High Court Rules 1952 (Cth)

High Court Rules 1952

Statutory Rules 1952 No. 23 as amended

made under the

Judiciary Act 1903

This compilation was prepared on 17 September 2001

taking into account amendments up to SR 2001 No. 243

This document has been split into two volumes

Volume 1 contains Order 1-Order 44

Volume 2 contains Order 45-Order 73, the Schedules and the Notes

Each volume has its own table of contents

Prepared by the Office of Legislative Drafting,

Attorney-General’s Department, Canberra

Contents

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Order 1Preliminary, interpretation and commencement of proceedings

IPreliminary and Interpretation

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IICommencement and title of proceedings

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Order 2Writs of summons

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Order 3Endorsement of claim

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Order 4Endorsement of address

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Order 5Issue of, and appearances to, writs of summons and originating processes

IPlace of issue

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IIGeneral

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IIIAdmiralty actions

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IVTime for appearance

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VActions on relation

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Order 6Concurrent writs

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Order 7Disclosure by solicitors and plaintiffs, and change of solicitor

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Order 8Renewal of writs

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Order 9Service of writs of summons

IMode of service

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IIOn particular defendants

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IIIOn corporations and agents

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IVIn particular actions

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VGenerally

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Order 10Service outside the Commonwealth

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Order 11Appearance

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Order 12Default of appearance

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Order 13Summary relief

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Order 14Summary judgment for specific performance

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Order 15Application for an account

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Order 16Parties

IGenerally

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IIPersons under disability

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IIIProceedings by and against poor persons

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IVAdministration and execution of trusts

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Order 17Third party procedure

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Order 18Change of parties by death etc

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Order 19Joinder of causes of action

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Order 20Pleading generally

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Order 21Statement of claim

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Order 22Defence and counterclaim

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Order 23Payment into and out of court and tender

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Order 24Reply

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Order 25Matters arising pending the action

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Order 26Demurrer and objections to pleadings

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Order 27Discontinuance

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Order 28Default in pleading

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Order 29Amendment

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Order 30Caveats and releases in admiralty actions

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Order 31Summons for directions and consolidation

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Order 32Discovery and inspection

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Order 33Admissions and notices to produce

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Order 34Issues, inquiries and accounts

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Order 35Questions of law and issues of fact without pleadings

ISpecial case

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IIIssues of fact without pleadings

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Order 36Trial

IPlace

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IIMode of trial

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IIINotice of and entry for trial

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IVPapers for Justice

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VProceedings at hearing or trial

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VIWrit of inquiry and reference as to damages

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Order 37Evidence

IOffice copies

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IIExamination of witnesses upon commission etc

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IIISubpoena

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IVShorthand notes

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Order 38Court experts

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Order 39Affidavits and depositions

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Order 40Exhibits

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Order 41New trials

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Order 42Motion for judgment

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Order 43Entry of judgments

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Order 43AInterest on judgments

Order 44Drawing up judgments and orders

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Order 1Preliminary, interpretation and commencement of proceedings

IPreliminary and Interpretation

1Name of rules [see Note 1]

 These rules are the High Court Rules 1952.

2Commencement

 These rules shall come into operation on the first day of January, 1953, and shall apply to all proceedings and appeals commenced or instituted on or after that date.

3Repeal and saving

• (1)

  The Rules of Court in force immediately before the commencement of these rules regulating the practice and procedure in the High Court of Australia are repealed.

• (2)

  The repeal effected by the last preceding subrule does not affect the validity of any proceedings taken under the Rules of Court so repealed, or a right, privilege, obligation or liability acquired, accrued or incurred under any of those Rules, or a legal proceeding or remedy in respect of such a right, privilege, obligation or liability.

4Pending proceedings etc

 A proceeding pending and a judgment, decree or order given or made before the commencement of these rules, being of a kind to which these rules apply, shall be treated as if pending, given or made under these rules, and may be proceeded with, enforced, varied, reversed or otherwise dealt with accordingly, subject to any special order or direction made or given by a Justice in a particular case.

5Interpretation

 In these rules, unless the contrary intention appears:

Act means:

• (a)

  an Act of the Parliament of the United Kingdom which is in force in the Commonwealth or in a part of the Commonwealth;

• (b)

  an Act of the Parliament of the Commonwealth;

• (c)

  an Act of the Parliament of a State; and

• (d)

  an Ordinance in force in a State or Territory.

action means a civil proceeding commenced by writ or in such other manner as is prescribed by Rules of Court, but does not include a criminal proceeding by the Crown.

address for service means an address which complies with the provisions of Order 4 of these rules.

administrator includes an officer or agent of the Commonwealth, or of a State or Territory, authorized under the law of the Commonwealth, or of a State or Territory, to administer the estate of a deceased person.

Admiralty action means a proceeding instituted in the Court in the exercise of the jurisdiction conferred on it by or under the Colonial Courts of Admiralty Act, 1890.

Attorney-General means the Attorney-General of the Commonwealth.

body politic includes the Crown in right of the Commonwealth or of a State, and also in right of a part of the Queen’s dominions other than the Commonwealth, including the Crown in right of the United Kingdom.

cause includes a suit and criminal proceedings.

Chief Justice includes a Justice upon whom the powers and duties of the Chief Justice devolve for the time being.

committee includes a person entrusted under the law of the Commonwealth, or of a State or Territory, with the care or management of the person or estate of a person of unsound mind.

Commonwealth means the Commonwealth of Australia, and includes a Territory.

the Court means the High Court of Australia.

defendant includes a person against whom relief is sought by originating process.

District Registrar means an officer of a State or Territory who performs on behalf of the Court at any office of the Registry in such State or Territory any function under section 30 of the High Court of Australia Act 1979.

District Registry means an office of the Registry located elsewhere than at the seat of the Court.

document includes book, map, plan, drawing and photograph.

existing means existing immediately before the commencement of these rules.

file means file in a Registry, and filed and filing have corresponding meanings.

formerly, when used in relation to the Courts or the law or practice in England, means immediately before the date of the commencement of the Supreme Court of Judicature Act, 1873, namely the first day of November, 1875, and, when used in relation to the High Court or the practice or procedure in the High Court, means immediately before the commencement of these rules, and former has a corresponding meaning.

issue of fact includes the assessment of damages in a cause or matter.

Judiciary Act means the Judiciary Act 1903-1979.

Justice or single Justice means a Justice of the Court, including the Chief Justice, and includes:

• (a)

  a Justice sitting in Court or in Chambers;

• (b)

  a Justice sitting in Court or elsewhere as in Chambers;

• (c)

  a Justice sitting in a place otherwise than as a Court or as a member of a Court; and

• (d)

  a Justice sitting with a jury or with an assessor or assessors;

 and in the expressions Court or Justice and Court or a Justice means a Justice of the Court sitting in Chambers.

Law Officer means the Attorney-General or the Solicitor-General of the Commonwealth or of a State, as the case requires.

Marshal means the Marshal of the Court, and includes a Deputy Marshal and any other officer or person bound or entitled to discharge the duties and perform or execute the functions or office of the Marshal or a Deputy Marshal.

oath and affidavit include affirmation and statutory declaration, and swear includes affirm and declare.

officer includes Registrar.

order includes rule made by a Court or judge.

original proceeding means a proceeding in the Court which is not a proceeding in a pending cause or matter, and includes a cause and a summons in an interpleader proceeding.

originating process means writ of summons or other summons by which a cause or matter is commenced.

originating summons means a summons other than a summons in a pending cause or matter.

party and parties include as well as the plaintiff and defendant:

• (a)

  a person not originally a party against whom a counterclaim is set up or who has been served with notice to appear under any of these rules; and

• (b)

  a person served with notice of or attending a proceeding although not named on the record or in the process.

person includes corporation and body politic.

person of unsound mind includes a person in respect of whom there has been made, given or taken under the law of the Commonwealth or of a State or Territory an order, certificate or proceeding in consequence of which, under that law, that person, or property of that person, is, by reason of his mental infirmity, committed to the care, management or control of some other person.

plaintiff includes a person seeking relief against another person by a form of proceeding in a Court.

prescribed means prescribed by Rules or by an Act or law.

Principal Registrar means the Registrar.

Principal Registry means the office of the Registry located at the seat of the Court.

proceeding includes action, cause, matter and suit.

proper officer, when used in relation to an officer of the Court, means an officer ascertained as follows:

• (a)

  where a duty or function to be discharged or performed under an Act or these rules is a duty or function which has, before the commencement of these rules, been discharged or performed by an officer, that officer shall, unless otherwise provided by these rules and subject to any direction given by the Chief Justice, continue to be the proper officer to discharge or perform that duty or function;

• (b)

  where a new duty or function is, under an Act or these rules, to be discharged or performed, the proper officer to discharge or perform the same shall be the officer directed by these rules, or, if there is no such officer, then such other officer as is from time to time directed to discharge or perform the duty or function by the Chief Justice, or, subject to any other direction by the Chief Justice, by a Registrar pursuant to these rules;

• (c)

  where a doubt arises as to the proper officer to discharge a duty or perform a function, the proper officer shall be such officer as is directed by the Chief Justice to perform the duty or perform the function.

receiver includes consignee or manager appointed by or under an order of the Court.

Registrar means the Registrar appointed under section 26 of the High Court of Australia Act 1979 and includes a Deputy Registrar so appointed.

Registry, a Registry and any Registry mean the Registry established under section 30 of the High Court of Australia Act 1979 and include each office of the Registry.

Rules, these rules or rules of Court means these rules, and includes:

• (a)

  any forms, fees and costs referred to in these rules; and

• (b)

  any other rules of Court, forms, fees and costs made or prescribed in amendment of, or in addition to, these rules.

seal and seal of the Court mean the seal of the Court referred to in section 32 of the High Court of Australia Act 1979 and include such other seal as is prescribed by these rules.

sealed means sealed with the seal of the Court referred to in section 32 of the High Court of Australia Act 1979 or such other seal as is prescribed by these rules.

State means a State of the Commonwealth.

sue means commence or take part in proceedings as plaintiff, petitioner or applicant.

suit includes an action or original proceeding between parties.

the Registry in which the proceeding is commenced and the Registry in which the matter is then pending and words to the like effect mean “the office of the Registry at which the proceeding was lodged or issued”.

trial includes hearing.

