Local Courts (Civil Claims) Rules 1988 (NSW)
These rules may be cited as the Local Courts (Civil Claims) Rules 1988.
These rules take effect on the day on which Schedule 2 to the Local Courts (Civil Claims) Amendment Act 1987 commences.
Schedule 2 to the Local Courts (Civil Claims) Amendment Act 1987 commenced on 1.7.1989. See Gazette No 37 of 31.3.1989, p 1603.
In these rules:
(a) in respect of a person:
(i) the management of whose estate is, by the Protected Estates Act 1983 or by any order of the Supreme Court or the Guardianship Board under that Act, committed to the Protective Commissioner,
(ii) of whose estate the Protective Commissioner has, in accordance with section 63 of that Act, undertaken the management, or
(iii) in relation to whose property the Protective Commissioner is authorised as mentioned in section 66 (1) (a) of that Act,
the Protective Commissioner,
(b) in respect of a person of whose estate a manager has been appointed by order of the Supreme Court or the Guardianship Board under section 22 or section 22A of the Protected Estates Act 1983—the manager appointed.
(a) anything on which there is writing,
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them,
(c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else, or
(d) a map, plan, drawing or photograph.
(a) a person who is not a minor and who is:
(i) incapable of managing his or her affairs, or
(ii) incommunicate, or
(b) a minor who has a curator.
(a) where there has been no change of venue in respect of the proceedings—means the court in which the proceedings were commenced,
(b) where there has been only one change of venue in respect of the proceedings—means the court to which the venue was changed, or
(c) where there have been 2 or more changes of venue in respect of the proceedings—means the court to which the venue was last changed.
A reference in these rules to a court is a reference to that court exercising civil jurisdiction under the Act and, with respect to any proceedings, is a reference to the proper court in relation to the proceedings.
A reference in these rules to:
(a) the home court is a reference to the court from which is issued process returnable at, or for service or execution by the Sheriff’s officer or bailiff at, another court, or
(b) a foreign court is a reference to the court at which process issued from the home court is returnable, or by the Sheriff’s officer or bailiff at which that process is to be served or executed.
A reference in these rules to an address, other than an exchange box in a document exchange, is a reference to the address including the postcode number appropriate to that address.
The rules prescribed for the purposes of section 4 (3) of the Act are Part 11 rule 1 and Part 12 rules 2 and 3.
Where under these rules a court or registrar may make an order or give any direction or leave or do any other thing, the court or registrar may make the order or give the direction or leave or do the thing on such terms and conditions (if any) as the court or registrar thinks fit.
A function conferred on a court by these rules may be exercised:
(a) in the case of matters relating to a court’s General Division—by a Magistrate or, if these rules so provide in respect of a particular matter, by the registrar, or
(b) in the case of matters relating to a court’s Small Claims Division—by a Magistrate or an Assessor or, if these rules so provide in respect of a particular matter, by the registrar.
A reference in these rules to a stay of enforcement of a judgment includes a reference to a stay of the issue of:
(a) an examination summons under section 41 (1), and
(b) a warrant under section 42 (4),
of the Act in respect of the judgment debt.
Any matter appearing in these rules in square brackets, being matter relating to:
(a) the District Court Act 1973,
(b) the District Court Rules 1973,
(c) the Local Courts (Civil Claims) Rules,
(d) the District Court (Fees) Regulations,
(e) the Law Reform (Miscellaneous Provisions) Civil Claims Third Party Procedure Rule 1977, or
(f) the Supreme Court Rules 1970,
shall be taken not to be part of these rules.
The Local Courts (Civil Claims) Rules are repealed.
A step validly taken, or any process issued, under the Local Courts (Civil Claims) Rules before the commencement of these rules shall be as valid as if taken or issued under these rules and shall be deemed, subject to subclause (3), to have been taken or issued under these rules.
These rules apply to any step taken, or process issued, in any proceedings after the commencement of these rules, and, in respect of an action which was commenced, but not completed, before that commencement, so apply as if:
(a) an ordinary summons issued before that commencement were an ordinary statement of claim lodged under Part 5 rule 1 (1) (a),
(b) a special summons issued before that commencement were an ordinary statement of claim lodged under Part 5 rule 1 (1) (a),
(c) a default summons issued before that commencement were a statement of liquidated claim lodged under Part 5 rule 1 (1) (b),
(d) a notice of defence filed before that commencement were a notice of grounds of defence filed under Part 9 rule 1,
(e) a defence by way of set-off pleaded before that commencement were a cross-claim brought under section 15 of the Act,
(f) an order for nonsuit made before that commencement were an order striking out proceedings made under Part 21 rule 3,
(g) an order made under section 40 of the Act that a judgment debt be paid by instalments were an order that the judgment debt be paid by instalments made under Part 27 rule 2, and
(h) an order for judgment made under section 25A of the Act were an order for judgment made under Part 10 rule 1.
Subject to subrule (2), the practice in a court shall be the practice provided by the Act or these rules.
A court may if it thinks fit, on terms, dispense with compliance with any of the requirements of these rules, either before or after the occasion for the compliance arises.
Where a person desires to commence proceedings or take any step in any proceedings, and the manner or form of procedure is not prescribed by the Act or these 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 or of its own motion, give directions.
Proceedings commenced in accordance with the directions of the court shall be well commenced.
A step taken in accordance with the directions of the court shall be regular and sufficient.
A registrar shall seal or stamp with the seal of the court any order, notice, warrant, certificate, judgment or process, or any copy thereof, made, given or issued by the registrar and not signed by the registrar, and the copies for service of any document filed before it is served.
These rules apply to actions in both the General Division and the Small Claims Division of a court except where the contrary intention appears.
Subject to the Act and these rules and to any direction given by the Chief Magistrate, the registrar of a court has the control and direction of the procedures to be followed, for the purposes of the Act and these rules, in the registry attached to that court.
(Repealed)
The taking of the fee for the filing of any statement of claim (or notice of cross-claim) on behalf of a pro bono party to proceedings is to be postponed until judgment has been given in the proceedings.
The fee is not to be taken at all, or if taken must be remitted, if in relation to the claim (or cross-claim):
(a) judgment is against that party,
(b) judgment is in favour of that party, but damages are not awarded (or only nominal damages are awarded) in his or her favour and costs are not awarded in his or her favour.
A registrar must not refuse to file or issue any document relevant to proceedings merely because, in accordance with this rule, a fee has not been taken for the filing of any statement of claim (or notice of cross-claim) on behalf of a pro bono party to those proceedings.
Under this rule, a party is to be treated as a
(a) certifies in writing to the registrar with whom the statement of claim (or notice of cross-claim) is lodged on behalf of the party that the party is being so represented, and
(b) undertakes in writing to the registrar to pay the filing fee for that document if, at the conclusion of the proceedings, subrule (2) does not apply.
For the purposes of section 21B (5) of the Act, a copy of an order for removal is authenticated if it is certified by a registrar of the District Court to be such a copy.
Subject to these rules and to any provision made by or under any Act, an action may be commenced in any court.
Except where otherwise provided by the Act or these rules, an action, and any proceedings ancillary to an action, shall be heard and disposed of by the proper court in relation to the action.
On application by a party to an action or of its own motion, a court may, if it thinks fit, order that any or all proceedings ancillary to the action be heard and disposed of by a court specified in the order, notwithstanding that the court so specified is not the proper court in relation to the action.
Where a court makes an order under subrule (2) in respect of any ancillary proceedings it may give to the registrar of the court specified in the order directions as to the hearing of the ancillary proceedings.
In this rule:
(a) the district in which the defendant is resident,
(b) the district in which the defendant was resident at the time the cause of action arose,
(c) the district in which the defendant has his or her place of business,
(d) the district in which the defendant had his or her place of business at the time the cause of action arose,
(e) the district in which the defendant has his or her place of employment,
(f) the district in which the defendant had his or her place of employment at the time the cause of action arose,
(g) the district in which the cause of action arose.
Where the court in which an action is commenced is not an appropriate court, the defendant may, if the defendant files the notice of grounds of defence under Part 9 rule 1 or 6 within 28 days after service on the defendant of the statement of claim in the action, file within that time an affidavit by the defendant or the defendant’s solicitor or agent:
(a) specifying all of the appropriate courts, and
(b) specifying one of the courts specified pursuant to paragraph (a) as the court which the defendant desires to be the venue of the action.
The registrar must, within 3 days after the filing of an affidavit under subrule (2), give or send a copy of the affidavit to the plaintiff.
Where the defendant files the notice of grounds of defence and an affidavit in accordance with subrule (2), the plaintiff may, within 28 days after service on the plaintiff of a copy of the affidavit, file:
(a) a notice, signed by the plaintiff or the plaintiff’s solicitor or agent, selecting as the venue of the action one of the courts specified in the defendant’s affidavit, or
(b) an affidavit by the plaintiff or the plaintiff’s solicitor or agent stating that a notice under paragraph (a) is not filed on the ground that:
(i) the court in which the action was commenced is an appropriate court,
(ii) at least one of the courts specified as appropriate courts in the defendant’s affidavit is not an appropriate court, or
(iii) not all of the appropriate courts were specified in the defendant’s affidavit,
and shortly stating and verifying the facts on the basis of which that ground is asserted.
The filing of a notice in accordance with subrule (4) (a) has the same effect as if the court had ordered a change of venue under section 18 of the Act to the court selected in the notice.
A registrar with whom an affidavit is filed under subrule (4) (b) shall as soon as practicable submit all documents filed in the action to a Magistrate, who shall:
(a) direct that the proper court in relation to the action shall remain unchanged,
(b) order that such court as the Magistrate thinks fit and as is specified in the order (whether or not that court is an appropriate court) shall be taken to be the proper court in relation to the action, or
(c) give directions for bringing the parties before a court to argue the question of whether or not a change of venue should be ordered.
