Court Procedures Amendment Rules 2006 (No 2) (ACT)
Court Procedures Amendment Rules 2006 (No 2)
Subordinate Law SL2006-58
We, members of the rule-making committee, make the following rules under the Court Procedures Act 2004, section 7.
Dated 15 December 2006.
| T J HIGGINS | R Cahill |
| Chief Justice | Chief Magistrate |
| K J CRISPIN | M SOMES |
| President of the Court of Appeal | Magistrate |
| T Connolly | |
| Judge |
Court Procedures Amendment Rules 2006 (No 2)
Subordinate Law SL2006-58
made under the
Court Procedures Rules 2006
Contents
Page
Name of rules 1
Commencement 1
Legislation amended 1
New parts 3.12 and 3.13 1
Schedule 1Other amendments 1
Name of rules
These rules are the Court Procedures Amendment Rules 2006 (No 2).
Commencement
These rules commence on 1 January 2007.
NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
Legislation amended
These rules amend the Court Procedures Rules 2006.
New parts 3.12 and 3.13
insert
Part 3.12Small Claims Court
Division 3.12.1 Small Claims Court—preliminary
Definitions—pt 3.12
(MC(CJ)R s 394)
In this part:
conference means a conference under division 3.12.7.
court means the Small Claims Court.
Magistrates Court Act means the Magistrates Court Act 1930.
order includes—
(a)a debt declaration; and
(b)a common boundaries determination; and
(c)a judgment of the court.
restoration order means an order made under rule 3780 (Small Claims Court—restoration of proceeding).
Meaning of applicant and respondent—pt 3.12
For a proceeding on a counterclaim or third-party notice (the process) under this part—
(a)a reference in this part to the applicant includes a reference to the party who files the process; and
(b)a reference in these rules to the respondent includes a reference to the person on whom the process is served.
Terms used in Magistrates Court Act
A term used in the Magistrates Court Act, part 4.6 (Small Claims Court) has the same meaning in this part.
Note 1For example, the following terms are defined in the Magistrates Court Act, s 278:
· common boundaries determination
· debt declaration
· inquiry
· nuisance application
· trespass application.
Note 2An example is part of the rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
Application—pt 3.12
This part applies to a proceeding in the Small Claims Court.
Small Claims Court—application of ch 2 generally
(MC(CJ)R s 395)
(1)Except as provided by this rule, chapter 2 does not apply to a proceeding in the court.
(2)The applied civil rules apply, with any necessary changes, to a proceeding in the court.
(3)In this rule:
applied civil rules means the following:
· division 2.4.9 (People with a legal disability)
· division 2.4.10 (Partnerships)
· division 2.4.11 (Business names)
· part 2.18 (Enforcement)
· part 2.19 (Interpleader proceedings)
· part 2.21 (Representation by solicitors)
· part 2.22 (Miscellaneous).
Division 3.12.2 Small Claims Court—starting proceeding
Small Claims Court—assistance to members of public
(MC(CJ)R s 403)
The registrar or a member of the staff of the Magistrates Court must, if asked, explain the procedures of the Small Claims Court to a person to assist the person to participate in a proceeding in the court.
Small Claims Court—who may start and carry on a proceeding
(MC(CJ)R s 484 and s 488)
(1)A person may start and carry on a proceeding in the court—
(a)in person; or
(b)by a solicitor acting for the person; or
(c)if the person is a corporation—by an officer or employee of the corporation authorised by the corporation to represent it.
NoteRule 275 (1) (Person with legal disability—litigation guardian to start proceeding etc) provides that a person with a legal disability may start or defend and carry on a proceeding only by the person’s litigation guardian.
(2)An officer or employee mentioned in subrule (1) (c) must file with the first document that is filed in the court for the corporation in the proceeding—
(a)an affidavit stating—
(i)the position the person holds in the corporation; and
(ii)that the person has been authorised by the corporation to represent the corporation in the proceeding; and
(iii)that the authority has not been revoked; and
(iv)that the person is aware that the person may be liable to pay some or all of the costs of the proceeding; and
(b)a copy of an instrument authorising, or evidencing the authorisation of, the person to represent the corporation in the proceeding.
NoteAn instrument is defined in the Legislation Act, s 14 as any writing or other document. Writing and document are defined in the Legislation Act, dict, pt 1.
Small Claims Court—originating application etc
(MC(CJ)R s 404)
(1)A proceeding in the court may be started by—
(a)an originating application; or
(b)if the proceeding is for a common boundaries determination—an application in accordance with the Common Boundaries Act 1981, and not by originating application.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)A proceeding starts on the day the application under subrule (1) is filed in the court.
NoteRule 6145 (5) (Filed documents initially rejected) provides that, if a document is rejected by the registrar, it is taken to have been filed on the day it was first filed.
(3)The application must state—
(a)the nature of the claim and the relief sought; and
(b)any claim for interest up to the day of judgment; and
(c)the applicant’s address for service.
NoteAddress for service is defined in the dictionary.
Small Claims Court—single application for each matter
(MC(CJ)R s 405)
A person may file only 1 originating application in relation to a claim for relief arising out of a single cause of action.
Small Claims Court—debt declaration
(MC(CJ)R s 406)
A person may file an application for a debt declaration only if the person named as respondent has made a written demand on the person for payment of the debt.
Small Claims Court—claim for interest
(MC(CJ)R s 407 and s 454 (1))
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
(2)This rule applies if interest up to the day of judgment is claimed in a proceeding—
(a)under a contractual agreement between the parties to the proceeding; or
(b)for a debt or liquidated amount.
(3)The claim for interest—
(a)must state the period or periods for which interest is claimed; and
(b)must state the amount or amounts for which interest is claimed; and
(c)may state the rate or rates at which interest is claimed.
(4)If a rate is not claimed under subrule (3) (c), the rate is taken to be the rate applying, from time to time, under schedule 2, part 2.1 (Interest up to judgment).
Small Claims Court—service of originating application etc
(MC(CJ)R s 408)
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
NoteThe Common Boundaries Act 1981, s 18 deals with the service of an application under that Act.
(2)If an originating application is filed in the court, the registrar must—
(a)give the applicant a written notice summarising the possible courses of action open to the applicant in the proceeding and when a conference or inquiry may be directed; and
(b)serve on the respondent—
(i)a sealed copy of the application; and
(ii)a written notice summarising the possible courses of action open to the respondent in the proceeding and when a conference or inquiry may be directed.
(3)A person authorised by the registrar to serve an originating application must—
(a)if the application is served by post under rule 6412 (Service of originating process by post—Magistrates Court)—complete and file in the court a certificate of postal service for the application; or
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(b)if the application is served otherwise than by post under rule 6412—file in the court an affidavit of service; or
(c)if service is attempted but the application is not served—endorse on the originating application the reason for non‑service, sign the endorsement and return the application to the registrar not later than 14 days after the day service is attempted.
Small Claims Court—response to originating application
(MC(CJ)R s 410, s 411 (1) and (4))
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
(2)The respondent may file a response to an originating application not later than—
(a)21 days after the day the application is served on the respondent; or
(b)any shorter period directed by the registrar under rule 3744 (Small Claims Court—response to nuisance application or trespass application).
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(3)If a respondent files a response, the registrar must serve a sealed copy of the response on the applicant.
Small Claims Court—counterclaim and set-off
(MC(CJ)R s 453)
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
(2)The respondent may make a counterclaim in a response instead of filing a separate originating application.
(3)The respondent may rely on set-off (whether or not of a known amount) as a response to all or part of the applicant’s claim for relief, whether or not it is also included as a counterclaim.
(4)A counterclaim or set-off must not exceed $10 000.
(5)If the respondent’s total entitlement to any set-offs and in relation to any counterclaim exceeds $10 000, the respondent may—
(a)abandon the excess by limiting the total amount to $10 000; or
(b)apply to transfer the proceeding to the Magistrates Court under rule 3776 (Small Claims Court—transfer of proceeding to Magistrates Court).
Small Claims Court—response to nuisance application or trespass application
(MC(CJ)R s 411 (2) and (3))
(1)This rule applies to a nuisance application or trespass application.
(2)The registrar may, on written application by the applicant, order that any response to the application be filed less than 21 days after the day the application is served.
NotePt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(3)The registrar may make an order under subrule (2) only if satisfied that the order is necessary or desirable to avoid unreasonable hardship to the applicant.
(4)If the registrar makes an order under subrule (2), the registrar must serve a sealed copy of the order on the respondent.
Small Claims Court—amendment
(MC(CJ)R s 409)
The court may, at any stage of a proceeding, on application by a party or on its own initiative, amend a document in the proceeding in any way the court considers appropriate.
NotePt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
Division 3.12.3 Small Claims Court—third-party proceeding
Application of div 3.12.3—common boundary applications
This division does not apply to an application under the Common Boundaries Act 1981.
Small Claims Court—third-party notice
(1)A respondent may file a third-party notice if the respondent wants to—
(a)claim a contribution or indemnity against a person who is not already a party to the proceeding; or
(b)claim relief against a person who is not already a party to the proceeding that—
(i)relates to or is connected with the original subject matter of the proceeding; and
(ii)is substantially the same as some relief claimed by the applicant; or
(c)require an issue relating to or connected with the original subject matter of the proceeding to be decided not only as between the applicant and respondent but also between either of them and a person not already a party to the proceeding.
(2)A third-party notice—
(a)must not be filed by a respondent until the respondent has filed a response; and
(b)must be filed not later than 21 days after the end of whichever of the following periods ends last:
(i)the time limited for filing the response of the respondent who is filing the third-party notice (the prescribed period);
(ii)if the applicant agrees to an extension of the prescribed period—the agreed period.
(3)A third-party proceeding starts on the day the third-party notice for the proceeding is filed in the court.
NoteRule 6145 (5) (Filed documents initially rejected) provides that, if a document is rejected by the registrar, it is taken to have been filed on the day it was first filed.
(4)The third-party notice must state—
(a)the nature of the claim and the relief sought; and
(b)any claim for interest up to the day of judgment; and
(c)the respondent’s address for service.
Note 1If a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
Note 2Address for service is defined in the dictionary.
Small Claims Court—service of third-party notice
(1)Rule 6412 (Service of originating process by post—Magistrates Court) applies, with necessary changes, to a third-party notice as if a reference to an originating process were a reference to a third-party notice.
(2)If a third-party notice is filed in the court, the registrar must—
(a)serve on the third party—
(i)a sealed copy of the notice; and
(ii)a copy of a sealed copy of the originating application; and
(iii)a copy of a sealed copy of the respondent’s response to the originating application; and
(iv)a written notice summarising the possible courses of action open to the third party in the proceeding and when a conference or inquiry may be directed; and
(b)serve on the applicant a sealed copy of the notice.
