Industrial Relations Court Rules (Cth)

INDUSTRIAL RELATIONS COURT RULES

In force under the Industrial Relations Act 1988

Current as at 30 March 1994

TABLE OF PROVISIONS

Order

1. Preliminary

2. Sittings and Vacation

3. Time

4. Commencement of Proceedings

5. Cross-claims and Third Party Claims

6. Parties and Causes of Action

7. Service

8. Service outside the Jurisdiction-

Division —General (Rules 1—5)

Division 2—Service in Convention Countries

(Rules 6—12)

Division 3—Service in Non-Convention Countries

(Rules 13—16)

9. Appearance

10. Directions Hearing

11. Pleadings-

Division 1—General (Rules 1—18)

Division 2—Progress of Pleadings

(Rules 19—23)

12. Particulars

13. Amendment

14. Affidavits

TABLE OF PROVISIONS—continued

Order

15. Discovery and Inspection of Documents—

Division 1—Discovery (Rules 1—9)

Division 2—Inspection (Rules 10—14)

Division 3—General (Rules 15—18)

15A. Preliminary Discovery and Discovery from Non-Party

16. Interrogatories

17. Inspection of Property

18. Admissions

19. Motions

20. Summary Disposal and Stay of Proceedings

21. Vexatious Litigants

22. Withdrawal and Discontinuance

23. Payment into Court

24. Evidence taken in Australia or abroad or Evidence

taken under Part IIIB of the Evidence Act 1905

25. Interim Orders

26. Receivers

27. Subpoenas

28. Security for Costs

29. Separate Decision of Questions: Consolidation-

Division 1—Separate Decision of Questions

(Rules 1—4)

Division 2—Consolidation (Rule 5)

30. Setting Down

31. Juries

32. Trial

33. Evidence: General

34. Court Expert

35. Judgments and Orders

36. Judgments and Orders: Entry

37. Judgments and Orders: Enforcement

38. Assessment of Damages

39. Accounts and Inquires

40. Contempt—

Division 1—Contempt in the face or hearing of

the Court (Rules 1—3)

TABLE OF PROVISIONS—continued

Order

Division 2—Motion or proceedings for

punishment (Rules 4-10)

Division 3—General (Rules 11 and 12)

41. Documents

42. Partnerships and Business Names-

Division 1—Partnerships (Rules 1-10)

Division 2—Individuals trading under a Business

Name (Rules 1-20)

43. Disability

44. Interpleader—

Division 1—Preliminary (Rule 1)

Division 2—Stakeholder's Interpleader (Rules 2

and 3)

Division 3—Sheriff's Interpleader (Rules 4—7)

Division 3A—Payment pursuant to Statutory

Entitlement (Rule 7A)

Division 4—General (Rules 8-12)

45. Solicitors

46. Registries

47. Sheriff—

Division 1—General (Rules 1—4)

Division 2—Fees (Rules 5—10)

48. Inquiries under the Industrial Relations Act 1988

49. Proceedings for an Offence

50. Case Stated and Questions Reserved

51. Judiciary Act 1903— Section 78B

51A Matters remitted by the High Court of Australia

52. Appeals—

Division 1—Leave to Appeal (Rules 2A-10)

Division 2—Appeals (Rules 11-37)

NB:
THERE ARE NO ORDERS 53 TO 61 INCLUSIVE

62. Costs

63. Moneys paid into Court

NB:

THERE ARE NO ORDERS 64 TO 71 INCLUSIVE

TABLE OF PROVISIONS—continued

Order

72. Mediation and Arbitration-

Division 1—Preliminary (Rules 1—5)

Division 2—Mediation (Rules 6—8)

Division 3—Arbitration (Rules 9 and 10)

Division 4—Miscellaneous (Rule 11)

73. Representative Proceedings

74. Delegation of Powers to Judicial Registrars

75. Unlawful Termination Claims

NUMERICAL TABLE OF FORMS

SCHEDULE

Forms

Statutory Rules 1994

No. 110 1

__________________

Industrial Relations Court Rules

WE, Judges of the Industrial Relations Court of Australia, make the following Rules of Court under the Industrial RelationsAct 1988.

Dated 30 March 1994.

M. R. WILCOX C.J.

R. M. NORTHROP J

J. E. J. SPENDER J

P. R. A. GRAY J

D. M. RYAN J

M. C. LEE J

J. W. VON DOUSSA J

M. F. MOORE J

M. J. BEAZLEY J

Judges of the Industrial

Relations Court of Australia

A. DAWSON

Registrar

____________

ORDER 1

PRELIMINARY

Short title

1. These Rules may be cited as the Industrial Relations Court Rules.

Commencement

2. These Rules shall come into operation on 30 March 1994.

Interpretation

3. In these Rules, unless the contrary intention appears:

“the Act” means the Industrial Relations Act 1988;

“arbitration” means arbitration conducted under an arbitration order;

“arbitration order” means an order referring a matter to an arbitrator as mentioned in Order 72, rule 1;

“arbitrator” means an arbitrator to whom a matter is referred under an arbitration order;

“Australia” or “the Commonwealth” means the Commonwealth of Australia and when used in a geographical sense includes external territories;

“committee” includes a person entrusted under a law of the Commonwealth, or of a State or Territory, with the care or management of the person or estate of a mentally disabled person;

“Commonwealth” means the Commonwealth of Australia and includes a Territory;

“convention” means an agreement, arrangement, treaty or convention made between the Crown in right of the Commonwealth or, where appropriate, in right of a State, and a country other than Australia regarding legal proceedings in civil matters;

“convention country” means a country other than Australia to which a convention applies;

“corporation” includes any artificial person other than an organisation;

“cross-claim” includes a counter-claim, cross-action, set-off, and third party claim;

“directions hearing” means a directions hearing appointed in an application pursuant to Order 4, and except for the purposes of computation of time within which acts must be done, includes any other hearing on which the Court gives directions as to the conduct of the proceedings;

“document” includes any record of information which is a document within the definition contained in s.7A of the Evidence Act 1905 and any other material data or information stored or recorded by mechanical or electronic means;

“document exchange box” means a box in a document exchange approved by the Registrar;

“examination” includes where relevant an examination held pursuant to an order made under Order 24, and, in proceedings under Part IIIB of the EvidenceAct 1905, includes any proceeding for the taking of evidence of a person conducted by the judicial authorities of a foreign country in relation to a letter of request issued as a result of an order made by the Court under that Part;

“examiner” includes an officer of the Court or any other person appointed under Order 24, or under paragraph 7V(1)(a) or (b) of the Evidence Act 1905, for the purpose of an examination before the examiner of any person;

“hearing” includes any hearing before the Court, whether final or interlocutory, and whether in open court or in chambers;

“Judge” means a Judge of the Court (including the Chief Judge) and in the expression “the Court or a

Judge” means a Judge sitting in chambers;

“Judicial Registrar” means a judicial registrar appointed under section 375 of the Act.

“mediation” means mediation conducted under a mediation order;

“mediation or arbitration order” means a mediation order or an arbitration order;

“mediation order” means an order referring a matter to a mediator as mentioned in Order 72, rule 1;

“mediator” means a mediator to whom a matter is referred under a mediation order;

“mentally disabled person” means a person who, owing to mental illness, is incapable of managing his or her affairs in respect of the proceedings;

“oath” includes affirmation;

“organisation” has the same meaning as in the Industrial Relations Act 1988;

“person under disability” means an infant, minor or mentally disabled person;

“pleading” includes a statement of claim and a cross-claim to which Order 5 applies and subsequent pleadings, but does not include an application, notice of motion or affidavit;

“proper place” in relation to any proceeding:

(a)
where there has been no transfer means the place at which the proceeding was commenced;
(b)
where there has been a transfer means the place to which the proceeding was transferred;

“Registrar” means the Registrar or a District Registrar of the Court, and includes a Deputy Registrar or a Deputy District Registrar of the Court or other officer for the time being discharging the duties of any one of them, and when used in relation to any proceeding means the Registrar or District Registrar at the proper place;

“Registry” includes the Principal Registry and a District Registry;

“Rules” means Industrial Relations Court Rules;

“Sheriff” includes a Deputy Sheriff or any person for the time being discharging the duties of Sheriff or Deputy Sheriff;

“the Court” means the Industrial Relations Court of Australia constituted under Part XIV of the Act;

“trial” includes any hearing other than an interlocutory hearing; and

“tutor” means a next friend, guardian ad litem or committee of a person or estate of a person under disability.

Order on terms

4. Unless the contrary intention appears, where under these Rules the Court has the power to make an order or do any other act or thing, it may make that order or do that other act or thing on terms.

Alternative method of filing

(1) This rule applies to any document, other than an originating process, which is required or permitted by the Rules to be filed.

(2) A document to which this rule refers may be filed at any Registry.

(3) (a) A document to which this rule refers may be:

(i)
posted to a Registry; or
(ii)
left, addressed to the Industrial Relations Court of Australia at its box at the Australian Document Exchange;

with a written request that the document be filed.

(4) A document is filed under this rule when it is accepted in the Registry to which it is sent.

(5) An officer of the Court shall mark on the document the date of its acceptance.

(6) Whenever copies of a filed document are required by the Rules to be returned to the filing party, such copies are to be made available for collection but need not be posted to that party.

Serial Number

6.(1) The first document filed in any proceeding shall have a serial number assigned to it for the Registry in which it is filed, and that and each other document in the proceeding shall bear that number preceded by a reference to the appropriate Registry together with a reference to the calendar year in which the first document is filed.

(2) A new series of numbers shall be commenced at the beginning of each calendar year.

Forms

7.(1) Subject to subrule (2), the forms in the First Schedule shall be used where applicable notwithstanding the absence of any specific provision in the Rules in respect of the use of any particular form.

(2) A reference in these Rules to a Form by number is a reference to the Form so numbered in the Schedule.

(3) It shall be sufficient compliance with these Rules as to the form of any document if the document is substantially in accordance with the requirement or has only such variations as the nature of the case requires.

Relief from Rules

8. The Court may dispense with compliance with any of the requirements of the Rules, either before or after the occasion for compliance arises.

Proceedings wanting or in doubt

9.(1) Where a person desires to commence a proceeding or take any step in a proceeding, and the manner or form of procedure is not prescribed by the Act or the Rules or by or under any other Act, or that person is in doubt as to the manner or form of procedure, the Court may, on application by that person, give directions.

(2)

A proceeding commenced in accordance with the directions of the Court shall be well commenced.

(3) A step taken in accordance with the directions of the Court shall be regular and sufficient.

Industrial Relations Regulations

10. In any case where the Regulations made under the Act prevail over the provisions of these Rules, it shall, to the extent that duplication would otherwise be involved, be unnecessary to comply with these Rules.

