Industrial Relations Commission Rules 1996 (NSW)
These Rules may be cited as the Industrial Relations Commission Rules 1996.
These Rules commence on 2 September 1996.
These Rules are divided as follows:
• PART 1—PRELIMINARY
• PART 2—INDUSTRIAL RELATIONS COMMISSION AND OTHER TRIBUNALS
• PART 3—INITIATION OF PROCEEDINGS
• PART 4—OTHER STAGES OF PROCEEDINGS
• PART 5—DISPUTE NOTIFICATIONS
• PART 6—AWARDS AND CONTRACT DETERMINATIONS
• Division 1—Provisions Relating to Awards
• Division 2—Standard Clauses and Formats
• Division 3—Reprints and Consolidations
• Division 4—Correction
• Division 5—Three Yearly Review
• Division 6—Records of Persons Affected by Awards
• PART 7—ENTERPRISE AGREEMENTS
• PART 8—APPEALS
• Division 1—General
• Division 2—Stated Case
• PART 9—PARTICULARS
• PART 10—INDUSTRIAL COMMITTEES
• PART 11—MOTIONS
• PART 12—APPEARANCE
• PART 13—GENERAL PROCEDURE
• PART 14—SUMMONSES
• PART 15—SERVICE AND NOTICE OF HEARING
• PART 16—AFFIDAVITS
• PART 17—SOLICITORS AND AGENTS
• PART 18—TIME
• PART 19—WITHDRAWALS AND DISCONTINUANCE
• Division 1—Withdrawal of Appearance
• Division 2—Discontinuance
• Division 3—Discontinuance by Commission
• Division 4—Want of Prosecution
• PART 20—AMENDMENT
• PART 21—ADMISSIONS
• PART 22—DISCOVERY AND INSPECTION OF DOCUMENTS
• PART 23—OFFER OF COMPROMISE
• PART 24—EVIDENCE
• PART 25—PRELIMINARY DISCOVERY
• PART 26—PREHEARING CONFERENCES
• PART 27—COSTS
• PART 27A—PROCEEDINGS FOR OFFENCES
• PART 28—PROCEEDINGS TO RECOVER A CIVIL PENALTY
• PART 29—CONTEMPT
• Division 1—Preliminary
• Division 2—Contempt in the face or hearing of the Commission
• Division 3—Motion or proceedings for punishment
• PART 30—MATTERS BEFORE THE REGISTRAR
• Division 1—Preliminary
• Division 2—Reference and Removal
• Division 3—General Powers and Duties
• PART 31—CONCILIATION UNDER SECTION 109
• SCHEDULE 1—GENERAL INSTRUCTIONS FOR FORMS AND DOCUMENTS
• SCHEDULE 2—FORMS
• SCHEDULE 3—ADDITIONAL POWERS OF REGISTRAR
In these Rules, unless the context or subject matter otherwise requires:
In these Rules, words and expressions have the same meaning as they have in the Act.
A reference to a form in these Rules is a reference to a form in Schedule 2 of the Rules.
Schedule 1 of these Rules applies unless the tribunal or the Registrar otherwise directs.
If a form:
(a) is to be completed in a specified manner, or
(b) requires specified information to be included in, attached to or furnished with the form,
the form is not duly completed unless it is completed in that manner and unless it includes, or has attached to or furnished with it, that information.
A document which is not duly completed may, with the approval of the tribunal or the Registrar, be accepted for filing at the Registry.
The Registrar, before accepting a document which is not duly completed for filing, may require the person on whose behalf the document is being filed to give an undertaking to the tribunal that the document will be resubmitted in the proper form within a period as specified by the Registrar.
The seal of the Commission under section 145 (2) must be kept by the Registrar.
A rubber stamp facsimile of the seal may be used instead of the seal for any purpose.
A stamp of the Registrar may be used by the Registrar and any Registry officer as the Registrar may direct.
All proceedings before a tribunal must be commenced in the office of the Registry in Sydney.
Notwithstanding any other provision of these rules, sub-rule (1) of this rule does not apply to the commencement of proceedings before the Chief Industrial Magistrate or other industrial magistrate. Such proceedings shall be commenced in the Office of the Clerk of the Local Court at the Downing Centre, 143–147 Liverpool Street, Sydney.
The Registrar must endorse the date of lodgment on all process.
Where the signature of the Registrar is required on any document, a rubber stamp or other facsimile of that signature may be affixed to the document by such officer as the Registrar authorises.
Any document for filing in the Registry, other than a Notification of Industrial Dispute under Part 5 of these Rules, may also be filed by:
(a) posting to the Registry, or
(b) being left, addressed to the Registry:
(i) in the exchange box of Australian Document Exchange Pty Ltd and of the Registry, or
(ii) in another exchange box for transmission to the exchange box of that Company and the Registry, or
(iii) in a box provided for the purpose in the Registry,
together with a request that it be filed.
Documents filed in proceedings before a tribunal must be accompanied by such number of copies as set out in Clause 18 of Schedule 1 of these Rules.
The office of the Registry in Sydney is to be open for business from 9.30 am to 4.00 pm on all days except Saturdays, Sundays and public holidays.
The hours of business at any other office of the Registry are to be determined by the Registrar.
The office of the Registry in Sydney may be opened at other times by the direction of the Registrar or the President.
Documents relating to proceedings must bear a distinctive serial number.
Subject to subrule (2), a person may not search in the Registry for or inspect any document or thing in any proceedings unless the person:
(a) is a party to those proceedings, or
(b) is seeking to search an application to make or vary an award or determination, or
(c) is seeking to search registers kept under sections 45, 331 or 342, or
(d) is seeking to search copies of part-time work agreements kept by the Registrar under section 78, or
(e) has the leave of the Commission to make the search.
A person who is a party to those proceedings, or who is seeking to search an application to make or vary an award or determination will require leave of the Commission if the application to search applies to proceedings which:
(a) relate to an unfair dismissal application, or
(b) have been conducted privately, or
(c) relate to evidence for which a direction has been given under section 395, or
(d) relate to a matter in which the tribunal has previously directed that confidentiality should be observed, or
(e) are the subject of a direction by the tribunal which dealt with the proceedings that the proceedings or a specified part of the proceedings or a document in the proceedings must not be opened for inspection.
An application for leave of the tribunal to search must set out reasons why the search should be allowed and leave may only be granted where the tribunal is satisfied that that it is appropriate to do so.
An application for leave may be dealt with in Chambers without the appearance of any person.
A tribunal may order to be struck out of any document any matter which is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive.
This Rule is in addition to Rule 121.
Except as otherwise provided, an application to a tribunal must be in or to the effect of the Forms set out in Schedule 2 of the Rules.
In the case of doubt, the originating process may be in a form approved by the Registrar.
In any proceedings between parties, or where a tribunal or the Registrar directs, the originating process must bear a note requiring any party wishing to appear in the proceedings to file a notice of appearance within 7 days of service of the process upon that person.
A tribunal may, at any stage of the proceedings, permit a person to appear notwithstanding failure to file notice of appearance.
An application made to the Commission by a dismissed employee under section 84 of the Act before 1 February 2001 may be:
(a) in or to the effect of Form 7A, or
(b) in or to the effect of Form 8, 9 or 10 (as appropriate) as in force immediately before its repeal by the Industrial Relations Commission Rules (Amendment No 4) 2000.
An application made on or after that date must be in or to the effect of Form 7A.
Where the Commission decides, on its own initiative, to act to resolve any industrial dispute or to exercise any of its functions it may proceed summarily or direct that proceedings be commenced by a summons to show cause.
Such summons must be served by the Registrar upon any person as the Commission may direct.
