Federal Court Rules (Cth)
made under the
This compilation was prepared on 1 January 2011
taking into account amendments up to SLI 2010 No. 338
This document has been split into four volumes
Volume 2 contains Orders 51A to 82,
Volume 3 contains Schedules 1 to 4, and
Volume 4 contains the Notes
Each volume has its own Table of Contents
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Division 2 Service through the diplomatic channel or by transmission to a foreign government
Division 2 Service abroad of local judicial documents
Division 3 Default judgment following service abroad of initiating process
Division 4 Local service of foreign judicial documents
Order 15A Preliminary discovery and discovery from non‑party
Order 23 Offer of compromise and payment into court
Order 24 Evidence taken in Australia or abroad or evidence taken under Part 2 of the Foreign Evidence Act 1994
Order 29 Separate decision of questions: consolidation
Order 32A Dealing with applications and matters in original jurisdiction without oral hearing
Division 1 Contempt in the face or hearing of the Court
Division 2 Individuals trading under a business name
Division 3A Payment pursuant to statutory entitlement
Division 2 Unlawful termination of employment (Workplace Relations Act)
Division 3 Unlawful dismissal from, or termination of, employment (Fair Work Act)
Division 4 Unlawful discrimination (Fair Work Act)
Division 6 Inquiries and ballots in relation to registered organisations
These Rules may be cited as the Federal Court Rules.
These Rules shall come into operation on 1 August 1979.
Upon the coming into operation of these Rules, the Federal Court of Australia Rules, being Statutory Rule No. 20 of 1977 and Statutory Rule No. 220 of 1977, are repealed.
In these Rules, unless the contrary intention appears:
the Act means theFederal Court of Australia Act 1976 .
arbitration means arbitration conducted under an arbitration order.
arbitration order means an order referring a matter to an arbitrator as mentioned in Order 72, rule 1.
arbitrator means an arbitrator to whom a matter is referred under an arbitration order.
Australia orthe Commonwealth means the Commonwealth of Australia and when used in a geographical sense includes external territories.
Bankruptcy Rules means theFederal Court (Bankruptcy) Rules 2005 .
committee includes a person entrusted under a law of the Commonwealth, or of a State or Territory, with the care or management of the person or estate of a mentally disabled person.
Commonwealth means the Commonwealth of Australia and includes a Territory.
corporation includes any artificial person other than an organisation.
Corporations Rules means theFederal Court (Corporations) Rules 2000 .
cross‑claim includes a counter‑claim, cross‑action, set‑off, and third party claim.
directions hearing means:
(a) a hearing appointed in an originating process; or
(b) except for the purpose of computation of time within which acts must be done — any other hearing fixed for the purpose of giving, or at which the Court in fact gives, directions about the conduct of a proceeding.
document includes any record of information which is a document within the definition contained in the Dictionaryin the
Evidence Act 1995 and any other material data or information stored or recorded by mechanical or electronic means.
document exchange means a facility or service through which a member of the facility or service may send a document to another member of the facility or service.
document exchange box means a box in a document exchange.
electronic communication means a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, including an email or an email attachment.
email address means the mailing address to and from which an electronic communication may be sent and received using the Internet, an intranet or other similar network.
examination includes where relevant an examination held pursuant to an order made under Order 24, and, in proceedings under Division 1 of Part 2 of theForeign Evidence Act 1994 , includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by the Court under that Part.
examiner includes an officer of the Court or any other person appointed under Order 24, or under paragraph 7 (1) (a) or (b) of theForeign Evidence Act 1994 , for the purpose of an examination before the examiner of any person.
hearing includes any hearing before the Court, whether final or interlocutory, and whether in open court or in chambers.
image means a picture that has been created, copied, stored or transmitted in electronic form.
Judge means a Judge of the Court (including the Chief Justice) and in the expression ‘the Court or a Judge’ means a Judge sitting in chambers.
mediation means mediation conducted under a mediation order.
mediation or arbitration order means a mediation order or an arbitration order.
mediation order means an order referring a matter to a mediator as mentioned in Order 72, rule 1.
mediator means a mediator to whom a matter is referred under a mediation order.
mentally disabled person means a person who, owing to mental illness, is incapable of managing his or her affairs in respect of the proceedings.
oath includes affirmation.
organisation has the meaning given by section 6 of theFair Work (Registered Organisations) Act 2009 .
originating process means a document, filed in the Court, that commences a proceeding in the Court’s original jurisdiction.
person under disability means an infant, minor or mentally disabled person.
pleading includes a statement of claim and a cross‑claim to which Order 5 applies and subsequent pleadings, but does not include an application, notice of motion or affidavit.
proper place in relation to any proceeding:
(a) where there has been no transfer means the place at which the proceeding was commenced;
(b) where there has been a transfer means the place to which the proceeding was transferred.
Registrar means the Registrar or a District Registrar of the Court, and includes a Deputy Registrar or a Deputy District Registrar of the Court or other officer for the time being discharging the duties of any one of them, and when used in relation to any proceeding means the Registrar or District Registrar at the proper place.
Registry includes the Principal Registry and a District Registry.
Rules means Federal Court Rules.
Sheriff includes a Deputy Sheriff or any person for the time being discharging the duties of Sheriff or Deputy Sheriff.
trial includes any hearing other than an interlocutory hearing.
tutor means a next friend, guardian ad litem or committee of the person or estate of a person under disability.
Unless these Rules provide otherwise, the Court may exercise a power under these Rules in a proceeding:
(a) on its own initiative; or
(b) on the application of a party, or a person who has sufficient interest in the proceeding.
Unless the contrary intention appears, where under these Rules the Court has the power to make an order or do any other act or thing, it may make that order or do that other act or thing on terms.
(1) A document that is required or permitted by these Rules to be filed or lodged may be:
(a) presented to a Registry when the Registry is open for business; or
(b) sent by post to a Registry with a written request for the processing required; or
(c) sent by document exchange by being left, addressed to the Federal Court of Australia, at its box at the Australian Document Exchange, with a written request for the processing required; or
(d) sent by facsimile transmission to a Registry in accordance with rule 5AB; or
(e) sent by electronic communication to a Registry in accordance with rule 5AC.
(2) However, a document may not be sent:
(a) by facsimile transmission if the document (including any annexure or attachment) is more than 20 pages long; or
(b) by electronic communication if the document (including any attachment) is more than 100 pages long; or
(c) by facsimile transmission or electronic communication if it is an affidavit referred to in paragraph 4.07 (b) of the Bankruptcy Rules.
Note Because of the Court’s computer security firewall, the Court cannot accept an electronic communication that is more than 5 megabytes in size.
(3) If a document is required to be signed or stamped, it must be accompanied by the number of copies required, unless it is sent by facsimile transmission or electronic communication.
(4) If the fee for a document to be filed is not payable, the document must be accompanied by a statement of the reason it is not payable and any supporting evidence.
(5) A document presented, or sent in accordance with paragraph (1) (b) or (c), to a Registry that is not the proper place for the proceeding, must be accompanied by a letter:
(a) identifying the proper place; and
(b) requesting that the document be sent to the proper place.
(6) A document is filed:
(a) for a document in an existing proceeding — if it is accepted in the Registry that is the proper place for the proceeding and stamped in accordance with Order 46, rule 4; or
(b) otherwise — if it is accepted in a Registry and stamped in accordance with Order 46, rule 4.
(6A) If a document in an existing proceeding:
(a) is presented to or sent in accordance with paragraph (1) (b) or (c) to a Registry that is not the proper place; and
(b) is sent by that Registry to the proper place; and
(c) is filed in accordance with paragraph (6) (a);
the document is taken to have been filed on the day when it was received by the Registry that is not the proper place.
(7) However, a document sent by facsimile transmission or electronic communication is, if accepted, taken to have been filed:
(a) if the whole document is received by 4.30 pm on a day when the Registry is open for business — on that day; and
(b) otherwise — on the next day when the Registry is open for business.
Note Because of the Court’s computer security firewall, there may be a delay between the time a document is sent by electronic communication and the time the document is received by the Court.
(8) A document must not be accepted, without leave of the Court, a Judge or a Registrar, if it appears to a Registrar that the document:
(a) is not substantially complete; or
(b) does not substantially comply in form with these Rules; or
(c) is not properly signed or executed.
(9) A document must not be accepted if a Registrar, under Order 46 rule 7A:
(a) refuses to accept or issue the document; or
(b) is directed by a Judge to refuse to accept or issue the document; or
(c) is directed by a Judge to refuse to accept or issue the document without first obtaining the leave of a Judge.
(10) If a document sent in accordance with paragraph (1) (b), (c), (d) or (e) is not accepted, the Registrar must notify the sender of the document:
(a) by telephone on the telephone number stated on the document, cover sheet or accompanying request; or
(b) in writing to the postal address or facsimile number stated on the document, cover sheet or accompanying request; or
(c) by electronic communication to the email address stated on the document, cover sheet or accompanying request.
(11) If a document sent to a Registry by post or document exchange is required to be signed or stamped, and is accepted at the Registry, the Registrar must:
(a) if the sender requests that the document be held for collection — hold it for collection for 7 days; or
(b) if the sender does not request the document to be held for collection, or having made a request does not collect the document within 7 days — return the document in the same way it was sent.
Note See Part 2 of theFederal Court of Australia Regulations 2004 in relation to fees for filing documents.
(1) The Registrar must approve at least one facsimile number for each Registry for the purpose of receiving documents.
(2) A document sent to a Registry by facsimile transmission must be:
(a) sent to an approved facsimile number for the Registry; and
(b) accompanied by a cover sheet clearly stating:
(i) the sender’s name, postal address, document exchange number (if any), telephone number and facsimile number; and
(ii) the number of pages transmitted; and
(iii) the processing of the document required.
(3) If the document is in an existing proceeding, it must be sent to an approved facsimile number for the Registry which is the proper place for the proceeding.