ORDER 2

SITTINGS AND VACATION

Sittings

1. The sittings of the Full Court in the Court’s appellate jurisdiction shall be held in each year at such times and places as the Chief Justice directs.

Vacations

2.(1) There shall be a fixed vacation in each year during the period from the beginning of the Monday before 24 December until the first Monday in February together with such other variable vacation or vacations as the Chief Justice shall determine.

(2) A hearing shall not be held in the fixed vacation, unless the Court otherwise orders.

Court holiday

3. The day after Easter Monday in each year is a holiday to be observed by the Court and the Registry.

ORDER 3

TIME

Month

1. In any judgment or order and in any document in any proceeding, unless the context or subject matter otherwise indicates or requires, “month” means calendar month.

Reckoning

2.(1)Any period of time fixed by rules or by any judgment or order or by any document in any proceeding, shall be reckoned in accordance with this rule.

(2) Where a time of one day or a longer time is to be reckoned by reference to a given day or event, the given day or the day of the given event shall not be counted.

(3) Where, apart from this subrule, the period in question, being a period of 5 days or less, would include a day on which the Registry is closed, that day shall be excluded.

(4) Where the last day for doing a thing is a day on which the Registry is closed, the thing may be done on the next day on which the Registry is open.

(5) Subsection 36(2) of the Acts Interpretation Act 1901 does not apply to these Rules.

Extension and abridgment

3.(1) The Court or a Judge may by order extend or abridge any time fixed by the Rules or by any judgment or order.

(2) The Court or a Judge may extend time under subrule (1) either before or after the time expires and whether or not an application for the extension is made before the time expires.

(3) The period within which a person is required by rules or by any order to serve, file or amend any pleading or other document may be extended by consent without an order for extension.

Fixing times

4. Where no time is fixed by the Rules or by any judgment or order of the Court or a Judge for the doing of any thing in or in connection with any proceeding, the Court may, by order, fix the time within which the thing is to be done.

Vacation

5. In the period from the beginning of the day on which the fixed vacation begins until the end of 14 January next following, time shall not, unless the Court otherwise orders, run so as to put any party in default in respect of any act for the doing of which a time is fixed by the Rules or by any judgment or order of the Court but business may be done during that period.

Registry hours

6.(1)The District Registries of New South Wales and Victoria shall be open to the public for business between 10 in the morning and 4 in the afternoon, except on Saturdays, Sundays and other holidays.

(2) The Principal Registry and the District Registries of the States other than New South Wales and Victoria and of the Territories, shall be open to the public for business from 10 in the morning until 1 in the afternoon and from 2 until 4 in the afternoon, except on Saturdays, Sundays and other holidays.

(3) A Registry may in the discretion of the Registrar, and shall on the direction of a Judge, be opened at other times for urgent business.

ORDER 4

COMMENCEMENT OF PROCEEDINGS

Commencement by application-Form 5

1.(1)Except as otherwise provided in these Rules all proceedings in the Court’s original jurisdiction shall be commenced by filing an application.

(2) An application shall be in or substantially in the form numbered 5 in the First Schedule.

Parties

2.(1) A party claiming relief shall be called an applicant.

(2)

A party against whom relief is claimed shall be called a respondent.

Relief claimed

3.(1) An application must specify:

(a)
the relief claimed by the applicant; and
(b)
if the relief depends on a provision of an Act-the Act and the provision.

(2) Where the claim for relief includes a claim for the determination or direction of the Court on any question, the application shall state the question.

(3) Exemplary damages shall be specifically claimed.

Name, address etc.

4.(1) An application shall contain:

(a)
the name and address of the applicant;
(b)
where a party sues or is sued in a representative capacity a statement of that fact;
(c)
where the applicant sues by a solicitor, the name, address and telephone number of the solicitor;
(d)
where the applicant sues by a solicitor and that solicitor has another solicitor as agent in the proceeding, the name, address and telephone number of the agent; and
(e)
an address for service.

(2) Where it appears from an application that the applicant sues by a solicitor:

(a)
the solicitor shall, on request in writing by a respondent, declare in writing whether the application was filed by the solicitor; and
(b)
if the solicitor declares in writing that the application was not filed by the solicitor, the Court may, on application by a respondent, stay the proceeding.

Notice to appear

5. Where there is a respondent, an application shall bear a note that:

(a)
if there is no attendance before the Court by the respondent or his or her counsel or solicitor at the time and place stated in the application, the proceeding may be heard and the respondent will be liable to suffer judgment or an order against him or her; and
(b)
before any attendance at that time the respondent must enter an appearance in the Registry.

Affidavit or statement of claim—Form 7

6.(1) The applicant shall file and serve with the application either an affidavit or a statement of claim, whichever is appropriate.

(2)The affidavit or statement of claim shall show:

(a)
the nature of the applicant’s claim; and
(b)
the material facts on which it is based.

Filing and copies

7.(1) Upon an application and affidavit or statement of claim being filed, the Registrar on the applicant’s request shall sign and seal with the seal of the Court a sufficient number of copies of the application for service and proof of service.

(2)The serial number of the proceeding shall be endorsed on each document.

Date for directions hearing

8. Subject to rule 9, an application shall state a date for a directions hearing.

Claim for interlocutory relief

9.(1) Where a claim for interlocutory relief is included in an application, that claim shall be distinctly made.

(2) A date for the hearing of the claim for interlocutory relief must be endorsed on the application.

(3) If a date for hearing is endorsed on the application under subrule (2), a separate date for a directions hearing must not also be endorsed on the application.

(4) At the hearing of the claim for interlocutory relief the Court may give such directions as it thinks fit, as in a directions hearing.

Endorsement of date

10.(1) The date for a hearing under rule 8 or rule 9 must be obtained

(2) If the Court has made an order abridging time, the application must bear a note of the order made.

Time for service

11.A copy of an application and affidavit or statement of claim must be served, in accordance with Order 7, on the respondent named in the application, unless the Court otherwise orders, not less than 5 days before the date appointed for hearing under rule 8 or rule 9.

Alteration of date

12.(1)Where a date for hearing has been obtained or made, the Court or the Registrar may alter the date to a later date and may authorise the solicitor for a party to make corresponding alterations in any copy for service of any application or notice.

(2)The Registrar may give authority by telephone or by any other means that the Registrar thinks fit.

(3) This rule does not apply to a proceeding to which Order 71 applies if a public notice or advertisement of the date for hearing of the proceeding is required under Order 71 or by directions made by the Court in that proceeding.

Alteration of date where service less than 5 days before hearing

13.(1) Where an application and affidavit or statement of claim have been served upon the respondent named in the application less than 5 days before the date for hearing endorsed on the application under rule 8 or 9, the Court or Registrar may alter the date to a later date and may authorise the solicitor for a party to give notice to the respondent of the altered date by posting an altered copy of the application by registered post:

(a)
to the usual or last known place of business or abode of the respondent; or
(b)
if appropriate—to the place at which the application was served.

(2) The authority may be given by telephone or by such other means as the person giving the authority thinks fit.

Suit in person

14.(1) Subject to subrule (2) and to Order 43 (“Disability”), any person may proceed in the Court by a solicitor or in person.

(2) Except as provided by or under any Act, a corporation may not, without the leave of the Court, commence or carry on any proceeding otherwise than by a solicitor.

(3) Subrule (2) does not apply to an organisation.

Proceeding by rule—Form 6

15.(1) This rule operates only for so long as paragraph 342(2)(a) of the Act specifies the making of a rule as a condition precedent to the grant of financial assistance.

(2) A proceeding under sections 208 or 209 of the Act must be by rule, in accordance with Form 6, calling upon the person or organisation concerned to show cause why the order should not be made.

(3) An application for a rule under subrule (2) may be made to a Judge ex parte supported by an affidavit verifying the facts upon which the application is based.

(4)The affidavit in support of an application under section 208 of the Act must set forth:

(a)
the rule, or rules, of the organisation, to which the application relates;
(b)
the nature of the order sought; and
(c)
a short statement of the reasons relied on by the applicant.

(5) The affidavit in support of an application under section 209 of the Act must set forth:

(a)
the rule or rules of the organisation the performance or observance of which is in question;
(b)
the nature of the order sought; and
(c)
a short statement of the grounds relied on by the applicant as establishing the obligation of the person against whom the order is sought to perform or observe the rule or rules in question.

(6) As soon as practicable after an application for a rule specified in subrule (1) is granted, the applicant shall file the rule and the supporting affidavit with the Registrar.

Proceeding under section 261 of the Act

16.(1) This rule operates only for so long as paragraph 342(2)(q) of the Act specifies the making of a rule as a condition precedent to the grant of financial assistance.

(2) A proceeding under section 261 of the Act must be by rule in accordance with Form 6, calling upon the person or organisation concerned to show cause why the order should not be made.

(3) An application for a rule under subrule (2) may be made to a Judge ex parte supported by an affidavit verifying the facts upon which the application is based.

(4) The affidavit in support of an application under section 261 of the Act must set forth:

(a)
the rule, or rules, of the organisation to which the application relates;
(b)
the nature of the order sought; and
(c)
a short statement of the reasons relied upon by the applicant.

Preliminary discovery

17.(1) Where, on application by any person, it appears to the Court or a Judge that:

(a)
the applicant, having made reasonable inquiries, is unable to ascertain the identity of a person for the purpose of commencing proceedings against that person or is unable to ascertain the description of any person sufficiently for that purpose; and
(b)
some person has or may have knowledge of facts, or has or may have in his or her possession, custody or power any document or thing tending to assist in the ascertainment of the identity or description of the person concerned;

the Court or a Judge may order that person:

(c)
to attend before the Court or a Judge and be orally examined on any matter relating to the identity or description of the person concerned; and
(d)
to produce to the Court or a Judge any document or thing in his or her possession, custody or power relating to the identity or description of the person concerned.

(2) Where, on the application of any person, the matters mentioned in paragraph (1)(a) appear to the Court or a Judge and it further appears to the Court or a Judge that a corporation has or may have in its possession, custody or power any document or thing tending to assist in the ascertainment of the identity or description of the person concerned, the Court or a Judge may order the corporation or any officer of the Corporation to produce any document or thing in the possession, custody or power of the corporation relating to the identity or description of the person concerned.

(3) In this rule:

“description” includes the name, place or residence, place of business, occupation and sex of the person concerned;

“person concerned” means the person referred to in paragraph (1)(a).

(4) An application for an order under this rule shall be in or substantially in the form numbered 5A in the First Schedule, the person or corporation against whom the order is claimed being made respondent to the application.

(5) An order made under subrule (1) or (2) shall be served personally on the person or corporation ordered to attend or to produce any document or thing.

(6) An application for an order under subrule (1) or (2) shall be made in the Division in which the proceedings referred to in paragraph (1)(a) would be dealt with.