An applicant who desires that any matter should be dealt with as one of urgency must file an affidavit setting out, briefly but specifically, the reasons for the request.
A copy of the affidavit must be served with the originating process or, if the proceedings before the tribunal have already commenced at the time of the filing of the affidavit, it must promptly be served on each of the other parties.
Where in relation to proceedings before the Commission or a Committee any summons, notice, direction or other document may be signed or given or any extension of time may be granted by the Registrar, it may be signed, given or granted by the President or other Member of the Commission.
An application to the Commission to exercise the powers conferred on it by section 106 or by section 111 must be accompanied by affidavits, stating briefly but specifically the facts, matters and circumstances relied upon in support of the application.
Unless otherwise ordered by the Registrar, the application, together with a copy of the affidavits in support, must be served on the respondent.
Where, within the required period, an appearance has not been entered by a respondent, the applicant may proceed to have the matter determined in the absence of that respondent.
An application to the Commission to exercise the powers conferred on it by section 106 must be in Form 12A and must:
(a) specify in summary the matters of fact and law which form the basis of the application, but not the evidence by which those facts are to be proved, and
(b) contain sufficient information to allow the Commission to carry out its duty to conciliate under section 109 by a succinct summary.
Unless otherwise ordered by the Registrar the application must be served on the respondent.
Where within the required period of time, an appearance has not been entered by a respondent, the applicant may proceed to have the matter determined in the absence of that respondent.
Within 21 days after the date of expiry of the time limited for the respondent’s appearance the respondent must file and serve its reply. Such reply must be in Form 12B and must:
(a) answer each of the matters raised in the application, and
(b) specify in summary any additional matters of fact and law upon which the respondent will rely in opposition to the application, but not the evidence by which those facts are to be proved, and
(c) contain sufficient information to allow the Commission to carry out its duty to conciliate under section 109 by a succinct summary.
An applicant must within 14 days of the time of filing of the reply file and serve a response answering each of the matters specified in the reply pursuant to subrule (4). Such response must be in Form 12C.
The applicant or respondent, as appropriate, must file and serve with the application, reply and response an affidavit verifying the matters of fact set out therein. If the relevant party is a corporation the affidavit may be sworn by an officer or employee of the corporation who is able to verify the matters of fact relied upon.
Nothing in this Rule is to be taken to derogate from or otherwise limit the requirements of or the Commission’s powers under Parts 9 and 13 of these Rules.
The Registrar must, as soon as practicable after the filing or expiration of the time for filing of the response, whichever occurs first, refer the matter for allocation to a Member of the Commission for conciliation in accordance with section 109 or, if the Registrar considers it appropriate, for directions either before the Registrar or a Judge of the Commission.
This Rule takes effect from 31 January 2000. An application to the Commission to exercise the powers conferred on it by section 106 may be commenced and proceeded with pursuant to either Rule 18 or Rule 18A until 6 October 2000 from which time all such applications are to be commenced and proceeded with in accordance with Rule 18A.
An application for an order for the payment of money under Part 2 of Chapter 7 must be signed by:
(a) the person claiming to be entitled to recover money under that Part (
the applicant ) or the solicitor for the applicant, or(b) a person named in section 369 (1) (b) who has the written consent of the applicant to make such application.
Where an application is made by a person named in section 369 (1) (b), the consent of the applicant must be filed with the application. Nevertheless, proof of such consent may, with leave of the Commission, be given at the hearing.
An application under Rule 19 which is made during any proceedings before the Commission and which, pursuant to section 380, is requested to be dealt with under section 379, must be in the form set out in Schedule 2 to the Rules unless the tribunal otherwise orders.
The application must be served promptly on the other parties to the application.
Upon a reference under section 146 (1) (d), 156 (5) (a), 193 (1), 195 (1) and 195 (4) and clause 9 (6) of Schedule 3, the applicant, or such other party as the Registrar directs, must promptly serve upon the other party or parties before the tribunal a copy of:
(a) the reference, and
(b) the appointment for hearing.
The Registrar may also direct that a copy of the transcript of the proceedings (including the exhibits) before the tribunal from which the question or matter has been referred be similarly served.
An affidavit of service must be filed by the applicant promptly after service of the documents has been effected.
A respondent to an application may, but need not, file a notice in reply.
The Commission may, at any stage of the proceedings, direct each or any party to file and serve on each other party a list of matters which that party asserts are in issue in the proceedings.
The Commission may determine any differences between the parties as to the matters in issue.
Where matters in issue have been agreed or determined by the Commission, the Commission may give such directions as to the conduct of the proceedings as it sees fit to ensure that the proceedings are restricted to the matters in issue.
The power in this Rule is in addition to the powers in Rule 84 (2).
Notification of an industrial dispute under section 130 or 332 must state the parties affected by the dispute, the applicable industrial instrument, if any, and give relevant particulars of the dispute.
If a notification indicates that an order in respect of a small claim will be sought under section 380, Rule 20 applies.
Where a notification indicates that an order for reinstatement (or similar) will be sought, particulars of the claim shall be served promptly after notification of the dispute, unless an application under the relevant section is filed.
Notification of a dispute may be given to the Registrar in writing, orally (including by telephone) or facsimile message or by other electronic means.
Where the notification is in writing, it may be also be given to the Registrar in the same way as a document can be filed under Rule 8.
When the notification is given other than in writing, the person giving the notification must confirm the notification in writing as soon as practicable.
A copy of the notification (or its confirmation) must be served promptly by the notifier on the other parties.
A summons to a compulsory conference pursuant to section 132 or 332 may be given in the appropriate form, or may be given to the persons concerned, or their representatives, orally (including by telephone), facsimile message or other electronic means.
A person to whom notice has been given under subrule (1) will be liable to attend or be represented at the compulsory conference.
In this Part:
A tribunal may, if it intends to make an award, direct one or more of the parties to the proceedings or the Registrar to prepare, within the period specified by the tribunal, a draft of the proposed award.
Where the tribunal directs one or more of the parties to the proceedings to prepare a draft, the draft must also be submitted in a computer-readable format.
The applicant, or such person as the tribunal may direct, must file a copy of the award in a computer-readable format promptly after the making of that award.
As soon as practicable after a tribunal hands down an award the Registrar is to prepare a draft of the award.
The Registrar may prepare and settle the draft of the award without consulting or hearing submissions from the parties to the proceedings or any other person who appeared in the proceedings.
The Registrar may (but need not) consult or hear submissions from those parties or other persons.
The tribunal may give directions to the Registrar about any such consultation or hearings.
A Full Bench of the Commission or the Commission constituted by a Presidential Member may direct the use of standard formats for awards, or standard clauses in awards.
The Registrar must publish such directions on the NSW industrial relations website.
A tribunal may depart from a standard clause or format for any reason it considers sufficient.
The Registrar may publish a reprint of an award on the NSW industrial relations website, incorporating amendments to the award in a form certified by the Registrar to be correct on a specified date.
The Registrar may alter the wording or form of an award for the purpose of a reprint, if, in the opinion of the Registrar, the alteration will result in the award:
(a) being expressed in clearer terms or so as to avoid unnecessary technicalities, or
(b) complying with current requirements relating to form or content.
The Registrar may exercise the power of the Commission under section 20 either on request by a person bound by the award or on the initiative of the Registrar, but must not do so:
(a) contrary to any direction of the Commission, or
(b) where the parties to the making of the award object.
The Registrar may alter the wording or form of an award for the purpose of a consolidation, if, in the opinion of the Registrar, the alteration will result in the award:
(a) being expressed in clearer terms or so as to avoid unnecessary technicalities, or
(b) complying with current requirements relating to form or content.
