Supreme Court Act 1970 Supreme Court Rules (Amendment No 271) 1993 (1993-132) [GG No 32 of 2.4.1993] (NSW)

1993—No. 132

SUPREME COURT RULES (AMENDMENT No. 271) 1993

NEW SOUTH WALES

[Published in Gazette No. 32 of 2 April 1993]

1. These rules were made by the Rule Committee on 22 March 1993.

2. The Supreme Court Rules 1970 are amended as follows:

(a) Part 21 rule 5
After subrule (2) insert:

(3) The notice under subrule (1) may contain a statement that there shall be no order as to the costs of the proceedings.

(b) Part 52 rule 16 (1) Omit the subrule and insert instead:

16. (1) Where, pursuant to Part 21 rule 2, a party to any proceedings discontinues the proceedings without leave as to the whole or any part of the relief claimed by him against any other party, the discontinuing party shall, unless:

(a) the Court otherwise orders; or

(b) the notice of discontinuance contains a statement under Part 21 rule 5 (3).

pay the costs of the party against whom the discontinued claim is made, occasioned by the discontinued claim and incurred before service of notice of the discontinuance.

cf. R.S.C. (Rev.) 1965, o. 62. rr. 3 (7). 10 (1).

3. The Supreme Court Rules 1970 are further amended as follows:

SCHEDULE D Part 3
Omit paragraphs 4 and 5 and insert instead:

4. Any:

(a) trial or hearing of proceedings (except with a jury); or

(b) matter (other than a matter in proceedings tried or to be tried with a jury),

where referred to a master by an order of a Judge or of the Court
of Appeal:

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(c) otherwise than under Part 72 rule 2; or

(d) with the consent of all the parties to the proceedings who have an address for service in the proceedings.

4. The Supreme Court Rules 1970 are further amended as follows:

(a) Part 1 rule 3

(i)  In the matter relating to Part 71, after “ACT” insert “1901”.

(ii)

Under the matter relating to Part 71 insert: ACT 1992 (COMMONWEALTH).

(b) Part 1 rule 8 (1) In alphabetical order insert:

“the Service and Execution of Process Act” means the

Service and Execution of Process Act 1992 of the

Commonwealth.

(c)	Part 7 rule 5 (2) Omit “1901”.
(d)	Part 9 After rule 1 insert: Operation of Service and Execution of Process Act

1A. Nothing in this Part affects the operation of the Service and Execution of Process Act.

(e)	Part 9 After rule 6 insert: Address for service: Service and Execution of Process Act
6A. Notwithstanding rule 6, an address for service stated in an appearance entered under the Service and Execution of Process Act shall be an address for service for the purpose of the rules.
(f)	Part 10 rule 1 Renumber rule 1 as rule 1A.
(g)	part 10 Before rule 1A insert: Interpretation

1. In this Part, unless the context or subject matter otherwise indicates or requires, “Australia” has the meaning which it has in the Service and Execution of Process Act.

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(h)

Part 10 rule 6 Act”.

(i) Part 37 rule 4 (1)

(i) Omit “two days” and insert instead “48 hours”.

(ii) Omit “first”.

(j) Part 42 rule 4 (5) Omit the subrule and insert instead:

(5) A writ of possession may include provision for enforcing

the payment of:

(a)	money required to be paid by the judgment to be enforced by the writ; and
(b)	money recoverable under section 107 (1) of the Service and Execution of Process Act.

(k) Part 42 rule 5 (4) Omit the subrule and insert instead:

(4) A writ of specific delivery, and a writ of delivery to recover goods or their assessed value, may include provision for enforcing the payment of:

(a)	money required to be paid by the judgment to be enforced by the writ; and
(b)	money recoverable under section 107 (1) of the Service and Execution of Process Act.

(l)

Part 44 rule 7 (1) (c) (iiiA) the date and amount of each payment made on account of

costs or expenses recoverable under section 107 (1) of the

Service and Execution of Process Act;

(m)

Part 44 rule 7 (3) affidavit filed under Part 71A rule 6”.

(n)

Part 44 rules 10 and 11 Costs of prior execution etc.

10. The amount for which a writ of execution may be issued

shall, unless the Court otherwise orders, include:

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(a)	the costs of any prior writ of execution on the same judgment, whether the prior writ was or was not productive; and
(b)	any money recoverable under section 107 (1) of the Service and Execution of Process Act.

