Supreme Court Act 1970 Supreme Court Rules (Amendment No 267) 1992 (1992-549) [GG No 121 of 2.10.1992] (NSW)
1992—No. 549
SUPREME COURT RULES (AMENDMENT No. 267) 1992
NEW SOUTH WALES
[Published in Gazette No. 121 of 2 October 1992]
1. These rules are made by the Rule Committee on 21 September 1992.
2. The Supreme Court Rules 1970 be amended as follows:
(a) Part 37
After rule 10 insert:
Alteration to obligations11. (1) A party who has requested the issue of a subpoena may, by written or oral notice to the person named, alter the time specified in the subpoena for attendance and production or for production to a time which is:
(a) later than:
(i) the time specified in the subpoena for attendance and production or for production; and
(ii) the time, if any, as last altered pursuant to this subrule; and
(b) the time of the trial or of any other occasion when the proceedings are before the Court or before any Judge, officer, examiner or other person having authority to take evidence. (2) Where the person named or, where the person named is a corporation, the proper officer of the corporation has not:
(a) been called to give evidence; or
(b) been called upon to produce documents,
before the Court or before any Judge, officer, examiner or other person having authority to take evidence, in compliance with the subpoena, the party who requested the issue of the subpoena may, by written or oral notice to the person named, excuse the person named from compliance with the subpoena.
(b) Schedule F Form 46
(i) Omit paragraph (c) and insert instead:
(c)
on (5) (6) at 10 a.m. (3) and until you are excused by the Court from further attending; but:
(i) you need not comply with this subpoena:
(A) unless reasonable expenses have been paid or tendered to you;
(B) if it is served on you after (8); or
(C) if the party who requested the issue of
this subpoena has excused you from
compliance;
(ii) instead of attending, you may produce this subpoena and the documents and things described in the schedule to a clerk of the Court at the above place by hand or by post, in either case so that he receives them not later than two days before the first date on which you are required so to attend;
(iii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance and production to a later time.
(ii) After note (5) insert:
(6) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
(c) Schedule F Form 46A
(i) Omit paragraph (c) and insert instead:
(c) on (5) (6) at 10 a.m. (3) and until the officer is excused by the Court from further attending; but: (i) the corporation need not comply with this subpoena:
(A) unless reasonable expenses have been
paid or tendered to the corporation;(B) if it is served on the corporation after
(8); or(C)
if the party who requested its issue has excused the corporation from compliance;
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(ii) instead of causing its proper officer so to attend, the corporation may produce this subpoena and the documents and things described in the schedule to a clerk of the Court at the above place by hand or by post, in either case so that he receives them not later than two days before the first date on which the officer is required to attend;
(iii) if the corporation is a bank and is required by this subpoena to produce a banker’s book and the corporation is not a party to these proceedings and Part IV of the Evidence Act 1898 applies, the corporation need not cause its officer to produce it if the corporation causes him to produce proof of the relevant entries in it in accordance with that Part;
(iv) the party who requested the issue of this subpoena may, by written or oral notice to the corporation, alter the time for attendance or production to a later time.
(ii) After note (5) insert:
(6) Being excused from compliance with this subpoena
does not excuse you from compliance with any other
subpoena.
(d) Schedule F Form 46B
(i) Omit paragraph (c) and insert instead:
(c)
on (5) (6) at 10 a.m. (³) and until you are excused by the Court from further attending; but:
(i) you need not comply with this subpoena:
(A) unless $ (the amount prescribed
by Part 37 rule 7A (4) ) have been paid
or tendered to you;
(B) if it is served on you after (8); or
(C) if the party who requested the issue of
this subpoena has excused you from
compliance;
(ii) instead of so attending, you may produce this subpoena and the scheduled documents to a clerk of the Court at the above place by hand or by post, in either case so that he receives them not later than two days before the first date on which you are required so to attend;
(iii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance and production to a later time.
(ii) In note (2) after “produce the” insert “subpoena and the”.
(iii) After note (5) insert:(6) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
(e) SCHEDULE F Form 47
(i) Omit paragraph (c) and insert instead:
(c)
on (5) (6) at 10 a.m. (3) and until you are excused by the Court from further attending; but:
(i) you need not comply with this subpoena:
(A) unless reasonable expenses have been paid or tendered to you;
(B) if it is served on you after (8); or
(C) if, as a medical expert, you arerequired by this subpoena to attend at a place in Sydney for the purposes of giving evidence on medical matters and it is served on you after (8); or
(D) if the party who requested the issue of this subpoena has excused you from compliance;
(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance to a later time.
(ii) After note (2) insert:
(3) Being excused from compliance with this subpoena does not excuse you from Compliance with any other subpoena.
(f) SCHEDULE F Form 48
(i) Omit paragraph (c) and insert instead:
(c)
on (5) (6) at 10 a.m. (3) and until you are excused by the Court from further attending; but:
(i) you need not comply with this subpoena:
(A) unless reasonable expenses have been paid or tendered to you;
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(B) if it is served on you after (8); or
(C) if, as a , medical expert, you are
required by this subpoena to attend at a place in Sydney for the purposes of giving evidence on medical matters and it is served on you after (8); or
(D) if the party who requested the issue of this subpoena has excused you from compliance;
(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance or production to a later time.
(ii) After note (6) insert:
(7) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
(g) SCHEDULE F Form 74AA
(i) Omit paragraph (c) and insert instead:
(c) on (5) (6) at 10 a.m. (3) and until you are excused by the Court from further attending; but: (i) you need not comply with this subpoena if the party who requested its issue has excused you from compliance;
(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance and production to a later time.
(ii) After note (4) insert:
(5) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
(iii) Omit “r. 2 (q)” and insert instead “r. 2 (r)”.
(h) SCHEDULE F Form 74AB
(i) Omit paragraph (c) and insert instead:
(c) on (5) (6) at 10 a.m. (3) and until the officer is excused by the Court from further attending; but: (i) the corporation need not comply with this subpoena if the party who requested its issue has excused the corporation from compliance;
1992—No. 549
(ii) if the corporation is a bank and is required by this subpoena to produce a banker’s book and the corporation is not a party to these proceedings and Part IV of the Evidence Act 1898 applies, the corporation need not cause its officer to produce it if the corporation causes him to produce proof of the relevant entries in it in accordance with that Part;
(iii) the party who requested the issue of this subpoena may, by written or oral notice to the corporation, alter the time for attendance or production to a later time.