An order made under subrule (6) (b) has the same effect as if it were an order for a change of venue under section 18 of the Act to the court specified in the order.
Where the plaintiff files neither a notice nor an affidavit in accordance with subrule (4), the court shall be taken to have, at the expiration of the time prescribed under that subrule, ordered a change of venue under section 18 of the Act to the court specified by the defendant pursuant to subrule (2) (b) as the court which the defendant desires to be the venue of the action.
Nothing in this rule affects the right of any party to an action to apply for a change of venue under section 18 of the Act.
If an affidavit is filed under subrule (2), the registrar for the court at which the action is commenced must not list the action for call-over or pre-trial review unless and until a direction is made under subrule (6) (a) that the proper court in relation to the action remains unchanged.
If a change of venue is ordered under this rule:
(a) the attendance of any party to the action at any future call-over or pre-trial review at the court at which the action is commenced is no longer required, and
(b) the registrar of the court that is the new venue must list the action for call-over and pre-trial review as soon as is practicable after the order for change of venue.
A court may make an order under section 18 of the Act if in all the circumstances of the case it appears to the court expedient to do so.
Where the venue of an action or proceedings ancillary to an action is changed under section 18 of the Act, the registrar of the court from which the venue is changed shall forthwith forward the whole record of the action to the registrar of the court to which the venue is changed.
As soon as practicable after receipt by a registrar of any record of an action forwarded under subrule (2) the registrar shall give or send to the parties notice of the receipt.
Where the venue of an action or proceedings ancillary to an action is changed from one court to another court, the action or proceedings shall go to a hearing according to the procedures prescribed in respect of actions or proceedings of the same class for hearing in the other court.
A Magistrate or Assessor may, if the Magistrate or Assessor thinks fit, direct that proceedings commenced before the Magistrate or Assessor at one court be continued before the Magistrate or Assessor at another court at which the Magistrate or Assessor is authorised to sit.
A Magistrate, Assessor or registrar in chambers may, in respect of any proceedings, give any judgment or decision, or make any order, which the Magistrate, Assessor or registrar could lawfully give in court and which the Magistrate, Assessor or registrar considers may be properly made or given in chambers, whether those chambers are situated at the proper court in relation to those proceedings or at any other court.
A Magistrate, Assessor or registrar shall not proceed in chambers under subrule (1) unless the Magistrate, Assessor or registrar is satisfied that all parties appearing and all other persons properly interested have adequate notice of the intention to so proceed and will have adequate notice of any judgment decision or order that the Magistrate, Assessor or registrar is likely to give or make in chambers.
Where in any proceedings a Magistrate or Assessor reserves a judgment or decision on any question of fact or law, the Magistrate or Assessor may:
(a) give the judgment or decision:
(i) in court at the proper court in relation to those proceedings,
(ii) in court at any other court at which the Magistrate or Assessor is authorised to hear or dispose of those proceedings, or
(iii) in chambers in accordance with rule 7, or
(b) draw up in writing the judgment or decision, sign it and forward it to the registrar of that proper court.
Where a registrar receives a judgment or decision forwarded under subrule (1) (b), the registrar shall, after giving at least 24 hours’ notice to the parties to the proceedings, read the judgment or decision at the court of which the registrar is registrar at a convenient time specified in the notice.
A judgment or decision given by a Magistrate or Assessor under subrule (1) (a) or read by a registrar under subrule (2) takes effect on the day on which it is so given or read and is as valid as if given by the Magistrate or Assessor at the hearing of the proceedings to which the judgment or decision relates.
If the amount claimed in an action and the amount claimed in any related cross-claim are each not more than $10,000, the action and any such cross-claim are each to be heard and determined in a court’s Small Claims Division unless the court orders otherwise.
Such an order may not be made unless the court is of the opinion that the issues likely to arise in the action or cross-claim are so complex or difficult as to law or fact, or that the action or cross-claim is of such unusual importance, that it should not be heard or determined in the court’s Small Claims Division.
Such an order may be made:
(a) on the court’s own motion or on the application of any of the parties, and
(b) at any time before judgment in the action concerned.
An application for the making of an order under this rule:
(a) may be made by the plaintiff when the statement of claim in the action is lodged with the registrar, or
(b) may be made to the court by any of the parties, in accordance with Part 15, at any time before the date fixed for the hearing of the action, or
(c) may be made to the Magistrate or Assessor hearing the action by any of the parties, on reasonable notice to the other parties, at any time before judgment in the action concerned.
The jurisdiction of the court in relation to the making of an order under this rule may be exercised by the registrar if the application for the making of the order has been made as referred to in subrule (4) (a).
If the registrar makes an order under this rule as referred to in subrule (5), the registrar is to endorse the relevant statement of claim with the words “REMOVED INTO THE GENERAL DIVISION BY ORDER OF THE REGISTRAR”.
A court, sitting in its General Division, may make orders in respect of the continuance of an action that has been removed into that Division by virtue of an order under this rule (including orders for the amendment or substitution of any document filed in the action).
If the amount claimed in an action in a court’s General Division and the amount claimed in any related cross-claim are each not more than $10,000, the court may order that the action and any such cross-claim be heard and determined in the court’s Small Claims Division.
Such an order may be made:
(a) on the court’s own motion or on the application of any of the parties, and
(b) at any time before judgment in the action concerned.
An application for the making of an order under this rule may be made by any of the parties, in accordance with Part 15, at any time before the date fixed for the hearing of the action.
Any application to a court concerning an action in respect of which judgment has been given or entered up in the court’s Small Claims Division must be heard and determined:
(a) in the case of an application to set aside a judgment which was given after a hearing to which the court proceeded under Part 21 rule 2 (1) (a)—in the court’s Small Claims Division, and
(b) in any other case—in the court’s General Division.
Where a court sitting in its General Division makes an order in respect of an application referred to in subrule (1), the court shall not order any party to pay costs in respect of the application in an amount greater than the amount which the court would have been able to order if the application had been heard and determined in the court’s Small Claims Division.
Any period of time fixed by the Act or these rules for the doing of any act in or in connection with any proceedings, or fixed by any judgment or order or by any document in any proceedings, shall be reckoned in accordance with this rule.
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.
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 for the proper court in relation to the proceedings in which the period is to be reckoned is closed, that day shall be excluded.
Where the last day for doing a thing is a day on which the registry for the proper court in relation to the proceedings in which the thing is to be done is closed, the thing may be done on the next day on which the registry is open.
A court may, on terms, by order extend or abridge any time fixed by these rules or by any judgment or order.
A court may extend time under subrule (1) after as well as before the time expires, whether or not an application for the extension is made before the time expires or at all.
The period within which a person is required by these rules or by any order to serve, file or amend any document may be extended by consent without an order for extension.
Where no time is fixed by the Act or these rules or by any judgment or order of a court for the doing of any thing in or in connection with any proceedings, the court or registrar may, by order, fix the time within which the thing is to be done.
An action shall be commenced by the lodging by the plaintiff with a registrar:
(a) except in the case of an action for the recovery of a debt or liquidated demand—of an ordinary statement of claim, or
(b) in the case of an action for the recovery of a debt or liquidated demand—of an ordinary statement of claim or a statement of liquidated claim.
In subrule (1), a reference to an action for the recovery of a debt or liquidated demand includes a reference to:
(a) an action for the recovery of a debt or liquidated demand in which the plaintiff also claims, in accordance with these rules, interest, whether under section 39A of the Act or otherwise,
(b) an action for the recovery of the cost of repairs to (or the value of, less any salvage value of), and any towing of, a motor vehicle within the meaning of the Motor Accidents Act 1988 or a trailer within the meaning of that Act, where the repairs (or the loss of the vehicle or trailer) and towing are a consequence of damage alleged to have been sustained as a result of the negligence of the defendant or the defendant’s servant or agent, or
(c) an action for the recovery of the cost of repairs to (or the value of, less any salvage value of), property other than a motor vehicle or trailer, where the repairs (or the loss of the property) are, or is, a consequence of damage alleged to have been sustained as a result of the negligence of the defendant or the defendant’s servant or agent in driving or riding a motor vehicle within the meaning of the Motor Accidents Act 1988 or in controlling a trailer within the meaning of that Act.
In this rule:
(a) a reference to the plaintiff is, in respect of an action in which there is more than one plaintiff, a reference to all of the plaintiffs, and
(b) a reference to the defendant is, in respect of an action in which there is more than one defendant, a reference to all of the defendants.
A statement of claim lodged to commence an action shall be signed by the plaintiff or the plaintiff’s agent, or, where the plaintiff sues by a solicitor, by or on behalf of the solicitor in accordance with these rules, and shall contain:
(a) a statement of each cause of action in respect of which the action is brought, and a statement of the amount of debt or damages claimed in respect of each such cause of action,
(b) where a plaintiff sues or a defendant is sued in a representative capacity, particulars of that capacity,
(c) where a plaintiff sues as assignee of a debt or other legal chose in action, the fact that the plaintiff is such an assignee, particulars of the assignment, and the name, address and occupation of the assignor,
(d) in an action for detention of goods, a description of the property alleged to be detained, and a statement of its value,
(e) where the plaintiff intends to claim interest, whether under section 39A of the Act or otherwise, a statement that that interest will be claimed, and the amount of that interest calculated to the date of issue of the statement of claim, or particulars of the period or periods for which, the rate or rates at which, and the amount or amounts on which, interest is intended to be claimed,
(f) the full name, and the full address of the residence or place of business, of the plaintiff,
(g) the full name of, and the full address at which service is to be effected on, the defendant to whatever extent these matters are known to the plaintiff,
(h) where the full name of a defendant is not, but the sex of that defendant is, known to the plaintiff, the sex of that defendant,
(i) where a defendant is a company registered under the Companies (New South Wales) Code, the address of the registered office of that defendant, so described,
(j) an address for service as referred to in Part 7 rule 8, and
(k) if the amount claimed in the action is not more than $10,000, either the words “SMALL CLAIMS DIVISION” or the words “THE PLAINTIFF APPLIES FOR THE REMOVAL OF THIS ACTION INTO THE GENERAL DIVISION”.
