Federal Register of Legislation - Australian Government

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Federal Court Rules 2011

Authoritative Version
SLI 2011 No. 134 Rules/Court & Tribunal Rules as amended, taking into account amendments up to Federal Court Legislation Amendment (Criminal Proceedings) Rules 2016
Administered by: Attorney-General's
Registered 14 Nov 2016
Start Date 10 Nov 2016

Federal Court Rules 2011

Select Legislative Instrument No. 134, 2011

made under the

Federal Court of Australia Act 1976

Compilation No. 6

Compilation date:                              10 November 2016

Includes amendments up to:            F2016L01728

Registered:                                         14 November 2016

 

About this compilation

This compilation

This is a compilation of the Federal Court Rules 2011 that shows the text of the law as amended and in force on 10 November 2016 (the compilation date).

The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.

Uncommenced amendments

The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.

Application, saving and transitional provisions for provisions and amendments

If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.

Editorial changes

For more information about any editorial changes made in this compilation, see the endnotes.

Modifications

If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.

Self‑repealing provisions

If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.

  

  

  


Contents

Chapter 1—Introductory provisions                                                         1

Part 1—Preliminary                                                                                                             1

Division 1.1—Scope                                                                                                       1

1.01....................... Name of Rules.................................................................... 1

1.02....................... Commencement.................................................................. 1

1.03....................... Repeal of previous Rules.................................................... 1

1.04....................... Application......................................................................... 1

Division 1.2—Application about procedures                                                   2

1.21....................... Application for orders about procedures............................. 2

Division 1.3—General powers of the Court                                                     3

1.31....................... Orders to have regard to nature and complexity of proceeding                3

1.32....................... Court may make any order it considers appropriate in the interests of justice          3

1.33....................... Orders may be subject to conditions................................... 3

1.34....................... Dispensing with compliance with Rules............................. 3

1.35....................... Orders inconsistent with Rules........................................... 3

1.36....................... Orders other than in open court.......................................... 3

1.37....................... Directions to Registrars...................................................... 3

1.38....................... Fixing of time by Court...................................................... 3

1.39....................... Extension and shortening of time........................................ 4

1.40....................... Exercise of Court’s power.................................................. 4

1.41....................... Other orders that may be made........................................... 4

1.42....................... Orders may include consequences of non‑compliance........ 4

Division 1.4—Interpretation                                                                                     5

1.51....................... Definitions—the Dictionary................................................ 5

1.52....................... References to Forms........................................................... 5

Division 1.5—Time                                                                                                         6

1.61....................... Calculation of time.............................................................. 6

Part 2—Registry and documents                                                                                  7

Division 2.1—Registry                                                                                                 7

2.01....................... Use of seal and stamps of Court......................................... 7

2.02....................... Transfer of proceeding to another place.............................. 7

Division 2.2—Documents                                                                                            8

2.11....................... General provisions about documents.................................. 8

2.12....................... Compliance with approved forms....................................... 8

2.13....................... Titles of documents............................................................. 8

2.14....................... Subsequent documents to be endorsed with Court number 8

2.15....................... Signature............................................................................. 9

2.16....................... Details at foot of each document......................................... 9

Division 2.3—Lodging and filing documents                                                  10

2.21....................... How documents may be lodged with the Court................ 10

2.22....................... Faxing a document............................................................ 10

2.23....................... Sending a document by electronic communication............ 11

2.24....................... Documents sent by electronic communication.................. 11

2.25....................... When is a document filed.................................................. 11

2.26....................... Refusal to accept document for filing—abuse of process or frivolous or vexatious documents.......................................................................................... 12

2.27....................... When documents will not be accepted in a Registry......... 12

2.28....................... Documents accepted for filing—removal from Court file and storage     13

2.29....................... Documents on a Court file—removal, redaction and storage 13

Division 2.4—Custody and inspection of documents                                 15

2.31....................... Custody of documents...................................................... 15

2.32....................... Inspection of documents................................................... 15

Division 2.5—Administration of money paid into Court and payment out          17

2.41....................... Establishment of Litigants’ Fund...................................... 17

2.42....................... Dealing with money paid into Court................................. 17

2.43....................... Payment out of Litigants’ Fund........................................ 17

Part 3—Registrars                                                                                                               18

Division 3.1—Powers of Registrars                                                                    18

3.01....................... Powers of the Court that may be exercised by a Registrar 18

3.02....................... Authority to administer oaths and affirmations................. 18

3.03....................... Orders other than in open court........................................ 19

3.04....................... Application for orders in relation to Registrars................. 19

3.05....................... Application to the Registrar for an application to be determined by the Court          19

Division 3.2—Reviewing a Registrar’s exercise of power                     20

3.11....................... Application for review of the Registrar’s exercise of power 20

Part 4—Lawyers                                                                                                                   21

Division 4.1—General                                                                                                21

4.01....................... Proceeding by lawyer or in person................................... 21

4.02....................... Power to act by lawyer..................................................... 21

4.03....................... Appointment of a lawyer—notice of acting...................... 21

4.04....................... Termination of retainer by party........................................ 21

4.05....................... Termination of retainer by lawyer..................................... 21

Division 4.2—Court referral for legal assistance                                       23

4.11....................... Definitions for Division 4.2.............................................. 23

4.12....................... Referral for legal assistance.............................................. 23

4.13....................... A party has no right to apply for a referral........................ 23

4.14....................... Acceptance of referral certificate and provision of legal assistance          23

4.15....................... Ceasing to provide legal assistance................................... 23

4.16....................... Application for Registrar’s permission to cease providing legal assistance              24

4.17....................... Cessation of referral certificate.......................................... 24

4.18....................... Disbursements.................................................................. 25

4.19....................... Professional fees............................................................... 25

Part 5—Court supervision of proceedings                                                           26

Division 5.1—Return date and directions                                                        26

5.01....................... Parties to attend Court on return date................................ 26

5.02....................... Parties to file notice of address for service before return date  26

5.03....................... Respondent’s genuine steps statement.............................. 26

5.04....................... Making directions............................................................. 26

5.05....................... Adjournment of directions hearing................................... 28

5.06....................... Application for directions—cross‑claims.......................... 28

5.07....................... Interlocutory orders.......................................................... 28

5.08....................... Hearing and determination of matter at directions hearing 28

Division 5.2—Orders on default                                                                           30

5.21....................... Self‑executing orders........................................................ 30

5.22....................... When a party is in default................................................. 30

5.23....................... Orders on default.............................................................. 30

5.24....................... Contempt.......................................................................... 31

Part 6—Court supervision of parties and other persons                             32

Division 6.1—Vexatious proceedings                                                                 32

6.01....................... Scandalous, vexatious or oppressive matter...................... 32

6.02....................... Certificate of vexatious proceedings order........................ 32

6.03....................... Application for leave to institute proceedings................... 32

Division 6.2—Use of communication and recording devices in Court 33

6.11....................... Use of communication device or recording device in place where hearing taking place.......................................................................................... 33

6.12....................... Contempt.......................................................................... 33

Chapter 2—Original jurisdiction—proceedings generally 34

Part 7—Orders before start of a proceeding                                                      34

Division 7.1—Injunctions, preservation of property and receivers  34

7.01....................... Order before start of proceeding....................................... 34

Division 7.2—Approval of agreement for person under a legal incapacity        35

7.11....................... Compromise or settlement of matter before proceeding.... 35

Division 7.3—Preliminary discovery                                                                 36

7.21....................... Definitions for Division 7.3.............................................. 36

7.22....................... Order for discovery to ascertain description of respondent 36

7.23....................... Discovery from prospective respondent........................... 37

7.24....................... Procedure for applications under this Division................. 37

7.25....................... List of documents............................................................. 37

7.26....................... Privilege............................................................................ 37

7.27....................... Inspection of documents................................................... 38

7.28....................... Copying of documents produced for inspection............... 38

7.29....................... Costs................................................................................. 38

Division 7.4—Freezing orders                                                                               39

7.31....................... Definitions for Division 7.4.............................................. 39

7.32....................... Freezing order................................................................... 39

7.33....................... Ancillary order.................................................................. 39

7.34....................... Order may be against person not a party to proceeding.... 39

7.35....................... Order against judgment debtor or prospective judgment debtor or third party         40

7.36....................... Jurisdiction....................................................................... 41