(7)An order under subrule (1) or (2) shall not require a person to attend or to produce any document or thing on any day on which his or her attendance, or production by that person, is required, unless a sum sufficient to meet his or her reasonable expenses of complying with the order in relation to that day is paid or tendered to that person at the time of service of the order or not later than a reasonable time before that day.

(8) Where an order under subrule (2) requires a corporation to produce any document or thing, the sum mentioned in subrule (7) may be paid or tendered to any person apparently an officer of, or in the service of, the corporation and apparently of or above the age of sixteen years.

(9) Where any person incurs expense or loss in complying with an order under subrule (1) or (2) in an amount exceeding any sum paid under subrule (7), the Court or a Judge may order the applicant to pay to that person an amount sufficient to make good the expense or loss.

ORDER 5

CROSS-CLAIMS AND THIRD PARTY CLAIMS

Claim by respondent

1.(1) A respondent may cross-claim against an applicant for any relief to which the respondent would be entitled against the applicant if the applicant were a respondent in a separate proceeding commenced in the Court by the respondent for that purpose.

(2) A respondent may cross-claim against any person whether another party or a third party for any relief which is related to or connected with the subject of the proceeding.

(3) Without prejudice to the generality of subrule (2), a respondent may cross-claim for contribution or indemnity.

Cross-claim—Form 1

2.(1) A cross-claim shall be entitled in the proceeding with an addition showing the names of the parties to the cross-claim.

(2) Order 4, rule 3 applies to a cross-claim whether the cross-claim is against an applicant or any other person.

Title

3. On a cross-claim being filed, a document afterwards filed or used in the proceeding shall be entitled in the manner in which the cross-claim is entitled.

Rules applicable where statement of claim

4. Rules 5 and 6 of this Order apply where a proceeding is commenced by application supported by statement of claim, or where the Court has ordered that the proceeding continue on pleadings.

Pleading—Forms 8, 9, 10

5.(1) A respondent may file a pleading by way of cross-claim within the time fixed for filing his or her defence or any extension thereof.

(2) A cross-claim under subrule (1) shall be in or substantially in the forms numbered 8, 9 or 10 in the First Schedule.

(3) Where a cross-claimant cross-claims solely against a party who claims in the proceeding against the cross-claimant, the cross-claimant may add the cross-claim to his or her defence.

(4) Subject to Order 11, rule 16 (which relates to embarrassing proceedings and the like), a cross-claimant may in the cross-claim plead all or any of the facts relied on by reference to the prior pleadings in the proceeding.

(5)

A cross-claimant must, in addition to pleading any other facts on which he or she relies, plead the facts showing that the cross-claim is one to which rule 1 of this Order applies.

Service of prior pleadings-Form 11

6.(1) A respondent to a cross-claim who is made a party to the proceeding by the filing of the cross-claim may, by notice filed and served on the cross-claimant, require the cross-claimant to serve on him or her all or any of the pleadings in the proceeding filed before the filing of the cross-claim.

(2) A respondent to a cross-claim may add a notice under subrule (1) to his or her notice of appearance.

(3) Where a notice under subrule (1) is served on a cross-claimant then, unless the Court otherwise orders, the cross-claimant must, within 3 days after service of the notice or such longer time as may be specified in the notice, serve on the respondent to the cross-claim giving the notice each pleading mentioned in the notice.

Rules applicable where affidavit

7. Rules 8 and 9 apply where a proceeding is commenced by application supported by affidavit and where:

(a)
a cross-claim is filed before the directions hearing; or
(b)
a cross-claim is filed after the directions hearing and the Court has not ordered that the proceedings continue on pleadings.

Cross-claims by leave

8.(1) Subject to subrules 9(1) and (2), a respondent may cross-claim against an applicant or any other party without the leave of the Court, but may not cross-claim against any other person not being a party without such leave.

(2) Subject to subrule (4), a respondent must not cross-claim against an applicant before he or she has filed an affidavit in reply to the applicant’s claim.

(3) A cross-claim must be in accordance with Form 8 or 9, and accompanied by an affidavit stating:

(a)
the nature of the cross-claim;
(b)
the material facts on which the cross-claimant relies; and
(c)
the facts showing that the cross-claim is one to which rule 1 applies.

(4) A respondent who cross-claims against an applicant only may include the matters referred to in subrule (3) in the affidavit in reply to the applicant’s claim, and need not file a separate affidavit in support of the cross-claim.

Cross-claim after directions hearing

9.(1) A respondent desiring to cross-claim after the directions hearing must obtain all necessary directions at the directions hearing in relation to the cross-claim, including the time within which the cross-claim is to be filed.

(2) A respondent who does not obtain directions pursuant to subrule (1) must not cross-claim after the directions hearing without the leave of the Court.

Service

10.(1) Where a respondent to a cross-claim has, on the date of filing the cross-claim, an address for service in the proceeding, the cross-claimant must, on that date, serve the cross-claim on the respondent to the cross-claim.

(2)Where a respondent to a cross-claim has an address for service in the proceeding, personal service of the cross-claim on the respondent is not required.

(3)Order 7, rule 11 (which relates to cases where filing operates as service) does not apply to the service of a cross-claim.

Conduct of proceeding generally

11.(1) Subject to this Order and to Order 11, a proceeding on a cross-claim must follow as nearly as may be the course of the proceeding on the originating process in respect of which the cross-claim is filed.

(2) Subject to this Order and to Order 11, and without limiting the generality of subrule (1), these Rules apply to a cross-claim and the proceeding arising from it as they apply to the originating process in respect of which the cross-claim is filed and the proceeding arising from it.

(3)

Subrules (1) and (2) apply as if:

(a)
the cross-claim were the originating process in respect of which the cross-claim is filed;
(b)
the cross-claimant were an applicant; and
(c)
the respondent to the cross-claim were a respondent.

(4) An applicant in an originating process need not enter an appearance to a cross-claim in the same proceeding.

(5) An appearance entered by a party to the proceeding shall, upon service of a cross-claim on him or her, operate as an appearance to the cross-claim.

(6) A cross-respondent who has not previously entered an appearance in the original proceedings must enter an appearance:

(a)
where the cross-claim is served on the cross-respondent before the date appointed for a directions hearing in the application in the original proceeding-before that date; or
(b)
in any other case-within 14 days after service of the cross-claim on the cross-respondent.

(7)Subject to this Order, the trial or hearing and all other steps in the proceeding on the cross-claim must as far as practicable be carried on together with the trial or hearing and similar steps in the proceeding on the originating process in respect of which the cross-claim is filed.

Directions

12.(1) A party to the proceeding may, at any time after the filing of a cross-claim, move for directions.

(2) On any directions hearing, or on the trial or hearing of the cross-claim, the Court may:

(a)
make any order or direction it may make under Order 10;
(b)
order that any claim, question or issue in or arising on the cross-claim be tried in such manner as the Court may direct;
(c)
give to a respondent to the cross-claim leave to defend the claim on the originating process or any other cross-claim in the proceeding, either alone or in addition to any other party;
(d)
give to a respondent to the cross-claim leave to appear at the trial or hearing of the claim on the originating process or on any other cross-claim in the proceeding and to take such part in the trial or hearing as the Court thinks fit;
(e)
dismiss the cross-claim;
(f)
determine the extent to which the cross-claimant and a respondent to the cross-claim shall be bound as between themselves by a judgment (including a judgment by consent or by default) or decision (including a decision by consent) on the claim on the originating process or any other cross-claim in the proceeding;
(g)
pronounce such judgment as the nature of the case may require;
(h)
give such directions as the Court thinks fit for having the rights and liabilities of the parties determined and enforced, including any order or direction which may be made or given under this Order.

(3) Order 10, rules 4 to 7 apply to a motion for directions under this rule.

Default of respondent to cross-claim

13. Where a respondent to a cross-claim does not enter an appearance or file a defence, if and as required by these Rules, or does not file a defence in accordance with an order to do so, a judgment (including a judgment by default or by consent) or decision (including a decision by consent) on any claim, question or issue in the proceeding on the originating process or on any other cross-claim in the proceeding shall, unless the Court otherwise orders, be binding as between the cross-claimant and the respondent to the cross-claim so far as the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.

Setting aside default judgment

14. Where judgment on a cross-claim is pronounced and an order made in default of appearance or where applicable, in default of defence or in consequence of default in compliance with an order or direction of the Court, the Court may set aside or vary the judgment or order.

Separate prosecution

15. A cross-claim may proceed notwithstanding that judgment has been pronounced and an order made and entered on the originating process or any other cross-claim in the proceeding, or that the proceeding on the originating process or any other cross-claim is stayed, dismissed or discontinued.

Contribution or indemnity

16. Where a respondent makes a cross-claim for contribution or indemnity in respect of a claim against him or her in the proceeding:

(a)
an order on a judgment for the claimant on the cross-claim must not be entered except by direction of the Court;
(b)
judgment for the claimant on the cross-claim shall not, unless the Court otherwise orders, be enforced by execution until satisfaction of any judgment in the proceeding against the cross-claimant.

Offer of contribution

17. Where in any proceeding:

(a)
a party (in this rule called the first party) stands to be held liable to another party (in this rule called the second party) to contribute towards any debt or damages which may be recovered against the second party in the proceeding; and
(b)
the first party, at any time after entering an appearance, makes an offer to the second party to contribute to a specific extent to the debt or damages;

then, if the first party makes the offer without prejudice to his or her defence, the offer shall not be brought to the attention of the Court until all questions of liability or amount of debt or damages have been decided.

ORDER 6

PARTIES AND CAUSES OF ACTION

Multiple claims

1. Subject to rule 6, an applicant, whether claiming in the same or different capacities, may, in any proceeding, claim relief in respect of more than one cause of action.

Joinder of parties generally

2.Two or more persons may be joined as applicants or respondents in any proceeding:

(a)
where:
(i)
if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and
(ii)
all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b)
where the Court gives leave so to do.

Joint right

3.(1) Where, in any proceeding, the applicant claims relief to which any other person is entitled jointly with the applicant:

(a)
all persons so entitled shall be parties to the proceeding; and
(b)
any of them who does not consent to being joined as an applicant shall be made a respondent.

(2) Subrule (1) applies subject to any Act and applies unless the Court gives leave to the contrary.

Leave under rule 2 and subrule 3(2)

4.(1) The Court may grant leave under rule 2 or subrule 3(2) before or after the non-joinder.

(2) An applicant may apply for leave under rule 2 or subrule 3(2):

(a)
either before or after the filing of the originating process; and
(b)
without serving notice of the motion on any person on whom the application has not been served.

Common liability

5.(1) Where, in any proceeding, relief is claimed against a respondent who is jointly liable with some other person and also severally liable, that other person need not be made a respondent to the proceeding.

(2) Where persons may be jointly, but not severally, liable and relief is claimed against some but not all of those persons in a proceeding, the Court may stay the proceeding until the other persons so liable are added as respondents.