(3)A person authorised by the registrar to serve a third-party notice on a third party must—
(a)if the notice is served by post under rule 6412—complete and file in the court a certificate of postal service for the notice; or
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(b)if the notice is served otherwise than by post under rule 6412—file in the court an affidavit of service; or
(c)if service is attempted but the notice is not served—endorse on the notice the reason for non-service, sign the endorsement and return the application to the registrar not later than 14 days after the day service is attempted.
Small Claims Court—response to third-party notice
(1)A third party may file a response to a third-party notice not later than 21 days after the day the notice is served on the third-party.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)If a third party files a response, the registrar must serve a sealed copy of the response on the other parties to the proceeding.
Small Claims Court—counterclaim and set-off by third party
(1)A third party who has a claim against the respondent who included the third party may counterclaim against the respondent.
(2)A third party may rely on set-off (whether or not of a known amount) as a response to all or part of a respondent’s claim for relief against the third party, whether or not it is included as a counterclaim.
(3)A counterclaim or set-off must not exceed $10 000.
(4)If the third party’s total entitlement to any set-offs and in relation to any counterclaim exceeds $10 000, the third party may—
(a)abandon the excess by limiting the total amount to $10 000; or
(b)apply to transfer the proceeding to the Magistrates Court under rule 3776 (Small Claims Court—transfer of proceeding to Magistrates Court).
Small Claims Court—default by third party
(1)This rule applies if—
(a)a default judgment is entered for the applicant against the respondent who included the third party; and
(b)the third party is in default in relation to the third-party notice.
(2)The third party is bound by the default judgment between the applicant and respondent as far as it is relevant to a claim or issue stated in the third-party notice.
(3)The respondent at any time after satisfaction of the default judgment, or, with the court’s leave, before satisfaction, may file in the court an application for default judgment.
Note 1If a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
Note 2Pt 6.2 (Applications in proceedings) applies to an application for leave under this rule.
(4)If the respondent applies for default judgment under subrule (3), the court must—
(a)if the amount of damages claimed is stated in the third-party notice—enter default judgment for the respondent against the third party; or
(b)if the amount of damages claimed is not stated in the third-party notice, or another order is sought—enter default judgment for the respondent against the third party for damages to be assessed or the orders sought to be decided.
(5)If subrule (4) (a) applies, the registrar must—
(a)serve a sealed copy of the judgment on the respondent and third party; and
(b)tell the respondent and third party about the right to apply for a restoration order.
NoteFor restoration orders, see r 3780 (Small Claims Court—restoration of proceeding).
(6)If subrule (4) (b) applies, the registrar must—
(a)serve a sealed copy of the judgment on the respondent and third party; and
(b)tell the respondent and third party about the right to apply for a restoration order; and
(c)set a date for an inquiry to be held to assess damages or decide any other orders sought; and
(d)tell the respondent and third party the date set for the inquiry not later than 10 days before the date set.
NoteFor restoration orders, see r 3780 (Small Claims Court—restoration of proceeding).
(7)If the third party does not have an address for service, the registrar may serve the copy of the judgment on the third party by post by sending the copy by prepaid post to the third party’s last known address.
(8)Part 6.2 (Applications in proceedings) does not apply to an application under subrule (3), other than an application for leave.
(9)The court may enter default judgment under this rule in favour of the respondent without a hearing.
Small Claims Court—judgment between respondent and third party
(1)In a proceeding, the court may enter judgment in favour of—
(a)a respondent who included a third party against the third party; or
(b)the third party against the respondent.
(2)If—
(a)judgment is entered in favour of the applicant against a respondent; and
(b)judgment is entered in favour of the respondent against a third party;
the respondent must not enforce the judgment against the third party unless the judgment against the respondent is satisfied, or the court otherwise orders.
NotePt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.
Division 3.12.4 Small Claims Court—admission of liability
Application of div 3.12.4—common boundary applications
(MC(CJ)R s 410)
This division does not apply to an application under the Common Boundaries Act 1981.
Small Claims Court—admission of liability
(MC(CJ)R s 412 and s 415)
(1)A respondent to a proceeding may, in a response filed in the court—
(a)admit liability for all or part of the applicant’s claim for relief; and
(b)state any conditions on which liability is admitted, for example, time for payment or payment by instalments.
NoteAn example is part of the rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2)If the respondent admits liability under subrule (1), the applicant may accept the admission of liability by filing in the court a notice accepting liability not later than 21 days after the day the response is served on the applicant.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(3)The court must enter judgment for the applicant by consent if—
(a)the respondent admits the whole of the applicant’s claim for relief without any condition; or
(b)the applicant accepts the respondent’s admission of liability, subject to the conditions (if any) on which the respondent admitted liability.
Small Claims Court—payment into court
(MC(CJ)R s 413)
(1)If a respondent in a proceeding admits liability to pay an amount to the applicant, the respondent may pay the amount into court.
(2)If the amount paid into court is the amount claimed by the applicant, and the applicant’s claim for relief does not ask for any other order, the court must enter judgment for the applicant for the amount.
(3)If the court enters judgment under subrule (2), the registrar must—
(a)serve a sealed copy of the judgment on the parties; and
(b)pay the amount paid into court to the applicant.
(4)If the amount paid into court is not the amount claimed by the applicant, or the applicant’s claim for relief asks for another order, the amount must stay in court until the court otherwise orders.
NotePt 6.2 (Applications in proceedings) applies to an application for an order otherwise ordering.
Small Claims Court—payment into court by bond
(MC(CJ)R s 414)
(1)When paying an amount into court under rule 3755, a respondent may lodge a bond for the amount with the registrar instead of actually paying the amount into court.
(2)Rule 1002 (Payment into court—bond) applies, with any necessary changes, to a bond lodged under this rule.
Division 3.12.5 Small Claims Court—no response to claim
Small Claims Court—default judgment
(MC(CJ)R s 417)
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
(2)This rule applies if the respondent in a proceeding—
(a)does not file a response to the originating application in accordance with rule 3742 (2) (Small Claims Court—response to originating application); or
(b)files a response to the application but later withdraws the response by written notice filed in the court.
(3)The applicant may file in the court an application for default judgment not later than 1 year and 21 days after the day the originating application was served on the respondent.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(4)If the applicant applies for default judgment under subrule (3), the court must—
(a)if the amount of damages claimed is stated in the originating application, or the application is for a debt declaration—enter default judgment for the applicant against the respondent; or
(b)if the amount of damages claimed is not stated in the originating application, or another order is sought—enter default judgment for the applicant against the respondent for damages to be assessed or the orders sought to be decided.
(5)If subrule (4) (a) applies, the registrar must—
(a)serve a sealed copy of the judgment on the parties; and
(b)tell the parties about the right to apply for a restoration order.
NoteFor restoration orders, see r 3780 (Small Claims Court—restoration of proceeding).
(6)If subrule (4) (b) applies, the registrar must—
(a)serve a sealed copy of the judgment on the parties; and
(b)tell the parties about the right to apply for a restoration order; and
(c)set a date for an inquiry to be held to assess damages or decide any other orders sought; and
(d)tell the parties the date set for the inquiry not later than 10 days before the date set.
NoteFor restoration orders, see r 3780 (Small Claims Court—restoration of proceeding).
(7)If the respondent does not have an address for service, the registrar may serve the copy of the judgment on the respondent by post by sending the copy by prepaid post to the respondent’s last known address.
(8)Part 6.2 (Applications in proceedings) does not apply to an application under subrule (3).
(9)The court may enter default judgment under this rule in favour of the applicant without a hearing.
Small Claims Court—striking out application
(MC(CJ)R s 418)
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
(2)An originating application is taken to be struck out at the end of 1 year and 22 days after the day the application is filed in the court if—
(a)a response has not been filed; and
(b)judgment has not been entered or the application has not otherwise been disposed of.
(3)An applicant whose application is struck out under this rule may file a new originating application not later than 1 year after the day it is struck out.
(4)For any time limit (including a limitation period), an originating application that is started under subrule (3) is taken to have started on the day the originating application that was struck out under subrule (2) was filed.
Division 3.12.6 Small Claims Court—disputed claim
Small Claims Court—disputed claim
(MC(CJ)R s 410 and s 416)
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
(2)This rule applies if a respondent in a proceeding—
(a)files a response in the court in accordance with rule 3742 (2) (Small Claims Court—response to originating application) denying liability for the applicant’s claim for relief; or
(b)files a response in the court in accordance with rule 3742 (2) admitting liability for the applicant’s claim for relief, but—
(i)any amount paid into court under rule 3755 (Small Claims Court—payment into court) is less than the amount claimed by the applicant; and
(ii)the applicant does not accept the respondent’s admission of liability in accordance with rule 3754 (2) (Small Claims Court—admission of liability).
(3)The registrar must—
(a)set a date for a conference between the parties; and
(b)tell the parties the date set for the conference not later than 10 days before the date set.
(4)However, if the registrar is satisfied that a conference will not help the resolution of the issues in dispute between the parties, the registrar must—
(a)set a date for an inquiry; and
(b)tell the parties the date set for the inquiry not later than 10 days before the date set.
Division 3.12.7 Small Claims Court—conferences
Application—div 3.12.7
(MC(CJ)R s 419)
This division applies if—
(a)a proceeding is set down for a conference under rule 3759 (3) or another territory law; or
NoteA territory law includes these rules (see Legislation Act, s 98).
(b)the court orders a conference to be held in accordance with a restoration order, or at any stage of the proceeding; or
(c)an application under the Common Boundaries Act 1981 is set down for a conference; or
(d)a territory law provides that a conference be held.
Small Claims Court conference—setting conference date
If the court orders a conference to be held as mentioned in rule 3760 (b), the registrar must—
(a)set a date for the conference; and
(b)tell the parties the date set for the conference not later than 10 days before the date set.
Small Claims Court conference—changing time or place of
(MC(CJ)R s 421 and s 424)
(1)The court may change the time or place of a conference if it considers the change appropriate.
(2)The court may adjourn a conference if satisfied a party to the proceeding, or the party’s representative, has a reasonable reason for not being able to attend the conference.
(3)If the court changes the time or place of, or adjourns, a conference, the registrar must tell the parties about the change or adjournment.
Small Claims Court conference—representation
(MC(CJ)R s 422)
A party to a proceeding may be represented at a conference by someone else.
Small Claims Court conference—who may attend
(MC(CJ)R s 423)
Only the following people may attend a conference:
(a)a party to the proceeding;
(b)a representative of a party to the proceeding;
(c)the registrar or any officer or member of the staff of the Magistrates Court;
(d)anyone authorised in writing by the Chief Magistrate to attend the conference, or to attend conferences generally;
(e)anyone authorised in writing by the Attorney-General to attend the conference, or to attend conferences generally.