7.37....................... Service outside Australia of application for freezing order or ancillary order           41

7.38....................... Costs................................................................................. 41

Division 7.5—Search orders                                                                                   42

7.41....................... Definitions for Division 7.5.............................................. 42

7.42....................... Search order...................................................................... 42

7.43....................... Requirements for grant of search order............................. 42

7.44....................... Jurisdiction....................................................................... 42

7.45....................... Terms of search order....................................................... 43

7.46....................... Independent lawyers......................................................... 43

7.47....................... Costs................................................................................. 43

Part 8—Starting proceedings                                                                                        44

Division 8.1—Originating applications                                                             44

8.01....................... Starting proceeding—application...................................... 44

8.02....................... Applicant’s genuine steps statement................................. 44

8.03....................... Application to state relief claimed..................................... 44

8.04....................... Application starting migration litigation to include certificate 45

8.05....................... Application to be accompanied by statement of claim or affidavit            45

8.06....................... Service of originating documents...................................... 46

8.07....................... Changing return date......................................................... 46

Division 8.2—Notice of constitutional matter                                               47

8.11....................... Notice of constitutional matter.......................................... 47

8.12....................... Service of notice............................................................... 47

Division 8.3—Amendments to an originating application                       48

8.21....................... Amendment generally....................................................... 48

8.22....................... Date on which amendment takes effect............................. 48

8.23....................... Procedure for making amendment.................................... 49

8.24....................... Time for amending an originating application under Court order             49

8.25....................... Service of amended originating application....................... 49

Part 9—Parties and proceedings                                                                                50

Division 9.1—Parties, interveners and causes of action                          50

9.01....................... Multiple causes of action.................................................. 50

9.02....................... Joinder of parties—general............................................... 50

9.03....................... Joinder of applicants with joint entitlement....................... 50

9.04....................... Joinder of persons with common liability......................... 50

9.05....................... Joinder of parties by Court order...................................... 50

9.06....................... Application for separate trials—inconvenient joinder of causes of action or parties 51

9.07....................... Errors in joinder of parties................................................ 51

9.08....................... Removal of parties by Court order.................................... 51

9.09....................... Death, bankruptcy or transmission of interest................... 51

9.10....................... No joinder or substitution after death of party.................. 52

9.11....................... Substitution of party......................................................... 52

9.12....................... Interveners........................................................................ 52

Division 9.2—Representative proceedings                                                      53

9.21....................... Representative party—general.......................................... 53

9.22....................... Enforcement of order for or against representative party.. 53

9.23....................... Representative party—beneficiaries.................................. 53

9.24....................... Deceased persons............................................................. 53

9.25....................... Conduct of proceeding by particular party........................ 54

Division 9.3—Grouped proceedings under Part IVA of the Act         54

9.31....................... Interpretation for Division 9.3.......................................... 54

9.32....................... Starting a representative proceeding.................................. 54

9.33....................... Person may give consent to be a group member............... 54

9.34....................... Opt out notices.................................................................. 54

9.35....................... Application for order relating to the procedure to be followed in a representative proceeding.......................................................................................... 55

Division 9.4—Partnerships                                                                                      56

9.41....................... Proceeding by or against partners in partnership name..... 56

9.42....................... Disclosure of partners’ names.......................................... 56

9.43....................... Proceeding between members of partnerships.................. 56

9.44....................... Denial by person served as partner................................... 57

9.45....................... Defence to be in partnership name.................................... 57

9.46....................... Entry of order................................................................... 57

Division 9.5—Business name proceedings                                                       58

9.51....................... Proceeding against a person who carries on a business under a business name       58

9.52....................... Proceeding against a business name................................. 58

9.53....................... Proceeding under this Division or Division 9.4................ 58

9.54....................... Amendment of parties....................................................... 59

9.55....................... Variation of order............................................................. 59

9.56....................... Order for discovery—proceeding brought against a person in the person’s business name.......................................................................................... 59

Division 9.6—Persons under a legal incapacity                                           61

9.61....................... Proceeding by or against person under a legal incapacity. 61

9.62....................... Persons who may be a litigation representative................. 61

9.63....................... Appointment of litigation representative by the Court....... 61

9.64....................... Consent to be filed............................................................ 62

9.65....................... Removal of litigation representative by the Court............. 62

9.66....................... Conduct of proceeding...................................................... 62

9.67....................... No deemed admissions..................................................... 62

9.68....................... Discovery and interrogatories........................................... 63

9.69....................... Payment into Court........................................................... 63

9.70....................... Compromise or settlement of matter in proceeding........... 63

9.71....................... Application by litigation representative for approval of agreement           63

Part 10—Service                                                                                                                   64

Division 10.1—Personal service                                                                           64

10.01..................... Service on individual........................................................ 64

10.02..................... Service on corporation...................................................... 64

10.03..................... Service on unincorporated association.............................. 64

10.04..................... Service on organisation..................................................... 64

10.05..................... Service on partnership...................................................... 65

10.06..................... Service in a proceeding brought against a person in the person’s business name    65

10.07..................... Service in a proceeding under the Patents Act 1990.......... 65

10.08..................... Service in a proceeding under the Trade Marks Act 1995 65

10.09..................... Service on person under a legal incapacity........................ 66

10.10..................... Personal service on a person under a legal incapacity....... 66

10.11..................... Deemed service of originating application........................ 67

10.12..................... Refusal to accept document served personally.................. 67

Division 10.2—Service other than by personal service                            68

10.21..................... Identity of person served.................................................. 68

10.22..................... Acceptance of service by lawyer....................................... 68

10.23..................... Deemed service................................................................. 68

10.24..................... Substituted service............................................................ 68

10.25..................... Service by filing................................................................ 69

10.26..................... Service by Court............................................................... 69

10.27..................... Service of interlocutory injunction.................................... 69

10.28..................... Service under agreement................................................... 69

Division 10.3—Ordinary service                                                                          70

10.31..................... Ordinary service............................................................... 70

10.32..................... Time of service................................................................. 70

Division 10.4—Service outside Australia                                                         70

10.41..................... Definitions for Division 10.4............................................ 70

10.42..................... When originating application may be served outside Australia                71

10.43..................... Application for leave to serve originating application outside Australia   72

10.44..................... Service of other documents............................................... 74

10.45..................... Application of other rules................................................. 74

10.46..................... Method of service............................................................. 74

10.47..................... Proof of service................................................................ 74

10.48..................... Deemed service................................................................. 75

10.49..................... Substituted service............................................................ 75

Division 10.5—Service through diplomatic channel or by transmission to foreign government                                                                                            76

10.51..................... Documents to be lodged with the Court............................ 76

10.52..................... Order for payment of expenses......................................... 76

Division 10.6—Service under Hague Convention                                       77

10.61..................... Definitions for Division 10.6............................................ 77

10.62..................... Provisions of this Division to prevail............................... 78

10.63..................... Service abroad of local judicial documents—application of rules 10.64 to 10.68     78

10.64..................... Application for request for service abroad........................ 79

10.65..................... How application to be dealt with....................................... 80

10.66..................... Procedure on receipt of certificate of service..................... 80

10.67..................... Payment of costs............................................................... 81

10.68..................... Evidence of service........................................................... 81

10.69..................... Default judgment following service abroad of initiating process—application of rules 10.70 to 10.72............................................................................. 82

10.70..................... Restriction on power to enter default judgment if certificate of service filed            82

10.71..................... Restriction on power to enter default judgment if certificate of service not filed      82

10.72..................... Setting aside judgment in default of appearance................ 83

10.73..................... Local service of foreign judicial documents – application of rules 10.74 to 10.76   83

10.74..................... Certain documents to be referred to Attorney‑General’s Department       84

10.75..................... Service.............................................................................. 84

10.76..................... Affidavit as to service....................................................... 85

Part 11—Address for service                                                                                        86

11.01..................... Address for service—general........................................... 86

11.02..................... Address for service—corporations................................... 86

11.03..................... Address for service—proceeding against person in person’s business name          86

11.04..................... Address for service—partnership..................................... 86

11.05..................... Receivers.......................................................................... 87

11.06..................... When must notice of address for service be filed.............. 87

11.07..................... How to file notice of address for service.......................... 87

11.08..................... Service of notice of address for service............................ 87