A statement of claim shall have subscribed to it:
(a) where the plaintiff sues by a solicitor, the name, address and telephone number of the solicitor, and
(b) where the plaintiff sues by a solicitor and that solicitor has another solicitor as agent in the action, the name, address and telephone number of the agent.
Where it appears from a statement of claim that the plaintiff sues by a solicitor:
(a) the solicitor shall, on request in writing by a defendant, declare in writing whether the statement of claim was lodged by the solicitor, and
(b) if the solicitor declares in writing that the statement of claim was not lodged by the solicitor, the court may, on application by the defendant, stay proceedings in the action.
A statement of claim shall be lodged in duplicate with the registrar of the court in which it is sought to commence the action to which the statement of claim relates, together with as many copies of the statement of claim as there are defendants to be served.
Where a statement of claim lodged complies with these rules, the original of the statement of claim shall be filed by the registrar and a sufficient number of copies for service and proof of service shall be sealed by the registrar and, at the request of the plaintiff, forwarded to a Sheriff’s officer or bailiff or returned to the plaintiff.
Each action commenced in a court shall be separately numbered by the registrar, and the registrar shall endorse the number allotted to an action:
(a) on the original and every copy of the statement of claim in the action filed or sealed by the registrar, or
(b) in the case of an action transferred from the District Court or another court, or the venue of which is changed from another court, on every document lodged with the registrar for the commencement of the action in the court of which that registrar is registrar.
A new series of numbers shall be commenced at the beginning of each calendar year.
Subject to section 21G (1) of the Act, an action is commenced when the statement of claim in respect of the action is filed.
For the purposes of service:
(a) a statement of claim filed before 1 January 2002 is valid for 2 years from the date on which it is filed or such further period as the court may direct, and
(b) a statement of claim filed on or after 1 January 2002 is valid from the date on which it is filed until such time as it is struck out under subrule (1A).
A statement of claim filed on or after 1 January 2002 is struck out by operation of this subrule on the expiry of the period of 12 months commencing on the date of filing if no defence is filed, order for judgment made or judgment entered, or if the action is not otherwise disposed of, within that period.
Nothing in this rule prevents the court from making an order striking out an action on the ground of undue delay by the plaintiff in serving the statement of claim.
Nothing in this rule prevents a plaintiff from commencing a fresh action by lodging another statement of claim.
A plaintiff may, in one action, sue the same defendant in respect of more than one cause of action:
(a) where the plaintiff sues, and the defendant is alleged to be liable, in the same capacity in respect of all the causes of action,
(b) where the plaintiff sues, or the defendant is alleged to be liable, in the capacity of executor of the will, or administrator of the estate, of a deceased person in respect of one or more of the causes of action, and in the defendant’s personal capacity but with reference to the estate of the same deceased person in respect of all other causes of action, or
(c) where the court gives leave so to do.
Two or more persons may be joined as plaintiffs or defendants in any action:
(a) where:
(i) if separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions, and
(ii) all rights claimed in the action (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.
Where, in any action, the plaintiff claims an amount to which any other person is entitled jointly with the plaintiff:
(a) all persons so entitled shall be parties to the action, and
(b) any of them who does not consent to being joined as a plaintiff shall be made a defendant.
Subrule (1) applies subject to any Act and subject to section 62 of the Bankruptcy Act 1966 of the Commonwealth, and applies unless the court gives leave to the contrary.
A court may grant leave under rule 1 or 2 before or after the joinder and may grant leave under rule 3 (2) before or after the non-joinder.
A plaintiff may apply for leave under rule 1, 2 or 3 (2) either before or after lodging the statement of claim and may apply without serving notice of the motion on any person on whom the statement of claim has not been served.
Where, in any action, a defendant is jointly liable with some other person and also severally liable, that other person need not be made a defendant in the action.
Where the persons are jointly, but not severally, liable under a contract, and an action is commenced against some but not all of those persons in respect of that contract, the court may, on the application of any defendant in the action, by order stay the action until the other persons so liable are added as defendants.
Where any joinder of parties or causes of action may embarrass or delay hearing of an action or is otherwise inconvenient, the court may order separate hearings or make such other order as the court thinks fit.
An action shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party.
The court may in any action determine the issues or questions in dispute so far as they affect the rights and interests of the parties.
Where a person who is not a party to an action:
(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 action may be effectually and completely determined and adjudicated upon,
the court, on application by the person or by any party or of its own motion may, on terms, order that the person be added as a party and make orders for the further conduct of the action.
A person shall not be added as a plaintiff unless the person has consented in writing to be so added.
Where a party:
(a) has been improperly or unnecessarily joined, or
(b) has ceased to be a proper or necessary part,
the court, on application by any party or of its own motion, may, on terms, order that he or she cease to be a party and make orders for the further conduct of the action.
Where a party dies or becomes bankrupt but a cause of action in the action survives, the action shall not abate by reason of the death or bankruptcy.
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 rearrangement of parties and may make orders for the further conduct of the action.
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.
Without limiting the generality of the powers of the court under rules 8–10, orders under those rules for the further conduct of the action may include orders relating to:
(a) service of the order and other documents in the action,
(b) amendment,
(c) the filing of notice of grounds of defence by added defendants, and
(d) substitution of one party for another party or a former party.
Where the court orders that a party be substituted for another party or a former party, all things done in the action before the making of the order shall, unless the court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old, but the filing of notice of grounds of defence by the old party shall not dispense with the filing of notice of grounds of defence by the new.
Subject to subrule (2), where a party is added pursuant to an order under rule 8 or 10, the date of commencement of the action so far as concerns the party is the date of filing of the statement of claim amended so as to add that party as a party or, where an amended statement of claim is not filed, the date of the amendment adding that party as a party.
Where:
(a) a party dies but a cause of action in the action survives the death, 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 action be dismissed so far as concerns any claim on the cause of action for or against the person to whom the cause of action or the liability on the cause of action, as the case may be, survives on the death.
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 action.
An executor or administrator may sue or be sued in any action in like manner as if the executor or administrator were a party suing or being sued in his or her own right.
Where in any action 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 action and that the deceased person has no personal representative, the court may, on the application of any party:
(a) order that the action continue in the absence of a person representing the estate of the deceased person, or
(b) by order (with the consent of the person appointed) appoint a person to represent that estate for the purposes of the action.
An order under subrule (1), and any judgment or order subsequently given or entered up or made in the action, shall bind the estate of the deceased person to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the action.
Before making an order under this rule, the court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.
The court may give the conduct of the whole or any part of any action to such person as it thinks fit.
In this Part:
Except where otherwise provided by or under any Act or in these rules, service may be effected by any person over the age of 16 years.
Service may be personal, but need not be personal unless required by these rules or by any order.
Personal service may be effected by delivering a copy to the party personally.
A copy may be delivered to a person by handing it to the person or by leaving it in the person’s presence and informing the person of its nature.
Except where personal service is required, service may be effected by delivering a copy at the residence or place of business of the party to a person apparently not less than 16 years old and apparently residing at that residence or employed at that place of business.
It is not necessary to the regular service of any document that the original of the document be produced to any person.
Service may not be effected on Christmas Day or Good Friday.
A Sheriff’s officer or bailiff shall not be required to effect service on any Saturday, Sunday or other holiday.
Where service of any document has not been personal, and the court or registrar is satisfied on the evidence before the court or registrar that the service did not come to the knowledge of the party within a reasonable time, or on that evidence is in doubt, the court or registrar shall not allow any fresh step in the proceedings to be taken against the party, but shall adjourn or strike out the proceedings, or order fresh process to issue, as to the court or registrar may seem just.
Where it is impracticable for any reason to effect service of any document, but steps have been taken for the purpose of bringing, or having a tendency to bring, the document to the notice of the party, the court may, if it thinks fit, by order direct that the service be deemed to have been effected on a date specified in the order.
Where a party lodges any document for filing in reply to a document alleged to have been served on the party, the party shall be taken to have waived any objection the party may have to the service unless the party lodges and serves notice of the objection at the time when the party lodges the document.
Where a solicitor makes on a copy of a statement of claim a note that the solicitor accepts service of the statement of claim on behalf of any defendant, the statement of claim shall be taken to have been duly served on that defendant on the date on which a copy of the statement of claim was delivered to the solicitor or left at the solicitor’s office.
This rule does not apply to or in respect of the service of any statement of claim, examination summons or document as to which personal service is required.
Where a party has, on the record of the court, a solicitor acting for the party, delivery of a copy to the solicitor, or leaving a copy at the solicitor’s office, or sending a copy by post addressed to the solicitor at the solicitor’s office, shall be taken to be good service on the party.
The first document lodged by a party for filing in an action shall contain the address for service of the party.
An address for service shall be the address of a place at which documents in the action in which the address is notified may, during ordinary business hours, be left for the person whose address for service it is, and to which documents in the action may be posted for the person.
The address for service in any action of a person who has, on the record of the court, a solicitor acting for the person in the action shall be the office of the solicitor, or of the solicitor’s agent in the place where the proper court in relation to the action is situated.