Provision for enforcing payment of money
11. Part 45 rules 4–24, as they apply to a writ for levy of property, also apply to a writ of execution which includes a provision for enforcing the payment of

(a)	money required to be paid by the judgment which is to be enforced by the writ; and
(b)	money recoverable under section 107 (1) of the Service and Execution of Process Act.

(o) Part 45 rule 16 (2) (a) After subparagraph (i) insert:

(iA) any money recoverable in the proceedings under section 107 (1) of the Service and Execution of Process Act;

(p) Part 45 rule 19
After paragraph (a) insert:

(a1) any money recoverable under section 107 (1) of the Service and Execution of Process Act;

(q)

Part 45 rule 24 (3) (1) of the Service and Execution of Process Act”.

(r) Part 46 rule 3 (5)

(i) From paragraph (b) omit “.” and insert instead “; and”.

(ii) After paragraph (b) insert:

(c) any money recoverable under section 107 (1) of the Service and Execution of Process Act.

(s)

Part 46 rules 7 and 8 107 (1) of the Service and Execution of Process Act”.

(t) Part 46 rule 12 (1) Omit the subrule and insert instead:

(1) The costs of the judgment creditor of garnishment proceedings shall, unless the Court otherwise directs, be retained by the judgment creditor out of the money recovered by him in the garnishment proceedings and in priority to:

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(a)	the debt under the judgment or order from which the garnishment proceedings arise; and
(b)	any money recoverable under section 107 (1) of the Service and Execution of Process Act.

(u)	Part 71 In the heading to the Part, after “ACT” insert “1901”.
(v)

Part 71 rule 2 Commonwealth Act”.

(w)

Part 71 rule 3 (2) Commonwealth” and insert instead “Commonwealth Act”.

(x)	Part 71 rule 7 Omit “the rule” and insert instead “this rule”.
(y)	Part 71A After Part 71 insert:

PART 71A

SERVICE AND EXECUTION OF PROCESS ACT 1992

(COMMONWEALTH)

Interpretation
1. (1) In this Part, unless the context or subject matter otherwise indicates or requires, each of the expressions:

“court of rendition”;
“enforcement”;
“judgment”; and

“place of rendition”,

has the meaning which it has in the Service and Execution of
Process Act.

(2) 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 86 or section 90 of the Service and Execution of Process Act.

Commencement of proceedings

2. (1) Proceedings in the Court:

(a) under section 93 (1) or section 105 of the Service and Execution of Process Act; or

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(b) on an appeal under section 101 of the Service and Execution of Process Act against a decision of a magistrate,

shall be commenced in the Common Law Division.
(2) Proceedings in the Court under section 93 (1) or section 105 (4) of the Service and Execution of Process Act shall be commenced by summons.
(3) Proceedings in the Court on an application under section 57 (1), section 67 (1), section 72 (1), section 76 (1), section 79 (1) or section 86 of the Service and Execution of Process 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.

Title and parties

3. (1) A document in any proceedings in the Court under Part 6 of the Service and Execution of Process 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 judgment registered under that Act; or

(ii)  the applicant for a stay under section 106 of that Act.

(2) In proceedings under section 57 (1), section 67 (1), section 76 (1), section 79 (1) or section 93 (1) of the Service and Execution of Process Act, no person shall be joined as a defendant.

Where service not required

4. Process by which application is made under section 57 (1), section 67 (1), section 76 (1), section 79 (1), section 93 (1) or section 105 (4) of the Service and Execution of Process Act need not, unless the Court otherwise orders, be served on any person. Where attendance not required
5. Where, in proceedings for an order under section 57 (1),
section 76 (1) or section 79 (1) of the Service and Execution of
Process Act, the plaintiff adds to the summons a request that the

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application be granted under this rule, the Court may hear the proceedings in the absence of the public and without any attendance by or on behalf of the plaintiff.

Enforcement proceedings

6. (1) A person proceeding for enforcement of a judgment registered under the Service and Execution of Process Act shall file an affidavit, sworn not more than 14 days before proceedings are taken, stating:

(a) that the judgment is capable of being enforced; and

(b) the extent to which the judgment is capable of being enforced,

in or by:

(c) the court of rendition; or
(d) a court in the place of rendition.

(2) The Court may notify the Sheriff of any change in the rate

of interest payable on the judgment in the court of rendition.
Costs and expenses of registration etc.
7. (1) The costs and expenses referred to in section 107 (1) of the Service and Execution of Process Act shall be assessed by the court.
(2) An application for assessment of costs and expenses under subrule (1) shall be made by filing an affidavit:

(a)	which contains particulars of the costs and expenses claimed; and
(b)	states the basis upon which the costs and expenses are claimed.