(ii) After note (4) insert:
(5) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
(iii) Omit “r. 2 (q)” and insert instead “r. 2 (r)”.
(i) SCHEDULE F Form 74AC
(i) Omit paragraph (c) and insert instead:
(c) on (5) (6) at 10 am. (³) and until you are excused by the Court from further attending; but: (i) you need not comply with this subpoena if the party who requested its issue has excused you from compliance;
(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for attendance to a later time.
(ii) After note (2) insert:
(3) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
(iii) Omit “r. 2 (q)” and insert instead “r. 2 (r)”.
(j) SCHEDULE F Form 74AD
(i) Omit paragraph (c) and insert instead:
(c) on (5) (6) at 10 a.m. (³) and until you are excused by the Court from further attending; but: (i) you need not comply with this subpoena if the party who requested its issue has excused you from compliance;
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(ii) the party who requested the issue of this subpoena may, by written or oral notice to you, alter the time for production or attendance to a later time.
(ii) After note (4) insert:
(5) Being excused from compliance with this subpoena does not excuse you from compliance with any other subpoena.
(iii) Omit “r. 2 (q)’’ and insert instead “r. 2 (r)”.
3. The amendments contained in paragraphs 2 (b) to 2 (i) shall not
apply in respect of subpoenas filed in the Court before 1 February 1993.
4. The Supreme Court Rules 1970 are further amended as follows:
(a) Part 52 Rule 1 “taxed costs” means:
(a) costs taxed in accordance with this Part; and
(b) costs certified pursuant to rule 50A (7).
(b) Part 52 rule 9 (1) (c1) After “under” insert “rule 11A (lA),”. (c) Part 52 rule 11A
After subrule (1) insert:(1A) A party whose costs are payable under subrule (1) may tax the costs after the conclusion of the proceedings and, if the taxed costs are not paid within 4 days after the signing of a certificate of the taxation, may enter judgment for the taxed costs.
(d) Part 52 rule 40
After subrule (2) insert:(2A) Where:
(a) rule 50A applies to the application to proceed with a taxation; and (b) the sum of the amount taxed off exceeds one quarter of the amount the subject of the taxation,
any prescribed fee payable in respect of a taxation shall not be allowed unless the Court or the taxing officer otherwise orders.
(2B) For the purposes of subrule (2A), the costs of the taxation and the amount claimed in respect of an item solely for skill, care and responsibility shall not be taken into account in calculating the sum referred to in subrule (2A) (b) or the amount the subject of the taxation.
(e)
Part 52 rule 40 (3) After “(2)” insert “, (2A)”.
(f) Part 52 rule 43
Omit subrules (2) and (3) and insert instead:(2) Where, in any proceedings, by or under:
(a) these rules; or
(b) an order of the Court,
costs are to be taxed and are to be paid to any party either by another party to the proceedings or out of a fund, an application to proceed with the taxation shall be made to a taxing officer by motion in the proceedings by the party to whom the costs are payable.
(g) Part 52 rule 49
(i) From subrule (1) (c) omit “; and” and insert instead “;”. (ii) From subrule (1) (d) omit “,” and insert instead “; and”. (iii) after subrule (1) (d) insert:
(e)
where the amount to be paid, in respect of the costs the subject of the bill, is reduced by rule 24 (3) or by an order under rule 6 (2) (a) or by an order under rule 24 (4)—a statement at the end of the bill, which identifies the rule or order and includes a calculation giving effect to it,
(iv) After subrule (1) insert:
(1A) Where rule 50A applies to the application to proceed with taxation of a bill, the amount claimed for the costs of the taxation shall not be shown in the bill.
(1B) A bill shall bear a note on the first page which:
(a)
identifies the provision of rule 9 which applies to allow taxation of the bill without any order directing taxation; and
(b)
where the bill is to be taxed by or under an order of the Court, states the date of the order.
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(h) Part 52 rule 50 (3) Omit “if requested by a taxing officer to do so” and insert instead
“on so moving”.
(i) Part 52 rule 50A
Omit the rule and insert instead:
Party and party taxation: notice to file objections50A. (1) This rule applies to an application to which rule 43 applies but does not apply where:
(a) a person liable to pay the costs the subject of the application is a disable person; or (b) the costs the subject of the application are to be paid out of a fund.
(2) An application to which this rule applies shall be made in accordance with this rule and not otherwise, unless the Court or a taxing officer otherwise orders.
(3) A party wishing to proceed with the taxation of a bill (in this rule called the “applicant”) shall serve the bill on each other party interested in the taxation (in this rule called an “interested party”) and any party who does not have an address for service shall be served personally.
(4) A notice in Form 62AC to serve objections shall be attached to or subscribed to the bill.
(5) An interested party may, within the time limited by the notice to serve objections, serve a notice of objection in Form 62AD upon the applicant.
(6) Where the time limited for serving a notice of objection has expired and none of the interested parties has served a notice of objection on the applicant, the applicant may:
(a) file an affidavit which:
(i) verifies service of the bill;
(ii) states that the time limited for serving a notice of objection has expired;
(iii) states that a notice of objection has not been served within that time by an interested party on the applicant; and
(iv) states that:
(A) rule 49 (1) (e) has been complied with; or (B) rule 49 (1) (e) does not apply to the costs the
subject of the bill; and
1992—No. 549
(b)
lodge with the registrar a draft certificate of taxation for filing together with any additional copies required by the applicant.