United Kingdom means the United Kingdom of Great Britain and Northern Ireland, or of Great Britain and Ireland, as the case requires.

writing includes printing and typewriting and other similar methods of producing words in a visible form and written has a corresponding meaning.

6Reference to Acts etc

 Where the provisions of an Act, or of these rules, referred to in these rules, have been amended, or repealed and re-enacted with or without modification, by a subsequent Act or Rules, reference in these rules to the provisions so amended or repealed shall, unless the contrary intention appears, be construed as reference to the provisions as amended or re-enacted.

IICommencement and title of proceedings

7Commencement of proceedings

• (1)

  Proceedings commenced by writ of summons shall be called actions.

• (2)

  If there is not an applicable provision providing for the manner of commencement of particular proceedings, they may be commenced in a manner directed by a Justice.

8Title of proceedings

• (1)

  A proceeding in the Court shall be entitled “In the High Court of Australia”.

• (2)

  There shall be added below the words “In the High Court of Australia” the location of the office of the Registry in which the proceeding was commenced.

Order 2Writs of summons

  

1Endorsement of claim

 A writ of summons shall, before it is issued, be endorsed with a concise statement of the nature of the claim made and of the relief or remedy required in the action.

2Costs of prolix writs

 Any costs occasioned by the use of any forms of writs, and of endorsements thereon, other than, or more prolix than, the forms prescribed, shall be borne by the party using them unless the Court or a Justice otherwise directs.

3Form of writ

 The writ of summons for the commencement of an action shall, except where a different form is required by these rules, be in one of the forms numbered 1 and 2 in the First Schedule, with such variations as the circumstances require.

4Leave to issue out of Commonwealth

 A writ of summons or other originating process for service out of the Commonwealth, or of which notice is to be given out of the Commonwealth, shall not be issued without the leave of the Court or a Justice.

5Form of writ for service out of the Commonwealth

• (1)

  A writ of summons to be served out of the Commonwealth, or of which notice is to be given out of the Commonwealth, shall be in one of the forms numbered 3 and 4 in the First Schedule, with such variations as the circumstances require.

• (2)

  The notice shall be in the form numbered 5 in the First Schedule, with such variations as the circumstances require.

6Admiralty action

 The writ of summons in an Admiralty action in rem shall be in the form numbered 10 in the First Schedule, with such variations as the circumstances require.

7Dating and testing of writs

 A writ of summons and (unless by these rules or by any law it is otherwise provided) every other writ or originating process shall bear date on the day on which it is issued and shall be tested in the name of the Chief Justice.

Order 3Endorsement of claim

  

1Endorsement under Order 2, rule 1

 In the endorsement required by Order 2, rule 1, it is not essential to set forth the precise ground of complaint or the precise remedy or relief to which the plaintiff considers himself entitled.

2Forms of endorsement

 The endorsement of claim shall be in such concise form as the nature of the case requires.

3Endorsement to show representative capacity

 If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the endorsement shall show in what capacity the plaintiff or defendant sues or is sued.

4Endorsement where the claim is liquidated

• (1)

  In an action in which the plaintiff’s claim is for a debt or liquidated demand only, the endorsement, besides stating the nature of the claim, shall state the amount claimed for debt or in respect of that demand and for costs respectively, and shall further state that, upon payment of that amount within the time allowed for appearance, further proceedings will be stayed.

• (2)

  The statement shall be as in the form numbered 2 in the First Schedule.

• (3)

  The plaintiff shall be at liberty to state for costs a sum of Twelve dollars sixty cents. If judgment is entered in the action in default of appearance in pursuance of Order 12, rule 3, the amount of costs included in the judgment shall be the said sum of Twelve dollars sixty cents together with Eight dollars forty cents for costs of judgment in addition to mileage.

• (4)

  Unless the writ is endorsed with the amounts mentioned in

  subrule (3), the defendant notwithstanding that he has paid such costs may have the costs taxed, and if more than one-sixth is disallowed the plaintiff’s solicitor shall pay the costs of taxation.

5Ordinary account

 Where the plaintiff, in the first instance, desires to have an account taken, the writ of summons shall be endorsed with a claim that an account be taken.

6Libel

 In an action for libel, the endorsement on the writ shall state sufficient particulars to identify the publications in respect of which the action is brought.

Order 4Endorsement of address

  

1Where plaintiff sues by solicitor

• (1)

  The solicitor of a plaintiff suing by a solicitor shall endorse upon the writ of summons the address of the plaintiff and also his own name and place of business or the name of his firm and its place of business.

• (2)

  Where the place of business so endorsed is not more than three miles from the office of the Registry in which the proceeding is commenced, it shall be the address for service of the plaintiff.

• (3)

  Where that place of business is more than three miles from the office of that Registry, the solicitor shall also endorse upon the writ the address of a proper place, which is not more than three miles from that office, to be the address for service of the plaintiff.

• (4)

  Where the solicitor is acting as agent of another solicitor, he shall add to his own name and place of business, or firm name and its place of business, the name and place of business of the principal solicitor, or the name of the firm of the principal solicitor and its place of business.

2Where plaintiff sues in person

• (1)

  A plaintiff suing in person shall endorse upon the writ of summons his place of residence and his occupation.

• (2)

  Where his place of residence is not more than three miles from the office of the Registry in which the proceeding is commenced, it shall be his address for service.

• (3)

  Where that place of residence is more than three miles from the office of that Registry, he shall also endorse upon the writ the address of a proper place, which is not more than three miles from that office, to be his address for service.

3Address for service

 Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the plaintiff at his address for service.

4Where notice is served in lieu of writ

 Where notice of a writ of summons or other originating process is to be served on a defendant in pursuance of Order 10, the endorsement required by the preceding rules of this Order shall be made both on the writ, or other originating process, and on the notice.

5Matters not commenced by writ

• Where proceedings are commenced otherwise than by writ of summons, the preceding rules of this Order apply to the process by which the proceedings are originated as if it were a writ of summons.  

Order 5Issue of, and appearances to, writs of summons and originating processes

IPlace of issue

1Writs etc may be issued out of any Registry

 A writ of summons or other originating process may be issued out of any Registry.

2Endorsement as to appearance on writs etc issued out of Principal Registry

 Where a writ of summons or other originating process is issued out of the Principal Registry, and that writ or other process, or notice of that writ or other process, is to be served upon or given to a person, a statement in accordance with the “Memorandum to be subscribed on writs, &c., issued from the Principal Registry” set forth in form numbered 1 in the First Schedule shall appear upon the face of the writ of summons or other process.

IIGeneral

4Preparing and printing writs

 A writ of summons or other originating process shall be prepared by the plaintiff or his solicitor and shall be written, printed or typewritten on paper of the same kind as these rules direct in the case of documents required to be printed.

5Signing etc by proper officer

 A writ of summons or other originating process shall be signed, sealed and numbered by the proper officer and shall thereupon be deemed to be issued.

6Copy of writ etc to be left with proper officer

• (1)

  The plaintiff or his solicitor shall, on presenting a writ of summons or other originating process for signing, sealing and numbering, leave with the officer a copy (written, printed or typewritten on paper of the kind specified in rule 4 of this Order) of the writ or other originating process and of all endorsements thereon.

• (2)

  The copy shall be signed by or for the solicitor leaving it, or by the plaintiff himself if he sues in person.

7Filing and marking of copy of writ etc

• (1)

  The officer receiving a copy of a writ or other originating process under the last preceding rule shall, on payment of the prescribed fee, file the copy.

• (2)

  An entry of the filing of the copy shall be made in a book to be called the Cause Book, or in a book to be called the Court Book, as the case may be, which are to be kept in the Registries in the manner and form in which those books were respectively kept immediately before the commencement of these rules.

• (3)

  The action or other proceeding shall be distinguished:

  • (a)

    by the date of the year and a number in the same manner in which matters were distinguished in those books immediately before the commencement of these rules; and

  • (b)

    by the name of the Registry out of which the writ of summons or other originating process, as the case may be, is issued.

IIIAdmiralty actions

8Admiralty, arrest warrant after affidavit

• (1)

  In an Admiralty action in rem, a warrant for the arrest of property shall be in the form numbered 11 or the form numbered 12 in the First Schedule, with such variations as the circumstances require, and may be issued at the instance of either the plaintiff or the defendant at any time after the writ of summons has issued.

• (2)

  Except by leave of the Court or a Justice, a warrant of arrest shall not be issued until an affidavit by the party or his agent has been filed and the provisions of subrules (3), (4) and (5) of this rule complied with.

• (3)

  The affidavit shall state:

  • (a)

    the name and description of the party at whose instance the warrant is to be issued;

  • (b)

    the nature of the claim or counterclaim;

  • (c)

    the name and nature of the property to be arrested;

  • (d)

    that the claim or counterclaim has not been satisfied;

  • (e)

    that the aid of the Court is required to enforce it;

  • (f)

    in an action of wages or of possession, the national character of the vessel proceeded against and, if against a foreign vessel, that notice (a copy of which shall be exhibited to the affidavit) of the commencement of the action has been given to a consular officer of the State to which the vessel belongs, if there be one within the Commonwealth; and

  • (g)

    in an action of distribution of salvage, the amount of salvage money awarded or agreed to be accepted and the name, address and description of the party holding the salvage money.

• (4)

  In an action of bottomry, the bottomry bond, and, if it is in a foreign language, a notarial translation of the bond, shall be produced for the inspection and perusal of the Registrar and a copy of the bond, or of the translation of the bond, certified to be correct, shall be exhibited to the affidavit.

• (5)

  The solicitor who applies for the issue of the warrant shall lodge an undertaking to pay the fees and expenses of the Marshal.

9Special circumstances

 The Court or a Justice may, if it or he thinks fit:

• (a)

  allow a warrant of arrest to issue although the affidavit referred to in the last preceding rule does not contain all the required particulars;

• (b)

  in an action of wages against a foreign ship, waive the service of the notice; and

• (c)

  in an action of bottomry, waive the production of the bond.