Small Claims Court conference—failure to attend
(MC(CJ)R s 428)
(1)This rule applies to a party to a proceeding if—
(a)the registrar tells the party the date set for a conference; and
(b)the party fails to attend the conference, either personally or by a representative; and
(c)the court is not satisfied the party has a reasonable excuse for failing to attend the conference.
(2)If this rule applies to the applicant, or all parties to the proceeding, the court must dismiss the application.
(3)If this rule applies to a respondent, but does not apply to the applicant—
(a)the court must—
(i)if the amount of damages claimed is stated in the originating application, or the application is for a debt declaration—enter default judgment for the applicant against the respondent; or
(ii)if the amount of damages claimed is not stated in the originating application, or another order is sought—enter default judgment for the applicant against the respondent for damages to be assessed or the orders sought to be decided; and
(b)if the respondent has filed a third-party notice in the proceeding—the court must dismiss the notice.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(4)If this rule applies to a third party, but does not apply to the applicant or the respondent who filed the third-party notice, and the court enters consent judgment in favour of the applicant, the court must—
(a)if the amount of damages claimed is stated in the third-party notice—enter default judgment for the respondent against the third party for the lesser of—
(i)the amount of damages claimed in the third-party notice; and
(ii)the amount of the consent judgment; or
(b)if the amount of damages claimed is not stated in the third‑party notice, or another order is sought—enter default judgment for the respondent against the third party for damages to be assessed or the orders sought to be decided.
(5)If subrule (2), (3) (a) (i) or (4) (a) applies, the registrar must—
(a)serve a sealed copy of the order dismissing the application or the judgment on the parties; and
(b)tell the parties about the right to apply for a restoration order.
NoteFor restoration orders, see r 3780 (Small Claims Court—restoration of proceeding).
(5)If subrule (3) (b) or (4) (b) applies, the registrar must—
(a)serve a sealed copy of the judgment on the parties; and
(b)tell the parties about the right to apply for a restoration order; and
(c)set a date for an inquiry to be held to assess damages or decide any other orders sought; and
(d)tell the parties the date set for the inquiry not later than 10 days before the date set.
NoteFor restoration orders, see r 3780 (Small Claims Court—restoration of proceeding).
Small Claims Court conference—procedure
(MC(CJ)R s 420, s 425 and s 426)
(1)At a conference in a proceeding, the court may—
(a)decide what are the real issues in dispute between the parties; and
(b)by conciliation, help the parties reach an agreement on conditions the court considers just; and
(c)if an adjournment of the conference is likely to help the parties reach an agreement—adjourn the conference on the conditions the court considers appropriate; and
(d)if the issues in dispute cannot be resolved—ensure the parties do everything reasonable and necessary for an inquiry to take place as soon as practicable; and
(e)order that an inquiry be held.
(2)If the issues in dispute are resolved between the parties at the conference, the parties may file a consent judgment in accordance with rule 3782 (Small Claims Court order—consent judgment).
(3)If the issues in dispute are not resolved at the conference, and the court is satisfied there is no reasonable possibility of the parties reaching an agreement about the issues in dispute, the court must—
(a)order that an inquiry be held; and
(b)estimate the time required for the inquiry; and
(c)adjourn the conference.
(4)If subrule (3) applies, the registrar must—
(a)set a date for the inquiry; and
(b)tell the parties the date set for the inquiry not later than 10 days before the date set.
Division 3.12.8 Small Claims Court—inquiries
Application—div 3.12.8
(MC(CJ)R s 429)
(1)This division applies if—
(a)a proceeding has been set down for an inquiry under this part or another territory law; or
NoteA territory law includes these rules (see Legislation Act, s 98).
(b)an application under the Common Boundaries Act 1981 has been set down for an inquiry; or
(c)a territory law provides that an inquiry be held.
Small Claims Court inquiry—constitution
(MC)CJ)R s 430)
(1)A magistrate or referee sitting alone must preside at an inquiry.
(2)In this rule:
referee means a referee appointed under the Magistrates Court Act 1930, section 280 (Referees—appointment).
Small Claims Court inquiry—changing time or place of
(MC(CJ)R s 437)
(1)The court may change the time or place of an inquiry if it considers the change appropriate.
(2)The court may adjourn an inquiry if satisfied that an adjournment is necessary in the interests of justice.
(3)If the court changes the time or place of, or adjourns, an inquiry, the registrar must tell the parties about the change or adjournment.
Small Claims Court inquiry—representation
(MC(CJ)R s 434)
A party to a proceeding may be represented at an inquiry by someone else.
Small Claims Court inquiry—failure to attend
(MC(CJ)R s 441)
(1)This rule applies to a party to a proceeding if—
(a)the registrar tells the party the date set for an inquiry; and
(b)the party fails to attend the inquiry, either personally or by a representative; and
(c)the court is not satisfied the party has a reasonable excuse for failing to attend the inquiry.
(2)If this rule applies to the applicant, or all parties to the proceeding, the court may dismiss the application.
(3)If this rule applies to a respondent, but does not apply to the applicant, the court may enter default judgment for the applicant against the respondent.
(4)If this rule applies to a respondent, but does not apply to the applicant, in an application in a proceeding, the court may make the orders sought in the application.
(5)If the court makes an order under this rule, the registrar must—
(a)serve a sealed copy of the order on the parties; and
(b)tell the parties about the right to apply for a restoration order.
NoteFor restoration orders, see r 3780 (Small Claims Court—restoration of proceeding).
Small Claims Court inquiry—procedure
(MC(CJ)R s 431 and 433)
(1)At an inquiry, the court is not bound by the rules of evidence and may inform itself in any way it considers appropriate.
(2)Evidence in an inquiry must not be given on oath.
NoteOath includes affirmation (see Legislation Act, dict.)
(3)However, the court may require a witness to give evidence on oath if the court considers it necessary or desirable for properly deciding the application.
(4)The court must otherwise adopt procedures that it considers appropriate for an inquiry to be finalised promptly and with as little formality as possible.
Small Claims Court inquiry—investigators
(MC(CJ)R s 432)
(1)For an inquiry, the court may appoint an investigator to investigate any question of fact arising in a proceeding.
(2)An appointment under subrule (1) must state—
(a)particulars of the question to be investigated; and
(b)any conditions on which the appointment is made.
(3)An investigator appointed under subrule (1) must—
(a)investigate any question of fact mentioned in the appointment; and
(b)file a written report on the question in the court.
(4)The court may accept, amend or reject all or part of the investigator’s report, as the court considers appropriate.
(5)The court may decide the remuneration of an investigator.
(6)The Territory must pay the investigator’s remuneration.
(7)However, the court may order a party to pay a proportion of the remuneration.
(8)The Legislation Act, part 19.3 (Appointments) does not apply to an appointment under this rule.
Division 3.12.9 Small Claims Court—transfer of proceedings between courts
Application of div 3.12.9—common boundary applications
(MC(CJ)R s 410)
This division does not apply to an application under the Common Boundaries Act 1981.
Small Claims Court—transfer of proceedings from Magistrates Court
(MC(CJ)R s 439)
(1)The Magistrates Court may, at any stage in a proceeding, on application or its own initiative, order that a proceeding started in the Magistrates Court be transferred to the Small Claims Court.
NotePt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
(2)The Magistrates Court may make an order under subrule (1) only if satisfied that—
(a)the proceeding could have been started in the Small Claims Court; and
(b)transferring the proceeding to the Small Claims Court would not be unfair to any party to the proceeding.
(3)If the Magistrates Court makes an order under subrule (1) in relation to a proceeding—
(a)this part applies as if, for any step taken in the proceeding under chapter 2 (Civil proceedings generally), the corresponding step under this part had been taken in the proceeding; and
(b)any evidence given in the proceeding in the Magistrates Court is taken to have been given in the Small Claims Court.
(4)Rule 3777 (Small Claims Court—applications in proceedings) does not apply to an application under this rule.
Small Claims Court—transfer of proceeding to Magistrates Court
(MC(CJ)R s 438)
(1)The Small Claims Court may, at any stage in a proceeding, on application or its own initiative, order that a proceeding started in the Small Claims Court be transferred to the Magistrates Court.
NotePt 6.2 (Applications in proceedings) and r 3777 (Small Claims Court—applications in proceedings) apply to an application for an order under this rule.
(2)The Small Claims Court may make an order under subrule (1) only if satisfied that transferring the proceeding to the Magistrates Court would not be unfair to any party to the proceeding.
(3)If the Small Claims Court makes an order under subrule (1) in relation to a proceeding—
(a)chapter 2 (Civil proceedings generally) applies as if, for any step taken in the proceeding under this part, the corresponding step under that chapter had been taken in the proceeding; and
(b)any evidence given in the proceeding in the Small Claims Court is taken to have been given in the Magistrates Court.
Division 3.12.10 Small Claims Court—general provisions
Small Claims Court—applications in proceedings
(MC(CJ)R s 436)
(1)This rule applies to an application in a proceeding under this part, other than an application in a proceeding under the Common Boundaries Act 1981.
Note 1An application in a proceeding is defined in r 6006 (Application—pt 6.2)
Note 2Part 6.2 (Applications in proceedings) applies to an application under this rule. See also r (3).
(2)If an application to which this rule applies is filed in the court, the registrar must—
(a)set a date for an inquiry in relation to the application; and
(b)serve a stamped copy of the application on each other party to the proceeding not later than 3 days before the date set for the inquiry; and
(c)tell the parties the date set for the inquiry.
(3)Part 6.2 (Applications in proceedings) does not apply in relation to service of the application or of the supporting material (if any) for the application.
Small Claims Court—discontinuance of proceeding
(MC(CJ)R s 440)
(1)The applicant may, at any stage of a proceeding, discontinue the proceeding by filing a notice of discontinuance in the court.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)If the applicant discontinues the proceeding, the registrar must—
(a)serve a stamped copy of a notice of discontinuance on the other parties to the proceeding; and
(b)tell the parties about the right to apply for a restoration order.
NoteFor restoration orders, see r 3780 (Small Claims Court—restoration of proceeding).
Small Claims Court—dismissal for abuse of process
(MC(CJ)R s 442)
(1)The court may, at any stage of a proceeding, dismiss all or part of the proceeding, if it considers the proceeding to be—
(a)frivolous, scandalous, unnecessary or vexatious; or
(b)otherwise an abuse of the process of the court.
(2)The court may make an order under subrule (1) on the application of a party or on its own initiative.
NotePt 6.2 (Applications in proceedings) and r 3777 (Small Claims Court—applications in proceedings) apply to an application for an order under this rule.