Inconvenient joinder

6.Where any joinder of parties or of causes of action may complicate or delay trial of the proceeding or is otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit.

Misjoinder and non-joinder of parties

7.(1) A proceeding shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party.

(2) The Court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the parties.

Addition of parties

8.(1) Where a person who is not a party:

(a)
ought to have been joined as a party; or
(b)
is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon;

the Court, on application by that person or by any party, or of its own motion, may order that the person be added as a party and make orders for the further conduct of the proceeding.

(2) A person must not be added as an applicant without his or her consent.

Removal of parties

9. Where a party:

(a)
has been improperly or unnecessarily joined; or
(b)
has ceased to be a proper or necessary party;

the Court, on application by any party or of its own motion, may order that the first-named party cease to be a party and make orders for the further conduct of the proceeding.

Death, transmission etc.

10.(1) Where a party dies or becomes bankrupt but a cause of action in the proceeding survives, the proceeding shall not abate by reason of the death or bankruptcy.

(2) Where the interest or liability of a party passes, by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or re-arrangement of parties and may make orders for the further conduct of the proceeding.

(3) The Court may act under subrule (2) on application by a party or by a person to whom the interest or liability passes, or of its own motion.

Further conduct of proceedings

11.(1) Without limiting the generality of the powers of the Court under rules 8, 9 and 10, orders under those rules for the further conduct of the proceeding may include orders relating to:

(a)
service of the order and other documents in the proceeding;
(b)
amendment;
(c)
appearance of added parties; and
(d)
substitution of one party for another party or former party.

(2) Where the Court orders that a party be substituted for another party or a former party, all things done in the proceeding before the making of the order, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old, but entry of appearance by the old party is not to dispense with entry of appearance by the new.

(3) Subject to subrule (2), where a party is added pursuant to an order under rule 8 or rule 10, the date of commencement of the proceeding so far as concerns that party, is:

(a)
the date of filing of the originating process, amended to add that person as a party; or
(b)
if an amended originating process is not filed - the date of the amendment adding that person as a party.

Failure to proceed after death of party

12.(1) Where:

(a)
a party dies but a cause of action in the proceeding survives; and
(b)
an order under rule 10 for the addition of a party in substitution for the deceased party is not made within 3 months after the death;

the Court may, on application by a party or by a person to whom liability on the cause of action survives on the death, order that, unless, within a specified time after service of the order in accordance with subrule (2), a party is added in substitution for the deceased party, the proceedings be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon, as the case may be, survives on the death.

(2) On making an order under subrule (1), the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceeding.

Representation: concurrent interests

13.(1) Where numerous persons have the same interest in any proceeding the proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all, or as representing all except one or more of them.

(2) At any stage of a proceeding under this rule, the Court, on the application of the applicant, may appoint any one or more of the respondents or other persons (as representing whom the respondents are sued) to represent all, or all except one or more, of those persons in the proceeding.

(3) Where, under subrule (2), the Court appoints a person who is not a respondent, the Court must make an order under rule 8 adding that person as a respondent.

(4) A judgment pronounced or an order made in a proceeding under this rule is binding on all the persons as representing whom the applicants sue or, as the case may be, the respondents are sued, but must not be enforced against any person not a party to the proceeding except with the leave of the Court.

(5)An application for leave under subrule (4) may be made only by motion, notice of which must be served personally on the person against whom it is sought to enforce the judgment or order.

(6) Notwithstanding that a judgment or order to which an application under subrule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him or her on the ground that by reason of facts and matters particular to the case he or she is entitled to be exempted from the liability.

(7)This rule does not apply to a proceeding concerning property subject to a trust or included in a deceased estate.

Representation of beneficiaries by trustees

14.(1) A proceeding concerning property subject to a trust or included in a deceased estate may be brought by or against the trustees or personal representatives without joining a person having a beneficial interest in the trust or estate and unless the Court otherwise orders on the ground that the trustees or personal representatives could not or did not represent the interest of that person, an order granted or made in the proceedings is binding on that person.

(2) Subrule (1) does not limit the power of the Court to order a person having an interest to be made a party.

Deceased person

15.(1) Where in any proceeding it appears to the Court that a deceased person was interested, or that the estate of a deceased person is interested, in any matter in question in the proceeding, and that the estate has no personal representative, the Court may, on the application of any party:

(a)
order that the proceeding continue in the absence of a person representing the estate; or

(b)

by order (with the consent of the person appointed) appoint a person to represent that estate for the purposes of the proceeding.

(2) An order under subrule (1), and any judgment or order subsequently pronounced or made in the proceeding, binds the estate of the deceased person to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceeding.

(3) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.

Conduct

16. The Court may give the conduct of the whole or any part of any proceeding to such person as it thinks fit.

ORDER 7

SERVICE

Originating process

1.(1) Subject to the provisions of this Order, originating process must be served personally on each respondent.

(2) The copy for service shall be signed and sealed as mentioned in Order 4, rule 7.

(3) Where a respondent to any originating process files an unconditional appearance, the originating process shall be taken to have been served on the respondent personally on the date on which the respondent’s notice of appearance is filed or on such earlier date as may be proved.

Personal service: how effected

2.(1) Personal service of a document is effected on:

(a)
an individual-by leaving a copy of the document with him or her;
(b)
a corporation-by leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently of or above the age of sixteen years:
(i)
at the registered office of the corporation; or
(ii)
if there is no registered office, at the principal place of business or the principal office of the corporation; and
(c)
an unincorporated association-by leaving a copy of the document at the principal place of business or the principal office of the association with some person apparently an officer of or in the service of the association and apparently of or above the age of sixteen years; and
(d)
an organisation-by leaving a copy of the document with some person apparently an officer of or in the service of the organisation and apparently of or above the age of 16 years at the office of the organisation shown in the copy records of the organisation lodged in the Industrial Registry under section 268 of the Act;

or as the Court or a Judge may direct.

(2)If a person refuses to accept service of a document, personal service may be effected on the person by putting the document down in his or her presence and telling him or her the nature of it.

(3)It shall not be necessary in order to effect personal service that the original document be shown.

(4) In spite of subrule 2(1), personal service may be effected:

(a)
on a company, as defined in section 9 of the Corporations Act 1989 of the Commonwealth or corresponding legislation of a State or Territory (“the Corporations Law”), in any manner permitted by section 220 of the Corporations Law; and
(b)
on the liquidator of a company, in the manner permitted by subsection 220(5) of the Corporations Law; and
(c)
on an official manager of a company, in the manner permitted by subsection 220(6) of the Corporations Law.

Mode of service

3. A document which is not an originating process and which is required or permitted to be served in any proceeding may be served personally, but unless personal service is expressly required, it need not be served personally.

Ordinary service: how effected

4.(1) Where personal service of a document is not required, the document may be served:

(a)
by leaving a copy of the document at the proper address of the person to be served between the hours of nine in the morning and five in the afternoon on any day on which the Registry in that State or Territory is open; or
(b)
by sending a copy of the document by pre-paid post addressed to the person to be served at the person’s proper address; or
(c)
where any enactment of the Commonwealth or of the State or Territory in which service is to be effected provides for service of a document on a corporation or organisation by serving the document in accordance with such provision; or
(d)
where a person to be served has, under rule 7 of this Order, filed a notice for service at an exchange box of a solicitor, by leaving a copy of the document, addressed to that solicitor, in that exchange box; or
(e)
by facsimile transmission directed to the facsimile transmission number operated at, or in connection with, the proper address.

(2) For the purposes of subrule (1), the proper address of a person shall be the address for service of that person in the proceeding but if, at the time when the copy is left or posted pursuant to subrule (1), the person has no address for service in the proceeding, the person’s usual or last known place of business or of abode shall be the proper address.

(3) The time of service of any document for the purpose of any proceeding shall, where the copy of the document:

(a)
is sent by pre-paid post in accordance with paragraph (1)(b)-be seven days after the copy is so sent; or
(b)
is left in an exchange box in accordance with paragraph (1)(d)—be two days after the copy is so left; or
(c)
if the copy of the document is sent by facsimile transmission in accordance with paragraph (1)(e)—be one day after the copy is transmitted excluding Saturdays, Sundays and public holidays.

Service on Principal Solicitor

4A.(1)Where personal service of a document is not required and the person to be served has a solicitor acting for him or her, which solicitor has another solicitor as agent whose address is that person’s proper address, the document may be served:

(a)
by leaving a copy of the document at the address of the first-named solicitor;
(b)
by sending a copy of the document by pre-paid post addressed to the person to be served at the address of the first-named solicitor; or
(c)
where an appropriate notice has been given under rule 7 of this Order by leaving a copy of the document addressed to the first-named solicitor at the exchange box of that solicitor.

(2) The time of service of any document for the purpose of any proceedings shall be:

(a)
if the copy of the document is sent by pre-paid post in accordance with paragraph (1)(b)—7 days after the copy is so sent; or
(b)
if the copy of the document is left in an exchange box in accordance with paragraph (1)(c)—2 days after the copy is so left.

Identity

5. For the purposes of the proof of service, evidence of a statement by a person concerning the identity of, or office held by, that person is evidence of the person’s identity or that the person holds that office, as the case may be.

Address for service

6.(1) An address for service shall be the address of a place within ten kilometres of the Registry at the proper place (other than the document exchange referred to in rule 7 of this Order) at which documents in the proceedings may, during ordinary business hours, be left for the person whose address for service it is and to which documents in the proceeding may be posted for that person.

(2) The address for service of a person represented by a solicitor shall be the office of the solicitor or of the solicitor’s agent.

(3)A person may change his or her address for service by filing a notice of the change showing a new address for service.

(4) A person who files a notice of change of address for service shall, on the date of filing, serve the notice on each party to the proceedings.

Document exchange—Form 12

7.(1) A person whose address for service is the office of a solicitor who uses the facilities of a document exchange may file a notice authorizing service at that solicitor’s said document exchange box in the prescribed form or add a notice to that effect to the person’s originating process (other than a cross-claim) or notice of appearance.

(2) A person may change the particulars stated in his or her notice authorizing service at a document exchange box by filing a notice showing the new particulars or cancel the notice authorizing service at a document exchange box by filing a notice to that effect.

(3) A person who files a notice authorizing service at a document exchange box (other than a notice added to an originating process or a notice of appearance), a notice of a change or a notice of cancellation shall, on the date of filing, serve the notice on each party to the proceeding.

(4) A change or cancellation of which notice is required to be served under this rule shall not be effective as between the person to be served and another party until the notice is filed and served on that other party.

Acceptance by solicitor

8.(1)This rule applies to:

(a)
any originating process; and
(b)
any document required or permitted to be served in any proceeding, but not required to be served personally.