IVTime for appearance

10Time for appearance to be limited by writ

 Where a writ of summons or other originating process is to be served within the Commonwealth, the time to be limited in the writ or other process for the appearance of a defendant shall be:

• (a)

  where the place of service is in the State or Territory in which the Registry from which it is issued is situated — fourteen days;

• (b)

  where the place of service (not being in Papua, New Guinea or Norfolk Island) is in a State or Territory other than the State or Territory in which the Registry from which it is issued is situated — twenty-one days;

• (c)

  where the place of service is in Papua, New Guinea or Norfolk Island — twenty-eight days; and

• (d)

  in any other case — three months.

VActions on relation

11Actions by Attorney-General on relation

• (1)

  Where a proceeding is commenced in the name of the Attorney‑General of the Commonwealth or of a State on the relation of a private person, the writ of summons or other originating process, when presented for issue, shall have upon it a fiat under the hand of the Attorney-General concerned directing or approving its issue.

• (2)

  A copy of the fiat shall be endorsed upon each copy of the writ of summons or other process to be served.

Order 6Concurrent writs

  

1Concurrent writs, how issued etc

• (1)

  The plaintiff in an action may, at the time of, or at any time during twelve months after, the issue of an original writ of summons, issue one or more concurrent writ or writs.

• (2)

  A concurrent writ shall bear teste of the same day as the original writ, and shall be marked with a seal, impressed upon the writ by the proper officer, bearing the word Concurrent and the date of issue of the concurrent writ.

2Period during which concurrent writ in force

 A concurrent writ shall be in force only for the period during which the original writ in the action is in force.

3Concurrent writs for service within, and outside, the Commonwealth

• (1)

  A writ for service within the Commonwealth may be issued and marked as a concurrent writ with a writ for service outside the Commonwealth or a writ of which notice in lieu of service is to be given.

• (2)

  A writ for service outside the Commonwealth, or a writ of which notice in lieu of service is to be given, may be issued and marked as a concurrent writ with a writ for service within the Commonwealth.

4Concurrent originating process

 Where a proceeding is required or permitted to be commenced otherwise than by writ of summons, the preceding rules of this Order apply, mutatis mutandis, to the issue of a concurrent originating process in that proceeding.

Order 7Disclosure by solicitors and plaintiffs, and change of solicitor

  

1Where name of solicitor endorsed on writ

• (1)

  A solicitor whose name is endorsed on a writ of summons or other originating process shall, on demand in writing made by or on behalf of a defendant who has been served with or has appeared to the writ or process, forthwith declare in writing whether the writ or other process has been issued by him or with his authority or privity.

• (2)

  Where the solicitor fails so to declare within three days after service of the demand, a Justice may order him, within a specified time, so to declare and also to declare the profession or occupation and place of abode of the plaintiff.

• (3)

  Where the solicitor declares that the writ or other originating process was not issued by him or with his authority or privity, proceedings upon the writ or other process shall be stayed and further proceedings shall not be taken upon the writ or other process without leave of the Court or a Justice.

2Change of solicitor

• (1)

  Subject to the provisions of Order 16, rule 36, subrule (2), a party suing or defending by a solicitor may change his solicitor in a proceeding without an order for that purpose.

• (2)

  Subject to rules 6 and 7 of this Order, the former solicitor shall be considered the solicitor of the party until the final conclusion of the proceeding before the Court, whether on appeal or otherwise, unless and until:

  • (a)

    notice of a change of solicitor is filed in the Registry in which the proceeding is then pending; and

  • (b)

    a copy of the notice, endorsed with a memorandum stating that the notice has been duly filed and the name of the Registry in which it has been filed, is served on each other party to the proceeding, other than a party in default as to entry of appearance.

• (3)

  A notice under the last preceding subrule shall be signed by the new solicitor and shall state his place of business.

• (4)

  Where that place of business is not more than three miles from the office of the Registry in which the proceeding is pending, it shall be the address for service of the party.

• (5)

  Where that place of business is more than three miles from the office of that Registry, the notice shall also state the address of a proper place, which is not more than three miles from that office, to be the address for service of the party.

• (6)

  Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the party at his address for service.

3Notice of appointment of solicitor

• (1)

  Where a party, after having sued or defended in person, appoints a solicitor to act on his behalf in a proceeding, he may give notice of that appointment.

• (2)

  The provisions of the last preceding rule relating to a notice of change of solicitor and to service apply, with the necessary modifications, in the case of notice of appointment of a solicitor.

4Notice of intention to act in person

• (1)

  Where a party, after having sued or defended by a solicitor, intends to act in person, he may give notice stating his intention to act in person and giving an address for service.

• (2)

  The provisions of rule 2 of this Order relating to a notice of change of solicitor apply, with the necessary modifications, to a notice of intention to act in person.

5Power to act through new solicitor

 A party giving notice under rule 2 or rule 3 of this Order may perform the duties prescribed by those rules in person or through his new solicitor.

6Removal of solicitor from the record at the instance of another party

• (1)

  Where a solicitor who has acted for a party in a proceeding:

  • (a)

    has died;

  • (b)

    has become bankrupt;

  • (c)

    cannot be found;

  • (d)

    has failed to take out a practising certificate, where one is required, or to register as a practitioner, in the High Court; or

  • (e)

    has ceased to have the right to practise in the High Court;

   and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of this Order, another party to the proceeding may, on notice to be served on the first-named party personally, or by pre-paid post letter addressed to his last-known place of address, unless the Court or a Justice otherwise directs, apply to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the first-named party in the proceeding, and the Court or Justice may make an order accordingly.

• (2)

  Where an order is made under the last preceding subrule, the party on whose application the order was made shall:

  • (a)

    serve on each other party to the proceeding (other than a party in default as to entry of appearance) a copy of the order;

  • (b)

    procure the order to be filed in the Registry in which the proceeding is then pending; and

  • (c)

    leave at that Registry a certificate signed by the applicant or his solicitor that the order has been duly served.

• (3)

  Where the party on whose application the order was made has complied with the last preceding subrule, the party against whom the order was made shall either appoint another solicitor or give notice of intention to act in person in accordance with the provisions of this Order, and, in default of his so doing, documents in respect of which personal service is not required may be served on the party so in default by being filed in the Registry.

• (4)

  An order made under this rule does not affect the rights or liabilities of a solicitor and the party for whom he acted as between themselves.

7Withdrawal of solicitor who has ceased to act for a party

• (1)

  Where a solicitor who has acted for a party in a proceeding has ceased so to act and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of this Order, the solicitor may, on notice to be served on the party personally or by pre-paid post letter addressed to his last-known place of address, unless the Court or a Justice otherwise directs, apply to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the proceeding, and the Court or Justice may make an order accordingly.

• (2)

  Where an order is made under the last preceding subrule, the solicitor on whose application the order was made shall:

  • (a)

    serve on each party to the proceeding (other than a party in default as to entry of appearance) a copy of the order;

  • (b)

    procure the order to be filed in the Registry in which the proceeding is then pending; and

  • (c)

    leave at that Registry a certificate signed by him that the order has been duly served;

   and, in default of his so doing, and subject to rules 2, 4 and 6 of this Order, he shall be considered the solicitor of the party for whom he has acted to the final conclusion of the proceeding before the Court, whether on appeal or otherwise.

• (3)

  Where:

  • (a)

    an order made under this rule has been filed in the appropriate Registry; and

  • (b)

    the party to whom the order relates has not appointed another solicitor or given notice of intention to act in person in accordance with the provisions of this Order;

   a document in respect of which personal service is not required may be served on that party by being filed in that Registry.

• (4)

  An order made under this rule does not affect the rights or liabilities of a solicitor and a party as between themselves.

8Solicitor not to act for adverse parties

 A solicitor shall not act in a proceeding for plaintiff and defendant or for any two or more defendants having adverse interests in a matter.

Order 8Renewal of writs

  

1Original writ in force for 12 months

• (1)

  Subject to the next succeeding subrule, an original writ of summons shall not be in force for more than twelve months from the day of the date of the writ, including the day of that date.

• (2)

  Where a defendant named in an original writ has not been served with the writ, the plaintiff may, before the expiration of twelve months from the day of the date of the writ, apply to the Court or a Justice for leave to renew the writ and the Court or Justice, if satisfied that reasonable efforts have been made to serve the defendant, or for other good reason, may order that the original or concurrent writ be renewed for six months from the date of the renewal inclusive, and so from time to time during the currency of the renewed writ.

• (3)

  Where an order is made under the last preceding subrule, the writ shall be renewed by being marked with a seal bearing the word Renewed and the date of the day, month and year of the renewal.

• (4)

  A writ so renewed shall remain in force, and be available to prevent the operation of a law whereby the time for the commencement of the action is limited, and for all other purposes, from the date of issue of the original writ of summons.

• (5)

  A seal for the purpose of marking writs in accordance with this rule shall be provided and kept for that purpose at each Registry and shall be impressed upon the writ by the proper officer upon delivery to him by the plaintiff or his solicitor of a memorandum in the form numbered 13 in the First Schedule, with such variations as the circumstances require.

2Evidence of renewal

 The production of a writ of summons purporting to be marked with the seal of the Court showing the writ to have been renewed in accordance with this Order is sufficient evidence of its having been so renewed and of the commencement of the action as of the first date of the renewed writ for all purposes.

3Lost writ

 Where a writ or other originating process, of which the production is necessary, has been lost, the Court or a Justice, upon being satisfied of the loss and of the correctness of a copy of the writ or other process, may order that the copy shall be sealed in lieu of the original writ or other originating process.

Order 9Service of writs of summons

IMode of service

1Undertaking to accept service

 Service of a writ or other originating process upon a party is not required when the solicitor of the party to be served undertakes in writing to accept service and an appearance is entered.

2When service required, how effected

• (1)

  Where personal service is required, the writ or other originating process shall, whenever it is practicable, be served by delivering a copy of the writ or other process, and of the endorsement thereon, and at the same time producing the original.

• (2)

  Where it appears to the Court or a Justice that the plaintiff is, from any cause, unable to effect prompt personal service, the Court or Justice may make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise, as is just.

3Substituted service

 An application to the Court or a Justice for an order for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon which the application is made.

IIOn particular defendants

4Infant

• (1)

  Where an infant is a defendant, service on his father or guardian, or if none, then upon the person with whom the infant resides or under whose care he is, shall, unless the Court or a Justice otherwise orders, be deemed good service on the infant.

