RULE 2
Mode of appearance
2. A defendant shall enter his appearance by delivering to the Registrar a
memorandum in writing, dated on the day of its delivery, and containing the
name of the defendant's solicitor, or stating that the defendant defends in
person. He shall at the same time deliver to the Registrar a duplicate of the
memorandum, which the Registrar shall seal with a seal bearing the words
Appearance Entered showing the date on which the appearance is entered, and
then return the duplicate memorandum to the person entering the appearance,
and the duplicate memorandum so sealed shall be a certificate that the
appearance was entered on the day indicated by the seal.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 3
Notice of appearance
3. A defendant shall, on the day on which he enters an appearance to a writ
of summons, give notice of his appearance to the plaintiff's solicitor, or, if
the plaintiff sues in person, to the plaintiff himself, by serving in the
ordinary way at the address for service, or by prepaid letter directed to that
address and posted on the day of entering appearance in due course of post,
the sealed duplicate memorandum.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 4
Address for service of solicitor
4.(1) The solicitor of a defendant appearing by a solicitor shall state in
such memorandum his place of business, which shall be his address for service
if such place of business is not more than 10 kilometres from the office of
the Registrar, and also, if his place of business is more than 10 kilometres
from the office of the Registrar, another place, to be his address for
service, which shall not be more than 10 kilometres from the office of the
Registrar, and where any such solicitor is only agent of another solicitor, he
shall add to his own name and place of business the name and place of business
of the principal solicitor.
(2) A solicitor referred to in subrule (1) who is willing to have documents
not required to be personally served on, or delivered to, the defendant,
served or delivered by way of:
(a) an Australian Document Exchange Pty Ltd exchange box in the Territory;
or
(b) a facsimile receiver at, or used in connection with, the solicitor's
place of business;is to include in the indorsed address for service the number
of the exchange box or of the facsimile receiver, as the case may be.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 5
Address for service of defendant in person
5. A defendant appearing in person shall state in such memorandum his
address, and a place, to be his address for service, which shall not be more
than 5 kilometres from the office of the Registrar.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 6
Defective address
6. If the memorandum does not contain such address it shall not be received,
and if any such address is illusory or fictitious, the appearance may be set
aside by the Court or Judge, on the application of the plaintiff.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 7
Form of appearance
7. The memorandum of appearance shall be in accordance with Form 9 in the
First Schedule.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 8
Entry in Cause Book
8. Upon receipt of a memorandum of appearance, the Registrar shall forthwith
enter the appearance in the Cause Book.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 9
Several defendants
9. If two or more defendants in the same action appear by the same solicitor
and at the same time, the names of all the defendants so appearing shall be
inserted in the one memorandum.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 10
Appearance not entered on undertaking
10. A solicitor not entering an appearance in pursuance of his written
undertaking so to do on behalf of any defendant shall be liable to an
attachment.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 11
Appearance allowed before judgment
11. A defendant may appear at any time before final judgment. If he appears
at any time after the time limited by the writ for appearance, he shall not,
unless the Court or Judge otherwise orders, be entitled to any further time
for delivering his defence, or for any other purpose, than if he had appeared
according to the writ.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 12
Person not named may defend for land
12. Any person not named as a defendant in a writ of summons for the
recovery of land may by leave of the Court or Judge appear and defend, on
filing an affidavit showing that he is in possession of the land either by
himself or his tenant, and the Court or Judge may strike out or confine
appearances or defences set up by persons not in possession by themselves or
their tenants.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 13
Landlord to appear as such
13. Any person appearing to defend an action for the recovery of land as
landlord in respect of property whereof he is in possession only by his
tenant, shall state in his appearance that he appears as landlord.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 14
Person appearing to be named as a defendant
14. Where a person not named as defendant in any writ of summons for the
recovery of land has obtained leave of the Court or Judge to appear and
defend, he shall enter an appearance according to the preceding rules of this
order, intituled in the action against the party named in the writ as
defendant, and shall forthwith give notice of such appearance to the
plaintiff's solicitor, or to the plaintiff if he sues in person, and shall in
all subsequent proceedings be named as a party defendant to the action.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 15
Defence may be limited
15. Any person appearing to a writ of summons for the recovery of land may
limit his defence to a part only of the property mentioned in the writ,
describing that part with reasonable certainty in his memorandum of appearance
or in a notice intituled in the cause, and signed by him or his solicitor. The
notice shall be served within four days after appearance, and an appearance
where the defence is not so limited shall be deemed an appearance to defend
for the whole.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 16
Notice of limitation
16. The notice mentioned in the last preceding rule shall be in accordance
with Form 10 in the First Schedule.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 13 -
RULE 17
Setting aside service before appearance
17. A defendant before appearing may, without obtaining an order to enter or
entering a conditional appearance, serve notice of motion to set aside the
writ, or the service upon him of the writ or of notice of the writ or to
discharge the order authorizing such service.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14
ORDER 14
DEFAULT OF APPEARANCE
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 1
Default of appearance by infant or person of unsound mind.
Application for guardian
1. When no appearance has been entered to a writ of summons for a defendant
who is an infant or a person of unsound mind not so found by inquisition, the
plaintiff shall, before proceeding with the action against the defendant,
apply to the Court or Judge for an order that some proper person be assigned
guardian of such defendant, by whom he may appear and defend the action. But
no such order shall be made unless it appears on the hearing of such
application that the writ of summons was duly served, and that notice of such
application was, after the expiration of the time allowed for appearance, and
at least six clear days before the day in such notice named for hearing the
application, served upon or left at the dwelling-house of the person with whom
or under whose care such defendant was at the time of serving such writ of
summons, and also (in the case of such defendant being an infant not residing
with or under the care of his father or guardian) served upon or left at the
dwelling-house of the father or guardian, if any, of such infant, unless the
Court or Judge at the time of hearing such application dispenses with such
last-mentioned service.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 2
Affidavit of service
2. Where any defendant fails to appear to a writ of summons, and the
plaintiff is desirous of proceeding upon default of appearance under any of
the following rules of this Order, or under Order 15, rule 1, or Order 16,
rule 1, he shall, before taking such proceeding upon default, file an
affidavit of service, or of notice in lieu of service (as the case may be).