(2)Where a solicitor makes on a copy of a document to which this rule applies a note that he or she accepts service of the document on behalf of any person, the document shall, unless that solicitor is shown not to have had authority to act for such person, be taken to have been duly served on that person on the date on which the solicitor makes the note or on such earlier date of service as may be proved.

Substituted service

9.(1) Where for any reason it is impractical to serve a document in the manner set out in the Rules, the Court may on an application made ex parte order that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person to be served.

(2) Where the Court makes an order under subrule (1), the Court may order that the document be taken to have been served on the happening of any specified event, or on the expiry of any specified time.

Informal service: confirmation

10. Where for any reason it is impractical to serve a document in the manner set out in the Rules, but steps have been taken to bring the document to the notice of the person to be served, the Court may order that the document be taken to have been served on that person on a date specified in the order.

Service by filing

11.Where personal service is not required, and the person to be served is in default of appearance or has entered an appearance but has no address for service in the proceeding, the filing of the document shall, unless the Court otherwise orders, have effect as service of the document on that person.

Notice etc. by the Court

12. Where, under the Rules or under an order, any notice or other document is to be given to or served on any party by the Court or any officer of the Court, the notice or document shall, unless the Rules otherwise provide or the Court otherwise orders, be sufficiently given or served in any manner in which a document not requiring personal service may be served under this Order.

Injunction: service

13. Where the Court grants an interlocutory injunction, the party may serve notice of the injunction, if desired, by telegram or letter signed by or on behalf of the Registrar.

Service under contract

14. Where a respondent in any proceeding has, before or after the commencement of the proceeding, agreed that originating process or any other document in the proceeding may be served on the respondent or on some other person on behalf of the respondent in a manner or at a place (whether in or outside the Commonwealth) specified in the agreement, service in accordance with the agreement shall be sufficient service on the respondent.

ORDER 8

SERVICE OUTSIDE THE JURISDICTION

Division 1—General

Cases for service of originating process

1. Subject to rule 2 and Division 2 and 3 of this Order, originating process may be served outside the Commonwealth in the following cases:

(a)
where the proceeding is founded on a cause of action arising in the Commonwealth;
(aa)
where the proceeding is founded on a breach in the Commonwealth of a contract, wherever made, whether or not the breach is preceded or accompanied by a breach, wherever occurring, that renders impossible the performance of any part of the contract which ought to be performed in the Commonwealth;
(ab)
where the proceeding:
(i)
is for the enforcement, rescission, dissolution, rectification or annulment of a contract; or
(ii)
otherwise affects a contract; or
(iii)
is for damages or other relief in respect of the breach of a contract;
and the contract:
(iv)
is made in the Commonwealth; or
(v)
is made on behalf of the person to be served by or through an agent carrying on business or residing in the Commonwealth; or
(vi)
is governed by the law of the Commonwealth or of a State or Territory;
(ac)
where the proceeding is founded on a tort committed in the Commonwealth;
(ad)
where the proceeding is founded on, or is for the recovery of, damage suffered wholly or partly in the Commonwealth caused by a tortious act or omission, wherever occurring;
(ae)
where the proceeding is for the construction, rectification, setting aside or enforcement of:
(i)
a deed, will or other instrument; or
(ii)
a contract, obligation or liability;
affecting property in the Commonwealth;
(af)
where the proceeding is for:
(i)
the execution of a trust that is governed by the law of the Commonwealth or of a State or Territory; or
(ii)
relief that might be granted in a proceeding for the execution of that trust;
(ag)
where the proceeding affects the person to be served in respect of his or her membership of a corporation:
(i)
carrying on business in the Commonwealth; or
(ii)
registered in a State or Territory as a foreign company;
(ah)
where the proceeding relates to an arbitration held in the Commonwealth;
(ai)
where:
(i)
the proceeding is for relief relating to the custody, guardianship, protection or welfare of a minor, whether or not the minor is in the Commonwealth; and
(ii)
apart from service, the Court has jurisdiction to grant relief;
(b)
where the proceeding is founded on a breach of an Act, where the breach is committed in the Commonwealth;
(c)
where the proceeding is founded on a breach, wherever occurring, of an Act, and is brought in respect of, or for the recovery of, damage suffered wholly or partly in the Commonwealth;
(d)
where the proceeding is for contribution or indemnity in respect of a liability enforceable by a proceeding in the Court;
(e)
where the person to be served is domiciled, incorporated or ordinarily resident in the Commonwealth, or being a corporation carries on business in the Commonwealth or is registered in any State or Territory as a foreign company;
(f)
where the proceeding is a proceeding in respect of which the person to be served has submitted to the jurisdiction of the Court;

(g)
where the proceeding is properly brought against a person served or to be served in the Commonwealth and the person to be served outside the Commonwealth is properly joined as a party to the proceeding;
(h)
where the subject matter of the proceeding, so far as concerns the person to be served is property in the Commonwealth;
(i)
where the proceeding is for the perpetuation of testimony relating to property in the Commonwealth;
(j)
where the proceeding is for an injunction as to anything to be done in the Commonwealth or against the doing of any act in the Commonwealth, whether damages are also sought or not;
(k)
where the proceeding affects the person to be served in respect of that person’s:
(i)
membership of or office within a corporation incorporated or carrying on business within the Commonwealth;
(ii)
membership of or office within an association or organisation formed or carrying on the whole or part of its affairs within the Commonwealth; or
(iii)
conduct as a member or officer of such corporation, association or organisation;
(l)
where the proceeding concerns the construction, effect or enforcement of an Act or a regulation or other instrument having or purporting to have effect under an Act;
(m)
where the proceeding concerns the effect or enforcement of an executive, ministerial or administrative act done or purporting to be done under an Act or regulation or other instrument having or purporting to have effect under an Act;
(n)
where the proceeding, so far as concerns the person to be served, falls partly within one of the foregoing paragraphs and falls, as to the residue, within one or more of the others of the foregoing paragraphs.

Leave or confirmation

2.(1) Service outside the Commonwealth of originating process is not valid under this Order unless:

(a)
the service is in accordance with the prior leave of the Court given under subrule (2);
(b)
the Court confirms the service under subrule (4); or
(c)
the person served waives objection by entering an appearance.

(2) Where the Court is satisfied of the following matters:

(a)
that the proceeding is a proceeding in which the Court has jurisdiction;
(b)
that the proceeding is a proceeding to which rule 1 applies; and
(c)
that the applicant has a prima facie case for the relief sought;

the Court may, by order, grant leave to serve originating process outside the Commonwealth under this Order.

(3) The evidence on a motion for leave under subrule (2) must include evidence showing in what country or place the person to be served is, or probably may be found, and whether that country is a convention country or non-convention country.

(4) Where originating process has been served outside the Commonwealth without a prior motion for leave under subrule (2), and the Court is satisfied:

(a)
on the matters mentioned in subrule (2); and
(b)
that the failure to apply for leave is sufficiently explained;

the Court may by order confirm the service.

Other documents

3. Service outside Australia of a document other than originating process is valid if the service is in accordance with the prior leave of the Court or is confirmed by the Court.

Rules as to service generally

4.Subject to this Order and subject to any convention, the Rules apply to service outside Australia under this Order as they apply to service inside Australia.

Mode of service

5. A document which is to be served outside Australia need not be served personally on the person required to be served, so long as it is served in accordance with the law of the country in which service is effected.

Division 2—Service in Convention Countries

Service under convention

6. This Division applies to service of judicial documents in a convention country.

Requisite documents

7. A party seeking service under this Division must:

(a)
lodge with the Registrar:
(i)
the document to be served;
(ii)
unless English is an official language of the country concerned, a translation of the document in accordance with rule 8;
(iii)
a copy of the document and of the translation;
(iv)
such further copies of the document and of the translation as the Registrar may direct; and
(v)
if any special or particular manner of service is required, a request for service in that manner and, unless English is an official language of the country concerned a translation of the request; and
(b)
file:
(i)
a copy of each of the documents mentioned in paragraph (a); and
(ii)
a request and undertaking in accordance with rule 9.

Translation

8. A translation of a document lodged under rule 7 must:

(a)
be a translation into an official language of the country in which service is required; and
(b)
bear a certificate in that language, of the translator, stating his or her qualifications and certifying that it is a translation of the document.

Request and undertaking

9.A request and undertaking filed under rule 7 must contain:

(a)
a request by the applicant to the Registrar of the Court that a sealed copy of the document to be served be transmitted to the country concerned for service on a specified person;
(b)
a reference to the applicable convention; and
(c)
an undertaking by the applicant or the applicant’s solicitor to pay to the Registrar of the Court an amount equal to the sum of all expenses incurred in consequence of the request for service.

Procedure on filing and lodgment

10.(1) When documents referred to in rule 7 are filed and lodged in a District Registry, they shall be transmitted to the Registrar of the Court.

(2) The Registrar of the Court must seal the documents lodged with the seal of the Court and send them to the Secretary to the Attorney-General’s Department for transmission for service, together with such letter of request (if any) as may be necessary.

Evidence of service

11. Where the Registrar of the Court has sent documents to the Secretary to the Attorney-General’s Department as mentioned in rule 10, and afterwards a certificate purporting to be a certificate of a judicial authority or other responsible person in the country concerned or of a British or Australian consular authority in that country as to service or attempted service or non-service is filed, the certificate shall be evidence of the matters stated in the certificate.

Order for payment of expenses

12. Where a person has given an undertaking as mentioned in rules 7 and 9 and does not within 7 days after service on him or her of an account of expenses incurred in consequence of the request for service, pay to the Registrar of the Court the amount of the expenses, the Court may, on application by the Registrar of the Court:

(a)
order the applicant to pay the amount of the expenses to the Registrar of the Court; and
(b)
stay the proceeding until payment so far as concerns the whole or any part of any claim for relief by the applicant.

Division 3—Service in Non-Convention Countries

13. This Division applies to service of judicial documents in a non-convention country.

Required documents

14.A party seeking service under this Division must file a request in accordance with form 14A in the First Schedule.

(2) A document to be served must be sealed with the seal of the Court used for sealing documents that are to be served outside Australia and must be passed to the Secretary of the Attorney-General’s Department by the Registrar, together with:

(a)
a copy of the document translated into an official language of the country in which it is to be served; and
(b)
a request in accordance with Form 14B in the First Schedule.

for transmission to the government of the country in respect of which leave has been given.

Proof of service

15. An official certificate or declaration (on oath or otherwise) transmitted to the Court through the diplomatic channel by the government or a court of a country to which this Division applies is sufficient proof of the service of a document if it certifies or declares that (or to the effect that) the document has been:

(a)
personally served; or
(b)
served in accordance with the law of the country;

and, when filed, is taken to be a record of the service and the equivalent of an affidavit of service under these Rules.

