Supreme Court Rules 2000
We, the Honourable William John Ellis Cox, AC, RFD, ED, Chief Justice, and the Honourable Peter George Underwood, the Honourable Ewan Charles Crawford and the Honourable Peter Ethrington Evans, 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 .
PART 1Preliminary1Short titleThese Rules of Court may be cited as the Supreme Court Rules 2000. 2CommencementThese Rules of Court take effect on 1 May 2000. PART 2Application, Interpretation and Preliminary MattersDivision 1Preliminary3Application of these rules [Rule 3 Amended by S.R. 2019, No. 50, Applied:09 Sep 2019] Subject to rules 3A and 4, the provisions of these rules apply to any civil proceedings commenced in Court. 3AAdmiralty jurisdiction [Rule 3A Inserted by S.R. 2019, No. 50, Applied:09 Sep 2019] (1) This rule applies to the following persons: (a) the Principal Registrar; (b) the Deputy Registrar; (c) the Assistant Deputy Registrar. (2) In civil proceedings in the admiralty jurisdiction of the Court, a person to whom this rule applies may perform the functions and exercise the powers of the Registrar and the Marshal under the Admiralty Rules 1988 of the Commonwealth. (3) If a person to whom this rule applies cannot conveniently execute a warrant or other instrument related to civil proceedings in the admiralty jurisdiction of the Court – (a) that person may engage an appropriate officer of the Court to execute the warrant or instrument; and (b) the officer referred to in paragraph (a) is authorised to execute that warrant or instrument. (4) In any civil proceedings in the admiralty jurisdiction of the Court – (a) a fee is payable in respect of those proceedings in relation to any matter for which a fee is payable for that matter in any other civil proceedings under these Rules; and (b) a fee payable under paragraph (a) in relation to a matter is the same as the fee payable for that matter in any other civil proceedings. 4Special provisions made by other rulesThese rules do not apply to a proceeding in respect of which special provision is made by any other rule unless otherwise provided by that other rule. 5InterpretationIn these rules – A4 paper means paper known by that name that is 297 millimetres in length by 210 millimetres in width; Act means the Supreme Court Civil Procedure Act 1932; action means a proceeding commenced by a writ; [Rule 5 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] [Rule 5 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] address for service means an address for service that complies with rule 128; application means – (a) an originating application in writing by which a proceeding mentioned in rule 89 or 90 is commenced; and (b) an interlocutory application, oral or in writing, made to the Court or a judge in the course of any proceeding already commenced in the Court; [Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] barrister has the same meaning as in the Legal Profession Act 2007; [Rule 5 Amended by S.R. 2009, No. 52, Applied:01 Nov 2010] Convention means a convention, other than the Hague Convention, with a foreign country, made with or extended to the Commonwealth or the State, with respect to legal proceedings in civil matters whether or not it is also made with respect to other legal proceedings; Convention country means a foreign country to which a Convention applies; [Rule 5 Amended by S.R. 2007, No. 23, Applied:02 May 2007] corporation has the same meaning as in the Corporations Act; Court means the Supreme Court; deliver includes serve; document means any process, pleading, notice, order, application or other document or written communication; endorsement, used in respect of a writ, includes any statement of a plaintiff’s claim set out on the face of the writ; [Rule 5 Amended by S.R. 2009, No. 52, Applied:01 Nov 2010] Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at The Hague on 15 November 1965; [Rule 5 Amended by S.R. 2009, No. 52, Applied:01 Nov 2010] Hague Convention country means a country, other than Australia, that is a party to the Hague Convention; [Rule 5 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] hearsay rule has the same meaning as in the Evidence Act 2001; inspect includes the following, with or without the aid of equipment: (a) to view data or visual images embodied in any document; (b) to listen to sounds embodied in any document; (c) to reproduce sounds, data or visual images embodied in any document; judge, in relation to an inferior court, includes any judicial officer invested with the power of exercising the jurisdiction of that inferior court; [Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] law practice has the same meaning as in the Legal Profession Act 2007; [Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] Law Society means the Law Society of Tasmania within the meaning of the Legal Profession Act 2007; [Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] Legal Profession Board has the same meaning as in the Legal Profession Act 2007; litigation guardian means a litigation guardian for a person under disability; office seal means a seal kept under rule 17; officer means – (a) a person employed in a registry of the Court; and (b) [Rule 5 Amended by S.R. 2008, No. 2, Applied:01 Mar 2008] the Associate Judge; and (c) the Principal Registrar; and (d) a district registrar; opposite party includes any party to a cause or matter in which an issue is to be determined or a right is to be adjudicated; ordinary sittings of a Full Court means a sitting of a Full Court appointed under section 20(2) and (3) of the Act; originating process means – (a) any document by which an original proceeding is commenced; and (b) a writ; person under disability means an infant or a person who is incapable of managing and administering his or her affairs in relation to proceedings resulting from any absence, loss or abnormality of mental or psychological function; personal service means service effected by delivery to the person to be served; [Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] [Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] practitioner means an Australian legal practitioner; prescribed fee means a fee prescribed by Schedule 2; prescribed form means the appropriate form prescribed in the Supreme Court Forms Rules 2000; [Rule 5 Amended by S.R. 2003, No. 142, Applied:03 Dec 2003] [Rule 5 Amended by S.R. 2003, No. 142, Applied:03 Dec 2003] [Rule 5 Amended by S.R. 2010, No. 57, Applied:01 Jul 2010] prescribed rate of interest means the rate of interest prescribed under rule 5A; Principal Registrar means the Registrar of the Court; Principal Registry includes the only registry of the Court if there is no district registry; probate action includes every proceeding relating to the grant or recall of probate or letters of administration other than common form business; proceeding means any matter commenced by originating process; process server means a person, who is not an officer of the Sheriff, responsible for the service or execution of a document or process; receiver includes – (a) an assignee; and (b) a manager; and (c) a manager appointed by or under an order of the Court; register of proceedings means the register kept under rule 32(1)(c); registrar means – (a) the Principal Registrar; and (b) a district registrar of the Court; registry, in relation to any proceeding or intended proceeding, means the registry of the Court in which that proceeding is pending or is intended to be commenced; seal of the Court means the Great Seal of the Court; sealed copy, in relation to a document, means a copy sealed with the seal of the Court or an office seal; society includes – (a) an unincorporated society; and (b) a fellowship; and (c) a club, other than a proprietary club; and (d) an association; taxing officer means an officer of the Court empowered to conduct a taxation of costs under these rules; [Rule 5 Amended by S.R. 2012, No. 66, Applied:11 Oct 2013] Trans-Tasman Proceedings Act means the Trans-Tasman Proceedings Act 2010 of the Commonwealth; writ, used without any qualification, means a document in accordance with the prescribed form; writing includes print and typewriting. 5APrescribed rates of interest for administration proceedings, pre-judgment interest and post-judgment interest [Rule 5A Inserted by S.R. 2003, No. 142, Applied:03 Dec 2003] [Rule 5A Amended by S.R. 2004, No. 156, Applied:22 Dec 2004] [Rule 5A Substituted by S.R. 2010, No. 57, Applied:01 Jul 2010] (1) For administration proceedings under Division 6 of Part 36, the prescribed rate of interest for a calendar year, or for part of a calendar year, is the last cash rate published by the Reserve Bank of Australia before 1 January in that year. (2) For the purpose of section 34 of the Supreme Court Civil Procedure Act 1932 and rule 347(1)(b), the prescribed rate of interest for a calendar year, or for part of a calendar year, is a rate equal to 4% plus – (a) for the period commencing on 1 January in a calendar year and ending on 30 June in that year, or for part of that period, the last cash rate published by the Reserve Bank of Australia before that 1 January; and (b) for the period commencing on 1 July in a calendar year and ending on 31 December in that year, or for part of that period, the last cash rate published by the Reserve Bank of Australia before that 1 July. (2A) [Rule 5A Subrule (2A) inserted by S.R. 2019, No. 50, Applied:09 Sep 2019] For the purpose of section 35A of the Supreme Court Civil Procedure Act 1932, the prescribed rate of interest that is not to be exceeded under that section for a calendar year, or for part of a calendar year, is the rate specified in subrule (2). (3) For the purpose of section 165 of the Supreme Court Civil Procedure Act 1932 and rule 887A(1)(b), the prescribed rate of interest for a calendar year, or for part of a calendar year, is a rate equal to 6% plus – (a) for the period commencing on 1 January in a calendar year and ending on 30 June in that year, or for part of that period, the last cash rate published by the Reserve Bank of Australia before that 1 January; and (b) for the period commencing on 1 July in a calendar year and ending on 31 December in that year, or for part of that period, the last cash rate published by the Reserve Bank of Australia before that 1 July. 6NoticesAny notice required by these rules is to be in writing unless – (a) these rules provide that it may be given orally; or (b) the Court or a judge authorises it to be given orally. 7Forms (1) If a rule requires anything to be in accordance with a prescribed form, the relevant form is to be used with any variation the circumstances require. (2) A requirement that a title be inserted in a form is taken to be a requirement that the form include the title required for an originating process under rule 97. 89Court acting on own motion or on applicationThe Court or a judge may exercise any power under these rules – (a) of the Court’s or judge’s own motion; or (b) on the application of a person who has a sufficient interest. 10Directions as to proper procedure (1) A party or a person intending to become a party may make an application under section 201 of the Act to a judge for directions. (2) An application is to – (a) be in writing; and (b) be addressed to the registrar; and (c) state the grounds of the application. (3) Two or more parties or intended parties may make a joint application. (4) A person making an application may serve an application on any other party to the proceeding or intended proceeding that the person considers may be affected by the judge’s directions. (5) On receipt of an application, the registrar is to – (a) fix a time for the judge’s determination of the application; and (b) notify the applicant, and any party who has been served with a copy of the application, of that time. (6) On an application, a judge may – (a) order the applicant to give notice of the application to any person and may adjourn the application so that that person can attend; and (b) act on the material contained in the application and any other material the judge may receive; and (c) give any directions the judge considers may best give effect to the purposes of these rules. (7) A copy of any direction or order made concerning an intended proceeding is to be endorsed at the time of filing on the originating process and on every copy. 11Corporations to act by practitionerExcept where otherwise provided by any Act or these rules, a corporation, whether or not a party, is not to take any step in a proceeding otherwise than by a practitioner. 12Acting by practitionerAn act required by these rules to be done in relation to a party who is suing or appearing by a practitioner is to be done in relation to the practitioner, unless it is provided that it be done in relation to the party personally. Division 2Failure to comply with the rules13Setting aside for irregularityFailure to comply with any of these rules does not make any proceedings void, unless the Court or a judge so orders. 14Application to set aside for irregularity (1) The Court or a judge may order that any proceedings that do not comply with these rules – (a) be set aside, either wholly or in part; or (b) be amended or otherwise dealt with in any manner and on any terms the Court or judge considers fit. (2) An application to set aside any proceedings on the ground that they do not comply with these rules is to state each irregularity complained of in detail. (3) On an application, the Court or judge must not make an order setting aside the proceedings unless – (a) the application was made within a reasonable time; and (b) the applicant has taken no fresh step in the proceedings after becoming aware of an irregularity complained of. 15Wrong originating processA proceeding or the originating process by which it was commenced is not void solely on the ground that the proceeding was commenced by the wrong process. PART 3Seals, Registries and SheriffDivision 1Seals and Registries16Seal of the Court (1) The Principal Registrar, as the deputy of the Chief Justice, has custody of the seal of the Court. (2) The Principal Registrar is to ensure that the seal of the Court is kept safely when not in use. 17Office seals (1) Each registrar is to keep an office seal. (2) The office seal – (a) is to bear the words "Supreme Court Office", together with the word "Hobart", "Launceston" or "Burnie"; and (b) is to be affixed to all documents required or authorised to be sealed, except as provided by rule 18(1). 18Affixing of seal (1) The following documents are to be sealed with the seal of the Court only and not with an office seal: (a) a commission issued by authority of the Court or a judge; (b) an exemplification of proceedings in the Court; (c) a grant of probate or administration, whether by way of original grant or by way of sealing a grant made elsewhere; (d) [Rule 18 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] a certificate of admission of a person to the legal profession; (e) a document issued from the Court for use beyond the jurisdiction of the Court, except for a document for service on a party to a cause or matter; (f) a document which the Court or a judge directs to be sealed with the seal of the Court. (2) The following documents are to be sealed with the office seal: (a) a document for service issued out of a registry; (b) a writ; (c) an office copy of a record of the Court or of a document filed in the Court; (d) a document which the Court or a judge directs to be sealed with the office seal. 19Court holidaysThe following days are Court holidays: (a) New Year’s Day; (b) Good Friday, Easter Monday and Easter Tuesday; (c) Christmas Day and the 3 days following Christmas Day; (d) [Rule 19 Amended by S.R. 2001, No. 100, Applied:12 Sep 2001] . . . . . . . . (e) any other day appointed by the Chief Justice. 20Office hours (1) [Rule 20 Subrule (1) substituted by S.R. 2021, No. 20, Applied:24 Mar 2021] Subject to any direction published by the Principal Registrar, each registry is to be open from 9 am until 4.30 pm on every day in the year except Saturdays, Sundays and Court holidays. (2) The Principal Registrar may authorise a district registry to be closed for the period between 1 pm and 2 pm. 21Management of Principal RegistryThe Principal Registrar has the general management of the officers employed in the Principal Registry and, subject to any Act, is to allocate their duties. 22Authority of district registrarSubject to any direction under rule 24, a district registrar may exercise any authority and jurisdiction in respect of a proceeding in the district registry the Principal Registrar may exercise. 23Proceedings in district registries (1) Any step in a proceeding in a district registry, whether before or after judgment and including execution, is to be taken in the district registry unless these rules otherwise provide or the Court or a judge otherwise orders. (2) If the Court or a judge directs a judgment or an order in a proceeding in a district registry to be entered in the Principal Registry, the Principal Registrar is to send an office copy of the judgment or order to the district registry for filing. 24Management of district registries (1) The Principal Registrar has the general management of all district registries and may give directions to any district registrar. (2) The Principal Registrar may direct a district registrar to send a document filed in the district registry to the Registry or to another district registry. (3) A district registrar must comply with any direction given by the Principal Registrar. 25Officers subject to order or direction of CourtEvery officer is subject to an order or direction of the Court or a judge. 26Custody of documents (1) The Principal Registrar is to have custody of – (a) all the records of the Court, other than documents filed in a district registry; and (b) all other documents filed, deposited or impounded in the Principal Registry. (2) A district registrar is to have custody of all documents filed in the district registry. 27Documents required for hearing (1) The registrar is to deliver to the associate of the judge who is to hear a matter all documents filed in the registry and required for use in relation to that matter a reasonable time before the hearing. (2) Immediately after the conclusion of the hearing, the associate is to return to the registrar any of the documents that are not required by the judge. (3) The associate is to return the documents that are required by the judge as soon as practicable after the judge has finished with them. 28Transmission of documents between registries (1) If any proceeding pending in a district registry is to be tried outside the district for that registry, the district registrar is to send all documents filed in the registry to – (a) the district registrar in whose district the trial is to be held; or (b) the Principal Registrar, if the trial is not to be held within the district of any district registry. (2) If any proceeding which is not pending in a district registry is to be tried within the district of a district registry, the Principal Registrar is to send all documents filed in the registry to the district registrar in whose district the trial is to be held. 29Removal of documents from registry (1) Except as provided by this Division, a record of the Court or other document is not to be removed from a registry without an order of the Court or a judge. (1A) [Rule 29 Subrule (1A) inserted by S.R. 2015, No. 91, Applied:16 Dec 2015] A judge, the Principal Registrar, a District Registrar, or an officer of the Court with the approval of the Principal Registrar, may temporarily remove a record of the Court or other document from a registry. (2) A subpoena is not to be issued for the production of a document referred to in subrule (1). 30Power of clerksA writ, judgment, commission, appeal book or other document provided for by these rules may be received, signed, settled and filed by a registrar or any other officer to whom those duties are assigned. 31Prepayment of fees [Rule 31 Amended by S.R. 2004, No. 57, Applied:28 Jul 2004] A document in respect of which a fee is payable is not to be sealed or filed until the fee is paid, unless by order of the Registrar. 32Indexes of judgments, orders and files (1) The Principal Registrar and each district registrar are to maintain – (a) [Rule 32 Subrule (1) amended by S.R. 2007, No. 23, Applied:02 May 2007] . . . . . . . . (b) indexes of files and bundles of documents filed; and (c) a register of the documents filed and steps taken in every proceeding, showing the dates of filing and of the taking of each step in chronological order. (2) An index or a register – (a) is to be maintained in a form which enables convenient reference; and (b) may be maintained in computerised form. (3) [Rule 32 Subrule (3) substituted by S.R. 2007, No. 23, Applied:02 May 2007] An index or register referred to in subrule (1) is to be accessible to the public during office hours on payment of the prescribed fee. (4) [Rule 32 Subrule (4) omitted by S.R. 2007, No. 23, Applied:02 May 2007] . . . . . . . . 33Searches (1) A person may request the registrar to search an index or a register. (2) A request is to – (a) be in writing; and (b) contain details of the information sought in relation to a proceeding; and (c) be accompanied by the prescribed fee. (3) On receipt of a request, the registrar is to – (a) cause the index or register to be searched; and (b) issue a certificate certifying the results of the search. (4) Except with the leave of the Court or a judge, a person who is not a party to a proceeding may not search in a registry for, or inspect, the following: (a) with respect to proceedings in chambers, any judgment, order, transcript of a proceeding or other document; (b) any affidavit, interrogatories, answers to interrogatories, list of documents given on discovery, admissions, evidence taken on deposition, subpoena or document lodged in answer to a subpoena; (c) any document which the registrar considers ought to remain confidential to the parties. (5) [Rule 33 Subrule (5) inserted by S.R. 2015, No. 99, Applied:06 Jan 2016] Subrule (4) does not apply to a person who makes a request under subrule (1) for the purpose of reporting for the Council of Law Reporting for Tasmania. 34Filing of certificatesA certificate of a registrar made under a judgment or order is to be filed in the registry in which the judgment or order is entered. 34ACertificate of finalisation [Rule 34A Inserted by S.R. 2004, No. 56, Applied:21 Jul 2004] (1) If an action or proceeding has been finalised otherwise than by judgment, order or discontinuance, the party who filed the originating process in the action or proceeding is to file a notice certifying that the action or proceeding has come to an end. (2) A notice filed under subrule (1) is to – (a) be in the prescribed form; and (b) be filed within 21 days after the action or proceeding has come to an end. 35Office copies (1) On receipt of a request from a person entitled to have a copy of any record of the Court or of any document filed, the registrar is to supply a copy of the record or document requested. (2) The record or document is to be marked with the words "office copy" and sealed. (3) An office copy provided under subrule (1) is a certified copy for the purposes of any law relating to the admission in evidence of certified copies. 36Documents deposited or left in registry (1) A document ordered to be left or deposited is to be left or deposited – (a) in the registry named in the order; or (b) if no registry is so named, in the registry in which the relevant proceeding is pending. (2) The document is to be subject to any directions the Court or a judge may give as to its production. 37Attendance away from place of discharge of dutiesAn officer required by any person to attend at any place out of the city or town in which the officer normally discharges his or her duties of office, may require that person to – (a) deposit a sum of money sufficient to cover the expected charges and expenses associated with the attendance; and (b) undertake to pay any charges and expenses in excess of the deposit. 38Directions to registrarA party may apply to the Court or a judge ex parte in a summary way for a direction that the registrar do any act which – (a) a registrar is required or entitled to do; and (b) the party requires to be done; and (c) has not been done. 39Rules of CourtIn relation to any Rules of Court made by the judges, the Principal Registrar is to – (a) countersign the rules; and (b) keep the original rules in safe custody; and (c) keep an index of the rules. Division 2Sheriff40Attendance of Sheriff in CourtThe Court or a judge may require the Sheriff or a deputy of the Sheriff to attend a sitting of the Full Court or a sitting of a judge whether in Court or in chambers. 