The Registrar must publish a consolidation on the NSW industrial relations website.
This Division applies to any order or award which is published on the NSW industrial relations website.
The power under Rule 38 is additional to the power in Rule 151.
The Registrar may publish on the NSW industrial relations website any correction which is necessary by reason of a clerical or printing error in an order or award as published.
Where there is a mistake in an order or award, arising from an accidental slip or omission, the tribunal, on application by any party or of its own motion, may at any time correct the mistake or error.
A tribunal, on application by any party or of its own motion may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or award.
At least once every three years the Registrar must give notice to the persons on the records maintained under Rule 40 and to the Commission that an award is due to be reviewed under section 19.
Such notice may be given whenever an application for a new award is filed.
The Registrar must maintain records of:
(a) the parties to the making of each award, and
(b) State peak councils, and
(c) registered industrial organisations and other persons who satisfy the Registrar that they respectively have a sufficient industrial interest in applications affecting a specified award to justify normally being served with process relating to that award.
An application for approval of an enterprise agreement must be accompanied by an affidavit shortly stating:
(a) the award or awards, if any, over which the agreement will prevail if approved, or any agreement which will be rescinded and replaced by the agreement, if approved,
(b) the basis upon which it is contended that:
(i) the agreement complies with relevant statutory requirements, including the Anti-Discrimination Act 1977, and
(ii) the agreement does not, on balance, provide a net detriment to employees covered by the agreement when compared with the aggregate package of conditions of employment which would otherwise apply under applicable awards, and
(iii) the parties understand the effect of the agreement, and
(iv) the parties did not enter into the agreement under duress, and
(v) the agreement complies with any principles set by the Commission under section 33, or, if the agreement does not meet those requirements, that any departure from those principles does not prejudice the interest of any of the parties to the agreement, and
(c) a comparison of conditions of employment under the agreement and those which would otherwise apply under relevant awards, or if there are no such awards, under the relevant employment conditions.
Where the agreement does not cover all employees of the employer, the affidavit must also state the basis on which it is contended that the Commission may approve the agreement under section 35 (2).
Unless otherwise provided, an appeal must be made within 21 days after the date of the decision appealed against (or such further time as the Commission allows, before or after the expiration of that period).
An application to extend time to appeal may be included in the notice of appeal or may be made by separate notice of motion.
Where it is intended to seek a stay of the whole or part of the decision of a tribunal pending the determination of the appeal, the appeal must include an application to that effect.
Each of the parties (other than the appellant) appearing or represented in the proceedings from which a decision is being appealed must be joined as respondents to the appeal.
Any decision made in any proceedings before a tribunal prior to a final decision in those proceedings is to be taken for the purposes of appeal to have been made on the same date as the date of the final decision.
Unless the tribunal otherwise directs, the appellant must, within 28 days after the filing of an appeal, file an appeal book consisting of:
(a) the application and any documents subsequently filed in the proceedings, and
(b) the transcript of the proceedings (including the exhibits) before the tribunal, and
(c) the decision appealed against,
and must serve a copy of the appeal book on each respondent.
This Part applies only to proceedings before the Commission in Court Session.
An application to state and sign a case for the opinion of the Full Bench of the Commission in Court Session pursuant to section 197 must be made within 28 days after the making of the relevant decision, or such further time as the Registrar may allow.
Written notice of the application must be given by the applicant to the respondents by serving a copy of the application upon each respondent within 3 days after the application is made.
The requirement for a person to enter into a recognizance pursuant to section 102 of the Justices Act 1902 does not apply to a person who makes application for a case to be stated for the opinion of the Full Bench of the Commission in Court Session.
The stated case must:
(a) be divided into paragraphs and numbered consecutively, and
(b) state concisely the facts and documents necessary to enable the Full Bench of the Commission in Court Session to decide the questions arising or otherwise to hear and determine the proceedings on the stated case, and
(c) state the questions and matters to be decided or determined.
Within 28 days after filing the application to state and sign a case (or such further time as the Registrar may allow) the applicant must file in the Registry a draft case and serve a copy on each respondent.
A copy of any record of evidence need not be annexed to the draft case.
The applicant may, without leave, state in the draft case grounds on which it is contended that the determination was erroneous in point of law other than the grounds stated in the application to state and sign a case.
The Registrar is required to forward the draft case, when filed, to the magistrate concerned, who is to appoint in writing a time and place at which the draft case is to be settled.
A respondent who wishes to object to the draft case must, before the date appointed to settle it, give notice of the objection in writing to the applicant and to the magistrate.
The magistrate is required to notify the applicant in writing when the draft case has been settled.
Within 14 days after being notified that the draft case has been settled, the applicant is to obtain it and prepare and file the case for signature by the magistrate.
The applicant may apply in writing to the magistrate to dispense with the copying of evidence which is irrelevant to the stated case.
When the magistrate has signed the case the magistrate is to notify the applicant that the case has been signed.
The proceeding before the Full Bench of the Commission in Court Session is to be commenced by the applicant filing the case in the Registry within 7 days after being notified that the case has been signed.
Unless otherwise ordered by the Registrar or the Full Bench of the Commission in Court Session, no copies of the case need be filed.
The applicant must promptly serve a copy of the case (including the record of evidence) upon each of the respondents.
For the purpose of stating a case for the Full Bench of the Commission in Court Session, the Chief Industrial Magistrate is the prescribed person referred to in section 104A of the Justices Act 1902.
A party filing any process must give the necessary particulars of any claim or other matter raised by that party in such process.
Rules 58 to 64 do not affect the generality of subrule (1).
Subject to subrule (2), Rule 57 does not require a party to give particulars of a claim for an order for interest under section 372 of the Act.
Where a party making application for orders under Part 9, Unfair Contracts, of Chapter 2 of the Act, claims, as part of that relief, an order for or which includes, interest, particulars must be given of the rates at which, the amounts on which and the periods for which, interest is claimed.
A party must give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies.
A party pleading any condition of mind must give particulars of the facts on which that party relies.
In subrule (1)
A party who claims moneys which have been paid or which the party is liable to pay must give particulars of those moneys.
A party who claims damages must give particulars of the facts and matters relied upon to establish that claim.
Where any of Rules 57 to 62 require particulars to be given, the particulars must be set out in the process or in a separate document referred to in the process and that document must be filed and served with the process.
A tribunal may, on terms, order a party to file and serve on any other party:
(a) further particulars of any claim or other matter stated in any process, or in any affidavit filed by that party, or
(b) a statement of the nature of the case on which the party relies, or
(c) where the party claims damages, particulars of those damages.
Without limiting the generality of subrule (1), where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, the tribunal may, on terms, order that party to file and serve on any other party:
(a) where knowledge is alleged, particulars of the facts on which the party relies, and
(b) where notice is alleged, particulars of that notice.
An application to the Commission to dissolve or extend the term of an Industrial Committee shall be served on the person on the records relating to that Committee maintained by the Registrar under Rule 67 (b) and (c), and on such other persons as the Registrar directs.
The Registrar must, not less than three months before the date on which the dissolution of a Committee will take place pursuant to section 200 (1), notify the parties who have the right to nominate a member of that Committee of the date of such dissolution.
If the Registrar is of opinion that a Committee has ceased to function or has become obsolete, the Registrar may submit a report to that effect to the Commission.
The Commission, after considering the report and hearing the interested parties (if any) may dissolve a Committee. Where the Commission considers that there are no interested parties, it may dissolve the Committee in chambers.
A sitting of a Committee may be convened by the Chairperson by service by the Registrar on the members of the Committee of a notice in the appropriate form or in such other manner as the Chairperson directs.