(3)The court may receive evidence in an inquiry for an order under subrule (1).
(4)If the court makes an order under this rule, the registrar must serve a sealed copy of the order on the parties to the proceeding.
Small Claims Court—restoration of proceeding
(MC(CJ)R s 443)
(1)On application by a party to a proceeding, the court may order that the proceeding be restored (a restoration order) if—
(a)the proceeding has been dismissed under—
(i)rule 3765 (2) (Small Claims Court conference—failure to attend); or
(ii)rule 3771 (2) (Small Claims Court inquiry—failure to attend); or
(b)the proceeding has been discontinued under rule 3778 (Small Claims Court—discontinuance of proceeding); or
(c)default judgment has been entered in the proceeding under—
(i)rule 3751 (Small Claims Court—default by third party); or
(ii)rule 3757 (4) (Small Claims Court—default judgment); or
(iii)rule 3765 (3) (Small Claims Court conference—failure to attend); or
(iv)rule 3771 (3) (Small Claims Court inquiry—failure to attend); or
(d)consent judgment has been entered in the proceeding under—
(i)rule 3754 (3) (Small Claims Court—admission of liability); or
(ii)rule 3782 (Small Claims Court order—consent judgment).
NotePt 6.2 (Applications in proceedings) and r 3777 (Small Claims Court—applications in proceedings) apply to an application for an order under this rule.
(2)If the court makes a restoration order in a proceeding, the court may also make any of the following orders:
(a)an order setting aside a judgment, including a judgment entered by default or by consent;
(b)an order for the payment of costs;
(c)an order staying a proceeding until costs are paid;
(d)an order setting aside any proceeding taken to enforce a judgment set aside under this rule;
(e)any order the court considers appropriate for the future conduct of the proceeding, including an order that a conference be held between the parties, or an order about the priority of an inquiry in a proceeding;
(f)any other order the court considers just.
(3)The court may set aside a consent judgment only if any of the following apply in relation to the application for judgment or the entry of judgment:
(a)fraud;
(b)duress;
(c)suppression of relevant information or evidence;
(d)false evidence or information given and relied on;
(e)change of circumstances;
(f)impracticability of enforcement;
(g)any other ground the court considers just.
(4)If the court does not make a restoration order on an application under subrule (1), the court may make any order for costs it considers appropriate.
(5)If the court makes an order under this rule, the registrar must serve a sealed copy of the order on the parties to the proceeding.
Small Claims Court—costs
(MC(CJ)R s 456)
(1)The court must not make an order in relation to costs in a proceeding, except in accordance with this part.
(2)A judgment in favour of a party must include an order that the party liable for the judgment pay to the party entitled to the judgment—
(a)the amount of any fee paid by the party entitled to the judgment; and
(b)any expenses incurred by the party entitled to the judgment in relation to the proceeding, other than the costs of representation by a lawyer.
(3)The court may make an order for costs (other than the costs of representation by a lawyer) in favour of a party to a proceeding (the first party) against another party to the proceeding (the second party) for expenses unnecessarily incurred by the first party because of any act or omission of the second party.
(4)If the court makes an order under this rule, the registrar must serve a sealed copy of the order on the parties to the proceeding.
Division 3.12.11 Small Claims Court—orders
Small Claims Court order—consent judgment
(MC(CJ)R s 425 and s 451)
(1)A party to a proceeding may file a draft consent judgment at any time before judgment is entered by the court if—
(a)the parties to the proceeding agree on the judgment; and
(b)the judgment is signed by, or on behalf of, each party to the proceeding; and
(c)the judgment is witnessed by the registrar, a lawyer or a justice of the peace.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)If a consent judgment is filed under this rule the court must enter judgment in accordance with the draft consent judgment.
(3)If subrule (2) applies, the registrar must—
(a)serve a sealed copy of the judgment on the parties; and
(b)tell the parties about the right to apply for a restoration order.
NoteFor restoration orders, see r 3780 (Small Claims Court—restoration of proceeding).
Small Claims Court order—counterclaim or set-off
(MC(CJ)R s 453 (2))
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
(2)This rule applies if—
(a)the respondent relies on set-off or makes a counterclaim; and
(b)the set-off or counterclaim is successful; and
(c)the total amount of any successful set-off and counterclaim exceeds the amount for which the applicant is otherwise entitled to judgment.
(3)The court must enter judgment for the respondent for the amount of the excess.
Small Claims Court order—to perform work etc
(MC(CJ)R s 457)
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
(2)This rule applies if the court enters judgment in a proceeding.
(3)The court may order a respondent in the proceeding either to—
(a)perform work, or do something else, to rectify a defect in goods or services related to the applicant’s claim for relief in accordance with any conditions the court considers appropriate; or
(b)pay an amount to the applicant.
(4)Alternatively, the court may order a respondent in the proceeding—
(a)to pay an amount to the applicant; and
(b)either to—
(i)perform work, or do something else, to rectify a defect in goods or services related to the applicant’s claim for relief in accordance with any conditions the court considers appropriate; or
(ii)pay a further amount to the applicant.
Small Claims Court order—payment on condition work performed etc
(MC(CJ)R s 458)
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
(2)This rule applies if the court enters judgment in a proceeding requiring—
(a)a party (the first party) to pay an amount into court; and
(b)another party (the second party) to perform work, or do something else, to rectify a defect in goods or services.
(3)The court may include in the judgment a condition that the registrar is not to pay the amount out of court until the second party has performed the work or otherwise complied with the judgment.
Small Claims Court order—detention of goods
(MC(CJ)R s 217 and s 459)
(1)This rule applies to a proceeding in relation to the detention of goods.
(2)The court may give judgment for the applicant against the respondent, in accordance with the applicant’s claim for relief, for either—
(a)the return of the goods to the applicant, or the retention of the goods by the respondent and payment to the applicant of the value of the goods; or
(b)payment to the applicant of the value of the goods.
(3)If the court gives judgment for the return of goods, it may state a date before which the return must take place.
(4)If the court gives judgment for the return of goods, but the goods are subsequently damaged, destroyed or otherwise made unavailable for return, the court may, on the applicant’s application, order the respondent to pay the value of the goods to the applicant.
NotePt 6.2 (Applications in proceedings) and r 3777 (Small Claims Court—applications in proceedings) apply to an application for an order under this rule.
(5)If the court gives judgment under subrule (2) (a), and the applicant subsequently applies for an order under this subrule, the court may make an order for the return of the goods to the applicant without the option of the respondent retaining the goods and paying their value.
(6)In this rule:
value, of the goods, means the value assessed by, or in accordance with the directions of, the court.
Small Claims Court order—nuisance application
(MC(CJ)R s 463 (d))
(1)The court may grant the same relief on a nuisance application as the Supreme Court may grant in a proceeding for nuisance.
(2)Subrule (1) is subject to this part.
Small Claims Court order—trespass application
(MC(CJ)R s 460)
(1)The court may grant the same relief on a trespass application as the Supreme Court may grant in a proceeding for trespass to land.
(2)Subrule (1) is subject to this part.
Small Claims Court order—debt declaration
(MC(CJ)R s 461)
The court may make a debt declaration in a proceeding for a debt declaration.
Small Claims Court order—joint liability
(MC(CJ)R s 464)
(1)This rule does not apply to an application under the Common Boundaries Act 1981.
NoteThe Common Boundaries Act 1981, s 19 deals with apportionment of liability for orders made in relation to an application under that Act.
(2)This rule applies if—
(a)2 or more people are jointly liable in relation to a cause of action in a proceeding; and
(b)1 or more, but not all, of the people jointly liable are served with the originating application.
(3)The court may enter judgment in relation to the cause of action against any 1 or more of the people served with the originating application, and the judgment may be enforced against anyone against whom judgment is entered.
(4)If judgment is entered in relation to the cause of action against 1 or more, but not all, of the people jointly liable in relation to the cause of action—
(a)the liability of the people jointly liable against whom judgment is not entered (the other people) is not discharged by the judgment or any enforcement of the judgment; and
(b)the people against whom judgment is entered (the judgment parties) and the other people are, as between the judgment parties on the one hand and the other people on the other hand, liable severally but not jointly; and
(c)if there are 2 or more other people—the other people are jointly liable as between themselves; and
(d)if the judgment is satisfied or partly satisfied—the liability of the other people is discharged to the extent to which the judgment is satisfied.
(5)Subrule (4) does not affect a person’s right to contribution or indemnity in relation to the person’s satisfaction of all or part of a liability that the person has (whether jointly, severally or jointly and severally) with anyone else.
(6)This rule does not apply to a proceeding to which the Civil Law (Wrongs) Act 2002, section 107F (Proportionate liability for apportionable claims) applies.
Small Claims Court order—notice
(MC(CJ)R s 465)
(1)This rule applies if the court makes an order affecting a person in the person’s absence.
(2)The registrar must serve a sealed copy of the order on the person.
Small Claims Court order—payment of amount
(MC(CJ)R s 467)
(1)If an amount is payable under an order, the person liable to pay must pay the amount into court.
(2)The registrar must pay an amount paid into court to the person entitled to the payment.
(3)Subrule (2) is subject to any condition included in a judgment under rule 3785 (3) (Small Claims Court order—payment on condition work performed etc).
Small Claims Court order—other orders
(MC(CJ)R s 462)
The court may, in a proceeding—
(a)make any order it considers necessary in exercising its jurisdiction under another territory law; or
(b)any other order it considers appropriate.
Part 3.13Workers compensation
Division 3.13.1 Workers compensation proceedings—general
Definitions—pt 3.13
(WCR dict)
In this part:
arbitration means arbitration under the Workers Compensation Act.
case management meeting means a case management meeting held under rule 3942 (1).
claim includes a matter or question arising under the Workers Compensation Act to be decided by arbitration.
conciliation means conciliation under the Workers Compensation Act.
contractor—see the Workers Compensation Act, section 13 (Subcontracting).
injury notice—see the Workers Compensation Act, section 123 (The notice for an injury).
prescribed scale of costs means the scale of costs in schedule 4 (Scale of costs).
principal—see the Workers Compensation Act, section 13 (Subcontracting).
representative, for a party to an arbitration, means a lawyer or other person who represents the party.
third-party respondent—see rule 3920 (Arbitration—including other parties).
Workers Compensation Act means the Workers Compensation Act 1951.
Terms used in Workers Compensation Act
A term used in the Workers Compensation Act has the same meaning in this part.
NoteFor example, the following terms are defined in the Workers Compensation Act, dictionary:
· compulsory insurance policy
· dependant
· employer
· injured worker (see s 86)
· insurer
· medical referee
· registered agreement
· self-insurer.