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 3
Final judgment when writs indorsed for liquidated demand
3. Where the writ of summons is indorsed for a liquidated demand, whether
specially or otherwise, and the defendant fails or all the defendants (if more
than one) fail to appear thereto, the plaintiff may enter final judgment for
any sum not exceeding the sum indorsed on the writ, together with interest at
the rate specified (in any), or (if no rate is specified) at the rate of 15
per cent per annum, to the date of the judgment, and costs.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 4
Where claim for liquidated demand final judgment against defendants
not appearing
4. Where the writ of summons is indorsed for a liquidated demand, whether
specially or otherwise, and there are several defendants, of whom one or more
appear to the writ and another or others of them fail to appear, the plaintiff
may enter final judgment as in the preceding rule against such as have not
appeared, and may issue execution upon such judgment, without prejudice to his
right to proceed with his action against such as have appeared.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 5
Entry of interlocutory judgment
5. Where the writ is indorsed with a claim for pecuniary damages only, or
for detention of goods with or without a claim for pecuniary damages, and the
defendant fails, or all the defendants, if more than one, fail, to appear, the
plaintiff may enter interlocutory judgment.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 6
Entry of interlocutory judgment against defendants not appearing
6. Where the writ is indorsed as mentioned in the last preceding Rule and
there are several defendants, of whom one or more appear to the writ and
another or others of them fail to appear, the plaintiff may sign interlocutory
judgment against the defendant or defendants so failing to appear.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 7
Entry of interlocutory and final judgment in claim containing
liquidated demand
7. Where the writ is indorsed with a claim for pecuniary damages only, or
for detention of goods with or without a claim for pecuniary damages, and is
further indorsed for a liquidated demand, whether specially or otherwise, and
any defendant fails to appear to the writ, the plaintiff may enter final
judgment for the debt or liquidated demand, interest, and costs against the
defendant or defendants failing to appear, and interlocutory judgment for the
value of the goods and the damages, or the damages only, as the case may be.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 7A
Trial of action after entry of interlocutory judgment
7A. Upon the entry of interlocutory judgment under this or any other Order,
the action against the defendant against whom such judgment is entered shall,
unless the Court or a Judge otherwise orders, proceed to trial on the issue of
damages only or of the value of goods only, or on both of those issues, as the
case may be.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 8
Possession of land where no appearance
8. In case no appearance is entered in an action for the recovery of land
within the time limited for appearance, or if an appearance is entered but the
defence is limited to part only, the plaintiff may enter a judgment that the
person whose title is asserted in the writ shall recover possession of the
land, or of the part thereof to which the defence does not apply.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 9
Mesne profits or damages
9. Where the plaintiff has indorsed a claim for mesne profits, arrears of
rent, double value, or damages for breach of contract, or wrong or injury to
the premises claimed upon a writ for the recovery of land, he may enter
judgment as in the last preceding rule mentioned for the land, and may proceed
as in the other preceding rules of this order as to such other claim so
indorsed.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 10
Judgment may be set aside or varied
10. Where judgment is entered pursuant to any of the preceding rules of this
Order, the Court or Judge may set aside or vary such judgment upon such terms
as are just.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 11
Default of appearance in other cases
11. In all actions not by the rules of this Order otherwise specially
provided for, in case the party served with the writ does not appear within
the time limited for appearance, upon the filing by the plaintiff of a proper
affidavit of service, and if the writ is not specially indorsed under Order 4,
rule 5, of a statement of claim, the action may proceed as if such party had
appeared, subject, as to actions where an account is claimed, to the
provisions of Order 18.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 12
Proceedings mentioned on writ may be taken
12. All such proceedings as are mentioned in or on any writ of summons,
capias, or foreign attachment, or in any notice issued under the Act or under
these Rules shall and may be had and taken in default of a defendant's
appearance or putting in special bail (or as the case may be).
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 13
Suggestion of breaches in action in bond
13. Where the writ is indorsed with a claim on a bond within the Imperial
Act 8 & 9, Will. III., c. 11, and the defendant fails to appear thereto, no
statement of claim shall be delivered, and the plaintiff may at once suggest
breaches by delivering a suggestion thereof to the defendant or his solicitor,
and proceed as mentioned in that Act.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 14 -
RULE 14
Default of appearance to originating summons
14. Where a defendant, or respondent to an originating summons to which an
appearance is required to be entered, fails to appear within the time limited,
the plaintiff or applicant may apply to the Court or Judge for an appointment
for the hearing of such summons, and upon a certificate that no appearance has
been entered, the Court or Judge shall appoint a time for the hearing of such
summons, upon such conditions (if any) as it or he thinks fit.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15
ORDER 15
LEAVE TO SIGN JUDGMENT OR DEFEND WHERE WRIT
SPECIALLY INDORSED
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15 -
RULE 1
Summary Judgment
1. (1) Where a defendant appears to a writ of summons specially indorsed
with or accompanied by a statement of claim under Order 4, rule 5, the
plaintiff may whether or not a defence has been delivered, on affidavit made
by himself or by any other person who can swear positively to the facts,
verifying the cause of action and the amount claimed (if any liquidated sum is
claimed), and stating that in his belief there is no defence to the action
except as to the amount of damages claimed (if any), apply to the Judge for
liberty to enter judgment for such remedy or relief as upon the statement of
claim the plaintiff is entitled to.
(1A) Notwithstanding subrule (1), an application under that subrule may, if
the Judge so directs, be supported by an affidavit containing statements of
information and belief with the sources and grounds thereof.
(2) The Judge may thereupon, unless the defendant satisfies him that he has
a good defence to the action on the merits, or discloses such facts as are
deemed sufficient to entitle him to defend the action generally, make an order
empowering the plaintiff to enter such judgment as is just, having regard to
the nature of the remedy or relief claimed.
(3) If, on the hearing of any application under this rule, it appears that
any claim which could not have been specially indorsed under Order 4, rule 5,
has been included in the indorsement on the writ, the Judge may, if he thinks
fit, forthwith amend the indorsement by striking out that claim, or may deal
with the claim specially indorsed as if no other claim had been included in
the indorsement, and allow the action to proceed as respects the residue of
the claim.
(4) Where the plaintiff's claim is for the delivery up of a specific chattel
(with or without a claim for the hire thereof or for damages for its
detention) the Judge may make an order for the delivery up of the chattel
without giving the defendant the option of retaining the chattel upon paying
the assessed value thereof, and that order, if it is not obeyed may be
enforced by a writ of attachment or by a writ of delivery.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15 -
RULE 2
Application by summons
2. The application by the plaintiff for leave to enter final judgment under
the last preceding rule shall be made by summons returnable not less than two
clear days after service, accompanied by a copy of the affidavit and exhibits
referred to therein.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15 -
RULE 3
Defendant may show cause
3. (1) The defendant may show cause against such application by affidavit,
or, (except in actions for the recovery of land, or for the delivering up of a
specific chattel), by offering to bring into Court the sum indorsed on the
writ, or the Judge may allow the defendant, or any other person, to be
examined on oath.
(2) The affidavit shall state whether the defence alleged goes to the whole
or to part only, and (if so) to what part, of the plaintiff's claim.