41Documents to be left with Sheriff with written instructionsA party requiring a document or process to be served or executed by the Sheriff is to – (a) leave the document or process with the Sheriff; and (b) provide written instructions for its service or execution. 42Verification of service or execution (1) The service or execution of any document or process by the Sheriff or by any person who is not an officer of the Sheriff charged with the service or execution of the document or process is proved by a return under subrule (2). (2) A return is to – (a) state by whom the document or process has been served or executed; and (b) state the date and mode of service or execution; and (c) be signed by the Sheriff or the person who is charged with its service or execution. 43Returns (1) The Sheriff or process server is to return the process into Court if required by the party at whose instance it was issued. (2) The return is to be made by filing the original process in the registry from which it issued endorsed with, or having annexed to it, a certificate – (a) that is signed by the Sheriff, an officer of the Sheriff or other person; and (b) that records what has been done under the process. 44Return that person not foundIf the person on whom a document or process is to be served or executed cannot be located, the Sheriff or process server is to – (a) return the document or process into Court; and (b) certify that the person cannot be located. 45Return of writ (1) An order for the return of any writ or to bring in a person ordered to be attached or committed is not necessary. (2) A party at whose instance a writ of execution was issued or an order for attachment or committal was made may give notice to the Sheriff or process server requiring – (a) the return of the writ; or (b) that the Sheriff or the process server – (i) make a report; or (ii) bring in the person within a specified time, being not less than 8 days. (3) The Sheriff or any other person who does not comply with a notice under subrule (2) is liable to attachment. PART 4Time46Calculation of periods of sittingsThe days of the start and finish of a sitting or vacation are included in the sitting or vacation. 47Computation of number of daysA period of a particular number of days, not expressed to be clear days, excludes the first day and includes the last day. 48Vacation excluded for certain purposes [Rule 48 Substituted by S.R. 2016, No. 122, Applied:11 Jan 2017] Unless the Court or a judge otherwise directs, the period between the twenty-third day of December and the seventh day of January following is not to be reckoned in the computation of the times appointed or allowed by these rules for the filing, amendment or delivery of any pleading or appearance. 49ServiceA writ, pleading, notice, application, order or other document must not be served on a Sunday, Good Friday or Christmas Day. 50Exclusion of certain daysA period of less than 6 days appointed or allowed for doing any act or taking any proceeding does not include a Saturday, Sunday or Court holiday. 51Expiry of period on closed dayIf the period for doing any act or taking any proceeding expires on a Saturday, Sunday or Court holiday, the act or proceeding may be done or taken on the next day which is not a Saturday, Sunday or Court holiday. 52Extension or abridgment of period (1) The Court or a judge may extend or abridge the period for doing any act or taking any proceedings allowed or limited by these rules or by any order of the Court or a judge on any terms the Court or judge considers just. (2) An extension of any period may be ordered although the application is made after the expiration of the period originally allowed or limited. (3) The costs of an application and an order made under subrule (1) are to be borne by the applicant unless the Court or a judge otherwise orders. 53Extension of period by consentThe period for delivering, amending or filing any pleading or other document may be extended by the consent in writing of the parties to the proceeding who may be affected by the pleading or document without application to the Court or a judge. 54Fixing of periodThe Court or a judge may fix a period if a period is not fixed by these rules or by any judgment or order for doing any act in any proceeding. 55Notice after delay of one yearIf a step, other than an application on which no order has been made, has not been taken in a proceeding for at least one year since the last step was taken, a party may not take any further step in the proceeding without first giving to every other party one month’s notice of intention to proceed. 56Notice after delay of 6 years (1) If a step, other than an application on which no order has been made, has not been taken in a proceeding for 6 years since the last step was taken, a party may not take any further step in the proceeding without the order of the Court or a judge. (2) An order may be made either ex parte or on notice. PART 5Jurisdiction as to costs57Costs in discretion of Court (1) The costs of the proceeding in the Court or before a judge are to be in the discretion of the Court or judge. (2) Subrule (1) does not affect the entitlement of an executor or administrator, or a trustee or mortgagee, who has reasonably instituted, carried on or resisted any proceeding, to costs out of a particular estate or fund. 58Costs of proceedings tried before judge of an inferior court or refereeIf a proceeding is tried, determined or dealt with by a judge of an inferior court of civil jurisdiction, an officer or a referee who has the power to deal with the costs of the proceeding, the judge, officer or referee has the same discretion with respect to costs conferred on the Court or judge by rule 57. 59Costs of cause removed from inferior courtThe costs of any proceeding removed from an inferior court which had jurisdiction in that proceeding are costs in the cause. 60Costs due to neglect of counsel or practitionerIf the hearing of any matter is delayed or adjourned because of the neglect of the counsel or practitioner for any party, the Court or judge may order that the counsel or practitioner – (a) is not entitled to recover any costs the Court or judge determines; and (b) is personally liable for all or any of the party’s costs the Court or judge determines. 61Costs due to delay or misconduct of practitioner (1) If in any proceeding it appears to the Court or a judge that a person has incurred costs improperly or without any reasonable cause or that, because of any undue delay, misconduct or default by a practitioner, costs properly incurred have proved fruitless to the person incurring them, the Court or judge may require the practitioner of the person to show cause – (a) why costs should not be disallowed as between the practitioner and the client of the practitioner; and (b) why the practitioner should not repay to the client any costs which the client has been ordered to pay to any other person. (2) The Court or judge may make any order that the justice of the case requires and may – (a) refer the matter to a taxing officer for inquiry and report; and (b) direct the practitioner in the first place to show cause before the taxing officer; and (c) [Rule 61 Subrule (2) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] direct or authorise the Legal Profession Board to attend and take part in the inquiry. (3) Notice of any proceedings or order under this rule is to be given to the client in any manner the Court or judge directs. (4) [Rule 61 Subrule (4) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] Any costs incurred by the Legal Profession Board in connection with an inquiry are to be paid by any person, or out of any fund, the Court or a judge directs. 62Costs of practitioner litigation guardian (1) If a practitioner acts in any proceeding as the litigation guardian of a person under disability, the Court or a judge may – (a) direct that any costs incurred in the performance of the duties of guardian be paid – (i) by a party to the proceeding; or (ii) out of any fund in Court in which the person under disability is interested; and (b) give directions for the repayment or allowance of those costs. (2) If a practitioner acts without an order as litigation guardian of a person under disability, the costs incurred in the performance of the duties as guardian are in the discretion of the Court or judge. 62ALiability of litigation guardian for costs [Rule 62A Inserted by S.R. 2010, No. 57, Applied:30 Jun 2010] If in a proceeding the Court or a judge orders a litigation guardian to pay costs to any other party to that proceeding, unless otherwise ordered by the Court or judge – (a) the litigation guardian is not personally liable for those costs; and (b) those costs may be set off against any costs that the Court or judge has ordered that other party to pay to that litigation guardian; and (c) any balance is to be paid out of the estate of the relevant person under disability. 63Costs not to be out of estate [Rule 63 Amended by S.R. 2010, No. 57, Applied:30 Jun 2010] Subject to rule 62A, costs of an unsuccessful claim or unsuccessful resistance to a claim to any property are not to be paid out of an estate unless the Court or a judge so orders. 64Costs to be out of legacyThe costs of, or relating to, an inquiry to ascertain the person entitled to any legacy, money or share are to be paid out of the legacy, money or share, unless the Court or a judge otherwise orders. 65Costs of incidental applicationsUnless the Court or a judge otherwise orders – (a) the costs of an opposed application in a proceeding are part of the costs of the cause of the party in whose favour the application is determined; and (b) the costs of an unopposed application in a proceeding are part of each party’s costs of the cause. 66Costs of application not disposed ofIf an application or other matter is ordered to stand over to the trial and an order is not made at the trial as to the costs of the application or matter, the costs of each party to the application or matter are part of that party’s costs of the cause. 67Costs reserved [Rule 67 Substituted by S.R. 2004, No. 56, Applied:21 Jul 2004] If the Court or judge reserves the costs of a motion, application or other proceeding, those costs are to follow the event unless the Court or a judge otherwise directs. 68Costs for unnecessary proceedingsIf the further prosecution of any proceeding becomes unnecessary, except for the purpose of determining by whom the costs of the proceeding should be paid, the Court or a judge may determine that on the application of a party. 69Costs unnecessarily incurredThe Court or a judge may order that any costs unnecessarily incurred by a party be paid by that party, although that party is otherwise entitled to the costs of the proceeding. PART 6Suitors' fund70Interpretation of Part 6In this Part – common fund means the common fund formed under rule 74(1); half-year means a half-year ending on a day specified in rule 75(1); interest includes – (a) dividends or periodical income; and (b) the interest, dividends and other periodical income on any funds referred to in an order by the Court or a judge; money in Court means – (a) any sum of money paid into Court or placed to the credit of any cause, matter or account in Court; and (b) any dividends on securities in Court and interest on money lodged in Court and invested under any legislation. 71Payment out of Court [Rule 71 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] Any money in Court that a person is entitled to may be paid out to the person or his or her practitioner on such written authority as the Principal Registrar considers sufficient. 72Remission of money by Principal Registrar (1) [Rule 72 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] A person who is entitled to payment of any money in Court may give written instructions to the Principal Registrar to remit the money to that person or his or her practitioner, banker or another person by cheque sent by post or otherwise. (2) The Principal Registrar, on being satisfied of the fulfilment of any conditions attached to the payment, may remit the money in accordance with the instructions. (3) A cheque or other document by which payment of money is effected for the purposes of this Division when endorsed, signed or negotiated by the payee named in it is a valid discharge to the Principal Registrar for the amount expressed. (4) The Principal Registrar may require a receipt for a payment made by the Principal Registrar. 73EvidenceThe Principal Registrar may determine what evidence is sufficient evidence that a person is entitled to – (a) the payment of any money in Court; or (b) the transfer of any securities standing in Court; or (c) the fulfilment of any condition affecting such a payment or transfer. 74Investment of money in Court (1) Subject to any direction of the Court or a judge, the Principal Registrar is to invest all money in Court, other than money lodged for safe custody, in any securities specified by any law or instrument, and where none is specified, the money is to form a common fund to be invested by the Principal Registrar in – (a) any one or more of the investments specified in section 194C(2) of the Act; or (b) a contributory first mortgage of real estate in the State under the control of the Public Trustee or a trustee company within the meaning of the Trustee Companies Act 1953, whether or not the moneys secured by the mortgage are provided wholly or partly by the Principal Registrar from the common fund. (2) The Principal Registrar is to cause to be paid into the common fund all interest earned on investments under this rule. 75Interest on money in common fund (1) At the end of every half-year ending on 30 June or 31 December the Principal Registrar is to – (a) fix the annual rate at which interest is to be credited to an account in which money forming part of the common fund was standing at the end of that half-year; and (b) credit interest at that rate to each account. (2) Interest is not to be computed on an amount less than $1. (3) Interest on money in the common fund accrues by calendar months and is not to be computed for any shorter period than one month unless the Court or a judge or the Principal Registrar otherwise directs. (4) For the purposes of subrule (3), interest – (a) is to be computed from a day to be fixed by the Principal Registrar in the month following that in which the money is paid into the common fund; and (b) ceases on the corresponding day of the last month preceding the day of the withdrawal of the money from the common fund. (5) Interest paid into the common fund by cheque does not form part of the common fund until the cheque has been credited in the books of the authorised deposit-taking institution into which it has been paid. (6) If money that has been invested as part of the common fund is paid out of Court before the end of a half-year, interest that has accrued but has not been credited to the account is to be computed at the rate last fixed under subrule (1). (7) The Principal Registrar may deduct from the amount of the interest payable on money under subrule (6) a sum not exceeding 0.5% a year of that amount and the amount so deducted remains part of the common fund. (8) In this rule, authorised deposit-taking institution means a body corporate that is an authorised deposit-taking institution for the purposes of the Banking Act 1959 of the Commonwealth. 76Interest on money not in common fundIf the interest on an investment, other than an investment of money in the common fund, is to be accumulated, the Principal Registrar may invest that interest in the common fund until it amounts to $200, when it is to be invested in accordance with rule 74. 77Reserve fund (1) Interest earned by the common fund and not credited to an account to which money forming part of the common fund was standing during any half-year is to be carried to a reserve fund. (2) The reserve fund is part of the common fund and, with the approval of a judge, may be used by the Principal Registrar – (a) in making good any deficiencies in the funds in Court; or (b) in making good any amount by which the amount of interest to be credited to the accounts forming part of the common fund during any half-year exceeds the amount of interest earned for that half-year; or (c) to pay any expenses incurred in administering the funds in Court. (3) Interest in the reserve fund that is not used for the purposes of subrule (2) – (a) is to be invested as part of the common fund; and (b) is not to be treated as unclaimed money. PART 7ProceedingsDivision 1Documents78Requirements for documentsAny document filed, delivered or otherwise used in connection with any proceeding is – (a) [Rule 78 Amended by S.R. 2001, No. 100, Applied:12 Sep 2001] to be printed on A4 paper with a space of not less than 4 millimetres between the lines; and (b) not to be a carbon copy; and (c) [Rule 78 Amended by S.R. 2012, No. 90, Applied:17 Oct 2012] . . . . . . . . (d) to have an inner margin of about 25 millimetres in width and an outer margin of about 19 millimetres in width; and (e) not to be handwritten, except by leave of a registrar. 79Identification of partyA document is to have the following information shown below a horizontal line drawn at the foot of the first page: (a) if the party is represented by a practitioner – (i) the name of the party on whose behalf the document is filed; and (ii) the name, address, telephone number and facsimile number of the practitioner; and (iii) if an agent for the practitioner acts in the proceeding, the name, address, telephone number and facsimile number of the agent; and (iv) the name of the practitioner who has carriage of the proceedings in which the document is filed; and (v) [Rule 79 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] [Rule 79 Amended by S.R. 2013, No. 70, Applied:25 Sep 2013] the address of the practitioner for the reception of documents in a document exchange; and (vi) [Rule 79 Amended by S.R. 2013, No. 70, Applied:25 Sep 2013] if the practitioner accepts service of documents by email, the email address of the practitioner; (b) if the party is not represented by a practitioner – (i) the name, telephone number and facsimile number of the party for whom the document is filed; and (ii) [Rule 79 Amended by S.R. 2013, No. 70, Applied:25 Sep 2013] the address for service of the party; and (iii) [Rule 79 Amended by S.R. 2013, No. 70, Applied:25 Sep 2013] if the party accepts service of documents by email, the email address of the party. 80Statement of numbersIn any document dates and numbers are to be expressed in figures. 81Copies of documentsA party who, under these rules or an order, receives a copy of a document in the possession of another party is to pay that other party at the rate for copies of documents set out in Part 1 of Schedule 1. Division 2Filing82Filing in Court act of an officer (1) Only an officer may receive a document for filing in the Court. (2) If a person other than an officer is directed or requested to file a document, that person is to lodge it for filing by an officer in the Court. 82AFrivolous or vexatious writ, &c. [Rule 82A Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] (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. 83Lodgment for filing (1) A document is to be – (a) lodged for filing at a registry; or (b) [Rule 83 Subrule (1) amended by S.R. 2013, No. 70, Applied:25 Sep 2013] sent for filing by prepaid post in an envelope addressed to a registry; or (c) [Rule 83 Subrule (1) amended by S.R. 2013, No. 70, Applied:25 Sep 2013] sent by email for filing, in accordance with Division 2A of Part 7. (2) An originating process is to be filed in the registry in which it is proposed to commence the original proceeding. (3) Except where otherwise provided by these rules, a document, other than an originating process, is to be filed in the registry in which the cause or matter is proceeding. (4) The officer receiving any document lodged for filing at a registry is to – (a) note the time and date of lodgment on the document; and (b) if the document is in order for filing – (i) file it as at the time and date of lodgment; and (ii) if it is accompanied by a copy of the document, seal the copy or, if sealing is not required, note on the copy the time and date of lodgment and return the copy to the person lodging the document; and (c) if the document is not in order for filing, return it together with a note of the reasons for its return. (5) If a document is sent by post and the original is to be – (a) filed, it is to be accompanied by a copy for return; or (b) returned, it is to be accompanied by a copy for filing. (6) A document sent by post is to be accompanied by a duly stamped and addressed envelope for the return to the person requesting filing of the copy or original document not filed. (7) On receipt of a document sent by post – (a) an officer of the registry is to note the time and date of receipt on the original and any copy; and (b) if the document is in order for filing – (i) the officer is to file the document; and (ii) a registrar is to seal any copy posted with the document or, if sealing is not required, note on the copy the time and date of lodgment and return the copy to the person requesting filing; and (c) if the document is not in order for filing, the officer is to return it together with any accompanying documents and a note of the reasons for its return. (8) If the person requesting filing fails to provide an envelope in accordance with subrule (6), the registrar is to notify the person of the requirement for an envelope. (9) If the person subsequently provides a duly stamped and addressed envelope, the filing of the document is to be as of the day on which the envelope was provided. 84Documents delivered to a document exchange [Rule 84 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] Rule 83 applies to the lodgment for filing of a document if the registry and the practitioner for a party have a facility for the reception of documents in the same document exchange as if – (a) the reference in rule 83(1)(b) to sending by prepaid post were a reference to delivery into that facility; and (b) [Rule 84 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] the envelope required under rule 83(6) were to be addressed to the practitioner’s address in the document exchange. 85Document not having intended effectA document is in order for filing if it complies with these rules as to its formal elements, even though it may not have its intended effect. 86Application to judge if document is returnedIf a document, the filing of which is necessary for a person to commence or pursue proceedings for relief of any kind, is returned under rule 83, a judge, on the application of that person, may order that – (a) the document be filed as at the date and time of its first lodgment; or (b) an amended version of the document or a different document in substitution for it be filed as at that date and time. 87Construction of certain referencesA reference in these rules or in any other enactment to the issuing of a document out of the Court by a person other than an officer is a reference to lodging that document for filing and includes a requirement that, when the document is filed, the registrar is to issue a sealed copy of that document. Division 2AEmailing and filing, &c., of electronic documents87ALimitation on electronic documents [Rule 87A of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013] (1) The Principal Registrar may approve a person, firm, corporation or government agency as a person, firm, corporation or government agency who may lodge or serve documents by email. (2) The Principal Registrar, in his or her absolute discretion, may refuse to accept for lodgment a document that is emailed to a registry by a person, firm, corporation or government agency who is not approved by the Principal Registrar under subrule (1). (3) The Principal Registrar, by notice in writing to the holder of an approval, may, in his or her absolute discretion, revoke the approval at any time. 87BApproved formats, email addresses and cover letters [Rule 87B of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013] (1) A document that is emailed to a registry for filing is to – (a) be in a format approved by the Principal Registrar; and (b) be sent to the email address approved by the Principal Registrar; and (c) be capable of being printed in its entirety and in the form in which it was created; and (d) include, in the footer required under rule 79, an email address for service; and (e) be accompanied by a cover sheet. (2) For the purposes of subrule (1)(e), the cover sheet to the document is to contain the following information: (a) the title of the proceeding to which the document relates; (b) the heading of the proceeding; (c) the registry in which the proceeding is being, or is to be, conducted; (d) if a registry has assigned a file number to the proceeding, that file number; (e) a description of the document; (f) the date the document is emailed; (g) the name of the party on whose behalf the document is being lodged; (h) the email address of the person lodging the document. 