A person may change the person’s address for service by filing and serving a notice of the change showing the new address for service.
This rule does not apply to or in respect of the service of any statement of claim, examination summons or document as to which personal service is required.
Where a person notifies an address for service in any document filed by the person leaving a copy at, or sending a copy by post addressed to the person at, that address shall be taken to be good service on the person.
Where the address for service of a person to be served is the office of a solicitor who has an exchange box in a document exchange, in the State, of Australian Document Exchange Pty Limited, leaving a copy, addressed to that solicitor, in that exchange box or at another exchange box for transmission to that exchange box shall be taken to be good service on the person on a day 2 days after the copy is so left.
Where husband and wife are parties to any action, service on one of them shall not have effect as service on the other unless the court otherwise orders.
Subrule (1) does not limit the operation of rule 3 (4).
Where a person confined in a prison is a party, personal service on the person may be effected by delivering a copy at the prison to the officer in charge of the prison.
Where a party is a corporation and no provision of or under any Act regulates service on it, personal service may be effected by delivering a copy to the mayor, chairman or president of the corporation, or to the town clerk, secretary, treasurer or other similar officer of the corporation.
Where a party or other person keeps the place of residence or place of business of a party closed, or by any means prevents access being obtained to that place, and remains in that place in order to obstruct or hinder the delivering to the party or other person of a copy which would take effect as service on the party, service on the party may be effected by:
(a) placing the copy in the mail-box appropriate to, or affixing the copy on any outer door of, the place of residence or place of business or, if access cannot be obtained to any such mail-box or door, affixing the copy on some part of the place of residence or place of business or on any fence or wall surrounding it, as near as practicable to the principal door or entrance, and
(b) within 24 hours after placing or affixing the copy sending by post to the party at the place of residence or place of business a notice informing the party of the placing or affixing.
Where the person attempting service is prevented by the violence or threat of violence of any person from delivering a copy for the purpose of effecting service, the person attempting service may deliver the copy by leaving it as near as practicable to the person to whom it was intended to be delivered.
Where a party has, before or after the commencement of any proceedings, agreed that any document in the proceedings may be served on the party or on some other person on the party’s behalf in a manner or at a place specified in the agreement, service in accordance with the agreement shall be sufficient service on the party.
Where for any reason it is impracticable to effect service of any document in any of the modes prescribed for that service, the court may, on application supported by an affidavit showing grounds, by order direct 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 party.
Where the court makes an order under subrule (1) it may order that service be taken to be effected on the happening of any specified event or on the expiry of any specified time.
For the purposes of the proof of service, evidence of a statement by a person of the person’s identity, or that the person holds some office, is evidence of the person’s identity or that the person holds the office, as the case may be.
Where a party requires that process issued on the party’s behalf be served by an officer of a court, it shall be served by the Sheriff or by the bailiff at the nearest court to the place of service, unless the registrar of the home court shall, on the grounds of greater convenience or reduced costs, direct that the process be served by the Sheriff or by another bailiff.
A person (other than a registrar) requiring any process to be served by an officer of a court:
(a) shall make the requirement of the registrar of the home court,
(b) shall, when requiring service, deposit with that registrar, unless that registrar otherwise directs, a sum of money sufficient to meet the probable amount of the person’s liability under paragraph (c), and
(c) is liable to the registrar for any fees properly incurred by the Sheriff’s officer or the bailiff in serving or attempting to serve the process, but the liability shall be reduced to the extent of any money paid under paragraph (b) in respect of the liability.
Where any process is required to be served by an officer of a court, the registrar of the home court shall, as soon as practicable, hand the process together with any necessary copies to the Sheriff or, where there is a bailiff for that court, to that bailiff, and where the process is required to be served by the bailiff at a foreign court the Sheriff or the bailiff at the home court shall as soon as practicable forward the process and copies to the bailiff at the foreign court.
A Sheriff’s officer or bailiff shall serve process required to be served by that officer or bailiff as soon as practicable.
Where a Sheriff’s officer required to serve any process ascertains that the person to be served is not at the address shown in the process but at another address within New South Wales, the Sheriff shall, unless the party requiring the service otherwise directs, arrange for the process to be served at that other address, and inform that party that he or she has so arranged.
Where the bailiff required to serve any process ascertains that the person to be served is not at the address shown in the process but at another address, the bailiff shall, if the court at which he or she is bailiff is the nearest or otherwise most convenient court to that other address, serve the process at that other address.
Within 2 days after serving any process, a Sheriff’s officer or bailiff shall forward an affidavit of service of the process to the person (other than a registrar) who require the service.
Where process delivered to a Sheriff’s officer or bailiff for service cannot be expeditiously served, the Sheriff’s officer or bailiff shall:
(a) forthwith after becoming aware that there is no likelihood of effecting service for the process,
(b) forthwith after the last day on which the process may, under the Act or these rules, be served, or
(c) upon the expiration of one month after the last attempt made to serve the process,
whichever is the soonest, forward the process to the person (other than a registrar) who required the service, together with a notice stating why it has not been served.
(Repealed)
Service of a statement of claim may be effected by ordinary post addressed to the defendant at the address of the defendant shown in the statement of claim if:
(a) the address is at the time of posting the address of the defendant’s residence or place of business, and
(b) the posting is done by or at the direction of an officer in the registry, in an envelope marked with a return address which is the address of the court but is not so described.
Where the envelope containing a statement of claim posted as required by subrule (1) is returned unopened to the court by the postal authority as not having been delivered to the addressee:
(a) service of the statement of claim shall be deemed not to have been effected, and
(b) any judgment given or entered up on the basis of that service shall be deemed to have been set aside,
and the registrar shall so advise the plaintiff.
In this Part:
A party lodging a relevant document shall include in the document such particulars of any claim, defence or other matter as are necessary to enable the opposite party to identify the case the opposite party is required by the document to meet.
Rules 3, 4, 5 and 7 do not affect the generality of subrule (1).
Where a relevant document:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the document,
(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or
(c) is otherwise an abuse of the process of the court,
the court may at any stage of the proceedings, on terms, order that the whole or any part of the document be struck out.
The court may receive evidence on the hearing of an application for an order under subrule (1).
Where the court makes an order under subrule (1) it may make such further order as it thinks fit as to:
(a) subsequent steps in the proceedings being taken as though the matter so struck out had not been included,
(b) granting time to any party to file amended documents,
(c) granting leave to a plaintiff to have judgment entered up after the striking out of grounds of defence, despite the effluxion of any time limited for entering up judgment,
(d) costs, and
(e) any other matter consequent on the order.
In an action on a claim for damages in tort, a party alleging negligence (whether contributory or otherwise) or breach of a statutory duty shall give particulars of the matter alleged.
The particulars required by subrule (1) shall be a statement of the facts, but not of the evidence by which the facts are to be proved, on which the party relies as constituting the negligent act or omission or the breach of statutory duty alleged.
If the party relies on more than one negligent act or omission or breach of statutory duty, the particulars required by subrule (1) shall, so far as practicable, state separately each negligent act or omission or breach of statutory duty on which the party relies.
Where a party claims damages and seeks to include in the claim money which the party has paid, or is liable to pay, or has failed to receive, in consequence of the act or omission of the opposite party on which the claim is founded, the party shall give the best particulars the party can give of that money.
Where any of rules 2–5 require particulars to be given of any matter contained in a relevant document, the particulars shall be set out in the relevant document or, if that is inconvenient, shall be set out in a separate document referred to in the relevant document and that separate document shall be filed and served with the relevant document.
Notwithstanding subrule (1), where the necessary particulars of debt, expenses or damages exceed one page and have, before the date on which the relevant document is filed, been given to the party on whom the document is required to be served (or to whom a copy of the document is required to be given or sent), and the document shows the date on which the particulars were given:
(a) subrule (1) does not require that the particulars be filed or served; but
(b) the court may order that a copy of the particulars be filed and served.
In building and other technical actions where a claim of defective workmanship or materials or for extras is made, the party who makes the claim shall, as soon as practicable, serve on each other party a copy of the claim in one of the approved forms (in these rules called a
Each other party to the action shall, within 21 days after service on the party of a Scott Schedule, complete and file the Schedule and serve a copy of the Schedule so completed on the party who makes the claim.
Where this rule has not been complied with, the court may refuse to hear the action, or the court or registrar may refuse to fix a date for the hearing of the action.
The court may, on terms, order a party to an action to file and serve on any other party:
(a) particulars of any claim, defence or other matter stated in a relevant document filed by the party,
(b) a statement of the nature of the case on which the party relies, or
(c) a completed Scott Schedule.
Without limiting the generality of subrule (1), where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, the court may, on terms, order that party to file and serve on any other party:
(a) where that party alleges knowledge, particulars of the facts on which that party relies, and
(b) where that party alleges notice, particulars of the notice.
Where the court makes an order under subrule (1), it may, if it thinks fit, by the same or any subsequent order direct that, if the order made under subrule (1) is not complied with within a period of time stated by the court, any proceedings brought, or any relevant document filed, by the party in default shall be struck out, or that any such proceedings shall be stayed until the order made under subrule (1) is complied with.
The court shall not in any action make an order under subrule (1) before the filing of notice of grounds of defence in the action unless, in the opinion of the court, the order is necessary or desirable to enable the defendant to complete a notice of grounds of defence, or for some other special reason.
This Division applies to actions in a court’s General Division but not to actions in a court’s Small Claims Division.
A defendant in an action commenced by the lodging of an ordinary statement of claim may at any time before judgment file, in duplicate, notice of grounds of defence, signed by the defendant or the defendant’s solicitor.