(3) The Judge may, if he thinks fit, order the plaintiff or the defendant,
or, in the case of a corporation, any officer thereof, to attend and be
examined and cross-examined on oath, or to produce any papers, books, or
documents, or copies of or extracts therefrom.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15 -
RULE 4
Judgment may be for part of claim
4. If it appears that the defence set up by the defendant applies only to a
part of the plaintiff's claim, or that any part of his claim is admitted, the
plaintiff shall have judgment forthwith for such part of his claim as the
defence does not apply to or as is admitted, subject to such terms (if any) as
to suspending execution, or the payment of the amount levied or any part
thereof into Court by the Sheriff, the taxation of costs, or otherwise, as the
Judge thinks fit, and the defendant may be allowed to defend as to the residue
of the plaintiff's claim.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15 -
RULE 5
Or against one defendant
5. If it appears to the Judge that any defendant has a good defence to, or
ought to be permitted to defend, the action, and that any other defendant has
not such defence and ought not to be permitted to defend, the former defendant
may be permitted to defend, and the plaintiff may enter final judgment against
the latter defendant, and may issue execution upon such judgment without
prejudice to his right to proceed with his action against the former
defendant.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15 -
RULE 6
Leave on terms
6. Leave to defend may be given unconditionally or subject to such terms as
to giving security or time or mode of trial or otherwise, as the Judge thinks
fit.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15 -
RULE 7
Summary disposal
7. The Judge may, with the consent of all parties, dispose of the action
finally, and without appeal, in a summary manner.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15 -
RULE 9
Directions as to trial
9. (1) Where leave, whether conditional or unconditional, is given to
defend, the Judge may give all such directions as to the further conduct of
the action as might be given on a summons for direction under Order 33, and
may order the action to be forthwith set down for trial, and may define the
issues that are to be tried.
(2) Where the plaintiff has obtained leave to enter final judgment subject
to a suspension of execution pending the trial of a counter-claim the
provisions of this rule shall apply to the counter-claim as if it were an
action.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15 -
RULE 10
Costs
10. (1) The costs of and incidental to all applications under this Order
shall be dealt with by the Judge on the hearing of the application, and he
shall order by and to whom, and when, they shall be paid, or may refer them to
the Judge at the trial:
Provided that in case no trial afterwards takes place, or no order as to those
costs is made, the costs shall be costs in the cause.
(2) If the plaintiff makes an application under this Order, where the case
is not within the Order, or where the plaintiff, in the opinion of the Judge,
knew that the defendant relied on a contention which would entitle him to
unconditional leave to defend, the application may be dismissed with costs to
be forthwith paid by the plaintiff.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 15 -
RULE 11
Relief from forfeiture
11. A tenant shall have the same right to relief after a judgment under this
Order for the recovery of land on the ground of forfeiture for non-payment of
rent, as if the judgment had been given after trial.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 16
ORDER 16
SUMMARY JUDGMENT FOR SPECIFIC PERFORMANCE
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 16 -
RULE 1
Plaintiff may apply to sign judgment
1. Where the defendant has appeared to a writ of summons endorsed with a
claim for specific performance of a contract in writing for the sale or
purchase of property, or any estate or interest therein, the plaintiff may, on
affidavit made by himself, or by any other person who can swear positively to
the facts, verifying the cause of action and stating that there is, in his
opinion, no defence to the action, apply to the Judge for an order for
specific performance of the contract and for such consequential accounts,
inquiries and directions as to payment of purchase money, interest, damages
and costs or otherwise as the case requires. The Judge may thereupon, unless
the defendant by affidavit or otherwise satisfies him that he has a good
defence to the action on the merits, or discloses such facts as are deemed
sufficient to entitle him to defend, make such order as is just.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 16 -
RULE 2
Application by summons
2. An application by the plaintiff under the last preceding rule shall be
made by summons returnable not less than two clear days after service,
accompanied by a copy of the affidavit and any exhibits referred to therein.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 16 -
RULE 3
Defendant may show cause
3. (1) The defendant may show cause against the application by affidavit, or
the Judge may allow the defendant, or any other person, to be examined on
oath.
(2) The Judge may, if he thinks fit, order the plaintiff or the defendant,
or, in the case of a corporation, any officer thereof, to attend and be
examined and cross-examined on oath, or to produce any papers, books, or
documents, or copies of, or extracts therefrom.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 16 -
RULE 4
Leave on terms
4. Leave to defend may be given either unconditionally or subject to such
terms as to giving security or time or mode of trial or otherwise as the Judge
thinks fit.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 16 -
RULE 5
Summary disposal
5. The Judge may, with the consent of all parties, dispose of the action
finally, and without appeal, in a summary manner.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 16 -
RULE 6
Directions as to trial
6. Where leave, whether conditional or unconditional, is given, the Judge
may give all such directions as to the further conduct of the action as might
be given on a summons for directions under Order 33, and may order the action
to be forthwith set down for trial, and may define the issues that are to be
tried.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 16 -
RULE 7
Costs
7. The provisions of Order 15, rule 10, shall apply to all applications
under this Order.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 17
ORDER 17
SUMMARY JUDGMENT BY DEFENDANT
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 17 -
RULE 1
Defendant may apply for summary judgment
1. Any defendant to an action may, within ten days after appearance, or at
any later time by leave of the Court or Judge, apply to the Judge for summary
judgment, and if the Judge is satisfied that the action is frivolous or
vexatious, that the defendant has a good defence on the merits, or that the
action should be disposed of summarily or without pleadings, the Judge:
(a) may order that judgment be entered for the defendant with or without
costs;
(b) may order that the plaintiff shall proceed to trial without pleadings;
or
(c) if all parties consent, may dispose of the action finally, and without
appeal, in a summary manner.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 17 -
RULE 2
Plaintiff may show cause
2. (1) The plaintiff may show cause against such application by affidavit or
by viva voce evidence. Attendance for examination
(2) The Judge may, if he thinks fit, order the plaintiff or the defendant,
or, in the case of a corporation, any officer thereof, to attend and be
examined and cross-examined on oath or to produce any papers, books, or
documents, or copies of or extracts therefrom.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 17 -
RULE 3
Directions
3. If the Judge directs that the action shall proceed to trial, he may give
all such directions as to the further conduct of the action as might be given
on a summons for directions under Order 33, and may order the action to be
forthwith set down for trial, and may define the issues that are to be tried.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 18
ORDER 18
APPLICATION FOR ACCOUNT
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 18 -
RULE 1
Order for account
1. Where a writ of summons has been indorsed for an account, under Order 4,
rule 7, or where the indorsement on a writ of summons involves taking an
account, if the defendant either fails to appear, or does not, after
appearance, by affidavit or otherwise, satisfy the Court or Judge that there
is some preliminary question to be tried, an order for proper accounts, with
all necessary inquiries and directions, shall forthwith be made.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 18 -
RULE 2
Application for it
2. An application for such an order as is mentioned in the last preceding
rule shall be made by summons, and be supported by an affidavit, when
necessary, filed on behalf of the plaintiff, stating concisely the grounds of
his claim to an account. The application may be made at any time after the
time for entering an appearance has expired.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19
ORDER 19
PARTIES
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 1
1 Generally
Persons claiming jointly, severally, or in the alternative may be
plaintiffs
1. (1) All persons may be joined in one action as plaintiffs, in whom any
right to relief in respect of or arising out of the same transaction or series
of transactions is alleged to exist, whether jointly, severally, or in the
alternative, where, if such persons brought separate actions any common
question of law or fact would arise: Provided that, if upon the application of
any defendant it appears that such joinder may embarrass or delay the trial of
the action, the Court or Judge may order separate trials, or may make such
other order as is expedient, and judgment may be given for such one or more of
the plaintiffs as are found to be entitled to relief, for such relief as he or
they are entitled to, without any amendment.