(7) Where: (a) the affidavit referred to in subrule (6) has been filed; and (b)
a draft certificate of taxation has been lodged with the registrar,
an officer of the Court shall make a certificate in the amount of
the costs claimed in the bill in Form 62AE.(8) Where, within the time limited for serving a notice of
objection, an interested party serves a notice of objection on the
applicant:
(a)
if any interested party has not within that time served a notice of objection on the applicant, the applicant may file an affidavit which:
(i) verifies service of the bill;
(ii) states that the time limited for serving a notice of objection has expired; and
(iii) states that no notice of objection, other than the notice or notices of objection a copy of which is annexed to the affidavit, has been served within that time by an interested party on the applicant; and
(b) the applicant may:
(i) complete the notice of objection in accordance with the requirements of Form 62AD;
(ii) file the completed notice of objection;
(iii) where every interested party has served a notice of objection on the applicant, file the bill;
(iv) not later than 7 days after filing the completed notice of objection, serve it on each interested party; and
(v) file an affidavit of service of the completed notice of objection.
(9) Where, within the time limited for serving a notice of objection, an interested party serves a notice of objection on the applicant:
(a)
if subrule (8) (a) applies, the affidavit referred to in that subrule has been filed;
(b) the completed notice of objection has been filed;
(c) if rule (8) (b) (iii) applies, the bill has been filed; and
1992—No. 549
(d)
the affidavit referred to in subrule (8) (b) (v) has been filed,
the taxing officer shall:
(e)
amend the bill in accordance with concessions marked on the notice of objection;
(f)
tax any items to which objection is taken in the notice of objection and which are not marked on the notice of objection as fully conceded; and
(g) allow the items which are not taxed.
(10) Where an affidavit of service of a bill of costs is filed
under this rule, the rules, other than this rule, shall apply as if the
bill were also filed at the time of filing the affidavit.
(j)
Part 52 rule 50B (1) (b) After subparagraph (i) insert:
(iA) where rule 49 (1) (e) applies:
(A) if the rule has not been complied with; or
(B) the statement made under the rule will cease to be
correct if the proposals are carried out,
note on the bill a statement required by that rule;
(k)
Part 52 rule 50B (1) (b) (ii) After “items” insert “or other matter”.
(l) Part 52 rule 59
(i) Omit subrules (3) and (4) and insert instead:
(3) A taxing officer shall, after the conclusion of the taxation of any bill, upon payment of any prescribed fee in respect of a taxation, make a final certificate of:
(a) his disallowance of the costs in the bill or of the amount at which he allows the costs; and (b) the amount to be paid after taking into account any reduction required by rule 24 (3) or by an order under rule 6 (2) (a) or by an order under rule 24 (4).
(4) Where a taxing officer gives an appointment for a hearing under rule 50B (1) (a) or pursuant to a request under rule 50B (1) (b) (ii) and decides:
(a)
to allow or disallow, wholly or in part, any item in a bill;
(b) to allow some amount in respect of any item; or
1992—No. 549
(c) to make a note under rule 50B (1) (b) (iA),
he shall not, except with the consent of the parties interested, make a certificate dealing finally with that item, until the expiry of 14 days after the date of the decision.
(ii) Omit from subrule (8) “50A (8)” and insert instead “50A (7)”.
(iii) After subrule (9) insert:
(10) A taxing officer may postpone the making of a certificate of taxation until after all documents lodged for the purposes of the taxation by the party filing the bill have been uplifted.
(m) Part 52 rule 60 (1) Omit the subrule and insert instead: (1) Where a taxing officer gives an appointment for a hearing
under rule 50B (1) (a) or pursuant to a request under rule 50B (1)
(b) (a) to allow or disallow, wholly or in part, any item in a bill;
(ii) and decides: (c) to make a statement under rule 50B (I) (b) (iA),
a party to the taxation proceedings who objects to the decision
may apply to the taxing officer to reconsider the decision.
(n)
Part 52 rule 60 (5) After “items” insert “or other matter”.
(o)
Part 52 rule 61 (1) (a) Omit “give” and insert instead “make”.
(p) Part 52 rule 62
(i) From subrule (1) omit “gives” and insert instead “makes”.
(ii) From subrules (3) and (3A) omit “given” where appearing and insert instead “made”.
(q) At the end of the Form insert:
SCHEDULE F Form 62AAA 49 (1) (e) applies, the statement required by that rule.)
(r) SCHEDULE F Form 62AC
(i) Omit ‘‘file” and insert instead “serve”.
(ii) Omit “(3)” and insert instead “(4)”.
(iii) Omit “file” and insert instead “serve on the party entitled to the costs” .
1992—No. 549
(s) SCHEDULE F
After Form 62AC insert:
Form 62AD
P. 52, r. 50A (5).
NOTICE OF OBJECTION TO A BILL
| Item No. | Nature and Ground of | Amount | Objection |
Objection Objected to Conceded
| Amount disputed $ (9) |
(signature)
Solicitor of (party objecting)
(signature)
Solicitor for (party who served
bill)
(1) This column to be completed by party objecting.
(2) This column to be completed by party who served bill.
(3) State the number of the item objected to. Where the objection is
that Part 52 rule 49 (1) (e) has not been complied with, state “not
applicable”.
(4) State these shortly but specifically. Where the objection is that Part 52 rule 49 (1) (e) has not been complied with, state the proportion by which the costs claimed are reduced by Part 52 rule 23 (4) or by an order under Part 52 rule 6 (2) (a) or Part 52 rule 24 (4).
(5) State how much of the item is objected to. Do not include an
amount in respect of any objection that Part 52 rule 49 (I) (e) has
not been complied with.
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(6) Where an objection is wholly or partly conceded, write the amount conceded beside the objection. Where the objection is that Part 52 rule 49 (1) (e) has not been complied with, do not state any amount but write instead “conceded”.
(7) & (8) Total this column but do not take account of any item solely for skill, care and responsibility.
(9) Subtract the total at (8) from the total at (7) and show remainder.
Form 62AE
| P.52 | r. 50A (7). |
CERTIFICATE OF TAXATION
I certify that (pursuant to judgment (order) entered date) (or pursuant to Part 52 rule 16 the plaintiff having filed notice of discontinuance on date) (or pursuant to section 10 of (state Act)) the defendant’s costs as between party and party, which are payable after making any reduction required by Part 52 rule 24 (4) or by an order under Part 52 rule 6 (2) (a) or by an
| order under Part 52 rule 24 (4), are $ | . |
| Dated |
(description of officer)
(t) SCHEDULE F Form 62B
After “items” insert “or other matter”.(u) SCHEDULE F Form 63
(i) Omit “(or have, pursuant to Part 52 rule 50A (7), been
allowed at $ )”. (ii) Omit “Dated 19 .” and “Taxing Officer.” and insert instead:
The amount payable, after making any reduction required
by Part 52 rule 24 (4) or by an order under Part 52 rule 6
(2) (a) or by an order under Part 52 rule 24 (4), is $ .Dated
Taxing officer
5. The amendments contained in paragraphs 4 (d), (e), (g) to (n), and
(q) to (u) shall not apply in respect of bills of costs filed in the Court
prior to 1 February 1993.
