of:

                          (i)    a writ of mandamus; or

                         (ii)    a writ of prohibition; or

                        (iii)    a writ of certiorari; or

                        (iv)    any other writ.

Rules 32.05–32.10 left blank

Division 32.2         Referral of petition under Commonwealth Electoral Act 1918

32.11      Filing of order referring petition or part of petition

         (1)   If the High Court has made an order referring a petition under section 354 (1), or part of a petition under section 354 (3), of the Commonwealth Electoral Act 1918 to the Court, the applicant must file the order in the District Registry specified in the order.

         (2)   If the High Court has made an order mentioned in subrule (1) and the order does not specify a District Registry, the applicant must file the order:

                (a)    if the election or return that the petition seeks to invalidate relates to a Senator — in the District Registry in the State or Territory for which the election was held; or

               (b)    if the election or return that the petition seeks to invalidate relates to a member — in the District Registry in the State or Territory in which the electoral division for which the member was elected or returned is located.

Note 1   On receipt of an order referring a petition, the Registrar will allot a serial number to the order as if the order was an application filed in the Registry, and attach a notice to the order.

Note 2   The notice will be in accordance with Form 72 and will:

(a)      fix the return date and place for a hearing; and

(b)      state that before taking any step in the proceeding, a party must file a notice of address for service, unless the party has already entered a notice of address for service in the High Court.