Part 12—Submitting notices                                                                                          88

12.01..................... Submitting notice.............................................................. 88

Part 13—Jurisdiction—setting aside originating application                    89

13.01..................... Setting aside originating application etc............................ 89

Part 14—Interlocutory orders for preservation of rights and property  90

Division 14.1—Inspection of property                                                              90

14.01..................... Order for inspection etc of property.................................. 90

14.02..................... Service of application........................................................ 90

14.03..................... View by Court.................................................................. 90

Division 14.2—Preservation etc of property                                                 91

14.11..................... Preservation of property................................................... 91

14.12..................... Disposal of personal property........................................... 91

14.13..................... Interim distribution of property or income from property. 91

14.14..................... Payment before determination of all interested persons.... 91

Division 14.3—Receivers                                                                                          92

14.21..................... Application to appoint receiver......................................... 92

14.22..................... Guarantee.......................................................................... 92

14.23..................... Powers.............................................................................. 92

14.24..................... Remuneration.................................................................... 92

14.25..................... Accounts........................................................................... 92

14.26..................... Default.............................................................................. 92

14.27..................... Death of receiver............................................................... 93

Part 15—Cross‑claims and third party claims                                                   94

Division 15.1—Making cross‑claim                                                                    94

15.01..................... Cross–claim by respondent............................................... 94

15.02..................... Starting cross‑claim.......................................................... 94

15.03..................... Title of cross‑claim and subsequent documents................ 94

15.04..................... Time for bringing cross‑claim........................................... 94

15.05..................... Application for extension of time to file cross‑claim......... 94

15.06..................... Cross–claim to be accompanied by statement of cross‑claim or affidavit 95

15.07..................... Cross–claim to state relief claimed.................................... 95

15.08..................... Service of notice of cross‑claim on cross‑respondent....... 96

15.09..................... Service of pleadings and documents................................. 96

15.10..................... Conduct of proceeding after cross‑claim is filed............... 96

15.11..................... Separate proceeding in relation to cross‑claim.................. 96

15.12..................... Cross‑claim for contribution or indemnity........................ 97

15.13..................... Hearings in relation to cross‑claims.................................. 97

15.14..................... Co‑cross‑respondents....................................................... 97

Division 15.2—Amendment of cross‑claim                                                     98

15.15..................... Amendment generally....................................................... 98

15.16..................... Date on which amendment takes effect............................. 98

15.17..................... Procedure for making amendment.................................... 98

15.18..................... Time for amending notice of cross‑claim under Court order 99

15.19..................... Service of amended cross‑claim........................................ 99

Part 16—Pleadings                                                                                                            100

Division 16.1—General                                                                                           100

16.01..................... Pleading to include name of person who prepared it....... 100

16.02..................... Content of pleadings—general........................................ 100

16.03..................... Pleading of facts............................................................. 101

16.04..................... References to documents or spoken words..................... 101

16.05..................... Conditions precedent...................................................... 101

16.06..................... Inconsistent allegations or claims.................................... 101

16.07..................... Admissions, denials and deemed admissions................. 101

16.08..................... Matters that must be expressly pleaded........................... 101

16.09..................... Defence of tender before start of proceeding.................. 102

16.10..................... Defence claiming set‑off................................................. 102

16.11..................... Joinder of issue............................................................... 102

16.12..................... Close of pleadings.......................................................... 102

Division 16.2—Striking out pleadings                                                              103

16.21..................... Application to strike out pleadings.................................. 103

Division 16.3—Progress of pleadings                                                              104

16.31..................... Application of Division 16.3.......................................... 104

16.32..................... Defence to application..................................................... 104

16.33..................... Reply.............................................................................. 104

Division 16.4—Particulars                                                                                     105

16.41..................... General........................................................................... 105

16.42..................... Fraud, misrepresentation etc........................................... 105

16.43..................... Conditions of mind......................................................... 105

16.44..................... Damages and exemplary damages.................................. 105

16.45..................... Application for order for particulars............................... 106

Division 16.5—Amendment of pleadings                                                        107

16.51..................... Amendment without needing the leave of the Court....... 107

16.52..................... Disallowance of amendment of pleading........................ 107

16.53..................... Application for leave to amend....................................... 107

16.54..................... Date on which amendment takes effect........................... 107

16.55..................... Consequential amendment of defence............................. 107

16.56..................... Consequential amendment of reply................................. 108

16.57..................... Implied joinder of issue after amendment....................... 108

16.58..................... Time for amending pleading under Court order.............. 108

16.59..................... Procedure for making amendment to pleading................ 109

16.60..................... Service of amendment..................................................... 109

Part 17—Interlocutory applications                                                                       110

17.01..................... Interlocutory application................................................. 110

17.02..................... Reliance on correspondence or undisputed documents... 110

17.03..................... Service on others............................................................ 110

17.04..................... Hearing and determination of interlocutory application—absence of party              111

Part 18—Interpleader proceedings                                                                         112

Division 18.1—Stakeholder’s interpleader                                                   112

18.01..................... Application for relief by way of interpleader.................. 112

18.02..................... How application to be made............................................ 112

18.03..................... Orders that may be sought.............................................. 112

18.04..................... Default by claimant......................................................... 113

18.05..................... Neutrality of stakeholder................................................. 113

18.06..................... Order in several proceedings.......................................... 113

Division 18.2—Sheriff’s interpleader                                                               114

18.11..................... Notice of claim................................................................ 114

18.12..................... Notice of claim to be served on execution creditor.......... 114

18.13..................... Admission of claim by execution creditor....................... 114

18.14..................... Application by Sheriff for interpleader........................... 115

Part 19—Security for costs                                                                                           116

19.01..................... Application for an order for security for costs................ 116

Part 20—Discovery and inspection of documents                                          117

Division 20.1—General                                                                                           117

20.01..................... Withholding documents on public interest grounds........ 117

20.02..................... Privilege.......................................................................... 117

20.03..................... Undertakings or orders applying to documents.............. 117

Division 20.2—Discovery                                                                                       118

20.11..................... Discovery must be for the just resolution of the proceeding 118

20.12..................... No discovery without court order................................... 118

20.13..................... Application for discovery............................................... 118

20.14..................... Standard discovery......................................................... 119

20.15..................... Non‑standard and more extensive discovery.................. 119

20.16..................... Giving discovery............................................................ 120

20.17..................... List of documents........................................................... 120

20.18..................... Copies of documents...................................................... 120

20.19..................... Claim of privilege........................................................... 121

20.20..................... Supplementary discovery................................................ 121

20.21..................... Order for particular discovery......................................... 121

20.22..................... Deponent for affidavit for discovery............................... 121

20.23..................... Discovery from non‑party.............................................. 122

20.24..................... Non‑party’s obligation.................................................... 122

20.25..................... Non‑party’s costs and expenses..................................... 122

Division 20.3—Production for inspection                                                      124

20.31..................... Notice to produce document in pleading or affidavit....... 124

20.32..................... Order for production from party..................................... 124

20.33..................... Order for production from non‑party.............................. 124

20.34..................... Copying of documents produced for inspection............. 124

20.35..................... Production to Court........................................................ 125

Part 21—Interrogatories                                                                                                126

21.01..................... Order for interrogatories................................................. 126

21.02..................... When application may be made....................................... 126

21.03..................... Answers to interrogatories.............................................. 126

21.04..................... Affidavit verifying written answers to interrogatories.... 126

21.05..................... Orders dealing with insufficient answers........................ 127

21.06..................... Answers tendered as evidence........................................ 127

21.07..................... Public interest................................................................. 128

Part 22—Admissions                                                                                                        128

22.01..................... Notice to admit facts or documents................................. 128

22.02..................... Notice disputing facts or documents............................... 128

22.03..................... Disputing party to pay costs if document is proved etc... 128

22.04..................... Facts or documents taken to be admitted if not disputed. 128

22.05..................... Deemed admission.......................................................... 128

22.06..................... Withdrawal of admissions.............................................. 129

22.07..................... Judgment on admissions................................................. 129

Part 23—Experts                                                                                                                130

Division 23.1—Court experts                                                                               130

23.01..................... Appointment of Court expert.......................................... 130

23.02..................... Court expert’s report....................................................... 130

23.03..................... Court expert’s report—use at trial................................... 130

23.04..................... Other expert’s reports on the question............................ 131