(2) The defendant, though unsuccessful, shall be entitled to costs
occasioned by so joining any person who is not found entitled to relief,
unless the Court or Judge, in disposing of the costs, otherwise directs.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 2
No other action to be brought for same claim
2. No other action shall be brought against the defendant by any person so
joined as plaintiff in respect of the same cause of action unless by leave of
the Court or Judge.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 3
Plaintiffs may be substituted or added
3. Where an action has been commenced in the name of the wrong person as
plaintiff, or it is doubtful whether it has been commenced in the name of the
right plaintiff, the Court or Judge may, if satisfied that it has been so
commenced through a bona fide mistake, and that it is necessary for the
determination of the real matter in dispute so to do, order any other person
or persons to be substituted or added as plaintiff or plaintiffs upon such
terms as seem just.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 4
Counter-claim or set-off in case of misjoinder
4. Where in an action any person has been improperly or unnecessarily joined
as a co-plaintiff, and a defendant has set up a counter-claim or set-off, he
may obtain the benefit thereof by establishing his set-off or counter-claim as
against the parties other than the co-plaintiff so joined, notwithstanding the
misjoinder of such plaintiff or any proceeding consequent thereon.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 5
Defendants may be sued jointly, severally, or in the alternative
5. All persons may be joined as defendants against whom the right to any
relief is alleged to exist, whether jointly, severally, or in the alternative,
and judgment may be given against such one or more of the defendants as are
found to be liable according to their respective liabilities, without any
amendment.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 6
Defendant having only partial interest
6. It shall not be necessary that every defendant shall be interested as to
all the relief prayed for, or as to every cause of action included in any
proceeding against him, but the Court or Judge may make such order as appears
just to prevent any defendant from being embarrassed or put to expense by
being required to attend any proceedings in which he has no interest.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 7
Plaintiff may join parties jointly and severally liable
7. The plaintiff may, at his option, join as parties to the same action all
or any of the persons severally, or jointly and severally, liable on any one
contract, including parties to bills of exchange and promissory notes.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 8
Plaintiff in doubt may join defendants for alternative redress
8. Where the plaintiff is in doubt as to the person from whom he is entitled
to redress, he may, in such manner as is mentioned in this order or as is
prescribed by any special order, join two or more defendants, to the intent
that the question as to which (if any) of the defendants is liable, and to
what extent, may be determined as between all parties.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 9
Trustees, executors, and representative parties
9. (1) Trustees, executors and administrators may sue and be sued on behalf
of, or as representing, the property or estate of which they are trustees or
representatives, without joining any of the persons beneficially interested in
the trust or estate, and shall be considered as representing such persons, but
the Court or Judge may, at any stage of the proceedings, order any of such
persons to be made parties either in addition to or in lieu of the previously
existing parties.
(2) This rule shall apply to trustees, executors, and administrators suing
or sued in proceedings to enforce a security by foreclosure or otherwise.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 10
Where parties are numerous
10. Where there are numerous persons having the same interest in one cause
or matter, one or more of such persons may sue or be sued, or may be
authorized by the Court or Judge to defend, in such cause or matter on behalf
or for the benefit of all persons so interested.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 11
Power to approve compromise in absence of some of the persons
interested
11. When in proceedings concerning a trust a compromise is proposed, and
some of the persons interested in the compromise are not parties to the
proceedings, but there are other persons in the same interest before the Court
and assenting to the compromise, the Court or Judge, if satisfied that the
compromise will be for the benefit of the absent persons, and that to require
service on such persons would cause unreasonable expense or delay, may approve
the compromise and order that the same shall be binding on the absent persons,
and they shall be bound accordingly, except where the order has been obtained
by fraud or non-disclosure of material facts.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 12
Amendment on misjoinder of parties
12. No cause or matter shall be defeated by reason of the misjoinder or
non-joinder of parties, and the Court may in every cause or matter deal with
the matter in controversy so far as regards the rights and interests of the
parties actually before it. The Court or Judge may, at any stage of the
proceedings, either upon or without the application of any party, and on such
terms as appear to the Court or Judge to be just, order that the names of any
parties improperly joined, whether as plaintiff or as defendants, be struck
out, and that the names of any parties, whether plaintiffs or defendants, who
ought to have been joined, or whose presence before the Court is necessary in
order to enable the Court effectually and completely to adjudicate upon and
settle all the questions involved in the cause or matter, be added. A person
shall not be added as a plaintiff suing without a next friend, or as next
friend of a plaintiff under any disability, without his consent in writing
thereto. Every party whose name is so added as defendant shall be served with
a writ of summons, or notice, in the manner mentioned in this Order, or in
such manner as is prescribed by any special order, and the proceedings as
against such party shall be deemed to have begun only on the service of such
writ or notice.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 13
Application as to parties
13. Any application to add or strike out or substitute a plaintiff or
defendant may be made to the Court or Judge at any time before trial by motion
or summons, or at the trial of the action in a summary manner.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 14
Amended writ
14. Where a defendant is added or substituted the plaintiff shall, unless
otherwise ordered by the Court or Judge, file an amended copy of, and sue out,
a writ of summons, and serve such new defendant with such writ, or give notice
thereof, in the same manner as original defendants are served.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 15
Probate actions
15. Subject to the provisions of these Rules, in all Probate actions the
rules as to parties in the Court of Probate in England immediately before the
first day of November, 1875, shall apply.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 15A
Title of proceedings after change of parties
15A. (1) In any cause or matter, all proceedings subsequent to the making of
an order adding, striking out or substituting a party shall, whether or not
subrule (2) has been complied with, be entitled according to the effect of the
order.
(2) An order referred to in subrule (1) shall be prepared and entered by the
party applying for the order or by such party as the Court or Judge may
direct.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 16
2 Persons under Disability
Infants
16. (1) Infants may sue as plaintiffs by their next friends and infants may
defend any action by their guardians appointed for that purpose.
(1A) A woman, whether single or married, may be the next friend, or guardian
ad litem, of an infant.
(2) In this part of this Order to sue and to defend include to be a party to
any cause or matter.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 17
Lunatics and persons of unsound mind
17. Lunatics, and persons of unsound mind not so found by inquisition, may
respectively sue as plaintiffs in any action by their committee or next
friend, and may defend any action by their committees or guardians appointed
for that purpose.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 18
Appearance of infant
18. An infant shall not enter an appearance except by his guardian ad litem.
No order for the appointment of such guardian shall be necessary, but the
solicitor applying to enter such appearance shall make and file an affidavit
in accordance with Form 11 in the First Schedule.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 19
Guardian ad litem in petitions etc.