A defendant in an action commenced by the lodging of a statement of liquidated claim may at any time before judgment file, in duplicate, notice of grounds of defence, signed by the defendant or the defendant’s solicitor, and verified by affidavit in accordance with rule 2.
(Repealed)
A defendant shall not, at the hearing of an action, except by consent of the plaintiff or by leave, given on terms, of the court, set up any ground of defence not included in a notice of grounds of defence filed by the defendant under this rule.
Where in any action a defence of tender before the commencement of the action is included in a notice of grounds of defence, the defendant shall bring into the court the amount alleged to have been tendered, and the tender shall not be available as a defence unless and until the amount has been brought into the court.
Subject to this rule, a defendant in an action commenced by the lodging of a statement of liquidated claim shall verify by affidavit in accordance with this rule any notice of grounds of defence filed by the defendant.
An affidavit verifying a notice of grounds of defence may, subject to this rule, be made:
(a) by the defendant,
(b) where the action is an action referred to in Part 5 rule 1 (2) (b) or (c)—by the defendant or the defendant’s solicitor,
(c) where the defendant is a disable person—by the defendant’s tutor,
(d) where the defendant is a corporation—by a member or officer of the corporation having knowledge of the facts so far as they are known to the corporation,
(e) where the defendant is a body of persons lawfully being sued in the name of the body or in the name of any officer or other person—by a member or officer of the body having knowledge of the facts so far as they are known to the body, or
(f) where the defendant is the State of New South Wales or an officer of the Crown being sued in the officer’s official capacity—by an officer of the Crown having knowledge of the facts so far as they are known to the Crown.
Subject to subrule (5), an affidavit verifying a notice of grounds of defence shall:
(a) set out the facts entitling the deponent under subrule (2) to make the affidavit, and
(b) verify the facts on which the defendant intends to rely by way of defence to the plaintiff’s claim.
An affidavit verifying a notice of grounds of defence shall be filed with, or subscribed to, the notice.
The court may, by order, give leave to a defendant to file, instead of an affidavit complying with subrule (3), an affidavit by such deponent and as to such facts as the court may determine.
A defendant may apply for an order under subrule (5) without serving notice of the motion.
In subrule (2) (e):
(Repealed)
This rule applies to an action in which a claim is made for damages in respect of personal injuries.
In an action to which this rule applies the plaintiff shall, before the first call-over of the action, serve on every defendant (or other party) who has filed notice of grounds of defence a statement setting out:
(a) particulars of injuries received,
(b) particulars of continuing disabilities,
(c) details of out-of-pocket expenses, and
(d) where any claim is made in respect of loss of income:
(i) the name and address of each employer during the 12 months preceding the accident together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,
(ii) the name and address of each employer since the accident together with details of the periods of employment, capacity in which employed and net earnings,
(iii) the amount claimed in respect of loss of income to the date of the statement by comparison between what the plaintiff has earned since the accident and what he would have earned but for the accident, setting out, in respect of what the plaintiff would have earned but for the accident, particulars thereof, including, where appropriate, particulars of the earnings of comparable employees and the identity of those employees, or, where appropriate, particulars of payment which the plaintiff would have received under a relevant award or industrial agreement and the description of that award or industrial agreement,
(iv) particulars of any alleged loss of earning capacity and future economic loss,
(v) where self-employed, such additional particulars as will achieve full disclosure of the basis of the claim for loss of income, and
(vi) particulars of any claim for domestic assistance or attendant care,
together with:
(e) copies or originals of all documents available to the plaintiff in support of a claim for special damage and economic loss, whether past, present or continuing, including:
(i) hospital, medical and similar accounts,
(ii) letters from a workers’ compensation insurer indicating moneys paid to or on behalf of the plaintiff, and
(iii) letters from employers, wage records, income records and group certificates, and
(iv) reports, award rates and correspondence relied on to support any claims for domestic assistance or attendant care, and
(f) copies or originals of all hospital and medical reports available at the time of serving the statement upon which the plaintiff intends to rely at the hearing.
The plaintiff shall, either before or at the time of the first call-over of the action, file a copy of the statement mentioned in subrule (2) endorsed with a certificate by the plaintiff or his solicitor to the effect that the statement and the documents mentioned in paragraphs (e) and (f) of that subrule have been served as required by that subrule.
The statement, documents and reports required under subrule (2) to be served shall be final and complete as to the plaintiff’s case except as regards any medical examination to be conducted after the date of service, and shall contain such details as the plaintiff can then provide as to the arrangements for any such medical examination.
Where, after service of any statement, document or report mentioned in subrule (2) and before the hearing of the action, the plaintiff becomes aware that any information contained in the statement, document or report is no longer accurate and complete information as regards the plaintiff’s claim, the plaintiff shall as soon as practicable give to all other parties who have filed notice of grounds of defence such advice as is necessary to make that information accurate and complete.
If notice of grounds of defence is filed under rule 1 (1) or (2), the registrar must:
(a) give the action a call-over date, and
(b) specify a range of dates for the review of the action, and
(c) specify a range of dates for the hearing date.
The registrar must:
(a) give or send a copy of the notice of listing for call-over and review and hearing dates to the plaintiff and each defendant who has filed a notice of grounds of defence (or to their legal representatives), and
(b) give or send a copy to the plaintiff or the plaintiff’s legal representative of:
(i) any notice of grounds of defence filed by the defendant under rule 1 (1) or (2), and
(ii) any affidavit filed with it.
If the registrar sets an action down under rule 3 (1) for call-over on a day, the action is to be called over before a Magistrate or the registrar on that day.
At the call-over of an action the court must (where appropriate):
(a) make an order under section 21H (1) of the Act, or
(b) take the following steps:
(i) explore the possibility of settlement,
(ii) fix a timetable for the taking of steps to prepare the matter for hearing,
(iii) make orders regarding the exchange of written statements of intended evidence of witnesses,
(iv) make directions as to how statements may be used,
(v) make orders for the preparation and filing of an agreed list of exhibits that are page numbered and indexed,
(vi) make orders for the preparation of written submissions on a question of law raised and the filing of copies of authorities relied on,
(via) make orders for the preparation of chronologies,
(vii) make such other orders as appropriate to achieve the just, efficient, effective and timely management of the proceedings before the court,
(viii) confirm the review date.
At the review date of an action, a Magistrate or the registrar is to ascertain from the parties the following:
(a) whether all directions have been complied with in accordance with the timetable fixed,
(b) whether all the prospects of settlement have been fully explored,
(c) whether all interlocutory matters have been completed,
(d) what witnesses are intended to be called or cross-examined.
If satisfied of such compliance, the Magistrate or registrar must then confirm the hearing date of the action.
If any party does not comply with a standard or specific case management direction, the proceedings may be listed on motion for directions before a Magistrate at the instance of any party or on the court’s own motion.
If proceedings are listed for directions under subrule (4) before a Magistrate or if a Magistrate at a review hearing is satisfied that any party does not comply with a standard or specific case management direction, the Magistrate may at the review hearing or directions hearing (as the case may be) make such orders as the Magistrate thinks fit, including any one or more the following:
(a) further specific case management directions,
(b) an order to strike out the action or any defence, cross claim, or third or subsequent party notice filed in the action,
(c) orders for costs.
If a party does not appear at a call-over or review, the Magistrate or registrar may make such orders as it thinks fit, including any one or more of the following:
(a) an order for the further adjournment of the proceedings,
(b) an order referred to in subrule (5).
Despite subrule 4 (6), the parties to an action are not required to attend at a review if:
(a) the legal representative for the plaintiff in the action certifies in the approved form that:
(i) all directions have been complied with by the parties in accordance with the timetable fixed for the action, and
(ii) all the prospects of settlement of the action have been fully explored, and
(iii) all interlocutory matters in the action have been completed, and
(iv) all parties to the action have consented to the filing of the certificate instead of attending the review, and
(b) the certificate contains a statement about which witnesses (if any) the parties intend to call to give evidence or to be cross-examined at the hearing of the action, and
(c) a copy of the certificate is sent to the court by facsimile transmission before the review date.
This Division applies to actions in a court’s Small Claims Division but not to actions in a court’s General Division.
A defendant in an action in a court’s Small Claims Division may, at any time before judgment, file (in duplicate) notice of grounds of defence, signed by the defendant or the defendant’s solicitor.
(Repealed)
At the hearing of an action, a defendant may not set up any ground of defence that has not been included in a notice of defence filed under this rule, except by consent of the plaintiff or by leave of the court, given on terms.
If notice of grounds of defence has been filed under rule 6, and no affidavit has been filed under Part 3 rule 4, the registrar must, unless a direction is given under subrule (2), set the action down for pre-trial review on the earliest day which is convenient to the court and of which reasonable notice can be given to the parties.
The court may, if it considers appropriate in the circumstances, direct the registrar that an action be set down for hearing instead of for pre-trial review.
If an action is set down for pre-trial review or for hearing under this rule, the registrar must:
(a) give or send a copy of the notice of listing for call-over and review and hearing dates to the plaintiff and each defendant who has filed a notice of grounds of defence (or to their legal representatives), and
(b) give or send a copy of any notice of grounds of defence filed under rule 6 (1) by a defendant to the plaintiff or the plaintiff’s legal representative.
A pre-trial review of an action must be held, on the day set down under rule 7, before:
(a) the Magistrate or Assessor who is expected to hear the action, or
(b) some other Magistrate or Assessor, or
(c) the registrar.