The Registrar must maintain records of:
(a) the members, alternate members and deputy members of each Committee,
(b) the persons having nominating rights to each Committee, and
(c) any other persons who, not having nominating rights, nevertheless satisfy the Registrar that they respectively have a sufficient industrial interest in applications affecting a specified Committee to justify normally being served with process affecting the establishment, constitution or dissolution of that Committee.
Unless a tribunal directs otherwise, an interlocutory or other application in relation to proceedings already commenced must be made by motion.
Subject to subrule (2), a person must not move a tribunal for any order unless before moving that person has filed notice of the motion in the appropriate form and has served the notice on each interested party who has an address for service in the proceedings.
A person may move a tribunal without previously filing or serving notice of the motion:
(a) where the preparation of the notice, or the filing or service (as the case may be) of the notice would cause undue delay or other mischief to the applicant, or
(b) where each other party interested consents to the order, or
(c) where the tribunal dispenses with the requirements of subrule (1).
The notice of motion must:
(a) state the date and time when, and the place where, the motion is to be made, and
(b) where the tribunal makes an order under Rule 70, bear a note of the order made, and
(c) state concisely the nature of the order which is sought, and
(d) name each party affected by the order which is sought.
Costs need not be specifically claimed.
Where a notice of motion is required to be served, it must, unless the tribunal otherwise orders, be served not less than 3 days before the date fixed for the motion.
Where a notice of motion is to be served on a person who has not entered an appearance and the time for entering an appearance has not expired, the notice must be served personally.
A tribunal may hear and dispose of a motion in the absence of any party:
(a) where service or notice of the motion on the absent party is not required by these Rules or by an order, or
(b) where the notice of motion has been duly served on the absent party.
Where a notice of motion has been served for any date or the hearing of a motion has been adjourned to any date and, before that date, any party files a request, bearing the consent of each other party to the motion, for an adjournment in accordance with this Rule, the hearing of the motion is to stand adjourned to the date specified in the notice or to such later date as the tribunal may appoint.
Where a notice of a motion for any day has been filed and served, and the motion is not disposed of on that day:
(a) the tribunal may hear and dispose of the motion on any later date fixed by the tribunal, and
(b) subject to subrule (2), filing or service of a further notice of motion must not be required.
Subrule (1) (b) is not to have effect:
(a) where the tribunal directs the filing or service of a further notice of motion, or
(b) where service is required on a party on whom notice of the motion has not previously been served.
Subject to section 166, a respondent may enter an appearance and may be represented in proceedings by a solicitor or agent or in person.
Subject to these Rules, a person must not, except by leave of the tribunal, take any step in any proceedings unless, before taking the step, that person has filed originating process or has entered an appearance.
An appearance in any proceedings may be entered by filing a notice of appearance or, with leave, orally in the course of the proceedings.
Where an appearance is entered orally in the course of the proceedings written confirmation shall be promptly filed and served.
Two or more persons entering an appearance by the same solicitor or agent on the same day may do so by a single notice of appearance.
A notice of appearance must show:
(a) the name, address, telephone number and facsimile number (if any) of the person entering the appearance, and
(b) where the person entering the appearance appears by a solicitor or agent, the name, address, telephone number and facsimile number (if any) of the solicitor, and
(c) where the person entering the appearance appears by a solicitor and that solicitor has another solicitor as agent in the proceedings, the name, address, telephone number and facsimile number (if any) of the agent, and
(d) an address for service.
Where any address shown in a notice of appearance is not genuine, the applicant may, with the leave of the Commission, continue the proceedings as if the appearance had not been entered.
A respondent who wishes to take no active part in proceedings may:
(a) include in the respondent’s appearance a statement that the respondent submits to the making of orders and the giving or entry of judgment in respect of all claims made, and
(b) add to the statement “, save as to costs”.
A respondent who has filed an appearance containing a statement referred to in subrule (3):
(a) must not, except with the leave of the tribunal, file any process or affidavit or take any other step in the proceedings, and
(b) may at any time, by leave of the tribunal, file any process or affidavit and take any other step in the proceedings upon such terms and conditions as may be imposed by the tribunal.
A respondent must enter an appearance before filing any document and within 7 days of service of any originating process on that respondent.
Notwithstanding subrule (1), where a matter is commenced by way of notice of motion a respondent must enter an appearance before the date appointed for any hearing or mention and before filing any document, except with leave of the tribunal.
A respondent may enter an appearance at any time without leave.
A respondent entering an appearance after the time limited for appearing is not, unless the tribunal otherwise orders, entitled to file any process by way of defence or do any other thing later than if an appearance had been entered within that time.
A respondent filing a notice of appearance must, on the date of entry of appearance or on the next day, serve the notice of appearance on the applicant and on each other party of whose address for service the respondent has notice.
A tribunal may, on notice of motion filed by a respondent in accordance with subrule (2), by order:
(a) set aside the originating process, or
(b) set aside the service of the originating process on the respondent, or
(c) declare that the originating process has not been duly served on the respondent, or
(d) discharge any order giving leave to serve the originating process outside the State or confirming service of the originating process outside the State, or
(e) discharge any order extending the validity for service of the originating process, or
(f) protect or release property seized, or threatened with seizure, in the proceedings, or
(g) declare that the tribunal has no jurisdiction over the respondent in respect of the subject matter of the proceedings, or
(h) decline in its discretion to exercise its jurisdiction in the proceedings, or
(i) grant such other relief as it thinks appropriate.
Notice of motion under subrule (1):
(a) may be filed without entering an appearance,
(b) must bear a note “The respondent’s address for service is” and state the address,
(c) must be filed within the time limited for entering an appearance.
The making of an application under subrule (1) is not to be treated as a voluntary submission to jurisdiction.
A tribunal, in addition to its powers generally under the Act, may in relation to any proceedings before it:
(a) hear and determine the proceedings in the absence of a party who has been summoned or given notice to appear, or
(b) refer any matter to an expert and receive the report of the expert as evidence, or
(c) direct parties to be joined or struck out.
A tribunal may generally give all such directions and do all such things as in its opinion will enable expense or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties and will contribute to the expeditious conduct of the proceedings and the just determination of the matter or dispute and the equitable disposal of proceedings.
Without limiting the generality of subrule (1) or the powers in section 162, a tribunal may:
(a) make orders for the purpose of defining the matters in dispute and the issues to be decided, or
(b) direct the mode in which issues may be proved, or
(c) give directions with regard to the production of documents and the making of admissions (subject to all just exceptions) with respect to any document or to any question of fact, or
(d) dispense with the formal proof of any matter which is not genuinely in dispute.
A tribunal may exercise its powers under this clause at any time after the commencement of the proceedings and on its own motion or on the application of any party.
Where any person desires to commence proceedings or to take any steps in a particular case before a tribunal and:
(a) the provisions of the Act and these Rules do not make any or adequate provision for a procedure to be followed and there is no established practice or usage of the Commission, or
(b) a difficulty arises or doubt exists as to the procedure to be followed,
the tribunal may give directions or make such orders with respect to the procedure to be followed as it considers necessary.
Directions may be given or orders may be made by the tribunal:
(a) on its own initiative, or
(b) on application by notice of motion by a party seeking such directions or orders.
Such application may be made ex parte, but must be served on such persons as the tribunal directs.
Such directions and orders are to be directed to providing a just, speedy and inexpensive determination of proceedings.
Proceedings commenced in accordance with such directions or orders are to be taken to be well commenced.
Steps taken in accordance with such directions or orders are to be taken to be regular and sufficient.