1992—No. 549
6. The Supreme Court Rules 1970 are further amended as follows:
(a) Part 71 rule 1 19X (2),”.
(b) Part 71
After rule 1 insert:Commencement of proceedings
1A. (1) Proceedings in the Court under section 19, section 19C, section 19X (2) or section 21 of the Commonwealth Act shall be commenced in the Common Law Division.
(2) Proceedings in the Court under section 19, section 19C, section 19X (2) or section 21 (3) of the Commonwealth Act shall be commenced by summons.
(3) Proceedings in the Court on an application under section 19M or section 19T of the Commonwealth Act shall be commenced by summons:
(a)
where the application is in or for the purposes of or in relation to proceedings in a Division-in that Division; or
(b) otherwise-in the Common Law Division.
(c) Part 71 rule 6
Omit the rule and insert instead:Title and parties
6. (1) A document in any proceedings in the Court under Part
IV of the Commonwealth Act shall be entitled between:
(a)
as plaintiff, the person in whose favour judgment was given or order made; and
(b) as defendant:
(i) the person against whom execution is issued or other proceedings taken upon the certificate registered under that Act; or
(ii) the applicant for a stay under section 25 of that Act.
(2) In proceedings under section 19M, section 19T or section19X (2) of the Commonwealth Act, no person shall be joined as a
defendant.
1992-No. 549
(d) Part 71
After rule 6 insert:
Where attendance not required7. Where, in proceedings for an order under section 19M of the Commonwealth Act, the plaintiff adds to the summons a request that the application be granted under the rule, the Court may hear the proceedings in the absence of the public and without any attendance by or on behalf of the plaintiff.
Interpretation
8. For the purposes of the application of the rules, unless the context or subject matter otherwise indicates or requires, “defendant” includes the respondent under section 19ZB or section 19ZD of the Commonwealth Act.
(e) SCHEDULE D Part 1
Under the matter relating to Act No. 8 of 1901 insert:
in Column 1 — in Column 2— in Column 3— “Act No. 11, 1901
(Commonwealth);
Service and Execution of Process Act 1901—
Section 19M ....... Leave to serve subpoena outside
the State etc.
Section 19T ........ Order to produce
prisoner
7. The Supreme Court Rules 1970 are further amended as follows:
(a) Part 77 rule 80
(i) After “section 54,” insert “section 55B or”.
(ii) Omit “or section 72”.
(b) Part 77 rule 81 (3) Law”.
8. The amendment contained in paragraph 7 (a) (ii) shall not apply to decisions of the Commissioner for Consumer Affairs made before 1 August 1992.
1992—No. 549
9. The amendment contained in paragraph 7 (b) shall not apply to
proceedings governed by the Companies (New South Wales) Code.
10. The Supreme Court Rules 1970 are further amended as follows:
SCHEDULE H Part 1 insert:
in the column in the column in column 2— “Act”— “Section (unless o therwise stated) —
“Freedom of 58A (1) Application
Information concerning (Amendment) restricted Act 1989 document”
The Supreme Court Rules 1970 are further amended as follows:
(a) Part 1 rule 3 (i) From the matter relating to Part 59 omit “ENFORCEMENT OF EXTERNAL JUDGMENTS” and insert instead “ADMINISTRATION OF JUSTICE ACT 1924 AND FOREIGN JUDGMENTS ACT 1973”.
(ii) Under the matter relating to Part 59 insert: COMMONWEALTH
(b)
Part 41 rule 15B (1) and (2). Omit the subrules and insert instead:
(1) This rule applies to an application under:
(a) section 6 (1) of the Administration of Justice Act 1924 (which subsection relates to the issue of a certified copy of a judgment of the Court); or (b) section 13 (1) of the Foreign Judgments Act 1973 or section 15 (1) of the Foreign Judgments Act 1991] of the Commonwealth (which subsections relate to the issue of a certificate and a certified copy of a judgment of the Court).
(2) The applicant may, on payment of the fees fixed under the Act, apply for the copy by filing an affidavit stating the facts on which he relies and, in respect of an application under:
1992—No. 549
(a) the Foreign Judgments Act 1973; or
(b) the Foreign Judgments Act 1991 of the Commonwealth,
facts sufficient to enable a certificate to be given in the prescribed
form.
(c) Part 59
(i) Omit the heading to the Part and insert instead: ADMINISTRATION OF JUSTICE ACT 1924 AND FOREIGN JUDGMENTS ACT 1973
(ii) Rule 2 (3) “judgment creditor”.
(d) Part 59 rule 3 (1) Omit paragraphs (c), (d), (e) and (f) and insert instead:
(c) evidence showing:
(i) the name and trade or business, and the usual or last known place of abode or of business, of the judgment creditor and of the judgment debtor so far as known to the deponent or witness giving the evidence;
(ii) where the application is made under the 1973 Act, which, if some only, provisions of the judgment are the subject of the application; and
(iii) the amount originally payable under the judgment;
(d) evidence, to the best of the information or belief of the deponent or witness giving the evidence, showing: (i) that the judgment creditor is entitled to enforce the judgment;
(ii) the extent to which the judgment is unsatisfied; and
(iii) where the application is made under the 1924 Act, that the judgment does not fall within section 5 (2) of that Act; and
(e) where the application is made under the 1973 Act, evidence, to the best of the information or belief of the deponent or witness giving the evidence, showing: (i) that, at the date of the application, the judgment can be enforced by execution in the country of the original court and that, if it were registered in the Court, the registration would not be, or be liable to be set aside under section 8 of that Act; and
1992—No. 549
(ii) where interest is payable by the law of the country of the original court on any money which is payable under the judgment:
(A) the rate of interest;
(B) the amount of interest which has become due
under the judgment up to the time of
application for registration; and
(C) the daily amount of interest which, subject to any future payment on account of the judgment, will accrue after the date of the application; and
(f)
where the application is made under the 1973 Act, such other evidence as may be required having regard to any order made under section 5 of that Act applying that Act to the country of the original court.