(4) If the document is required to be signed or stamped, and is accepted at the Registry, the Registrar must:
(a) make one copy of the document; and
(b) if the sender requests that the document be held for collection — hold it for collection for 7 days; and
(c) if the sender does not request the document to be held for collection, or having made a request does not collect the document within 7 days — return the document by sending it:
(i) by facsimile transmission to the facsimile number stated on the cover sheet; or
(ii) if there is no facsimile number stated, to the postal address stated on the cover sheet.
(5) If more than one copy is required for issue, the sender of the document must send, or ask the Registry to make, any additional copies required.
(6) A person who sends a document to a Registry by facsimile transmission must:
(a) keep the original document and the transmission report evidencing successful transmission; and
(b) produce the original document or the transmission report as directed by the Court.
(7) If the court directs that the original document be produced, the first page of the document must be endorsed with:
(a) a statement that the document is the original of a document sent by facsimile transmission; and
(b) the date that the document was sent by facsimile transmission.
(1) The Registrar:
(a) must approve the formats in which electronic versions of documents will be accepted by a Registry; and
(b) may approve at least one email address for any Registry for the purpose of receiving documents by electronic communication.
(2) A document sent to a Registry by electronic communication must:
(a) be sent:
(i) by using the Court’s Internet home page at
or the Commonwealth Courts Portal at or (ii) to an email address approved for the Registry; and
(b) be in an electronic format approved for the Registry; and
(c) to the extent practicable, be in a form that complies with rule 7; and
(d) be capable of being printed with the content and in the form in which it was created.
(3) An affidavit may only be filed by electronic communication by sending an image of the affidavit in accordance with subrule (2).
(4) If the document is in an existing proceeding, it must be sent to the Registry which is the proper place for the proceeding:
(a) by using the Court’s Internet home page at
or the Commonwealth Courts Portal at or (b) by addressing it to an email address approved for that Registry.
(5) Subject to subrule (5A), if the document is required to be signed or stamped, and is accepted at the Registry, the Registrar must:
(a) for a document that, under these Rules, must be endorsed with a date for hearing — insert a notice of filing and hearing in accordance with Form 173 as the first page of the document; and
(b) for any other document — insert a notice of filing in accordance with Form 174 as the first page of the document; and
(c) make one copy of the document (including the notice mentioned in paragraph (a) or (b) (whichever is applicable)); and
(d) if the sender requests that the document be held for collection — hold it for collection for 7 days; and
(e) if the sender does not request the document to be held for collection, or having made a request does not collect the document within 7 days — return the document by sending it:
(i) by electronic communication to the email address stated on the cover sheet; or
(ii) if there is no email address stated, to the postal address stated on the cover sheet.
(7) A person who sends a document to a Registry by electronic communication must:
(a) if the document is an image of an affidavit — produce the original of the affidavit as directed by the Court; or
(b) in any other case — produce a paper copy of the document as directed by the Court.
(8) If the Court directs that an original affidavit or a paper copy of a document be produced, the person who sent the document must:
(a) for an original affidavit — attach a statement that it is the original of the affidavit sent by electronic communication and the date that the affidavit was sent by electronic communication; or
(b) in any other case — endorse the first page with a statement that the paper copy is a true copy of the document sent by electronic communication and the date that the document was sent by electronic communication.
(1) The first document filed in any proceeding shall have a serial number assigned to it for the Registry in which it is filed, and that and each other document in the proceeding shall bear that number preceded by a reference to the appropriate Registry together with a reference to the calendar year in which the first document is filed.
(2) A new series of numbers shall be commenced at the beginning of each calendar year.
(1) Subject to subrule (2), the forms in Schedule 1 shall be used where applicable notwithstanding the absence of any specific provision in the Rules in respect of the use of any particular form.
(1A) A reference in a provision of the Rules to a Form by number is to be read as a reference to the Form so numbered in Schedule 1.
(2) It shall be sufficient compliance with these Rules as to the form of any document if the document is substantially in accordance with the requirement or has only such variations as the nature of the case requires.
The Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises.
(1) Where a person desires to commence a proceeding or take any step in a proceeding, and the manner or form of procedure is not prescribed by the Act or the Rules or by or under any other Act, or that person is in doubt as to the manner or form of procedure, the Court may give directions.
(2) A proceeding commenced in accordance with the directions of the Court shall be well commenced.
(3) A step taken in accordance with the directions of the Court shall be regular and sufficient.
The sittings of the Full Court in the Court’s appellate jurisdiction shall be held in each year at such times and places as the Chief Justice directs.
In any judgment or order and in any document in any proceeding, unless the context or subject matter otherwise indicates or requires,
month means calendar month.
(1) Any period of time fixed by rules or by any judgment or order or by any document in any proceeding, shall be reckoned in accordance with this rule.
(2) Where a time of one day or a longer time is to be reckoned by reference to a given day or event, the given day or the day of the given event shall not be counted.
(3) Where, apart from this subrule, the period in question, being a period of 5 days or less, would include a day on which the Registry is closed, that day shall be excluded.
(4) Where the last day for doing a thing is a day on which the Registry is closed, the thing may be done on the next day on which the Registry is open.
(4A) In calculating the time fixed by these Rules or by any order fixing, extending or abridging time, the period from 24 December to 14 January next following is excluded, unless the Court otherwise orders.
(5) Subsection 36 (2) of the
Acts Interpretation Act 1901 does not apply to these Rules.
(1) The Court or a Judge may by order extend or abridge any time fixed by the Rules or by any judgment or order.
(2) The time may be extended under this rule, or any other rule allowing for an extension of time (unless the rule provides otherwise):
(a) before or after the time expires; and
(b) whether or not an application for extension is made before the time expires.
(3) The period within which a person is required by rules or by any order to serve, file or amend any pleading or other document may be extended by consent without an order for extension.
Where no time is fixed by the Rules or by any judgment or order of the Court or a Judge for the doing of any thing in or in connection with any proceeding, the Court may, by order, fix the time within which the thing is to be done.
(1) The District Registries of New South Wales and Victoria shall be open to the public for business between 10 in the morning and 4 in the afternoon, except on Saturdays, Sundays and other holidays.
(2) The Principal Registry and the District Registries of the States other than New South Wales and Victoria and of the Territories, shall be open to the public for business from 10 in the morning until 1 in the afternoon and from 2 until 4 in the afternoon, except on Saturdays, Sundays and other holidays.
(3) A Registry may in the discretion of the Registrar, and shall on the direction of a Judge, be opened at other times for urgent business.
(1) Except as otherwise provided in these Rules all proceedings in the Court’s original jurisdiction shall be commenced by filing an application.
(2) An application shall be in or substantially in the form numbered 5 in Schedule 1.
(1) For the purposes of section 486I of the
Migration Act 1958 , a lawyer must not file an application commencing migration litigation unless the application includes, or is accompanied by, a certificate in accordance with Form 56B signed by the lawyer.(2) In this rule:
lawyer has the meaning given by section 486K of theMigration Act 1958 .
migration litigation has the meaning given by section 486K of theMigration Act 1958 .
(1) A party claiming relief shall be called an applicant.
(2) A party against whom relief is claimed shall be called a respondent.
(1) An application must specify:
(a) the relief claimed by the applicant; and
(b) if the relief depends on a provision of an Act — the Act and the provision.
(2) Where the claim for relief includes a claim for the determination or direction of the Court on any question, the application shall state the question.
(3) Costs need not be specifically claimed.
(4) Exemplary damages shall be specifically claimed.
(1) An application shall contain:
(a) the name and address of the applicant;
(b) where a party sues or is sued in a representative capacity a statement of that fact;
(c) where the applicant sues by a solicitor, the name, address, telephone number, facsimile number and email address of the solicitor;
(d) where the applicant sues by a solicitor and that solicitor has another solicitor as agent for him in the proceeding, the name, address, telephone number, facsimile number and email address of the agent; and
(e) an address for service.
(2) Where it appears from an application that the applicant sues by a solicitor:
(a) the solicitor shall, on request in writing by a respondent, declare in writing whether the application was filed by the solicitor; and
(b) if the solicitor declares in writing that the application was not filed by the solicitor, the Court may stay the proceeding.
Where there is a respondent, an application shall bear a note that:
(a) if there is no attendance before the Court by the respondent or a lawyer representing the respondent at the time and place stated in the application, the proceeding may be heard and an order may be made or judgment given against the respondent; and
(b) before any attendance at that time the respondent must enter an appearance in the Registry.
(1) The applicant shall file and serve with the application either an affidavit in accordance with Form 20, or a statement of claim in accordance with Form 7, whichever is appropriate.
(1A) However, an applicant seeking to rely on an allegation of fraud, misrepresentation, breach of trust, wilful default or undue influence must file and serve a statement of claim.
(2) The affidavit or statement of claim shall show:
(a) the nature of the applicant’s claim; and
(b) the material facts on which it is based.
(1) Upon an application and affidavit or statement of claim being filed, the Registrar on the applicant’s request shall sign, and affix the seal of the Court to, a sufficient number of copies of the application for service and proof of service.
(2) The serial number of the proceeding shall be endorsed on each document.
An application must state a date for a hearing at which the Court may hear the proceeding in whole or in part, or give directions for the further conduct of the proceeding.
(1) Where by his application an applicant seeks interlocutory relief, he shall make a distinct claim for that relief.
(2) The Court may hear and determine the claim for interlocutory relief on the hearing date specified in the application.
(3) At the hearing of the claim for interlocutory relief the Court may give any directions it thinks fit.
(1) The date for a hearing under rule 8 or rule 9 to be endorsed on the application shall be obtained from the Registry.
(2) Where the Court has made an order abridging time, the application shall bear a note of the order made.