Where a party to any proceedings serves on another party a notice requiring the party served to produce at any proceedings a document or thing for the purpose of evidence and that document or thing is in the possession, custody or power to produce of the party served, the party must, unless the tribunal otherwise orders, produce the document or thing in accordance with the notice without the need for any summons for production.
Where a matter before a tribunal has been completed, the Registrar must retain any exhibit until after the expiration of the appeal period.
Where a notice of appeal has not been filed within the permitted time, the Registrar may, on the Registrar’s initiative or upon written application, return any exhibit to the person who tendered it or to any person who proves, to the Registrar’s satisfaction, an entitlement to the exhibit, subject to an obligation to return the exhibit if required.
Any exhibit may be taken out by leave or order of the tribunal or of the President, subject to an undertaking to return the exhibit if required.
Application to a tribunal to waive strict compliance with any procedural requirement or to exempt any party from compliance with any such requirement either before or after the occasion for compliance arises, may be made by notice of motion or orally in the course of the proceedings and if made separately must, unless the tribunal otherwise directs, be supported by affidavit.
Subject to any direction of the Commission, the Presidential Member of the Contracts of Carriage Tribunal or the Chairperson of an Industrial Committee, the Registrar may extend the time fixed by these Rules for the lodging of any document or the doing of any act (whether or not that time has expired).
Where:
(a) the provisions of the Act and the Regulation do not make any or adequate provision for a procedure to be followed and there is no established practice or usage of the tribunal, or
(b) a difficulty arises or doubt exists as to the procedure to be followed, or
(c) a tribunal desires to change any established practice, procedure or usage,
the President may, by Practice Direction, determine or change the practice, procedure or usage.
Such Practice Direction is to be signed by the President and published by the Registrar on the NSW industrial relations website.
Practice Directions are to be directed to providing a just, speedy and inexpensive determination of proceedings.
A Practice Direction becomes effective 14 days after publication on the NSW industrial relations website or such later date as the Practice Direction directs.
Where:
(a) there are no relevant provisions, and
(b) there is no established practice, procedure or usage, and
(c) there is no Rule, order, direction or Practice Direction in force,
the practice, procedure or usage for the time being of the Supreme Court or, in the case of appeals, the practice, procedure or usage for the time being of the Court of Appeal or the Court of Criminal Appeal, as may be appropriate, is, as far as practicable, to regulate the practice, procedure or usage of the tribunal.
In this Part:
On the request by a party, the Registrar must, if authorised by the Act and unless the tribunal otherwise orders, issue a summons for production or to give evidence.
A summons to confer may only be issued on the initiative of the Commission, the Presidential Member of the Contract of Carriage Tribunal or the Chairperson of an Industrial Committee.
Any number of persons may be included in one summons, but the copy served need only contain the name of the person upon whom it is served.
A party requesting the issue of a summons must produce a form of summons and file a copy thereof.
Where a summons for production or to give evidence is issued at the request of a party, the person named is to be tendered, at the time of service of the summons or not later than a reasonable time before the day on which compliance is required by the summons, a sum required by the Industrial Relations (General) Regulation 1996.
The person named is not required to attend on any day on which attendance is required unless that sum is paid or tendered at the relevant time.
This Rule does not apply to a summons to confer.
Service of a summons, other than a summons to confer, under this Part must be effected in accordance with this Part unless a tribunal or the Registrar otherwise directs.
Service of a summons may be effected by handing the summons or a copy of the summons to the person named.
If, on tender of the summons to the person named, the person refuses to accept it, the summons may be served by putting it down in the presence of that person after the nature of the summons has been explained.
Where the person named in the summons is a party for whom a solicitor or an agent is specified in the proceedings, the summons may, with the consent of the solicitor or agent, be served on the person named by leaving it at the address for service.
Service of a summons on a corporation may be effected by serving the summons in accordance with subrule (2) or (3), as the case may require, on the mayor, chairperson or president, or on the general manager, clerk, secretary, treasurer, principal officer or other similar officer of the corporation or, where provision is made by or under any Act for service of a document on a corporation, by serving the summons in accordance with that provision.
Service of a summons on any State peak council or any organisation or association registered under the Act may be effected by serving the summons in accordance with subrule (2) or (3), as the case may require, on the president, principal officer, secretary, treasurer or other similar officer of the organisation or by serving the summons in accordance with Rule 106.
A summons issued at the request of a party may not be served on the person named later than 5 days before the date the person is required to attend, unless the tribunal otherwise orders.
An order for short service may be made at any time.
An order for short service may be sought by filing notice of motion, indicating why an order for short service should be made.
An application may, unless the tribunal orders otherwise, be dealt with in chambers without the appearance of any person.
A copy of any order for short service must be served with the summons.
A tribunal may on application by the person named in the summons set aside wholly or in part a summons issued at the request of a party.
An application under subrule (1) must be made by notice of motion or, with leave of the tribunal, orally in the course of proceedings.
An application under subrule, if made by notice of motion, must be served on the party on whose request the summons was issued.
Expenses for witnesses answering a summons for production or to give evidence issued at the request of a party are as provided by the Industrial Relations (General) Regulation 1996.
A summons requiring production of any document or thing must, unless the tribunal otherwise orders, permit the person named to produce the document or thing to the Registrar by hand or by post so that it is received not later than 2 days before the first date on which production is required, instead of attending and producing it.
Where a document or thing is produced to the Registrar in accordance with subrule (1), the Registrar must:
(a) if requested so to do, give a receipt to the person producing the document or thing, and
(b) produce the document or thing as the nature of the case requires or as the tribunal may direct.
Where for the purpose of any proceedings a person requests the Registrar in writing to produce to the Commission or an Industrial Committee any document in the custody of the Registrar, the Registrar must, unless the tribunal otherwise orders, arrange for the production of the document in accordance with the request.
A party desiring the production of a document or thing in the custody of any other tribunal or court must request, in writing, the Registrar to proceed under subrule (3).
On the receipt of a request, the Registrar is to request the tribunal or court holding the document or thing to send it to the Registrar.
The Registrar is required upon receipt of such document or thing to produce the same in accordance with the request or as the tribunal may direct.
Except as otherwise provided by these Rules or unless the Registrar otherwise directs, service of all process, including interlocutory applications, must be effected by the parties.
An applicant must promptly and within the time and in the manner specified in this Part, serve a copy of the originating and interlocutory process on:
(a) any person named as a respondent, and
(b) where the application relates to an award or determination, the persons shown in the list maintained by the Registrar under Rule 40 (c) relevant to that award, unless the tribunal otherwise directs, and
(c) such other persons as the tribunal may direct.
The Registrar must take all reasonable steps to ascertain the persons interested in or who may be affected by an application and may require evidence to be supplied upon affidavit or otherwise as to the persons so interested or affected.
Any such affidavit must state the means of knowledge of the deponent and the inquiries or searches, which may have been undertaken to ascertain who is so interested or affected.
Service of a summons or notice to show cause must be in accordance with Rule 104 (a) or (b), 105 (a), (b) or (c), 106 (a), (b) or (c) or 107 (1) and (2), as the case may require.
Upon lodging an appeal, the appellant must (unless the Registrar otherwise directs) serve a copy of the appeal promptly on each of the respondents.
Except as otherwise provided by this Part or unless the tribunal has given a direction with regard to service, process other than a summons must be served as specified in this Part.
Service of process upon any natural person must be effected:
(a) by leaving any document to be served with the person, or
(b) if any document to be served is not accepted, by putting the document down in the presence of the person to be served and indicating its nature, or
(c) by leaving any document with any other person apparently above the age of 14 years at the residence or usual place of business of the person, or
(d) by posting any document to the person or leaving it at the address for service filed by the person, or
(e) where any person has not filed an address for service, by posting any document to the person at the residence or usual place of business of that person.