87CElectronic signatures [Rule 87C of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013] (1) A document (other than an affidavit) that is emailed and required by these rules to be signed is taken to be signed if a facsimile of the signature is affixed to the document by electronic means. (2) For the purposes of subrule (1), the signature is to be affixed to the document by, or at the direction of, the signatory. 87DElectronic office seals [Rule 87D of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013] (1) A document that is emailed and required by these rules to be sealed with an office seal is taken to be sealed if a facsimile of the office seal is affixed to the document by electronic means. (2) For the purposes of subrule (1), an office seal is to be affixed to the document by, or at the direction of – (a) the Principal Registrar; or (b) an officer acting with the authority of the Principal Registrar. 87EElectronic lodgment for filing [Rule 87E of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013] (1) In this rule – date of lodgment, of a document by email, means – (a) if the document is received by the Court on a Saturday, Sunday or Court holiday, the first day that is not a Saturday, Sunday or Court holiday following the day on which the email is received; or (b) if the document is received by the Court on a day that is not a Saturday, Sunday or Court holiday – (i) if the document is received by the Court before 4:30 p.m., the day on which the email is received; or (ii) if the document is received by the Court on or after 4:30 p.m., the first day, that is not a Saturday, Sunday or Court holiday, following the day on which the email is received. (2) An officer who receives a document that is lodged by email for filing is to – (a) affix to the document, by electronic means, the date of lodgment of the document; and (b) if the document is in order for filing – (i) affix the office seal to the document in accordance with rule 87D; and (ii) file the document. (3) If the officer files the document and it requires listing before the Court, the officer is to email the person who lodged the document a notice stating the time, date and place of the hearing. (4) If the document is not in order for filing, the officer is to email the person who lodged the document a statement of the reasons for the officer’s refusal to file the document. 87FEffecting electronic service [Rule 87F of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013] (1) A person may serve a document by email if the person on whom the document is to be served has given an email address for service. (2) If a document is served on a person by email, the document is taken to be served – (a) if the document is received by the person on a Saturday, Sunday or Court holiday, the first day that is not a Saturday, Sunday or Court holiday following the day on which the email is received; or (b) if the document is received by the person on a day that is not a Saturday, Sunday or Court holiday – (i) if the document is received by the person before 4:30 p.m., the day on which the email is received; or (ii) if the document is received by the person on or after 4:30 p.m., the first day, that is not a Saturday, Sunday or Court holiday, following the day on which the email is received. 87GAffidavits [Rule 87G of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013] (1) An affidavit that is lodged by email for filing may have annexures attached to it if – (a) an index of the annexures is specified in the affidavit beneath the title to the proceedings; and (b) each reference to an annexure in the index contains a hyperlink to its relevant annexure; and (c) each reference to an annexure in the body of the affidavit contains a hyperlink to its relevant annexure. (2) The cover sheet accompanying an affidavit that is lodged by email for filing is to include, in addition to the information specified in rule 87B(2) – (a) a list, under the description of the affidavit, that separately identifies each exhibit, if any; and (b) a certificate, signed by the person lodging the affidavit, stating that – (i) the affidavit is a true and complete facsimile of the original; and (ii) the original of the affidavit will be held in safe custody until the proceeding to which the affidavit relates has been concluded and at least 3 months have passed since the expiry of any period allowed for appeal or further appeal in relation to the proceeding; and (iii) the original of the affidavit will be produced for inspection upon request by a party to the proceeding, the Court or a judge. (3) Unless the Court or a judge makes an order to the contrary, a person who has lodged an affidavit by email for filing may not use the affidavit as evidence if a request for the production of the original of the affidavit is not satisfied. 87HOriginal documents generally [Rule 87H of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013] (1) Unless the Court or a judge makes an order to the contrary, if a document that is emailed for filing exists in an original paper form then the person who emails that document must keep the original in safe custody until – (a) the proceeding to which the document relates has been concluded; and (b) at least 3 months have passed since the expiry of any period allowed for appeal or further appeal in relation to the proceeding. (2) Upon request by the Court or a judge, a person must produce for inspection the original of a document that is emailed for filing. Division 3Commencement of proceedings88ActionsThe following classes of proceedings are to be commenced by a writ, unless these rules provide that they are to be commenced by application: (a) for the recovery of a debt; (b) for the recovery of wages or other remuneration; (c) for the restitution or return of money paid; (d) for the assessment of a sum as the value of goods or services, including claims on a quantum meruit or quantum valebat; (e) proceedings based on a common count; (f) for the recovery of a sum due on a negotiable instrument; (g) for the return of goods or their value; (h) for the recovery of money due in respect of necessaries supplied; (i) for the enforcement of a bond; (j) for the enforcement of a contract, an indemnity or a guarantee; (k) for the specific performance of a contract; (l) for the recovery of rent or mesne profits; (m) for the recovery of land; (n) for the recovery of damages, however arising; (o) [Rule 88 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] for the declaration of a private right, including a right to ownership of personal property, except one to which rule 89(a) or rule 90(1)(a) applies; (p) [Rule 88 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] for the declaration of a public right, except one to which rule 89(a) or rule 90(1)(a) applies; (q) for the rectification of a deed or other instrument; (r) for the setting aside of a contract or a gift; (s) for the setting aside of a deed, conveyance, transfer or other instrument; (t) in the nature of an action of replevin; (u) for an injunction, except if it is sought as ancillary to relief claimed in an application; (v) for the enforcement of a statutory right if the statute creating the right specifies that the proceeding to enforce the right is to be by way of an action; (w) for other relief which, before the commencement of the Act, was sought by action commenced by – (i) writ or plaint and summons; or (ii) bill or information in the equity jurisdiction of the Court; or (iii) citation or otherwise in the ecclesiastical jurisdiction of the Court; (x) for the repeal, revocation, cancellation or vacation of any grant or charter granted or issued by the Crown or of any record; (y) [Rule 88 Amended by S.R. 2002, No. 80, Applied:10 Jul 2002] [Rule 88 Amended by S.R. 2009, No. 75, Applied:08 Jul 2009] against the Crown. (z) [Rule 88 Amended by S.R. 2002, No. 80, Applied:10 Jul 2002] [Rule 88 Amended by S.R. 2009, No. 75, Applied:08 Jul 2009] . . . . . . . . (za) [Rule 88 Amended by S.R. 2002, No. 80, Applied:10 Jul 2002] [Rule 88 Amended by S.R. 2009, No. 75, Applied:08 Jul 2009] . . . . . . . . 89Applications to CourtThe following classes of proceedings are to be commenced by application to the Court: (a) determination of a question of construction arising under a statute, regulation, letters patent, by-law or other written instrument of a public nature made by the Crown or a public or local authority and declaration of the rights of persons interested under that instrument; (b) application under the Trustee Act 1898, other than an application to which rule 90 applies; (c) [Rule 89 Amended by S.R. 2005, No. 125, Applied:09 Nov 2005] . . . . . . . . (d) a writ of attachment not by way of execution; (e) establishing documentary title to property; (f) compensation for land resumed or compulsorily acquired; (g) foreclosure or redemption of a mortgage; (h) discovery in order to claim other relief; (i) an account and payment of the balance found due, not being an account that any executor, administrator or trustee is bound to give; (j) administration of an estate or trust, including a charitable trust; (k) order for punishment for contempt, except where the person charged with the contempt has been taken into custody immediately and is before the Court; (l) [Rule 89 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] admission to the legal profession, except an application made in accordance with the mutual recognition principle enacted in Part 3 of the Mutual Recognition Act 1992 of the Commonwealth and adopted in this State by the Mutual Recognition (Tasmania) Act 1993; (m) [Rule 89 Amended by S.R. 2011, No. 26, Applied:20 Apr 2011] order for relief similar to certiorari at the instance of the Attorney-General ex officio; (n) [Rule 89 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 89 Amended by S.R. 2005, No. 125, Applied:09 Nov 2005] . . . . . . . . (o) application under section 6 of the Variation of Trusts Act 1994; (p) [Rule 89 Amended by S.R. 2009, No. 75, Applied:08 Jul 2009] application under the Wills Act 1992 or the Wills Act 2008, other than an application for authorisation to make or alter a will, or revoke the whole or any part of a will; (q) [Rule 89 Amended by S.R. 2002, No. 80, Applied:10 Jul 2002] [Rule 89 Amended by S.R. 2012, No. 90, Applied:17 Oct 2012] proceedings for a grant of probate or letters of administration where the only reason for seeking the grant in solemn form is the need to rely on section 26 of the Wills Act 1992 or section 10 of the Wills Act 2008; (r) [Rule 89 Amended by S.R. 2002, No. 80, Applied:10 Jul 2002] . . . . . . . . (s) proceedings which, by an enactment other than the Act, are directed to be begun by motion or petition, other than proceedings to which rule 90 applies; (t) [Rule 89 Amended by S.R. 2002, No. 22, Applied:17 Apr 2002] proceedings in any case in which an application is authorised to be made, and is made to a Full Court or a judge sitting in court as a Court; (u) [Rule 89 Amended by S.R. 2002, No. 22, Applied:17 Apr 2002] [Rule 89 Amended by S.R. 2012, No. 90, Applied:17 Oct 2012] application under the Judicial Review Act 2000, where the decision in relation to which the application is made was made following a public hearing; (v) [Rule 89 Amended by S.R. 2012, No. 90, Applied:17 Oct 2012] proceedings under the Vexatious Proceedings Act 2011, other than an application for leave to institute proceedings. 90Applications to judge in chambers [Rule 90 Amended by S.R. 2000, No. 105, Applied:26 Jul 2000] [Rule 90 Amended by S.R. 2002, No. 22, Applied:17 Apr 2002] [Rule 90 Substituted by S.R. 2003, No. 28, Applied:07 May 2003] (1) The following classes of proceedings are to be commenced by application to a judge in chambers: (a) determination of a question of construction arising under a deed, will or other written instrument, other than a question to which rule 89(a) applies, and declaration of the rights of persons interested under that instrument; (b) question affecting the rights or interests of a person claiming to be a creditor, devisee, legatee or one of the next-of-kin of a deceased person or otherwise beneficially interested in the property of a deceased person; (ba) [Rule 90 Subrule (1) amended by S.R. 2010, No. 158, Applied:01 Jan 2011] proceedings under the Intestacy Act 2010; (c) question affecting the rights or interests of a cestui que trust under a trust or a person beneficially interested in the property subject to a trust; (d) furnishing of any particular accounts by the executor, administrator or trustee and any vouching of those accounts; (e) payment into Court of any money or security in the hands of an executor, administrator or trustee; (f) directions to an executor, administrator or trustee to do, or abstain from doing, a particular act; (g) removal of a trustee; (h) appointment of a trustee in the place of a removed trustee or a direction that any remaining trustees may continue to act without an additional trustee; (i) determination of a question arising in the administration of any estate or trust, including a question whether or not any deed, will or other instrument creates a valid charitable trust or a valid gift to charity; (j) determination of a question arising in the execution or administration of a charitable trust or gift to charity created by a deed, will or other instrument; (k) appointment of a new trustee, with or without a vesting order or other consequential order; (l) vesting order or other order consequential on the appointment of a new trustee, whether the appointment is made by the Court or a judge or out of Court; (m) under section 6 of the Foreign Judgments Act 1991 of the Commonwealth for the registration of a judgment to which Part 2 of that Act applies; (n) [Rule 90 Subrule (1) amended by S.R. 2005, No. 125, Applied:09 Nov 2005] [Rule 90 Subrule (1) amended by S.R. 2012, No. 90, Applied:17 Oct 2012] under the Commercial Arbitration Act 2011; (o) [Rule 90 Subrule (1) amended by S.R. 2009, No. 75, Applied:08 Jul 2009] authorisation to make or alter a will, or revoke the whole or any part of a will, or leave to apply for such authorisation; (p) under section 13 of the Variation of Trusts Act 1994; (q) by a judgment creditor of a partner for an order under section 28 of the Partnership Act 1891 charging the interest of the partner in the partnership property and profits; (r) for a charging order; (s) [Rule 90 Subrule (1) amended by S.R. 2004, No. 56, Applied:21 Jul 2004] for an order under Part 2 of the Evidence on Commission Act 2001; (t) any application which is not required by the provisions of any enactment to be heard by, or made to, a Full Court or a judge sitting in court as a court; (u) with respect to the ascertainment of any class of creditors, legatees, devisees, next-of-kin or other persons; (v) for approval of a sale, purchase, compromise or other transaction; (w) with respect to the making of any inquiries or the taking of any accounts as on a decree of the Court directing the inquiries to be made or accounts to be taken, whether in relation to a case of wilful default or not; (x) vesting order or other consequential order if a judgment or an order has been given or made for the sale, conveyance or transfer of any land or stock or the suing for, or recovering of, a chose in action; (y) proceedings relating to a fund paid into Court; (z) [Rule 90 Subrule (1) amended by S.R. 2011, No. 26, Applied:20 Apr 2011] orders nisi for relief similar to certiorari, mandamus or prohibition; (za) [Rule 90 Subrule (1) amended by S.R. 2011, No. 26, Applied:20 Apr 2011] leave to exhibit an information in the nature of quo warranto; (zb) [Rule 90 Subrule (1) amended by S.R. 2011, No. 26, Applied:20 Apr 2011] relief similar to mandamus or quo warranto; (zc) general orders to show cause why any form of relief should not be granted; (zd) proceedings under the Settled Land Act 1884; (ze) extension of time in any matter or in respect of any contemplated proceeding; (zf) proceedings under the Testator’s Family Maintenance Act 1912; (zfa) [Rule 90 Subrule (1) amended by S.R. 2004, No. 56, Applied:21 Jul 2004] proceedings under the Relationships Act 2003; (zg) declaration of rights as between vendor and purchaser; (zh) sale or partition; (zi) dissolution of partnership; (zj) proceedings under section 171 of the Act; (zk) [Rule 90 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] requiring a practitioner to answer an affidavit; (zl) [Rule 90 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] striking a practitioner off the roll or to suspend, or otherwise discipline, a practitioner; (zm) disbarring, or otherwise disciplining, a barrister; (zn) [Rule 90 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] admission to the legal profession in accordance with the mutual recognition principle enacted in Part 3 of the Mutual Recognition Act 1992 of the Commonwealth and adopted in this State by the Mutual Recognition (Tasmania) Act 1993; (zo) proceedings which, by an enactment other than the Act, are directed to be commenced by summons or by application to the Court or a judge, other than proceedings to which paragraph (a) to paragraph (r), inclusive, of rule 89 apply; (zp) [Rule 90 Subrule (1) amended by S.R. 2012, No. 90, Applied:17 Oct 2012] application under the Judicial Review Act 2000, other than an application to which rule 89(u) applies; (zq) [Rule 90 Subrule (1) amended by S.R. 2012, No. 90, Applied:17 Oct 2012] application for leave to institute proceedings under section 11 of the Vexatious Proceedings Act 2011. (2) A proceeding before a judge sitting in Court as in Chambers is to be open to the public unless – (a) there is a legislative requirement that the matter be heard in private; or (b) the matter, or part of it, would be heard in private if it were being heard in Court; or (c) it is otherwise ordered by the judge. 91Habeas corpusProceedings for a writ of habeas corpus may be commenced by application to the Court or a judge in chambers. 92Multiple claims (1) A person wishing, in a single proceeding, to seek from the Court or a judge relief of more than one kind in respect of more than one matter, may claim all kinds of relief sought by – (a) writ, if, in respect of any relief sought, these rules require proceedings to be commenced by writ; or (b) application to the Court, if, in respect of any relief sought, these rules require proceedings to be commenced by application to the Court; or (c) application to a judge in chambers, in any other case. (2) The Court or a judge hearing any action or other proceeding in which relief of more than one kind is sought may order the separation of the claims. (3) The Court or a judge, on an application made in any action or other proceeding in which relief of more than one kind is sought, may order the separation of the claims. (4) Notwithstanding subrule (1), a person may claim any ancillary relief with the principal relief claimed. 93Certain judgments in open court [Rule 93 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] A judge who, on an application to which rule 90(1)(zk), (zl) or (zm) applies, determines to discipline the respondent is to adjourn the application into Court to give reasons and to make the necessary order. 94Directions as to matters to be dealt with in court (1) A majority of the judges may give general directions as to what proceedings and applications are to be heard by, or made to, a judge sitting in court. (2) A general direction – (a) is to be printed and a copy of it kept at every registry; and (b) is to be open to inspection at all reasonable times; and (c) rescinds an earlier general direction. (3) A general direction is not a rule of Court. (4) Notwithstanding a direction under subrule (1), a judge, subject to the Act and these rules, may hear in chambers any matter directed to be heard by, or made to, a judge sitting in court. 95Change of course of proceedings (1) At any time, the Court or a judge may – (a) order that – (i) an action change to proceed as if it had begun by application; or (ii) a proceeding begun by application change to proceed as an action; and (b) direct the taking, amending or ignoring of any procedural step in the proceeding required by that change; and (c) provide for the costs caused or occasioned by that change, including the cost of any thing no longer necessary or appropriate or any step rendered otiose. (2) The Court may direct an application before it to be continued in chambers. (3) A judge in chambers may direct an application to be continued before the Court. Division 4Originating process generally96Originating processA plaintiff or an applicant may lodge in any registry originating process for filing. 97Title and heading of causes and matters (1) An originating process filed in the Court is to – (a) be titled – (i) if it is not a probate action, "In the Supreme Court of Tasmania"; or (ii) if it is a probate action, "In the Supreme Court of Tasmania (Probate)"; and (b) state below the title – (i) the words "Hobart Registry", if the proceeding is to be commenced in the Principal Registry; or (ii) the name of the district followed by "Registry", if the proceeding is to be commenced in a district registry; and (c) state the file number assigned to it in the registry. (2) If a proceeding is transferred from one registry to another registry – (a) the name of the registry to which it is transferred is to be substituted for the name of the registry from which it is transferred; and (b) the file number of the proceeding assigned to it by the registry to which it is transferred is to be substituted for its former number. (3) In an action – (a) the person who commences the proceeding is to be called the plaintiff; and (b) the person against whom the action is commenced is to be called the defendant; and (c) after the title, the writ and any other process in the action is to be headed accordingly as being between the parties. (4) In an inter partes proceeding other than an action – (a) the person who commences the proceeding is to be called the applicant; and (b) the person against whom the proceeding is commenced is to be called the respondent; and (c) after the title, the originating application and any other process in the proceeding is to be headed accordingly as being between the parties. (5) In a proceeding which is not inter partes – (a) the person who commences the proceeding is to be called the applicant; and (b) after the title, the originating application and any other process in the proceeding is to be headed "In the Matter of" followed by a reference to the statutory provision, if any, under which the applicant’s claim arises and, if appropriate, "In the Matter of" followed by a short description of the estate, will, settlement, deed, instrument or thing or the name of the person to which or to whom the application relates. 98Appearing if served within jurisdictionThe period for entering an appearance limited by a writ or any other originating process which requires an appearance and which is served within the jurisdiction of the Court is 7 days after service. 99Appearing if served out of jurisdictionThe period for entering an appearance limited by a writ or any other originating process which requires an appearance and which is served outside the jurisdiction of the Court is – (a) 21 days after service, if the originating process is served in Australia; or (b) [Rule 99 Amended by S.R. 2012, No. 66, Applied:11 Oct 2013] [Rule 99 Amended by S.R. 2017, No. 101, Applied:20 Dec 2017] the time allowed under the Trans-Tasman Proceedings Act, if the originating process is served in New Zealand; or (ba) [Rule 99 Amended by S.R. 2012, No. 66, Applied:11 Oct 2013] [Rule 99 Amended by S.R. 2017, No. 101, Applied:20 Dec 2017] . . . . . . . . (c) [Rule 99 Amended by S.R. 2017, No. 101, Applied:20 Dec 2017] the time allowed under rule 147E, if the originating process is served in any other place. 