(e) Part 59 rule 3
After subrule (1) insert:(2) The evidence referred to in subrule (1) shall relate to those provisions of the judgment which are the subject of the application.
(3) All amounts of money referred to in this rule shall be expressed:
(a) in the currency in which the judgment is expressed; and
(b)
as an equivalent amount in Australian currency based on the rate of exchange prevailing on the date of the judgment.
(f) Part 59 rule 3A
Omit “defendant” and insert instead “judgment debtor ” .(g) Part 59 rule 4 (3) After “order” insert “under the 1924 Act”. (h) Part 59
After rule 4 (3) insert:(4) An order under the 1973 Act for registration of a judgment
shall specify the extent to which the judgment may be enforced.(i) Part 59 rule 5 (2) After “order” insert “under the 1924 Act”.
1992—No. 549
(j) Part 59 rule 5
After subrule (2) insert:(3) On entry of an order under the 1973 Act for registration of a judgment, entries shall be made in the appropriate register in accordance with the order.
(k) Part 59 rule 7 (2) Omit “ , on terms,”. (l) Part 59 rule 8 (1) Omit the rule and insert instead: (1) Subject to this rule, upon registration of a judgment, the judgment may, to the extent to which the judgment may be enforced as specified in the order for registration, be enforced as a judgment of the Court in the proceedings in which the judgment is registered.
(m) Part 59A
After Part 59 insert:
PART 59A
FOREIGN JUDGMENTS ACT 1991 OF THE
COMMONWEALTH
Foreign Judgments
1. In this Part, unless the context or subject matter otherwise indicates or requires each of the expressions:
“judgment”;
“judgment creditor”;
“judgment debtor”; and
“money judgment”,
has the meaning which it has in the Foreign Judgments Act 1991
of the Commonwealth (“the subject Act”).
Commencement of proceedings
2. (1) Proceedings for registration of a judgment under Part 2 of the subject Act shall be commenced in the Common Law Division by summons joining the judgment creditor as plaintiff and the judgment debtor as defendant.
(2) The judgment creditor may, unless the Court otherwise orders, proceed without service of the summons on the judgment debtor.
1992—No. 549
(3) Where the judgment creditor adds to the summons a request that the application be granted under this rule, the Court may make the order in the absence of the public and without any attendance by or on behalf of the judgment creditor.
Evidence
3. (1) The evidence in support of an application for registration of a judgment shall include:
(a)
the judgment or a verified or certified or otherwise duly authenticated copy of the judgment;
(b)
where the judgment is not in English, a translation of the judgment in English, certified by a notary public or authenticated by evidence;
(c) evidence showing:
(i) the name and trade or business, and the usual or last known place of abode or of business, of the judgment creditor and of the judgment debtor so far as known to the deponent or witness giving the evidence;
(ii) which, if some only, provisions of the judgment are the subject of the application;
(iii) where it is a money judgment, the amount originally payable under the judgment; and
(iv) that the Court is the appropriate court under section 6 (1) of the subject Act;
(d) evidence to the best of the information or belief of the deponent or witness giving the evidence showing: (i) that the judgment creditor is entitled to enforce the judgment;
(ii) that, at the date of the application, the judgment can be enforced by execution in the country of the original court and that, if it were registered in the Court, the registration would not be, or be liable to be, set aside under section 7 of the subject Act;
(iii) where interest is payable by the law of the country of the original court on any money which is payable under the judgment:
(A) the rate of interest;
(B) the amount of interest which has become due
under the judgment up to the time of
application for registration; and
1992—No. 549
(C) the daily amount of interest which, subject to any future payment on account of the judgment, will accrue after the date of the application; and
(iv) the extent to which the judgment is unsatisfied; and
(e) such other evidence as may be required having regard to any regulations made under the subject Act. (2) The evidence referred to in subrule (1) shall relate to those provisions of the judgment which are the subject of the application.
(3) All amounts of money referred to in this rule shall be expressed:
(a) in the currency in which the judgment is expressed; and
(b) where the judgment creditor has not made a statement under section 6 (11) (a) of the subject Act, as an equivalent
amount in Australian currency based on the rate of exchange prevailing on the day of the application for registration.
Security for costs
4. For the purposes of proceedings under the subject Act, the
Court may make an order under Part 53 rule 2 (1) (which relates
to orders to give security for costs) otherwise than on the
application of the judgment debtor.
Order for registration
5. (1) The time fixed under section 6 (4) of the subject Act shall not, save in exceptional circumstances, be less than 14 days after service on the judgment debtor of notice of the registration.
(2) An order for registration of a judgment shall specify the extent to which the judgment may be enforced.
Registration
6. (1) A register of judgments under the subject Act shall be kept in the registry of the Common Law Division.
(2) On entry of an order for registration of a judgment, entries shall be made in the register in accordance with the order.
Notice of Registration
7. (1) Notice of registration of a judgment shall be served on the judgment debtor.
1992—No. 549
(2) Service of the notice must be personal except where:
(a)
the judgment debtor has entered an appearance or is in default of appearance; or
(b) the Court otherwise orders.
(3) The notice of registration shall state:
(a)
particulars of the judgment and of the order for registration;
(b) the right of the judgment debtor to apply for an order:
(i) setting aside the registration; and
(ii) staying enforcement of the judgment; and
(c) the time within which the judgment debtor may file notice of a motion for an order setting aside the registration.
(4) Where the summons has not been served on the judgment debtor, the notice of registration shall also state the address for service of the judgment creditor.
Setting aside registration
8. (1) The Court may, before the expiry of time fixed by an order for registration or by an order under this subrule as the time within which the judgment debtor may file the notice of a motion for an order setting aside the registration, extend the time so fixed.
(2) Subject to subrule (3), the Court may, on motion by the
judgment debtor, make an order setting aside the registration.