Substituted service

16.(1) If an official certificate or declaration (on oath or otherwise) transmitted to the Court through the diplomatic channel by the government or a court of a country to which this Division applies, certifies or declares that efforts to serve a document have been without effect, the Court or a Judge, on ex parte application by the applicant, may order in accordance with Form 14C in the First Schedule that the applicant be permitted to request substituted service of the document.

(2) A request for substituted service may be made by the applicant at the Registry out of which the document to be served has been issued, by filing:

(a)
a request in accordance with Form 14A in the First Schedule; and
(b)
the document.

(3) A copy of the order and of the document must be sealed in accordance with subrule 15(2) and must be passed to the Secretary of the Attorney-General’s Department by the Registrar, together with:

(a)
a copy of the document translated into an official language of the country in which it is to be served; and
(b)
a request in accordance with Form 14B in the First Schedule for transmission to the government of the country in respect of which leave has been given.

ORDER 9

APPEARANCE

Appearance by solicitor or in person

1.(1)A respondent may enter an appearance and may defend a proceeding by a solicitor or in person.

(2) Where a respondent is a person under disability subrule (1) has effect subject to Order 43.

(3) Notwithstanding subrule (1) and subject to any Act, a corporation may not without the leave of the Court or a Judge enter an appearance or defend any proceeding except by a solicitor.

(4) For the purposes of this Order “respondent” includes a person who is required to enter an appearance but is not named as a respondent.

Time for appearance

2.(1) Subject to these Rules, a respondent must enter an appearance before the date appointed for a directions hearing and before filing any document.

(2) Notwithstanding subrule (1), a respondent who has not entered an appearance by the date appointed for a directions hearing, may enter an appearance after that date without leave.

Mode of entry

3.(1) An appearance is entered by filing a notice of appearance.

(2)Two or more persons entering an appearance by the same solicitor on the same date may do so by a single notice of appearance.

(3)The date of entry of an appearance is the date when notice of the appearance is received in the Registry.

(4)

The notice of appearance, and any copies, must be stamped in the Registry with the stamp of the Registry, with the addition of the words “appearance entered” and the date on which the stamp is affixed. The copies must then be returned to the person entering the appearance.

Notice of appearance

4.(1) A notice of appearance must show:

(a)
the name and address of the person entering the appearance; and
(b)
if the person entering the appearance appears by a solicitor, the name, address and telephone number of the solicitor; and
(c)
if the person entering the appearance appears by a solicitor and that solicitor has another solicitor as agent in the proceeding, the name, address and telephone number of the agent; and
(d)
an address for service.

(2) Where an address shown in a notice of appearance by which a respondent enters an appearance is not genuine, the applicant may, with the leave of the Court, continue the proceeding as if the appearance had not been entered.

Service of appearance

5. A respondent shall, upon receiving the copies of the notice of appearance stamped with the stamp of the Registry, forthwith serve on the applicant at his or her place for service one of the copies so received.

Conditional appearance

6.(1) A respondent may enter a conditional appearance.

(2)A conditional appearance shall have effect for all purposes as an unconditional appearance, unless the Court otherwise orders or the respondent applies under and in accordance with rule 7 and the Court makes an order under that rule.

Setting aside originating process etc.

7.(1) The Court may, on application made by a respondent to any originating process on notice of motion filed within the time fixed by subrule (2), by order:

(a)
set aside the originating process;
(b)
set aside the service of the originating process on the respondent;
(c)
declare that the originating process has not been duly served on the respondent;
(d)
discharge any order giving leave to serve the originating process outside Australia or confirming service of the originating process outside Australia.

(2) Notice of a motion under subrule (1) may be filed by a respondent before entering an appearance or within fourteen days after the date of entry of a conditional appearance.

ORDER 10

DIRECTIONS HEARING

Directions Hearings

1.(1) On a directions hearing the Court shall give such directions with respect to the conduct of the proceeding as it thinks proper.

(1A) In any proceeding which is to be heard by a Full Court, whether in the original or appellate jurisdiction, such directions as is thought proper with respect to the conduct of the proceeding may be given by the Court constituted by a single Judge.

(2) Without prejudice to the generality of subrule (1) or (1A), the Court may:

(a)
make orders with respect to:
(i)
discovery and inspection of documents;
(ii)
interrogatories;
(iii)
inspections of real or personal property;
(iv)
admissions of fact or of documents;
(v)
the defining of the issues by pleadings or otherwise;
(vi)
the standing of affidavits as pleadings;
(vii)
the joinder of parties;
(viii)
the mode and sufficiency of service;
(ix)
amendments;
(x)
cross-claims;
(xi)
the filing of affidavits;
(xii)
the giving of particulars;
(xiii)
the place, time and mode of hearing;
(xiv)
the giving of evidence at the hearing, including whether evidence of witnesses in chief shall be given orally or by affidavit, or both;
(xv)
the disclosure of reports of experts;
(xvi)
costs;
(xvii)
the filing and exchange of signed statements of evidence of intended witnesses and their use in evidence at the hearing;
(xviii)
the taking of evidence and receipt of submissions by video link or telephone or such other means as the Court considers appropriate; and
(xvix)
the proportion in which the parties are to bear the costs (if any) of taking evidence or making submissions under a subparagraph (xviii) direction;
(b)
notwithstanding that the application is supported by a statement of claim, order that the proceeding continue on affidavits;
(c)
order that evidence of a particular fact or facts be given at the hearing:
(i)
by statement on oath upon information and belief;
(ii)
by production of documents or entries in books;
(iii)
by copies of documents or entries; or
(iv)
otherwise as the Court directs;
(ca)
order that an agreed bundle of documents be prepared by the parties.
(d)
order that no more than a specified number of expert witnesses may be called;
(da)
order that the reports of experts be exchanged;
(e)
appoint a court expert in accordance with Order 34, rule 2;
(f)
direct that the proceeding be transferred to a place at which there is a Registry other than the then proper place. Where the proceeding is so transferred, the Registrar at the proper place from which the proceeding is transferred shall transmit all documents in his or her charge relating to the proceeding to the Registrar at the proper place to which the proceeding is transferred.
(g)
order, under Order 72, that proceedings, part of proceedings or a matter arising out of proceedings be referred to a mediator or arbitrator;
(h)
order that the parties attend before a Registrar for a conference with a view to satisfying the Registrar that all reasonable steps to achieve a negotiated outcome of the proceedings have been taken, or otherwise clarifying the real issues in dispute so that appropriate directions may be made for the disposition of the matter, or otherwise to shorten the time taken in preparation for and at the trial;
(i)
in a case in which the Court considers it appropriate, direct the parties to attend a case management conference with a Judge, Judicial Registrar or Registrar to consider the most economic and efficient means of bringing the proceedings to trial and of conducting the trial, at which conference the Judge, Judicial Registrar or Registrar may give further directions.

(3) The Court may revoke or vary any order made under (1), (1A) or (2).

(4) The powers of the Court prescribed for the purposes of subsection 466(1)(h) of the Act are those referred to in this rule.

Fixing of date

2.(1) On the directions hearing the Court may:

(a)
fix a date for a further directions hearing;
(b)
fix a date for trial;
(c)
direct the parties to arrange with the Registrar a date for trial; or
(d)
fix a date after which either party may request a date for trial.

Despatch, orders and directions

3.(1) If the Court thinks fit and the parties agree, the Court may hear and determine the proceeding on a directions hearing.

(2) If no applicant appears before the Court on a directions hearing, the Court may dismiss the application or make any other order that it thinks proper.

(3) If no respondent appears before the Court on a directions hearing, the Court may give such directions as it thinks fit.

Summary disposal

4.(1) A party may move for an order under Order 20, rule 2 (summary disposal of proceedings) at the directions hearing, if notice of the motion is served on all other parties to the proceeding not less than 3 days before the directions hearing.

(2)

The Court may dispense with service under subrule (1).

Interlocutory orders

5.On a directions hearing, each party must, so far as is practicable, apply for any interlocutory order or directions that he or she may require.

Motion on notice

6. A party may move, on notice, for any interlocutory order or direction not made at the directions hearing appointed in the application.

Procedure on Default

7.(1) If a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court, on notice:

(a)
if the party in default is an applicant-for an order that the proceeding be stayed or dismissed as to the whole or any part of the relief claimed by the applicant in the proceeding;
(b)
if the party in default is a respondent-for judgment or an order against the respondent; or
(c)
for an order that the step in the proceeding be taken within the time limited in that order.

(2)The Court may make an order of the kind mentioned in sub-rule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just.

(3) This rule does not limit the powers of the Court to punish for contempt.

ORDER 11

PLEADINGS

Division 1—General

Paragraphs—Form 7

1. Where a pleading alleges or otherwise deals with several matters:

(a)
the pleading must be divided into paragraphs;
(b)
each matter must, so far as convenient, be put in a separate paragraph; and
(c)
the paragraphs must be numbered consecutively.

Facts not evidence

2. Subject to these Rules:

(a)
a pleading of a party must contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved; and
(b)
paragraph (a) has effect subject to this Order and to Order 4 (commencement of proceedings) and to Order 12 (particulars).

Brevity

3. A pleading must be as brief as the nature of the case admits.

Documents and spoken words

4. Where any document or spoken words are referred to in a pleading, it is permissible to state the effect of the document or spoken words without setting out the precise terms thereof.

Presumed facts

5. A party need not plead a fact if:

(a)
the fact is presumed by law to be true; or
(b)
the burden of disproving the fact lies on the other party;

except so far as may be necessary to meet a specific denial of that fact by the other party in his or her pleading or failure to plead such fact is likely to cause the other party to be taken by surprise.

Conditions precedent

Sworn (etc.)

_________

FIRST SCHEDULE—continued

FORM 25

NOTICE TO ADMIT FACTS (AND AUTHENTICITY OF DOCUMENTS)

(Order 18, rule 2)

To the respondent:

The applicant requires you to admit, for the purpose of these proceedings only:

(state each fact)

The applicant requires you to admit, for the purpose of these proceedings only, the authenticity of the following documents:

(describe each document)

If you do not, within 14 days after service of this notice on you, serve a notice on the applicant disputing any fact (and the authenticity of any document) above specified, that fact (and the authenticity of that document) shall, for the purpose of these proceedings, be admitted by you in favour of the applicant.

_____________

FIRST SCHEDULE—continued

FORM 26

NOTICE DISPUTING FACTS (AND AUTHENTICITY OF DOCUMENTS)

(Order 18, rule 2)

The respondent disputes the following facts specified in the applicant’s notice dated (e.g. 7 May, 19).

(state each fact)

The respondent disputes the authenticity of the following documents which were specified in the applicant’s notice (or list of documents) dated (e.g. 7 May, 19).