Division 23.2—Parties’ expert witnesses and expert reports             132

23.11..................... Calling expert evidence at trial........................................ 132

23.12..................... Provision of guidelines to an expert................................ 132

23.13..................... Contents of an expert report............................................ 132

23.14..................... Application for expert report........................................... 132

23.15..................... Evidence of experts......................................................... 133

Part 24—Subpoenas                                                                                                         134

Division 24.1—Leave to issue subpoena                                                         134

24.01..................... Leave to issue subpoena................................................. 134

Division 24.2—Subpoenas to give evidence and to produce documents                135

24.11..................... Definitions for Division 24.2.......................................... 135

24.12..................... Issuing of subpoena........................................................ 135

24.13..................... Form of subpoena........................................................... 136

24.14..................... Change of date for attendance or production................... 136

24.15..................... Setting aside or other relief............................................. 137

24.16..................... Service............................................................................ 137

24.17..................... Compliance with subpoena............................................. 137

24.18..................... Production otherwise than on attendance........................ 138

24.19..................... Removal, return, inspection, copying and disposal of documents and things           138

24.20..................... Inspection of, and dealing with, documents and things produced otherwise than on attendance....................................................................... 138

24.21..................... Return of documents and things produced...................... 139

24.22..................... Costs and expenses of compliance.................................. 140

24.23..................... Failure to comply with subpoena—contempt of court.... 140

24.24..................... Documents and things in custody of Court..................... 140

Part 25—Offers to settle                                                                                                 142

25.01..................... Offer to compromise....................................................... 142

25.02..................... Notice to be signed......................................................... 142

25.03..................... Offer to compromise—content....................................... 142

25.04..................... Offer to be paid within 28 days...................................... 142

25.05..................... Timing of offer............................................................... 142

25.06..................... No communication to Court of offer............................... 142

25.07..................... Withdrawal of offer........................................................ 143

25.08..................... Acceptance of offer......................................................... 143

25.09..................... Withdrawal of acceptance............................................... 143

25.10..................... Failure to comply with offer........................................... 143

25.11..................... Multiple respondents...................................................... 144

25.12..................... Taxation of costs where offer accepted........................... 144

25.13..................... Contributor parties.......................................................... 144

25.14..................... Costs where offer not accepted....................................... 144

Part 26—Ending proceedings early                                                                        146

Division 26.1—Summary judgment and stay of proceedings              146

26.01..................... Summary judgment......................................................... 146

Division 26.2—Withdrawal and discontinuance                                        147

26.11..................... Withdrawal of defence etc............................................... 147

26.12..................... Discontinuance............................................................... 147

26.13..................... Service of notice............................................................. 148

26.14..................... Effect of discontinuance.................................................. 148

26.15..................... Stay of proceeding until costs paid................................. 148

Part 27—Transfer of proceedings                                                                           149

Division 27.1—Family Court of Australia                                                    149

27.01..................... Transfer to Family Court of Australia............................. 149

Division 27.2—Federal Circuit Court of Australia                                  150

27.11..................... Transfer to Federal Circuit Court of Australia................ 150

27.12..................... Factors to be taken into account...................................... 150

27.13..................... Transfer from Federal Circuit Court of Australia............ 150

Division 27.3—Cross‑vesting                                                                               152

27.21..................... Transfer of proceeding from the Court........................... 152

27.22..................... Application by Attorney‑General for transfer of proceeding from the Court           152

27.23..................... Transfer of proceeding to the Court................................ 152

Part 28—Alternative dispute resolution                                                               153

Division 28.1—General                                                                                           153

28.01..................... General........................................................................... 153

28.02..................... Orders that may be sought.............................................. 153

28.03..................... Arbitration, mediation and ADR process........................ 153

28.04..................... Court may terminate mediation or ADR process............ 153

28.05..................... Parties may refer proceeding to mediation, arbitration or ADR process   154

Division 28.2—Arbitration                                                                                    155

28.11..................... Appointment of arbitrator............................................... 155

28.12..................... Applications by interlocutory application........................ 155

28.13..................... Applications for registration........................................... 155

28.14..................... Applications for order in terms of an award................... 156

Division 28.3—Mediation                                                                                       157

28.21..................... Nomination of mediator.................................................. 157

28.22..................... Conduct of mediation...................................................... 157

28.23..................... Report if only part of proceeding to be mediated............ 157

28.24..................... Termination of mediation—mediator initiated................. 157

28.25..................... Agreement at mediation.................................................. 157

Division 28.4—ADR process                                                                                158

28.31..................... Nomination of person to conduct ADR process............. 158

28.32..................... Conduct of ADR process............................................... 158

28.33..................... Report if only part of proceeding to be subject of ADR process              158

28.34..................... Termination of ADR process.......................................... 158

28.35..................... Agreement at ADR process............................................ 158

Division 28.5—International arbitration                                                       159

28.41..................... Definitions for Division 28.5.......................................... 159

28.42..................... Application of Division.................................................. 159

28.43..................... Application for stay of arbitration................................... 159

28.44..................... Enforcing foreign award................................................. 159

28.45..................... Application for relief under Model Law......................... 160

28.46..................... Subpoenas for Division 28.5.......................................... 160

28.47..................... Application under section 23A of International Arbitration Act               161

28.48..................... Application under section 23F or 23G of International Arbitration Act   161

28.49..................... Recognition of award...................................................... 162

28.50..................... Documents not in English language................................ 162

Division 28.6—Referral by Court to referee                                               163

28.61..................... Order of referral.............................................................. 163

28.62..................... Appointment of referees................................................. 163

28.63..................... Two or more referees...................................................... 163

28.64..................... Security for remuneration............................................... 163

28.65..................... Conduct of inquiry.......................................................... 163

28.66..................... Report............................................................................. 164

28.67..................... Proceeding on report....................................................... 164

Part 29—Evidence                                                                                                             166

Division 29.1—Affidavits                                                                                        166

29.01..................... When affidavit may be sworn or affirmed...................... 166

29.02..................... Form of affidavit............................................................. 166

29.03..................... Content of affidavits....................................................... 167

29.04..................... Swearing or affirming affidavit by person who has disability  167

29.05..................... Service of exhibits and annexures................................... 168

29.06..................... Irregularity in form......................................................... 168

29.07..................... Use of affidavit not filed or in irregular form.................. 168

29.08..................... Serving of affidavits....................................................... 168

29.09..................... Cross‑examination of deponent...................................... 168

Division 29.2—Evidence on commission taken in Australia or abroad 169

29.11..................... Order for examination of witness................................... 169

29.12..................... Letter of request.............................................................. 169

29.13..................... Procedure for orders under section 7 (1) (a) or (b) of Foreign Evidence Act 1994  170

29.14..................... Documents for examiner................................................. 170

29.15..................... Appointment for examination......................................... 170

29.16..................... Conduct of examination.................................................. 170

29.17..................... Examination of additional persons.................................. 170

29.18..................... Objection........................................................................ 171

29.19..................... Taking of depositions..................................................... 171

29.20..................... Authentication and filing................................................. 171

29.21..................... Special report.................................................................. 171

29.22..................... Default of witness........................................................... 172

29.23..................... Evidence of future right or claim..................................... 172

Part 30—Hearings                                                                                                             173

Division 30.1—Separate decisions on questions                                         173

30.01..................... Application for separate trials......................................... 173

30.02..................... Disposal of proceedings after hearing separate questions 173

Division 30.2—Consolidation                                                                               174

30.11..................... Consolidation of proceedings before trial....................... 174

Division 30.3—Trial                                                                                                  175

30.21..................... Absence of party at trial.................................................. 175

30.22..................... No appearance by any party............................................ 175

30.23..................... Trial limitations............................................................... 175

30.24..................... Death before judgment.................................................... 176

30.25..................... Evidence in other proceedings........................................ 176

30.26..................... Plans, photographs and models...................................... 176

30.27..................... Consent........................................................................... 176

30.28..................... Notice to produce............................................................ 176

30.29..................... Notice of intention to adduce evidence of previous representation           177

30.30..................... Notice of objection to tender of hearsay evidence if maker available        177

30.31..................... Notice of intention to adduce tendency evidence............. 177

30.32..................... Notice of intention to adduce coincidence evidence........ 177