(3) Notice of motion for the order must be filed within the time
fixed under section 6 (4) of the subject Act or under subrule (1).
Enforcement
9. (1) Subject to this rule, upon registration of a judgment, the judgment may, to the extent to which the judgment may be enforced as specified in the order for registration, be enforced as a judgment of the Court in the proceedings in which the judgment is registered.
(2) The judgment creditor shall not take any step for enforcement of the judgment until an affidavit of service of the notice of registration is filed or the Court is otherwise satisfied that the requirements of these rules as to service of the notice of registration have been fulfilled.(3) During the period before the expiry of the time fixed under section 6 (4) of the subject Act or under rule 8 (1) within which the judgment debtor may file notice of a motion for an order setting aside the registration:
(a) the judgment creditor shall not apply for the issue of a writ for levy of property or for a writ of sequestration; (b) the judgment creditor shall not move for payment pursuant to a garnishment notice under Part 46; (c) the judgment creditor shall not take any proceedings to have the benefit of a charge arisng under an order made under section 27 (1) of the Judgment Creditors’ Remedies Act, 1901; and (d) the judgment creditor shall not, except by leave of the Court, take any other step for enforcement of the judgment. (4) Where the judgment debtor files, within the time fixed under section 6 (4) of the subject Act or under rule 8 (1), notice of a motion for an order setting aside the registration, the judgment creditor shall not apply for the issue of a writ for levy of property or for a writ of sequestration nor, except by leave of the Court, take any other step for enforcement of the judgment until after the disposal of the motion.
(5) Neither of subrules (3) and (4) limits the operation of the other subrule.
(n) SCHEDULE E Part 2 paragraph 5 After “1973,” insert “or section 65 (1) of the Foreign Judgments
Act 1991 of the Commonwealth”.
(o) SCHEDULE F Omit Form 51A and insert instead:
FORM 51A
Certificate under section I3 of the Foreign Judgments Act
1973 or section 15 of the Foreign Judgments Act 1991 of
the Commonwealth P. 41, r. 15B (2).
CERTIFICATE
I certify that:
(a) a statement of claim (or summons), a copy of which is annexed hereto marked “A”, was filed in the registry of the Division of this Court on (date) by (name), the abovenamed plaintiff, claiming against (name), the abovenamed defendant payment of the sum of (amount) (or state shortly the nature of the relief claimed) in respect
of (state shortly the causes of action);
(b)
the said statement of claim (or summons) was on (date) served on the said defendant (state the mode of service) (or the said defendant entered an appearance on
(date) ); (c)
the said plaintiff obtained judgment against the said defendant in this Court for payment of the sum of (amount) (or state shortly the terms of the judgment) in respect of (state shortly the causes of action) together with
$ for costs; (d)
the said judgment was obtained (state the grounds on which the judgment was based);
(e)
the following (or no) objections have been made to the jurisdiction of this Court (state objections, if any);
(f)
(state the position relating to the time for appealing or discharging or setting aside the judgment or for apply for a new trial or for a stay of execution);
(g)
(where the judgment was entered by default), the defendant may apply, but has not applied, to set aside the judgment;
(h) notice of appeal has (or has not) been filed;
( I f interest is payable on the judgment
(i) (where the rate of interest is specified in the judgment interest is payable from (date of judgment) at the rate of (rate) % yearly on so much of the sum of (amount) as is from time to time unpaid;)
(otherwise
interest is payable:
(i) date hereof at the following rate (or rates):
from the (date of judgment) up to and including the than one rate applies, the prescribed rates and the period during which each rate applies); and
(ii) from the date hereof at the rate of (prescribed rate applicable at the date of the certificate), or at such other rate or rates as may be prescribed from time to time,
on so much of the sum of (amount) as is from time to time
unpaid;))
(j)
(give information, similar to that contained in (j), in respect of costs of the proceedings.)
(k) (any other necessary particulars);
(1) the costs of obtaining this certificate and copy of a minute of the judgment are $ (see Part 52 rule 70).
Dated
(signature)
(title of person certifying)
(p) SCHEDULE F
Omit Forms 68 and 69 and insert instead:FORM 68
P. 59, r. 4.
ORDER
THE COURT ORDERS THAT:
(where the 1924 Act applies1. the judgment dated (date) of the (court) by which it was adjudged that (name) pay money to (name) be registered under Part 2 of the Administration of Justice Act 1924;
2. (name) may within . . . days after service upon him of notice of registration apply to set aside the registration;
3. the amount for which judgment may be enforced is $ ;
4. the costs of and incidental to the application for this order and of registration of the judgment be added to the amount specified in paragraph 3 of this order.)
(where the 1973 Act applies
1. The judgment dated (date) of the (court) by which it was adjudged that (name) pay money to (name) (or state shortly the terms of and identify the judgment) be registered under Part 2 of the Foreign Judgments Act 1973 for:
(a) the sum of $ ; (b)
(where, by the law of the country of the original court, interest becomes due under the judgment, specify amount of interest that will become due up to time of registration or how interest is to be calculated);
(c) the costs of and incidental to the application for this order and of registration of the judgment.
2. (name) may, within . . . days after service upon him of notice of registration, apply to set aside the registration;
(if the judgment may be enforced for the amount for which it is to
be registered,
3. the judgment may be enforced for the amount for which it is registered.)
(otherwise
3. the amount for which judgment may be enforced is $ ;
4. the judgment may also be enforced for the interest and costs for which judgment is registered.) )
(Complete as in general form of minute of order under Part
41 rule 11.)
FORM 69
P. 59, r. 6.
NOTICE OF REGISTRATION OF JUDGMENT
To: (name)
(where the 1924 Act applies1. The judgment of (here follow the terms of the order) has
been registered in this Court under Part 2 of the
Administration of Justice Act 1924;
2. the amount including costs, for which judgment may be enforced against you is $ )
(where the 1973 Act applies
1. The judgment of (here follow the terms of the order) has been registered in this Court under Part 2 of the Foreign Judgments Act 1973 for:
(a) the sum of $ ; (b) (where applicable interest of $ ;)
(c) costs of $ .