(describe each document)

The respondent admits:

(state each fact or describe each document)

_________

FIRST SCHEDULE—continued

FORM 27

NOTICE OF MOTION

(Order 19, rule 2)

The abovenamed applicant or respondent or as the case may be will at 10.15 a.m. on

(e.g. 7 May 19), at (address of Court) move the Court for orders:

(State concisely the nature of each order which is sought but not the grounds on which the order is sought)

(Where the time for service under Order 19, rule 3 has been abridged, add:

The time before which this notice of motion is to be served, has been abridged by the Court to

(specify time)). (Follow the prescribed form of conclusion of documents for use by a party, Form 4.)

To: (name each party affected by the above order sought).

_________

FORM 28

NOTICE OF WITHDRAWAL OF APPEARANCE

(Order 22, rule 1)

The respondent

(CD) withdraws his (or her) appearance.

___________

FIRST SCHEDULE—continued

FORM 29

NOTICE OF DISCONTINUANCE

(Order 22, rule 2)

The applicant (by consent, if consent is required, or pursuant to the leave of the Court granted on

(e.g. 7 May, 19), if leave is obtained) discontinues the proceedings (in respect of claims numbers (e.g. 1 to 3 inclusive) of the application).

(Follow the prescribed form of conclusion of documents for use by a party, Form 4.Where discontinuance is by consent, each party or his or her solicitor must sign the notice.)

__________

FORM 30

NOTICE OF WITHDRAWAL OF DEFENCE

(Order 22, rule 4)

The respondent

(CD) (by consent, if consent is required) or by the leave of the Court granted on (e.g. 7 May, 19), (if leave is obtained), withdraws his or her defence (e.g., in respect of paragraphs numbers 1 to 3 inclusive, of the defence).

(conclude as in Form 29).

________

FIRST SCHEDULE—continued

FORM 31

NOTICE OF DEPOSIT

(Order 23, rule 6)

The respondent has *paid /*filed a security to pay

into Court $

That sum is in answer to *the cause of action /*all the causes of action

on which the applicant claims (and after taking into account this respondent’s cause of action [for (specify)] on his or her cross-claim).

That sum is in answer to the following causes of action on which the applicant claims, namely

(specify) (and after taking into account [as above]).

Of that sum, $

is in answer to the cause of action for (specify) on which the applicant claims (and after taking into account [as above]) and $ is in answer to the cause of action for (specify) on which the applicant claims (and after taking into account [as above]).

* Omit if inapplicable

_________

FIRST SCHEDULE—continued

FORM 32

NOTICE OF WITHDRAWAL OF DEPOSIT

(Order 23, rule 9)

Pursuant to leave granted by the Court on

(e.g. 7 May, 19 ), the respondent withdraws the deposit of $ brought into Court by him/ her on (e.g. 10 April, 19 ).

__________

FORM 33

NOTICE OF ACCEPTANCE

(Order 23, rule 10)

The applicant accepts $

brought into Court by the respondent, (CD) , in satisfaction of the causes of action in answer to which it was so brought in, as against CD, (and abandons all his/ her other causes of action as against CD /and abandons those causes of action as against the respondents EF and GH).

________

FORM 34

NOTICE CONFIRMING DEPOSIT

(Order 23, rule 10)

The respondent confirms the notice dated

(e.g. 10 April, 19 ), of deposit of $ brought into Court before the beginning of the trial.

__________

FIRST SCHEDULE—continued

FORM 35

NOTICE WITHDRAWING ACCEPTANCE

(Order 23, rule 12)

Pursuant to leave granted by the Court on

(e.g. 20 May, 19 ) the applicant withdraws his/ her acceptance of money brought into Court by the respondent (name) being the acceptance mentioned in the applicant’s notice of acceptance dated (e.g. 7 May, 19 ).

___________

FORM 36

SECURITY TO PAY INTO COURT

(Order 23, rule 15)

(name of authorised person under rule 5) whose address for service is promises to the Registrar of the Court to pay $ into Court according to the requirements of Order 23 of the Rules.

Signed

The Common Seal

(and so on)

_________

FIRST SCHEDULE—continued

FORM 37

ORDER FOR EXAMINATION

(Order 24, paragraph 1 (a))

THE COURT ORDERS THAT:

(name) of (address) be examined on oath before (name and address, or describe examiner).

(Complete as in general form of order under Order 36.)

_________

FORM 38

ORDER APPOINTING EXAMINER

(Order 24, paragraph 1 (a))

THE COURT ORDERS:

1. That (name and address or description) be appointed examiner for the purpose of taking the examination on oath of a witness (name) of (address out of Australiain accordance with the Rules of this Court (but without the power to compel a witness to attend[if this is required by a convention]).

2. That the party obtaining this order give to each other interested party 7 days’ notice in writing of the date on which the party proposes to send this order to the examiner.

3. That not less than 4 days after that notice has been given, each party shall give to the other the name of his/ her agent at (place) to whom notices may be sent.

(Complete as in general form of order under Order 37.)

___________

FIRST SCHEDULE—continued

FORM 39

ORDER

(Order 24, paragraph 1 (b))

THE COURT ORDERS THAT:

A letter of request be sent to the judicial authorities of

(country) to take or cause to be taken the evidence of (name).

(Complete as in general form of order under Order 37.)

___________

FORM 40

DEED

(Order 26, rule 3)

PARTICULARS

Date: e.g. 7 May 19.

Receiver: (name)

(address for service)

Guarantor: (name)

(address for service)

Date of order for appointment of Receiver: e.g. 10 April, 19 .

THIS DEED made between the Guarantor and the Registrar of the Court witnesses that the Guarantor promises the Registrar that if the Receiver does not account to the Court for what he/she receives as Receiver or does not deal with what he/she receives as Receiver, as

the Court directs, the Guarantor will pay to the Registrar whatever is required to make good the default to a limit of $

Signed (etc.)

FIRST SCHEDULE—continued

FORM 41

SUBPOENA FOR PRODUCTION

(Order 27, rule 2)

(name)

(address)

THE COURT ORDERS that you attend and produce this subpoena and the documents and things described in the schedule:

(a)
before (the Court or as the case may be); and
(b)
at (address of Court or other place); and
(c)
on (date) at (time) and until you are excused from further attending, but:
(i)
you need not attend or produce any document on any day unless reasonable expenses have been paid or tendered to you; and
(ii)
if you are not a party to these proceedings, instead of so attending you may produce this subpoena and the documents and things described in the schedule to the Registrar of the Court at the above place not later than the day before the first day on which you are required to attend; and
(iii)
if, as an officer of a bank, you are required by this subpoena to produce a banker's book, and (insert relevant part of State or Territory enactment enabling alternative mode of proof of entries in bankers’ books) applies—you need not produce it if you produce proof of the relevant entries in accordance with (that Part or that Division or those sections).

FIRST SCHEDULE—continued

SCHEDULE

(description)

Date: e.g. 7 May, 19.

By the Court

(signature and description of officer of the Court)

Note: Failure to comply with this subpoena may constitute contempt of court and may result in your arrest or, in the case of a corporation, an order of sequestration may be made.
Issued at the request of (name), the applicant’s solicitor (or as the case may be).

___________

FORM 42

SUBPOENA TO GIVE EVIDENCE

(Order 27, rule 2)

(name)

(address)

THE COURT ORDERS that you attend for the purpose of giving evidence:

(a)
before (the Court or as the case may be);
(b)
at (address of Court or place);
(c)
on (date) at (time) and until you are excused from further attending;

but you need not attend on any day unless reasonable expenses have been paid or tendered to you.

Date: e.g. 7 May, 19.

By the Court

(signature and description of officer of the Court)

FIRST SCHEDULE—continued

Note: Failure to comply with this subpoena may constitute contempt of court and may result in your arrest.

Issued at the request of

(name), the applicant’s solicitor (or as the case may be).

__________

FORM 43

SUBPOENA FOR PRODUCTION AND TO GIVE EVIDENCE

(Order 27, rule 2)

(name)

(address)

THE COURT ORDERS that you attend and produce this subpoena and the documents and things described in the schedule and attend for the purpose of giving evidence:

(a)
before (the Court or as the case may be);
(b)
at (address of Court or place);
(c)
on (date) at (time) and until you are excused from further attending, but:
(i)
you need not attend or produce any document on any day unless reasonable expenses have been paid or tendered to you; and
(ii)
if, as an officer of a bank, you are required by this subpoena to produce a banker’s book and (insert relevant part of State or Territory enactment enabling alternative mode of proof of entries in bankers’ books) applies—you need not produce it if you produce proof of the relevant entries in accordance with (that Part or that Division or those sections).

FIRST SCHEDULE—continued

SCHEDULE

(description)

Date: e.g. 7 May, 19 .

By the Court

(signature and description of officer of the Court)

Note: Failure to comply with this subpoena may constitute contempt of court and may result in your arrest.

Issued at the request of

(name), the applicant’s solicitor (or as the case may be).

_________

FORM 44

REQUEST TO FIX DATE FOR TRIAL

(Order 30, subrule 2 (1))

[heading to form as in Form 1]

The applicant

[or as the case may be] requests that a date be fixed for the trial of the proceeding.

To: [name of party]

[address for service of party]

...................................................

(Signature of requesting party or

the party’s solicitor)

––––––––––––

FIRST SCHEDULE—continued

FORM 44A

NOTICE OF DATE FOR TRIAL

(Order 30, rule 4;

Order 52, subrule 29 (5))

(heading to form as in Form 1)

To:

(name of party)

(address for service of party)

Take notice that the date, time and place for trial of this proceeding is as specified below.

Date:
(date and time to be entered by Registry unless fixed by the Court)

Time:

Place:

(address of Cou rt)

Dated

(e.g.7 May 19 )

*The hearing fee under regulation 2A of the Federal Court of Australia Regulations has been paid./*No fee is payable under regulation 2A of the Federal Court of Australia Regulations.

(Signature of notifying party

or the party’s solicitor)

* Omit if inapplicable

_________

FIRST SCHEDULE—continued

FORM 45

NOTICE TO PRODUCE

(Order 33, rule 12)

To the applicant:

The respondent requires you to produce at the trial

(or otherwise specify the occasion or place) the following documents for the purpose of evidence:

(enumerate the documents or things)

_________

FORM 46

ORDER

(Order 33, rule 14)

THE COURT ORDERS THAT:

The Superintendent (or as the case may be) shall have (name), a prisoner, before this Court to be examined as a witness and duly returned to confinement.

The first day on which he or she is required to have the prisoner before the Court is (e.g. 7 May, 19), at (e.g. 10.15 a.m.) at (address of Court).

(Complete as in general form of order under Order 36)

_________

FIRST SCHEDULE—continued

NB:

THERE IS NO FORM 46A

_________

FORM 46B

ORDER

(Order 33, rule 15)

THE COURT ORDERS THAT:

1. The Superintendent

(or as the case may be) shall have (name), a prisoner, before this Court to be present during the hearing of the proceeding concerning him/ her and duly returned to confinement.