Service of process upon a corporation other than an organisation incorporated under the Act must be effected:
(a) by leaving any document with the secretary or other principal officer of the corporation, or
(b) by tendering any document to that secretary or principal officer after indicating its nature, or
(c) by leaving any document with a person at the registered office of the corporation, or
(d) where the corporation has filed an address for service, by posting any document to that secretary or principal officer at that address or by leaving it at that address, or
(e) where the corporation has not filed an address for service, by posting any document to that secretary or principal officer at the registered office of the corporation, or
(f) where provision is made by any other Act for the service of a document on the corporation concerned, by serving a copy of any document in accordance with the provision.
In this Rule,
Service of process upon an industrial organisation must be effected:
(a) by leaving any document with the secretary or principal officer of the industrial organisation, or
(b) by tendering any document to that secretary or principal officer after indicating its nature, or
(c) by leaving any document with a person at the registered office of the industrial organisation, or
(d) where the industrial organisation has filed an address for service, by posting any document to that secretary at that address or by leaving it at that address, or
(e) where the organisation has not filed an address for service, by posting any document to that secretary or principal officer at the registered office of the organisation.
Where a party is represented by a solicitor or agent, any process other than the originating process may be served upon the solicitor or agent at the solicitor’s or agent’s office or at the solicitor’s or agent’s document exchange box provided by the Australian Document Exchange Pty Limited.
Where a solicitor or agent makes a note on a copy of an originating process that service is accepted on behalf of any person, the document is to be taken to have been duly served on that person on the date on which the solicitor or agent makes the note or such earlier date of service as may be proved.
The term
Every originating process, together with any accompanying affidavits, must be served upon each of the persons thereby notified or summoned to appear promptly and at least 3 days before the day on which the matter is to be dealt with unless the tribunal gives leave for a shorter period of service.
Any affidavit in answer to a served document may be filed and must, unless otherwise directed by the tribunal, be served as soon as practicable but not later than the day preceding the hearing.
An affidavit of service must be filed by the applicant promptly after service of the originating process has been effected.
An affidavit of service must be filed by the appellant promptly after service of the appeal has been effected.
An affidavit of service may be filed in any other case.
Where personal or other service of any process is required by these Rules or otherwise and it is made to appear to the tribunal that such service cannot conveniently be effected, the tribunal may make such order for substituted or other service, or for the substitution of notice by letter, facsimile message, other electronic means, public advertisement or otherwise, as may seem just.
Such notice must contain such particulars as the tribunal directs.
This Rule applies where any process or document is to be served outside the State but within Australia.
Process in proceedings before a tribunal may be served in accordance with the provisions of the Service and Execution of Process Act 1992.
Process and documents before the Commission may also be served in accordance with such directions as the Commission may give when requiring such service under section 162.
Where process served under this Rule requires or permits the filing of a notice of appearance, the period for entry of such an appearance will be 21 days after service, unless the tribunal, on application allows a shorter period.
This Rule applies where, pursuant to section 162 (2) (f) or otherwise, any process or document is to be served outside the State and outside Australia.
Process or documents may be served outside Australia, but must bear a note in the appropriate form.
Where process served under this Rule requires or permits the filing of a notice of appearance, the period for entry of such an appearance will be 21 days after service, unless the tribunal, on application allows a shorter period.
Where there is no appearance by the defendant or respondent to any process served under this Rule, the applicant must not proceed except by leave of the tribunal before which the proceedings are brought.
Notice of the time and place for the mention or hearing of any matter (or any alteration of that time or place) must be promptly given to the applicant by the Registrar.
Unless the appointed date, time and place are stated in the originating process, the applicant must cause notice of such appointment to be served upon the other parties promptly and at least within the time specified in Rule 108.
Where the date, time and place have been appointed before the originating process has been served upon a party, notice of the appointment may be given to such party by endorsement of the notice on the originating process.
Amended notice must be given and served where the appointed date, time or place are altered.
Where the Registrar is required to give notice under this Rule, notice may be given in the same way as a Summons to Confer may be served under Rule 29 and shall have the same consequences.
An affidavit for use in any proceedings may be sworn before or after the commencement of the proceedings.
An affidavit must be made in the first person.
The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject.
Where it appears to the person before whom an affidavit is sworn that the deponent is illiterate or blind, the person must certify in or below the jurat that:
(a) the affidavit was read in the person’s presence to the deponent, and
(b) the deponent seemed to understand the affidavit.
Where an affidavit is made by an illiterate or blind deponent and a certificate in accordance with subrule (3) does not appear on the affidavit, the affidavit may not be used unless the tribunal is satisfied that the affidavit was read to the deponent and that the deponent seemed to understand it.
Where there is any interlineation, erasure or other alteration in the jurat or body of an affidavit, the affidavit may not be used without the leave of the tribunal unless the person before whom the affidavit is sworn initials the alteration and, in the case of an erasure, re-writes in the margin of the affidavit any word or figures written on the erasure and signs or initials them.
Subrule (1) applies to an account verified by affidavit as if the account were part of the affidavit.
A document to be used in conjunction with an affidavit must, where convenient, be annexed to the affidavit.
Where annexure is inconvenient, the document may be made an exhibit to the affidavit.
An exhibit to an affidavit must be identified by a certificate entitled in the same manner as the affidavit and made by the person before whom the affidavit is sworn.
An affidavit may, with the leave of the tribunal, be used notwithstanding any irregularity in its form.
An affidavit, unless required by or under an Act or by an order of a tribunal, may be filed in the Registry or may be handed up in the course of proceedings.
An affidavit which has been served must, before it is filed or handed up, bear a note by the person who served the same, indicating the time, place and manner of service, unless the tribunal otherwise directs.
A party intending to use an affidavit must serve it on each other interested party not later than a reasonable time before the occasion for using it arises.
Where there is scandalous, irrelevant or otherwise oppressive matter in an affidavit, a tribunal may order that:
(a) the matter be struck out, or
(b) the affidavit be taken off the file.
A party may require the attendance for cross-examination of a person making an affidavit.
A requirement under subrule (1) must be made to the party serving or proposing to use the affidavit.
Where the attendance of a person is required under subrule (1), the affidavit may not be used unless the person attends or is dead or the tribunal grants leave to use it.
Where a person making an affidavit is cross-examined, the party using the affidavit may re-examine the person.
Every matter or thing which under these Rules is required or permitted to be done by a party may (subject to section 166) be done by a solicitor or agent for the party.
A change (including removal or withdrawal) of a solicitor or agent of which notice is required or permitted to be filed has no effect:
(a) as between a party or solicitor or agent to whom the change relates and the tribunal until notice of the change is filed, and
(b) as regards any other party, until notice of the change is filed and served on that party (or the party’s solicitor or agent).
Where a notice of change of solicitor or agent has no effect because it has not been filed or served in accordance with subrule (1), the address of the solicitor or agent (or solicitor’s agent) may be continued to be used as the address for service.
Where a solicitor or an agent or partner of the solicitor or agent acts as solicitor or agent for any party to any proceedings, or is a party to any proceedings, that solicitor or agent must not, without leave of the tribunal, act for any other party to the proceedings not in the same interest.
Where a solicitor or an agent acts for a party, the party may change that solicitor or agent.
A party who changes a solicitor or agent must file notice of the change and serve the notice on the other parties and, where practicable, the former solicitor or agent.
Where a solicitor (in this Rule called the principal solicitor) acts for a party in proceedings and another solicitor acts as agent for the principal solicitor, and the principal solicitor changes the solicitor acting as agent, the party must file notice of the change and serve notice on the other parties and on the former agent solicitor.