• (2)

  The Court or Justice may order that service made, or to be made, on the infant shall be deemed good service.

5Persons of unsound mind

 Where a person of unsound mind is a defendant in a proceeding, service on him shall be effected in such a manner as a Justice directs upon application made supported by affidavit.

IIIOn corporations and agents

6Service on corporations etc

 Subject to a contrary statutory provision, a writ of summons or other originating process, or notice of a writ or other process, to be served on a corporation aggregate, may be served on the mayor, president or other head officer, or on the town clerk, clerk, treasurer, secretary, manager or other principal officer of that corporation within the Commonwealth.

7Service on agent

• (1)

  Where a contract has been entered into within the Commonwealth by or through an agent residing or carrying on business within the Commonwealth on behalf of a principal residing or carrying on business outside the Commonwealth, a writ of summons in an action relating to or arising out of that contract may, by leave of the Court or a Justice given before the determination of the agent’s authority or of his business relations with the principal, be served on the agent, in lieu of or in addition to service upon his principal.

• (2)

  Notice of the order giving leave to serve an agent, and a copy of that order and of the writ of summons, shall forthwith be sent by pre-paid registered post letter to the defendant or defendants at his or their address outside the Commonwealth.

IVIn particular actions

8Service in action for recovery of land

 Service of a writ of summons in an action to recover land may, in case of vacant possession, when service cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwelling-house or other conspicuous part of the property.

9Admiralty actions in rem

In an Admiralty action in rem, service of a writ or warrant is not required where the solicitor of the defendant agrees in writing to accept service and to put in bail, or to pay money into Court in lieu of bail.

10Service of warrant of arrest

• (1)

  In an Admiralty action in rem, the warrant of arrest shall be served by the Marshal or his deputy.

• (2)

  The party issuing the warrant shall, within seven days from its service, file the warrant, endorsed with a certificate of service, in the Registry out of which it was issued.

11Service of writ or warrant, how effected

 In an Admiralty action in rem, service of a writ of summons or warrant against a ship, freight or cargo on board shall be effected by nailing or affixing the original writ or warrant for a short time on the mainmast, or on the single mast, of the vessel or on some other conspicuous part of the vessel, and, on taking off the process, leaving a true copy of it nailed or fixed in its place.

12When cargo landed

 Where cargo has been landed or transhipped, service of the writ of summons or warrant to arrest the cargo and freight shall be effected by placing the writ or warrant for a short time on the cargo, and, on taking off the process, by leaving a true copy upon it.

13Where no access to cargo

 Where cargo is in the custody of a person who will not permit access to it, service of the writ or warrant may be made upon the custodian.

14Proceeds in Court

 In an Admiralty action in rem, the service of a writ of summons or warrant upon proceeds in Court shall be effected by showing the original writ to the Registrar and leaving with him a copy of it, which service shall be a sufficient arrest of the proceeds.

VGenerally

15Endorsement after service

• (1)

  The person serving a writ of summons or other originating process shall, within three days after service, endorse on the writ or other originating process the day of the month and week, and the time of the day, of the service of the writ or other process, and, if he does not do so, the plaintiff, in case of non-appearance, may not proceed as upon default without the leave of the Court or a Justice.

• (2)

  An affidavit of service of the writ or other originating process shall state the day on which the endorsement referred to in the last preceding subrule was made.

• (3)

  This rule applies to substituted as well as to other service.

Order 10Service outside the Commonwealth

  

1In certain cases service of writ etc allowed outside Commonwealth

• (1)

  Leave to serve a writ of summons, or notice of a writ of summons, outside the Commonwealth may be given by the Court or a Justice where:

  • (a)

    the whole subject-matter of the action is land situated within the Commonwealth (with or without rents or profits), or the perpetuation of testimony relating to land within the Commonwealth;

  • (b)

    an act, deed, will, contract, obligation or liability affecting land or hereditaments situated within the Commonwealth is sought to be construed, rectified, set aside or enforced in the action;

  • (c)

    relief is sought against a person domiciled or ordinarily resident within a State or Territory;

  • (d)

    the action is for the execution, as to property situated within the Commonwealth, of the trusts of a written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of the Commonwealth or of a State or Territory;

  • (e)

    the action is one brought to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of the breach of a contract:

    • (i)

      made within the Commonwealth;

    • (ii)

      made by or through an agent trading or residing within the Commonwealth on behalf of a principal trading or residing outside the Commonwealth; or

    • (iii)

      which is governed by the law of the Commonwealth or of a State or Territory;

  • (f)

    the action is brought in respect of a breach committed within the Commonwealth of a contract wherever made, even though that breach was preceded or accompanied by a breach outside the Commonwealth which rendered impossible the performance of the part of the contract which ought to have been performed within the Commonwealth;

  • (g)

    the action is founded on a tort committed within the Commonwealth;

  • (h)

    an injunction is sought as to anything to be done within the Commonwealth, or a nuisance within the Commonwealth is sought to be prevented or removed, whether damages are or are not also sought in respect of that thing or nuisance;

  • (i)

    a person outside the Commonwealth is a necessary or proper party to an action properly brought against some other person duly served within the Commonwealth;

  • (j)

    the action is by a mortgagee or mortgagor in relation to a mortgage of personal property situated within the Commonwealth and seeks relief of the nature or kind following, that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, re-conveyance, delivery of possession by the mortgagee, but does not seek (unless and except so far as permissible under paragraph (e) of this subrule) a personal judgment or order for payment of moneys due under the mortgage; or

  • (k)

    the action is brought by virtue of the Civil Aviation (Carriers’ Liability) Act 1959.

• (2)

  In paragraph (j) of the last preceding subrule:

  • (a)

    mortgage means a mortgage, charge or lien of any description;

  • (b)

    mortgagee means a party for the time being entitled to or interested in a mortgage;

  • (c)

    mortgagor means a party for the time being entitled to or interested in property subject to a mortgage;

  • (d)

    personal property situated within the Commonwealth means personal property which, on the death of an owner thereof intestate, would form subject-matter for the grant of letters of administration to his estate under the law of a State or Territory.

2Agreement as to jurisdiction and mode of service

• (1)

  Where the parties to a contract upon which an action which is within the jurisdiction of the Court is brought have agreed:

  • (a)

    that the Court shall have jurisdiction to entertain an action in respect of that contract;

  • (b)

    that service of a writ of summons in that action may be effected at a place within or outside the Commonwealth on a party, or on a person on behalf of a party, or in a manner specified or indicated in the contract;

   service of the writ of summons at the place (if any), on the party or on the person (if any) and in the manner (if any) specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident.

• (2)

  Where no place, mode or person is so specified or indicated, service outside the Commonwealth of the writ may be ordered.

3Application to be supported by evidence

• (1)

  An application for leave to serve a writ of summons, or notice of a writ of summons, on a defendant outside the Commonwealth shall be supported by affidavit or other evidence stating:

  • (a)

    that, in the belief of the deponent, the plaintiff has a good cause of action;

  • (b)

    the place or country where that defendant is or probably may be found; and

  • (c)

    the grounds upon which the application is made.

• (2)

  Leave to serve the writ or notice outside the Commonwealth shall not be granted unless it is made sufficiently to appear to the Court or Justice that the cause is a proper one for service outside the Commonwealth under this Order.

4Order to fix time for appearance

• (1)

  An order giving leave to effect service or give notice outside the Commonwealth shall limit a time after the service or notice within which the defendant in respect of whom the leave is given is to enter an appearance.

• (2)

  The time referred to in the last preceding subrule shall depend on the place or country where or within which the writ is to be served or the notice given, and on whether the airmail is available to the defendant.

5Notice of writ

 Where the defendant is not within the Commonwealth, service of notice of a writ is deemed to be effective service of the writ.

6Service of notice of writ

 Where leave is given under rule 1 of this Order to serve notice of a writ of summons outside the Commonwealth, the notice shall, subject to rules 7 and 9 of this Order and to any direction given by the Court or a Justice as to the manner in which the notice shall be served or brought under the notice of the defendant, be served in the manner in which a writ of summons is served.

7Service abroad by letter of request

• (1)

  Where leave is given to serve a writ of summons, or a notice of a writ of summons, in a country to which this rule, by order of the Chief Justice from time to time, is applied, the procedure prescribed by the succeeding subrules of this rule may be adopted.

• (2)

  The document to be served shall be sealed with the seal of the Court used for sealing documents which are to be served outside the Commonwealth and shall be transmitted to the Attorney‑General by the Chief Justice together with:

  • (a)

    a copy of the document translated into the language of the country in which service is to be effected; and

  • (b)

    a request in the form numbered 6 in the First Schedule, with such variations as the circumstances require, for the further transmission of the document and the copy to the government of the country in which leave to serve the document has been given.

• (3)

  The party bespeaking a copy of a document for service under this rule shall, at the time of bespeaking the copy, file a praecipe in the form numbered 8 in the First Schedule.

• (4)

  An official certificate, or declaration upon oath or otherwise, transmitted through the diplomatic channel by the government or a court of a country to which this rule applies, to the High Court, if it certifies or declares the document:

  • (a)

    to have been personally served; or

  • (b)

    to have been duly served upon the defendant in accordance with the law of that country, or words to that effect;

   is sufficient proof of that service, and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these rules in that behalf.

• (5)

  Where an official certificate or declaration, transmitted to the Court in manner provided in the last preceding subrule, certifies or declares that efforts to serve a document have been without effect, the Court or a Justice may, upon the ex parte application of the plaintiff, order in the form numbered 42 in the First Schedule, with such variations as the circumstances require, that the plaintiff may bespeak a request for substituted service of the document.

• (6)

  A request for substituted service of a document under this rule may be bespoken by the plaintiff, at the Registry out of which the document has been issued, upon filing a praecipe in the form numbered 8 in the First Schedule, and the document and a copy of the document and of the order shall be sealed and transmitted to the Attorney-General in the manner described in subrule (2) of this rule together with a request in the form numbered 9 in the First Schedule, with such variations as the circumstances require.