19. Every infant served with a petition or notice of motion or summons in a
matter shall appear on the hearing thereof by a guardian ad litem in all cases
in which the appointment of a special guardian is not provided for. No order
for the appointment of such guardian ad litem shall be necessary, but the
solicitor by whom he appears shall previously make and file an affidavit as in
the last preceding rule.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 20
Written authority of next friend or relator
20. Before the name of any person is used in any action as next friend of
any infant or other party, or as relator, such person shall sign a written
authority to the solicitor for that purpose, and the authority shall be filed.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 21
Consent on behalf of infants etc.
21. In all causes or matters to which an infant or person of unsound mind
(whether so found by inquisition or not) or person under any other disability
is a party, any consent as to the mode of taking evidence or as to any other
procedure shall, if given with the consent of the Court or Judge by the next
friend, guardian, committee, or other person acting on behalf of the person
under disability, have the same force and effect as if such party were under
no disability and had given such consent: Provided that no such consent by any
committee of a lunatic shall be valid as between him and the lunatic unless
given with the sanction of the Court or Judge.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 37
4 Administration and Execution of Trusts
Heir-at-law, next of kin, class
37. (1) In any case in which the right of an heir-at-law, or the next of
kin, or a class depends upon the construction which the Court or Judge puts
upon an instrument, and it is not known or is difficult to ascertain who is or
are such heir-at-law, or next of kin, or class, and the Court or Judge
considers that, in order to save expense, or for some other reason, it will be
convenient to have the questions of construction determined before such
heir-at-law, next of kin, or class is or are ascertained by means of inquiry
or otherwise, the Court or Judge may appoint some one or more person or
persons to represent such heir-at-law, next of kin, or class, and the judgment
of the Court or Judge in the presence of such persons shall be binding upon
the heir-at-law, next of kin, or class so represented.
Power to appoint persons to represent absent parties
(2) In any other case in which an heir-at-law, or any next of kin, or a
class is interested in any proceedings, the Court or Judge may, if, having
regard to the nature and extent of the interest of such persons, or any of
them, it appears expedient, on account of the difficulty of ascertaining such
persons, or in order to save expense, appoint one or more persons to represent
such heir, or to represent all or any of such next of kin or class, and the
judgment or order of the Court or Judge in the presence of the persons so
appointed shall be binding upon the persons so represented.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 38
Residuary legatees or next of kin
38. Any residuary legatee, devisee or next of kin entitled to a judgment or
order for the administration of the estate of a deceased person may have the
same without serving the remaining residuary legatees, devisees or next of
kin.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 39
Legatees where legacy charged on real estate
39. Any legatee interested in a legacy charged upon real estate, or any
person interested in the proceeds of real estate directed to be sold, who is
entitled to a judgment or order for the administration of the estate of a
deceased person, may have the same without serving any other legatee or person
interested in the proceeds of the estate.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 40
Residuary devisee
40. Any residuary devisee or heir entitled to the like judgment or order may
have the same without serving any co-residuary devisee or co-heir.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 41
Cestuis que trustent
41. Any one of several cestuis que trustent under any deed or instrument
entitled to a judgment or order for the execution of the trusts of the deed or
instrument may have the same without serving any other cestui que trust.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 42
Waste
42. In all cases of actions for the prevention of waste, or otherwise for
the protection of property, one person may sue on behalf of himself and all
persons having the same interest.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 43
Executors etc.
43. Any executor, administrator or trustee entitled thereto, may have a
judgment or order against any one legatee, next of kin or cestui que trust for
the administration of the estate, or the execution of the trusts.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 44
Conduct of action
44. The Court or Judge may require any person to be made a party to any
action or proceeding, and may give the conduct of the action or proceedings to
such person as it or he thinks fit, and may make such order in any particular
case as it or he deems just for placing the defendant on the record on the
same footing with regard to costs as other parties having a common interest
with him in the matters in question.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 45
Notice of judgment to be given
45. (1) Whenever in any action for the administration of the estate of a
deceased person, or the execution of the trusts of any deed or instrument, or
for the partition or sale of any hereditaments, a judgment or order has been
pronounced or made:
(a) under Order 18;
(b) under Order 36; or
(c) affecting the rights or interests of persons not parties to the action;
the Court or Judge may direct that any persons interested in the estate, under
the trust, or in the hereditaments, shall be served with notice of the
judgment or order, and after such notice they shall be bound by the
proceedings in the same manner as if they had been originally made parties,
and shall be at liberty to attend the proceedings under the judgment or order.
(2) Any party so served may, within one month after such service, apply to
the Court or Judge to discharge, vary, or add to the judgment or order.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 46
Order to attend unnecessary
46. It shall not be necessary for any person served with notice of any
judgment or order to obtain an order for liberty to attend the proceedings
under such judgment or order, but such person may attend the proceedings upon
entering an appearance in the Registrar's office in the same manner and
subject to the same provisions as a defendant entering an appearance.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 47
Entry of memorandum of service
47. A memorandum of the service upon any person of notice of the judgment or
order in any action under rule 45 of this Order shall be entered in the
Registrar's office upon due proof by affidavit of such service.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 48
Notice of judgment
48. Notice of a judgment or order served pursuant to rule 45 of this Order
shall be entitled in the action, and there shall be indorsed thereon a
memorandum in accordance with Form 12 in the First Schedule.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 49
Service of notice on infant etc.
49. Notice of a judgment or order on an infant or person of unsound mind not
so found by inquisition shall be served in the same manner as a writ of
summons in an action.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 50
Heir-at-law not necessary party
50. In any cause or matter to execute the trusts of a will it shall not be
necessary to make the heir-at-law a party, but the plaintiff may make the
heir-at-law a party where he desires to have the will established against him.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 51
Procedure where no personal representative
51. If in any cause, matter, or other proceeding it appears to the Court or
Judge that any deceased person who was interested in the matter in question
has no legal personal representative, the Court or Judge may proceed in the
absence of any person representing the estate of the deceased person, or may
appoint some person to represent his estate for all the purposes of the cause,
matter, or other proceeding, on such notice to such persons (if any) as the
Court or Judge thinks fit, either specially or generally by public
advertisement, and the order so made, and any order consequent thereon, shall
bind the estate of the deceased person in the same manner in every respect as
if a duly constituted legal personal representative of the deceased had been a
party to the cause, matter, or proceeding.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 19 -
RULE 52
Parties to administration proceedings
52. In any cause or matter for the administration of the estate of a
deceased person, no party other than the executor or administrator may, unless
by leave of the Court or Judge, appear either in Court or in Chambers on the
claim of any person not a party to the cause against the estate of the
deceased in respect of any debt or liability. The Court or Judge may direct or
give liberty to any other party to the cause or matter to appear, either in
addition to or in the place of the executor or administrator, upon such terms
as to costs or otherwise as it or he thinks fit.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20
ORDER 20
THIRD PARTY PROCEDURE
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 1
Third Party Claim and Form
1. (1) Where in an action a defendant claims as against a person not already
a party to the action (in this Order called "the third party"):
(a) that he is entitled to contribution or indemnity;
(b) that he is entitled to any relief or remedy relating to or connected
with the original subject matter of the action and substantially the same as
some relief or remedy claimed by the plaintiff; or
(c) that a question or issue relating to or connected with the original
subject matter of the action is substantially the same as some question or
issue arising between the plaintiff and the defendant and should properly be
determined not only as between the plaintiff and the defendant but as between
the plaintiff, the defendant and the third party or between any two of them;
the defendant may issue and serve a third party claim which shall be in
accordance with Form 13 or Form 14 with such variations as the case may
require.
