Supreme Court Amendment Rules (No. 2) 2006
We, the Honourable PETER GEORGE UNDERWOOD, Officer of the Order of Australia, Chief Justice, and the Honourable PETER ETHRINGTON EVANS, the Honourable ALAN MICHAEL BLOW, OAM, and the Honourable SHAN EVE TENNENT, Puisne Judges of the Supreme Court of Tasmania, on the recommendation of the Rule Committee, make the following Rules of Court under the Supreme Court Civil Procedure Act 1932 .
1Short titleThese Rules of Court may be cited as the Supreme Court Amendment Rules (No. 2) 2006 . 2CommencementThese Rules of Court take effect on the day on which their making is notified in the Gazette. 3Principal RulesIn these Rules of Court, the Supreme Court Rules 2000 are referred to as the Principal Rules. 4Rule 82A insertedAfter rule 82 of the Principal Rules , the following rule is inserted in Division 2: 82AFrivolous or vexatious writ, &c. (1) If a writ or process appears to a registrar to be, on its face, an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar is to seek the direction of a judge unless the party seeking to issue the writ or process first obtains leave of a judge. (2) A judge may direct the registrar to issue the writ or process or to refuse to issue it. 5Part 36, Divisions 1A and 1B insertedAfter rule 937 of the Principal Rules , the following Divisions are inserted in Part 36: Division 1AFreezing orders 937AInterpretation of Division 1A of Part 36 In this Division, unless the contrary intention appears – ancillary order has the meaning given by rule 937C ; another court means a court outside Australia or a court in Australia other than the Court; applicant means a person who applies for a freezing order or an ancillary order; freezing order has the meaning given by rule 937B ; judgment includes an order; respondent means a person against whom a freezing order or an ancillary order is sought or made. 937BFreezing orders (1) The Court or a judge may make an order (a "freezing order"), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court or a judge will be wholly or partly unsatisfied. (2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with or diminishing the value of those assets. 937CAncillary orders (1) The Court or a judge may make an order (an "ancillary order") ancillary to a freezing order or prospective freezing order as the Court or judge considers appropriate. (2) Without limiting the generality of subrule (1), an ancillary order may be made for either or both of the following purposes: (a) eliciting information relating to assets relevant to the freezing order or prospective freezing order; (b) determining whether the freezing order should be made. 937DRespondent need not be party to proceeding The Court or a judge may make a freezing order or an ancillary order against a respondent even if the respondent is not a party to a proceeding in which substantive relief is sought against the respondent. 937EOrder against judgment debtor or prospective judgment debtor or third party (1) This rule applies if – (a) judgment has been given in favour of an applicant by – (i) the Court; or (ii) in the case of a judgment to which subrule (2) applies, another court; or (b) an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable – (i) in the Court or by a judge; or (ii) in the case of a cause of action to which subrule (3) applies, in another court. (2) This rule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the Court. (3) This rule applies to a cause of action if – (a) there is a sufficient prospect that the other court will give judgment in favour of the applicant; and (b) there is a sufficient prospect that the judgment will be registered in or enforced by the Court. (4) The Court or a judge may make a freezing order or an ancillary order, or both, against a judgment debtor or prospective judgment debtor if the Court or judge is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur: (a) the judgment debtor, prospective judgment debtor or another person absconds; (b) the assets of the judgment debtor, prospective judgment debtor or another person are – (i) removed from Australia or from a place inside or outside Australia; or (ii) disposed of, dealt with or diminished in value. (5) The Court or a judge may make a freezing order or an ancillary order, or both, against a person other than a judgment debtor or prospective judgment debtor (a "third party") if the Court or judge is satisfied, having regard to all the circumstances, that – (a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because – (i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or (ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or (b) a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment. (6) Nothing in this rule affects the power of the Court or a judge to make a freezing order or an ancillary order if the Court or judge considers it is in the interests of justice to do so. 937FJurisdiction Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the Court or a judge to make a freezing order or an ancillary order. 937GService outside Australia of application for freezing order or ancillary order An application for a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia) if any of the assets to which the order relates are within the jurisdiction of the Court. 937HCosts (1) The Court or a judge may make any order as to costs as the Court or judge considers appropriate in relation to a freezing order or an ancillary order made under this Division. (2) Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a freezing order or an ancillary order. Division 1BSearch orders 937IInterpretation of Division 1B of Part 36 In this Division, unless the contrary intention appears – applicant means an applicant for a search order; described includes described generally whether by reference to a class or otherwise; premises includes a vehicle or vessel of any kind; respondent means a person against whom a search order is sought or made; search order has the meaning given by rule 937J . 937JSearch orders The Court or a judge may make an order (a "search order") in any proceeding, or in anticipation of any proceeding, in the Court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing or preserving evidence which is, or may be, relevant to an issue in the proceeding or anticipated proceeding. 937KRequirements for grant of search order The Court or a judge may make a search order if the Court or judge is satisfied that – (a) an applicant seeking the order has a strong prima facie case on an accrued cause of action; and (b) the potential or actual loss or damage to the applicant will be serious if the search order is not made; and (c) there is sufficient evidence in relation to a respondent that – (i) the respondent possesses important evidentiary material; and (ii) there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the Court. 937LJurisdiction Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the Court to make a search order. 937MTerms of search order (1) A search order may direct each person who is named or described in the order – (a) to permit, or arrange to permit, such other persons as are named or described in the order – (i) to enter premises specified in the order; and (ii) to take any steps that are in accordance with the terms of the order; and (b) to provide, or arrange to provide, such other persons named or described in the order with any information, thing or service described in the order; and (c) to allow such other persons named or described in the order to take and retain in their custody any thing described in the order; and (d) not to disclose any information about the order, for up to 3 days after the date on which the order is served, except for the purposes of obtaining legal advice or legal representation; and (e) to do or refrain from doing any act as the Court or judge considers appropriate. (2) Without limiting the generality of subrule (1)(a)(ii) , the steps that may be taken in relation to a thing specified in a search order include – (a) searching for, inspecting and removing the thing; and (b) making or obtaining a record of the thing and any information it may contain. (3) A search order may contain such other provisions as the Court or judge considers appropriate. (4) In subrule (2), "record" includes a copy, photograph, film and sample. 937NIndependent solicitors (1) If the Court or a judge makes a search order, the Court or judge must appoint one or more solicitors, each of whom is independent of the applicant’s solicitors, (the "independent solicitors") to supervise the execution of the order, and to do such other things in relation to the order as the Court or judge considers appropriate. (2) The Court or a judge may appoint an independent solicitor to supervise execution of the order at any one or more premises, and a different independent solicitor or solicitors to supervise execution of the order at other premises, with each independent solicitor having power to do such other things in relation to the order as the Court or judge considers appropriate. 937OCosts (1) The Court or a judge may make any order as to costs that it considers appropriate in relation to a search order made under this Division. (2) Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a search order. P. G. Underwood
Chief Justice
P. E. Evans
Puisne Judge
A. M. Blow
Puisne Judge
S. E. Tennent
Puisne Judge
Countersigned,
I. G. Ritchard
Registrar
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 19 July 2006
These Rules of Court are administered in the Department of Justice.
EXPLANATORY NOTE
(This note is not part of the rule) These Rules of Court amend the