100Address of defendant or respondentA writ or originating application is to state – (a) the address of the defendant or respondent, if it is known to the plaintiff or applicant; or (b) if it is not known, the fact that it is not known. 101Address of plaintiff or applicantA writ or originating application is to state – (a) the address of the plaintiff or applicant; and (b) [Rule 101 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] if it is lodged for filing by a practitioner or law practice, the name and address of the practitioner or law practice. 102Concurrent writ or originating application (1) If the period limited for entering an appearance is to be altered or a different period is required in respect of a different defendant or respondent, the plaintiff or applicant may have sealed as many concurrent writs or concurrent originating applications as he or she requires. (2) A concurrent writ or concurrent originating application is to – (a) show the same day of filing as the original process; and (b) be in the same form as the original process except for the time limited for entering an appearance; and (c) be in force only for the period during which the original process is in force. 103Declaratory judgment (1) A proceeding is not open to objection only on the ground that it seeks a merely declaratory judgment or order. (2) The Court may make a binding declaration of right, whether or not any consequential relief is, or may be, claimed. (3) A person claiming to be interested under a deed, will or other written instrument may apply, by originating application, to a judge in chambers for – (a) the determination of any question of construction arising under the instrument; and (b) a declaration of the rights of the persons interested. (4) If a judge considers that any question on an application under subrule (3) ought not to be determined on an originating application, the judge – (a) is not bound to determine the question; and (b) may exercise the powers conferred by rule 95. Division 5Writs104Form of writA writ is to be in accordance with the prescribed form. 105Issue of writA writ is issued when it is filed and sealed. 106Filing of writsIf a writ is filed, the officer receiving it is to – (a) make an entry of the writ in the register of proceedings; and (b) in that entry, distinguish the action to which the writ relates by the year, a number and the name of the registry out of which the writ has been issued; and (c) insert that year and number on each sealed copy of the writ. 107Duration of writ (1) [Rule 107 Subrule (1) substituted by S.R. 2006, No. 25, Applied:01 May 2006] An original writ is in force for – (a) if it is issued before 1 May 2006, 12 months commencing on, and including, the date of issue; and (b) if it is issued on or after 1 May 2006, 6 months commencing on, and including, the date of issue. (2) [Rule 107 Subrule (2) amended by S.R. 2006, No. 25, Applied:01 May 2006] On the application of the plaintiff made whilst a writ is in force, the Court or a judge may order that the original writ and any concurrent writ be renewed for such period as the Court or judge thinks fit if a defendant named in the writ has not been served. (3) [Rule 107 Subrule (3) amended by S.R. 2006, No. 25, Applied:01 May 2006] The period for which the writ is renewed commences on, and includes, the date of the order. (4) If a writ is renewed, the registrar is to – (a) make a copy of the original writ filed in the Court; and (b) impress that copy with a seal bearing the word "renewed" and the date of the renewal; and (c) deliver the copy to the plaintiff; and (d) make a note of the renewal on the file of the action. (5) The production of a renewed writ marked in accordance with subrule (4) is sufficient evidence of – (a) the renewal; and (b) the commencement of the action as of the date on which the original writ was filed. (6) A renewed writ is in force from the date of issue of the original writ. Division 6Endorsement of claim on writ108Endorsements (1) Before a writ is issued, it is to be endorsed – (a) in the case of a claim for a debt or liquidated demand with a statement – (i) of the amount claimed for the debt or liquidated demand and costs; and (ii) of brief particulars of the debt or liquidated demand; and (iii) stating that the action will be at an end, except in respect of the recovery of land, on payment of the amount claimed in respect of the debt and costs or liquidated demand and costs, within the period limited for appearance; or (b) in any other case, with a statement of claim or a concise statement of the nature of the claim made and the relief or remedy sought in the action begun by the writ. (2) The amount claimed for the costs in an action under subrule (1)(a) is to be in accordance with the Table in Part 3 in Schedule 1. (3) If the plaintiff includes a claim for the recovery of land, the capital value of the land, if stated in the endorsement on the writ, is part of the amount of the claim for the purpose of the Table in Part 3 in Schedule 1. 109Insufficient endorsement (1) The Court or a judge, on the application of a defendant, may set aside a writ which has an endorsement of claim if the endorsement does not contain a statement sufficient to give notice of – (a) the nature of the claim; and (b) the remedy or relief sought in the action. (2) An application is to be made before filing an appearance. (3) On the hearing of the application, the Court or judge may order – (a) that the writ be amended; or (b) that the plaintiff deliver particulars of the claim to the defendant. 110Claim of general relief not necessaryAn endorsement of claim need not include a claim for general or other relief but that relief may be granted to the same extent as if it had been claimed in the endorsement. 111Representative capacityIf a plaintiff sues, or a defendant is sued, in a representative capacity, the endorsement of claim is to show the relevant capacity. 112Claim for possession of landIf a plaintiff claims the recovery of possession of land, the endorsement of claim is to state the capital value of that land. 113Claim in detinueIf a plaintiff makes a claim in detinue, the endorsement of claim is to state the value of all goods of which possession is sought, whether or not the plaintiff claims to recover their value. 114Claim for accountIf a plaintiff in the first instance wants to have an account taken, the endorsement of claim is to state that fact. 115Claim in defamationIf a plaintiff sues for defamation, the endorsement of claim is to state sufficient particulars to identify each publication in respect of which the action is brought. 116Claim for unliquidated damages [Rule 116 Amended by S.R. 2009, No. 74, Applied:15 Jul 2009] If a plaintiff claims unliquidated damages, the amount claimed as damages is only stated in the endorsement of claim if that amount does not exceed $50 000. 117Alteration of claim without amendment of writWhenever a statement of claim is delivered, the plaintiff, in that statement of claim, may alter the claim against any defendant who has appeared, without amending the endorsement of the writ. Division 7Originating applications118Form of originating application (1) An originating application is to be in accordance with the prescribed form. (2) [Rule 118 Subrule (2) omitted by S.R. 2001, No. 100, Applied:12 Sep 2001] . . . . . . . . 119Commencement of originating applicationAn originating application is commenced when it is filed and sealed. 120Application for attachment or to strike off (1) An originating application for attachment or for an order that a practitioner or a barrister be struck off is to state, in general terms, the grounds of the application. (2) A copy of any affidavit intended to be used by the applicant is to be served with the application. 121Notice of oral evidenceNotice of any intention to adduce oral evidence on the hearing of an originating application is to be endorsed on, or served with, the application. 122Service of originating applicationIf the Court or a judge orders that an originating application not intended to be served be served, the copy which is served is to be endorsed with a notice in accordance with the prescribed form, signed by the registrar. 123Time for service (1) An originating application which requires an appearance and is served within the State is to be served at least 9 clear days before the hearing date. (2) An originating application which does not require an appearance and is served within the State is to be served at least 2 clear days before the hearing date. (3) An originating application which is served outside the State is to be served the number of days before the hearing date that is 2 days more than the period limited for the entry of an appearance under rule 99 in respect of the place at which the application is served. 124Amendment of notice of hearingIf an originating application which is to be served within the State has not been served as required by rule 123(1), the registrar may make an endorsement on the original and each sealed copy of the application appointing a new time, date and place for the parties to attend for the hearing of the application. 125AppearanceUnless the Court or a judge otherwise orders, a party to an originating application which requires the entry of an appearance is not to be heard on the application before that party has entered an appearance. 126Applications as to purchase money (1) In the case of an application for an order directing that the purchase money of any property sold be paid into Court, a person who claims to be entitled to that money is to make and file an affidavit in accordance with subrule (2). (2) An affidavit is to – (a) verify the title of the claimant; and (b) state – (i) that the claimant is not aware of any right on the part of, or any claim made by, any other person to any part of the money claimed; or (ii) if the claimant is aware of such a right or claim, particulars of that right or claim and the relevant facts concerning it. Division 8Practitioners and address for service127Declaration of authority of originating process (1) A practitioner whose name is endorsed on any originating process, on demand in writing made by or on behalf of any person who has been served with the process or has appeared to it, is to declare in writing whether the process has been issued by, or with the authority of, that practitioner. (2) If a practitioner declares that an originating process was not so issued – (a) all proceedings relating to the process are to be stayed; and (b) further proceedings are not to be taken without leave of the Court or a judge. (3) If a practitioner declares that an originating process was so issued, the Court or a judge, on the application of a defendant or respondent, may order that the practitioner declare in writing, within a specified period, the profession, occupation and place of abode of the plaintiff or applicant. 128Address for service [Rule 128 Substituted by S.R. 2003, No. 139, Applied:26 Nov 2003] (1) If a plaintiff or applicant sues by practitioner, the plaintiff’s or applicant’s address for service is – (a) the business address of the practitioner endorsed on the originating process; or (b) if the practitioner acts through an agent, the business address of the agent. (2) If a plaintiff or applicant sues in person, the plaintiff’s or applicant’s address for service is the plaintiff’s or applicant’s address in Tasmania endorsed on the originating process. (3) If a defendant, respondent or other person who enters an appearance appears by practitioner, the person’s address for service is – (a) the business address of the practitioner stated in the notice of appearance; or (b) if the practitioner acts through an agent, the business address of the agent. (4) If a defendant, respondent or other person who enters an appearance appears in person, the person’s address for service is the person’s address in Tasmania stated on the notice of appearance. (5) A person’s address for service under this rule must be an address – (a) at which documents may be left for the person during ordinary business hours; and (b) to which documents may be posted to the person. (6) Notwithstanding this rule, an address for service specified in accordance with section 18(1) of the Service and Execution of Process Act 1992 of the Commonwealth is a sufficient address for service. 128AFictitious address [Rule 128A Inserted by S.R. 2003, No. 139, Applied:26 Nov 2003] (1) If satisfied that an address for service of a person is illusory, fictitious or in some other way not genuine or appropriate, the Court or a judge may make any order that is appropriate to deal with the situation. (2) Without limiting the generality of subrule (1), the Court or judge may make one or more of the following orders under that subrule: (a) an order setting aside a notice of appearance; (b) an order providing for service of documents; (c) an order dispensing with service. (3) If a notice of appearance is set aside under subrule (1) then, unless it is ordered otherwise, a document may be served on the person who filed the notice of appearance by filing the document in the registry. 129Change of practitioner or address for service (1) A party to a proceeding, by filing a notice in the registry, may – (a) change his or her practitioner; or (b) change the practitioner acting as the agent for the party’s practitioner; or (c) if acting in person, appoint a practitioner; or (d) discharge his or her practitioner and act in person; or (e) change the address for service to another address which complies with rule 128. (2) A notice takes effect when it is filed and a copy of it is served on each other party. (3) A notice is to be in accordance with the prescribed form. 130Name of practitioner taken off record (1) A practitioner may have his or her name taken off the record as practitioner for a client in a proceeding on filing and serving on each other party – (a) a notice in accordance with the prescribed form; and (b) an affidavit stating that the client has been given at least 7 days’ notice of the intention of the practitioner to file the notice. (2) Notice for the purpose of subrule (1)(b) is to be – (a) in accordance with the prescribed form; and (b) served personally on the client. (3) If a practitioner is unable to effect prompt personal service of the notice on the client, the Court or judge may make any order for substituted service as is just. (4) After a practitioner has ceased to act for a party and until some other practitioner has commenced to act for that party, the party is taken to be acting in person. 131Applications between client and practitioner (1) A client or former client of a practitioner may apply to the Court or a judge for an order against the practitioner for the delivery of a cash account, the payment of money or the delivery of securities. (2) On hearing an application, the Court or a judge may – (a) order the practitioner to deliver to the applicant a list of the money or securities in the custody or control of the practitioner on behalf of the applicant; or (b) order the practitioner to bring into Court the whole or any part of that money or those securities; or (c) in the event that the practitioner asserts a claim for costs, make any provision for the payment or security of those costs or the protection of any practitioner’s lien, as may be appropriate. Division 9Service132Personal serviceIf a document is to be served personally, it is sufficient to serve – (a) the original of the document; or (b) a sealed copy of the document; or (c) any copy of the document, at the same time showing the person the original. 133Originating process to be served personallyUnless otherwise provided for, any originating process is to be served personally. 134Service on practitionersAn originating process may be served on the practitioner for a party if the practitioner undertakes in writing to accept service on behalf of the party. 135Effecting personal servicePersonal service of a document may be effected by – (a) delivering the document to, and leaving it with, the person to be served; or (b) offering to deliver the document to, and leave it with, that person. 136Service on persons under disability (1) If a person under disability is a party to a proceeding, service may be effected on any of the following persons: (a) if a person is authorised under the Guardianship and Administration Act 1995 to conduct in the name and on behalf of the person under disability the proceedings in connection with which the service is required to be made, the person so authorised; (b) if no person is so authorised and the person under disability is an infant, a parent or guardian or, if the infant has no parent or guardian, the person with whom the infant resides or who has the care of the infant; (c) in any other case, the person with whom the person under disability resides or who has the care of the person under disability. (2) Notwithstanding subrule (1), the Court or a judge may order – (a) that service made, or to be made, personally on a person under disability is good service; or (b) that service be made personally on a person under disability if the person is not an infant. 137Service on corporationsIn the absence of any statutory provisions regulating service of process on corporations, an originating process to be served on a corporation, whether or not incorporated under the laws of the State, may be served on the mayor, president or other head officer, or general manager, treasurer, manager or secretary of the corporation. 138Service on unincorporated bodiesAn originating process to be served on the persons who constitute an unincorporated body, other than a partnership, may be served on the president, chairman, other presiding officer, secretary or treasurer of the body or on any other officer holding a similar office. 139Service on agents (1) An originating process arising out of a contract entered into within the State by or through an agent residing or carrying on business within the State on behalf of a principal residing or carrying on business out of the State may, with the leave of the Court or a judge, be served on the agent. (2) Leave of the Court or a judge under subrule (1) is to be given before the determination of the agent’s authority or business relationship with the principal. (3) The plaintiff is to send a copy of the order and the originating process by certified post to the defendant or respondent at the defendant’s or respondent’s address out of the State. 140Recovery of landService of any originating process seeking the recovery of land may be made by affixing a sealed copy of the process to a conspicuous part of the land, if – (a) no person appears to be in possession of the land; and (b) service cannot otherwise be effected. 141Substituted service (1) If it appears to the Court or a judge that a party is unable to effect prompt personal service or service in any other prescribed manner, the Court or judge may make an order for substituted service by advertisement or otherwise as is just. (2) Substituted service has the same effect as personal service or service in the relevant prescribed manner. 142Service of judgments and orders (1) A judgment or order may not be enforced by attachment unless it has been served personally on the person against whom attachment is sought. (2) It is not necessary to effect personal service of a judgment or order or to show the original of the judgment or order except – (a) as provided by subrule (1); or (b) on demand by the party served. 143Affidavits of serviceAn affidavit of service is to state – (a) the name of the person who effected service; and (b) the date, time and place of service; and (c) the manner in which service was effected. 144Manner and time of service when not personal [Rule 144 Substituted by S.R. 2003, No. 139, Applied:26 Nov 2003] [Rule 144 Subrule (7) omitted by S.R. 2013, No. 70, Applied:25 Sep 2013] [Rule 144 Substituted by S.R. 2015, No. 99, Applied:06 Jan 2016] (1) A document which is not required to be served personally is sufficiently served on a person if it is – (a) left at the person’s address for service on a day on which the registry in which the cause or matter is proceeding is open; or (b) posted to the person at the person’s address for service; or (c) communicated to the person using a postal address, document exchange address, email address or facsimile number given by the person pursuant to rule 79. (2) If a document is required by these rules to be delivered to a person, it is sufficient if it is served in accordance with subrule (1). (3) A document is taken to be served or delivered – (a) if sent by post, at the time when the document would be delivered in the ordinary course of post; or (b) if communicated using a document exchange address, on the first day that the registry in which the cause or matter is proceeding is open following the day of delivery to the document exchange; or (c) if communicated using an email address or facsimile number – (i) at the time of communication if the communication occurs during the hours specified in rule 20(1) (office hours); or (ii) at the commencement of office hours following the time of communication if the communication occurs outside office hours. (4) A document served or delivered by email or facsimile transmission is to be accompanied by a document stating each of the following: (a) the name of the person transmitting the document; (b) the name of the person to whom the document is being transmitted; (c) a brief description of the document being transmitted; (d) the date and time of transmission; (e) that the document is being served or delivered pursuant to this rule. 145Service of notices from Court [Rule 145 Substituted by S.R. 2015, No. 99, Applied:06 Jan 2016] A notice given by an officer of the Court – (a) may be sent by post or transmitted by email; and (b) if sent by post, is taken to be given at the time when it would be delivered in the ordinary course of post. 146Service if no appearance or no address for serviceService of a document not required to be served personally on a party may be effected by filing the document in the registry if the party has made default in appearing or does not have an address for service in accordance with these rules. 146ANotice of serving by filing [Rule 146A Inserted by S.R. 2003, No. 139, Applied:26 Nov 2003] A person who serves a document by filing it in the registry must endorse on it – (a) a statement that the document is filed as service; and (b) the name of the person upon whom it is served. 146BConfirmation of informal service [Rule 146B Inserted by S.R. 2003, No. 139, Applied:26 Nov 2003] If for any reason a document required to be served on a person is not served on the person in the manner required by these rules but the document comes to the person’s notice, the document is nevertheless taken to have been served on the person on the day on which it came to the person’s notice. Division 10Service of originating process outside Australia146CInterpretation of Division 10 [Rule 146C Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] In this Division – originating process includes a document that initiates a civil proceeding, a cross-claim or a third party claim. 147Application of rules [Rule 147 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 147 Substituted by S.R. 2009, No. 52, Applied:01 Nov 2010] (1) [Rule 147 Subrule (1) amended by S.R. 2017, No. 101, Applied:20 Dec 2017] Rules 147A, 147B, 147C, 147D, 147E, 147F, 147G and 147H apply to the service of originating process outside Australia. (2) Rules 148, 149, 150, 151, 152 and 153 apply to the service of any document for the purpose of a proceeding in the Court – (a) in a Convention country; or (b) in any other country, other than a Hague Convention country, that the Attorney-General, by instrument filed in the proceeding, specifies. (3) [Rule 147 Subrule (3) inserted by S.R. 2012, No. 66, Applied:11 Oct 2013] This Division does not apply to proceedings to which Part 2 of the Trans-Tasman Proceedings Act applies. 