30.33..................... Parties in lawful custody................................................. 177

30.34..................... Attendance and production............................................. 177

Division 30.4—Assessment of damages                                                          179

30.41..................... Order for calculation of amount of damages by Registrar 179

30.42..................... Notice of objection to calculation.................................... 179

30.43..................... Procedure if notice given................................................ 179

30.44..................... Procedure if notice not given.......................................... 179

Division 30.5—Accounts                                                                                         180

30.51..................... Order for account to be taken.......................................... 180

30.52..................... Form and filing of account.............................................. 180

30.53..................... Notice of additional charge or error in account............... 180

30.54..................... Orders to deal with delay................................................ 180

30.55..................... Order for account or inquiry before Registrar................. 180

30.56..................... Notice of objection to certificate...................................... 181

30.57..................... Procedure if notice given................................................ 181

30.58..................... Procedure if notice not given.......................................... 181

Chapter 3—Original jurisdiction—special classes of proceedings  182

Part 31—Judicial review                                                                                                182

Division 31.1—Administrative Decisions (Judicial Review) Act 1977 182

31.01..................... Application for order of review...................................... 182

31.02..................... Application for extension of time.................................... 182

31.03..................... Documents to be filed and served................................... 182

31.04..................... Service............................................................................ 183

31.05..................... Notice of objection to competency.................................. 183

Division 31.2—Judiciary Act 1903                                                                   184

31.11..................... Form of application......................................................... 184

31.12..................... Joinder of claims for relief.............................................. 184

Division 31.3—Migration Act 1958                                                                  185

31.21..................... Definitions for Division 31.3.......................................... 185

31.22..................... Application for review of migration decision.................. 185

31.23..................... Application for extension of time.................................... 185

31.24..................... Notice of objection to competency.................................. 185

Division 31.4—Australian Crime Commission Act 2002                      187

31.31..................... Applications under section 57 of Australian Crime Commission Act 2002             187

Part 32—Remittals and referrals from the High Court                             188

Division 32.1—Matters remitted from the High Court                          188

32.01..................... Filing of order of remittal................................................ 188

32.02..................... Service of order and notice............................................. 188

32.03..................... Address for service......................................................... 188

32.04..................... Hearing of application to show cause............................. 188

Division 32.2—Referral of petition under Commonwealth Electoral Act 1918                189

32.11..................... Filing of order referring petition or part of petition......... 189

32.12..................... Service of order and notice............................................. 189

32.13..................... Address for service......................................................... 189

32.14..................... Lists of votes claimed or objected to............................... 189

32.15..................... Counter‑charges.............................................................. 190

32.16..................... Notice of trial.................................................................. 190

32.17..................... Withdrawal of petition and substitution of another petitioner 190

32.18..................... Death of petitioner.......................................................... 191

Part 33—Appeals from decisions of bodies other than courts               192

Division 33.1—Taxation appeals                                                                        192

33.01..................... Definitions for Division 33.1.......................................... 192

33.02..................... Starting AOD appeals..................................................... 192

33.03..................... Documents to be filed and served by Commissioner—matters other than private rulings........................................................................................ 193

33.04..................... Documents to be filed and served by Commissioner—private rulings     193

33.05..................... Starting DPO appeals..................................................... 194

33.06..................... Documents to be filed and served by Commissioner...... 194

Division 33.2—Administrative Appeals Tribunal                                      195

33.11..................... Definitions for Division 33.2.......................................... 195

33.12..................... Starting an appeal—filing and service of notice of appeal 195

33.13..................... Application for extension of time to start appeal............. 196

33.14..................... Amendment of notice of appeal without leave—supplementary notice    196

33.15..................... Application for leave to raise other questions of law or rely on other grounds        196

33.16..................... Respondent’s address for service................................... 196

33.17..................... Form of application for stay of Tribunal decision........... 196

33.18..................... Registrar of Tribunal to send documents........................ 197

33.19..................... No written reasons for decision...................................... 197

33.20..................... Notice of cross‑appeal.................................................... 198

33.21..................... Notice of contention........................................................ 198

33.22..................... Directions hearing........................................................... 198

33.23..................... Appeal books.................................................................. 199

33.24..................... Assistance from Registrar............................................... 199

33.25..................... Title of appeal books....................................................... 200

33.26..................... Content of appeal books................................................. 200

33.27..................... Written submissions, chronology and lists of authorities 201

33.28..................... Filing of Part C documents............................................. 201

33.29..................... Further evidence on appeal............................................. 201

33.30..................... Notice of objection to competency of appeal................... 202

33.31..................... Discontinuance of appeal................................................ 202

33.32..................... Application to dismiss appeal......................................... 203

33.33..................... Absence of party............................................................. 203

Division 33.3—Appeals from the Superannuation Complaints Tribunal              204

33.34..................... Appeals under section 46 of the Superannuation (Resolution of Complaints) Act 1993........................................................................................ 204

Division 33.4—Appeals from the National Native Title Tribunal    205

33.40..................... Appeals under section 169 of the Native Title Act 1993.. 205

Part 34—Other proceedings                                                                                        206

Division 34.1—Fair Work proceedings                                                          206

34.01..................... Definitions for Division 34.1.......................................... 206

34.02..................... Application of Division 34.1 and other provisions of these Rules           207

34.03..................... Application in relation to dismissal from employment in contravention of a general protection........................................................................................ 207

34.04..................... Application in relation to alleged unlawful termination of employment    207

34.05..................... Application in relation to alleged discrimination............. 208

34.06..................... Application for rule to show cause................................. 208

34.07..................... Requirements for applications for an inquiry or ballot.... 209

34.08..................... Application for interim orders......................................... 210

Division 34.3—Intellectual property                                                                211

34.21..................... Definitions for Division 34.3.......................................... 211

34.22..................... Application of Division 34.3.......................................... 212

34.23..................... Appearance by Commissioner........................................ 212

34.24..................... Starting an appeal—filing and service of notice of appeal 212

34.25..................... Application for extension of time to file notice of appeal 213

34.26..................... Grounds of appeal or particulars not stated in notice of appeal                213

34.27..................... Particulars of non‑patentable invention........................... 213

34.28..................... Notice of cross‑appeal.................................................... 214

34.29..................... Notice of contention........................................................ 214

34.30..................... Provision of documents by Commissioner..................... 214

34.31..................... Evidence......................................................................... 215

34.32..................... Application for determination of equitable remuneration 215

34.33..................... Applications for determination of terms of doing an act. 215

34.34..................... Infringement of EL rights—particulars........................... 215

34.35..................... Infringement of copyright—particulars........................... 215

34.36..................... Infringement of registered designs—particulars............. 215

34.37..................... Application for compulsory licence—Designs Act......... 216

34.38..................... Revocation of registration or rectification of Register—Designs Act       216

34.39..................... Infringement of monopoly in protected design—particulars—Olympic Insignia Protection Act.................................................................................. 216

34.40..................... Application for rectification of Register of Olympic Designs or dispute of validity of protected design.............................................................. 216

34.41..................... Applications under section 105(1) of Patents Act........... 217

34.42..................... Applications under section 120(1) of Patents Act........... 218

34.43..................... Applications under section 125(1) of Patents Act........... 218

34.44..................... Applications under section 128(1) of Patents Act........... 218

34.45..................... Applications under Chapter 12 of Patents Act................ 218

34.46..................... Dispute of validity of patent—particulars of invalidity... 219

34.47..................... Infringement of PBR—particulars.................................. 220

34.48..................... Infringement of registered trade marks—particulars....... 220

34.49..................... Dispute of validity of registration of trade mark—particulars of invalidity              220

34.50..................... Experimental proof as evidence...................................... 220

Division 34.4—Trans‑Tasman proceedings—general                            222

34.61..................... Definitions for Division 34.4.......................................... 222

34.62..................... Proceedings under the Trans‑Tasman Proceedings Act.. 222

34.63..................... Originating application under Trans‑Tasman Proceedings Act                222

34.64..................... Interlocutory application under Trans‑Tasman Proceedings Act              222

34.65..................... Application for interim relief........................................... 223

34.66..................... Application for leave to serve subpoena in New Zealand 223

34.67..................... Form of subpoena........................................................... 224

34.68..................... Application to set aside subpoena................................... 224

34.69..................... Application for issue of certificate of non‑compliance with subpoena     224