(3) The plaintiff may proceed without service of the affidavit on any party.

(4) The Court may make an assessment in the absence of the

public and without any attendance by or on behalf of the plaintiff.

Facsimile number

8. An application made to the Court by facsimile transmission under a provision of the Service and Execution of Process Act shall be transmitted to transmission number [phone].

1993—No. 132

(z)	SCHEDULE D Part 1 After the matter relating to Act No. 55 of 1992, insert:
in Column 1 in Column 2 in Column 3

“Act No. 172, 1992

(Commonwealth);
Service and
Execution of

Process Act 1992:

Section 17 (1) Shortening of time for ...

appearance

Section 57 (1) Leave to serve a

subpoena outside the

State etc.

Section 67 (1) Order to produce ...”

(aa) SCHEDULE E Part 1

After the matter relating to Part 68 insert:

in Column 1	in Column 2	in Column 3
“Part 71A:
Rule 6 (2)	Notifying the Sheriff of	...
change in interest rate
Rule 7	Assessment of costs	...

and expenses

(ab) SCHEDULE E Part 2

After paragraph 6 insert:
7. Orders under the following provisions of the Service and Execution of Process Act 1992:

(a)	section 35 (3) (which relates to receipt of expenses of complying with a subpoena);
(b)	section 45 (3) (which relates to receipt of expenses of complying with an order to produce a prisoner); and
(c)	section 87 (4) (which relates to receipt of expenses of complying with a warrant).

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(ac) SCHEDULE F Form 46

Omit subparagraph (c) (ii) and insert instead:

(ii)  instead of so 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:

(A) where this subpoena is served within New South

Wales—not later than 48 hours; and

(B) where this subpoena is served out of New South

Wales—not later than 24 hours,

before the date on which you are required so to attend;

(ad) SCHEDULE F Form 46A

Omit subparagraph (c) (ii) and insert instead:

(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:

(A) where this subpoena is served within New South

Wales—not later than 48 hours; and

(B) where this subpoena is served out of New South

Wales—not later than 24 hours,

before the date on which the officer is required so to

attend;

(ae) SCHEDULE F Form 46B

Omit subparagraph (c) (ii) and insert instead:

(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:

(A) where this subpoena is served within New South

Wales—not later than 48 hours; and

(B) where this subpoena is served out of New South

Wales—not later than 24 hours,

before the date on which you are required so to attend;

(af) SCHEDULE F Forms 46, 46A and 46B

(i) From paragraph (c) omit “(3)” and insert instead “(7)”.

(ii)  After “Issued at the request of (11)’’ insert “whose address for service is (12)”.

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(iii) Omit Note (3) and insert instead:

(3) in subparagraph (c) (ii) Saturdays, Sundays and other holidays are not counted in calculating time;

(iv)  In Direction (8) after “the Court” insert “or as required by section 30 of the Service and Execution of Process Act I992 (Commonwealth)”.

(v) Omit Direction (11) and insert instead:

(11) state person at whose request the subpoena was

issued.

(12) address for service.

(ag) SCHEDULE F Form 47

(i) From paragraph (c) omit “(3)” and insert instead “(7)”.

(ii)  From paragraph (c) (i) (B) omit and insert instead “(9)”.

(iii)  After ‘‘Issued at the request of (11)” insert “whose address for service is (11A)”.

(iv) Omit Direction (11) and insert instead:

(11) state person at whose request the subpoena was

issued.

(11A) address for service.

(ah) SCHEDULE F Form 48

(i) From paragaph (c) omit “(3)” and insert instead “(7)”.

(ii)  From paragraph (c) (i) (B) omit “(8)” and insert instead “(9)”.

(iii)  After “Issued at the request of (12)” insert “whose address for service is (12A)’’,

(iv) Omit subparagraph (c) (iii) and insert instead:

(iii)  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:

(A) where this subpoena is served within New
South Wales—not later than 48 hours; and

(B) where this subpoena is served out of New

South Wales—not later than 24 hours,

before the date on which you are required so to
attend;

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(v) Omit Note (4) and insert instead:

(4) in subparagraph (c) (iii) Saturdays, Sundays and other holidays are not counted in calculating time;

(vi)  In Direction (8) after “the Court” insert “or as required by section 30 of the Service and Execution of Process Act 1992 (Commonwealth)”.