(2) Particulars of the defendant's claim against the third party shall be
set out in the third party claim and shall be pleaded in accordance with the
rules respecting statements of claim.
(3) The third party claim shall be sealed and shall be served on the third
party and a copy of it shall be filed at the time of the sealing.
(4) At the time of the service of the third party claim, the defendant shall
serve upon the third party a copy of the writ by which the action was begun
and a copy of the pleadings (if any) delivered in the action.
(5) The defendant shall within the time prescribed by Order 20, rule 2,
serve upon the plaintiff and all parties to the action a copy of the third
party claim.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 2
Issuing of claim
2. (1) The third party claim shall be issued and served upon the third party
before the expiration of 14 days after the time limited for the delivery of
the defence or such further time as is agreed to by the plaintiff or allowed
by the Court or Judge.
(2) Where there are no pleadings or, for any reason, no defence is to be
delivered, the claim shall be issued and served within such time as is allowed
by the Court or Judge.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 3
Service of claim
3. Subject to this Order, Order 10 (except rule 7) and Order 11 shall apply
in relation to a third party claim and to the proceedings begun thereby as
if:
(a) the third party claim were a writ and the proceedings begun thereby were
an action; and
(b) the defendant issuing the third party claim were a plaintiff, and the
person against whom it is issued a defendant, in that action.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 4
Rights of Third Party in action
4. The third party shall, as from the time of the service upon him of the
notice, be a party to the action with the same rights in respect of his
defence against any claim made against him and otherwise as if he had been
duly sued in the ordinary way by the defendant.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 5
Time for appearance
5. The time for appearance by a third party after service of the third party
claim shall be as provided by Order 3, rule 6 as if the third party claim were
a writ.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 6
Appearances
6. The third party shall enter his appearance in the Registrar's office in
the manner prescribed by Order 13 for a defendant to enter his appearance and
shall, on the day on which he enters his appearance, serve the plaintiff and
all other parties to the action with a sealed copy of the memorandum of
appearance.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 7
Defence and pleadings after service
7. (1) After service on the third party of the third party claim, the third
party may take the same steps with respect to the third party claim as if it
were a statement of claim delivered by a plaintiff.
(2) The third party shall file and serve his defence within 14 days after
the expiration of the time limited for his appearance, and thereafter, the
pleadings shall, as between the defendant and the third party, continue as in
the case of an action between a plaintiff and defendant until issue is joined.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 8
Procedure on default before trial
8. (1) If a third party duly served with a third party claim does not enter
an appearance within the time allowed by these Rules:
(a) he shall be deemed to admit liability for the claims stated in the third
party claim and shall be bound by any judgment (including judgment by consent)
or decision in the action in so far as it is relevant to any claim, question
or issue stated in the third party claim; and
(b) the defendant by whom the third party claim was issued may, if judgment
is given against him in the action, at any time after satisfaction of that
judgment or with the leave of the Court or Judge, before satisfaction of the
judgment, enter judgment against the third party in respect of any indemnity
or any contributions of a specific amount or proportion claimed in the notice
and, with the leave of the Court or Judge, in respect of any other relief or
remedy claimed therein.
(2) If the defendant by whom a third party claim was issued makes default in
delivery to the third party of any pleading, the Court or Judge may order
judgment to be entered for the third party or may make such other order as may
appear necessary to do justice between the parties.
(3) The Court or Judge may at any time set aside or vary a judgment entered
under paragraph (b) of subrule (1) or subrule (2) of this rule on such terms,
if any, as it or he thinks fit.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 9
Procedure on trial
9. Unless otherwise ordered by the Court or Judge, where the action between
the plaintiff and the defendant proceeds to trial:
(a) the third party, if he has appeared and pleaded, shall be at liberty to
appear at, and take part in, the trial of the action;
(b) the issues between the third party and the defendant shall be tried at
the trial of, and concurrently with, the issues in the action; and
(c) the third party shall be bound by the result of the trial.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 10
Judgment on third party claim
10. (1) Where in an action a defendant has served a third party claim, the
Court or Judge may at or after the trial of the action, or, if the action is
determined otherwise than by trial, on an application by motion or summons,
order such judgment as the nature of the case requires to be entered for the
defendant against the third party or for the third party against the
defendant.
(2) Where, in an action, judgment is entered against a defendant, and
judgment is entered for the defendant against a third party, execution shall
not issue against the third party without the leave of the Court or Judge
until the judgment against the defendant has been satisfied.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 11
Costs
11. The Court or Judge may decide all questions of costs as between a third
party and other parties to the action, and may order any one or more of them
to pay the costs of any other, or others, or give such directions as to costs
as the justice of the case requires.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 12
Fourth and subsequent parties
12. (1) A third party may make a claim of the nature referred to in rule 1
of this Order against a person not already a party to the action (in this rule
referred to as a fourth party) and, in relation to such a claim, the
provisions of this Order shall apply mutatis mutandis as if the third party
were a defendant and the other party were a third party.
(2) A fourth party against whom a claim is made under the last preceding
subrule may similarly make a claim against a person not already a party to the
action, and so on, successively.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 13
Service of pleadings
13. Where the third party has entered an appearance, copies of all pleadings
delivered as between the plaintiff and the defendant and the defendant and the
third party shall be served upon all parties to the action.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 14
Counter-claims
14. Where, in an action, a counter-claim is made by a defendant, the
provisions of this Order shall apply in relation to the counter-claim as if
the subject-matter of the counter-claim were the original subject-matter of
the action and as if the person making the counter-claim were a plaintiff and
the person against whom it is made a defendant.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 20 -
RULE 15
Co-defendants
15. (1) Where a defendant claims against another defendant:
(a) that he is entitled to contribution or indemnity; or
(b) that he is entitled to any relief or remedy relating to or connected
with the original subject-matter of the action and substantially the same as
some question or issue arising between the plaintiff and the defendant making
the claim and which should properly be determined not only as between the
plaintiff and the defendant making the claim but as between the plaintiff,
that defendant and the other defendant or between any two of them; the
defendant making the claim may serve on the other defendant a notice making
the claim or specifying the question or issue.