8Other originating processes

• (1)

  Service outside the Commonwealth may be allowed by the Court or a Justice of an originating process, other than a writ of summons, or of a summons, order or notice in interlocutory proceedings, in a case in which it is, in the opinion of the Court or Justice, proper to make such an order.

• (2)

  Rules 3, 4, 5, 6 and 7 of this Order apply, mutatis mutandis, to service allowed pursuant to this rule.

9Service of Australian documents in Convention countries

• (1)

  Where service is authorized by or under these rules of a writ of summons or other originating process, or of a summons, order, notice or other document, in a foreign country with which a Convention in that behalf has been made and extended to the Commonwealth, the procedure specified in the succeeding subrules of this rule shall, subject to any special provisions contained in the Convention, be adopted.

• (2)

  The party bespeaking the service shall file in the Registry out of which the writ of summons or other originating process is to be issued, or in which the matter is pending, a request in the form numbered 8 in the First Schedule, with such variations as the circumstances require.

• (3)

  The request shall state the medium through which it is desired the service shall be effected, that is, whether:

  • (a)

    directly through the British or Australian Consul; or

  • (b)

    through a foreign judicial authority.

• (4)

  Subject to the next succeeding subrule, the request shall be accompanied by:

  • (a)

    the original document;

  • (b)

    a translation of that document in the language of the country in which service is to be effected certified by or on behalf of the person making the request;

  • (c)

    a copy of the document and the translation for every person to be served; and

  • (d)

    such further copies as the Convention requires.

• (5)

  Where the service is required to be made on a British subject directly through the British or Australian Consul, the translation and copies of the translation need not accompany the request unless the Convention expressly requires that they should do so.

• (6)

  The document to be served shall be sealed with the Office seal and shall be forwarded by the Registrar of the Registry referred to in subrule (2) of this rule to the Attorney-General for transmission to the foreign country.

• (7)

  An official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by a British or Australian consular authority, to the Court, establishing the fact and the date of the service of the document, is sufficient proof of that service and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these rules in that behalf.

• (8)

  Where a writ of summons or other originating process, or notice of a writ or other process, is served pursuant to this rule and an official certificate of service is produced, an endorsement of service under Order 9, rule 15, is not required.

10Validity of other service

 The last preceding rule does not apply to, or render invalid or insufficient, a mode of service in a foreign country, with which a Convention has been made, which is otherwise valid or sufficient according to the procedure of the Court and which is not expressly excluded by the Convention made with that foreign country and extended to the Commonwealth.

11Air mail

 The Court or a Justice may for the purpose of effecting service give leave to transmit any document by air mail.

12British subjects residing outside the Commonwealth

 Where the party to be served outside the Commonwealth is a British subject, the Court or a Justice, upon being satisfied by affidavit:

• (a)

  that the subject-matter of the proceeding is such that, under the provisions of this Order, the originating process was such as could properly be served outside the Commonwealth;

• (b)

  that it was personally served upon the party, or that reasonable efforts were made to effect personal service of it upon the party and that it came to his knowledge; and

• (c)

  that he wilfully neglects to appear in the proceeding, or that he is living out of the jurisdiction of the Court in order to defeat and delay the plaintiff;

 may direct, from time to time, that the plaintiff may proceed in such manner, and subject to such conditions, as the Court or a Justice thinks fit.

13Actions under Civil Aviation (Carriers’ Liability) Act 1959

• (1)

  The provisions of this rule apply in any case where, for the purpose of an action brought by virtue of the Civil Aviation (Carriers’ Liability) Act 1959, leave is given to serve notice of a writ of summons upon a defendant (other than the Commonwealth), being:

  • (a)

    a Party to the Convention as defined by section 10 of that Act; or

  • (b)

    a High Contracting Party to the Convention as defined by section 20 of that Act.

• (2)

  The notice shall specify the time for entering an appearance as limited in pursuance of rule 4 of this Order.

• (3)

  The notice shall be sealed with the Office Seal and shall be transmitted to the Attorney-General, together with:

  • (a)

    a copy of the notice translated into the language of the country of the defendant; and

  • (b)

    a request, in the form numbered 7 in the First Schedule, with such variations as the circumstances require, for the further transmission of the notice and the copy to the government of that country.

• (4)

  The party bespeaking a copy of a document for service under this rule shall, at the time of bespeaking the copy, file a praecipe in the form numbered 8 in the First Schedule.

• (5)

  An official certificate transmitted by the Attorney-General to the Court certifying that the notice was delivered on a specified date to the government of the country of the defendant, shall be deemed to be sufficient proof of service and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these rules in that behalf.

• (6)

  After entry of appearance by the defendant or, if no appearance is entered, after the expiry of the time limited for appearance, the action may proceed to judgment in all aspects as if the defendant had, for the purposes of the action, waived all privilege and submitted to the jurisdiction of the Court.

• (7)

  Where it is desired to serve or deliver a summons, order, notice or other document in the proceedings on the defendant outside the Commonwealth, the provisions of this rule apply, with such variations as the circumstances require.

14Power of Court to cause persons to be informed

 These rules do not in any way prejudice or affect the practice or power of the Court under which, when lands, funds, choses in action, rights or property within the Commonwealth are sought to be dealt with or affected, the Court may, without affecting to exercise jurisdiction over a person outside the Commonwealth, cause that person to be informed of the proceedings with a view to that person having an opportunity of opposing, claiming or otherwise intervening.

Order 11Appearance

  

1Appearance in Registry

 Except in cases otherwise provided for by these rules of the High Court of Australia Act 1979 or the Judiciary Act, a defendant shall enter his appearance in the Registry out of which the writ or other originating process was issued.

2Where defendant does not reside etc in district

 Where a defendant does not reside or carry on business in the State or Territory in which the Registry out of which the process was issued is situated, he may appear either in that Registry or in the Principal Registry.

3Mode of entering appearance; memorandum and duplicate

• (1)

  A defendant shall enter his appearance to a writ of summons or other originating process, to which an entry of an appearance is required, by delivering to the proper officer:

  • (a)

    a memorandum of appearance in writing dated on the day of its delivery containing the name of the defendant’s solicitor or stating that the defendant defends in person; and

  • (b)

    a duplicate of the memorandum of appearance.

• (2)

  The officer shall:

  • (a)

    seal the memorandum of appearance and the duplicate memorandum of appearance with a seal bearing the words “Appearance entered” and showing the date on which the seal is affixed; and

  • (b)

    return the duplicate memorandum of appearance to the person entering the appearance.

• (3)

  The duplicate memorandum of appearance so sealed shall be a certificate that the appearance was entered on the day indicated by the seal.

4Conditional appearance

 Where a defendant desires to object:

• (a)

  to the jurisdiction;

• (b)

  to the writ or other originating process; or

• (c)

  to the service of the writ or other process or of a notice of the writ or other process;

 he may, before the time limited for appearance has expired, obtain leave from a Justice on an ex parte application to enter a conditional appearance.

5Motion to set aside writ

 A defendant, before appearing, may, without entering, or obtaining an order to enter, a conditional appearance, take out a summons or serve notice of motion:

• (a)

  to set aside the writ or other originating process;

• (b)

  to set aside the service upon him of the writ or other originating process or of notice of the writ or other originating process; or

• (c)

  to discharge the order authorizing that service.

6Notice of entry to plaintiff

• (1)

  A defendant shall, on the day on which he enters an appearance, give notice of his appearance, in the form numbered 16 or the form numbered 19 in the First Schedule, to the plaintiff’s solicitor or, if the plaintiff sues in person, to the plaintiff himself.

• (2)

  The notice may be given either by notice in writing served at the address for service, or by pre-paid letter directed to that address and posted on the day of entering appearance in due course of post, and shall, in either case, be accompanied by a sealed duplicate memorandum of appearance.

7Entry by defendant entitled to enter at Principal Registry

• (1)

  Where a defendant is entitled to enter an appearance either at a District Registry or at the Principal Registry and he has entered it at the Principal Registry, the plaintiff shall, upon receipt of the notice and sealed duplicate memorandum of appearance referred to in the last preceding rule, forthwith give notice in writing to the defendant’s solicitor or, if the defendant appears in person, to the defendant himself, of a proper place, which is not more than three miles from the Principal Registry, to be his address for service, where notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the plaintiff.

• (2)

  Notice under this rule may be given by serving it at the address for service of the defendant or by pre-paid letter directed to that address.

• (3)

  A copy of the notice shall be filed by the plaintiff in the Principal Registry.

8Defendant’s address for service

• (1)

  The solicitor of a defendant appearing by a solicitor shall state in the memorandum of appearance his name and place of business or the name of his firm and its place of business.

• (2)

  Where the place of business so stated is not more than three miles from the office of the Registry in which the appearance is entered, it shall be the address for service of the defendant.

• (3)

  Where that place of business is more than three miles from the office of that Registry, the solicitor shall also state in the memorandum of appearance the address of a proper place, which is not more than three miles from that office, to be the address for service of the defendant.

• (4)

  Where the solicitor is acting as agent of another solicitor, he shall add to his own name and place of business, or firm name and its place of business, the name and place of business of the principal solicitor, or the name of the firm of the principal solicitor and its place of business.

9Defendant in person

• (1)

  A defendant appearing in person shall state in the memorandum of appearance his place of residence.

• (2)

  Where his place of residence is not more than three miles from the office of the Registry in which he enters his appearance, it shall be his address for service.

• (3)

  Where that place of residence is more than three miles from the office of that Registry, he shall also state in the memorandum of appearance the address of a proper place, which is not more than three miles from that office, to be his address for service.

10Address for service

 Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the defendant at his address for service.

11Memorandum irregular, address fictitious

• (1)

  Where a memorandum of appearance does not contain a proper address for service, it shall not be received.

• (2)

  Where a memorandum of appearance contains an address for service which is illusory or fictitious, the appearance may be set aside by the Court or a Justice on the application of the plaintiff, and the plaintiff may be permitted to proceed by filing proceedings in the Registry in which the matter is then pending without further service.

12Form of memorandum of appearance

 A memorandum of appearance shall be in such of the forms numbered 14, 15, 18, 20, 21 and 22 in the First Schedule as is applicable, with such variations as the circumstances require.

13Officer to enter memorandum

 Upon receipt of a memorandum of appearance, the proper officer shall forthwith enter the appearance in the Cause Book or Court Book, as the case may be.