(vii) Omit Direction (12) and insert instead:

(12) state person at whose request the subpoena was

issued.

(12A) address for service.

(ai) SCHEDULE F Form 54

(i) From paragraph (c) omit “and”.

(ii) Omit paragraph (d) and insert instead:

(d) for your fees; and

(where applicable)

(e) for $ , being amount recoverable

under section 107 (1) of the Service and Execution

of Process Act 1992.

(aj) SCHEDULE F Form 57

(i)  After “%” insert “or, if the judgment (order) is registered in the Court under the Service and Execution of Process Act 1992 (Commonwealth), the yearly rate of ..... % or such rates as may be notified to you by the Court”.

(ii) From paragraph (b) omit “and”.

(iii) Omit paragraph (c) and insert instead:

(c) for your fees; and

(where applicable)

(d) for $ , being the amount

recoverable under section 107 (1) of the Service and

Execution of Process Act 1992.

(ak) SCHEDULE F Form 58

under:

provision for subsequent interest and for costs ........ $

insert:

(where applicable amount recoverable under section 107 (1) of the Service and Execution of Process Act 1992

(Commonwealth)	...........$	)
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(a1) SCHEDULE F Forms 74AA, 74AB and 74AD

(i) From paragraph (c) omit “(³)” and insert instead “(7)”.

(ii)  Omit “Issued at the request of (10) (9)” and insert instead:

(9)

Issued at the request of (¹º) whose address for service is

(10A) .”

(iii) Omit Direction (¹º) and insert instead:

(¹º) state person at whose request the subpoena was

issued.

(10A) address for service.

(am) SCHEDULE F Form 74AC

(i) From paragraph (c) omit “(³)” and insert instead “(7)”.

(ii)  After “Issued at the request of (9)” insert “whose address for service is (9A)”.

(iii) Omit Direction ( 9 ) and insert instead:

(9) state person at whose request the subpoena was

issued.

(9A) address for service.

5. The amendments contained in paragraphs 4 (i), (ac) to (ah) and (a1)

to (am) shall not apply to subpoenas issued before 24 May 1993.

6. The Supreme Court Rules 1970 are further amended as follows:

(a)	SCHEDULE D Part 1 At the end of the Part insert:
in Column 1— in Column 2— in Column 3—

“Act No. 112 1991 (Commonwealth): Foreign Judgments

Act 1991:

Section 6, 7, 8, 9 Enforcement of ...”

judgment of a country

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(b)	SCHEDULE E Part 1 After the matter relating to Part 59, insert:
in Column 1— in Column 2— in Column 3—
“Part 59A Enforcement of external ...

judgments.

(c) SCHEDULE E Part 2

(i) After paragraph 5 insert:

5A. Order under section 6 of the Foreign Judgments Act 1973 (which relates to ordering that a foreign judgment be registered) where a request has been added under Part 59 rule 2 (3).

(ii) At the end of the Part insert:

33. Order under section 6 of the Foreign Judgments Act 1991 (Commonwealth) (which relates to ordering that a foreign judgment be registered) where a request has been added under Part 59A rule 2 (3).

EXPLANATORY NOTE

(This note does not form part of the rules)

1. The object of the amendments contained in paragraph 2 is to enable parties to

discontinue by consent with no order as to costs.

2. The object of the amendment contained in paragraph 3 is to enable masters to exercise the powers of the Court on any trial or hearing of proceedings (except with a jury) or any matter (other than a matter in proceedings tried or to be tried with a jury) where referred to a master by an order of a Judge or of the Court of Appeal:

(a) otherwise than an order for reference to a referee; or
(b) with the consent of all parties

3. The objects of the amendments contained in paragraph 4 are to amend the rules to take account of the Service and Execution of Process Act 1992 of the Commonwealth and cover incidental and consequential matters and to replace incorrect notation references in some forms of subpoenas.

4. The objects of the amendments contained in paragraph 6 are to allow the

powers of the Court to be exercised by:

(a) masters in ordering the registration of, setting aside and staying judgments under the Foreign Judgments Act 1991 of the Commonwealth; and

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(b) registrars in ordering registration of judgments under the lastmentioned Act and under the Foreign Judgments Act 1973, where the applicant requests that the application be dealt with in the absence of the public and without any attendance by or on behalf of the applicant.

5. Words or figures underlined in the above rules are intended to be represented

in italics if printed.

M. A. Blay. Secretary of the Rule Committee.