A party who acts without a solicitor or agent in any proceedings and afterwards appoints a solicitor or an agent to act in the proceedings must file notice of the change and serve the notice on the other parties.
Where a solicitor or an agent acts for a party in any proceedings and afterwards the party terminates the authority of the solicitor or agent to act:
(a) the party must file notice of the change and serve the notice on the other parties and on the former solicitor or agent, and
(b) the former solicitor or agent may file notice of the change and serve the notice on the parties.
Where a solicitor or an agent acts for a party to any proceedings and afterwards ceases to act, the solicitor or agent may, subject to subrule (2), file notice of the change and serve the notice on the parties.
A solicitor or an agent must not file or serve notice of a change under subrule (1) without leave of the tribunal unless the solicitor or agent has, not less than 7 days before doing so, served on the former client notice of intention to file and serve the notice of change.
A solicitor or an agent filing a notice of change under subrule (1) must, except where the notice is filed with the leave of the tribunal, file and serve with the notice an affidavit showing service in compliance with subrule (2).
A solicitor or an agent may serve a notice under this Rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.
Where any signature by a solicitor (
(a) a partner of the Solicitor,
(b) a solicitor who is agent of the Solicitor for the purpose of the proceedings,
(c) a partner of the agent of the Solicitor,
(d) a solicitor employed by:
(i) the Solicitor,
(ii) the agent of the Solicitor,
(iii) the Solicitor’s employer, or
(iv) the firm in which the Solicitor or the agent is a partner, and
(e) a signatory authorised under subrule (2).
Anything that is required or permitted for the purpose of any proceedings to be signed by a solicitor is to be taken to have been signed by the solicitor (being a solicitor corporation) if:
(a) it has the corporation’s seal affixed to it, or
(b) it is signed by a director of the corporation or by an officer or employee of the corporation who is a solicitor.
A signature made pursuant to this Rule must be accompanied by a statement of the capacity in which the signature is made.
Where, by or under these Rules:
(a) any act, matter or thing is authorised or required to be done by a solicitor for a person, and
(b) the solicitor is a solicitor corporation, and
(c) the act, matter or thing can, in the circumstances of the case, only be done by a natural person,
the act, matter or thing may be done by a director of the corporation or by an officer or by an employee of the corporation who is a solicitor.
Any period of time fixed by Rules or by any order or by any document in any proceeding, must be reckoned in accordance with this Rule.
Where a time of 1 day or a longer time is to be reckoned by reference to a given day or event, the given day or the day of the given event must not be counted.
Where, apart from this subrule, the period in question, being a period 5 days or less, would include a day on which the Registry is closed, that day must be excluded.
Where the last day for doing a thing is a day on which the Registry is closed, the thing may be done on the next day on which the Registry is open.
Section 36 of the Interpretation Act 1987 does not apply to these Rules.
A tribunal may, on terms, by order, extend or abridge any time fixed by the Rules or by any order.
A tribunal may extend the time under subrule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.
(Repealed)
Where no time is fixed by these Rules for the doing of any thing in or in connection with any proceeding before a tribunal, the tribunal may fix the time within which the thing is to be done.
In reckoning the time fixed by these Rules or in any judgment or order for the doing by a party of any act, the period from the beginning of 25 December until the end of 2 January next following must, unless the tribunal otherwise orders, be excluded but business may be done during that period.
Where a tribunal makes an order under subrule (1) on the application of a party, the party on whose application the order was made must serve a minute of the order:
(a) in the case of an order with respect to the time of appearance to be limited in an originating process—with the originating process,
(b) otherwise—forthwith on each other party.
A party who has entered an appearance may withdraw the appearance at any time with the leave of a tribunal.
A party may, before the beginning of the hearing of any proceedings, discontinue the proceedings so far as concerns the whole or any part of any application made by that party:
(a) where the party or the party’s solicitor certifies that the party does not represent any other person and all other parties having an address for service in the proceedings consent, or
(b) with the leave of the tribunal.
Leave of the tribunal may be given in Chambers without the appearance of any person.
A party raising any matter in process by way of a defence or reply or in a subsequent process may withdraw that matter at any time.
Subrule (1) does not enable a party to withdraw, without the consent of another party or the leave of the tribunal, an admission or any other matter operating for the benefit of that other party.
A tribunal may give leave under Rule 138 or Rule 139 on terms.
Except with leave of the tribunal, a discontinuance or withdrawal under Rule 138 or Rule 139 must be made by filing a notice stating the extent of the discontinuance or withdrawal.
Where the discontinuance or withdrawal is by consent, the notice under subrule (1) must bear the consent of each consenting party.
A party filing a notice under Rule 141 must, on the day of filing, serve the notice on each other party.
A discontinuance under this Division as to any cause of action does not, subject to the terms of any leave to discontinue, prevent a person from bringing fresh proceedings or claiming the same relief in fresh proceedings.
Where:
(a) a party discontinues proceedings so far as concerns the whole or any part of any claim for relief and is, by reason of the discontinuance, liable to pay the costs of another party occasioned by the proceedings, and
(b) before payment of the costs, brings against that other party further proceedings on the same or substantially the same cause of action as that on which the discontinued proceedings were brought,
the tribunal may stay the further proceedings until those costs are paid.
Where the Commission gives a direction under section 199 (4) that proceedings before a Committee be discontinued, a person shall not claim the same relief in fresh proceedings except with leave of the Commission.
Where any party has not done any act required to be done by or under the Act or any other Act or otherwise has not pursued the proceedings with due diligence, a tribunal may:
(a) order that the application be dismissed for want of prosecution, or
(b) fix a definite time for the doing of the act and at the same time order that upon non-compliance the application shall stand dismissed for want of prosecution or subsequently, in the event of non-compliance, order that it be dismissed, or
(c) make such further or other order as in the circumstances may seem just.
Subject to any right of appeal, where a tribunal dismisses an application for want of prosecution the applicant shall not claim the same relief in fresh proceedings.
A tribunal may, at any stage of any proceedings, on application by any party or of its own motion, order that any document in the proceedings be amended, or that any party have leave to amend any document in the proceedings, in either case in such manner as the tribunal considers to be necessary in the interests of justice.
Unless the tribunal otherwise orders or permits, an application to amend shall be made by notice of motion.
A party may by consent of the parties amend the originating process at any stage of the proceedings.
Except where the tribunal otherwise orders or permits, amendments must be made by filing a fresh document bearing a statement specifying the date of the amendment and:
(i) if made pursuant to an order, the date of the order or,
(ii) if made pursuant to consent, the date that consent was filed.
A filed document amended under this Rule must be served on the other parties within three days of filing.
Where there is a mistake in an order or decision, arising from an accidental slip or omission, a tribunal, on application by any party or of its own motion, may at any time correct the mistake or error.
A tribunal, on application by any party or of its own motion, may, at any time, for the purpose of carrying out its intention and to express accurately its meaning, correct any order or decision.
The power in this Rule is additional to the power in Rule 38.
Unless a tribunal otherwise orders, this Part applies only to proceedings before the Commission in Court Session.
A party to proceedings may, by notice served on another party, admit, in favour of the other party, but for the purpose of the proceedings only, the facts specified in the notice.
A party may, with the leave of the Commission, withdraw an admission under subrule (1).
A party to proceedings may, by notice served on another party, require that party to admit, for the purpose of the proceedings only, the facts specified in the notice.
If, as to any fact specified in the notice, the party on whom the notice is served does not, within 14 days after service, serve, on the party serving the notice to admit facts, a notice disputing that fact, that fact shall, for the purpose of the proceedings, be admitted by the party on whom the notice to admit facts is served in favour of the party serving the notice.