1992—No. 549
2. The judgment may be enforced for the amount for which it is registered (or specify total amount for which judgment may be enforced). )
(where either Act applies
3. You may, within . . . days after the service of this notice upon you, file notice of motion to set aside the registration;
(If applicable and see Part 59 rule 6 (4),
4. The address for service of the above plaintiff, the judgment creditor, is (address).) )
Dated:
............................. Solicitor for plaintiff
FORM 69A
P. 59A, r. 5.
ORDER
THE COURT ORDERS THAT:
1. The judgment dated (date) of the (court) by which it was adjudged that (name) pay money to (name) (or state shortly the terms of and identify the judgment) be registered under Part 2 of the Foreign Judgments Act 1991 of the Commonwealth for:
(a) (specify the terms of the judgment that are to be registered and, where a sum of money is payable under a term, include the sum of (amount)); (b) (where, by the law of the country of the original court, interest becomes due under the judgment, specify amount of interest that will become due up to time of registration or how interest is to be calculated); (c) the costs of and incidental to the application for this order and of registration of the judgment.
2. (name) may, within ..... days after service upon him of notice registration, apply to set aside the registration;
( i f the terms of the judgment to be registered are enforceable in
full
3. the judgment may be enforced to the full extent of the terms that are to be registered.)
(otherwise
3. (specify extent to which judgment may be enforced);
(if applicable
4. the judgment may also be enforced for the interest and costs for which judgment is registered.))
(Complete as in general form of minute of order under Part
41 rule 11.)
FORM 69B
P. 59A, r. 7.
NOTICE OF REGISTRATION OF JUDGMENT
To: (name)
1. The judgment of (here follow the terms of the order) has been registered in this Court under Part 2 of the Foreign Judgments Act 1991 of the Commonwealth for:
(a)
(specify the terms of the judgment that have been registered and, where a sum of money is payable under a term, include the sum of (amount));
(b) (where applicable interest of (amount);
(c) costs of (amount).
2. the judgment may be enforced to the full extent of the terms that are registered (or specify extent to which judgment may be enforced).
3. You may, within ..... days after the service of this notice
upon you, file notice of motion to set aside the registration.
(If applicable and see part 59A rule 7 (4),
4. The address for service of the above plaintiff, the judgment creditor, is (address).)
Dated:
.................................................
Solicitor for plaintiff
12. SCHEDULE E Part 1
The Supreme Court Rules 1970 are amended as follows: Reports” insert:
in column 1— in column 2— in column 3—
“Rule 12 Attendance and In relation to an
production examination
under section 54 1
of the Companies
Code or section
597 of the
CorporationsLaw.”
EXPLANATORY NOTE
(This note does not form part of the rules)
1. The object of the amendment contained in paragraph 2 is to allow a party at whose request a subpoena has issued to extend the time for compliance with the subpoena and to excuse a witness, at any time before calling the witness, from compliance with it.
2. The object of paragraph 3 is to restrict the new forms of subpoena prescribed to subpoenas filed on or after 1 February 1993.
3. The object of the amendment contained in paragraph 4 (a) is to extend the definition of “taxed costs” to include in its meaning costs certified pursuant to Part 52 rule 50A (7) (which certification does not include taxation).
4. The object of the amendments contained in paragraphs 4 (b) and (c) is to
enable a respondent to an appeal, who has filed a submitting appearance and is entitled to his costs, to tax the costs at the conclusion of the appeal without any order being necessary and to enter judgment if costs are not paid promptly.
5. The object of the amendments contained in paragraphs 4 (d) and (e) is to exclude the taxation fee from the costs to be allowed on taxation under Part 52 rule 50A (which relates to taxation between parties) where the amount of items disallowed on the taxation exceeds 25% of the amount of the items taxed.
6. The object of the amendment contained in paragraph 4 (f) is to consolidate two subrules into one and to restrict, to the party to whom the costs are payable, the right to apply to proceed with a taxation where, by the rules or an order of the Court, costs are to be taxed and paid either by another party or out of a fund.
7. The object of the amendments contained in paragraphs 4 (g), (i), (k), (1) (i),
| (m) | , (q), (r), (s), (t), and (u) (ii) is to: | |||||||
|
8. The object of the amendment contained in paragraph 4 (h) is to require a party
moving to proceed with taxation of a bill to lodge such documents in his custody as will be required for purpose of evidence of a taxation at the same time as so moving.
9. The object of the amendments contained in paragraphs 4 (i), (s) and (u) (i) is
to:
(i) prescribe a procedure, to apply to most bills of costs payable by one party to proceedings to another, which will eliminate or reduce the amount in dispute by requiring all objections to be made in writing at an early stage and by encouraging the party entitled to the costs to make any concessions at an early stage; and
(ii) provide for a certificate of taxation to issue automatically where there are no objections.
10. The object of amendment contained in paragraph 4 (1) (ii) is to alter a
reference to a subrule, the number of which is charged by amendment (i).
11. The object of the amendment contained in paragraph 4 (1) (iii) is to allow a taxing officer to postpone making a certificate of taxation until all documents lodged for the taxation have been uplifted.
12. The object of the amendments contained in paragraphs (4) (o) and (p) is to
ensure consistent usage of a term in the rules.
13. The object of paragraph 5 is to restrict the application of the amendments
referred to in it the bills of costs filed in the Court on or after 1 February 1993.
14. The object of the amendment contained in paragraph 6 (a) is to dispense with
the need to serve applications under section 19M of the Service and Execution of Process Act 1901 of the Commonwealth (which relates to giving leave to serve a subpoena outside of the State where the subpoena requires attendance or production before an investigative tribunal), or section 19T of that Act (which relates to ordering a prisoner to be produced pursuant to a subpoena where the reference requires attendance or production before an investigative tribunal) or section 19X (2) of that Act, (which empowers the Court to make an order authorising the apprehension of a person named in certain warrants issued because of non compliance with a subpoena which requires attendance or production before an investigative tribunal.
1992-No. 549
15. The objects of the amendments contained in paragraph 6 (b) are to require
proceedings:
(a) under sections 19, 19C, 19X (2) and 21 of the Service and Execution of Process Act 1901 of the Commonwealth to be commenced in the Common Law Division; (b) under sections 19, 19C, 19X (2) and 21 (3) of that Act to be commenced by summons; and
(c) on an application under section 19M or section 19T of that Act to be commenced by summons:
(i) where the application is in or for the purposes of or in relation to
proceedings in a Division-in that Division; or
(ii) otherwise-in the Common Law Division.