An application and affidavit or statement of claim shall, unless the court otherwise orders, be served upon the respondent named in the application in accordance with Order 7, not less than five days before the date appointed for hearing pursuant to rule 8 or rule 9 of this Order.
If a date for hearing has been obtained or made, the Court may:
(a) alter the date for hearing to a later date; and
(b) authorise the lawyer for a party to make corresponding alterations in any copy for service of any application or notice.
(1) Where an application and affidavit or statement of claim have been served upon the respondent named in the application less than five days before the date for hearing endorsed on the application pursuant to Order 4, rule 8 or rule 9, the Court or Registrar may alter the date to a later date and may authorise the solicitor for a party to give notice to that respondent of that altered date for hearing by posting an altered copy of the application by registered post to the usual or last known place of business or abode of the respondent or to the place at which the application was served if appropriate.
(2) The Registrar may give the authority by telephone or by some other means as the Registrar thinks fit.
(1) Subject to subrule (2) and to Order 43 (which relates to disability), any person may proceed in the Court by a solicitor or in person.
(2) Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor.
An application for the issue of a summons under section 596A or 596B of the
Corporations Act 2001 may be made to:
(a) the Court or a Judge; or
(b) if the Court or a Judge has, under paragraph 35A (1) (h)
of the Act, directed that a Registrar may exercise the power of the Court under section 596A or 596B of the
Corporations Act 2001 — a Registrar, including a Registrar sitting in chambers.
Note Order 35A deals with the procedure on default.
(1) A respondent may cross‑claim against an applicant for any relief to which the respondent would be entitled against the applicant if the applicant were a respondent in a separate proceeding commenced in the Court by the respondent for that purpose.
(2) A respondent may cross‑claim against any person whether another party or a third party for any relief which is related to or connected with the subject of the proceeding.
(3) Without prejudice to the generality of subrule (2), a respondent may cross‑claim for contribution or indemnity.
(1) A cross‑claim shall be entitled in the proceeding with an addition showing the names of the parties to the cross‑claim.
(2) Order 4, rule 3 applies to a cross‑claim whether the cross‑claim is against an applicant or any other person.
On a cross‑claim being filed, a document afterwards filed or used in the proceeding shall be entitled in the manner in which the cross‑claim is entitled.
Rules 5 and 6 of this Order apply where a proceeding is commenced by application supported by statement of claim, or where the Court has ordered that the proceeding continue on pleadings.
(1) A respondent may file a pleading by way of cross‑claim within the time fixed for filing his defence or any extension thereof.
(2) A cross‑claim under subrule (1) shall be in or substantially in the forms numbered 8, 9 or 10 in Schedule 1.
(3) Where a cross‑claimant cross‑claims solely against a party who claims in the proceeding against the cross‑claimant, the cross‑claimant may add the cross‑claim to his defence.
(4) Subject to Order 11, rule 16 (which relates to embarrassing proceedings and the like), a cross‑claimant may in his cross‑claim plead all or any of the facts on which he relies by reference to the prior pleadings in the proceeding.
(5) A cross‑claimant shall, in addition to pleading any other facts on which he relies, plead the facts showing that the cross‑claim is one to which rule 1 of this Order applies.
(1) Where a respondent to a cross‑claim is made a party to the proceeding by the filing of the cross‑claim, he may, by notice in accordance with Form 11 filed and served on the cross‑claimant, require the cross‑claimant to serve on him all or any of the pleadings in the proceeding filed before the filing of the cross‑claim.
(2) A respondent to a cross‑claim may add a notice under subrule (1) to his notice of appearance.
(3) Where a notice under subrule (1) is served on a cross‑claimant then, unless the Court otherwise orders, he shall, within three days after service of the notice or such longer times as may be specified in the notice, serve on the respondent to the cross‑claim giving the notice each pleading mentioned in the notice.
Rules 8 and 9 where a proceeding is commenced by application supported by affidavit and where:
(a) a cross‑claim is filed before the directions hearing; or
(b) a cross‑claim is filed after the directions hearing and the Court has not ordered that the proceedings continue on pleadings.
(1) Subject to subrules 9 (1) and (2), a respondent may cross‑claim against an applicant or any other party without the leave of the Court, but may not cross‑claim against any other person not being a party without such leave.
(2) Subject to subrule (4), a respondent shall not cross‑claim against an applicant before he has filed an affidavit in reply to the applicant’s claim.
(3) A cross‑claim shall be in or substantially in the forms numbered 8 or 9 in Schedule 1, and shall be accompanied by an affidavit stating:
(a) the nature of the cross‑claim;
(b) the material facts on which the cross‑claimant relies; and
(c) the facts showing that the cross‑claim is one to which rule 1 of this Order applies.
(4) A respondent who cross‑claims against an applicant only may include the matters referred to in subrule (3) in his affidavit in reply to the applicant’s claim, and need not file a separate affidavit in support of the cross‑claim.
(1) A respondent desiring to cross‑claim after the directions hearing shall obtain all necessary directions at the directions hearing in relation to the cross‑claim, including the time within which the cross‑claim is to be filed.
(2) A respondent who does not obtain directions pursuant to subrule (1) shall not cross‑claim after the directions hearing without the leave of the Court.
(1) Where a respondent to a cross‑claim has, on the date of filing the cross‑claim, an address for service in the proceeding, the cross‑claimant shall, on that date, serve the cross‑claim on the respondent to the cross‑claim.
(2) Where a respondent to a cross‑claim has an address for service in the proceeding, personal service of the cross‑claim on him is not required.
(3) Order 7, rule 11 (which relates to cases where filing operates as service) does not apply to the service of a cross‑claim.
(1) Subject to this Order and to Order 11, a proceeding on a cross‑claim shall follow as nearly as may be the course of the proceeding on the originating process in respect of which the cross‑claim is filed.
(2) Subject to this Order and to Order 11, and without limiting the generality of subrule (1), these Rules apply to a cross‑claim and the proceeding arising from it as they apply to the originating process in respect of which the cross‑claim is filed and the proceeding arising from it.
(3) Subrules (1) and (2) apply as if:
(a) the cross‑claim were the originating process in respect of which the cross‑claim is filed;
(b) the cross‑claimant were an applicant; and
(c) the respondent to the cross‑claim were a respondent.
(4) An applicant in an originating process need not enter an appearance to a cross‑claim in the same proceeding.
(5) An appearance entered by a party to the proceeding shall, upon service of a cross‑claim on him, operate as an appearance to the cross‑claim.
(6) A cross‑respondent who has not previously entered an appearance in the original proceedings shall enter an appearance:
(a) where the cross‑claim is served on him before the date appointed for a directions hearing in the application in the original proceeding — before that date; or
(b) in any other case — within 14 days after service of the cross‑claim on him.
(7) Subject to this Order, the trial or hearing and all other steps in the proceeding on the cross‑claim shall as far as practicable be carried on together with the trial or hearing and similar steps in the proceeding on the originating process in respect of which the cross‑claim is filed.
(1) A party to the proceeding may, at any time after the filing of a cross‑claim, move for directions.
(2) On any directions hearing, or on the trial or hearing of the cross‑claim, the Court may:
(a) make any order or direction it may make under Order 10 (which relates to directions hearings);
(b) order that any claim, question or issue in or arising on the cross‑claim be tried in such manner as the Court may direct;
(c) give to a respondent to the cross‑claim leave to defend the claim on the originating process or any other cross‑claim in the proceeding, either alone or in addition to any other party;
(d) give to a respondent to the cross‑claim leave to appear at the trial or hearing of the claim on the originating process or on any other cross‑claim in the proceeding and to take such part in the trial or hearing as the Court thinks fit;
(e) dismiss the cross‑claim;
(f) determine the extent to which the cross‑claimant and a respondent to the cross‑claim shall be bound as between themselves by a judgment (including a judgment by consent or by default) or decision (including a decision by consent) on the claim on the originating process or any other cross‑claim in the proceeding;
(g) pronounce such judgment as the nature of the case may require;
(h) give such directions as the Court thinks fit for having the rights and liabilities of the parties determined and enforced, including any order or direction which may be made or given under this Order.
(3) Order 10, rules 4 to 6 (directions hearing) apply to a motion for directions under this rule.
A cross‑claim may proceed notwithstanding that judgment has been pronounced and an order made and entered on the originating process or any other cross‑claim in the proceeding, or that the proceeding on the originating process or any other cross‑claim is stayed, dismissed or discontinued.
Where a respondent makes a cross‑claim for contribution or indemnity in respect of a claim against him in the proceeding:
(a) an order on a judgment for the claimant on the cross‑claim shall not be entered except by direction of the Court;
(b) judgment for the claimant on the cross‑claim shall not, unless the Court otherwise orders, be enforced by execution until satisfaction of any judgment in the proceeding against the cross‑claimant.
Where in any proceeding:
(a) a party (in this rule called the first party) stands to be held liable to another party (in this rule called the second party) to contribute towards any debt or damages which may be recovered against the second party in the proceeding; and
(b) the first party, at any time after he has entered an appearance, makes an offer to the second party to contribute to a specific extent to the debt or damages;
then, if the first party makes the offer without prejudice to his defence, the offer shall not be brought to the attention of the Court until all questions of liability or amount of debt or damages have been decided.
Subject to rule 6 an applicant, whether claiming in the same or different capacities, may, in any proceeding, claim relief in respect of more than one cause of action.
Two or more persons may be joined as applicants or respondents in any proceeding:
(a) where:
(i) if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b) where the Court gives leave so to do.
(1) Where, in any proceeding, the applicant claims relief to which any other person is entitled jointly with him:
(a) all persons so entitled shall be parties to the proceeding; and
(b) any of them who does not consent to being joined as an applicant shall be made a respondent.
(2) Subrule (1) applies subject to any Act and subject to section 62 of the
Bankruptcy Act 1966 and applies unless the Court gives leave to the contrary.