14Appearance at Principal Registry to be notified to District Registry

 Where a defendant is entitled to enter an appearance either at a District Registry or at the Principal Registry and he enters it at the Principal Registry, the Principal Registrar shall on the same day notify the Registrar of the District Registry by telegraph that the appearance has been entered.

15Defendants appearing by same solicitor

 Where two or more defendants appear by the same solicitor and at the same time, the names of the defendants so appearing shall be inserted in one memorandum of appearance.

16Solicitor not entering appearance

 Where a solicitor fails to enter an appearance or to put in bail or to pay money into Court in lieu of bail in an Admiralty action in rem in pursuance of his written undertaking so to do on behalf of a party, he is liable to attachment.

17Bail bond in Admiralty actions

 In an Admiralty action in rem, bail may be taken before:

• (a)

  the Principal Registrar;

• (c)

  a Commissioner to administer oaths for the purposes of the High Court or the Supreme Court of a State or Territory; or

• (d)

  a Justice of the Peace or Notary Public;

 and in every case the sureties shall justify.

18Time for filing bond

• (1)

  Except by consent, a bail bond shall not be filed until after the expiration of twenty-four hours from the time when a notice, containing the names and addresses of the sureties and of the Registrar, Commissioner, Justice of the Peace or Notary Public before whom the bail was taken, has been served upon the adverse solicitor.

• (2)

  A copy of the notice, verified by affidavit, shall be filed with the bail bond.

19Commissioner in certain cases not to take bail

 A Commissioner, Justice of the Peace or Notary Public shall not take bail on behalf of a person for whom he, or a person in partnership with him, is acting as solicitor or agent.

20Commission recoverable on taxation

• (1)

  A commission or fee paid to a person becoming surety to a bail bond, or otherwise giving security, may be recovered on taxation.

• (2)

  The amount of the commission or fee shall not, in the aggregate, exceed one per centum on the amount in which bail is given.

21Time for appearance

• (1)

  A defendant may appear at any time before judgment.

• (2)

  Where a defendant appears after the time limited by the writ or other originating process for appearance, he shall on the same day give notice of his appearance to the plaintiff’s solicitor or, if the plaintiff sues in person, to the plaintiff himself.

• (3)

  Unless the Court or a Justice otherwise orders, the defendant shall not be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the tenor of the writ or other originating process.

22Admiralty intervention

 In an Admiralty action in rem, a person not named in the writ may intervene and appear on filing an affidavit showing that he is interested in the res under arrest or in the fund in Court.

23Recovery of land

 A person not named as a defendant in a writ of summons for the recovery of land may, by leave of the Court or a Justice, appear and defend on filing an affidavit showing that he is in possession of the land either by himself or by his tenant.

24Landlord appearing

 A person appearing to defend an action for the recovery of land as landlord, in respect of property of which he is in possession only by his tenant, shall state in his appearance that he appears as landlord.

25Recovery of land, person not named defendant

• (1)

  Where a person not named as defendant in a writ of summons for the recovery of land has obtained leave of the Court or a Justice to appear and defend, he shall enter an appearance, in accordance with the preceding rules of this Order, entitled in the action against the party named in the writ as defendant, and shall forthwith give notice of that appearance to the plaintiff’s solicitor, or, if the plaintiff sues in person, to the plaintiff himself.

• (2)

  In subsequent proceedings, that person shall be named as a party defendant to the action.

26Recovery of land, limiting defence

• (1)

  A person appearing to a writ of summons for the recovery of land is at liberty to limit his defence to a part only of the property mentioned in the writ.

• (2)

  Where a person so limits his defence, he shall describe that part of the property to which he limits his defence in his memorandum of appearance or in a notice which shall be:

  • (a)

    entitled in the action;

  • (b)

    in the form numbered 17 in the First Schedule, with such variations as the circumstances require;

  • (c)

    signed by him or his solicitor; and

  • (d)

    served on the plaintiff within three days after appearance.

• (3)

  An appearance, where the defence is not limited in accordance with this rule, shall be deemed an appearance to defend for the whole.

Order 12Default of appearance

  

1Default of appearance by infant or person of unsound mind; notice of application

• (1)

  Where an appearance has not been entered to a writ of summons or other originating process for a defendant who is an infant or a person of unsound mind, the plaintiff shall, before further proceeding against the defendant, apply to the Court or a Justice for an order that some proper person be assigned guardian of the defendant, by whom he may appear and defend.

• (2)

  The order shall not be made unless it appears on the hearing of the application:

  • (a)

    that the writ of summons or other originating process was duly served; and

  • (b)

    that, after the expiration of the time allowed for appearance and at least seven clear days before the day in the notice named for hearing the application:

    • (i)

      notice of the application was served upon or left at the place of residence of the person with whom or under whose care the defendant was at the time of serving the writ of summons or other originating process; and

    • (ii)

      where the defendant is an infant not residing with or under the care of his father or guardian, and the Court or Justice at the time of hearing the application does not dispense with such service, notice of the application was served upon or left at the place of residence of the father or guardian, if any, of the infant.

• (3)

  Where a guardian has been appointed, he has the same time for appearance after the service of the order on him as if it were a writ of summons.

2Default of appearance generally

 Where a defendant fails to appear to a writ of summons or other originating process and the plaintiff is desirous of proceeding upon default of appearance under any of the succeeding rules of this Order or under Order 15, rule 1, the plaintiff shall, before taking proceedings upon default, file an affidavit of service, or of notice in lieu of service, as the case may be.

3Liquidated demand endorsed

 Where the writ of summons is endorsed for a debt or liquidated demand only, and the defendant fails, or all the defendants, if more than one, fail, to appear to the writ, the plaintiff may enter final judgment for a sum not exceeding the sum claimed by the writ, together with interest, if so claimed, to the date of the judgment, and costs.

4Liquidated demand; several defendants

 Where the writ of summons is endorsed for a debt or liquidated demand only, and there are several defendants, of whom one or more appears or appear to the writ, and another or others of them fails or fail to appear, the plaintiff may enter final judgment, as provided by the last preceding rule, against a defendant who has not appeared, and may issue execution upon that judgment without prejudice to his right to proceed with the action against a defendant who has appeared.

5Detention of goods

• (1)

  Where the writ is endorsed with a claim for pecuniary damages only, or for detention of goods, with or without a claim for pecuniary damages, and the defendant fails, or all the defendants, if more than one, fail, to appear to the writ, the plaintiff may enter interlocutory judgment.

• (2)

  The value of the goods and the damages, or either of them, as the case may be, in respect of the causes of action disclosed by the endorsement on the writ of summons, shall be assessed by the Registrar unless the Court or a Justice otherwise directs.

• (3)

  The Court or a Justice may order a statement of claim or particulars to be filed before an assessment of damages and may order that, instead of assessment by a Registrar, the value and amount of damages, or either of them, shall be assessed in a way which the Court or Justice directs.

6Detention of goods; several defendants

• (1)

  Where the writ is endorsed as in the last preceding rule mentioned, and there are several defendants of whom one or more appears or appear to the writ and another or others of them fails or fail to appear, the plaintiff may enter interlocutory judgment against a defendant so failing to appear.

• (2)

  The value of the goods and the damages, or either of them, as the case may be, may be assessed, as against a defendant suffering judgment by default, at the time of the trial of the action or issue in the action against another defendant, unless the Court or a Justice otherwise directs.

• (3)

  The Court or a Justice may order that, instead of an assessment by a Registrar or proceeding to trial, the value and amount of damages, or either of them, shall be assessed in a way which the Court or a Justice directs.

7Detention of goods, damages and liquidated demand; final and interlocutory judgment

 Where the writ is endorsed with a claim for pecuniary damages, or for detention of goods, with or without a claim for pecuniary damages, and is further endorsed for a debt or liquidated demand, and a defendant fails to appear to the writ, the plaintiff may enter:

• (a)

  final judgment for the debt or liquidated demand, together with interest, if so claimed, to the date of judgment, and costs, against a defendant so failing to appear; and

• (b)

  interlocutory judgment for the value of the goods and the damages, or either of them, as the case may be;

 and proceed according to such of the preceding rules of this Order as are applicable.

8Recovery of land

 Where, in an action for the recovery of land:

• (a)

  an appearance is not entered within the time limited by the writ for appearance; or

• (b)

  an appearance is entered but the defence is limited to part only of the property;

 the plaintiff may enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part to which the defence does not apply, as the case may be.

9Other claims

 Where the plaintiff has endorsed upon a writ for the recovery of land any other claim, he may enter judgment as in the last preceding rule mentioned for the land and may proceed as in the other rules of this Order mentioned as to that other claim so endorsed.

10Plaintiff not proceeding — judgment for costs

• (1)

  Where, in a case to which rules 3 to 8 (inclusive) of this Order do not apply, the defendant fails, or all the defendants, if more than one, fail, to appear, and the plaintiff informs the Court that by reason of payment, satisfaction, abatement of nuisance, or for any other reason he does not desire to proceed, he may, by leave of the Court or a Justice, enter judgment for costs.

• (2)

  Leave under the last preceding subrule shall be obtained on summons in Chambers and the summons shall be filed and served in the manner in which the service of the writ or other originating process was effected or in such other manner as the Court or a Justice directs.

11Setting aside judgment

 Where judgment is entered pursuant to a preceding rule of this Order, the Court or a Justice may set aside or vary that judgment upon just terms.

12Action in District Registry; time for entering judgment

 Where a defendant fails to appear to a writ of summons or other originating process issued out of a District Registry, and the defendant had the option of entering an appearance either in the District Registry or in the Principal Registry, the plaintiff shall not enter judgment for want of appearance until after such time as a letter posted in Melbourne on the day after the day on which the time for appearance expired ought, in due course of post, to have reached him.

13Default of appearance in cases not otherwise specially provided for

 Where, in cases not by the rules of this Order otherwise specially provided for, the party served with the writ or other originating process does not appear within the time limited for appearance, upon the filing by the plaintiff of:

• (a)

  a proper affidavit of service; and

• (b)

  where the writ is not specially endorsed under Order 13, rule 1 or accompanied by or endorsed with a statement of claim under Order 21, rule 1 — a statement of claim;

 the proceeding may continue as if that party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 15.