16. The objects of the amendments contained in paragraph 6 (c) are to provide:
(a) how an application for a stay of proceedings under section 25 of the Service and Execution of Process Act 1901 of the Commonwealth are to be
entitled; and
(b) that no person is to be joined as a defendant to proceedings under section 19M, section 19T or section 19X (2) of that Act.
17. The objects of the amendment contained in paragraph 6 (d) are to:
(a) enable the Court, if so requested by the plaintiff, to hear proceedings under section 19M of the Service and Execution of Process Act 1901 of the Commonwealth in the absence of the public and without the attendance of
the plaintiff; and
(b) apply the rules to proceedings under section 19ZB or section 19ZD of that Act as if the respondent under those sections were the defendant under the rules, and thus avoid problems that might arise out of the difference in terminology between the rules and those sections when referring to the party against whom the proceedings are taken.
18. The object of the amendment contained in paragraph 6 (e) is to allow masters
to exercise the powers of the Court in respect of proceedings under section 19M or
section 19T of the Service and Execution of Process Act 1901 of the
Commonwealth.
19. The object of the amendment contained in paragraph 7 (a) (i) is to assign to the Equity Division proceedings commenced under section 55B of the Associations Incorporation Act 1984.
20. The object of the amendment contained in paragraph 7 (a) (ii) is to omit from the rules an assignment of proceedings under section 72 of the Associations Incorporation Act 1984 (which relates to appeals to the Court from decisions of the Commissioner) following the abolition of those appeals.
21. The object of the amendment contained in paragraph 7 (b) is to replace a
reference to the Companies Code with a reference to the Corporations Law in the
heading on certain documents filed in the Court relating to the Associations
Incorporation Act 1984.
22. The object of the amendments contained in paragraphs 8 and 9 is to apply
the amendments above to appropriate proceedings only.
23. The object of the amendment contained in paragraph 10 is to assign to the
Administrative Law Division applications to the Court to consider the grounds on which it is claimed that a document the subject of a ministerial certificate is a restricted document under the Freedom of Information Act 1989.
24. The object of the amendment contained in paragraph 11 (a) is to amend the
contents table to the rules to take account of the new Part 59A, which relates to the
Foreign Judgments Act 1991 of the Commonwealth (“the 1991 Act”).
25. The object of the amendment contained in paragraph 11 (b) is to provide for
the supply of a certificate and certified copy of a judgment of the Court for the
purposes of the 1991 Act.
26. The object of the amendment contained in paragraph 11 (c) (i) is to amend
the heading of Part 59 of the rules, which relates to the Administration of Justice
Act 1924 (“the 1924 Act”) and to the Foreign Judgments Act 1973 (“the 1973
Act”), so that the heading is restricted to those two Acts.
27. The object of the amendment contained in paragraph 11 (c) (ii) is to substitute “judgment creditor” for “plaintiff” for consistency with other rules in
Part 59.
28. The object of the amendment contained in paragraph 11 (d) is to set out the
subrule in a manner more consistent with the new corresponding subrule 3 (1) in
the new Part 59A.
29. The objects of the amendment contained in paragraph 11 (e) is to:
(a) restrict evidence required in order to register a foreign judgment under Part 59 to that which relates to the provisions of the judgment which are the
subject of the application; and
(b) require all amounts of money, referred to in the evidence in support of an application for registration, to be expressed both in the currency in which the judgment is expressed and as an equivalent amount in Australian currency.
30. The object of the amendment contained in paragraph 11 (f) is to substitute
“judgment debtor” for “defendant” for consistency with other rules in Part 59.
31. The object of the amendment contained in paragraph 11 (g) is to restrict the
operation of Part 59 rule 4 (3) to the 1924 Act, as the 1973 Act is now dealt with by
amendment (h).
32. The object of the amendment contained in paragraph 11 (h) is to require an
order under the 1973 Act for registration of a judgment specified to the extent to
which the judgment may be enforced.
33. The object of the amendment contained in paragraphs 11 (i) and (j) is to
provide that on entry of an order under the 1973 Act for registration or judgment, entries shall be made in the appropriate register in accordance with the order.
1992—No. 549
34. The object of the amendment contained in paragraph 11 (k) is to omit a
reference to an order being made “on terms”, as an amendment made since the rules in question provide that all rules may be made on terms and it is accordingly unnecessary to refer to terms in the rules.
35. The object of the amendment contained in paragraph 11 (l) is to make rule 8 (1) more consistent with the new corresponding rule in Part 59A and to omit some
superfluous words.
36. The object of the amendment contained in paragraph 11 (m) is to provide for
the registration and enforcement of foreign judgments under the 1991 Act in a
manner similar to the existing Part 59 in so far as it relates to the 1973 Act.
37. The object of the amendment contained in paragraph 11 (n) is to empower aregistrar to issue a certificate under section 15 (1) of the 1991 Act in respect of a
judgment or an order of the court for the purposes of enforcement under the 1991
Act.
38. The object of the amendment contained in paragraph 11 (n) is to amend the
form of certificate in respect of judgment of the Court so as to enable it to be used
in respect of the 1991 Act as well as the 1973 Act.
39. The object of the amendment contained in paragraph 11 (p) is to amend and
add to the forms of certificate of judgment, order for registration and notice of
registration so as to amend or add to these forms in so far as is necessary to extend
them to the 1991 Act and to make amendments in so far as the forms apply to the
1924 and 1973 Acts in conformity with the changes in relation to the 1991 Act. 40. The objects of certain of the amendments contained in paragraph 11 include
matters which are ancillary or incidental to the other objects of that paragraph.
41. The object of the amendment contained in paragraph 12 is to allow registrars to exercise the powers of the Court in requiring the attendance of any person or production of any document in relation to examination under section 541 of the
Companies (New South Wales) Code or section 597 of the Corporations Law.
42. Words and figures underlined in the above rules are intended to be represented in italics when printed.
M. A. Blay, Secretary of the Rule Committee
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