(1) The Court may grant leave under rule 2 before or after the joinder and may grant leave under subrule 3 (2) before or after the non‑joinder.
(2) An applicant may apply for leave under rule 2 or subrule 3 (2) either before or after the filing of his originating process and may apply without serving notice of the motion on any person on whom the application has not been served.
(1) Where, in any proceeding, relief is claimed against a respondent who is jointly liable with some other person and also severally liable, that other person need not be made a respondent to the proceeding.
(2) Where persons may be jointly, but not severally, liable and relief is claimed against some but not all of those persons in a proceeding, the Court may stay the proceeding until the other persons so liable are added as respondents.
Where any joinder of parties or of causes of action may complicate or delay trial of the proceeding or is otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit.
(1) A proceeding shall not be defeated by reason of the misjoinder of a party or the non‑joinder of any person as a party.
(2) The Court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the parties.
(1) Where a person who is not a party:
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon;
the Court may order that the person be added as a party and make orders for the further conduct of the proceeding.
(2) A person shall not be added as an applicant without the person’s consent.
If a person:
(a) has been improperly or unnecessarily joined as a party to a proceeding; or
(b) has ceased to be a proper or necessary party to a proceeding;
the Court may order that the person cease to be a party and make orders for the further conduct of the proceeding.
(1) Where a party dies or becomes bankrupt but a cause of action in the proceeding survives, the proceeding shall not abate by reason of the death or bankruptcy.
(2) Where the interest or liability of a party passes by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or re‑arrangement of parties and may make orders for the further conduct of the proceeding.
(1) Without limiting the generality of the powers of the Court under rules 8, 9 and 10, orders under those rules for the further conduct of the proceeding may include orders relating to:
(a) service of the order and other documents in the proceeding;
(b) amendment;
(c) appearance of added parties; and
(d) substitution of one party for another party or former party.
(2) Where the Court orders that a party be substituted for another party or a former party, all things done in the proceeding before the making of the order shall, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old, but entry of appearance by the old party shall not dispense with entry of appearance by the new.
(3) Subject to subrule (2), where a party is added pursuant to an order under rule 8 or rule 10, the date of commencement of the proceeding so far as concerns him shall be the date of filing of the originating process amended so as to add him as a party or, where an amended originating process is not filed, the date of the amendment adding him as a party.
(1) Where:
(a) a party dies but a cause of action in the proceeding survives the party’s death; and
(b) an order under rule 10 for the addition of a party in substitution for the deceased party is not made within three months after the death;
the Court may order that, unless, within a specified time after service of the order in accordance with subrule (2), a party is added in substitution for the deceased party, the proceedings be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon, as the case may be, survives on the death.
(2) On making an order under subrule (1), the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceeding.
(1) Where numerous persons have the same interest in any proceeding the proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.
(2) At any stage of a proceeding pursuant to this rule the Court may appoint any one or more of the respondents or other persons (as representing whom the respondents are sued) to represent all, or all except one or more, of those persons in the proceeding.
(3) Where, under subrule (2), the Court appoints a person who is not a respondent, the Court shall make an order under rule 8 adding him as a respondent.
(4) A judgment pronounced or an order made in a proceeding pursuant to this rule shall be binding on all the persons as representing whom the applicants sue or, as the case may be, the respondents are sued but shall not be enforced against any person not a party to the proceeding except with the leave of the Court.
(5) An application for leave under subrule (4) shall be made by motion, notice of which shall be served personally on the person against whom it is sought to enforce the judgment or order.
(6) Notwithstanding that a judgment or order to which an application under subrule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him on the ground that by reason of facts and matters particular to his case he is entitled to be exempted from the liability.
(7) This rule does not apply to a proceeding concerning property subject to a trust or included in a deceased estate.
(1) A proceeding concerning property subject to a trust or included in a deceased estate may be brought by or against the trustees or personal representatives without joining a person having a beneficial interest in the trust or estate and unless the Court otherwise orders on the ground that the trustees or personal representatives could not or did not represent the interest of that person, an order granted or made in the proceedings is binding on that person.
(2) Subrule (1) does not limit the power of the Court to order a person having an interest to be made a party.
(1) Where in any proceeding it appears to the Court that a deceased person was interested, or that the estate of a deceased person is interested, in any matter in question in the proceeding and that the deceased person has no personal representative, the Court may:
(a) order that the proceeding continue in the absence of a person representing the estate of the deceased person; or
(b) by order (with the consent of the person appointed) appoint a person to represent that estate for the purposes of the proceeding.
(2) An order under subrule (1), and any judgment or order subsequently pronounced or made in the proceeding, shall bind the estate of the deceased person to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceeding.
(3) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.
The Court may give the conduct of the whole or any part of any proceeding to such person as it thinks fit.
(1) The Court, at any stage of a proceeding, may give leave to a person (the
intervener ) to intervene in the proceeding, on the terms and conditions, and with the rights, privileges and liabilities (including liabilities for costs), determined by the Court.(2) In deciding whether to give leave, the Court must have regard to:
(a) whether the intervener’s contribution will be useful and different from the contribution of the parties to the proceeding; and
(b) whether the intervention might unreasonably interfere with the ability of the parties to conduct the proceeding as they wish; and
(c) any other matter that the Court considers relevant.
(3) The role of the intervener is solely to assist the Court in its task of resolving the issues raised by the parties.
(4) For subrule (3), assisting the Court includes suggesting witnesses to be called by the Court, but does not include filing pleadings, leading evidence or examining witnesses.
(5) When giving leave, the Court must specify theform of assistance to be given by the intervener and the manner of participation of the intervener, and, in particular, must specify:
(a) the matters that the intervener may raise; and
(b) whether the intervener’s submissions are to be oral, in writing, or both.
(1) Subject to the provisions of this Order, originating process shall be served personally on each respondent.
(2) The copy for service shall be signed and sealed as mentioned in Order 4, rule 7.
(3) If a respondent to an originating process:
(a) enters an appearance; or
(b) files a defence; or
(c) appears before the Court in response to the process;
the originating process is taken to have been served on the respondent personally when the earliest of those events occurred, unless personal service on an earlier day is established.
(1) Personal service of a document is effected on:
(a) an individual — by leaving a copy of the document with him;
(b) a corporation — by leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently of or above the age of sixteen years:
(i) at the registered office of the corporation; or
(ii) if there is no registered office, at the principal place of business or the principal office of the corporation; and
(c) an unincorporated association — by leaving a copy of the document at the principal place of business or the principal office of the association with some person apparently an officer of or in the service of the association and apparently of or above the age of sixteen years; and
(d) an organisation — by leaving a copy of the document with a person apparently an officer of or in the service of the organisation and apparently of or above the age of 16 years at the office of the organisation shown in the records of the organisation lodged with Fair Work Australia under section 233 of the
Fair Work (Registered Organisations) Act 2009 .(2) If a person refuses to accept service of a document, personal service may be effected on him by putting the document down in his presence and telling him the nature of it.
(3) It shall not be necessary in order to effect personal service that the original document be shown.
(4) Despite subrule 2 (1), for the purposes of the Corporations Rules, personal service may be effected:
(a) on a company, as defined in section 9 of the
Corporations Act 2001 (theCorporations Act ), in any way permitted by section 109X of the Corporations Act; and(b) on a liquidator of a company, in the way described in paragraph 109X (1) (c) of the Corporations Act; and
(c) on an administrator of a company, in the way described in paragraph 109X (1) (d) of the Corporations Act.
A document which is not an originating process and which is required or permitted to be served in any proceeding may be served personally, but unless personal service is expressly required, it need not be served personally.
(1) Where personal service of a document is not required, the document may be served:
(a) by leaving a copy of the document at the proper address of the person to be served between the hours of nine in the morning and five in the afternoon on any day on which the Registry in that State or Territory is open; or
(b) by sending a copy of the document by pre‑paid post addressed to the person to be served at his or her proper address; or
(c) where any enactment of the Commonwealth or of the State or Territory in which service is to be effected provides for service of a document on a corporation or organisation by serving the document in accordance with such provision; or
(d) if a person to be served has filed a notice for service at an exchange box of a solicitor under paragraph 7 (1) (a) of this Order — by leaving a copy of the document, addressed to that solicitor, in that exchange box; or
(e) if a person to be served has filed a notice for service by facsimile transmission under paragraph 7 (1) (b) of this Order — by sending the document to the facsimile number specified in the notice; or
(f) if a person to be served has filed a notice for service by electronic communication under paragraph 7 (1) (c) of this Order — by sending the document to the email address specified in the notice.
(2) For the purposes of subrule (1), the proper address of a person shall be the address for service of that person in the proceeding but if, at the time when the copy is left or posted pursuant to subrule (1), the person has no address for service in the proceeding, the person’s usual or last known place of business or of abode shall be the person’s proper address.
(3) The time of service of any document for the purpose of any proceeding shall, where the copy of the document:
(a) is sent by pre‑paid post in accordance with paragraph (1) (b) — be seven days after the copy is so sent; or
(b) is left in an exchange box in accordance with paragraph (1) (d) — be two days after the copy is so left; or
(c) is sent by facsimile transmission in accordance with paragraph (1) (e) — be one day after the copy is transmitted excluding Saturdays, Sundays and public holidays; or
(d) is sent by electronic communication in accordance with paragraph (1) (f) — be one day after the copy is sent.
(4) For paragraphs (3) (b), (c) and (d), mention of a day or days does not include a Saturday, Sunday or a public holiday.
(1) Where personal service of a document is not required and the person to be served has a solicitor acting for him or her which solicitor has another solicitor as agent whose address is that person’s proper address the document may be served:
(a) by leaving a copy of the document at the address of the first‑named solicitor; or
(b) by sending a copy of the document by pre‑paid post addressed to the person to be served at the address of the first‑named solicitor; or
(c) where an appropriate notice has been given under rule 7 of this Order by leaving a copy of the document addressed to the first‑named solicitor at the exchange box of that solicitor; or
(d) by sending a copy of the document by facsimile transmission directed to the facsimile number operated at the premises of, or in connection with, the first‑named solicitor; or
(e) by sending a copy of the document by electronic communication directed to the email address of the first‑named solicitor.