(2) Particulars of the defendant's claim shall be set out in the notice and
shall be pleaded in accordance with the rules respecting statements of claim.
(3) A copy of the notice shall be filed forthwith after service and a copy
served upon the plaintiff and each other party to the action who has entered
an appearance.
(4) The notice shall be served upon the other defendant as soon as
reasonably practicable and shall be answered as soon as reasonably practicable
by the other defendant, but no appearance to the notice shall be necessary,
and the same procedure shall be adopted for the determination of the claim,
question or issue between the defendants as would be appropriate under this
Order if the other defendant were a third party.
(5) Nothing in this rule prejudices the rights of the plaintiff against a
defendant to the action.
(6) Copies of all pleadings delivered between the defendant making the claim
and the defendant on whom the claim is made shall be served upon the plaintiff
and each other party to the action who has entered an appearance.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21
ORDER 21
CHANGE OF PARTIES BY DEATH ETC.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21 -
RULE 1
No abatement by marriage etc.
1. (1) A cause or matter shall not become abated by reason of the marriage,
death, or bankruptcy of any of the parties, if the cause of action survives or
continues, and shall not become defective by the assignment, creation, or
devolution of any estate or title pendente lite.
(2) Whether the cause of action survives or not, there shall be no abatement
by reason of the death of either party between the verdict or finding of the
issues of fact and the judgment, but judgment may in such case be entered,
notwithstanding the death.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21 -
RULE 2
Parties may be added
2. In case of the marriage, death, or bankruptcy, or devolution of estate by
operation of law, of any party to a cause or matter, the Court or Judge may,
if it is deemed necessary for the complete settlement of all the questions
involved, order that the husband, personal representative, trustee, or other
successor in interest (if any) of such party be made a party or be served with
notice in such manner and form as is prescribed by rule 5 of this Order, and
on such terms as the Court or Judge thinks just, and shall make such order for
the disposal of the cause or matter as is just.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21 -
RULE 3
Transfer of estate pendente lite
3. In case of an assignment, creation, or devolution of any estate or title
pendente lite, the cause or matter may be continued by or against the person
to or upon whom such estate or title has come or devolved.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21 -
RULE 4
Party added by order on change of interest
4. Where by reason of marriage, death, bankruptcy, or any other event
occurring after the commencement of a cause or matter, causing a change or
transmission of interest or liability, or by reason of any person interested
coming into existence after the commencement of the cause or matter, it
becomes necessary or desirable that any person not already a party should be
made a party, or that any person already a party should be made a party in
another capacity, an order that the proceedings shall be carried on between
the continuing parties and such new party or parties may be obtained ex parte
on application to the Court or Judge, upon an allegation of such change, or
transmission of interest or liability, or of such person interested having
come into existence.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21 -
RULE 5
Service of order
5. An order obtained as mentioned in the last preceding rule shall, unless
the Court or Judge otherwise directs, be served upon the continuing party or
parties, or their solicitors, and also upon each such new party, unless the
person making the application is himself the only new party, and the order
shall from the time of such service, subject nevertheless to the next two
succeeding rules, be binding on the persons served therewith, and every person
served therewith who is not already a party to the cause or matter shall be
bound to enter an appearance thereto within the same time and in the same
manner as if he had been served with a writ of summons.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21 -
RULE 6
Discharge or variation of order
6. Where any person is not under a disability, or is not under any
disability other than coverture, or being under any disability other than
coverture, but having a guardian ad litem in the cause or matter, is served
with such order as is mentioned in rule 4 of this Order, such person may apply
to the Court or Judge to discharge or vary such order at any time within
twelve days from the service thereof.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21 -
RULE 7
Person under disability
7. Where any person being under any disability other than coverture, and not
having a guardian ad litem in the cause or matter, is served with any order as
mentioned in rule 4 of this Order, such person may, at any time within twelve
days from the appointment of a guardian ad litem for such party, apply to the
Court or Judge to discharge or vary such order, and, until such period of
twelve days has expired, such order shall have no force or effect as against
such last-mentioned person.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21 -
RULE 8
Death of party and failure to proceed
8. When the plaintiff or defendant in a cause or matter dies, and the cause
of action survives, but the person entitled to proceed fails to proceed, the
defendant (or the person against whom the cause or matter may be continued)
may apply by summons to compel the plaintiff (or the person entitled to
proceed) to proceed within such time as is ordered, and in default of such
proceeding, judgment may be entered for the defendant, or as the case may be,
for the person against whom the cause or matter might have been continued, and
in such case, if the plaintiff has died, execution may issue, as in the case
provided for by Order 43, rule 23.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21 -
RULE 9
Abatement to be certified and entered
9. When any cause or matter becomes abated, or in the case of any such
change of interest as is provided for by this Order, the solicitor for the
plaintiff, or person having the conduct of the cause or matter, as the case
may be, shall certify the fact to the Registrar, who shall cause an entry
thereof to be made in the Cause Book opposite to the name of such cause or
matter.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 21 -
RULE 10
Abated cause to be struck out
10. Where any cause or matter has been standing for one year in the Cause
Book marked as abated, or standing over generally, such cause or matter shall,
at the expiration of the year, be struck out of the Cause Book.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 22
ORDER 22
JOINDER OF CAUSES OF ACTION
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 22 -
RULE 1
Joinder of several causes
1. Subject to the succeeding rules of this Order, the plaintiff may unite in
the same action several causes of action, but if it appears to the Court or
Judge that any such causes of action cannot be conveniently tried or disposed
of together, the Court or Judge may order separate trials of any of such
causes of action to be had, or may make such other order as is necessary or
expedient for the separate disposal thereof.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 22 -
RULE 2
Not with action for recovery of land
2. No cause of action shall, unless by leave of the Court or Judge, be
joined with an action for the recovery of land, except claims in respect of
mesne profits or arrears of rent or double value in respect of the premises
claimed, or any part thereof, and damages for breach of any contract under
which the same, or any part thereof, are held, or for any wrong or injury to
the premises claimed:
Provided that nothing in this Order shall prevent any plaintiff in any
action for foreclosure or redemption from asking for or obtaining an order
against the defendant for delivery of the possession of the mortgaged property
to the plaintiff, on or after the order absolute for foreclosure or
redemption, as the case may be, and such an action for foreclosure or
redemption, and for such delivery of possession shall not be deemed an action
for the recovery of land within the meaning of these Rules:
Provided also that in case any mortgage security is foreclosed by reason of
the default to redeem by any plaintiff in a redemption action, the defendant
in whose favour such foreclosure has taken place may, by motion or summons,
apply to the Court or Judge for an order for delivery to him of possession of
the mortgaged property, and such order may be made thereupon as the justice of
the case requires.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 22 -
RULE 3
Claims by trustee in insolvency
3. Claims by a trustee in bankruptcy as such shall not, unless by leave of
the Court or Judge, be joined with any claim by him in any other capacity.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 22 -
RULE 4
Husband and wife
4. Claims by or against husband and wife may be joined with claims by or