147AService outside of Australia – when allowed without leave [Rule 147A Inserted by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 147A Substituted by S.R. 2017, No. 101, Applied:20 Dec 2017] An originating process may be served without leave in the following cases: (a) when the claim is founded on a tortious act or omission – (i) which was done, or which occurred, wholly or partly in Australia; or (ii) in respect of which the damage was sustained wholly or partly in Australia; (b) when the claim is for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or other relief in respect of a breach of, a contract which – (i) was made or entered into in Australia; or (ii) was made by or through an agent trading or residing within Australia; or (iii) was to be wholly or in part performed in Australia; or (iv) was by its terms or by implication to be governed by Australian law or to be enforceable or cognizable in an Australian court; (c) when the claim is in respect of a breach in Australia of any contract, wherever made, whether or not that breach was preceded or accompanied by a breach outside of Australia that rendered impossible the performance of that part of the contract that ought to have been performed in Australia; (d) when the claim – (i) is for an injunction to compel or restrain the performance of any act in Australia; or (ii) is for interim or ancillary relief in respect of any matter or thing in or connected with Australia, where such relief is sought in relation to judicial or arbitral proceedings commenced or to be commenced, or an arbitration agreement made, in or outside of Australia (including, without limitation, interim or ancillary relief in relation to any proceedings under the International Arbitration Act 1974 of the Commonwealth or the Commercial Arbitration Act 2011 ); or (iii) without limiting subparagraph (ii), is an application for a freezing order under rule 937B, or an ancillary order under rule 937C, in respect of any matter or thing in or connected with Australia; (e) when the subject matter of the claim is land or other property situated in Australia, or any act, deed, will, instrument or thing affecting such land or property, or the proceeding is for the perpetuation of testimony relating to such land or property; (f) when the claim relates to the carrying out or discharge of the trusts of any written instrument of which the person to be served is a trustee and which ought to be carried out or discharged according to Australian law; (g) when any relief is sought against any person domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not); (h) when any person outside of Australia is – (i) a necessary or proper party to a proceeding properly brought against another person who has been served or is to be served (whether within Australia or outside of Australia) under any other provision of these Rules of Court; or (ii) a defendant to a claim for contribution or indemnity in respect of a liability enforceable by a proceeding in the Court; (i) when the claim is for the administration of the estate of any deceased person who at the time of his or her death was domiciled in Australia or is for any relief or remedy which might be obtained in any such proceeding; (j) when the claim arises under an Australian enactment and – (i) any act or omission to which the claim relates was done or occurred in Australia; or (ii) any loss or damage to which the claim relates was sustained in Australia; or (iii) the enactment applies expressly or by implication to an act or omission that was done or occurred outside of Australia in the circumstances alleged; or (iv) the enactment expressly or by implication confers jurisdiction on the Court over persons outside of Australia (in which case any requirements of the enactment relating to service must be complied with); (k) when the person to be served has submitted to the jurisdiction of the Court; (l) when a claim is made for restitution or for the remedy of constructive trust and the alleged liability of the person to be served arises out of an act or omission that was done or occurred wholly or partly in Australia; (m) when it is sought to recognise or enforce any judgment; (n) when the claim is founded on a cause of action arising in Australia; (o) when the claim affects the person to be served in respect of his or her membership of a corporation incorporated in Australia, or of a partnership or association that has been formed, or is carrying on any part of its affairs, in Australia; (p) when the claim concerns the construction, effect or enforcement of an Australian enactment; (q) when the claim – (i) relates to an arbitration held in Australia or governed by Australian law; or (ii) is to enforce in Australia an arbitral award wherever made; or (iii) is for orders necessary or convenient for carrying into effect in Australia the whole or any part of an arbitral award wherever made; (r) when the claim is for relief relating to the custody, guardianship, protection or welfare of a minor present in Australia or who is domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not); (s) when the claim, so far as concerns the person to be served, falls partly within one or more of the above paragraphs and, as to the residue, within one or more of the others of the above paragraphs. 147BService outside of Australia – when allowed with leave [Rule 147B Inserted by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 147B Substituted by S.R. 2017, No. 101, Applied:20 Dec 2017] (1) In any proceeding when service is not allowed under rule 147A, an originating process may be served outside of Australia with the leave of the Court. (2) An application for leave under this rule must be made on notice to every party other than the person intended to be served. (3) A sealed copy of every order made under this rule must be served with the document to which it relates. (4) An application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the Court assuming jurisdiction, including the place or country in which the person to be served is located or possibly may be found, and whether or not the person to be served is an Australian citizen. (5) The Court may grant an application for leave under this rule if satisfied that – (a) the claim has a real and substantial connection with Australia; and (b) Australia is an appropriate forum for the proceeding; and (c) in all the circumstances, the Court should assume jurisdiction. 147CCourt's discretion whether to assume jurisdiction [Rule 147C Inserted by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 147C Substituted by S.R. 2017, No. 101, Applied:20 Dec 2017] (1) On application by a person on whom an originating process has been served outside of Australia, the Court may dismiss or stay the proceeding or set aside service of the originating process. (2) Without limiting subrule (1), the Court may make an order under this rule if satisfied – (a) that service of the originating process is not authorised by these rules; or (b) that the Court is an inappropriate forum for the trial of the proceeding; or (c) that the claim has insufficient prospects of success to warrant putting the person who has been served outside of Australia to the time, expense and trouble of defending the claim. 147DNotice to person served outside of Australia [Rule 147D Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] If a person is to be served outside of Australia with an originating process, the person must also be served with a notice, in accordance with the prescribed form, informing the person of – (a) the scope of the jurisdiction of the Court in respect of claims against persons who are served outside of Australia; and (b) the grounds alleged by the plaintiff to found jurisdiction; and (c) the person’s right to challenge service of the originating process or the jurisdiction of the Court, or to file a conditional appearance. 147ETime for filing appearance [Rule 147E Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] Except when the Court otherwise orders, a person who has been served outside of Australia must file an appearance within 42 days from the date of service. 147FLeave to proceed where no appearance by person [Rule 147F Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] (1) If an originating process is served on a person outside of Australia and the person does not file an appearance, the party serving the document may not proceed against the person who has been served except by leave of the Court. (2) An application for leave under subrule (1) may be made without serving notice of the application on the person who has been served with the originating process. 147GService of other documents outside of Australia [Rule 147G Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] Any document other than an originating process may be served outside of Australia with the leave of the Court, which may be given with any directions that the Court thinks fit. 147HMode of service [Rule 147H Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] A document to be served outside of Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected. 148Lodgment of documents (1) In this Division, applicant means a person requiring a document to be served in another country. (2) An applicant is to – (a) lodge with the Principal Registrar – (i) the document to be served; and (ii) unless English is an official language of the country concerned, a translation of the document in accordance with rule 149; and (iii) a copy of the document and of any translation; and (iv) any further copies of the document and of the translation the Principal Registrar directs; and (v) if any special manner of service is required, a request for service in that manner and, unless English is an official language of the country concerned, a translation of the request; and (b) file – (i) a copy of each of the documents referred to in paragraph (a); and (ii) a request and undertaking in accordance with rule 150. 149TranslationsA translation of a document lodged under rule 148(2)(a)(ii) is to – (a) be a translation into an official language of the country in which service is required; and (b) bear a certificate of the translator in that language stating that it is an accurate translation of the document. 150Request and undertaking (1) A request and undertaking filed under rule 148(2)(b)(ii) is to contain – (a) a request by the applicant that a sealed copy of the document to be served be transmitted to the country concerned for service on a specified person; and (b) if the applicant requires service under a Convention, a reference to that Convention; and (c) an undertaking by the practitioner for the applicant or, if there is no practitioner, by the applicant, to pay to the Principal Registrar an amount equal to the expenses incurred because of the request for service. (2) The Principal Registrar may require the applicant or the practitioner for the applicant to give security to the satisfaction of the Principal Registrar for the expenses referred to in subrule (1)(c). 151Procedure on lodgment (1) If a document is lodged and filed in accordance with rule 148(2), the Principal Registrar is to seal the document and send it to the Attorney-General for transmission for service together with any letter of request. (2) A letter of request is to be in accordance with the prescribed form. 152Evidence of serviceA certificate purporting to be a certificate of a judicial authority or other responsible person in the relevant country or of an Australian consular authority in that country as to service, attempted service or non-service which is filed is evidence of the matters stated in the certificate. 153Order for payment of expenses of serviceIf a person files an undertaking under rule 148(2)(b)(ii) and within 14 days after delivery to that person of an account of expenses incurred because of the request for service does not pay to the Principal Registrar the amount of the expenses, the Court or a judge, on application by the Principal Registrar, may – (a) order the person to pay the amount of the expenses to the Principal Registrar; and (b) stay the proceedings, so far as concerns the whole or any part of any claim for relief by the person, until payment. Division 11Appearance154Appearance generally (1) If a person served with a writ or originating application wishes to take part in the proceedings, the person, within the period limited on the writ or application, is to – (a) file a notice of appearance in a registry; and (b) serve the notice in accordance with rule 157. (2) A respondent is not required to file a notice of appearance to an originating application – (a) under Part 11 of the Legal Profession Act 1993; or (b) [Rule 154 Subrule (2) amended by S.R. 2012, No. 90, Applied:17 Oct 2012] under the Commercial Arbitration Act 2011; or (c) for interpleader relief under Division 16; or (d) for rectification of the register under section 32 of the Bills of Sale Act 1900; or (e) for satisfaction of a registered bill of sale to be registered under the Bills of Sale Act 1900; or (f) under section 8 of the Married Women’s Property Act 1935; or (g) [Rule 154 Subrule (2) amended by S.R. 2004, No. 56, Applied:21 Jul 2004] under rule 90(1)(zk), (zl) or (zm); or (h) for registration of a judgment under Part X of the Supreme Court Civil Procedure Act 1932. (3) A notice of appearance is to be in accordance with the prescribed form. 155Filing of notice of appearanceA notice of appearance may be lodged for filing in any registry of the Court. 156Filing of notice of appearance in different registry (1) If a person lodges a notice of appearance at a registry other than that in which the proceeding is pending, the registrar of that other registry, before accepting it, is to – (a) communicate with the registry in which the proceeding is pending to ensure that it may be filed; and (b) if it may be, inform the registry of the time, date and place of its lodgment. (2) The registry in which the proceeding is pending is to note the information in the register of proceedings and the relevant file. (3) A notice of appearance, if accepted, is taken to be filed when lodged, but it is to be transferred to the other registry and filed there, subject to rule 158. 157Duplicate notice of appearance (1) A duplicate notice of appearance is to be lodged with a notice of appearance. (2) The registrar is to – (a) seal the duplicate with the office seal, showing the date on which it is sealed; and (b) return it to the person lodging it. (3) The sealed duplicate notice is a certificate that the notice of which it is a duplicate was filed on the day indicated by the seal. (4) As soon as practicable after filing a notice of appearance, a party is to serve the sealed duplicate notice on the plaintiff’s or applicant’s practitioner or on the plaintiff or applicant if acting in person. (5) Service is to be – (a) at the address for service given in the writ or originating application; or (b) by prepaid post directed to that address. 158Transfers of action to other registry (1) The Court or a judge may order that a proceeding be transferred from one registry to another registry. (2) If a proceeding is transferred to another registry, any document filed is to be transferred to that registry. 159Addresses in notice of appearanceA notice of appearance is to state – (a) [Rule 159 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] if the defendant or respondent is appearing by a practitioner, the name and address of the practitioner or law practice; or (b) if the defendant or respondent is not appearing by a practitioner – (i) the address of the defendant or respondent; and (ii) [Rule 159 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] an address for service in accordance with rule 128. 160No address [Rule 160 Substituted by S.R. 2003, No. 139, Applied:26 Nov 2003] A notice of appearance which does not contain an address required by rule 159 is not to be filed. 161Entry in register of proceedingsOn receiving a notice of appearance, an officer is to enter the appearance in the register of proceedings as soon as possible. 162Several defendantsIf 2 or more defendants or respondents in the same proceeding appear at the same time by the same practitioner, the names of all of those defendants or respondents are to be inserted in one notice of appearance. 163Appearance not entered on undertakingA practitioner is liable to attachment if he or she – (a) gives a written undertaking to accept service of any originating process, other than process in which the defendant or respondent is not required to appear; and (b) is served with the originating process; and (c) does not cause to be filed and served a notice of appearance within the period limited by the originating process. 164Late appearance (1) A defendant or respondent may file a notice of appearance at any time before judgment or final order. (2) If a notice of appearance is filed after the period limited in the writ or originating application, the defendant or respondent is not entitled to any further period for delivering a defence or taking any other step than if the notice of appearance had been filed within that period, unless the Court or a judge otherwise orders. 165Person not named may defend for land (1) By leave of the Court or a judge, a person not named as a defendant in a writ for the recovery of land may enter an appearance on filing an affidavit showing that the person is in possession of the land, either personally or by tenant. (2) An appearance by a person as landlord only is to state that it is entered in that capacity. (3) A notice of appearance under subrule (1) is to be filed and served on each party to the action. (4) A person appearing is to be named as an additional defendant in all subsequent proceedings. (5) The Court or a judge may strike out or confine an appearance by a person not in possession, either personally or by tenant, of the land of which recovery is sought. 166Limitation of defence in action for recovery of land (1) A person who appears in an action for the recovery of land may limit the defence of the action to a part of the land mentioned in the writ. (2) A limitation is to be – (a) by notice endorsed on the notice of appearance; or (b) served within 4 days after the filing of the notice of appearance. 167Setting aside service before appearanceOn the application of a person who has not lodged a notice of appearance, the Court or a judge may make an order setting aside the service on that person of the writ or originating application. 168Conditional appearance (1) A defendant or respondent in any originating proceeding may file and serve a notice of conditional appearance by which the defendant or respondent – (a) denies the jurisdiction of the Court; or (b) reserves the right to apply for an order setting aside the originating process or its service, on the ground of any informality or irregularity which renders the originating process or its service invalid. (2) A conditional appearance is to be in accordance with the prescribed form. (3) A defendant or respondent does not submit to the jurisdiction of the Court by a conditional appearance, except as to the costs occasioned by – (a) the filing and service of the notice of conditional appearance; or (b) by any application under this rule. (4) On filing a conditional appearance, a defendant or respondent may apply to the Court or a judge for an order to set aside the originating process or its service. (5) Unless the Court or a judge otherwise orders, a notice of conditional appearance becomes, and operates as, an unconditional notice of appearance if an application under subrule (4) – (a) is not made within 14 days after filing the notice; or (b) is dismissed. Division 12Joinder of claims and parties and adding and deleting parties169Joining causes of actionA plaintiff or an applicant may join several causes of action in the same proceeding. 170Claims for the recovery of land (1) In a proceeding for the recovery of land, other than one to which subrule (3) applies, no other cause of action may be joined without the leave of the Court or a judge. (2) Subrule (1) does not apply to a claim – (a) in respect of mesne profits, arrears of rent or double value in respect of the land; or (b) for damages for breach of a contract under which the land is held; or (c) for a wrongful act occasioning injury to the land. (3) An applicant for foreclosure or redemption may claim and obtain an order against the respondent for delivery of possession of the mortgaged property to the applicant on or after the order absolute for foreclosure or redemption. (4) If an applicant for redemption of a mortgage fails to redeem and because of that failure the mortgage is foreclosed, the Court or a judge, on an application made in the redemption application by the respondent in whose favour the foreclosure has taken place, may make an order for delivery of possession of the mortgaged property to the respondent. 171Claims by trustee in bankruptcyA claim by a trustee in bankruptcy acting in that capacity may not be joined with any claim by the trustee in any other capacity except with the leave of the Court or a judge. 172Claims by or against spousesA claim by or against spouses may be joined with a claim by or against one of them separately. 173Claims by or against trustees and personal representativesA claim by or against a personal representative may not be joined with another claim by or against that personal representative personally unless that other claim is alleged to arise with reference to the estate to which the proceedings relate. 174Joint and separate claimsA claim by plaintiffs or applicants jointly may be joined with a claim by one of them separately against the defendant or respondent. 175Counterclaim in case of misjoinderIf in a proceeding a person has been improperly or unnecessarily joined as a plaintiff or applicant and a defendant or respondent has set up a counterclaim, set-off or cross-application, the counterclaim, set-off or cross-application is not defeated by reason of the misjoinder. 176Joinder of defendants (1) If a plaintiff or applicant claims to be entitled to relief in respect of, or arising out of, a transaction, a set of circumstances or a series of transactions involving a question of law or fact common to 2 or more persons – (a) those persons may be joined as defendants against whom relief is claimed jointly, severally or in the alternative; and (b) those persons may be so joined notwithstanding that the joinder involves the joinder of different causes of action. (2) The Court or a judge may in any case order the name of any person joined under subrule (1) to be struck out of the proceedings. 177Joining parties jointly and severally liableA plaintiff may join as defendants to the same action all or any of the persons severally, or jointly and severally, liable on one contract, bill of exchange or promissory note. 178Joining defendants in cases of doubtA plaintiff or applicant who is in doubt as to from whom he or she is entitled to redress or against whom he or she is entitled to relief may join as defendants or respondents all persons from whom he or she might be entitled to redress or entitled to relief. 179Persons claiming jointly, severally or in the alternative may be plaintiffs (1) All persons claiming to have any right to relief in respect of, or arising out of, a transaction, set of circumstances or series of transactions, whether jointly, severally or in the alternative, may be joined in one action or proceeding as plaintiffs or applicants if a common question of law or fact would arise if those persons brought separate proceedings. (2) Persons may be joined under subrule (1) notwithstanding that the joinder involves a joinder of different causes of action. (3) If it appears that a joinder under subrule (1) may delay the trial of the proceeding or that separate and distinct questions arise, the Court or a judge may – (a) order that separate pleadings be filed and delivered; or (b) order that separate trials be held; or (c) make any other order as may be expedient. (4) The Court or a judge may give judgment or make an order in favour of any one or more of the plaintiffs or applicants entitled to relief for any relief to which any plaintiff or applicant may be entitled. (5) An unsuccessful defendant or respondent in a proceeding brought under subrule (1) is entitled to the costs occasioned by the joining of any plaintiff or applicant found not to be entitled to relief unless the Court or a judge otherwise orders. 180Defendant or respondent with partial interestIf a defendant or respondent is interested in part only of the relief sought, or cause of action included, in a proceeding, the Court or a judge may make any order to prevent the defendant or respondent from being put to expense by being required to attend any proceedings in which the defendant or respondent has no interest. 181Amendment on misjoinder of partiesA proceeding is not defeated by reason of the misjoinder or non-joinder of parties and in any proceeding the Court or a judge may deal with the matter in controversy so far as regards the rights and interest of the parties actually before the Court or judge. 