The person before whom the pre-trial review of an action is held:
(a) must use his or her best endeavours:
(i) to identify to the court and to the parties the issues in dispute between the parties, and
(ii) to bring the parties to a settlement that is acceptable to them, and
(b) must consider whether the issues in dispute between the parties should be referred to a community justice centre and, if so, must make any necessary orders as a consequence of such a referral, and
(c) if the action is to proceed to a hearing:
(i) must consider the preparations that the parties have made for the trial of the action and must give to the parties such advice concerning those preparations as seems reasonably necessary to ensure that a fair and quick trial of the action can be completed, and
(ii) must give such directions as to evidence, admissions, amendments and otherwise as seems reasonably necessary to ensure that a fair and quick trial of the action can be completed, and
(iii) must fix a date for the hearing and must cause notice of the date so fixed to be given to each of the parties.
Nothing in this rule prevents the court from proceeding immediately after a pre-trial review to the hearing of the action if the court is satisfied that the action is ready for hearing and that all parties consent to an immediate hearing.
Nothing in this rule prevents the person before whom the pre-trial review of an action is held from adjourning the action for a further pre-trial review if an adjournment seems necessary and can be granted without causing injustice to any of the parties.
If a party fails, without reasonable explanation:
(a) to attend a pre-trial review of an action, or
(b) to comply with any direction given by the court on or in respect of a pre-trial review of an action,
the person before whom the review is held may make such orders (including orders fixing or vacating a date for hearing, orders adjourning the action for a further pre-trial review and orders striking out any claim or defence) as he or she considers appropriate in relation to the action.
If an action is struck out under this rule, the action may subsequently be reinstated by the court if the court is satisfied that the action is ready for pre-trial review or for hearing.
The person before whom the pre-trial review of an action is held may make any order which the court might make as to any costs which are recoverable under Part 31A rule 12.
The court or the registrar may make such orders as the court or registrar thinks fit for the just, efficient, effective or timely management of proceedings before the court.
Without limiting subrule (1), the court or registrar may make any one or more of the following orders:
(a) an order fixing a timetable for the taking of steps to prepare the matter for hearing,
(b) an order that a document may be filed with the court in electronic form,
(c) an order that there be an exchange of written statements of the intended evidence of each witness,
(d) an order as to how statements referred to in paragraph (c) can be used,
(e) an order for the preparation and filing of a statement of agreed facts and agreed issues,
(f) an order for the preparation and filing of an agreed list of exhibits that are page numbered and indexed (in appropriate order),
(g) an order for the preparation of written submissions on a question of law raised, and the filing of copies of authorities relied on.
An order made under this rule has effect despite anything to the contrary in any other provision of these rules.
Where, in an action commenced by the lodging of an ordinary statement of claim:
(a) a defendant has not filed a notice of grounds of defence under Part 9 rule 1 (1) or 6 (1), or has filed such a notice which the court has ordered to be struck out,
(b) judgment has not been given against that defendant, and
(c) a period of 28 days after service of the statement of claim on that defendant has elapsed,
the plaintiff may, within 12 months after the expiration of that period, or at such later time as the court may, on sufficient cause being shown, allow, and on filing a form of order for judgment and an affidavit of service of the statement of claim on that defendant, have an order for judgment made by the court or registrar against that defendant.
Where:
(a) a defendant seeks an order for judgment under subrule (1) in respect of a cross-claim, and
(b) a notation has been made, by an officer in the registry, on the filed notice of the cross-claim:
(i) to the effect that a copy of the notice has been given or sent by post to the plaintiff or the plaintiff’s solicitor, and
(ii) stating the date of that giving or sending,
that giving or sending shall be deemed to be service of the notice on the plaintiff and that notation shall be taken to satisfy the requirement in subrule (1) for the filing of an affidavit of service.
Where a notation has been made, by an officer in the registry, on the court record of an action:
(a) to the effect that the statement of claim in the action has been served by posting under Part 7 rule 20 (1), and
(b) stating the date of that posting,
that notation shall be taken to satisfy the requirement in subrule (1) for the filing of an affidavit of service of the statement of claim.
The plaintiff is not entitled to an order for judgment under subrule (1) if the statement of claim has been struck out under Part 5 rule 5 (1A).
Subject to rule 2 (2), where an order for judgment is made in an action against a defendant:
(a) that defendant shall be taken to have admitted liability, and
(b) the action shall go to trial, in accordance with rule 3 and Part 22 rule 1, only as to the assessment of the amount to be recovered by the plaintiff against that defendant.
An order for judgment against a defendant:
(a) may be set aside, on terms, by order of the court at any time before judgment, and
(b) shall, without order, be set aside on the filing of a notice of grounds of defence by that defendant under Part 9 rule 1 (1) or 6 (1).
Rule 1 (2) shall, on the setting aside of an order for judgment against a defendant in an action, cease to have any operation on or in respect of the action as against that defendant.
Where an order for judgment is set aside, the court may, at the same time or subsequently, make such orders as it thinks fit as to the continuance of the action and as to the costs incurred by any party by the making or setting aside of the order for judgment or by any adjournment of the hearing of the action.
Where an order for judgment is made by the registrar in an action, the registrar shall:
(a) fix a date for the trial of the action as to the assessment of the amount to be recovered by the plaintiff, and advise the plaintiff of that date, and
(b) at least 14 days before the date so fixed give to the defendant, or send to the defendant by post addressed to the defendant at the last address known to the registrar, notice of the order for judgment and the date so fixed.
The trial of the action as to assessment shall, unless the order for judgment is set aside or the trial is adjourned, proceed on the date fixed and notified as mentioned in subrule (1), but it shall not be necessary to prove compliance by the registrar with the requirements of that subrule.
Without limiting the generality of Part 3 rule 7 and Part 22 rule 1, and unless the court or registrar otherwise orders, the trial of the action as to assessment shall be held in chambers, and any evidence in the action shall be given by affidavit.
Where an amendment is made under this rule, the mode of amendment and service after amendment shall be in accordance with Part 16 rules 7, 8 and 9.
A party may make any amendment pursuant to Part 16 rule 2 notwithstanding that the party has made an amendment under this rule.
Where an action against a person in a business name is continued by leave given under rule 4, a judgment or order against the person in the business name shall not be enforced by execution except as mentioned in this rule.
A judgment or order against a person in a business name may be enforced by execution against any property of the business carried on under that name and, where the judgment or order is against partners, against any other property which is property of the partnership.
In subrule (2):
Notwithstanding rule 5, the court may vary a judgment or order against a person in a business name so as to make it a judgment or order against that person in the person’s own name and, when so varied, the judgment or order may be enforced accordingly.
Notice of a motion for variation of a judgment or order under subrule (1) shall be served on the person mentioned in that subrule, and rule 2 shall not apply to that service.
Except where a party prepares the party’s own documents, all documents required in any action shall be prepared by the registrar.
A document in any action shall be headed in the proper court in relation to the action, and where the document is filed at a court other than the proper court the heading shall contain a note that the document was filed at that other court.
The heading of any document in an action to be heard and determined in a court’s Small Claims Division must contain the words “SMALL CLAIMS DIVISION”.
A document in any action shall show the number and year allotted to the action under Part 5 rule 3 (3).
A document in any action shall be entitled between the parties, and not otherwise.
Except in the case of a statement of claim, a document to be served on a person not before the service a party to the action, a form of judgment or final order, or a certificate under section 60 of the Act, a document may bear an abbreviation of the title of the action sufficient to identify the action.
It shall be sufficient compliance with any requirement of the Act or these rules as to the form of any document if the document is substantially in accordance with the requirement or has only such variations as the nature of the case requires.
The Chief Magistrate may from time to time cause to be published forms approved for use in courts, and all documents filed in any proceedings shall be in forms similar to the forms so approved where those forms are applicable, and where no approved form is applicable to a document the document shall be framed to the satisfaction of the registrar.
This rule applies to a document prepared by or on behalf of a party for use in a court, except to the extent that the nature of the document renders compliance impracticable.
There shall be lodged with any document as many copies of the document as there are parties to be served.
A document shall be on paper of durable quality, capable of receiving ink writing, and of or about “A4” standard size, and shall be folded once lengthwise.
The writing on a document shall be on one face of the paper only, and a margin of not less than 25 millimetres shall be kept clear on the left hand side.
There shall be a space of not less than 3 millimetres between the lines of writing.
The writing shall be clear, sharp, legible and permanent.
Except where otherwise required by the Act or these rules, a carbon copy shall not be filed.
A document shall not be filed if it bears any blotting, erasure, or such alteration as to cause material disfigurement, or if it is in an unclean or other objectionable condition.
A document shall not be filed if, by reason of any defect or failure to comply with any rule or otherwise, the document would if filed be ineffective for the purpose for which it is lodged for filing.
Dates, amounts and other numbers in any document filed in any action shall be expressed in figures and not in words.
Where any signature by a solicitor (
(a) a partner of the Solicitor,
(b) a solicitor who is agent of the Solicitor for the purpose of the proceedings,
(c) a partner of the agent,
(d) a solicitor employed by:
(i) the Solicitor, or
(ii) the agent of the Solicitor, or
(iii) the Solicitor’s employer, or
(iv) the firm in which the Solicitor or the agent is a partner.
Anything that is required or permitted for the purpose of any proceedings to be signed by a solicitor is to be taken to have been signed by the solicitor (being a solicitor corporation) if:
(a) it has the corporation’s seal affixed to it, or
(b) it is signed by a director of the corporation or by an officer or employee of the corporation who is a solicitor.
A signature made pursuant to this rule shall be accompanied by a statement of the capacity in which the signature is made.
A document prepared by or on behalf of a party for use in a court shall have a backsheet:
(a) headed in the same manner as is required for the document, and
(b) showing:
(i) the number and year of the action,
(ii) the title of the action or an abbreviation of the title sufficient to identify the action,
(iii) a description of the document, and
(iv) the name, address, telephone number and document exchange number of the solicitor for the party and, if the solicitor acts in the action by an agent, the name, address, telephone number and document exchange number of the agent, or, if the party acts in person, a notice to that effect.