A party may, with the leave of the Commission, withdraw an admission under subrule (2).
Where admissions are made by a party, the Commission may, on the application of any other party, give any judgment or make any order to which the applicant is entitled on the admissions.
The Commission may exercise its powers under subrule (1) notwithstanding that other questions in the proceedings have not been determined.
Where a list of documents is served on a party under Part 22 (which relates to discovery and inspection of documents), and inspection of any document specified in the list is permitted to that party under that Part, then, subject to subrule (2), the following admissions by that party in favour of the party serving the list shall have the effect unless the Commission otherwise orders:
(a) that the document, if described in the list as an original document, is an original document and was printed, written, signed or executed as it purports to have been, or
(b) that the document, if described in the list as a copy, is a true copy.
Where a party:
(a) has by any process denied the authenticity of a document, or
(b) within 14 days after the time limited under Part 22 for inspection of a document, serves on the party giving inspection a notice that the authenticity of the document is disputed,
subrule (1) does not work as an admission by the first mentioned party as to that document.
Where a party serves on another party a list of documents pursuant to Part 22, those parties shall be in the position that they would be in if the latter party had, on the date of service of the list, served on the party serving the list a notice requiring production at the hearing of such of the documents specified in the list as are in the possession, custody or power of the party serving the list.
On 1.I am 2.On Sworn by the deponent at Before me: Justice of the Peace |
I, I (In each case, follow the form of conclusion of documents, viz:
Filed (dated, |
To the The
Dated: |
To the respondent: The applicant requires you to admit for the purpose of these proceedings only
The applicant requires you to admit for the purpose of these proceedings only the authenticity of the following documents
If you do not, within 14 days after service of this notice upon you, serve a notice upon the applicant disputing any fact
Dated: ( |
The respondent disputes the following facts specified in the applicant’s notice dated
The respondent disputes the authenticity of the following documents which were specified in the applicant’s notice
The respondent admits—
Dated: ( |
I certify that in this matter I have conducted a Conciliation Conference and that: * (a) agreement has been reached, the terms of which are *set out below/*are attached: * (b) I have formed the opinion that all reasonable attempts to settle the matter by conciliation have been made but have been unsuccessful. Dated at (place), (date) 19. (Signature of Member) Dated: ( * |
I certify that reasonable attempts have been made to resolve the industrial dispute in this matter by conciliation. Dated at (place), (date) 19. (Signature of Member) |
I have formed the opinion that the following Dated: (Signature of Member) |
I hereby refer to the President, pursuant to section 195 (1) of the Industrial Relations Act 1996, for decision by the Industrial Relations Commission of New South Wales the following Dated: Industrial Registrar |
I refer for hearing and determination by the Industrial Relations Commission of New South Wales the following matter before the Industrial Registrar: Dated: President |
In pursuance of section 199 (2) (a) of the Industrial Relations Act 1996 I refer to the Dated: President |
The Industrial Relations Commission of New South Wales hereby directs that proceedings before Dated:19 . (Signature of Member) |
In pursuance of section 201 and clause 9 (6) of Schedule 3 of the Industrial Relations Act 1996, I refer to the Industrial Relations Commission of New South Wales for determination Dated: Chairperson |
I request that the Australian Industrial Relations Commission deal with the following matter in accordance with section 204 of the Industrial Relations Act 1996: Dated:19 . President, Industrial Relations Commission of New South Wales |
The Full Bench of the Industrial Relations Commission of New South Wales hereby delegates to Dated: Signed: |
Filed (dated, |
• (name the former employer)
(1) You are required, under the Rules of the Industrial Relations Commission, to file a notice of appearance at the Industrial Registry
(2) If you do not enter an appearance, or if there is no attendance by you or your counsel, solicitor or agent at the time and place specified in this notice or as notified to you subsequently, the proceedings may be heard in your absence and an order may be made against you.
(3) Unless the time, place and date of hearing are endorsed on this application, the parties will be subsequently advised of the date time and place when the Commission will hear this application. Any enquiries should be made to the Industrial Relations Commission List Clerk, telephone
The time before which this notice (or as the case may be) is to be served has been abridged by the Commission to 5.00 pm on (date) 19).
Section 212 of the Industrial Relations Act 1996
I,
of
hereby apply for a certificate of conscientious exemption to becoming a member of an industrial organisation of * employees / * employers.
I am employed as a
byof
whose business or industry is
I am not an employee and work as
My reasons for holding a belief that prevents me in conscience from joining any industrial organisation of * employees / * employers are as set out on page 2.
I * am / * am not a practising member of a religious society or order whose tenets or beliefs preclude membership of any organisation or body other than that society or order.* The society or order is known as
and the name of an official of that society or order who can vouch for my practising membership is
Dated:19
*—delete as appropriate
—“official includes Minister of Religion, Priest, Pastor, Elder, etc, however described, and a Marriage Celebrant recognised by that society or order.
My reasons for holding a belief that prevents me in conscience from joining any industrial organisation of employees / employers are:
Dated:19
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7. The amount paid by the principal contractor (including any redundancy payments) in respect of the termination of the contract of carriage was: $
8. The truck involved is a
9. The contract carrier
10. The compensation claimed was calculated in the following manner:
11. Other relevant facts:
1. The name and address of the principal contractor is:
2. The name(s) and address(es) of the other persons (if any) the applicant claims should be joined as respondents are:
Dated:
• Signed:
Full name
Capacity in which signed
(for example, Applicant, Solicitor for Applicant, etc)
1. You should file a Notice of Appearance at the Industrial Registry, 50 Phillip Street Sydney, Telephone (02) 258 0010) within 7 days of service of this Notification on you.
2. You should also file an Answer to the Claim for Compensation at the Industrial Registry within 21 days of service of this Notification on you. The form of Notice of Appearance and the Answer are available from the Industrial Registry.
3. Unless the time, place and date of hearing are endorsed on this application, the parties will be subsequently advised of the date time and place when the Tribunal will hear this application. Any enquiries should be made to the Industrial Relations Commission of New South Wales List Clerk, telephone (02)
4. If you do not enter an appearance or file a Defence, or if there is no attendance by you or your counsel, solicitor or agent at the time and place specified in this notice or as notified to you subsequently, the proceedings may be heard in your absence and an order may be made against you.
The Respondent hereby:
Name and Address of the Respondent is: The address for service is: Dated:
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The Industrial Registrar appoints
Powers of the Registrar, in addition to powers referred to in the Rules:
1 The following powers of a tribunal under the Rules set out in Column 1, subject to any restriction in Column 2:
Column 1: Powers
Column 2: Restrictions
Rule 12, Searches
Rule 46, Appeal Books
Rule 99 Service of Process
Rule 85, Directions
Only where remitted to the Registrar by the tribunal
Rule 108, Time of Service
Only where remitted to the Registrar by the tribunal
Rule 110, Substituted Service
Rules 111 and 112, Service outside State
Restricted to the giving of leave to serve summons under Service and Execution of Process Act, orders under that Act
Rule 134, Extension and Abridgment
Rule 162, 163, Orders for Discovery
Only where remitted by the Commission
2 On any matter remitted by the Commission, where the only question for hearing is the amount to be recovered and costs.
3 The hearing of any matter remitted by the Commission, where the only matter in question is the matter of costs.
4 Call-overs, directions hearings, readiness hearings, pre-hearing conferences, the recording of pleas and setting matters down before the Commission.
5 The return of summonses for production, where that matter is remitted by the Commission.
6 The making of consent judgments.
7 Accepting undertakings to the Commission, including undertakings to pay.
8 Certifying copies to be true copies.
9 The making of orders under the Evidence Act 1995.
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0
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