Application—pt 3.13
(WCR r 5)
This part applies only in relation to—
(a)the Magistrates Court; and
(b)an injury to which the Workers Compensation Act, as in force after the commencement of the Workers Compensation Amendment Act 2001, applies.
NoteWith some exceptions (see Workers Compensation Act, s 234 (now expired)), the Workers Compensation Act, as in force after the commencement of the Workers Compensation Amendment Act 2001, does not apply to injuries that happened before the commencement of the amending Act ie 1 July 2002.
Workers compensation proceedings—application of ch 2 generally
(WCR r 64)
(1)Except as provided by this rule, chapter 2 does not apply to a proceeding under this part.
(2)The applied civil rules apply, with any necessary changes, to a proceeding under this part.
(3)Part 2.18 (Enforcement) applies, with any necessary changes, to a proceeding for enforcement of, or the recovery of money payable under, an award of the court or a registered agreement as if it were a judgment of the court.
(4)In this rule:
applied civil rules means the following:
· division 2.4.9 (People with a legal disability)
· division 2.4.10 (Partnerships)
· division 2.4.11 (Business names)
· division 2.12.1 (Expert evidence generally)
· part 2.17 (Costs), other than the following:
·rule 1722 (Costs—solicitors’ costs generally)
·rule 1723 (Costs—relevant amount for Magistrates Court proceedings)
·rule 1726 (Costs—amendment of documents)
·rule 1729 (Costs—extending or shortening time)
· part 2.21 (Representation by solicitors)
· part 2.22 (Miscellaneous).
Division 3.13.2 Workers compensation—applications for arbitration
Note to div 3.13.2
The Workers Compensation Regulation 2002, div 6.2 deals with conciliation. A conciliation of a matter in issue arising from a worker’s claim for compensation (other than rejection of the claim by an insurer) must be held before arbitration of the matter (see s 38). The Workers Compensation Regulation 2002, pt 7 provides for a committee rather than the court to arbitrate matters in certain cases (see esp s 51).
Application for arbitration—Commercial Arbitration Act not apply
(WC Reg s 49)
The Commercial Arbitration Act 1986 does not apply to an arbitration.
Application for arbitration—by worker
(WCR r 9)
(1)An injured worker may ask that a claim be decided by arbitration by filing an application in the court.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)The application must state briefly, but specifically, the claim to be arbitrated.
Application for arbitration—by dependant or estate of deceased worker
(WCR r 10)
(1)A dependant, or the personal representative, of a deceased worker may ask that a claim be decided by arbitration by filing an application in the court.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)The application must—
(a)contain details of each dependant on whose behalf the application is made; and
(b)state briefly, but specifically, the claim to be arbitrated; and
(c)be accompanied by a certified copy of—
(i)the worker’s death certificate; and
(ii)the birth certificate of each dependant.
(3)In this rule:
dependant includes a person claiming to be a dependant.
Application for arbitration—by employer or insurer
(WCR r 11)
(1)An employer or insurer may ask that a claim be decided by arbitration by filing an application.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)The application must state briefly, but specifically, the claim to be arbitrated.
Application for arbitration—when application may be filed
(WC Reg s 48)
An injured worker or the worker’s employer may file an application for the arbitration of—
(a)a matter in issue arising from the worker’s claim for compensation only if—
(i)the worker or employer has asked a conciliator to help the parties reach agreement on the matter; and
(ii)the parties have attended the conciliation; and
(iii)either the matter was not resolved at the conciliation or the conciliator decided that the matter was not suitable for conciliation; or
(b)the insurer’s rejection of the worker’s claim for compensation.
Application for arbitration—injury notice and medical evidence
(WCR r 12)
(1)An application for arbitration filed in the court must be accompanied by—
(a)if available to the applicant—a copy of the injury notice in relation to the claim; and
(b)a copy of all available medical evidence the applicant intends to rely on.
(2)If no injury notice was given in relation to the claim, the application must contain details of why no notice was given.
Application for arbitration—copies
(WCR r 13)
When filing an application for arbitration, and the documents accompanying the application mentioned in rule 3909, in the court, the applicant must also file—
(a)1 copy for each respondent; and
(b)for each respondent who is an employer other than a self‑insurer—1 copy for the respondent’s insurer.
Application for arbitration—service on respondent
(WCR r 14)
(1)An applicant for arbitration must serve a sealed copy of the application on each respondent not later than 14 days after the day the application is filed in the court.
NoteRule 6351 (Time—extending and shortening by court order) provides for the extending of time.
(2)The applicant must file in the court an affidavit of service of the application on a respondent unless the respondent has filed an answer.
(3)If the court makes an order under rule 6351 (Time—extending and shortening by court order), the applicant must serve a sealed copy of the order with the application.
Application for arbitration—service on insurer
(WCR r 15)
(1)An employer (other than a self-insurer) who is a respondent to an application for arbitration must serve a copy of the application on the employer’s insurer not later than 7 days after the day the employer is served with the application.
(2)A party included as a third-party respondent must serve a copy of the notice including the party on the party’s insurer not later than 7 days after the day the party is served with the notice.
NoteRule 3920 deals with including other parties.
Application for arbitration—answer by respondent or third-party respondent
(WCR r 16)
(1)A respondent to an application for arbitration may file an answer.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)The answer must be filed not later than 28 days after the day the respondent is served with the application.
NoteRule 6351 (Time—extending and shortening by court order) provides for the extending of time.
(3)A third-party respondent may file an answer to the third-party notice that includes the third-party respondent not later than 28 days after the day the respondent is served with the notice.
NoteRule 3920 deals with including other parties.
(4)When filing an answer in the court, the respondent must also file—
(a)1 copy for the applicant; and
(b)1 copy for each other respondent; and
(c)for each other respondent who is an employer other than a self‑insurer—1 copy for the respondent’s insurer.
Application for arbitration—liability and particulars subject to answer
(WCR r 39)
(1)An answer to an application for arbitration must admit or deny each claim and admit or deny each particular set out in the application.
(2)If no admission or denial of a claim or particular is made, the claim or particular is taken to be admitted.
(3)If a respondent worker does not file an answer, subrule (2) does not apply to a particular denying, completely or partly, liability to pay compensation.
(4)If a respondent employer wishes to deny a claim or particular, but has not done so in an answer, the court may—
(a)allow the respondent to raise a matter the respondent should have included, or given notice of, in an answer; or
(b)adjourn the arbitration to a stated time or for a stated period to allow the respondent to file an answer.
NoteRule 6901 (Orders may be made on conditions) provides that the court may make an order under these rules on any conditions it considers appropriate.
Application for arbitration—service of answer
(WCR r 17)
(1)A respondent must serve a sealed copy of the answer on the applicant and each other respondent.
NoteThe answer must be served as soon as possible (see Legislation Act, s 151B (Doing things for which no time is fixed)).
(2)If the court makes an order under rule 6351 (Time—extending and shortening by court order), the respondent must serve a sealed copy of the order with the answer.
Application for arbitration—amendment
(WCCR (NSW) r 17)
(1)At any stage of a proceeding, the court may give leave for a party to amend, or direct a party to amend, any document filed in the court in the proceeding in the way the court considers appropriate.
(2)However, this rule does not apply to a document accompanying an application for arbitration mentioned in rule 3909 (Application for arbitration—injury notice and medical evidence).
(3)The court may give leave, or give a direction, on application by the party or on its own initiative.
Note 1Pt 6.2 (Applications in proceedings) applies to an application for leave or a direction under this rule.
Note 2Rule 6902 (Leave may be given on conditions) provides that, if the court gives leave under these rules, it may give the leave on the conditions it considers appropriate.
(4)If there is a mistake in the name or identity of a party, the court may give leave for, or direct the making of, amendments necessary to correct the mistake, even if the effect of the amendments is to substitute another person as a party.
(5)An amendment of a document made under this rule must be distinguished so that the changes are identifiable.
(6)A party amending a document must file and serve on each other active party—
(a)a copy of the document that contains the amendments written on it; or
(b)a revised document incorporating and distinguishing the amendments.
(7)This rule does not apply in relation to an amendment of an order.
NoteSee r 6906 (Mistakes in orders or court certificates) for amendment of orders.
Application for arbitration—minor amendment or amendment by consent
(WCCR (NSW) r 17 (5))
(1)This rule applies to an amendment to a document in a proceeding that is—
(a)minor and will not have any substantive effect on the case to be put by any party to the proceeding; or
(b)consented to by all parties to the proceeding.
(2)Rule 3916 does not apply to an amendment mentioned in subrule (1).
(3)A party may amend the document by filing, and serving on each other active party in the proceeding—
(a)a copy of the document that contains the amendments written on it; or
(b)a revised document incorporating and distinguishing the amendments.
Application for arbitration—discontinuance
(WCCR (NSW) r 74)
(1)An applicant may discontinue a proceeding, or withdraw part of it, at any time.
(2)The applicant and another party to the proceeding may agree, in writing, that the applicant may discontinue the proceeding, or withdraw part of it, against the other party at any time.
(3)A discontinuance or withdrawal under this rule is made by filing in the court a notice of discontinuance or withdrawal and serving a stamped copy of the notice on the other active parties in the proceeding.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(4)If a proceeding is discontinued or withdrawn, a party who has not agreed to the discontinuance or withdrawal may apply to the court for an order that the applicant pay the party’s costs of the proceeding up to when notice of the discontinuance or withdrawal is served on the party.
NotePt 6.2 (Applications in proceedings) applies to an application under this rule.
(5)Subrule (4) is subject to rule 3968 (Workers compensation costs—generally).
Division 3.13.3 Workers compensation—parties for arbitration
Arbitration—necessary parties
(WCR r 28)
(1)A person whose participation is necessary for the court to completely and finally decide all matters in issue in an arbitration must be included as a party in the arbitration.
Example
If both a principal and a contractor, or more than 1 employer, may be liable in relation to the compensable injury, each of them must be included as a respondent.
NoteAn example is part of the rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(2)The court may require a person to be included as a party.
Example
If, for an application on behalf of dependants of a deceased worker, a dependant fails to join in the application, the dependant may be included as a respondent.
(3)Each party other than the applicant is a respondent.
(4)The court may decide a claim even if a person is incorrectly included or not included as a party.
Arbitration—including other parties
(WCR r 29)
(1)An applicant may include someone else as a party to an arbitration by naming the person in the application.
(2)A respondent may include someone else as a party to an arbitration (a third-party respondent) by filing a third-party notice.
Example
If a worker contracts a disease or suffers an aggravation, acceleration or recurrence of a disease, a respondent employer claiming to be entitled to contribution from another employer may include the other employer as a third-party respondent.