2. The first day on which it is required to have this prisoner before the Court is (e.g. 7 May 19 ) at (e.g. 10.15 a.m.) at (address of Court).

(Complete as in general form of order under Order 36)

_________

FIRST SCHEDULE—continued

FORM 47

ORDER

(Order 36)

JUDGE(S):

DATE OF ORDER:

WHERE MADE:

THE COURT ORDERS (OR DECLARES) THAT:

DISTRICT REGISTRAR

Date Entered:

_________

FORM 47A

CERTIFICATE OF JUDGMENT

(Order 36, subrule 11 (3))

Causes of action to which the judgment relates

The rate of interest (if any)

payable on any amount payable

under the judgment

Amount payable under the judgement on date of issue of certificate

Amount of costs ordered to be paid under the judgment

Particulars (if any) required by a foreign tribunal in which

it is proposed to register or enforce the judgment

Date of trial

Date of judgment

FIRST SCHEDULE—continued

I certify that this certificate correctly and fully sets forth the particulars of a judgment given in this Court, on

(date e.g. 7 May, 19) in a suit wherein (name of applicant) was applicant and (insert name of respondent) was respondent.

Dated (e.g. 7 May, 19).

Registrar

_________

FORM 48

WARRANT FOR ARREST

(Order 40, rules 9 and 11; Order 49, subrule 4 (3) and (4))

To the Sheriff—

Arrest

(name) and bring him or her before the Court to answer the charge set out below, detaining him/ her in custody in the meantime unless, by paying the sum of $ into Court (or as the case may be) he or she gives security for his/ her appearance in person before the Court to answer the charge and to submit to the judgment (or order) of the Court.

(name) is charged with (charge,e.g. contempt of court) in that (give particulars).

Date: e.g. 7 May, 19.

Judge

__________

FIRST SCHEDULE—continued

FORM 49

WARRANT FOR COMMITTAL

(Order 37, rule 9)

To the Sheriff

Take
(name) to (name of prison) and deliver him/ her to the Superintendent of that prison.

To the Superintendent of (name of prison)

Receive
(name) into your custody and keep him/ her there until the further order of this Court (or as the case may be).
His/ her committal is for contempt of court in that he/ she (nature of the contempt, e.g., wilfully insulted the Judge while the Judge was sitting in Court).

Date: e.g. 7 May, 19.

Judge

_________

FORM 50

NOTICE OF CLAIM

(Order 44, rule 4)

(Heading and title)

The claimant claims the property described in the schedule, being

(part of) the property taken (intended to be taken) in execution by the Sheriff at (address) under process against (name).

FIRST SCHEDULE—continued

SCHEDULE

(description)

Date: e.g. 7 May, 19.

(signature)

Claimant’s solicitor

Claimant: (name)

Place of abode:

Address for service:

To the execution creditor

If you do not, within 4 days after service of this notice on you, serve on the Sheriff a notice that you admit this claim, the Court may, on application by the Sheriff, grant relief by way of interpleader.
If you admit the claim, you will not be liable to the Sheriff for any fees or expenses incurred by him/ her after you serve on the Sheriff notice that you admit it.

(signature)

Sheriff

Date:

___________

FIRST SCHEDULE—continued

FORM 51

SUMMONS

(Order 49, rule 2)

To the defendant:

You are required to appear before the Industrial Relations Court of Australia at the time and place specified below to answer the charge the prosecutor makes against you, viz:

1. (state offence)

The particulars of the charge are:

2. (state particulars in accordance with Order 49, paragraph 2 (1) (b))

TAKE NOTICE that if you do not appear before the Court at the time and place specified below, a warrant may be issued for your arrest.

Time:

(date and time to be entered by Registry unless fixed by the Court).

Place: (Address of Court).

The prosecutor's address for service is

(specify address for service).

Date (e.g. 7 May 19.)

Registrar

_________

FIRST SCHEDULE—continued

FORM 52

INFORMATION FOR AN OFFENCE

(Order 49, rule 2)

At the time and place specified below

(name of prosecutor) of (address of prosecutor) in the State of appears before (name of Registrar) (description of Registrar) and informs the said (name of Registrar) that on (date and place of offence) (name and address of defendant) did (or failed to do) (set out details of offence and specific description of legislation creating the offence.).

(Signature of Prosecutor)

Time: (date and time prosecutor appears before Registrar).

Place: (address of Court).

Signed by the abovenamed prosecutor before me:

Date: e.g. 7 May, 19 .

Registrar

_________

FIRST SCHEDULE—continued

FORM 53

NOTICE OF A CONSTITUTIONAL MATTER UNDER SECTION 78B OF THE JUDICIARY ACT 1903

(Order 51)

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

DISTRICT REGISTRY

No. of 19 .

A.B.

Applicant

C.D.

Respondent

NOTICE OF A CONSTITUTIONAL MATTER

1. (the party whose case raises the matter, e.g. applicant, respondent, etc.) gives notice that the above proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903.

3. (specify the nature of the matter.)

5. (specify if the facts showing the matter is one to which section 78B of the Judiciary Act 1903 applies.)

(Conclude in accordance with Form 4)

__________

FIRST SCHEDULE—continued

FORM 53A

NOTICE OF PROCEEDING

(Order 51A, rule 2)

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

DISTRICT REGISTRY

No. of 19 .

On remittal from the High Court of Australia

A.B.

Applicant

C.D.

Respondent

NOTICE OF PROCEEDING

To (party) (address)

This matter (or part of this matter) has been remitted to the Industrial Relations Court of Australia by the accompanying order of the High Court of Australia.

A directions hearing in this matter will be heard by the Court at the time and place specified below.

If there is no attendance before the Court by you or your counsel or solicitor, the application may be dealt with and judgment be given or an order made in your absence.

Before any attendance at that time you must file an appearance in the Registry unless you are the applicant or have entered an appearance in the High Court.

Time:

Place: (address of Court)

Date of notice: (e.g. 5 May 1984)

....................................

(Signed, Registrar)

_____________

FIRST SCHEDULE—continued

FORM 54

APPLICATION FOR LEAVE TO APPEAL

(Order 52, rule 4)

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

DISTRICT REGISTRY

No. of 19 .

A.B.

Applicant

C.D.

Respondent

APPLICATION FOR LEAVE TO APPEAL

1. The applicant applies for leave to appeal from the judgment of

(specify court or Judge below) given on (specify date) at (specify place).

2. Leave to appeal is required by

(specify legislation giving right to appeal with leave).

3. The grounds of the application appear in the annexed affidavit.

To the respondent

(address):

Take Notice: Before taking any step in the proceeding you must enter an appearance in the Registry.

The applicant's address for service is (specify address for service)

(Conclude in accordance with Form 4)

____________

FIRST SCHEDULE—continued

FORM 54A

APPLICATION FOR LEAVE TO FILE AND SERVE OUT OF TIME

(Order 52, rule 15 (5))

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

DISTRICT REGISTRY

No. of 19 .

A.B.

Applicant

C.D.

Respondent

APPLICATION FOR EXTENSION OF TIME TO FILE AND SERVE NOTICE OF APPEAL

The applicant applies for an extension of time in which to file and serve a notice of appeal from the judgment of (specify court or Judge below) given on (specify date) at (specify place).

An extension of time is required because a notice of appeal was not filed and served within the time limited by Order 52 rule 15.

This application will be heard by the Court at on. (place and date to be inserted by the Registrar).

The grounds of the application appear in the annexed affidavit.

Date:

...........................................................

(Signed, applicant, or as the, case

may be, or his/her solicitor)

_________

FIRST SCHEDULE—continued

FORM 55

NOTICE OF APPEAL

(Order 52, rule 12)

IN THE INDUSTRIAL RELATIONS COURT

OF AUSTRALIA

DISTRICT REGISTRY

No. of 19 .

On appeal from (specify Court or Judge)

BETWEEN:

A.B.

Applicant

and

C.D.

Respondent

NOTICE OF APPEAL

The appellant appeals from the whole (or if from a part, specify part) of the judgment of (specify court or Judge below) given on (specify date) at (specify place).

(where applicable)

The appeal is brought pursuant to leave granted on (specify date).

GROUNDS:

(specify grounds of appeal)

ORDER SOUGHT: (state what judgment or order the appellant seeks in lieu of the judgment appealed from).

To the respondent

(address):

FIRST SCHEDULE—continued

TAKE NOTICE:

(a)
Before taking any step in the proceeding you must enter an appearance in the Registry, unless you have already entered an appearance pursuant to Order 52, rule 7.
(b)
The papers in the appeal will be settled before the Registrar at on (place, date and time to be inserted by the Registrar).

The appellant’s address for service is

(specify address for service).

(Conclude in accordance with Form 4)

________

NB:

THERE ARE NO FORMS 56 TO 128 INCLUSIVE

________

FORM 129

APPLICATION UNDER PART IVA OF THE FEDERAL COURT OF AUSTRALIA ACT 1976

(Order 73, rule 3)

(Heading in Form 1)

1. This application is brought by the applicant as a representative party.
2. The group members to whom this proceeding relates are (identify the group members in accordance with paragraph 439 (1) (a) of the Industrial Relations Act 1988).
3. The applicant claims (specify the nature of the claims made on behalf of the group in accordance with paragraph 439 (1) (b) of the Industrial Relations Act 1988) and claims relief as follows: (specify the relief claimed).
4. The questions of law or fact commmon to the claims of the group members are (see paragraph 439 (1) (c) of the Industrial Relations Act 1988).

FIRST SCHEDULE—continued

5. And the applicant claims by way of interlocutory relief:
(specify the interlocutory relief sought)

Date:

e.g.7 May 19

Signature of applicant or applicant’s solicitor

________

FORM 130

NOTICE OF CONSENT TO BE A GROUP MEMBER

(Order 73, rule 4)

(Heading in Form 1)

TO: The Applicant and the Respondent:

TAKE NOTICE THAT

(insert name of person) , a person referred to in subsection 33E (2) of the Industrial Relations Act 1988, consents to be a group member in these proceedings.

Date:

e.g.7 May 19

Signature of person or his or her solicitor

Name and position of person signing consent notice:

Address of person signing the consent notice:

__________

FIRST SCHEDULE—continued

FORM 131

NOTICE OF OPTING OUT BY GROUP MEMBER

(Order 73, rule 6)

(Heading in Form 1)

TO: The Registrar

Industrial Relations Court of Australia

The Applicant

The Respondent

(name of group member) , a group member in the above representative proceedings, give notice under subsection 44D of the Industrial Relations Act 1988, that I am opting out of the representative proceedings.

Date:

e.g.7 May 19.

Signature of group member or his or her solicitor

Address of group member:

____________________________________________________________

NOTE

1. Notified in the Commonwealth of Australia Gazette