against either of them separately.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 22 -
RULE 5
Executors
5. Claims by or against an executor or administrator as such may be joined
with claims by or against him personally, provided the last-mentioned claims
are alleged to arise with reference to the estate in respect of which the
plaintiff or defendant sues or is sued as executor or administrator.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 22 -
RULE 6
Joint and separate claims
6. Claims by plaintiffs jointly may be joined with claims by them or any of
them separately against the same defendant.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 22 -
RULE 7
Subject to rules 1, 8 and 9
7. The last three preceding rules shall be subject to rules 1, 8 and 9 of
this Order.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 22 -
RULE 8
Application of defendant to confine action
8. Any defendant alleging that the plaintiff has united in the same action
several causes of action which cannot be conveniently disposed of together may
at any time apply to the Court or Judge for an order confining the action to
such of the causes of action as may be conveniently disposed of together.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 22 -
RULE 9
Judge may exclude causes inconvenient to be joined
9. If, on the hearing of such an application as is mentioned in the last
preceding rule, it appears to the Court or Judge that the causes of action are
such as cannot be conveniently disposed of together, the Court or Judge may
order any of such causes of action to be excluded and consequential amendments
to be made, and may make such order as to costs as is just.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23
ORDER 23
PLEADING GENERALLY
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 1
Pleading rules
1. The following rules of pleading shall, subject to these Rules, be used in
the Court.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 2
Pleadings and particulars not to be prolix
2. Pleadings and particulars shall be as brief as the nature of the case
admits, and the taxing officer in adjusting the costs of the action shall, at
the instance of any party, or may without any request, inquire into any
unnecessary prolixity, and order the costs occasioned by such prolixity to be
borne by the party chargeable with the same.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 3
Set-off or counter-claim
3. (1) A defendant in an action may, subject to Order 25, rule 15, set-off,
or set-up by way of counter-claim, against the claims of the plaintiff, any
right or claim, whether such set-off or counter-claim sounds in damages or
not, and such set-off or counter-claim shall have the same effect as a cross
action, so as to enable the Court to pronounce a final judgment in the same
action, both on the original and on the cross claim.
(2) The Court or Judge may, on the application of the plaintiff before
trial, if in the opinion of the Court or Judge such set-off or counter-claim
cannot be conveniently disposed of in the pending action, or ought not to be
allowed, refuse permission to the defendant to avail himself thereof.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 4
Statements in pleadings
4. Every pleading shall contain, and contain only, a statement in a summary
form of the material facts on which the party pleading relies for his claim or
defence, as the case may be, but not the evidence by which they are to be
proved, and shall, when necessary, be divided into paragraphs, numbered
consecutively. Dates, sums, and numbers shall be expressed in figures and not
in words.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 4A
Name of settling counsel to be included in pleadings
4A. Every pleading which has been settled by counsel shall include, at the
end, a statement to the following effect:
"This pleading was settled by
(or as the case may be) (name)
of counsel."
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 5
Forms of pleading
5. (1) The general form of a statement of claim shall be in accordance with
Form 15 in the First Schedule.
(2) The general form of a statement of defence shall be in accordance with
Form 16 in the First Schedule.
(3) The general form of a reply shall be in accordance with Form 17 in the
First Schedule.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 6
Particulars in pleading
6. In all cases in which the party pleading relies on any misrepresentation,
fraud, breach of trust, wilful default, or undue influence, and in all other
cases in which particulars are necessary beyond such as are exemplified in the
Forms referred to in the last preceding rule, particulars (with dates and
items if necessary) shall be stated in the pleading: Provided that, if the
particulars are of debt, expenses, or damages, and exceed three folios, the
fact must be so stated, with a reference to full particulars already delivered
or to be delivered with the pleading.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 7
Further statement or particulars
7. A further and better statement of the nature of the claim or defence, or
further and better particulars of any matter stated in any pleading, notice,
or written proceeding requiring particulars, may in all cases be ordered, upon
such terms, as to costs or otherwise, as are just.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 8
Letter for particulars
8. Before applying for particulars by summons or notice a party may apply
for them by letter. The costs of the letter and of any particulars delivered
pursuant thereto shall be allowable on taxation. In dealing with the costs of
any application for particulars by summons or notice, the provisions of this
rule shall be taken into consideration by the Court or Judge.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 9
Time for pleading after particulars
9. The party at whose instance particulars have been delivered under the
Judge's order shall, unless the order otherwise provides, have the same length
of time for pleading after the delivery of the particulars that he had at the
return of the summons. Save as in this rule provided, an order for particulars
shall not, unless the order otherwise provides, operate as a stay of
proceedings, or give any extension of time.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 10
Pleadings to be in writing
10. Every pleading shall be in writing.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 11
Delivery and marking of pleadings
11. (1) Every pleading shall be filed and shall be delivered on the day of
filing.
(2) Every pleading shall be marked with the date of the day on which it is
delivered and with a reference to the number of the action, the title of the
action, and the description of the pleading and shall be endorsed with the
name and place of business of the solicitor and agent (if any) delivering the
same or the name and address of the party delivering the same if he does not
act by a solicitor.
(3) Subrule (1) of this rule does not require the delivery of a pleading to
a party to the action who, being required to enter an appearance, has not done
so.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 12
Mode of delivery
12. Every pleading or other document required to be delivered to a party or
between parties shall be delivered to the solicitor for each party who appears
by a solicitor or to the party if he does not appear by a solicitor.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 13
Allegations not denied, admitted except against infants etc.
13. Every allegation of fact in any pleading, not being a petition or
summons, if not denied specifically or by necessary implication, or stated to
be not admitted in the pleading of the opposite party, shall be taken to be
admitted, except as against an infant, lunatic, or person of unsound mind not
so found by inquisition.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 14
Conditions precedent
14. Any condition precedent the performance or occurrence of which is
intended to be contested shall be distinctly specified in his pleading by the
plaintiff or defendant, as the case may be, and subject thereto an averment of
the performance or occurrence of all conditions precedent necessary for the
case of the plaintiff or defendant shall be implied in his pleading.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 15
Special matters to be pleaded
15. When there are pleadings, the defendant or plaintiff (as the case may
be) must raise by his pleading all matters which show the action or
counter-claim not to be maintainable, or that the transaction is either void
or voidable in point of law, and all such grounds of defence or reply (as the
case may be) as, if not raised, would be likely to take the opposite party by
surprise, or would raise issues of fact not arising out of the preceding
pleadings, as, for instance, fraud, Statute of Limitations, Statute of Frauds,
release, payment, performance, facts showing illegality, any statutory
provision requiring contracts to be in, or to be evidenced by, writing, either
by any law or at Common Law.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
RULE 16
No departure
16. No pleading (not being a petition or summons) shall, except by way of
amendment, raise any new ground of claim, or contain any allegation of fact
inconsistent with the previous pleadings of the party pleading the same.
RULES OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY - ORDER 23 -
|