Note 1If a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
Note 2An example is part of the rules, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3)A party including a person as a third-party respondent must, not later than 14 days after the day the party files the notice—
(a)serve a sealed copy of the notice, the application for arbitration and any answer filed in the arbitration, on the person; and
(b)serve a sealed copy of the notice on each other party to the arbitration.
(4)The court may, at any time, order a party who has included a person as a party in an arbitration to—
(a)serve on the person any document in the arbitration; or
(b)file and serve on the person and each other party an affidavit setting out the basis on which the person has been included.
Arbitration—person may apply to be included as party
(WCR r 30)
A person may apply to the court to be included as a party to an arbitration.
NotePt 6.2 (Applications in proceedings) applies to an application under this rule.
Arbitration—party may apply to be removed as party
(WCR r 31)
A party to an arbitration may apply to the court to be removed as a party.
NotePt 6.2 (Applications in proceedings) applies to an application under this rule.
Arbitration—employer not respondent in certain applications by dependant or personal representative
(WCR r 32)
(1)This rule applies if—
(a)a dependant, or the personal representative, of a deceased worker asks that a claim be decided by arbitration; and
(b)the amount of compensation payable to the dependants of the deceased worker is not an issue in the arbitration.
(2)The employer is not a respondent in the arbitration if the employer has paid the amount of compensation—
(a)to the applicant; or
(b)into court to be dealt with as the court directs.
Division 3.13.4 Workers compensation—representation in arbitrations
Arbitration—party may be represented
(WCR r 34)
(1)A party to an arbitration may be represented by—
(a)a lawyer; or
(b)with leave of the court—
(i)if the party is an injured worker—a member of the party’s family; or
(ii)an employee of the party; or
(iii)if the party is a corporation—a director or officer of the corporation; or
(iv)if the party is a member of an organisation—an officer or member of the organisation; or
(v)in special circumstances, anyone else.
NotePt 6.2 (Applications in proceedings) applies to an application for leave.
(2)A person who represents a party with the court’s leave must file in the court an authority to act signed by the party.
(3)The court may allow a person other than a lawyer to claim travelling expenses for representing a party in an arbitration.
NoteA lawyer representing a party may claim costs and reasonable disbursements, see r 3968 (Workers compensation costs—generally).
(4)Also, the court may allow a worker, or a member of the worker’s family who represents the worker, an allowance for time spent at the arbitration.
Arbitration—separate representation of employer for insurer’s period on risk
(1)An employer who is a party to an arbitration in relation to a claim may be separately represented in the arbitration for each insurer on risk in relation to the claim.
(2)This part applies to the employer as if, for each separate representation, the employer were a separate party.
(3)An answer filed under rule 3913 (Application for arbitration—answer by respondent or third-party respondent) in relation to the separate representation must state the period of the representation.
(4)In this rule:
on risk—an insurer is on risk in relation to a claim if the insurer issued a compulsory insurance policy to the employer for any part of the period in which the injured worker says the injury happened.
Division 13.3.5 Workers compensation—listing procedure for arbitrations
Arbitration listing procedure—certificate of readiness
(MCPD 1/2000 par 5 and 6)
(1)If a party to an arbitration is ready for arbitration, the party must—
(a)complete and sign a certificate of readiness for the party; and
(b)serve a copy of the completed and signed certificate on each other party to the arbitration to be completed and signed by each other party.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(2)Each party who is served with a certificate of readiness must—
(a)if the party is ready for arbitration—complete and sign the certificate for the party and return it to the party who served it; or
(b)if the party is not ready for arbitration—return the unsigned certificate to the party who served it.
(3)If a certificate of readiness is filed in the court for an application for arbitration, the court must include the application in a callover list.
(4)The registrar must tell the parties the date set for the callover.
NoteIf a form is approved under the Court Procedures Act 2004, s 8 for this provision, the form must be used.
(5)At the callover the court may set a hearing date for the arbitration.
Arbitration listing procedure—certificate of readiness not signed
(MCPD 1/2000 par 8)
(1)This rule applies if—
(a)a party to an arbitration has served a certificate of readiness under rule 3926 (1); and
(b)another party to the arbitration has failed to complete and sign the certificate, and return the completed and signed certificate to the first party, within 21 days after the day the certificate was served on the other party.
(2)The first party may apply to the court for an order that the application be placed in the callover list, even though the certificate of readiness has not been filed in the court.
NotePt 6.2 (Applications in proceedings) applies to an application under this rule.
(3)On an application under subrule (2), the court—
(a)must decide whether the application is ready for arbitration; and
(b)may—
(i)give the directions it considers appropriate to have the application made ready for arbitration; or
(ii)order that the application be placed in the callover list, even though a certificate of readiness has not been filed; or
(iii)adjourn the application.
(4)If the court orders that an application be placed in the callover list even though a certificate of readiness has not been filed, the court must include the application in a callover list.
(5)The registrar must tell the parties the date set for the callover.
(6)At the callover the court may set a hearing date for the application.
Division 13.3.6 Workers compensation—medical reports for arbitrations
Arbitration—service of medical reports
(MCPD 1/2000, par 18, 19 and 20)
(1)Each party to an arbitration must, not later than 28 days before the hearing date for the arbitration, serve on each other party to the arbitration a copy of all medical reports then available to the party—
(a)on which the party intends to rely at the arbitration; or
(b)obtained from a doctor whom the party intends to call at the arbitration.
NoteRule 6351 (Time—extending and shortening by court order) provides for the extending of time by the court.
(2)If a party serves a medical report from a doctor, the party must serve every medical report from that doctor obtained by the party.
(3)If, after serving a medical report under subrule (1), a party obtains a further report from the same doctor, the party—
(a)must serve the further report not later than 3 days after the day the party obtains the report; or
(b)must not serve the report and tell the other parties that the party does not intend to rely on the reports of that doctor already served.
(4)A doctor’s report must not be tendered, and is not admissible, in the arbitration unless it has been served in accordance with this rule, except with—
(a)the court’s leave; or
(b)the agreement of all parties to the arbitration.
NotePt 6.2 (Applications in proceedings) applies to an application for leave or an order under this rule.
(5)This rule applies subject to any order of the court.
Arbitration—supplementary medical reports
(CPR r 1242)
(1)If a doctor changes in a material way an opinion in a medical report that has been served, the doctor must provide a supplementary medical report (a supplementary report) to the party who engaged the doctor (the engaging party) stating the change and the reason for it.
(2)The doctor may provide the engaging party with other supplementary reports (also a supplementary report).
(3)If a doctor provides a supplementary report under this rule, the engaging party, and any other party having the same interest as the engaging party, must not use an earlier medical report (including an earlier supplementary report) on an issue to which the earlier medical report relates unless the engaging party has served a copy of the supplementary report on all active parties in the proceeding on whom the engaging party served the earlier medical report.
Arbitration—doctor’s evidence to be covered by medical report
(MCPD 1/2000 par 23)
Except with the court’s leave or as otherwise agreed by all the parties to an arbitration, the oral evidence in chief of a doctor is not admissible unless the doctor’s medical report served in accordance with rule 3928 (Arbitration—service of medical reports) contains the substance of the matters sought to be adduced in evidence.
NotePt 6.2 (Applications in proceedings) applies to an application for leave.
Arbitration—medical reports admissible as evidence of opinion etc
(MCPD 1/2000 par 21)
A medical report served under rule 3928 is admissible as evidence of—
(a)the author’s opinion; and
(b)if the author’s direct oral evidence of a fact on which the opinion was formed would be admissible as evidence of that fact without further evidence (whether oral or otherwise)—that fact.
Enforcement of fine—determining capacity to pay fine
(MCR s 18 (1) and (2))
(1)A person who is liable to pay a fine may—
(a)be examined orally on oath about—
(i)the person’s assets, liabilities, expenses and income; and
(ii)any other means the person has of paying the fine; and
(ii)the person’s financial circumstances generally; and
NoteOath includes affirmation (see Legislation Act, dict, pt 1).
(b)be required to produce any document substantiating anything relevant to—
(i)the person’s assets, liabilities, expenses and income; and
(ii)any other means the person has of paying the fine; and
(iii)the person’s financial circumstances generally.
(2)The examination—
(a)must be conducted by the registrar; and
(b)may be conducted in open court or in the absence of the public, as the registrar directs.
Enforcement of fine—enforcement hearing warrant issue
(MCR s 9 and 18 (3))
(1)This rule applies if—
(a)a person who is liable to pay a fine is required under this division to attend an enforcement hearing or an adjourned enforcement hearing; and
(b)the person fails to attend the hearing as required.
(2)The registrar may issue a warrant (an enforcement hearing warrant) ordering an enforcement officer to apprehend the person and bring the person before the registrar to be examined at an enforcement hearing under rule 4344 if the registrar—
(a)is satisfied that the person was served with the subpoena or was otherwise aware that the person was required by the enforcement hearing subpoena to attend the hearing as required by the subpoena; and
(b)considers that the person does not have a reasonable excuse for not attending the hearing.
(3)Rule 2111 (Enforcement hearing—enforcement hearing warrant contents etc) applies to an enforcement hearing warrant issued under this rule as if a reference to rule 2109 were a reference to rule 4344.
(4)A person apprehended under an enforcement hearing warrant must be brought before the registrar to be examined at an enforcement hearing under rule 4344.
(5)For the Magistrates Court Act 1930, section 73A, that Act, division 3.4.4 (Committal and recognisance) applies in relation to a person for whom an enforcement hearing warrant has been issued by the court.
Enforcement of fine—orders
(MCR s 19)
(1)The registrar may, if satisfied that a fine defaulter has the capacity to pay an outstanding fine—
(a)make a seizure and sale order under division 2.18.5 (Enforcement of money orders—seizure and sale orders) as applied by rule 4347 against personal property of the fine defaulter to enforce the outstanding fine; or
(b)make a debt redirection order under division 2.18.6 (Enforcement of money orders—debt redirection orders generally) as applied by rule 4347 in relation to the outstanding fine; or
(c)make a regular redirection order under division 2.18.7 (Enforcement of money orders—regular redirections from financial institutions) as applied by rule 4347 in relation to the outstanding fine; or
(d)make an earnings redirection order under division 2.18.8 (Enforcement of money orders—earnings redirection orders) as applied by rule 4347 in relation to the outstanding fine.
(2)If the registrar makes a seizure and sale order in relation to 2 or more outstanding fines payable by a fine defaulter, the order operates in relation to the amount of each outstanding fine separately.