182Abatement (1) A proceeding does not abate by reason of the marriage, death or bankruptcy of a party if the cause of action survives or continues. (2) Whether the cause of action survives or not, a proceeding does not abate by reason of the death of a party between the verdict or finding of the issues of fact and judgment which may be entered notwithstanding the death. 183Management of estate during proceedingIf there is an assignment, creation or devolution of any estate or title during the course of a proceeding, the proceeding may be continued by or against the person to, or on, whom the estate or title has come or devolved. 184Adding or deleting parties (1) At any stage of a proceeding and whether or not any relevant limitation period has expired, the Court or a judge, either on or without application, may order – (a) that the name of a party improperly or erroneously joined be struck out; or (b) that the name of a person who ought to have been joined as a party or whose presence may be necessary for the Court or judge to adjudicate on and settle all the questions involved in the proceeding be added; or (c) if through a genuine mistake a proceeding has commenced in the name of the wrong person as plaintiff or applicant or it is doubtful if it has commenced in the name of the right plaintiff or applicant, that any other person be added or substituted as plaintiff or applicant. (2) If, in any proceeding concerning the estate of the deceased person or in which a deceased person was interested, it appears that the deceased person does not have a legal personal representative, the Court or a judge may – (a) proceed in the absence of any person representing the estate of the deceased person; or (b) make an order appointing a person to represent the estate for all the purposes of the proceeding. (3) Any judgment or order binds the estate of the deceased person as if a legal personal representative of the deceased had been a party to the proceeding. (4) A person must not be added as a plaintiff or applicant without his or her consent in writing. (5) A person must not be added as the litigation guardian of a person under disability without the consent in writing of the first-mentioned person. (6) Unless otherwise ordered, a proceeding against a party whose name is added as defendant or respondent is taken to have begun on the service of the originating process on that party. (7) An application under subrule (1) – (a) may be made to the Court or a judge at any time before trial or at the trial of the action; and (b) is to be made in a summary manner. (8) If an order is made under subrule (1) or (2)(b) – (a) the originating process is to be amended accordingly; and (b) the plaintiff or applicant is to file a copy of the originating process as amended; and (c) any new defendant or respondent is to be served with the amended originating process in the same manner as originating process is served; and (d) the proceeding continues as if the new defendant or respondent had originally been made a defendant or respondent. 185Parties altered by order on change of interest (1) The Court or a judge, on an ex parte application, may make an order that a person be made a party or that a party be made a party in another capacity and any other orders for the disposal of the proceeding as may be just if it is appropriate because of – (a) the death of a party; or (b) the bankruptcy of a party; or (c) the devolution by operation of law of the estate of a party; or (d) a person interested coming into existence after the commencement of the proceeding; or (e) any other event occurring after the commencement of a proceeding which causes a change or transmission of interest or liability. (2) On the making of the order, the new party or the party who is made a party in another capacity is to be served with notice of the order. (3) Unless the Court or a judge otherwise orders, the order is to be served on all of the parties, other than the person making the application. (4) Subject to subrules (5) and (6), on service of the order, the person served – (a) is bound by the order; and (b) is to file and serve a notice of appearance within the same period and in the same manner as if that person had been served with a writ. (5) A person who is not under any disability, or who is under a disability and has a litigation guardian in a proceeding, and who is served with the order may apply, within 12 days of service, to the Court or a judge to discharge or vary the order. (6) If a person who is under a disability does not have a litigation guardian in a proceeding and is served with the order – (a) that person may apply to the Court or a judge to discharge or vary the order at any time within 12 days after the appointment of a litigation guardian; and (b) the order does not have force or effect against that person until the period of 12 days has expired. 186Direction to serve a person not a partyThe Court or a judge may direct that a person who is not a party to an originating application be served with the application without joining that person as a party. 187Use of initial lettersA party in a proceeding may refer to another party or person in the proceeding by any initial letter or letters or other contraction of the name of the other party or person, other than the surname, if the full name of that other party or person is stated to be unknown to the first-mentioned party. 188Consolidation (1) The Court or a judge may order proceedings to be consolidated in any case in which – (a) substantially the same question is involved in all those proceedings; or (b) the decision in one proceeding will determine the other proceeding. (2) An application for an order may be made by a party to 2 or more of the proceedings. Division 13Intervention by the Attorney-General189InterventionThe Attorney-General may intervene in a proceeding referred to in section 16(1)(a) or (b) of the Crown Proceedings Act 1993 by – (a) filing in the registry in which the proceeding is pending a notice stating that the Attorney-General intervenes in the proceeding and the grounds of that intervention; and (b) serving a copy of that notice on each party to the proceedings. 190Application for leave to interveneAn application for leave to intervene under section 16(1)(c) of the Crown Proceedings Act 1993 is to be – (a) filed in the registry in which the proceeding is pending; and (b) supported by an affidavit setting out the precise grounds on which intervention is sought and the extent of intervention considered appropriate; and (c) served on each party to the proceeding together with a copy of each affidavit in support. 191Discharge of orderThe Court or a judge may vary or discharge an order granting leave to intervene. Division 14Counterclaims and cross-applications192Counterclaim and set-off (1) Subject to subrules (7) and (8), a defendant to an action may claim any relief against a plaintiff by counterclaim in that action. (2) A counterclaim may comprise several distinct and inconsistent causes of action or claims to relief. (3) A defendant to an action may plead any right or claim by way of set-off against the claim of a plaintiff. (4) A counterclaim or set-off enables the Court or a judge to pronounce a final judgment in the action, both on the original claim and on the set-off or counterclaim. (5) A defendant seeking to raise a counterclaim is to – (a) state that fact specifically in the defence; and (b) set out the counterclaim as a separate part of the defence headed "Counterclaim". (6) A counterclaim to recover possession of land or goods is to contain, or be endorsed with, the statement required by rule 112 or 113. (7) In an action in which there are no pleadings, a defendant may bring a counterclaim only with the leave of a judge. (8) A judge may grant leave on any terms the judge considers proper. (9) A counterclaim to which subrule (7) applies is to be brought by an application in the action. 193Cross-applicationsA respondent to an originating application, by application in the proceeding, may claim any relief against an applicant, other than relief of a type referred to in rule 88. 194Multiple counterclaims Rule 92(2) and (3) applies, with the necessary modifications, to diversity in the relief claimed by way of set-off or counterclaim under rule 192 or a cross-application under rule 193. 195Counterclaim against person not a party (1) A defendant to an action, by counterclaim in that action, may claim relief from a plaintiff together with any other person. (2) A defendant raising a counterclaim under subrule (1) is to – (a) add to the title of the defence a further title similar to the title in the statement of claim, setting out the names of all the persons who, if the counterclaim were to be enforced by cross-action, would be defendants; and (b) deliver the defence to any defendant to the counterclaim who is a party to the action within the period limited by these rules; and (c) serve the defence, endorsed with a notice directed to that person in accordance with the prescribed form, on any defendant to the counterclaim who is not a party to the action in the same manner as a writ. 196Cross-application against person not a party (1) A respondent to an originating application by application in the proceeding may claim relief from an applicant together with any other person. (2) A respondent making an application under subrule (1) is to – (a) add to the title of the application a further title similar to the title in the originating application, setting out the names of all the persons who, if the cross-application were to be made by originating application, would be respondents; and (b) serve a notice directed to that person in accordance with the prescribed form, on any respondent to the cross-application who is not a party to the proceeding in the same manner as an originating application. 197Procedure for counterclaim or cross-application against a person not a party (1) A person served with a defence and counterclaim or cross-application who is not already a party to the action is to file a notice of appearance. (2) The period limited for the filing of a notice of appearance is not less than that prescribed by rule 98 or 99 as if the person to whom the notice required by rule 196(2)(b) is directed was a defendant named in a writ or a respondent to an originating application. (3) A person to whom subrule (1) applies, other than a person served with a cross-application – (a) may be proceeded against as if served with a writ in an action; and (b) is to deliver a defence to the counterclaim within the appropriate period as if the defence and counterclaim were a statement of claim. 198Inconvenient counterclaims and cross-applications (1) On the application of a party to a counterclaim or cross-application, the Court or a judge may order that the counterclaim or cross-application be – (a) struck out or disposed of separately if it cannot be conveniently disposed of in the pending action; or (b) excluded from the proceeding if it ought to be disposed of in a separate action or application. (2) In either case referred to in subrule (1), the Court or judge may make any appropriate consequential order. 199Counterclaim or cross-application if action stayedA counterclaim or cross-application may proceed even though the proceeding of the plaintiff or applicant has been stayed, discontinued or dismissed. 200Judgment for balanceIf a counterclaim is established as a defence against the plaintiff’s claim and the balance is in favour of the defendant, the Court or a judge may – (a) give judgment for the plaintiff on the claim and the costs of the claim, and for the defendant on the counterclaim and the costs of the counterclaim; or (b) give judgment for the defendant for the balance and costs; or (c) otherwise adjudge to the parties any relief as they may be entitled to on the merits of the case. Division 15Third and subsequent party and co-defendant procedure201Interpretation of Division 15 of Part 7In this Division – defendant includes a defendant to a counterclaim; plaintiff includes a plaintiff to a counterclaim; third party means a party to whom a third party notice is directed; third party notice means a notice issued under rule 202. 202Third party notice (1) Subject to subrule (2), a defendant who claims as against any person not already a party to the action to be entitled to contribution or indemnity or any relief or remedy relating to, or connected with, the original subject matter of the action, may file and serve on that person a third party notice directed to that person. (2) A defendant may file and serve a third party notice – (a) [Rule 202 Subrule (2) amended by S.R. 2009, No. 74, Applied:15 Jul 2009] without leave within 30 days after delivering the defence; and (b) at any other time with the leave of the Court or a judge. 203Form, issue and service of notice (1) A third party notice is to – (a) state the nature and grounds of the claim or the nature of the question or issue sought to be determined; and (b) state the nature and extent of any relief or remedy claimed; and (c) be in accordance with the prescribed form; and (d) limit a period for appearance by the third party, not less than that prescribed by rule 98 or 99, as if the third party were a defendant named in a writ; and (e) be lodged at the registry with as many copies as the defendant requires to be sealed. (2) A third party notice is to be served in the same manner as if it were a writ. (3) A copy of the writ and a copy of any pleadings delivered in the action are to be served with the third party notice. 204Effect of service of third party noticeOn being served with the third party notice, the third party becomes a party to the action with the same rights in respect of the defence against the claim and otherwise as if sued by the defendant in the ordinary way. 205AppearanceA third party is to – (a) file a notice of appearance in accordance with the prescribed form within the period specified for that purpose in the third party notice; and (b) serve the notice on the defendant who filed the third party notice. 206Default by third partyA third party who fails to file a notice of appearance or to file and deliver any pleading which the third party has been ordered to file and deliver is taken to – (a) admit the validity of, and is bound by, any judgment given in the action, whether by consent or otherwise; and (b) admit liability in respect of any contribution, indemnity or other relief or remedy claimed by the third party notice. 207Default by third party before trial (1) A defendant is entitled to enter judgment against a third party to the extent of any contribution or indemnity claimed in the third party notice or, by leave of the Court or a judge, to enter any judgment in respect of any other relief or remedy claimed as the Court or judge directs if – (a) the third party fails to file a notice of appearance or to file and deliver any pleading that he or she has been ordered to file and deliver; and (b) judgment by default is entered against the defendant giving the notice; and (c) the defendant has satisfied that judgment or obtains the leave of the Court or a judge to proceed under this subrule without having satisfied that judgment. (2) The Court or a judge may set aside or vary a judgment obtained under subrule (1) on any terms as are just. 208Third party directions (1) If a third party files a notice of appearance, the third party, a plaintiff or a defendant may apply to a judge for directions. (2) On an application for directions, the judge may – (a) if the liability of the third party to the defendant giving the notice is established, give judgment for the defendant; or (b) order that any claim or question stated in the third party notice be tried in a particular manner; or (c) grant the third party leave to defend the action, either alone or jointly with any defendant, or to attend and take part at the trial; or (d) make any orders and give any directions – (i) as are necessary to ensure that all questions in the action are determined; and (ii) as to the extent to which the third party is to be bound by any judgment or decision in the action. (3) Any directions given under this rule may be – (a) given either before or after any judgment has been entered or given for the plaintiff against the defendant; and (b) varied or rescinded. (4) The Court or a judge may set aside a third party proceeding at any time. 209Judgment in third party proceedings (1) At or after the trial of an action in which a third party notice has been given, the Court may – (a) direct the entry of any judgment in the third party proceeding; and (b) grant to the defendant or to the third party any relief or remedy which might properly have been granted if the third party had been made a defendant to an action commenced by the defendant. (2) If an action in which a third party proceeding has been given is decided otherwise than by trial, the Court or a judge, on application, may – (a) make any order in the third party proceeding; and (b) grant to the defendant or to the third party any relief or remedy which might properly have been granted if the third party had been made a defendant to an action commenced by the defendant. (3) Notwithstanding subrules (1) and (2), execution is not to issue against a third party without leave of the Court or a judge until after satisfaction by the defendant of the judgment against the defendant. 210Fourth and subsequent parties (1) A third party may issue and serve a notice directed to any person not already a party to the action against whom the third party claims to be entitled to – (a) contribution or indemnity; or (b) any relief or remedy relating to, or connected with, the original subject matter of the action. (2) If a person served with a notice under subrule (1) makes a claim referred to in that subrule against another person not already a party, this Division has effect as regards any further person so served, and so on successively. (3) The provisions of this Division relating to the rights and procedure between the defendant and the third party apply as between the parties to a notice issued under this rule as if – (a) the party issuing and serving the notice were a defendant; and (b) the party to whom the notice is directed were a third party; and (c) the notice were a third party notice. 211Codefendants (1) A defendant in an action may file and serve on another defendant in that action a notice claiming contribution, indemnity or any relief or remedy relating to, or connected with, the original subject matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff. (2) A defendant in an action may file and serve on another defendant in that action a notice specifying any question or issue relating to, or connected with, the original subject matter which – (a) is substantially the same as a question or issue arising between the plaintiff and the defendant making the claim; and (b) should properly be determined not only as between the plaintiff and the defendant making the claim, but as between the plaintiff and that defendant and another defendant, or between any of them. (3) A notice of appearance is not required to be filed to a notice under subrule (1) or (2). (4) The same procedure is to be adopted for the determination of a claim raised by a notice under subrule (1) or (2) as if the defendant to whom the notice is given were a third party. 212Contribution between parties (1) At any time before the trial of an action, a party to the action who, either as a third party or as one of 2 or more tortfeasors liable in respect of the same damage, may be held liable in the action to another party to contribute towards any debt or damages which may be recovered by the plaintiff in the action may make a written offer to that other party to contribute to a specified extent to the debt or damages. (2) An offer may be absolute or conditional and limited or not as to the period for its acceptance. (3) The party making the offer may reserve the right to bring the offer to the attention of the judge at the trial as if it were a payment into Court after all questions of liability and the amount of debt or damages have been determined. (4) Subrule (3) applies notwithstanding that the offer was stipulated to be without prejudice to the defence whether as against the plaintiff, the party to whom the offer is made or any other party to the action. Division 16Interpleader213Interpretation of Division 16 of Part 7In this Division – applicant means an applicant for relief by interpleader; claimant means a party making an adverse claim or a claim within the meaning of rule 214; Sheriff includes any officer charged with the execution of process of the Court. 214Relief by way of interpleaderRelief by way of interpleader may be granted if the applicant – (a) is under liability for any real or personal property for, or in respect of which, the applicant is, or expects to be, sued by 2 or more parties making adverse claims to that property; or (b) is the Sheriff and claim is made to any real or personal property taken or intended to be taken in execution under any process, or to the proceeds or value of that property by any person other than the person against whom the process is issued. 215Application for interpleader relief (1) The applicant may file an application calling on any claimant to – (a) appear and state the nature and particulars of his or her claim; and (b) maintain or relinquish that claim. (2) An applicant who is a defendant may file an application at any time after service of the writ. 216Stay of actionIf an application is made by a defendant in an action, the Court or a judge may stay all further proceedings in the action. 217Matters to be proved (1) Before relief by way of interpleader may be granted, the applicant is to satisfy the Court or a judge by affidavit or otherwise – (a) that the applicant does not claim an interest in the subject matter in dispute, other than for charges or costs; and (b) that the applicant is not colluding with any claimant; and (c) that the applicant is willing to pay or transfer the subject matter into Court or to dispose of it as the Court or a judge may direct. (2) Subrule (1)(c) does not apply where the Sheriff – (a) has seized real or personal property; and (b) has withdrawn from possession in consequence of the execution creditor admitting the claim of the claimant under rule 224(4). 218Adverse titles of claimantsAn applicant is not disentitled to relief only because the titles of the claimants do not have a common origin and are adverse to, and independent of, one another. 219Claimant appearing on an applicationIf a claimant appears in pursuance of an application, the Court or a judge may – (a) order that the claimant be made a defendant to any action already commenced in respect of the matter in dispute in place of, or in addition to, the applicant; or (b) order that an issue between claimants be stated and tried, directing which of the claimants is to be plaintiff and which is to be defendant; or (c) with the consent of all claimants or on the request of any claimant if, having regard to the value of the matter in dispute, it is desirable so to do, dispose of the merits of their claims and decide them in a summary manner; or (d) if the question is a question of law and the facts are not in dispute – (i) determine the question without directing the trial of an issue; or (ii) order that a special case be stated for the opinion of the Court. 220Claimant not appearing on the application or failing to comply with order (1) The Court or a judge may make an order declaring that a claimant and any person claiming under that claimant be barred against the applicant and any person claiming under the applicant if the claimant – (a) does not appear on the hearing of the application; or (b) neglects or refuses to comply with any order made. (2) An order under subrule (1) does not affect the rights of claimants as between themselves. 221Order for sale of goods seized in executionThe Court or a judge may – (a) order the sale of the whole or part of any real or personal property seized in execution by the Sheriff and to which any claimant claims to be entitled by way of security; and (b) give directions as to the application of the proceeds of the sale. 222Discovery, evidence and trial Parts 13, 19 and 22 apply with any necessary modifications to proceedings to which this Division applies. 