(2) The time of service of any document for the purpose of any proceedings shall, where the copy of the document:
(a) is sent by pre‑paid post in accordance with paragraph (1) (b) — be 7 days after the copy is so sent; or
(b) is left in an exchange box in accordance with paragraph (1) (c) — be 2 days after the copy is so left; or
(c) is sent by facsimile transmission in accordance with paragraph (1) (d) — be one day after the copy is sent; or
(d) is sent by electronic communication in accordance with paragraph (1) (c) — be one day after the copy is sent.
(3) For paragraphs (2) (b), (c) and (d), mention of a day or days does not include a Saturday, Sunday or a public holiday.
For the purposes of the proof of service, evidence of a statement by a person of his identity or that he holds some office is evidence of his identity or that he holds that office, as the case may be.
(1) Unless the Court or a Judge otherwise orders, an address for service for a person must be the address of a place within Australia at which documents in the proceeding may, during ordinary business hours, be left for the person and to which documents in the proceeding may be posted to the person.
(2) If a person is represented by a solicitor, the address for service for the person must be the address of the solicitor or of the solicitor’s agent.
(3) A person may change his address for service by filing a notice of the change showing his new address for service.
(4) A person who files a notice of a change of his address for service shall, on the date of filing, serve the notice on each party to the proceedings.
(1) A person may, by filing a notice in accordance with Form 12, or by adding a notice to that effect to the person’s originating process (other than a cross‑claim) or notice of appearance, authorise that documents in the proceeding may be served on the person:
(a) if the person’s address for service is the office of a solicitor who uses the facilities of a document exchange — at the solicitor’s document exchange box specified in the notice; or
(b) by sending the documents to the facsimile number specified in the notice; or
(c) by sending the documents by electronic communication to the email address specified in the notice.
(2) A person may:
(a) change the particulars stated in the notice by filing a further notice showing the new particulars; or
(b) cancel the notice by filing a further notice to that effect.
(3) A person who files a notice under subrule (1) (other than a notice added to an originating process or a notice of appearance), a notice of change or notice of cancellation must, on the date of filing, serve the notice on each party to the proceeding.
(4) A change or cancellation of which notice is required to be served under this rule shall not be effective as between the person to be served and another party until the notice is filed and served on that other party.
(1) This rule applies to:
(a) any originating process; and
(b) any document required or permitted to be served in any proceeding, but not required to be served personally.
(2) Where a solicitor makes on a copy of a document to which this rule applies a note that he accepts service of the document on behalf of any person, the document shall, unless he is shown not to have had authority to act for such person, be taken to have been duly served on that person on the date on which the solicitor makes the note or on such earlier date of service as may be proved.
(1) Where for any reason it is impractical to serve a document in the manner set out in the Rules, the Court may by motion in an existing proceeding made
ex parte order that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person to be served.(2) Where the Court makes an order under subrule (1), the Court may order that the document be taken to have been served on the happening of any specified event, or on the expiry of any specified time.
Where for any reason it is impractical to serve a document in the manner set out in the Rules, but steps have been taken to bring the document to the notice of the person to be served, the Court may order that the document be taken to have been served on that person on a date specified in the order.
(1) Unless the Court otherwise orders, the filing of a document has effect as service of the document on a person, if personal service is not required and:
(a) the person to be served:
(i) is in default of appearance; or
(ii) has entered an appearance but has no address for service in the proceeding; or
(b) there is proof of non‑delivery of the document, being a document sent by the Court to the person’s proper address.
(2) For paragraph (1) (b), the proper address of a person is:
(a) the address for service of the person in the proceeding; or
(b) if, when the document is left or posted the person has no address for service in the proceeding, the person’s last known place of business or of abode.
(3) Unless the Court otherwise orders, the filing of a document in a proceeding has effect as service of the document on a party to the proceeding if:
(a) personal service of the document is not required; and
(b) the party has not filed a new address for service in accordance with Order 45, rule 7A although:
(i) the party has changed the solicitor acting for the party in the proceeding; or
(ii) the principal solicitor acting for the party has changed the solicitor acting as the principal solicitor’s agent; or
(iii) the party, having acted for him or herself in the proceeding, has appointed a solicitor to act for the party in the proceeding; or
(iv) the party has determined the authority of the party’s solicitor to act for the party in the proceeding; or
(v) the party’s solicitor has ceased to act for the party in the proceeding.
Where, under the Rules or under an order, any notice or other document is to be given to or served on any party by the Court or any officer of the Court, the notice or document shall, unless the Rules otherwise provide or the Court otherwise orders, be sufficiently given or served in any manner in which a document not requiring personal service may be served under this Order.
Where the Court grants an interlocutory injunction, the party may serve notice of the injunction, if desired, by telegram or letter signed by or on behalf of the Registrar.
Where a respondent in any proceeding has, before or after the commencement of the proceeding, agreed that originating process or any other document in the proceeding may be served on the respondent or on some other person on behalf of the respondent in a manner or at a place (whether in or outside the Commonwealth) specified in the agreement, service in accordance with the agreement shall be sufficient service on the respondent.
In this Order, unless the contrary intention appears:
Attorney‑General’s Department means the Commonwealth Attorney‑General’s Department.
convention , in relation to a foreign country,means a convention (other than the Hague Convention), agreement, arrangement or treaty about service abroad of judicial documents to which the Crown in right of the Commonwealth or, where appropriate, in right of a State, and a foreign country are parties.
foreign country means a country other than Australia.
Hague Convention means theConvention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.
originating process means an application commencing a proceeding, and includes a cross‑claim in the proceeding against a person who was not previously a party to the proceeding.
Subject to rule 3, an originating process may be served on a person in a foreign country in a proceeding which consists of, or includes, any 1 or more of the kinds of proceeding mentioned in the following table:
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(1) Service of an originating process on a person in a foreign country is effective for the purpose of a proceeding only if:
(a) the Court has given leave under subrule (2) before the application is served; or
(b) the Court confirms the service under subrule (5); or
(c) the person served waives any objection to the service by entering an appearance in the proceeding.
(2) The Court may give leave to a party to serve an originating process on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country, on such terms and conditions as it considers appropriate, if the Court is satisfied that:
(a) the Court has jurisdiction in the proceeding; and
(b) the proceeding is of a kind mentioned in rule 2; and
(c) the person seeking leave has a prima facie case for all or any of the relief claimed by the person in the proceeding.
Note 1 The law of a foreign country may permit service through the diplomatic channel or service by a private agent.
Note 2 Order 8A, Division 2 deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.
(3) The evidence on an application for leave under subrule (2) must include the following:
(a) the name of the foreign country where the person to be served is or is likely to be;
(b) the proposed method of service;
(c) a statement that the proposed method of service is permitted by:
(i) if a convention applies — the convention; or
(ii) if the Hague Convention applies — the Hague Convention; or
(iii) in any other case — the law of the foreign country.
(4) Nothing in this rule prevents the Court from giving leave to a person to give notice, in a foreign country, of a proceeding in the Court on the basis that giving the notice takes the place of serving the originating process in the proceeding.
(5) If an originating process was served on a person in a foreign country without the leave of the Court, the Court may, by order, confirm the service if the Court is satisfied that:
(a) paragraphs (2) (a), (b) and (c) apply to the proceeding; and
(b) the service was permitted by:
(i) if a convention applies — the convention; or
(ii) if the Hague Convention applies — the Hague Convention; or
(iii) in any other case — the law of the foreign country; and
(c) the failure to apply for leave is sufficiently explained.
(1) The Court may give leave to a party to serve a document issued by the Court (other than an originating process) on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country, on such terms and conditions as it considers appropriate.
Note 1 The law of a foreign country may permit service through the diplomatic channel or service by a private agent.
Note 2 Order 8A, Division 2 deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.
(2) The evidence on an application for leave under subrule (1) must include the information mentioned in paragraphs 3 (3) (a) to (c).
(3) If a document (other than an originating process) was served on a person in a foreign country without the leave of the Court, the Court may confirm the service if the Court is satisfied that:
(a) the service was permitted by:
(i) if a convention applies — the convention; or
(ii) if the Hague Convention applies — the Hague Convention; or
(iii) in any other case — the law of the foreign country.
(b) the failure to apply for leave is sufficiently explained.
The other Orders of these Rules apply to service of a document on a person in a foreign country in the same way as they apply to service on a person in Australia, so far as they are:
(a) relevant and not inconsistent with this Order; and
(b) not inconsistent with:
(i) if a convention applies — the convention; or
(ii) if the Hague Convention applies — the Hague Convention; or
(iii) in any other case — the law of the foreign country.
A document that is to be served on a person in a foreign country need not be served personally on the person if it is served on the person in accordance with the law of the foreign country.
(1) This rule applies if an official certificate or declaration (whether made on oath or otherwise) is sent to the Court by the government or a court of a foreign country stating that attempts to serve a document on a person in the foreign country, in accordance with a convention, the Hague Convention or through the diplomatic channel, have not been successful.
(2) On application by the person seeking service, the Court may order such steps be taken, as are specified in an order, for the purpose of bringing the document to the notice of the person to be served.
(3) If the Court makes an order under subrule (2), the Court may order that a document is taken to have been served when a specified event happens or on the expiry of a specified time.
(1) This rule does not apply to a document served in accordance with the Hague Convention.
Note Order 8A, Division 2 deals with service of local judicial documents in a country, other than Australia, that is a party to the Hague Convention.