14Default in Admiralty action

 Where, in an Admiralty action in rem, the defendant does not appear within the time limited for appearance, upon the filing by the plaintiff of:

• (a)

  a proper affidavit of service;

• (b)

  where the writ is not specially endorsed under Order 13, rule 1, or accompanied by or endorsed with a statement of claim under Order 21, rule 1, a statement of claim; and

• (c)

  a certificate of non-appearance;

 the action may, on the expiration of twenty-one days from the service of the writ, be set down for judgment by default.

15Default in Admiralty action

 Where an Admiralty action in rem, upon default of appearance, comes before a Justice, he may, if satisfied that the plaintiff’s claim is well founded:

• (a)

  pronounce for the claim with or without a reference to a Registrar, or to a Registrar assisted by merchants;

• (b)

  order the property to be appraised and sold, with or without previous notice, and the proceeds to be paid into court; or

• (c)

  make such order as he thinks just.

16Default of appearance to originating summons

• (1)

  Where a defendant or respondent to an originating summons to which an appearance is required to be entered fails to appear within the time limited, the plaintiff may apply to the Court or a Justice for an appointment for the hearing of the summons.

• (2)

  Upon a certificate that an appearance has not been entered, the Court or Justice shall appoint a time for the hearing of the summons upon such conditions (if any) as it or he thinks fit.

17Judgment against one not to prejudice right against other defendant

 Where a plaintiff enters judgment under the provisions of this Order against a defendant who fails to appear, that entry of judgment does not, nor does the issue of execution on the judgment, prejudice his right to proceed against another defendant.

Order 13Summary relief

  

1Special endorsement

• (1)

  This Order applies to actions:

  • (a)

    in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising:

    • (i)

      upon a contract, express or implied (as, for instance, on a bill of exchange, promissory note or cheque, or other simple contract debt);

    • (ii)

      on a bond or contract under seal for payment of a liquidated amount of money;

    • (iii)

      on a statute, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty;

    • (iv)

      on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand; or

    • (v)

      on a trust;

  • (b)

    in which a landlord seeks to recover possession of land, with or without a claim for rent or mesne profits, against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such a tenant;

• (1)

  Copies of an affidavit intended to be used by a party in a proceeding in Court or in Chambers or before a Registrar shall be delivered to all other parties at the same time as the notice, if any, of the application to be made in the proceeding, or a reasonable time before the hearing.

• (2)

  When a party intends to adduce oral evidence on the hearing of an application or upon a reference, he shall serve on all other parties notice of that intention a reasonable time before the hearing.

24Alterations in accounts to be initialled

 An alteration in an account verified by affidavit to be left at Chambers or in a Registry shall be marked with the initials of the person before whom the affidavit is sworn or taken, and the alteration shall not be made by erasure.

Order 40Exhibits

  

1List of exhibits

• (1)

  The Associate, Registrar or other proper officer:

  • (a)

    shall take charge of every document or object put in as an exhibit during the trial or hearing of any proceeding;

  • (b)

    shall mark or label every exhibit so as to indicate the party by whom the exhibit was put in and so that all exhibits put in by a party are lettered or numbered consecutively; and

  • (c)

    shall cause a list of all the exhibits in the proceeding to be made in accordance with form numbered 50 in the First Schedule.

• (2)

  The list of exhibits when completed shall form part of the record of the proceeding.

• (3)

  For the purpose of this Order, a bundle of documents may be treated and counted as one exhibit.

2Office copy of list of exhibits

• (1)

  A party may apply for and, on payment of the prescribed fee, obtain an office copy of the list of exhibits for the purpose of an appeal.

• (2)

  Where there is an appeal, the appellant shall include an office copy of the list of exhibits amongst the documents supplied to the proper officer for the purpose of the appeal.

Order 41New trials

  

1New trial of cause heard without a jury

• (1)

  If, after a trial or hearing of a cause or matter before a Justice without a jury, an order setting aside the judgment or a finding, or directing a new trial, is sought upon the ground of discovery of fresh evidence, fraud, surprise or any other ground not falling within the Appellate Jurisdiction, the application shall be made to a Full Court by motion on notice.

• (2)

  The application may be made although an appeal against the judgment is instituted by the applicant and, in such a case, the proceedings may be combined.

2New trial of cause tried with a jury

• (1)

  An application for a new trial, or to set aside a verdict, finding or judgment, in a cause or matter in which a verdict has been found or a finding made by a jury, shall be made to a Full Court by motion on notice.

• (2)

  No rule nisi or order to show cause, or other formal proceeding, other than the notice of motion, shall be made or taken.

• (3)

  The notice of motion shall state the grounds of the application and whether the whole or part only of the verdict, finding or judgment is complained of.

3Service of notice of motion

• (1)

  The notice of motion shall be served upon the party in whose favour the judgment was given within twenty-one days after the conclusion of the trial, or the date of the pronouncing of the judgment upon further consideration, as the case may be, or within such extended time as the Court or a Justice allows.

• (2)

  In the computation of the period referred to in this rule, the time of the vacations shall be included.

4Application of rules relating to appeals

 The provisions of these rules relating to appeals apply, so far as applicable, to applications under this Order.

5Hearing of application

• (1)

  Upon the hearing of an application for a new trial or to set aside the verdict or finding of a jury, the Court may, if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them or for awarding any relief sought, give judgment accordingly, and may for that purpose draw any inference of fact not inconsistent with the findings, if any, of the jury.

• (2)

  If the Court is of opinion that it has not sufficient materials before it to enable it to give judgment, it may direct that the motion stand over for further consideration, and may also direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it thinks fit.

6Evidence of Judge’s direction

 If, upon the hearing of an application for a new trial or to set aside a verdict or finding of a jury, a question arises as to the ruling or direction of the Justice to the jury, the Court shall have regard to the Justice’s notes and to such evidence or materials as the Court deems expedient.

Order 42Motion for judgment

  

1Judgment on motion for judgment

 Except where by an Act or law or by these rules it is provided that judgment may be obtained in any other manner, the judgment of the Court shall be obtained by motion for judgment.

2Setting down motion for judgment where issues have been directed to be tried

• (1)

  Where issues have been ordered to be tried, or issues or questions of fact to be determined in any manner, the plaintiff may set down a motion for judgment as soon as those issues or questions have been determined.

• (2)

  If the plaintiff does not set down such a motion and give notice thereof to the other parties within seven days after his right so to do has arisen, then, after the expiration of that period of seven days, a defendant may set down a motion for judgment and give notice thereof to the other parties.

3Where some only of issues directed have been tried, any party may apply to set down action on motion for judgment

• (1)

  Where:

  • (a)

    issues have been ordered to be tried, or issues or questions of fact to be determined in any manner; and

  • (b)

    some only of those issues or questions of fact have been tried or determined;

   a party who considers that the result of the trial or determination:

  • (c)

    renders the trial or determination of the others of them unnecessary; or

  • (d)

    renders it desirable that the trial or determination of them should be postponed;

   may apply to the Court or a Justice for leave to set down a motion for judgment without waiting for that trial or determination.

• (2)

  The Court or a Justice may, if satisfied of the expediency of so doing, give such leave, upon such terms, if any, as appears just, and may give any directions which appear desirable as to postponing the trial of the other issues of fact.

4Motion to be set down within one year

 A motion for judgment shall not, except by leave of the Court or a Justice, be set down after the expiration of one year from the time when the party seeking to set down the motion first became entitled so to do.

5Where judgment given etc on motion for judgment

 Upon a motion for judgment, the Court may draw all inferences of fact, not inconsistent with the verdict or findings of the jury if the trial was with a jury, and:

• (a)

  if satisfied that it has before it all the materials necessary for finally determining the questions in dispute, or any of them, or for awarding any relief sought, give judgment accordingly; or

• (b)

  if it is of opinion that it has not sufficient materials before it to enable it to give judgment, direct the motion to stand over for further consideration, and direct such issues or questions to be tried or determined, and such accounts and inquiries to be taken and made, as it thinks fit.

Order 43Entry of judgments

  

1Mode of entry

• (1)

  Every judgment shall be entered by the proper officer in a book kept for that purpose.

• (2)

  The party entering the judgment shall deliver to the officer a copy of the pleadings, if any, not already filed.

2Recital regarding service

 In a judgment, whether in default of appearance or defence or after hearing or trial or otherwise, the party entering the judgment is, if he so desires, entitled to have recited in the judgment a statement as to the manner and place in and at which the service of the writ of summons or other originating process by which the proceedings were commenced was effected.

3Date of judgment pronounced in Court

• (1)

  When a judgment is pronounced by the Court, the entry of the judgment shall, subject to the next succeeding subrule, be dated as of the day on which the judgment is pronounced, unless the Court otherwise orders, and the judgment shall take effect from that date.

• (2)

  By special leave of the Court, a judgment may be ante-dated or post-dated.

4Date of entry of other judgments

 In any other case the entry of judgment shall be dated as of the day on which the requisite documents are left with the proper officer for the purpose of the entry, and the judgment shall take effect from that date.

5Time to be stated for doing any act ordered to be done

 Where a judgment or order made in a proceeding requires a person to do an act:

• (a)

  it shall state the time, or the time after service of the judgment or order, within which the act is to be done; and

• (b)

  there shall be endorsed upon the copy of the judgment or order served upon the person required to obey it a memorandum in the following words or to the following effect:

   “If you, the within-named A.B., neglect to obey this judgment (or order) by the time limited in it, you will be liable to process of execution for the purpose of compelling you to obey the judgment (or order).”.

6Judgment on production of affidavit or document

 When it is provided that a judgment may be entered upon the filing of an affidavit or production of a document, the officer shall examine the affidavit or document produced and, if it is regular and contains all that is by law required, he shall enter judgment accordingly.

7Judgment on production of order or certificate

 When it is provided that a judgment may be entered pursuant to an order or certificate, or to the return of a writ, the production of the order or certificate sealed with the seal of the Court, or of the return, is sufficient authority to the officer to enter judgment accordingly.

8Judgment on Registrar’s certificate

 When reference is made to a Registrar to ascertain the amount for which final judgment is to be entered, the Registrar’s certificate shall be filed in the Registry in which the proceeding is then pending before judgment is entered.