223Interpleader orders in several proceedingsThe Court or a judge may make one interpleader order in several proceedings and that order is binding on the parties in all those proceedings. 224Claim to property taken in execution (1) A claim to, or in respect of, real or personal property taken in execution under the process of the Court is to be in writing. (2) On receipt of a claim, the Sheriff is to give notice of the claim to the execution creditor as soon as possible. (3) Within 4 days after receiving a notice, the execution creditor is to give notice to the Sheriff that the execution creditor admits or disputes the claim. (4) If the execution creditor admits the claim and gives notice under subrule (3) – (a) the execution creditor is only liable to the Sheriff for any fees and expenses incurred before receiving the notice; and (b) the Sheriff may withdraw from possession of the property claimed and may apply to a judge for an order protecting the Sheriff from any action in respect of the seizure and possession of the property. (5) On an application under subrule (4)(b) – (a) the claimant is entitled to be heard; and (b) the judge may make any order as may be just. (6) The Sheriff may make an application under rule 215 if the execution creditor – (a) fails to give notice under subrule (3) admitting the claim; or (b) gives notice under that subrule disputing the claim. 225Application to CrownThis Division applies to a claimant who is the Crown or any officer, servant or agent of the Crown. Division 17Pleadings226Form of pleadingsA pleading is to be – (a) printed or, with the leave of the registrar, handwritten legibly in ink; and (b) marked on the face with – (i) the title of the action; and (ii) the date on which the pleading is filed and delivered; and (iii) a description of the pleading; and (c) signed by – (i) the party; or (ii) counsel for the party; or (iii) the practitioner for the party; or (iv) the practitioner who is the agent for the practitioner for the party. 227Statements in pleadings (1) [Rule 227 Subrule (1) substituted by S.R. 2003, No. 139, Applied:26 Nov 2003] A pleading is to – (a) be as brief as the nature of the case allows; and (b) contain only a statement of all the material facts in summary form on which the party relies but not the evidence by which those facts are to be proved. (2) Unless the facts to be pleaded are able to be stated concisely and explicitly in one paragraph, a pleading is to be divided into paragraphs numbered consecutively and each separate allegation is to be contained in a separate paragraph. (3) Every pleading is to be expressed so as to give reasonably explicit notice to any other party of all grounds of action or all defences on which the party pleading intends to rely at the trial. (4) A pleading need not allege any matter of fact which the law presumes in favour of the party pleading or as to which the burden of proof lies on the other side unless the matter has first been specifically denied. 228Requirement of further pleading (1) Subject to subrule (2), pleadings are to continue until the substantial matter in dispute between the parties has been definitively shown by the pleadings. (2) A party who in a pleading subsequent to a defence or to a reply to a counterclaim would, if he or she were to deliver the pleading, merely deny or not admit the facts alleged in the immediately preceding pleading is not to deliver any such pleading. (3) At the expiration of the period limited for the delivery of any such pleading – (a) every material fact alleged in the immediately preceding pleading is taken to have been denied; and (b) issue is taken to have been joined on every allegation; and (c) the pleadings as between the relevant parties are closed. 229Relief claimed (1) A statement of claim and a counterclaim – (a) are to state the specific relief claimed, whether singly or in the alternative; and (b) need not ask for general or other relief, which may be given as if it had been asked for. (2) If a party seeks relief in respect of several distinct matters founded on separate and distinct grounds, those grounds are to be stated separately and distinctly. 230Inconsistent pleading (1) A party may claim relief on 2 or more inconsistent sets of facts or rights in the alternative but is to show on what facts or rights each claim is founded. (2) A party may plead, cumulatively or in the alternative, any number of separate defences and may plead several distinct defences founded on separate and distinct facts but is to specify on what facts each defence is founded. 231Technical objectionA party must not raise an objection to any pleading on the ground of any alleged want of form. 232Denial to be substantial answer (1) A denial by a party in a pleading of an allegation of fact in a previous pleading of the opposite party – (a) must not be evasive; and (b) must answer the point of substance. (2) A mere denial of a debt or liquidated demand in money is not sufficient. (3) A denial by a party in a pleading of an allegation of fact with divers circumstances is not sufficient. 233Pleading not to raise new groundA pleading is not to raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party except by way of amendment. 234Contents of documentIf the contents of a document are material, it is sufficient in a pleading to state their effect as concisely as possible unless the precise words of the whole or a part of the document are material. 235Effect of denial of contractA bare denial of any contract, promise or agreement alleged in a pleading – (a) is a denial of that contract, promise or agreement or of the facts from which it may be implied; and (b) is not a denial of the legality or sufficiency in law of the contract, promise or agreement. 236Conditions precedent (1) Subject to subrule (2), an averment of the performance or occurrence of any condition precedent necessary for the case pleaded is to be implied in a pleading. (2) A condition precedent, the performance or occurrence of which is intended to be contested, is to be distinctly pleaded. 237Allegation of implied contract or relationshipIf a contract or relationship is to be implied from a series of letters, conversations or from a number of circumstances, it is sufficient to allege the contract or relationship as a fact and to refer generally to the letters, conversations or circumstances without setting them out in detail. 238Allegation of malice, intent or knowledgeIt is sufficient to allege malice, fraudulent intention, knowledge or other state of mind as a fact without setting out the circumstances from which it is to be inferred. 239240Allegation of noticeIn an action, if it is material to allege notice to any person, it is sufficient to allege the notice as a fact unless its form or precise terms or the circumstances from which it is to be inferred are material. 241Account stated (1) In an action on a stated or settled account, the account is to be pleaded with particulars. (2) A statement of account relied on by way of evidence or admission of any other cause of action which is pleaded is not to be alleged in a pleading. 242Amount of unliquidated damages [Rule 242 Amended by S.R. 2009, No. 74, Applied:15 Jul 2009] The amount of any unliquidated damages claimed is to be stated in a pleading only if it does not exceed $50 000. 243Denial of allegations to be pleaded (1) Unless otherwise provided in these rules, a party must not generally deny or refuse to admit the facts alleged in a pleading or any part of a pleading but must deal specifically with each allegation of fact which the party does not admit. (2) A party is not required to plead to facts alleged by way of particulars of damage. (3) Unless expressly admitted, particulars of damage are put in issue in all cases. (4) A refusal to admit a fact alleged in a pleading must identify the fact specifically. (5) In an action for a debt or liquidated demand –
(a) a mere denial of the debt is not permitted; and (b) a defence in denial must deny the matters of fact from which liability for the debt or liquidated demand is alleged to arise. (6) In an action on a bill of exchange, promissory note or cheque, a defence in denial must deny some matter of fact such as the drawing, making, endorsing, accepting, presenting or notice of dishonour. 244Plea of title unnecessary (1) A defendant in an action for the recovery of land who is in possession of the land personally or by tenant is not required to plead title unless – (a) the defence depends on an equitable estate or right; or (b) the defendant claims relief on any equitable ground against any right or title asserted by the plaintiff. (2) It is a defence for the defendant to state that he or she is in possession of the land. (3) A statement that the defendant is in possession of the land is a denial of the allegation of fact contained in the statement of claim. (4) A defendant in an action for the recovery of land who is in possession personally or by tenant may rely on any ground of defence. 245No plea in abatementA plea or defence is not to be pleaded in abatement. 246Representative capacity and constitution of partnership to be specifically deniedA party wishing to deny the right of another party to claim in a representative or other special capacity or to deny the alleged constitution of a partnership is to do so specifically. 247Plea not to be usedA party is not to use the plea "Not guilty by Statute". 248Demurrer not to be pleadedA party is not to plead a demurrer. 249Points of law may be raised by pleadings (1) A party may raise any point of law by a pleading. (2) A point of law raised by a pleading is to be disposed of at or after the trial. (3) With the consent of the parties, or by order of the Court or a judge, a point of law raised by a pleading may be set down for hearing and disposed of before the trial. (4) If the decision on a point of law disposes of a whole action or a distinct cause of action within the action, the Court or judge may give judgment on that whole action or distinct cause of action. 250Allegations not denied are admitted (1) Subject to rule 228(2), an allegation of fact in a pleading which is not admitted or denied, either specifically or by implication, is taken to be admitted except as against a person under disability. (2) A fact is taken as being denied by implication only if the specific denial of the fact carries with it the denial of another fact. (3) A party who is pleading and intends to prove facts different from those pleaded by the opposite party must not merely deny or not admit those facts but must plead the facts intended to be proved. 251Pleading to avoid surpriseIn any pleading subsequent to a statement of claim, a party is to plead specifically any fact or matter that – (a) is alleged to make any claim or defence of the opposite party not maintainable; and (b) if not pleaded specifically, may take the opposite party by surprise; and (c) raises a question of fact not arising out of the preceding pleading. 252Defence arising after action commences (1) A ground of defence arising after the commencement of an action but before the defence is delivered may be raised in a defence. (2) A ground of defence to a set-off or counterclaim arising after it is delivered but before a reply is delivered may be raised in a reply. (3) If a ground of defence arises after the period during which it may be raised in a defence or a reply under subrule (1) or (2), the defendant or plaintiff may deliver a further defence or reply setting out the ground – (a) within 8 days after that period has elapsed; or (b) at any subsequent time, by leave of the Court or a judge. (4) If a defence which arises after the commencement of an action is raised in accordance with this rule, the plaintiff may file and deliver a notice confessing to the defence, specifying the paragraphs of the defence by which it is raised. (5) At the expiration of 7 days after the delivery of the confession, the plaintiff may sign judgment for costs up to the time of the pleading of the defence, unless the Court or a judge otherwise orders. 253Further particulars of pleading (1) [Rule 253 Subrule (1) amended by S.R. 2005, No. 100, Applied:31 Aug 2005] The Court or a judge may order at any time the delivery of – (a) a further and better statement of the nature of the claim or defence; or (b) further and better particulars of any matter stated in any pleading. (2) A party is to apply for particulars by letter before seeking an order for them. (3) The Court or a judge is not to make an order for the delivery of particulars of a claim or of any matter alleged in a statement of claim or counterclaim before the delivery of a defence to that claim or counterclaim unless the Court or judge considers it necessary or desirable. (4) The party at whose instance an order is made under subrule (1) has the same period for pleading after the delivery of the particulars as that party had at the time the application by letter was made. 253APlaintiff to advise defendant of nature of injuries, &c. [Rule 253A Inserted by S.R. 2005, No. 100, Applied:31 Aug 2005] (1) The plaintiff in an action for damages for personal injuries is to advise the defendant in writing of the following: (a) the nature of the plaintiff’s injuries; (b) the nature of any secondary illnesses suffered by the plaintiff; (c) the name of each hospital that the plaintiff has attended in consequence of the injuries; (d) the name and address of each medical practitioner who has treated the plaintiff for the injuries, other than as part of his or her hospital treatment; (e) any expenses incurred as a result of the injuries; (f) the nature of employment or self-employment that the plaintiff claims he or she would have been likely to engage in had it not been for the injuries; (g) the estimated gross annual income for each category of employment or self-employment referred to in paragraph (f); (h) whether the plaintiff’s claim is that the injuries sustained impact totally or partially on that earning capacity. (2) The plaintiff is to advise the defendant of the matters referred to in subrule (1) within 50 days after the close of pleadings or within such other time as the parties may agree or the court or a judge may order. 254Joinder of issue on particular paragraph or fact (1) Subject to rule 228(2), in any pleading subsequent to a defence, a party may join issue on an allegation of fact alleged in the immediately preceding pleading by pleading the joinder of issue on any particular paragraph of, or allegation in, that preceding pleading. (2) A joinder of issue is a denial of the fact or facts alleged in the paragraph or of the particular allegation on which issue is joined. (3) If a reply contains both a reply to a defence and a defence to a counterclaim, this rule applies only to – (a) an allegation of fact in the defence; and (b) any allegation of fact in the counterclaim that is only a repetition of an allegation in the defence on which issue is joined. 255Joinder of issue on part of immediately preceding pleading (1) A party who, subsequent to the delivery of a defence or a reply, admits some of the facts alleged in the immediately preceding pleading and denies or does not admit other of those facts may join issue on that pleading, excepting from the joinder of issue the facts admitted. (2) The joinder of issue is an admission of the facts excepted from the joinder of issue and a denial of all other material facts alleged in the pleading. (3) On the delivery of a pleading containing a joinder of issue, the pleadings between the relevant parties are closed. 256No joinder of issue on a denial or refusal to admitA party is not to plead a joinder of issue on a denial of, or refusal to admit, any fact alleged in any defence or subsequent pleading. 257Default in delivering reply or subsequent pleading (1) Subject to rule 228(2), if a party does not deliver a reply or subsequent pleading within the period limited – (a) the pleadings are closed; and (b) any material statement of fact in the pleading last delivered is taken to be denied. (2) Subrule (1) does not apply to a defence to a counterclaim. (3) [Rule 257 Subrule (3) amended by S.R. 2006, No. 25, Applied:01 May 2006] If a plaintiff fails to deliver a reply in answer to a counterclaim within 21 days, or any other period the Court or a judge orders, after the delivery of the counterclaim, any statement of fact contained in the counterclaim is taken to be admitted. 258Striking out certain matters (1) The Court or a judge may order to be struck out or amended in any endorsement or pleading any matter that – (a) may be unnecessary or scandalous; or (b) may tend to prejudice or delay the fair trial of the proceeding. (2) [Rule 258 Subrule (2) amended by S.R. 2001, No. 100, Applied:12 Sep 2001] If the document which contains the matter to be struck out or amended is filed, the Court or a judge may order that the document be removed from the file. (3) If an order is made under subrule (1), the Court or judge may order the costs of the application to be paid as between solicitor and client. 259Striking out pleadingIf a pleading does not disclose a reasonable cause of action or answer or shows that the cause of action or defence is frivolous or vexatious, the Court or a judge may order – (a) that the action be stayed or dismissed or the pleading be struck out; and (b) that judgment be entered accordingly. Division 18Building disputes260Application of Division 18 (1) This Division applies to proceedings relating to, or arising out of, any or all of the following: (a) the design, carrying out, supervision or inspection of any building work or engineering work; (b) the performance by a building expert or engineering expert of any other services with respect to any building work or engineering work; (c) any certificate, advice or information given or withheld with respect to any building work or engineering work. (2) This Division applies only to proceedings in which a party alleges against another party 3 or more instances in which any of the following has occurred: (a) a failure to comply with any obligation under a contract, specification, plan, drawing or direction; (b) defective performance with respect to an obligation under paragraph (a); (c) defective workmanship; (d) an entitlement to payment for work done, services provided or materials supplied. (3) The Court or a judge may order that this Division applies in proceedings other than those referred to in subrule (1). (4) If the Court or judge makes an order under subrule (3), the order is to specify when the steps required by this Division are to be taken. (5) This Division does not apply to proceedings on a claim for damages in respect of the death or personal injury of any person. 261Delivery of schedule (1) The party making the allegations is to deliver to all other parties a schedule containing 7 columns headed respectively, from left to right as follows: (a) column 1, item number; (b) column 2, provision of contract, relied on in support of item; (c) column 3, nature of allegation; (d) column 4, amount claimed; (e) column 5, response to allegation; (f) column 6, provision of contract relied on in response to item; (g) column 7, response to amount claimed. (2) The party making the allegations is to complete the first 4 columns as follows: (a) in column 1, by numbering the items in sequence and relating each item to an allegation; (b) in column 2, by identifying any contractual or other documentary provision relied on in respect of the item, preferably by date, clause and page number; (c) in column 3, by describing briefly the item and substance of the allegation sufficiently to identify the item and by specifying the basis of the allegation in respect of it; (d) in column 4, by specifying the amount claimed in respect of the item and, if applicable, the unit rate and the number of units to which the rate is applied. (3) The schedule is to be delivered – (a) with the first pleading in which the allegations are made; or (b) if an allegation is made under rule 260(2)(d), within 14 days after the entitlement is disputed. (4) The party delivering the schedule may add to or vary the format of the schedule if the addition or variation is likely to facilitate the clearer definition of the precise matters of dispute. 262Return of schedule (1) A party to whom a schedule is delivered under rule 261 is to complete the last 3 columns in the schedule as follows: (a) in column 5, by answering concisely each item so as to disclose clearly the extent of any concession or denial and the basis of that denial; (b) in column 6, by identifying any contractual or other documentary provision relied on by way of answer to the item, preferably by date, clause and page number; (c) in column 7, by dealing with the quantum of the amount claimed including any rate or number of units. (2) The schedule is to be returned to the party who delivered it – (a) with the first pleading to the allegations; or (b) if an allegation is made under rule 260(2)(d), within 14 days after the delivery of the schedule. 263Completion of schedule (1) The answer in respect of each item of the schedule referred to in rules 261 and 262 is to be – (a) specific to that item; and (b) read subject to any pleading which applies generally to the whole of the claim or to particular components of it. (2) It is not necessary to repeat in the schedule a pleading referred to in subrule (1)(b). (3) The completion by the recipient of column 7 of the schedule – (a) does not prejudice a denial of liability in respect of that item; or (b) is not an admission of liability for any sum in respect of that item. (4) The due completion and delivery of a schedule constitutes the provision of sufficient particulars of each party’s pleading in respect of each item dealt with by the schedule, subject to either party’s entitlement to ask for further particulars if further particulars are appropriate to inform that party of the nature of the case to be met. Division 18ADefamation actions263APleadings to give necessary particulars [Rule 263A of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) A pleading in a defamation action must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet. (2) The particulars to be given must be set out in the pleading or, if that is inconvenient, set out in a separate document referred to in the pleading and filed with the pleading. 263BAllegations in statements of claim generally [Rule 263B of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) A statement of claim seeking relief in relation to the publication of defamatory matter must not contain any allegation that the matter or its publication was false, malicious or unlawful. (2) A statement of claim seeking relief in relation to the publication of defamatory matter must – (a) subject to subrule (3), specify each imputation on which the plaintiff relies; and (b) allege that the imputation was defamatory of the plaintiff. (3) A plaintiff in proceedings for defamation must not rely on 2 or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance. (4) The particulars required by rule 263A(1) in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following: (a) particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified; (b) particulars of any publication, or circulation or distribution, of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified; (c) if the plaintiff alleges that the matter complained of had a defamatory meaning other than its ordinary meaning, particulars of the facts and matters on which the plaintiff relies to establish that defamatory meaning, including the following: (i) full and complete particulars of the facts and matters relied on to establish a true innuendo; (ii) the class of persons, or the name of each person, to whom those facts and matters were known; (d) if the plaintiff is not named in the matter complained of – (i) particulars of the identification of the plaintiff in the matter complained of; and (ii) the class of persons, or name and address of each person, to whom any such particulars were known; (e) particulars of each part of the matter complained of that is relied on by the plaintiff in support of each pleaded imputation. (5) The following documents must be filed and served with a statement of claim, or amended statement of claim, seeking relief in relation to the publication of defamatory matter and must be referred to in the statement of claim or amended statement of claim: (a) a legible photocopy of the original publication or, in the case of an internet, email or other computer-displayed publication, a printed copy of the original publication; (b) a typescript, with numbered lines, of – (i) if the original publication is in English, the text of the original publication; or (ii) if the original publication is not in English, a translation into English of the text of the original publication. (6) The particulars required by rule 263A(1) in relation to a statement of claim seeking relief in relation to the publication of defamatory matter about a corporation must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that the corporation is not precluded from asserting a cause of action for defamation. (7) The plaintiff must give – (a) particulars of facts, matters and circumstances on which the plaintiff will rely in support of a claim for aggravated damages; and (b) particulars of facts, matters and circumstances on which the plaintiff will rely in support of a claim for exemplary damages; and (c) particulars of any claim the plaintiff makes – (i) by way of special damages; or (ii) for general loss of business or custom. 