(2) An official certificate or declaration (whether made on oath or otherwise) stating that a document has been personally served on a person in a foreign country, or served on the person in another way in accordance with the law of the foreign country, is sufficient proof of the service of the document.
(3) If filed, the certificate or declaration:
(a) is taken to be a record of the service of the document; and
(b) has effect as if it were an affidavit of service.
(1) This rule applies if a person has been given leave to serve a document on a person in a foreign country:
(a) through the diplomatic channel; or
(b) by transmission to a foreign government in accordance with a convention (the
relevant convention ).
Note This rule does not apply if a person has been given leave to serve a document on a person in a foreign country that is a party to the Hague Convention. Service in a foreign country that is a party to the Hague Convention is dealt with in Order 8A, Division 2.
(2) The person given leave must lodge in the District Registry:
(a) a request for service in accordance with Form 14A; and
(b) a request for transmission in accordance with Form 14B; and
(c) a written undertaking by the person, or the person’s lawyer, to pay to the Registrar the amount of the expenses incurred by the Court in giving effect to the person’s request; and
(d) 2 copies (or such other number of copies as may be required by the relevant convention) of each document to be served; and
(e) if necessary, a translation into an official language of the foreign country (including a statement by the translator attesting to the accuracy of the translation) of the following:
(i) the request for transmission mentioned in paragraph (b);
(ii) each document to be served.
(1) This rule applies if:
(a) a person files an undertaking under paragraph 9 (2) (c) in relation to a request for service on a person in a foreign country in accordance with a convention or through the diplomatic channel; and
(b) the person does not, within 14 days after being sent an account for expenses incurred in relation to the request, pay to the Registrar the amount of the expenses.
(2) On application by the Registrar, the Court may:
(a) order the person to pay the amount of the expenses to the Registrar; and
(b) stay the proceeding, so far as it concerns the whole or any part of a claim for relief by the person, until the amount of the expenses is paid.
Note 1 This Order forms part of a scheme to implement Australia’s obligations under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the Convention, the Attorney‑General’s Department of the Commonwealth is designated as the Central Authority (under Article 2 of the Convention) and certain courts and government departments are, for certain purposes, designated as ‘other ‘ or ‘additional ‘ authorities (under Article 18 of the Convention).
Note 2 This Order provides (in Division 2) for service in overseas Convention countries of local judicial documents (documents that relate to proceedings in the Court) and (in Division 3) for default judgment in proceedings in the Court after service overseas of such a document. Division 4, on the other hand, deals with service by the Court or arranged by the Court in its role as an other or additional authority, of judicial documents emanating from overseas Convention countries.
Note 3 The Attorney‑General’s Department of the Commonwealth maintains a copy of the Convention, a list of all Convention countries, details of declarations and objections made under the Convention by each of those countries and the names and addresses of the Central and other authorities of each of those countries. A copy of the Convention can be found atlevel="5"> 1 Definitions for Order 8A In this Order:
additional authority , for a Convention country, means an authority that is:
(a) for the time being designated by the country, under Article 18 of the Hague Convention, to be an authority (other than the Central Authority) for the country; and
(b) competent to receive requests for service abroad emanating from Australia.
applicant , for a request for service abroad or a request for service in this jurisdiction, means the person on whose behalf service is requested.
Note The termapplicant may have a different meaning in other provisions of these Rules.
Central Authority , for a Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Convention, to be the Central Authority for that country.
certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Convention.
certifying authority , for a Convention country, means the Central Authority for the country or some other authority that is for the time being designated by the country, under Article 6 of the Hague Convention, to complete certificates of service in the form annexed to the Hague Convention.
civil proceedings means any judicial proceedings in relation to civil or commercial matters.
Convention country means a country, other than Australia, that is a party to the Hague Convention.
defendant , for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served.
foreign judicial document means a judicial document that originates in a Convention country and relates to civil proceedings in a court of that country.
forwarding authority means:
(a) for a request for service of a foreign judicial document in this jurisdiction — the authority or judicial officer of the Convention country in which the document originates that forwards the request (being an authority or judicial officer that is competent under the law of that country to forward a request for service under Article 3 of the Hague Convention); or
(b) for a request for service of a local judicial document in a Convention country — the Registrar.
(e) the power of the Court under Order 35, rule 7 to set aside a judgment or order, made by the Registrar exercising the power, before it has been entered.
Note See also the following:(a) paragraphs 35A (1) (a) to (g) of the Act;
(b) Order 78, rule 3A and Schedule 4;
(c) rule 16.1 and Schedule 2 to the
Federal Court (Corporations) Rules 2000 ;(d) rule 2.02 and Schedule 2 to the
Federal Court (Bankruptcy) Rules 2005 .
(1) Subject to any direction by the Court or a Judge to the contrary, an application under subsection 35A (5) of the Act for review of the exercise of a power of the Court by a Registrar under subsection 35A (1) of the Act must be made by motion on notice within 21 days after the day on which the power was exercised.
(2) An application under paragraph 35A (7) (b) of the Act may be made orally to the Registrar at the time that the Registrar is hearing the application for the exercise of a power mentioned in subsection 35A (1) of the Act.
(3) In this rule:
Registrar has the meaning given by subsection 35A (8) of the Act.
(1) When any party to any proceeding desires to make an application therein to the Court or a Judge, and no Judge of the Court is available there to take the application, the party may lodge with the Registrar at the proper place a request that the application be heard and disposed of at another place.
(2) Where a party makes a request under subrule (1), the Registrar at the proper place shall thereupon transmit the request to the Registrar at such other place (in this rule referred to as the
temporary venue ) as that Registrar may determine together with such documents as are necessary for the purpose of hearing and disposing of the application.(3) The application may then be heard and disposed of at that temporary venue and, as soon as it has been disposed of, all documents relating to it shall be re‑transmitted to the Registry at the proper place.
(4) In any of the cases mentioned in this rule, if the application is to be made upon notice to any person, the notice shall specify that the application will be made before the Court or a Judge at the temporary venue on a day on which it is fixed to be heard.
(1) In any such case as is mentioned in rule 8, any party desiring to make an immediate application to the Court or a Judge may, instead of requesting that the application be heard and disposed of at another place require the Registrar at the proper place to transmit by telegraph to the Registry at another place the contents of all such documents filed in the Registry at the proper place as are necessary for the purpose of hearing and disposing of the application, and the Registrar at the proper place shall, on payment by such party of the expense of transmission, transmit them accordingly to such other place (in this rule referred to as the
temporary venue ) as that Registrar may determine.(2) The copy so received by telegraph shall be filed in the Registry at the temporary venue and shall be receivable in evidence for the purpose of the application to the same extent as the original documents would be admissible.
(3) If the application is to be made upon notice to any person, the notice shall state that the documents will be transmitted by telegraph to the Registry at the temporary venue.
(4) If any person to whom notice is given under subrule (3) requires any other documents to be transmitted by telegraph to the Registry at the temporary venue, they shall be transmitted accordingly and shall be receivable in evidence in like manner.
(5) Evidence of service of the notice may also be so transmitted.
When in any of the cases mentioned in rules 8 and 9 an order has been made by the Court or a Judge at a temporary venue, the Registrar at the temporary venue shall at the request and expense of either party and without payment of any further fee inform the Registrar at the proper place by telegraph of the effect of the order, and thereupon and without waiting for the receipt of the order, full effect shall be given to the order.
In any of the cases aforesaid a Registrar may, by consent of the parties, instead of transmitting by telegraph the full contents of any document transmit a summary thereof certified by him to be complete and correct, and the summary may be received and acted upon by the Court or Judge as if it were a copy of the original document.
Documents transmitted by use of facsimile transmitting equipment shall be deemed documents transmitted by telegraph for the purposes of this Order.
In this Order, unless the context or subject matter otherwise indicates or requires:
bill means bill of fees of the Sheriff.
fees includes charges and poundage.
person interested in relation to the fees of the Sheriff in respect of the service or execution of any process, means:
(a) a party who lodges the process with the Sheriff for service or execution;
(b) a solicitor who gives an undertaking to pay the fees or is otherwise liable to pay the fees; or
(c) in the case of a writ of execution authorizing the Sheriff to levy the fees on any property, the person upon whose property the levy is authorized.
(1) The Sheriff shall not suspend the execution of any process, except upon an absolute instruction in writing to that effect lodged with him by the party by whom the process is lodged.
(2) A party who has lodged an instruction to suspend the execution of any process may withdraw the instruction by lodging with the Sheriff an instruction to execute the process.
Where the Sheriff defaults by not executing any process according to its tenor, application may be made for an order directing him to execute the same.
The Sheriff may move the Court or a Judge
ex parte or on notice for directions as to whether process should be executed, and the manner in which execution should be made.
(1) Where a party to any proceeding lodges any process with the Sheriff for service or execution, the Sheriff may, upon lodgment and from time to time after lodgment:
(a) require the party to deposit with the Sheriff money in an amount fixed by the Sheriff to be applied in or towards satisfaction of the Sheriff’s fees; or
(b) as to the whole or any part of the fees, take an undertaking by the party’s solicitor to pay them instead of requiring a deposit.
(2) Where a party required to make a deposit under subrule (1) objects to the amount fixed by the Sheriff, the Court may, by order, fix the amount to be deposited.
(3) The Sheriff may defer service or execution of any process until a deposit is made or an undertaking is given in accordance with this rule.
(4) Where it appears that the amount deposited under this rule exceeds the fees of the Sheriff, the Sheriff must repay the excess to the party depositing the money or to the party’s solicitor.
Where a party, by his solicitor, lodges with the Sheriff any process for service or execution the solicitor shall be liable for the fees of the Sheriff, whether or not the solicitor has given an undertaking pursuant to paragraph 5 (1) (b).
(1) The Sheriff shall, on the request of a person interested, furnish him with a bill.
(2) The Sheriff may serve a bill on any person interested.
(1) Subject to subrule (2), the Court may order that fees be taxed.