Notwithstanding rule 4 (4), where the paper on which a document is written is sufficiently opaque, the backsheet may be endorsed on the back of the document.
The court may order to be struck out of any document any matter which is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive.
Where a registrar rejects a document filed or tendered for filing, the registrar shall, either orally or in writing, give notice of the rejection and the reasons therefor to the party requiring the document to be filed.
The registrar may, on prepayment of the registrar’s charges, prepare and certify copies of any documents filed with the registrar for any party entitled to require the copies.
Where any document under the seal of a court is lost or destroyed, the registrar may from time to time seal a duplicate of the document on proof to the registrar’s satisfaction, by affidavit or otherwise, of the loss or destruction.
Every matter or thing in relation to any action which under the Act or these rules or otherwise by law is required or allowed to be done by a party may be done by the party’s solicitor on the record of the action.
Subrule (1) does not apply where the context or subject-matter otherwise indicates or requires.
Where a solicitor or the solicitor’s partner acts as solicitor for any party to an action, or is a party to an action, the solicitor shall not, without leave of the court, act for any other party to the action not in the same interest.
Where a solicitor signs, and files on behalf of a party in any action, any statement of claim, notice of grounds of defence, cross-claim, or third or subsequent party notice, the solicitor shall be the solicitor of the party on the record of the action.
Where a party acts for himself or herself in an action and afterwards appoints a solicitor to act in the action, the party or the solicitor shall sign and file notice of the change and serve the notice on the other parties to the action.
Where a solicitor acts for a party in any action, the party may change the party’s solicitor.
Where a party changes the party’s solicitor, the party, or the party’s new solicitor, shall sign and file notice of the change and serve the notice on the other parties, and, where practicable, the former solicitor of the party.
Where a solicitor (in this subrule called the principal solicitor) acts for a party in an action and another solicitor acts as agent for the principal solicitor in the action and the principal solicitor changes the solicitor acting as agent, the party, or the principal solicitor, or the new agent, shall sign and file notice of the change and serve the notice on the other parties and, where practicable, the former agent solicitor.
Where a solicitor acts for a party in an action and afterwards the party, without changing the party’s solicitor, determines the authority of the solicitor to act for the party in the action:
(a) the party shall sign and file notice of the change and serve the notice on the other parties and, where practicable, the party’s former solicitor, or
(b) the former solicitor may sign and file notice of the change and serve the notice on the parties.
Where a solicitor acts for a party in an action and afterwards ceases to act, the solicitor may subject to subrule (6) sign and file notice of the change and serve the notice on the parties.
A solicitor shall not file or serve a notice of change under subrule (5) without leave of the court unless the solicitor has, not less than 7 days before doing so, served on the solicitor’s former client notice of intention to file and serve the notice of change.
A solicitor filing a notice of change under subrule (5) shall, except where the notice is filed with leave of the court, file and serve with the notice an affidavit showing service in compliance with subrule (6).
A solicitor may serve a notice under this rule on the solicitor’s former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.
Any change mentioned in rule 3 (2) or 4 shall take effect, and a solicitor shall become or cease to be the solicitor of a party on the record or the agent of that solicitor, as the case may require, when any filing and service required by rule 3 (2) or 4 has been completed.
The courts prescribed for the purposes of section 21H of the Act are the courts held at the Downing Centre, Sydney, Albury, Ballina, Balmain, Bankstown, Bathurst, Blacktown, Burwood, Byron Bay, Campbelltown, Casino, Cessnock, Coffs Harbour, Dubbo, Dungog, East Maitland, Fairfield, Gosford, Goulburn, Grafton, Katoomba, Kempsey, Kogarah, Kurri Kurri, Lismore, Lithgow, Liverpool, Maitland, Manly, Mullumbimby, Murwillumbah, Muswellbrook, Newcastle, Newtown, North Sydney, Orange, Parramatta, Penrith, Port Kembla, Port Macquarie, Raymond Terrace, Redfern, Richmond, Scone, Singleton, Sutherland, Taree, Tweed Heads, Wagga Wagga, Wallsend, Waverley, Windsor, Wollongong, Woy Woy and Wyong.
For the purposes of section 21H (3) (d) of the Act, an action that has been commenced in a court is within a class of actions that may not be referred for determination pursuant to the Arbitration (Civil Actions) Act 1983:
(a) if the action is within the court’s Small Claims Division, or
(b) if the plaintiff is a disable person within the meaning of Part 34, or
(c) if the court, at the call-over of the action under Part 9 rule 4, is not of the opinion that the possibilities of settlement have been sufficiently explored, that the action is unlikely to be settled or that the action is ready for arbitration, or
(d) if the defendant has included in the notice of grounds of defence filed in the action any allegation to the effect that the claim of the plaintiff is fraudulent, either as to the whole of the claim or as to a substantial part thereof.
This rule applies to an action referred to an arbitrator under section 21H (1) of the Act by an order referred to in subrule (2).
In the court held at the Downing Centre, Sydney, and in such of the courts mentioned in rule 1 as may be appointed by the Chief Magistrate for the purposes of this subrule, an order under section 21H (1) of the Act may be for referral to an arbitrator sitting with the approval of the court, on the date specified in the order, without further specifying the arbitrator.
An arbitrator to whom an action is so referred shall, if he or she is not prepared to hear and determine the action, so inform the court as soon as practicable, specifying the reasons why he or she is not prepared to hear and determine the action.
An arbitrator who has not determined an action may, under subrule (3), inform the court at any time that the arbitrator is not prepared to hear and determine the action, whether or not the arbitrator has commenced to hear the action.
If an arbitrator:
(a) informs the court that he or she is not prepared to hear and determine an action so referred, or
(b) declines or fails to hear and determine the action,
the court shall revoke the order referring the action to the arbitrator and may, if it thinks fit, make an order referring the action to another arbitrator.
An arbitrator may from time to time adjourn arbitration of an action which he or she has commenced to hear.
Without limiting the operation of subrule (5), an arbitrator shall:
(a) on the date specified in the order referring the action, or
(b) on the date to which arbitration has been adjourned under subrule (5),
hear or continue to hear the action, whether or not the parties to the action appear.
This rule applies to an action referred to an arbitrator under section 21H (1) of the Act otherwise than by an order referred to in rule 3 (2).
A court or registrar shall, when making an order under section 21H (1) of the Act or as soon as practicable thereafter, nominate the arbitrator to whom the action is to be referred for arbitration.
When an arbitrator is so nominated, the registrar shall:
(a) send to the nominated arbitrator the record of the action, together with notice of the order in the approved form,
(b) send to the parties or their representatives notice of the referral in the approved form, and
(c) make and maintain a record of the order.
In nominating an arbitrator under this rule, the court or registrar shall have regard to the desirability of:
(a) utilising any appropriate special skills or experience of the arbitrator with regard to an action involving technical issues, and
(b) complying with any choice of arbitrator made by all the parties in the action.
This rule applies to an action referred to an arbitrator under section 21H (1) of the Act otherwise than by an order referred to in rule 3 (2).
An arbitrator to whom an action is so referred shall:
(a) if he or she is not prepared to hear and determine the action—return the record of the action to the court as soon as practicable, specifying the reasons why he or she is not prepared to hear and determine the action, or
(b) as soon as practicable—fix a date, time and place for the hearing of the action and inform the parties to the action of the date, time and place so fixed.
An arbitrator who has not determined an action may return the record of the action to the court under subrule (2) (a) at any time, whether or not the arbitrator has complied with subrule (2) (b) and whether or not the arbitrator has commenced to hear the action.
If an arbitrator:
(a) returns the record of an action to the court under subrule (2) (a), or
(b) fails to comply with this rule,
the court shall revoke the order referring the action to the arbitrator and may, if it thinks fit, make an order referring the action to another arbitrator.
Except to the extent that the court otherwise orders, the date fixed by the arbitrator under subrule (2) (b) for the hearing of an action shall be a date that is not later than 2 months after receipt by the arbitrator of the record of the action.
In fixing a date, time and place under subrule (2) (b) for the hearing of an action, an arbitrator shall have regard to, but is not bound to meet, the convenience of the parties to the action.
An arbitrator may, for cause shown by a party to an action, from time to time adjourn the hearing of the action.
Without limiting the operation of subrule (6), an arbitrator shall:
(a) on the date, and at the time and place, fixed by the arbitrator under subrule (2) (b), or
(b) on the date, and at the time and place, to which a hearing has been adjourned,
hear or continue to hear the action, whether or not the parties to the action appear.
If within 3 months after receipt of the record of an action the arbitrator fails to determine the action, the arbitrator shall:
(a) forthwith after the expiration of that period, and
(b) if the arbitrator fails to determine the action during any succeeding month—forthwith after the end of each such month,
inform the court of the reasons for the failure.
Nothing in this rule operates to limit (as to date, time, place or otherwise) any step an arbitrator thinks fit to take in order to advance the possibility of settlement of an action.
An arbitrator shall:
(a) take custody of any exhibit produced to the arbitrator in relation to an action, and
(b) before, or immediately after, determining the action, return the exhibit to the person by whom it was produced.
This Division applies to an action referred to an arbitrator under section 21H (1) of the Act, whether by an order referred to in rule 3 (2) or otherwise.
A party seeking to adduce at any hearing before an arbitrator any evidence of a medical practitioner as to the past, present or probable future physical or mental condition of a person:
(a) shall obtain from the medical practitioner a written report containing the substance of the matters sought to be adduced as evidence, and
(b) shall serve a copy of the report on each other party not less than 14 days after the date on which notice of referral to arbitration was forwarded by the registrar.