Application of pt 2.18
(MCR s 20)
(1)The purpose of this rule is to ensure, as far as practicable, that—
(a)a seizure and sale order under rule 4346 has the same effect as a seizure and sale order in relation to an enforcement debtor; and
(b)a debt redirection order under rule 4346 has the same effect as a debt redirection order in relation to an enforcement debtor; and
(c)a regular redirection order under rule 4346 has the same effect as a regular redirection order in relation to an enforcement debtor; and
(d)an earnings redirection order under rule 4346 has the same effect as an earnings redirection order in relation to an enforcement debtor.
(2)For subrule (1) (a), division 2.18.5 (Enforcement of money orders—seizure and sale orders) applies, with any necessary changes, and in particular, as if the following rules were omitted:
· rule 2200 (2) (Seizure and sale order—making);
· rule 2201 (Seizure and sale order—application);
· rule 2208 (Seizure and sale order—application for instalment order stays sale of seized property);
· rule 2210 (Seizure and sale order—seizure of real property);
· rule 2211 (Seizure and sale order—enforcement debtor not to deal with real property);
· rule 2214 (Seizure and sale order—suspension etc of enforcement);
· rule 2215 (Seizure and sale order—agreements to withdraw and re-enter);
· rule 2217 (1) (b) and (2) (Seizure and sale order—setting reasonable amount);
· rule 2218 (Seizure and sale order—additional provisions relating to land);
· rule 2219 (Seizure and sale order—power of entry for auction of land);
· rule 2223 (3) (Seizure and sale order—amounts received);
· rule 2230 (Seizure and sale order—documents giving effect to sale);
· rule 2235 (2) and (4) (Seizure and sale order—order for disposal and return of property to enforcement debtor).
(3)For subrule (1) (b), division 2.18.6 (Enforcement of money orders—debt redirection orders generally) applies, with any necessary changes, and in particular, as if the following rules were omitted:
· rule 2301 (Debt redirection order—making);
· rule 2302 (Debt redirection order—application).
(4)For subrule (1) (c), division 2.18.7 (Enforcement of money orders—regular redirections from financial institutions) applies, with any necessary changes, and in particular, as if rule 2332 (Regular redirection order—making) were omitted.
(5)For subrule (1) (d), division 2.18.8 (Enforcement of money orders—earnings redirection orders) applies, with any necessary changes, and in particular, as if the following rules were omitted:
· rule 2350 (Earnings redirection order—making);
· rule 2351 (Earnings redirection order—application).
(6)The provisions applied by subrules (2), (3), (4) and (5) have effect as if, in addition to any other necessary changes—
(a)a reference to a seizure and sale order were a reference to a seizure and sale order under rule 4346; and
(b)a reference to a debt redirection order were a reference to a debt redirection order under rule 4346; and
(c)a reference to a regular redirection order were a reference to a regular redirection order under rule 4346; and
(d)a reference to an earnings redirection order were a reference to an earnings redirection order under rule 4346; and
(e)a reference to an enforceable money order of the court were a reference to an outstanding fine; and
(f)a reference to an enforcement debtor were a reference to a fine defaulter; and
(g)a reference to an enforcement creditor were a reference to the Territory.
(7)If, under a provision applied by this rule, the registrar’s power to do anything depends on the enforcement creditor doing something, the registrar may exercise the power on his or her own initiative.
(8)The registrar must not make an instalment order for the payment of a fine or administrative fee under a provision applied by this rule.
Enforcement of fine—security for payment
(MCR s 71 and 72)
(1)This rule applies if, under the Magistrates Court Act 1930, section 148 (Court may allow time to pay), the court has ordered a person to give security with or without sureties for the payment of an amount.
(2)If the person does not enter into the security at the court house when the order is made, the person before whom the security is entered must send the security to the court.
[1.28]Rule 4733 (b), note
substitute
Note 1See the Supreme Court Act 1933, s 68B (Trial by judge alone in criminal proceedings).
Note 2See approved form 4.11 (Supreme Court criminal proceeding—election for trial by judge alone).
[1.29]Part 5.2, note to pt 5.2
omit
non-interlocutory judgments
substitute
non-interlocutory orders
[1.30]Rule 5010, definition of decision, paragraph (a)
omit
interlocutory judgment
substitute
interlocutory order
[1.31]Table 5011, item 1, column 2
omit
interlocutory judgments
substitute
interlocutory orders
[1.32]Rule 5300 (2)
omit
interlocutory judgments
substitute
interlocutory orders
[1.33]Division 5.4.2 heading
substitute
Division 5.4.2 Appeals to Court of Appeal—leave to appeal from interlocutory orders
[1.34]Rule 5310 (1)
omit
interlocutory judgment
substitute
interlocutory order
[1.35]Rule 5310 (1), note
omit
interlocutory judgments
substitute
interlocutory orders
[1.36]Rule 5312
omit
interlocutory judgment
substitute
interlocutory order
[1.37]Rule 5314 (2) (b)
omit
interlocutory judgment
substitute
interlocutory order
[1.38]Rule 5403 (4)
omit
interlocutory judgment
substitute
interlocutory order
[1.39]Rule 5430 (1)
substitute
(1)Before the date set for settling the appeal papers, the appellant must—
(a)get and file the reasons for the order or the summing up of the judicial officer of the court who gave the order appealed from, certified by the judicial officer’s associate; and
(b)get and file a copy of the transcript of the proceeding in which the order was made, corrected in accordance with subrules (2) and (3) and, if corrected, certified by the registrar; and
(c)prepare and file a 1-paragraph (about 250 words) summary (the case summary) of—
(i)the proceeding in which the order appealed from was made; and
(ii)the order appealed from; and
(iii)the grounds relied on in support of the appeal.
[1.40]Rule 5472 (1), notes 1 and 2
substitute
NotePt 6.2 (Applications in proceedings) applies to an application for an order under this rule.
[1.41]Rule 5850 definition of appellant, paragraph (b) (ii)
omit
interlocutory judgments
substitute
interlocutory orders
[1.42]Rule 6200 (3) (a)
omit
interlocutory judgment
substitute
interlocutory order
[1.43]Rule 6200 (3), note
omit
non-interlocutory judgments
substitute
non-interlocutory orders
[1.44]Rule 6256 (1)
substitute
(1)This rule applies to the following orders:
(a)an order made by the registrar of the Supreme Court in the exercise of jurisdiction given under rule 6250 (Jurisdiction exercisable by registrar of Supreme Court);
(b)an order made by the registrar of the Magistrates Court in a civil proceeding;
(c)an order made by the registrar under rule 6253 (Registrar’s powers—subpoenas).
NoteOrder is defined in the dictionary (see also def made).
[1.45]Schedule 4, rule 4.12
substitute
4.12Costs—transitional
(SCR o 65 r 7)
(1)A solicitor is entitled to charge and be allowed the costs set out in this schedule for work done or services performed on or after 1 January 2007.
(2)Rule 4.12 as in effect immediately before the commencement of this rule continues to apply for work done or services performed by a solicitor before 31 December 2006.
[1.46]Schedule 4, Part 4.2
substitute
Part 4.2Scale of costs—items
| column 1 item | column 2 matter in relation to which charge is made | column 3 charge ($) | |
| Division 4.2.1 Instructions | |||
| 1 | to sue or defend, to appeal or oppose an appeal | 135.00 | |
| 2 | for statement of claim, petition, special case or counterclaim | 135.00 | |
| 3 | for defence | 115.50 | |
| 4 | for— (a) a reply; or (b) amending a pleading; or (c) a notice claiming contribution or indemnity; or (d) a document to be brought into the registrar’s office (for example, an account or deed); or | 48.20 | |
| (e) adding parties by order; or (f) a bond or other deed; or (g) retaining counsel, including preparing retainer | |||
| 5 | for— (a) a pleading not otherwise provided for; or (b) interrogatories for the examination of a party or witness; or (c) an affidavit in answer to interrogatories or other special affidavit; or (d) disclosure or a list of documents; or (e) an application for an order that a matter be heard before the Full Court; or (f) a brief on application in chambers | 96.30 | |
| 6 | for— (a) an application whether in court, before the registrar or in chambers; or (b) opposition to an application; or (c) the assessment of a bill of costs | 96.30 | |
| 7 | for brief to advise on evidence | 86.70 | |
| 8 | for— (a) a statement of facts in an action; or (b) a request for particulars; or (c) particulars | 96.30 | |
| 9 | for brief in preparation for trial | the amount the registrar considers appropriate | |
| Division 4.2.2 Drawing | |||
| 10 | for an originating process or counterclaim | 100.70 | or, if longer than 700 words, 14.20 per 100 words |
| 11 | for any other pleading, a notice claiming contribution or indemnity, or an amendment of a pleading | 67.40 | or, if longer than 400 words, 14.20 per 100 words |
| 12 | for— (a) a notice of an application in a proceeding; or (b) a notice to produce documents; or (c) a notice to admit facts; or (d) a special case; or (e) interrogatories; or (f) a special affidavit; or (g) a brief (including observations) | 61.70 | or, if the document is longer than 400 words, 14.20 per 100 words |
| 13 | a formal affidavit, including an affidavit of service | 33.90 | |
| 14 | any other document | 26.70 | or, if longer than 100 words, 15.80 per 100 words |
| Division 4.2.3 Engrossing | |||
| 15 | of a document | 4.10 | per 100 words |
| Division 4.2.4 Copies | |||
| 16 | of any document, or of multiple documents copied at the same time— | ||
| (a) for each of the first 10 copies; or | 2.60 | per page | |
| (b) for each additional copy up to 100 copies; or | 1.10 | per page | |
| (c) for each additional copy over 100 copies | 0.30 | per page | |
| Division 4.2.5 Perusal | |||
| 17 | of— (a) an originating process; or (b) a pleading; or (c) an application in a proceeding; or (d) interrogatories; or (e) a special case; or (f) a notice to admit | 47.50 | or, if the document is longer than 800 words, 5.40 per 100 words |
| 18 | of any other document, if it is necessary to peruse | 5.40 | per 100 words |
| 19 | of a document by scanning it, if it is not necessary to peruse | 5.30 | or, if the document has more than 10 pages, the additional amount the registrar considers appropriate |
| Division 4.2.6 Attendances | |||
| 20 | for personal service, if necessary, of 1 or more documents at the same time | 72.00 | |
| 21 | for service of 1 or more documents at the same time— (a) at the office of a solicitor on the record or the address for service of a party; or (b) by post; or (c) made through a document exchange | 29.10 | |
| 22 | by a solicitor, necessarily or properly engaged, if the solicitor holds an unrestricted practising certificate or has been the holder of a practising certificate for at least 2 years— (a) to instruct counsel; or (b) on assessment of a bill of costs or other matter; or | 192.60 | per hour |