(2) Where the Court orders that fees be taxed, an application to proceed with the taxation shall be made by the Sheriff to a taxing officer by motion in the proceeding.
(1) Where a bill is served on or furnished to a person interested by the Sheriff, the amount of fees shown in the Bill shall, unless the Court otherwise orders, be binding as between the Sheriff and the person interested unless the person interested obtains an order for taxation under rule 8.
(2) Where the fees are taxed pursuant to an application by a person interested under rule 8, the amount fixed on taxation shall, subject to any alteration on reconsideration review or appeal, be binding as between the Sheriff and the person interested.
Where in any proceeding a solicitor has given an undertaking to pay, or is otherwise liable to pay, any fees of the Sheriff, and the solicitor does not pay the fees within 7 days after the amount has become binding under rule 9 as between the solicitor and the Sheriff, the Court may, on motion in the proceeding by the Sheriff, order the solicitor to pay the fees to the Sheriff.
In this Order:
Fair Work Act means theFair Work Act 2009 .
RAO Schedule means Schedule 1 to theWorkplace Relations Act 1996 .
Registered Organisations Act means theFair Work (Registered Organisations) Act 2009 .
Workplace Relations Act means theWorkplace Relations Act 1996 .
Unless the contrary intention appears:
(a) an expression used in Division 2 of this Order and in the Workplace Relations Act has the same meaning in Division 2 as it has in the Workplace Relations Act;
(b) an expression used in Divisions 3 and 4 of this Order and in the Fair Work Act has the same meaning in Divisions 3 and 4 as it has in the Fair Work Act;
(c) for a matter to which the RAO Schedule applies — an expression used in Divisions 5 and 6 of this Order and in the Workplace Relations Act has the same meaning in Divisions 5 and 6 as it has in the Workplace Relations Act;
(d) for a matter to which the Registered Organisations Act applies — an expression used in Divisions 5 and 6 of this Order and in the Registered Organisations Act has the same meaning in Divisions 5 and 6 as it has in the Registered Organisations Act.
(1) This Order applies to a proceeding in the Court to which the Workplace Relations Act, the Fair Work Act or the Registered Organisations Act applies.
(2) The other Orders of these Rules apply, to the extent that they are relevant and not inconsistent with this Order, to a proceeding in the Court to which the Workplace Relations Act, the Fair Work Act or the Registered Organisations Act applies.
Note Item 11 of Schedule 2 to theFair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that the Workplace Relations Act continues to apply, on and after the WR Act repeal day, to conduct that occurred before the WR Act repeal day. The WR Act repeal day is 1 July 2009.
An application by an employee for an order in relation to an alleged unlawful termination of the employee’s employment that occurred before 1 July 2009 must:
(a) be in accordance with Form 5; and
(b) be accompanied by:
(i) a claim in accordance with Form 5A; and
(ii) a certificate issued under subsection 650 (2) of the Workplace Relations Act regarding the failure, or likely failure, of conciliation.
Note 1 Item 11 of Schedule 2 to theFair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that the Workplace Relations Act continues to apply, on and after the WR Act repeal day, to conduct that occurred before the WR Act repeal day. The WR Act repeal day is 1 July 2009.
Note 2 Section 665 of the Workplace Relations Act sets out the orders the Court may make.
An application for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3-1 of the Fair Work Act must:
(a) be in accordance with Form 5; and
(b) be accompanied by:
(i) a claim in accordance with Form 5B; and
(ii) a certificate issued by Fair Work Australia under section 369 of the Fair Work Act that states that Fair Work Australia is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Note Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.
An application by an employee for an order in relation to an alleged unlawful termination of the employee’s employment that occurred on or after 1 July 2009 must:
(a) be in accordance with Form 5; and
(b) be accompanied by:
(i) a claim in accordance with Form 5C; and
(ii) a certificate issued by Fair Work Australia under section 777 of the Fair Work Act that states that Fair Work Australia is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Note Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.
An application for an order in relation to an alleged contravention of subsection 351 (1) of the Fair Work Act must:
(a) be in accordance with Form 5; and
(b) be accompanied by:
(i) a claim in accordance with Form 5D; and
(ii) a certificate issued by Fair Work Australia under section 369 of the Fair Work Act that states that Fair Work Australia is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Note 1 Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.
Note 2 Under subsection 351 (1) of the Fair Work Act, an employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin. The meaning of ‘adverse action’ is defined in section 342 of the Fair Work Act.
In this Division:
rule to show cause means a rule calling on a person, or an organisation, to show cause why an order should not be made in relation to the person or organisation under:
(a) if the rule to show cause relates to conduct that occurred before 1 July 2009 — section 163, 164 or 164A or subsection 167 (2) of the RAO Schedule.
(b) in any other case — section 163, 164 or 164A or subsection 167 (2) of the Registered Organisations Act.
Note 1 Item 11 of Schedule 2 to theFair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that the Workplace Relations Act continues to apply, on and after the WR Act repeal day, to conduct that occurred before the WR Act repeal day. The WR Act repeal day is 1 July 2009.
Note 2 Section 163 of the RAO Schedule and section 163 of the Registered Organisations Act provide that a member of an organisation may apply to the Court for an order declaring that the whole or a part of a rule of the organisation contravenes section 142 of the RAO Schedule or section 142 of the Registered Organisations Act (which states general requirements for rules), or that the rules of the organisation contravene section 142 of the RAO Schedule or section 142 of the Registered Organisations Act, in a particular respect.
Note 3 Section 164 of the RAO Schedule and section 164 of the Registered Organisations Act provide that a member of an organisation may apply to the Court for an order giving directions for the performance or observance of any of the rules of the organisation by any person who is under an obligation to perform or observe the rules.
Note 4 Section 164A of the RAO Schedule and section 164A of the Registered Organisations Act provide that a member of an organisation may apply to the Court for an order directing a person (who may be the person who has breached the rule) to do specified things that will, in the opinion of the Court, as far as is reasonably practical, place the organisation in the position in which it would have been if the breach of the rule had not occurred. The Court may make the order if satisfied that a person who was under an obligation to perform or observe the rule or rules of the organisation has acted unreasonably in so breaching the rule or rules.
Note 5 Subsection 167 (1) of the RAO Schedule and subsection 167 (1) of the Registered Organisations Act provide that a person or organisation may apply to the Court for a declaration as to the entitlement of a person to be admitted as a member of the organisation or to remain a member of the organisation. Under subsection 167 (2) of the RAO Schedule or subsection 167 (1) of the Registered Organisations Act, the Court may make an order to give effect to a declaration made under that subsection.
(1) This Division applies to an application for a rule to show cause.
(2) However, this Division does not apply unless:
(a) if the rule to show cause relates to conduct that occurred before 1 July 2009 — the granting of a rule to show cause is necessary, under paragraph 324 (2) (a) or (q) of the RAO Schedule, for the Minister to authorise payment of financial assistance to an applicant for an order under section 163, 164 or 164A or subsection 167 (2) of the RAO Schedule.
(b) in any other case — the granting of a rule to show cause is necessary, under paragraph 324 (2) (a) or (q) of the Registered Organisations Act, for the Minister to authorise payment of financial assistance to an applicant for an order under section 163, 164 or 164A, or subsection 167 (2) of the Registered Organisations Act.
Note Item 11 of Schedule 2 to theFair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that the Workplace Relations Act continues to apply, on and after the WR Act repeal day, to conduct that occurred before the WR Act repeal day. The WR Act repeal day is 1 July 2009.
(1) An application may be made to a Judge ex parte.
(2) The application must be accompanied by an affidavit in accordance with subrule (3), (4), (5) or (6).
(3) If the application is made under section 163 of the RAO Schedule or section 163 of the Registered Organisations Act, the affidavit must state:
(a) the rule, or part of the rule, of the organisation that is alleged to contravene section 142 of the RAO Schedule or section 142 of the Registered Organisations Act; and
(b) the ground on which the rule, or part of the rule, is alleged to contravene the section; and
(c) the facts and other reasons relied on by the applicant in support of the application.
(4) If the application is made under section 164 of the RAO Schedule or section 164 of the Registered Organisations Act, the affidavit must state:
(a) the nature of the order sought by the applicant; and
(b) each rule of the organisation the applicant seeks to have performed or observed by a person who is under an obligation to perform or observe the rule; and
(c) the ground relied on by the applicant to establish the obligation of the person to perform or observe the rule.
(5) If the application is made under section 164A of the RAO Schedule or section 164A of the Registered Organisations Act, the affidavit must state:
(a) the nature of the order sought by the applicant; and
(b) each rule of the organisation the breach of which the application seeks to rectify; and
(c) the facts and other reasons relied on by the applicant in support of the application.
(6) If the application is made under section 167 of the RAO Schedule or section 167 of the Registered Organisations Act, the affidavit must state:
(a) the nature of the order sought by the applicant; and
(b) each rule of the organisation on which the application is based; and
(c) the facts and other reasons relied on by the applicant in support of the application.
A rule to show cause must be in accordance with Form 6.
If the Court grants a rule to show cause, the applicant must file with the Court the rule and the supporting affidavit as soon as practicable after the rule is granted.
This Division applies to the following applications:
(a) an application, under section 200 of the RAO Schedule, for an inquiry into an election conducted before 1 July 2009 for an office in an organisation, or branch of an organisation;
(b) an application under subsection 69 (1) of the RAO Schedule for an inquiry into an alleged irregularity in relation to a ballot held under Part 2 of Chapter 3 of the RAO Schedule;
(c) an application under subsection 108 (1) of the RAO Schedule for an inquiry into an alleged irregularity in relation to a ballot held under Part 3 of Chapter 3 of the RAO Schedule;
(d) an application under section 200 of the Registered Organisations Act for an inquiry into an election conducted on or after 1 July 2009 for an office in an organisation, or branch of an organisation;
(e) an application under subsection 69 (1) of the Registered Organisations Act for an inquiry into an alleged irregularity in relation to a ballot conducted under Part 2 of Chapter 3 of the Registered Organisations Act;
(f) an application under subsection 94 of the Registered Organisations Act for a ballot to be held to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation;
(g) an application under subsection 108 (1) of the Registered Organisations Act for an inquiry into an alleged irregularity in relation to a ballot held under Part 3 of Chapter 3 of the Registered Organisations Act;
(h) an application, under subsection 109 (1) of the Registered Organisations Act, for an order in relation to the withdrawal of a constituent part of an amalgamated organisation from the organisation.