A party is not entitled to adduce oral evidence by a medical practitioner as to any matter mentioned in subrule (1) unless the arbitrator otherwise directs or the parties consent.
Unless the arbitrator otherwise directs, documents purporting to be hospital clinical notes or records, medical practitioners’ records, workers compensation records or wages records are, to the extent that they are admissible in evidence, admissible without further proof as to their identity.
If the court has made an order under section 21H (1) of the Act with respect to an action:
(a) the court may continue to exercise its powers to enter a judgment to which all the parties consent, and
(b) the provisions of Part 12 continue to apply to the action.
If the court enters a judgment to which all the parties consent, or if the registrar enters up judgment under Part 12, the court shall be taken to have revoked the order under section 21H (1) of the Act with respect to the action.
In this rule, a reference to the award of an arbitrator is a reference to an award made by an arbitrator to determine an action referred to the arbitrator under section 21H (1) of the Act.
The award of an arbitrator must be in or to the effect of the approved form.
An arbitrator shall, forthwith after making an award, transmit the award to the court together with, in the case of an action to which rule 4 applies:
(a) as many copies of the award, and of any attachments to the award, as there were parties separately represented in the action, and
(b) the record of the action.
An arbitrator shall specify in the award the reasons for the award, being reasons that are, in the arbitrator’s opinion, sufficiently stated to make the parties aware of the arbitrator’s view of the case made by each of them.
If a party has not attended an arbitration, the arbitrator shall include in the award a statement that the party did not attend and any other information known to the arbitrator concerning the party’s failure to attend.
A registrar shall, forthwith after receiving the award of an arbitrator, send to each of the parties to the action to which the award relates, or to the representative of such a party, a copy of the award on which the registrar has endorsed the date of sending and the registrar’s notice in the approved form.
For the purposes of section 21H (5) of the Act, the time prescribed is:
(a) in relation to an award expressed to be made with the consent of all parties—the period ending on the date endorsed by the registrar on copies of the award as the date of sending the award, or
(b) in any other case—the period of 28 days immediately following the date so endorsed.
An application for the rehearing, under section 18 (2) of the Arbitration (Civil Actions) Act 1983, of an action determined by an arbitrator shall be made by the aggrieved party filing a notice, in or to the effect of the approved form, together with as many copies of the notice as there were parties separately represented in the action.
The registrar shall, as soon as practicable after the filing of a notice under subrule (1):
(a) set a date (being as early a date as the business of the court permits):
(i) for call-over of the action and for the fixing of a date for the rehearing, or
(ii) in the case of an action in which the arbitrator’s award contains a statement referred to in rule 10 (5)—for the action to be before the court for directions as to any rehearing and for the fixing of a date for any such rehearing,
(b) endorse the date set by the registrar on the notice and on each copy of the notice filed, and
(c) send a copy of the notice, so endorsed, to each party who was separately represented in the action.
Before the record of an action is brought before the court for rehearing, the registrar shall seal within the record all information as to the nature and quantum of the award made in respect of the action, but the court is not disqualified from rehearing the action merely because it becomes aware of any such information.
(Repealed)
In this Part,
This Part commences on 10 April 1993.
The fee for:
(a) registering a judgment under section 105 (1) of the Commonwealth Act is $25, and
(b) issuing a sealed copy of a judgment for registration under that subsection is $10.
The fees allowed for service of process of a court in another State or part of the Commonwealth shall be either:
(a) in accordance with the scale of fees in force for the time being in the court of that State or part most analogous in jurisdiction to a court, or
(b) if there is no such scale, in accordance with the scale of fees in force for the time being in courts for service of process of a court in this State.
The costs to be allowed under section 107 (1) (a) of the Commonwealth Act (obtaining and lodging the copy of the judgment) are, subject to subrule (3) and unless the court otherwise orders, the sum of:
(a) the fees paid to the court for the registration of the judgment, and
(b) $233.
The amount recoverable under subrule (2) in respect of a judgment is to be calculated as though:
(a) the amount for which the judgment is to be enforced were the amount in issue in an action, and
(b) the amount specified in subrule (2) (b) were a fixed fee,
for the purposes of the Determination of the Legal Fees and Costs Board published in Government Gazette No 91, of 20 August 1993, at page 4741.
Where a judgment is registered in a court under section 105 (1) of the Commonwealth Act, and the judgment creditor seeks to recover interest on the amount of the judgment payable under section 108 of that Act:
(a) any affidavit in support of an application for a garnishee order, and
(b) any application for the issue of a writ of execution,
in respect of the judgment must contain particulars of the rate or rates, and the period or periods, which would be applicable to the recovery of interest on the judgment in the court of rendition.
Where a question for an expert witness arises in any proceedings a court may, at any stage of the proceedings, on application by a party or of its own motion, after hearing any party affected who wishes to be heard:
(a) appoint an expert (in this Division referred to as
the expert ) to inquire into and report on the question, and(b) authorise the expert to inquire into and report on any facts relevant to the inquiry and report on the question, and
(c) direct the expert to make a further or supplemental report or inquiry and report, and
(d) give such instructions (including provision concerning any examination, inspection, experiment or test) as the court thinks fit relating to any inquiry or report of the expert.
The court may appoint as the expert a person selected by the parties affected or a person selected by the court or selected in a manner directed by the court.
A copy of the expert witness code of conduct in Schedule 1 (
A report by the expert is not to be admitted into evidence unless the report contains an acknowledgment by the expert that he or she has read the code and agrees to be bound by it.
Oral evidence is not to be received from the expert unless the court is satisfied that he or she has acknowledged in writing, whether in a report relating to the proposed evidence or otherwise in relation to the proceedings, that he or she has read the code and agrees to be bound by it.
The expert must send his or her report to the registrar.
The registrar must send a copy of the report to each party affected.
Subject to compliance with this rule, the report is taken to have been admitted into evidence in the proceedings unless the court otherwise orders.
Any party affected may cross-examine the expert and the expert must attend court for examination or cross-examination if so requested on reasonable notice by the registrar or by a party affected.
The remuneration of the expert is to be fixed by the court.
Subject to subrule (3), the parties specified by the court are jointly and severally liable to the expert to pay the amount fixed by the court for his or her remuneration.
The court may direct when and by whom the expert is to be paid.
Subrules (2) and (3) do not affect the powers of the court as to costs.
Where an expert has been appointed under this Part in relation to a question arising in the proceedings, the court may limit the number of other experts whose evidence may be adduced on that question.
The court may in any proceedings obtain the assistance of any person specially qualified to advise on any matter arising in the proceedings, may act upon the adviser’s opinion and may make orders for the adviser’s remuneration.
Where an application under section 21B (1) of the Act for an order removing an action into the District Court is refused by that Court, the plaintiff shall as soon as practicable serve the registrar with a copy of the order refusing the application.
For the purposes of section 11 (2) of the Act, proceedings under Part 27 or 28 are a prescribed class of proceedings.
Where a conviction or order (not being an order referred to in section 70 of the Act), made under any Act, operates as an order for the payment of money under the Act or may be enforced under the Act, the conviction or order shall not be enforceable unless there has been filed with a registrar a certificate of the conviction or order.
A party to any action may search the record kept by the registrar in respect of the action.
A person other than a party to an action, or the solicitor for the party, shall not search the record kept by the registrar in respect of the action except by leave of the court or registrar.
For the purposes of the Act and these rules, a corporation may authorise an officer of the corporation to sign any document, or to do any thing which a party to any proceedings acting in person may do, in respect of any proceedings to which the corporation is or may become a party, and any document signed or thing done by an officer so authorised shall be taken to be signed or done by the corporation.
(Part 23, rule 1D and Part 38B, rule 2)
This code of conduct applies to any expert engaged to:
(a) provide a report as to his or her opinion for use as evidence in proceedings or proposed proceedings, or
(b) give opinion evidence in proceedings or proposed proceedings, or
(c) inquire into and report on a question under Part 38B as a court appointed expert.
An expert witness has an overriding duty to assist the court impartially on matters relevant to the expert’s area of expertise.
An expert witness’s paramount duty is to the court and not to the person retaining the expert.
An expert witness is not an advocate for a party.
A report by an expert witness must (in the body of the report or in an annexure) specify:
(a) the person’s qualifications as an expert, and
(b) the facts, matters and assumptions on which the opinions in the report are based (a letter of instructions may be annexed), and
(c) reasons for each opinion expressed, and
(d) if applicable—that a particular question or issue falls outside his or her field of expertise, and
(e) any literature or other materials utilised in support of the opinions, and
(f) any examinations, tests or other investigations on which he or she has relied and identify, and give details of the qualifications of, the person who carried them out.
If an expert witness who prepares a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report.
If an expert witness considers that his or her opinion is not a concluded opinion because of insufficient research or insufficient data or for any other reason, this must be stated when the opinion is expressed.
An expert witness who, after communicating an opinion to the party engaging him or her (or that party’s legal representative), changes his or her opinion on a material matter must forthwith provide the engaging party (or that party’s legal representative) with a supplementary report to that effect which must contain such of the information referred to in paragraph 5 (b), (c), (d), (e) and (f) as is appropriate.
Where an expert witness is appointed by the court, the preceding paragraph applies as if the court were the engaging party.
An expert witness must abide by any direction of a court to:
(a) confer with any other expert witness, and
(b) endeavour to reach agreement on material matters for expert opinion, and
(c) provide the court with a joint report specifying matters agreed and matters not agreed and the reasons for any non agreement.
An expert witness must exercise his or her independent, professional judgment in relation to such a conference and joint report, and must not act on any instruction or request to withhold or avoid agreement.
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