9Judgment by consent when party appears by a solicitor

 When a party sues or appears by a solicitor, a consent order for entering judgment against that party shall not be made unless the consent of the party is given by his solicitor or the agent of his solicitor.

10Consent of party in person

 When a plaintiff sues in person, or a defendant has not appeared or has appeared in person, a consent order for entering judgment against that plaintiff or defendant, as the case may be, shall not be made unless he attends before a Justice and gives his consent in person, or unless his written consent, if he is not a barrister or solicitor, is attested by a solicitor acting on his behalf.

11Entry of satisfaction

• (1)

  A memorandum of satisfaction of a judgment may be entered upon a consent to the entry being filed in the Registry in which the proceeding is then pending.

• (2)

  The consent to the entry shall be signed by the party entitled to the benefit of the judgment and attested and verified by the affidavit of the attesting witness.

• (3)

  lf the attesting witness is not a barrister or solicitor, the approval of a Justice shall be obtained, and that approval may be endorsed on the affidavit.

Order 43AInterest on judgments

  

1 Every judgment debt under a judgment of the High Court of Australia shall carry interest at the prescribed rate of interest applicable to judgments of the Supreme Court of the State or Territory in which judgment is entered, from the date of entry of judgment.

2  Every award of costs under a judgment of the High Court of Australia shall carry interest at the prescribed rate of interest applicable to judgments of the Supreme Court of the State or Territory in which the proceeding is pending, from the date of the certificate of taxation quantifying same.

Order 44Drawing up judgments and orders

  

1By whom judgments and orders to be drawn up

 A judgment or order, whether given or made in Court or in Chambers, or by default, shall be drawn up by a Registrar, or under his direction, unless otherwise directed by the Court or a Justice.

2Documents to be filed before judgment or order signed

 A judgment or order founded, in whole or in part, on a petition, affidavits, written admissions or other written documents, shall not be signed until the petition, admissions, affidavits or other written documents have been filed in the Registry in which the proceeding is pending.

3Documents to be left with Registrar on bespeaking judgment or order

 At the time of bespeaking a judgment or order, the party bespeaking it shall leave with the Registrar his counsel’s brief, if any, and such other documents as are required by the Registrar for the purpose of enabling him to draw up the judgment or order.

4Registrar may require party to submit draft

• (1)

  The Registrar may require the party bespeaking a judgment or order to prepare a draft of it and leave the draft in the Registry for his use or assistance.

• (2)

  The Registrar may accept the draft so prepared and left as his own draft of the judgment or order, with such alterations, if any, as he thinks fit.

5Time for bespeaking judgment or order

 A judgment or order shall be bespoken, and the requisite documents mentioned in rule 3 of this Order shall be left with the Registrar, within seven days after the judgment or order is finally given or made by the Court or Justice.

6Where judgment or order not bespoken

 If a judgment or order is not bespoken and the requisite documents are not left with the Registrar within the time prescribed by the last preceding rule, the Registrar may decline to draw up the judgment or order without the direction of the Court or a Justice.

7Appointment for settling judgment or order

 At the time of delivering out the draft of a judgment or order which, in the opinion of the Registrar, ought to be settled in the presence of the parties, he shall deliver out to the party on whose application the draft has been prepared an appointment in writing of a time for settling it.

8Notice of appointment to be served on opposite party

• (1)

  A notice of the appointment shall be served on the opposite party three clear days at least before the time appointed for settling the draft.

• (2)

  The party serving the notice and the party served shall attend the appointment and shall produce to the Registrar counsel’s briefs, if any, and such other documents as are necessary to enable him to settle the draft.

9Service of notice of appointment

 Service of the notice of appointment shall be effected by leaving it at the address for service of the party to be served or by transmitting it by post to the party at that address.

10Proof of service

 At the time appointed for settling the draft, the Registrar shall satisfy himself, in such manner as he thinks fit, that service of the notice of appointment has been duly effected, and for that purpose he may require evidence on oath.

11Appointment for passing judgment or order

• (1)

  When the draft has been settled by the Registrar, he shall name a time in the presence of several parties, or else deliver out an appointment in writing of a time, for passing the judgment or order.

• (2)

  Where he delivers out an appointment in writing of a time, notice of the appointment shall be served by the party to whom the appointment is delivered on the opposite party, and the service shall be proved in the manner prescribed by the last two preceding rules of this Order with reference to an appointment to settle the draft of a judgment or order.

12Default in attending appointment with documents

• (1)

  If a party fails:

  • (a)

    to attend the Registrar’s appointment for settling the draft of a judgment or order; or

  • (b)

    fails to produce his counsel’s briefs and such other documents as the Registrar may require to enable him to settle the draft or to pass the judgment or order;

   the Registrar may proceed to settle the draft, or to pass the judgment or order, in his absence.

• (2)

  Where the Registrar proceeds under the last preceding subrule, he may:

  • (a)

    dispense with the production of counsel’s briefs or of the requisite documents or papers and act upon such evidence, as he thinks fit, of the appearance by counsel of the party failing to attend; or

  • (b)

    require the matter to be mentioned to the Court or a Justice.

13Adjournment of appointments

 The Registrar may adjourn an appointment for settling the draft of a judgment or order, or for passing a judgment or order, to such time as he thinks fit, and the parties who attended the appointment shall attend upon the adjournment without further notice.

14Settling and passing judgment or order without appointment

 Notwithstanding the preceding rules of this Order, the Registrar may, where he thinks it expedient so to do, settle and pass a judgment or order without making an appointment for either purpose and without notice to any party.

15Party to engross judgment or order

 A judgment or order when settled and passed shall be engrossed by the party having the carriage of the judgment or order.

16Judgments and orders to be filed; duplicates

• (1)

  Every judgment and order shall be kept in the Registry as a record.

• (2)

  A duplicate of a judgment or order shall, one clear day after it has been entered, or, in urgent cases, sooner if so directed by the Registrar, be signed and sealed by the Registrar, without fee, and delivered to the party having the carriage of the judgment or order.

• (3)

  When a rule or order or the practice of the Court requires the production of a judgment or order, it is sufficient to produce the duplicate.

• (4)

  A further duplicate may at any time, with the sanction of the Registrar and on payment of the prescribed fee, be issued on production of the duplicate first issued or on the Registrar being satisfied of the loss of that duplicate and that the person applying is properly entitled to it.

• (5)

  A judgment or order shall not be amended except on production of the duplicate or duplicates, or the duplicate last issued, as the case may be, which shall, after the original order has been amended and under the direction of the Registrar, be amended in accordance with the amendment of the original order.

• (6)

  The amendment in the duplicate shall be sealed under the direction of the Registrar.

17Certificates for special allowance

 If the Registrar is requested to do so by a party at the time of an attendance before him for the purpose of settling the draft of a judgment or order or of passing a judgment or order, he shall certify, for the purposes of the taxation of costs, whether in his opinion a special allowance ought to be made on taxation of costs in respect of the attendance, or in respect of the preparation of the draft by a party whom he has requested to prepare it, on the ground that the judgment or order is of a special nature or of unusual length or difficulty.

18When orders need not be drawn up

• (1)

  When an order is made which does not embody any special terms or include any special directions, but only:

  • (a)

    gives leave to an officer of the Court, other than a solicitor, to do some act;

  • (b)

    enlarges the time for taking a proceeding or for doing an act;

  • (c)

    gives leave:

    • (i)

      to issue a writ or originating process, other than a writ of attachment;

    • (ii)

      to amend a writ or originating process or pleadings;

    • (iii)

      to enter a judgment or order nunc pro tunc; or

    • (iv)

      to file a document or take a document off the file; or

  • (d)

    directs a clerical mistake or an error appearing in a judgment or order to be corrected;

   it is not necessary to draw up the order unless the Court or Justice so directs.

• (2)

  When, under the last preceding subrule, it is not necessary to draw up an order, the production of a note or memorandum of the order, which may be made upon any document filed in the proceeding, signed or initialled by the Justice or Registrar is sufficient authority for the enlargement of time, issue, amendment, entry, filing or other act.

• (3)

  A direction that the costs of such an order shall be costs in a cause or matter shall be deemed a special direction within the meaning of this rule.

• (4)

  The person, or solicitor of the person, on whose application the order is made shall forthwith give notice in writing of the order to such person, if any, as would, if this rule had not been made, have been required to be served with the order.

19Date of order

 An order which is drawn up shall be dated as of the day on which it was made, unless the Court or a Justice otherwise directs, and shall take effect accordingly.

20Authentication

• (1)

  A judgment or order shall be marked to show by whom it was made.

• (2)

  An order made in Chambers is sufficiently authenticated if signed by the Registrar and sealed in accordance with the provisions of Order 58 with the Office Seal.

• (3)

  A judgment or order, other than an order made in Chambers, shall be signed by the Registrar and sealed in accordance with the provisions of Order 58 with the Office Seal.

21Entry of judgments and orders etc

• (1)

  A judgment or order, when settled and passed, shall be filed by the party having the carriage thereof.

• (2)

  An entry of the filing shall be made in books to be kept for that purpose.

• (3)

  A judgment or order when filed shall be deemed to be duly entered, and the date of the filing shall be deemed the date of entry.

• (4)

  In the case of a procedure order drawn up in Chambers, entry of the order is not necessary before an attachment can be issued for disobedience of it.

• (5)

  An order which is not required to be formally drawn up before being acted upon need not be entered unless it becomes necessary to serve the order for any purpose.

22Application to add to or vary

 A party may, within seven days after a draft judgment or order has been settled by the Registrar, apply to the Court or Justice to add to or alter it for the purpose of making it correspond with the judgment or order of the Court as pronounced.

23Consent orders

• (1)

  A written consent of the parties to a proceeding, or their solicitors, to the making of an order in the proceeding may be filed in the Registry in which the proceeding is pending.

• (2)

  Notwithstanding anything contained in these rules, upon the written consent being so filed, the Registrar shall bring the matter before a Justice who, if he thinks fit, may, without any other application being made to him, direct the Registrar to draw up, sign and seal an order in accordance with the terms of the consent.

• (3)

  The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Justice.