| (c) at conference with counsel; or (d) on a view; or (e) on witness or other person; or (f) to produce a document; or (g) to inspect a document, if the registrar is satisfied there were appropriate and sufficient reasons for the inspection; or (h) to prepare appeal papers | |||
| 23 | by a solicitor, necessarily or properly engaged, other than a solicitor mentioned in item 22— (a) to instruct counsel; or (b) on assessment of a bill of costs or other matter; or (c) at conference with counsel; or (d) on a view; or (e) on witness or other person; or (f) to produce a document; or | 135.00 | per hour |
| (g) to inspect a document, if the registrar is satisfied there were appropriate and sufficient reasons for the inspection; or (h) to prepare appeal papers | |||
| 24 | by a clerk, necessarily or properly engaged— (a) to instruct counsel; or (b) on assessment of a bill of costs or other matter; or (c) at conference with counsel; or (d) on a view; or (e) on witness or other person; or (f) to produce a document; or | 67.30 | per hour |
| (g) to inspect a document, if the registrar is satisfied there were appropriate and sufficient reasons for the inspection; or (h) to prepare appeal papers | |||
| 25 | other than an attendance already mentioned, in court or any hearing without counsel— | ||
| (a) by a solicitor holding an unrestricted practising certificate, or a solicitor who has been the holder of a practising certificate for at least 2 years; or | 288.80 | per hour | |
| (b) by any other solicitor | 202.20 | per hour | |
| 26 | by a solicitor involving a high degree of skill and responsibility | 288.80 | per hour |
| 27 | in court or chambers or before the registrar— (a) to take a reserved judgment; or (b) to mention a matter; or (c) for an adjournment; or (d) for settling the terms of and entering orders; or (e) for another reason | 77.00 | or 192.60 per hour |
| 28 | at the registry or other office or place for— (a) filing, delivering, or collecting a document; or (b) a purpose not involving the exercise of legal skill or knowledge | 23.90 | |
| 29 | formal telephone attendance | 23.90 | |
| 30 | telephone attendance leaving message only | 11.90 | |
| 31 | any other attendance by a solicitor (including travelling and waiting time and including a telephone attendance) | 38.60 | or 48.20 per quarter hour |
| 32 | any other attendance by a clerk (including travelling and waiting time and including a telephone attendance) | 23.90 | or 16.70 per quarter hour |
| 33 | if the registrar is satisfied, in relation to travel, that the purpose of the journey could not have been satisfactorily accomplished by an agent and that— | ||
| (a) a solicitor has been necessarily absent from the place where the solicitor carries on practice; or | an allowance (in addition to reasonable travelling expenses), for each day (other than Saturdays and Sundays) that the solicitor is absent, of not more than 1 124.60 | ||
| (b) a clerk has attended in place of the solicitor | an allowance (in addition to reasonable travelling expenses), for each day (other than Saturdays and Sundays) that the clerk is absent, of not more than 288.80 | ||
| Division 4.2.7 Letters | |||
| 34 | ordinary letter | 33.40 | or 16.30 per 100 words |
| 35 | special letter | 55.50 | or 16.30 per 100 words |
| 36 | formal letter—short letter, without legal content | 16.20 | |
| 37 | circular letters after the first | 7.30 | |
| 38 | fax copy or telex, including attendance to send | 37.90 | |
| 39 | receiving and filing any incoming letter, other than a letter received by email (postage and transmission fees properly incurred may be claimed as a disbursement) | 10.10 | |
| 40 | receiving, printing and filing incoming letter received by email | 10.80 | |
| 41 | printing any attachment to an email, or multiple attachments to an email printed at the same time— | ||
| (a) for each of the first 10 pages; or | 2.60 | per page | |
| (b) for each additional page up to 100 copies; or | 1.10 | per page | |
| (c) for each additional page over 100 copies | 0.30 | per page | |
| Division 4.2.8 Witness expenses | |||
| 42 | a witness called because of the witness’s professional, scientific or other special skill or knowledge | 944.90 | per day |
| 43 | a witness called other than because of the witness’s professional, scientific or other special skill or knowledge | 99.70 | per day |
| 44 | a witness paid in the witness’s occupation by wages, salary or fees | the amount lost by attendance at court | |
| 45 | a witness qualifying to give skilled evidence | the additional amount the registrar considers reasonable and properly incurred and paid | |
| 46 | if the witness lives more than 50km from the court | the additional amount the registrar considers reasonable for the actual cost of travel, and for accommodation and meals | |
| 47 | attendance at court by a witness acting as an expert in assisting counsel or a solicitor for a period during the trial or hearing | the amount the registrar considers appropriate (but not affecting the existing practice of allowing qualifying fees for witnesses) | |
| Division 4.2.9 Disbursements | |||
| 48 | all court fees, counsel’s fees and other fees and payments | allowed to the extent that they have been properly and reasonably incurred and paid | |
[1.47]Schedule 5, part 5.1, item 94, column 3
omit
interlocutory judgments
substitute
interlocutory orders
[1.48]Dictionary, new definitions
insert
arbitration, for part 3.13 (Workers compensation)—see rule 3900.
case management meeting, for part 3.13 (Workers compensation)—see rule 3900.
claim, for part 3.13 (Workers compensation)—see rule 3900.
conciliation, for part 3.13 (Workers compensation)—see rule 3900.
conference, for part 3.12 (Small Claims Court)—see rule 3730.
contractor, for part 3.13 (Workers compensation)—see the Workers Compensation Act, section 13 (Subcontracting).
[1.49]Dictionary, definitions of court, criminal proceeding, defendant, enforcement hearing subpoena and enforcement hearing warrant
substitute
court—
(a)for these rules generally—see rule 5 (1) and (2) (References to court, judicial officer etc); and
(b)for part 3.12 (Small Claims Court)—see rule 3730; and
(c)for part 5.4 (Appeals to Court of Appeal)—see rule 5300.
criminal proceeding means a proceeding against a person for an offence (whether summary or indictable); and
(a)includes—
(i)a committal proceeding; and
(ii)a proceeding in relation to bail; and
(iii)a proceeding in relation to sentence; but
(b)does not include—
(i)an appellate proceeding; or
(ii)for division 4.3.2 (Supreme Court criminal proceedings—representation)—an application in relation to bail.
defendant—
(a)for these rules generally—see rule 20; and
(b)for division 2.18.17 (Enforcement—arrest warrant for absconding defendants)—see rule 2551; and
(c)for part 3.9 (Habeas corpus)—see rule 3500; and
(d)for part 4.2 (Magistrates Court criminal proceedings)—see rule 4300; and
(e)for schedule 6 (Rules for proceedings under Corporations Act or ASIC Act)—see schedule 6, rule 1.5.
enforcement hearing subpoena—
(a)for part 2.18 (Enforcement)—see rule 2000; and
(b)for division 4.2.4 (Magistrates Court criminal proceedings—enforcement of fines)—see rule 4340.
enforcement hearing warrant—
(a)for part 2.18 (Enforcement)—see rule 2000; and
(b)for division 4.2.4 (Magistrates Court criminal proceedings—enforcement of fines)—see rule 4340.
[1.50]Dictionary, new definitions of fine, fine defaulter, injury notice and Magistrates Court Act
insert
fine, for division 4.2.4 (Magistrates Court criminal proceedings—enforcement of fines)—see rule 4340.
fine defaulter, for division 4.2.4 (Magistrates Court criminal proceedings—enforcement of fines)—see rule 4340.
injury notice, for part 3.13 (Workers compensation)—see the Workers Compensation Act, section 123 (The notice for an injury).
Magistrates Court Act, for part 3.12 (Small Claims Court)—see rule 3730.
[1.51]Dictionary, definitions of order and originating process
substitute
order—
(a)for these rules generally—includes a judgment, decree, direction or decision, whether or not final; and
(b)for part 3.12 (Small Claims Court)—see rule 3730; and
(c)for part 4.2 (Magistrates Court criminal proceedings)—see rule 4300; and
(d)of a court or tribunal, for part 5.3 (Appeals to Supreme Court)—see rule 5050; and
(e)for division 5.4.4 (Appeals to Court of Appeal—procedure generally), division 5.4.5 (Appeals to Court of Appeal—appeal papers and hearing) and division 5.4.6 (Appeals to Court of Appeal—ending all or part of appeal)—see rule 5400.
originating process—
(a)for these rules generally—means an originating claim, originating application or application for arbitration; and
(b)for schedule 6 (Corporations Rules)—see schedule 6, rule 1.5.
[1.52]Dictionary, new definition of outstanding fine
insert
outstanding fine, for division 4.2.4 (Magistrates Court criminal proceedings—enforcement of fines)—see rule 4340.
[1.53]Dictionary, definitions of plaintiff, pleading and prescribed scale of costs
substitute
plaintiff—
(a)for these rules generally—see rule 20; and
(b)for division 2.18.17 (Enforcement—arrest warrants for absconding defendants)—see rule 2551; and
(c)for schedule 6 (Corporations Rules)—see schedule 6, rule 1.5.
pleading—
(a)includes—
(i)a statement of claim; and
(ii)a defence; and
(iii)a reply; and
(iv)a counterclaim made in a proceeding started by originating claim or third-party notice; and
(v)an answer to a counterclaim; and
(vi)a response to an answer to a counterclaim; and
(vii)an affidavit ordered to be treated as pleadings; and
(viii)an application for arbitration; and
(ix)an answer to an application for arbitration; and
(x)a third-party notice for an arbitration; but
(b)does not include—
(i)an originating claim; or
(ii)an originating application; or
(iii)a third-party notice other than a third-party notice for an arbitration; or
(iv)an application in a proceeding.
NoteA pleading must comply with pt 2.6 (Pleadings).
prescribed scale of costs—
(a)for part 2.17 (Costs)—see rule 1700; and
(b)for part 3.13 (Workers compensation)—see rule 3900.
[1.54]Dictionary, new definition of principal
insert
principal, for part 3.13 (Workers compensation)—see the Workers Compensation Act, section 13 (Subcontracting).
[1.55]Dictionary, definition of registrar
substitute
registrar—
(a)for these rules generally—see rule 5 (4) (References to court, judicial officer etc); and
(b)of a court or tribunal, for part 5.3 (Appeals to Supreme Court)—see rule 5050.
[1.56]Dictionary, new definitions of representative, restoration order, third-party respondent and Workers Compensation Act
representative, for part 3.13 (Workers compensation)—see rule 3900.
restoration order, for part 3.12 (Small Claims Court)—see rule 3730.
third-party respondent, for part 3.13 (Workers compensation)—see rule 3920 (Arbitration—including other parties).
Workers Compensation Act, for part 3.13 (Workers compensation)—see rule 3900.
Endnotes
Notification
Notified under the Legislation Act on 18 December 2006.
Republications of amended laws
For the latest republication of amended laws, see align="center">© Australian Capital Territory 2006
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