Note 1 Item 11 of Schedule 2 to theFair Work (Transitional Provisions and Consequential Amendments) Act 2009 provides that the Workplace Relations Act continues to apply, on and after the WR Act repeal day, to conduct that occurred before the WR Act repeal day. The WR Act repeal day is 1 July 2009.
Note 2 Under regulation 82 of theFair Work (Registered Organisations) Regulations 2009 , an application mentioned in paragraph 10 (f) must be in accordance with Form 2 of those Regulations.
Note 3 Under regulation 107 of theFair Work (Registered Organisations) Regulations 2009 , an application mentioned in paragraph 10 (h) must be in accordance with Form 4 of those Regulations.
(1) An application mentioned in paragraph 13 (a) or paragraph 13 (d) must:
(a) be in accordance with Form 50A; and
(b) be accompanied by an affidavit stating the nature of the applicant’s claim and the material facts on which the claim is based.
(2) An application mentioned in paragraph 13 (b) or paragraph 13 (e) must:
(a) be in accordance with Form 50B; and
(b) be accompanied by an affidavit stating the nature of the applicant’s claim and the material facts on which the claim is based.
(3) An application mentioned in paragraph 13 (c) or paragraph 13 (g) must:
(a) be in accordance with Form 50C; and
(b) be accompanied by an affidavit stating the nature of the applicant’s claim and the material facts on which the claim is based.
On receiving an application and any supporting documents, the District Registrar must:
(a) sign and affix the stamp of the Court to the application; and
(b) endorse on the application:
(i) the date, time and place fixed for a directions hearing; and
(ii) if the Court or a Judge has directed that a person be given notice of the application — the name and address of the person; and
(c) provide the applicant with a stamped copy of the application and a copy of any supporting documents by:
(i) if the application was presented to the Registry — giving them to the applicant; or
(ii) if the application was sent to the Registry by post or document exchange — sending them to the applicant in accordance with Order 1, subrule 5A (11); or
(iii) if the application was sent to the Registry by facsimile transmission — sending them to the applicant in accordance with Order 1, paragraph 5AB (4) (c); or
(iv) if the application was sent to the Registry by electronic communication — sending them to the applicant in accordance with Order 1, paragraph 5AC (5) (e).
(1) At least 2 days before the date fixed for the directions hearing, the applicant must serve a stamped copy of the application, and a copy of any supporting documents, on each other party (if any) to the proceeding.
(2) The stamped copy of the application must:
(a) have endorsed on it the date, time and place fixed for the directions hearing; and
(b) state that, if the party, or the party’s counsel, solicitor or authorised representative, does not appear at the directions hearing, the proceeding may be heard and orders may be made in the absence of the party, or the party’s counsel, solicitor or authorised representative.
(1) This rule applies to the following applications:
(a) an application for an interim order to be made under section 204 of the RAO Schedule in relation to an inquiry into an election held before 1 July 2009 for an office in an organisation, or a branch of an organisation;
(b) an application for an order to be made under subregulation 77 (1) of the
Fair Work (Registered Organisations) Regulations 2009 in relation to an inquiry into an alleged irregularity in relation to a ballot conducted under Part 2 of Chapter 3 of the RAO Schedule;(c) an application for an interim order to be made under section 204 of the Registered Organisations Act in relation to an inquiry into an election held on or after 1 July 2009 for an office in an organisation, or a branch of an organisation;
(d) an application for an order to be made, under subregulation 77 (1) of the
Fair Work (Registered Organisations) Regulations 2009 , in relation to an inquiry into an alleged irregularity in relation to a ballot conducted under Part 2 of Chapter 3 of the Registered Organisations Act.(2) An application may be made:
(a) ex parte; or
(b) in any other way directed by the Court or a Judge.
(1) If the Court is of the opinion that an inquiry would be assisted by the production of a document or other item, or by calling a witness, the Court may direct the Registrar to issue a subpoena for the production of the document or other item, or for the witness to attend the inquiry.
(2) The Registrar must arrange for:
(a) service of each subpoena; and
(b) payment of attendance money and witness expenses for each witness attending the inquiry.
(1) A prosecution for an offence shall be commenced by summons upon information.
(2) The person bringing the prosecution shall be called a prosecutor, and the person against whom the prosecution is brought shall be called a defendant.
(1) A summons shall:
(a) state the offence with which the defendant is charged; and
(b) give particulars of the act or omission of the defendant to which the prosecution relates.
(2) A summons and an information shall be in the forms numbered 51 and 52 in Schedule 1.
(1) A summons shall not be prolix and shall be divided into paragraphs numbered consecutively.
(2) So far as convenient, each paragraph shall deal only with one matter.
(1) The summons shall appoint a date on which the defendant is to appear before the Court to answer the charge.
(2) Except where the defendant enters a plea of guilty or the Court otherwise orders, on the day appointed under subrule (1), the charge shall not be heard, but the Court shall:
(a) give any necessary directions as to the conduct of the prosecution and defence; and
(b) fix a date for hearing or further directions.
Form 48
(3) If the defendant does not appear on the date appointed pursuant to subrule (1), the Court may issue a warrant for his arrest.
(4) The warrant shall be in the form numbered 48 in Schedule 1.
(1) Unless the Court otherwise directs, where the Court is empowered to impose a fine or penalty under any Act, the prosecutor shall, and the defendant may, file such affidavit evidence as each considers necessary having regard to the terms of the relevant Act to assist the Court to determine the appropriate fine or penalty.
(2) The provisions of Order 14 relating to affidavits including requirement for cross‑examination apply in relation to affidavits filed in accordance with subrule (1).
(3) This rule applies in a case where there has been a plea of guilty or where after a finding of guilty the matter has been adjourned to enable evidence as to the appropriate fine or penalty or where the defendant proposes to plead guilty or not to deny the charge alleged in the summons and has so advised
the prosecutor at the hearing on the date appointed under subrule 4 (1) or within the time then appointed.
In this Order:
FWA President means the President of Fair Work Australia appointed under section 626 of theFair Work Act 2009 .
(1) A case to be stated, or a question to be reserved or to be referred for the consideration of the Court, must be in the form of a special case.
(2) The special case must:
(a) be divided into consecutively numbered paragraphs; and
(b) state the facts concisely; and
(c) annex all documents necessary to enable the Court to decide the questions raised by the special case.
(3) The Court may draw from the facts stated and the documents annexed in the special case any inference, whether of fact or law, which might have been drawn from them if proved at a trial.
Unless the Judge, Court, Tribunal, FWA President or other authority stating the case or reserving the question directs, the special case must be:
(a) prepared in draft by the party having the carriage of the proceeding after consultation with the other parties, and must contain an address for service of each of the parties; and
(b) settled by the Judge, Court, Tribunal, FWA President or other authority stating the case or reserving the question; and
(c) transmitted by the Judge, Court, Tribunal, FWA President or other authority stating the case or reserving the question, with four additional copies, to the Registry at the proper place.
When a special case has been referred, the Registrar will:
(a) set down the proceeding for a directions hearing; and
(b) notify each party of the date appointed for the directions hearing.
If a question is referred to the Court by the FWA President under section 608 of the
Fair Work Act 2009 the District Registrar will:
(a) set down the proceeding for a directions hearing; and
(b) notify the FWA President and each party to the proceeding, of the date appointed for the directions hearing.
If a question is referred to the Court by a Tribunal or the FWA President, the party having the carriage of the proceeding for the purpose of rule 2 must be:
(a) if the question is referred by the Tribunal or the FWA President at the request of a party — that party; and
(b) if the question is referred by a Tribunal of its own motion — the person who made the decision to which the proceeding before the Tribunal relates; and
(c) if the question is referred by the FWA President of his or her own motion — the party appointed by the FWA President for that purpose.
(1) Where a proceeding pending in the Court involves a matter arising under the Constitution or involving its interpretation, within the meaning of section 78B of the
Judiciary Act 1903 the party whose case raises the matter shall file a notice of a constitutional matter in the Registry at the proper place.(2) Notice of a constitutional matter shall state:
(a) specifically the nature of the matter; and
(b) the facts showing that the matter is one to which subrule (1) applies.
(3) The notice of a constitutional matter shall be in or substantially in the form numbered 53 in Schedule 1.
The party whose case raises the constitutional matter, or such other party as the Court may direct, must file notice of a constitutional matter and serve a copy of the notice on all other parties and the Attorneys‑General of the Commonwealth, the States, the Australian Capital Territory and the Northern Territory:
(a) if the matter arises before the directions hearing — not later than 2 days before the date of the directions hearing;
(b) if the matter arises at the directions hearing — within such time as the Court or a Judge directs; or
(c) otherwise if the matter arises before the date fixed for trial — not later than 10 days before that date.
The party whose case raises the constitutional matter shall file an affidavit of service of the notice of a constitutional matter proving compliance with paragraph 2 (a), (b) or (c) not later than the day before:
(a) the date appointed for the directions hearing;
(b) the date ordered by the Court or a Judge at the directions hearing; or
(c) the date fixed for trial.
The party whose case raises the constitutional matter shall provide copies of any additional papers filed in the matter to any intervening Attorney‑General as soon as practicable after notice of the intervention is given to the party.
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