34.70..................... Documents relating to application................................... 225

34.71..................... Application to enforce compliance with order made by New Zealand court             225

34.72..................... Notice of registration of NZ judgment............................ 225

34.73..................... Application for extension of time to give notice of registration of NZ judgment      225

34.74..................... Application to set aside registration of NZ judgment...... 226

34.75..................... Application for stay of enforcement of registered NZ judgment so that liable person can appeal judgment.............................................................. 226

34.76..................... Application for extension of time to apply for stay of enforcement of registered NZ judgment so that liable person can appeal judgment....................... 226

34.77..................... Application for order for use of audio link or audiovisual link                227

Division 34.5—Trans‑Tasman market proceedings                                 228

34.81..................... Definitions for Division 34.5.......................................... 228

34.82..................... Application of Division 34.5.......................................... 228

34.83..................... Filing documents in Australian market proceeding in New Zealand        228

34.84..................... Filing documents in a NZ market proceeding in Australia 228

34.85..................... Federal Court sittings in New Zealand............................ 229

34.86..................... Application of rules 34.72 to 34.76................................ 229

Division 34.5A—Transitional arrangements for Divisions 34.4 and 34.5            230

34.86A.................. Transitional arrangements for Divisions 34.4 and 34.5.. 230

Division 34.6—Aboriginal and Torres Strait Islander Act 2005      231

34.91..................... Definition for Division 34.6........................................... 231

34.92..................... Form and service of election petition.............................. 231

34.93..................... Response to election petition........................................... 231

34.94..................... Reference as to qualifications or vacancy........................ 231

Division 34.7—Native title proceedings                                                          233

34.101................... Interpretation for Division 34.7...................................... 233

34.102................... Application of Division 34.7.......................................... 233

34.103................... Main application (native title and compensation)............ 233

34.104................... Joinder of parties to main application within relevant period 234

34.105................... Joinder of parties to main application after relevant period 234

34.106................... Withdrawal of a party..................................................... 234

34.107................... Form of applications other than main applications.......... 235

34.108................... Service of applications other than main applications....... 235

34.109................... Application for review of decision not to accept claim for registration     235

34.110................... Application to remove details of agreement from Register of Indigenous Land Use Agreements..................................................................... 236

34.111................... Application for order about return of, or access to, records 236

34.112................... Question to be special case............................................. 236

34.113................... Special case to be prepared—referral by mediator.......... 237

34.114................... Special case to be prepared—referral by NNTT............. 237

34.115................... Party having carriage of proceeding—referral by mediator 237

34.116................... Party having carriage of proceeding—referral by NNTT 237

34.117................... Referral of questions about whether a party should cease to be a party    237

34.118................... Report about breaches of good faith requirement............ 238

34.119................... Definition for rules 34.120 to 34.123............................. 238

34.120................... Evidentiary matters generally.......................................... 238

34.121................... Orders to take account of cultural or customary concerns 239

34.122................... Disclosure of evidence or information of cultural or customary nature, contrary to court order........................................................................................ 239

34.123................... Evidence of cultural or customary nature........................ 240

34.124................... Documents referring to certain material.......................... 240

34.125................... Evidence given in consultation with others..................... 240

34.126................... Evidence given not in normal course.............................. 240

34.127................... Inspection....................................................................... 240

34.128................... Taking evidence.............................................................. 241

34.129................... Conflict of interest.......................................................... 241

34.130................... Short title of proceeding.................................................. 241

34.131................... Notices of appointment of agent and change to agent’s address for service             241

34.132................... Application for leave to be represented by person who is not a lawyer    242

34.133................... Native Title Registrar application to Court for order as to notice              242

34.134................... Overlapping applications................................................ 242

34.135................... Court may order adjournment for purpose of agreement between parties                242

34.136................... Agreements regarding practical outcomes of native title determination    242

34.137................... Appearance by NNTT.................................................... 243

Division 34.8—Human rights proceedings                                                    244

34.161................... Definitions for Division 34.8.......................................... 244

34.162................... Application of Division 34.8.......................................... 244

34.163................... Starting a proceeding—application and claim................. 244

34.164................... Copy of application to be given to Commission............. 244

34.165................... Address for service......................................................... 244

34.166................... Appearance by special‑purpose Commissioner.............. 245

34.167................... Conduct of proceeding by litigation representative......... 245

Chapter 4—Appellate jurisdiction                                                           246

Part 35—Leave to appeal                                                                                              246

Division 35.1—Oral applications for leave to appeal from interlocutory judgments of the Court                                                                                                       246

35.01..................... Oral application for leave to appeal................................. 246

Division 35.2—Written applications for leave to appeal                       247

35.11..................... Application of Division.................................................. 247

35.12..................... Form of application......................................................... 247

35.13..................... Time for filing application............................................... 247

35.14..................... Extension of time to seek leave to appeal........................ 248

35.15..................... Service of application...................................................... 248

35.16..................... Method of service........................................................... 248

35.17..................... Address for service of respondent.................................. 248

35.18..................... Certain applications may be dealt with without an oral hearing                249

35.19..................... Submissions................................................................... 249

35.20..................... Objection to application being considered without oral hearing               249

35.21..................... Time for filing and serving affidavits.............................. 249

35.22..................... Directions....................................................................... 249

Division 35.3—Ending applications early                                                      251

35.31..................... Withdrawing an application............................................ 251

35.32..................... Dismissing application for want of prosecution.............. 251

35.33..................... Absence of a party.......................................................... 251

Division 35.4—Revocation of leave to appeal                                             252

35.41..................... Revocation or variation of grant of leave........................ 252

Part 36—Appeals                                                                                                               253

Division 36.1—Institution of appeals                                                               253

36.01..................... Form of notice of appeal................................................. 253

36.02..................... Filing of notice of appeal................................................ 254

36.03..................... Time for filing and serving notice of appeal.................... 254

36.04..................... Service on parties and lodgments.................................... 254

36.05..................... Extension of time to file notice of appeal........................ 254

36.06..................... Method of service........................................................... 255

36.07..................... Address for service of respondent.................................. 255

36.08..................... Stay of execution or proceedings under judgment appealed from            255

36.09..................... Security for costs of appeal............................................. 255

36.10..................... Amendment to notice of appeal....................................... 256

36.11..................... Directions....................................................................... 256

Division 36.2—Cross–appeals and notices of contention                      257

36.21..................... Cross‑appeal................................................................... 257

36.22..................... Time to file notice of cross‑appeal.................................. 257

36.23..................... Extension of time to file notice of cross‑appeal............... 257

36.24..................... Notice of contention........................................................ 257

Division 36.3—Parties to appeals and interveners                                   259

36.31..................... Parties............................................................................. 259

36.32..................... Applications to intervene................................................ 259

Division 36.4—Dealing with certain applications on the papers       260

36.41..................... Certain applications may be dealt with without an oral hearing                260

36.42..................... Submissions................................................................... 260

36.43..................... Objection to application being considered without oral hearing               261

Division 36.5—Preparation of appeals                                                           262

36.51..................... Appeal books.................................................................. 262

36.52..................... Assistance from Registrar............................................... 262

36.53..................... Title of appeal books....................................................... 263

36.54..................... Content of appeal books................................................. 263

36.55..................... Written submissions, chronology and lists of authorities 264

36.56..................... Filing of Part C documents............................................. 264

36.57..................... Further evidence on appeal............................................. 264

Division 36.6—Ending appeals                                                                            266

36.71..................... Definitions for Division 36.6.......................................... 266

36.72..................... Notice of objection to competency of appeal................... 266

36.73..................... Discontinuance of appeal................................................ 266

36.74..................... Application to dismiss appeal......................................... 267

36.75..................... Absence of party............................................................. 267

Part 38—Cases stated and questions reserved                                                 268

38.01..................... Application for case stated or question reserved............. 268

38.02..................... Case stated to be prepared etc......................................... 268

38.03..................... Directions....................................................................... 269

Chapter 5—Judgments, costs and other general provisions                270

Part 39—Orders                                                                                                                  270

Division 39.1—Judgments and orders                                                             270

39.01..................... Date of effect of judgment or order................................. 270

39.02..................... Time for compliance with orders.................................... 270

39.03..................... Dismissal of proceedings and stay of further proceedings 270

39.04..................... Varying or setting aside a judgment or order before it has been entered  270

39.05..................... Varying or setting aside judgment or order after it has been entered        270

39.06..................... Interest on judgment....................................................... 271

Division 39.2—Consent orders                                                                            271

39.11..................... Consent orders................................................................ 271

Division 39.3—Undertakings                                                                                272

39.21..................... Orders dealing with failure to fulfil undertakings........... 272

Division 39.4—Judgments and orders—entry                                            273

39.31..................... When entry is required.................................................... 273

39.32..................... Entry of an order............................................................. 273

39.33..................... Lodgment of orders for entry.......................................... 273

39.34..................... Order entered in Court.................................................... 273

39.35..................... Authentication of orders................................................. 274

Part 40—Costs                                                                                                                     275

Division 40.1—General                                                                                           275

40.01..................... Party and party costs....................................................... 275

40.02..................... Other order for costs....................................................... 275

40.03..................... Costs reserved................................................................ 275

40.04..................... Costs on interlocutory application or hearing.................. 275

40.05..................... Costs in other courts....................................................... 275

40.06..................... Costs improperly, unreasonably or negligently incurred. 275

40.07..................... Liability of lawyer to their client for misconduct............. 276

40.08..................... Reduction in costs otherwise payable............................. 276

Division 40.2—Taxation of costs                                                                        278

40.12..................... Application of Division 40.2 and 40.3............................ 278

40.13..................... Taxation of costs awarded on an interlocutory application 278

40.14..................... Order for taxation not required....................................... 278

40.15..................... Failure to file bill of costs............................................... 278

40.16..................... Unnecessary expense in proceeding before taxing officer 278

40.17..................... Filing bill for taxation..................................................... 278

40.18..................... Contents of bill............................................................... 279

40.19..................... Service of a bill............................................................... 279

40.20..................... Estimate of costs............................................................. 279

40.21..................... Objection to estimate....................................................... 279

40.22..................... Resolution at confidential conference.............................. 280

40.23..................... Provisional taxation........................................................ 280

40.24..................... Notice that bill is to be taxed........................................... 280

40.25..................... Notice of objection.......................................................... 281

40.26..................... Response to notice of objection...................................... 281

40.27..................... Taxation.......................................................................... 281

40.28..................... Powers of taxing officer................................................. 282

40.29..................... Costs to be allowed on taxation...................................... 282

40.30..................... Costs not to be allowed on taxation................................ 282

40.31..................... Exercise of taxing officer’s discretion............................. 283

40.32..................... Certificate of taxation...................................................... 283

40.33..................... Costs of taxation............................................................. 283

40.34..................... Review by Court............................................................. 283

40.35..................... Stay of costs................................................................... 284

Division 40.3—Short form bills                                                                           285

40.41..................... Short form bill on application for winding up under Corporations Act 2001          285

40.42..................... Procedure—short form bills under Corporations Act 2001 285

40.43..................... Short form bill on migration appeal................................ 286

40.44..................... Procedure—short form bills for migration appeals......... 286

Division 40.4—Determination of maximum costs                                     288

40.51..................... Maximum costs in a proceeding..................................... 288

Part 41—Enforcement                                                                                                    289

Division 41.1—General                                                                                           289

41.01..................... Application without notice for directions........................ 289

41.02..................... Condition precedent not fulfilled..................................... 289

41.03..................... Application for stay of judgment or order....................... 289

41.04..................... Failure to comply with Court order................................. 289

41.05..................... Failure to attend Court in response to subpoena or order 289

41.06..................... Endorsement on order..................................................... 290

41.07..................... Service of order.............................................................. 290

41.08..................... Application where person fails to comply with order..... 290

41.09..................... Substituted performance................................................. 291

41.10..................... Execution generally......................................................... 291

41.11..................... Stay of execution............................................................ 291

Division 41.2—Enforcement against partnership                                     293

41.21..................... Execution of order against partnership............................ 293

41.22..................... Execution against individual partner............................... 293

41.23..................... Application to proceedings between co‑partners............. 293

Division 41.3—Execution against business name                                      295

41.31..................... Execution of order—proceeding against person in person’s business name            295

Division 41.4—Sheriff                                                                                              296

41.41..................... Suspension of execution of process................................ 296

41.42..................... Failure to execute process............................................... 296

41.43..................... Application for orders in relation to execution of process 296

Division 41.5—Fees                                                                                                   297

41.51..................... Definitions for Division 41.5.......................................... 297

41.52..................... Security........................................................................... 297

41.53..................... Liability of lawyer........................................................... 297

41.54..................... Bill of fees...................................................................... 298

41.55..................... Taxation.......................................................................... 298

41.56..................... Failure by lawyer to pay Sheriff’s fees........................... 298

Division 41.6—Reciprocal enforcement of judgments under Foreign Judgments Act 1991                                                                                                                    299

41.61..................... Interpretation for Division 41.6...................................... 299

41.62..................... Application for an order for registration of foreign judgment  299

41.63..................... Further affidavit to be filed on day of hearing................. 300

41.64..................... Registration..................................................................... 300

41.65..................... Notice of registration...................................................... 300

41.66..................... Application to set aside registration of judgment or stay enforcement of judgment  301

41.67..................... Application to set aside registered foreign judgment....... 301

41.68..................... Security for costs............................................................ 301

41.69..................... Record of registered judgments...................................... 301

Chapter 6—Disciplinary                                                                                     303

Part 42—Contempt                                                                                                           303

Division 42.1—Contempt in face or hearing of Court                            303

42.01..................... Arrest for contempt......................................................... 303

42.02..................... Charge, defence and determination................................. 303

42.03..................... Interim custody............................................................... 303

Division 42.2—Applications for contempt                                                     304

42.11..................... Procedure generally........................................................ 304

42.12..................... Statement of charge......................................................... 304

42.13..................... Service............................................................................ 304

42.14..................... Arrest.............................................................................. 304

42.15..................... Procedure on the hearing................................................ 305

42.16..................... Application or proceeding by the Registrar..................... 305

Division 42.3—General                                                                                           306

42.21..................... Warrant for imprisonment............................................... 306

42.22..................... Discharge before end of prison term............................... 306

Chapter 7—Transitional provisions                                                       307

Part 43—Transitional provisions                                                                              307

Division 43.1—Transitional provisions relating to the Federal Court Legislation Amendment (Criminal Proceedings) Rules 2016             307

43.01..................... Transitional..................................................................... 307

43.02..................... Repeal of this Division................................................... 307

Schedule 1—Dictionary                                                                                       308

Schedule 2—Powers of the Court that may be exercised by a Registrar 315

Part 3.1—Corporations (Aboriginal and Torres Strait Islander) Act 2006           315

Part 3.2—Trans‑Tasman Proceedings Act 2010                                             316

Part 3.3—Federal Court of Australia Act 1976                                              317

Part 3.4—Foreign Evidence Act 1994                                                                   319

Part 3.5—Foreign Judgments Act 1991                                                               320

Part 3.6—Native Title Act 1993                                                                                 321

Part 3.7—Federal Court Rules 2011                                                                      322

Schedule 3—Costs allowable for work done and services performed        329

Endnotes                                                                                                                                  333

Endnote 1—About the endnotes                                                                          333

Endnote 2—Abbreviation key                                                                              335

Endnote 3—Legislation history                                                                           336

Endnote 4—Amendment history                                                                         337

 


Chapter 1Introductory provisions

Part 1Preliminary

Division 1.1Scope

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 2016.

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.

Note 4:       For the rules governing criminal proceedings in the Court, see the Federal Court (Criminal Proceedings) Rules 2016.

Rules 1.05–1.20 left blank

Division 1.2Application 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 1.3General 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 1.4Interpretation

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 1.5Time

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 2Registry and documents

Division 2.1Registry

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 seal of the Court or 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;

                     (e)  the signature of an officer acting with the authority of the Registrar or a 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 2.2Documents

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 preparing and lodging 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 2.3Lodging 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 1:       Proper Registry is defined in the Dictionary.

Note 2:       The Court’s requirements in relation to preparing and lodging documents are set out in practice notes issued by the Chief Justice.

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.

2.28  Documents accepted for filing—removal from Court file and storage

             (1)  A document which has been accepted for filing will be removed from a Court file if:

                     (a)  the Court has ordered that the document be removed from the Court file:

                              (i)  on its own initiative; or

                             (ii)  on the application of a party under rule 6.01 or subrule 16.21(2); or

                     (b)  for an affidavit—the Court has ordered that the affidavit be removed from the Court file:

                              (i)  on its own initiative; or

                             (ii)  on the application of a party under subrule 29.03(2); or

                     (c)  the Court is satisfied that the document:

                              (i)  is otherwise an abuse of process of the Court; or

                             (ii)  should not, under rule 2.27, have been accepted for filing.

             (2)  A party may apply to the Court for an order under subparagraph (1)(c)(i) or (ii) that a document be removed from the Court file.

             (3)  A document removed from a Court file under this rule must be stored:

                     (a)  if an order mentioned in this rule specifies a way to store the document—in the way specified in the order; or

                     (b)  otherwise—as directed by the District Registrar.

2.29  Documents on a Court file—removal, redaction and storage

             (1)  A document on a Court file will be removed from the Court file and replaced with a redacted copy if:

                     (a)  the Court has ordered that the document be removed and replaced:

                              (i)  on its own initiative; or

                             (ii)  on the application of a party under rule 6.01 or subrule 16.21(2); or

                     (b)  for an affidavit—the Court has ordered that the affidavit be removed and replaced with a redacted copy:

                              (i)  on its own initiative; or

                             (ii)  on the application of a party under subrule 29.03(2); or

                     (c)  the Court is satisfied that:

                              (i)  any part of the document is otherwise an abuse of process of the Court; and

                             (ii)  it is reasonably practicable for that part of the document to be redacted.

             (2)  A party may apply to the Court for an order under paragraph (1)(c) that a document be removed from the Court file and replaced with a redacted copy.

             (3)  If a part or parts of a document are struck out or removed under this rule:

                     (a)  the corresponding part or parts of the redacted copy of the document must be unable to be read in any way; and

                     (b)  the redacted copy must be marked with:

                              (i)  the date on which the order was made; and

                             (ii)  each date on which redaction was performed.

             (4)  A document removed from a Court file under this rule must be stored:

                     (a)  if an order mentioned in this rule specifies a way to store the document—in the way specified in the order; or

                     (b)  otherwise—as directed by the District Registrar.

Rule 2.30 left blank

Division 2.4Custody 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;

                    (m)  a transcript of a hearing heard in open Court.

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 sections 37AF and 37AI 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 2.5Administration 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 3Registrars

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 3.1Powers 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 1 to the Bankruptcy Rules;

(d)    rule 1.10 of the Federal Court (Criminal Proceedings) Rules 2016.

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 3.2Reviewing 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 4Lawyers

Division 4.1General

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 4.2Court 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 5Court supervision of proceedings

Division 5.1Return 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)  The respondent’s genuine steps statement must comply with section 7 of the Civil Dispute Resolution Act.

             (3)  The respondent’s genuine steps statement must be no more than 2 pages.

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 providing and limiting of written submissions

27

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

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 27

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 5.2Orders 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 6Court supervision of parties and other persons

Division 6.1Vexatious 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  Certificate of vexatious proceedings order

             (1)  A person who wants the Registrar to issue a certificate under subsection 37AP(1) of the Act must make the request in writing and include in the request:

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

                     (b)  the person’s interest in making the application.

             (2)  The request must be lodged in the District Registry in which the vexatious proceedings order was made.

             (3)  The certificate will state:

                     (a)  the name of the person subject to the vexatious proceedings order; and

                     (b)  if applicable, the name of the person who applied for the vexatious proceedings order; and

                     (c)  the date on which the vexatious proceedings order was made; and

                     (d)  the orders made by the Court.

6.03  Application for leave to institute proceedings

                   An application under subsection 37AR(2) of the Act for leave to institute a proceeding that is subject to a vexatious proceedings order must be made:

                     (a)  in accordance with Form 2; and

                     (b)  without notice to any other person.

Note 1:       See subsection 37AR(2) of the Act for the right of a person who is subject to a vexatious proceedings order to apply to the Court to institute a proceeding.

Note 2:       See subsection 37AR(3) of the Act for the contents of the affidavit that must be filed with the application.

Rules 6.04–6.10 left blank

Division 6.2Use 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 2Original jurisdiction—proceedings generally

Part 7Orders before start of a proceeding

Division 7.1Injunctions, 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 7.2Approval 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 7.3Preliminary 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 the prospective applicant 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 or make an electronic image of 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 7.4Freezing 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 7.5Search 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 8Starting proceedings

Division 8.1Originating 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.

             (3)  The applicant’s genuine steps statement must be no more than 2 pages.

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 8.2Notice 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 8.3Amendments 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, if reasonably practicable to do so:

                     (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, or if the originating application was lodged by electronic communication, 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 9Parties and proceedings

Division 9.1Parties, 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 9.2Representative 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 9.3Grouped 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 9.4Partnerships

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 9.5Business 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 9.6Persons 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 litigation representative is a lawyer—the litigation representative; and

                             (ii)  if the litigation representative is not a lawyer—the litigation representative’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 10Service

Division 10.1Personal 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 the Fair Work Commission 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 10.2Service 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 10.3Ordinary 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 10.4Service 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 10.5Service 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 10.6Service 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 11Address 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 12Submitting 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 13Jurisdiction—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 14Interlocutory orders for preservation of rights and property

Division 14.1Inspection 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 14.2Preservation 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 14.3Receivers

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 15Cross‑claims and third party claims

Division 15.1Making 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:          Crossclaim, cross‑claimant and crossrespondent 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 15.2Amendment 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 16Pleadings

Division 16.1General

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 16.2Striking 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 16.3Progress 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 16.4Particulars

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 16.5Amendment 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, if reasonably practicable to do so:

                     (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, or if the pleading was lodged by electronic communication, 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 17Interlocutory 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 18Interpleader proceedings

Division 18.1Stakeholder’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 18.2Sheriff’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 19Security 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.

             (3)  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.

             (4)  In this rule:

applicant includes a cross‑claimant.

respondent includes a cross‑respondent.

Part 20Discovery and inspection of documents

Division 20.1General

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 20.2Discovery

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.

             (5)  If a party who is required to give discovery wants an order under paragraph 43(3)(h) of the Act, the party must file an affidavit stating:

                     (a)  the orders sought; and

                     (b)  the party’s calculation of the cost of making discovery; and

                     (c)  why the orders should be made.

Note:          Section 43 of the Act provides for the Court or a Judge to do any of the following in relation to discovery:

(i)     order the party requesting discovery to pay in advance for some or all of the estimated cost of discovery;

(ii)    order the party requesting discovery to give security for the payment of the cost of discovery;

(iii)   make an order specifying the maximum cost that may be recovered for giving discovery or taking inspection.

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 subrule (1), 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 20.3Production 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 for 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 production for inspection be 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 21Interrogatories

  

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 22Admissions

  

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 23Experts

Division 23.1Court 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; and

                     (g)  contain an acknowledgement that the opinions are based wholly or substantially on the specialised knowledge mentioned in paragraph (b).

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 23.2Parties’ 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

                    (ga)  contain an acknowledgement that the expert’s opinions are based wholly or substantially on the specialised knowledge mentioned in paragraph (c); 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 19).

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 24Subpoenas

Division 24.1Leave 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 24.2Subpoenas 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 officer has indicated will be acceptable.

             (8)  The issuing party must, at that party’s expense:

                     (a)  make an electronic image of any photocopy of a document produced under subrule (7); and

                     (b)  lodge the electronic image with the Registrar within the time specified by the Registrar.

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 25Offers 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 26Ending proceedings early

Division 26.1Summary 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 26.2Withdrawal 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 27Transfer of proceedings

Division 27.1Family 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 27.2Federal Circuit Court of Australia

27.11  Transfer to Federal Circuit Court of Australia

                   A party may apply to the Court to transfer to the Federal Circuit Court of Australia:

                     (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 Circuit Court of Australia, 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 Circuit Court of Australia

             (1)  If the Federal Circuit Court of Australia 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 Circuit Court of Australia’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 Circuit Court of Australia:

                     (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 27.3Cross‑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 28Alternative dispute resolution

Division 28.1General

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 28.2Arbitration

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 28.3Mediation

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 28.4ADR 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 28.5International 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