263CDefamation defences generally [Rule 263C of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) Subject to rules 263D to 263L, a defendant in proceedings for defamation must plead a defamation defence specifically. (2) If the plaintiff in defamation proceedings complains of 2 or more imputations, the pleading of any of the following defences must specify each imputation to which the defence is pleaded: (a) a defence under section 15 of the Defamation Act 1957; (b) a defence under section 25 or 26 of the Defamation Act 2005; (c) a defence of justification at common law. (3) Unless the court or a judge orders otherwise, the particulars of a defamation defence required by rule 263A(1) must include particulars of the facts, matters and circumstances on which the defendant relies to establish – (a) that any imputation, notice, report, comment or other material was, or related to, a matter of public interest; or (b) that any imputation was published under qualified privilege; or (c) that any imputation or contextual imputation was true or was a matter of substantial truth; or (d) that any material being proper material for comment was a matter of substantial truth. (4) If a defendant in proceedings for defamation intends to make a case in mitigation of damages by reference to one or more of the following, the defendant must give particulars of the facts, matters and circumstances on which the defendant relies to make that case: (a) the circumstances in which the publication complained of was made; (b) the reputation of the plaintiff; (c) any apology for, or explanation, correction or retraction of, any imputation complained of; (d) any recovery proceedings, receipt or agreement to which section 38(1)(c), (d) or (e) of the Defamation Act 2005 applies. (5) If a defendant in proceedings for defamation intends to show, in mitigation of damages, that any imputation complained of was true or was a matter of substantial truth, the defendant must – (a) give particulars identifying the imputation and stating that intention; and (b) give particulars of the facts, matters and circumstances the defendant relies on to establish that the imputation was true or was a matter of substantial truth. 263DDefence of justification [Rule 263D of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) Subject to rule 263C(2) – (a) a defence of justification under section 15 of the Defamation Act 1957 is sufficiently pleaded if it alleges that the imputation in question was true; and (b) a defence of justification under section 25 of the Defamation Act 2005 or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true. (2) Without limiting rule 263C, the particulars required by rule 263A(1) for a defence of justification under section 15 of the Defamation Act 1957, under section 25 of the Defamation Act 2005 or at common law must, unless the court orders otherwise, include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation in question was true or substantially true. 263EDefence of contextual truth [Rule 263E of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) Subject to rule 263C(2), a defence under section 26 of the Defamation Act 2005 is sufficiently pleaded if it – (a) specifies one or more imputations on which the defendant relies as being contextual to the defamatory imputation in question; and (b) alleges that each contextual imputation on which the defendant relies was substantially true; and (c) alleges that the defamatory imputation in question did not further harm the reputation of the plaintiff because of the contextual imputations on which the defendant relies. (2) Without limiting rule 263C, the particulars required by rule 263A(1) for a defence of contextual truth under section 26 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the contextual imputations on which the defendant relies are substantially true. 263FDefence of absolute privilege [Rule 263F of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) This rule applies to a defence of absolute privilege – (a) under section 27 of the Defamation Act 2005; and (b) at common law. (2) A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under absolute privilege. (3) Without limiting rule 263C, the particulars required by rule 263A(1) for a defence to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation or matter complained of was published under absolute privilege. 263GDefence for publication of public documents [Rule 263G of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) In this rule – public document has the same meaning as in section 28 of the Defamation Act 2005. (2) A defence under section 28 of the Defamation Act 2005 is sufficiently pleaded if it alleges that the matter complained of was contained in – (a) a public document or a fair copy of a public document; or (b) a fair summary of, or a fair extract from, a public document. (3) Without limiting rule 263C, the particulars required by rule 263A(1) for a defence under section 28 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was contained in – (a) a public document or a fair copy of a public document; or (b) a fair summary of, or a fair extract from, a public document. 263HDefence of fair report of proceedings of public concern [Rule 263H of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) A defence under section 29 of the Defamation Act 2005 is sufficiently pleaded if – (a) it alleges that the matter complained of was, or was contained in, a fair report of any proceedings of public concern; or (b) it alleges that – (i) the matter complained of was, or was contained in, an earlier published report of proceedings of public concern; and (ii) the matter complained of was, or was contained in, a fair copy of, a fair summary of or a fair extract from the earlier published report; and (iii) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. (2) Without limiting rule 263C, the particulars required by rule 263A(1) for a defence under section 29 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish – (a) that the matter complained of was, or was contained in, a fair report of any proceedings of public concern; or (b) that – (i) the matter complained of was, or was contained in, an earlier published report of proceedings of public concern; and (ii) the matter complained of was, or was contained in, a fair copy of, a fair summary of or a fair extract from the earlier published report; and (iii) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair. 263IDefence of qualified privilege [Rule 263I of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) This rule applies to – (a) a defence of qualified privilege under section 30 of the Defamation Act 2005; and (b) any other defence of qualified privilege other than – (i) a defence under section 16 of the Defamation Act 1957 or section 28, 29 or 31 of the Defamation Act 2005; or (ii) a defence of fair comment at common law. (2) A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under qualified privilege. (3) Without limiting rule 263C, the particulars required by rule 263A(1) for a defence to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation or matter complained of was published under qualified privilege. 263JDefence of honest opinion [Rule 263J of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) A defence under section 31 of the Defamation Act 2005 is sufficiently pleaded if – (a) it alleges that the matter complained of was an expression of opinion – (i) of the defendant, rather than a statement of fact; or (ii) of an employee or agent of the defendant, rather than a statement of fact; or (iii) of a commentator, other than the defendant or an employee or agent of the defendant, rather than a statement of fact; and (b) it alleges that the opinion related to a matter of public interest; and (c) it alleges that – (i) the opinion was based on proper material and no other material; or (ii) the opinion was an opinion based to some extent on proper material and represented an opinion that might reasonably be based on that material to the extent to which it was proper material. (2) Without limiting rule 263C, the particulars required by rule 263A(1) for a defence under section 31 of the Defamation Act 2005 must include – (a) particulars identifying the material on which it is alleged that the matter alleged to be an opinion was an opinion and identifying to what extent that material is alleged to be proper material; and (b) particulars of the facts, matters and circumstances on which the defendant relies to establish that the material alleged to be proper material was proper material; and (c) if the defendant relies on a defence under section 31(2) of that Act, particulars identifying the employee or agent of the defendant whose opinion it is alleged to be; and (d) if the defendant relies on a defence under section 31(3) of that Act, particulars identifying the commentator whose opinion it is alleged to be. 263KDefence of fair comment [Rule 263K of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) A defence of fair comment at common law is sufficiently pleaded if it alleges that the matter complained of was a comment that – (a) was based on – (i) true fact; or (ii) material that was published under privilege; and (b) related to a matter of public interest; and (c) was made honestly by the defendant. (2) Without limiting rule 263C, the particulars required by rule 263A(1) for a defence of fair comment at common law, or a defence under section 14 of the Defamation Act 1957, must include – (a) particulars identifying the material on which it is alleged that the matter alleged to be a comment was a comment and identifying to what extent that material is alleged to be based on true fact or material that was published under privilege; and (b) particulars of the facts, matters and circumstances on which the defendant relies to establish that – (i) the material alleged to be true fact was true fact; or (ii) the material alleged to be published under privilege was published under privilege. 263LDefence of innocent dissemination [Rule 263L of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) A defence under section 32 of the Defamation Act 2005 is sufficiently pleaded if it alleges that – (a) the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor; and (b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and (c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant. (2) Without limiting rule 263C, the particulars required by rule 263A(1) for a defence under section 32 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that – (a) the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor; and (b) the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory; and (c) the defendant’s lack of knowledge was not due to any negligence on the part of the defendant. 263MDefence of triviality [Rule 263M of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) A defence under section 9(2) of the Defamation Act 1957 or section 33 of the Defamation Act 2005 is sufficiently pleaded if it alleges that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm. (2) Without limiting rule 263C, the particulars required by rule 263A(1) for a defence under section 9(2) of the Defamation Act 1957 or section 33 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm. 263NParticulars concerning grounds that defeat defamation defences [Rule 263N of Part 7 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] If a plaintiff intends to meet a defamation defence by – (a) alleging that the defendant was actuated by express malice in the publication of the matter complained of; or (b) relying on any matter which, under the Defamation Act 2005, defeats the defence – the particulars required by rule 263A(1) in relation to the reply must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that allegation or matter of defeasance. Division 19Filing and delivery of pleadings264Filing and delivery of pleading (1) Delivery of a pleading is to be effected – (a) by delivering it to the address for service of the party to whom it is directed; or (b) if that party does not have an address for service, by filing it in the registry; or (c) by serving it on that party. (2) A party who delivers a pleading to another party must file a copy of the pleading as soon as practicable after delivery. 265Delivery of statement of claim (1) If a writ is endorsed with a statement of claim – (a) a further statement of claim is not to be filed or delivered; and (b) the endorsement on the writ is taken to be the statement of claim. (2) Subject to subrule (1), a plaintiff is to file and deliver to each defendant a statement of claim – (a) when the writ is served on the defendant; or (b) at any time after service of the writ but before the expiration of 21 days after the defendant files a notice of appearance. (3) If a plaintiff who is required to deliver a statement of claim does not do so within the period of time allowed, the defendant, at the expiration of that period, may apply to the Court or a judge to dismiss the action with costs, for want of prosecution. (4) On the hearing of the application, the Court or a judge, if a statement of claim has not been delivered, may – (a) order the action to be dismissed accordingly; or (b) make such other order on such terms as the Court or judge thinks just. 266Filing and delivery of defence (1) [Rule 266 Subrule (1) amended by S.R. 2006, No. 25, Applied:01 May 2006] Unless a plaintiff has made an application for judgment under Division 3 of Part 11, the defendant is to file and deliver a defence to a statement of claim within 21 days after whichever of the following is the later: (a) after the time of the delivery of the statement of claim; (b) after the time limited for filing a notice of appearance. (2) If an application under rule 356 is dismissed or an order is made under rule 359(4) granting leave to defend, the defendant is to file and deliver a defence within – (a) 8 days after the making of the order; or (b) any other period fixed by the order. (3) If a statement of claim is filed in default under rule 353(2), the defendant, after filing a notice of appearance, may file and deliver a defence within 8 days after filing of the statement of claim. 267Delivery of defence to counterclaim, reply and subsequent pleadings (1) [Rule 267 Subrule (1) amended by S.R. 2006, No. 25, Applied:01 May 2006] A defence to a counterclaim is to be filed and delivered within 21 days after delivery of the counterclaim. (2) [Rule 267 Subrule (2) amended by S.R. 2006, No. 25, Applied:01 May 2006] A reply or subsequent pleading is to be filed and delivered within 21 days after delivery of the immediately preceding pleading. PART 8Payment into and out of court268Payment into Court by defendant (1) A defendant may pay into Court a sum of money – (a) in satisfaction of a claim; or (b) if several causes of action are joined in one action, in satisfaction of one or more of the causes of action. (2) A payment into Court is to be made – (a) after the defendant files an appearance and on or after the day on which the defendant gives notice of the payment to the plaintiff; and (b) before the commencement of the trial. (3) If a defence sets up tender before action, the defendant is to bring into Court the sum of money alleged to have been tendered. (4) A notice of the payment under subrule (2) – (a) is to be in accordance with the prescribed form; and (b) with the leave of the Court or a judge, may be modified or withdrawn or delivered in an amended form. (5) At any time before the commencement of the trial, the defendant may increase the amount paid into Court and deliver a notice to the plaintiff to that effect. 269Acceptance by plaintiff of money paid into Court (1) Subject to rule 270, within 14 days after the receipt of a notice of money paid into Court or before the commencement of the trial, whichever is the earlier, a plaintiff may accept the whole or a part of the money specified in the notice in satisfaction of the claim or any cause of action to which the money relates. (2) If a plaintiff accepts money paid into Court, the plaintiff is to notify the defendant in writing. (3) On giving the defendant notice of acceptance, the plaintiff is entitled, except as otherwise provided by these rules or in the case of a person under disability subject to rule 299, to payment of – (a) the money accepted; and (b) any interest earned on the money since it was paid into Court. (4) [Rule 269 Subrule (4) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] The registrar is to pay the money to the plaintiff or, on the plaintiff’s written authority, to the plaintiff’s practitioner. (5) On payment to the plaintiff, all further proceedings in the claim or cause of action to which the money relates are stayed. (6) Unless the Court or a judge otherwise orders, a plaintiff may tax any costs incurred to the time of acceptance of money paid into Court and may sign judgment for those taxed costs if the plaintiff – (a) accepts money paid into Court in satisfaction of the claim; or (b) accepts money paid into Court in respect of one or more specified causes of action and gives notice abandoning the other cause or causes of action. (7) The plaintiff must not – (a) tax any costs until 7 days after receiving payment of the money; or (b) sign the judgment until 2 days after the taxation of those costs. (8) With the leave of a judge, a plaintiff in an action for defamation who accepts a payment into Court may make in open court a statement in terms approved by the judge. (9) This rule does not apply to an admiralty action or to any cause of action to which a defence of tender before action is pleaded. 270Part of money paid into Court taken out (1) If part of any money paid into Court is accepted under rule 269, the money remaining in Court is not to be paid out except – (a) [Rule 270 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] in accordance with the terms of a memorandum signed by every party to the action or their practitioners; or (b) under an order of the Court or a judge. (2) An order referred to in subrule (1)(b) may be made at any time. 271InterestAny interest earned on money paid into Court since the payment of the money vests in the defendant if – (a) the plaintiff does not notify the defendant of acceptance in accordance with rule 269 or, if the plaintiff is a person under disability, the plaintiff’s acceptance is not approved by the Court or a judge under rule 299; and (b) judgment is given for the plaintiff in the action. 272Payment into Court by more than one defendant (1) Any one or more of several defendants sued jointly or in the alternative may pay money into Court under rule 268. (2) If one or more, but not all, of several defendants sued jointly or in the alternative pay money into Court – (a) the defendant or defendants by whom the payment is made are to give notice of the payment to the other defendant or defendants; and (b) within 14 days after receiving the notice or before the commencement of the trial, whichever is the earlier, the plaintiff may accept the whole sum or any one or more of the sums specified in the notice in satisfaction of the claim, or in satisfaction of the cause of any action to which the money relates. (3) If the plaintiff accepts a payment, he or she is to give notice in writing of that acceptance to each defendant who joined in making the payment. (4) On acceptance of a payment, all further proceedings in the action or in respect of each specified cause of action to which the money relates are stayed. (5) Any money accepted is not to be paid out except under an order of the Court or a judge dealing with the whole costs of the action or each specified cause of action. (6) If money is paid into Court in an action for defamation by one or more, but not all, of several defendants – (a) the plaintiff, within 14 days after the receipt of a notice of the money paid into Court, may elect to accept the sum paid into Court in satisfaction of the claim against the defendant or defendants making the payment; and (b) the plaintiff may continue with the action against any other defendant or defendants, but the sum paid into Court and any interest is to be set off against any damages awarded to the plaintiff against the defendant or defendants against whom the action is continued. (7) The plaintiff is to give notice in writing of acceptance under subrule (6)(a) to all defendants. (8) On giving notice, the plaintiff is entitled, except as otherwise provided by these rules or in the case of a person under disability subject to rule 299, to receive payment of – (a) any sum of money accepted in satisfaction of the claim or in satisfaction of the cause of action to which the money relates; and (b) any interest earned on the money since its payment into Court. (9) The costs of the plaintiff as against a defendant whose payment into Court was accepted are to be in the discretion of the Court or a judge. 273Compensation recovery (1) This rule applies if a defendant or the insurer of a defendant is, in relation to the plaintiff’s cause of action – (a) for the purposes of Division 4 of Part 3.14 of the Social Security Act 1991 of the Commonwealth, a compensation payer or potential compensation payer; or (b) a compensation payer within the meaning of the Health and Other Services (Compensation) Act 1995 of the Commonwealth. (2) A defendant making a payment into Court may – (a) endorse the notice of payment into Court with a statement in writing that this rule applies to the payment; or (b) file and serve such a statement. (3) If a defendant makes a payment under subrule (2) and a plaintiff accepts the payment – (a) the registrar, on behalf of the defendant, is to give notice in accordance with section 1173 of the Social Security Act 1991 of the Commonwealth; and (b) a payment out is not to be made until – (i) a recovery notice has issued under section 1174 of the Social Security Act 1991 of the Commonwealth; or (ii) the Secretary gives notice that a recovery notice under that section is not to be issued; and (c) the amount paid in is to be paid out in satisfaction of the amount specified in the recovery notice and any balance is to be paid to the plaintiff. 274Payment into Court on counterclaimAny defendant to a counterclaim may pay money into Court in accordance with this Part. 275Payment into Court not to be pleaded (1) Except in an action to which a defence of tender before action is pleaded or in which a plea under the Defamation Act 1957 has been raised – (a) a statement of the fact that money has been paid into Court under this Part is not to be inserted in any pleading; and (b) communication of that fact is not to be made to the judge or jury at the trial of the action until all questions of liability and of the amount of debt or damages are determined. (2) In exercising any jurisdiction as to costs, the Court or a judge is to take into account the fact that a payment into Court has been made and the amount of the payment. 276Payment out of Court (1) Money paid into Court under an order of the Court or a judge is not to be paid out of Court, otherwise than under an order of the Court or a judge. (2) Notwithstanding subrule (1), if a defendant has paid money into Court under an order under Division 3 of Part 11 before the delivery of a defence, the defendant – (a) unless the Court or a judge otherwise orders, may appropriate by notice in writing the whole or any part of that money and any additional payment, if necessary, to the whole or any specified part of the plaintiff’s claim; or (b) if the defendant has pleaded tender before action, may appropriate by that defence the whole or any part of the money in Court as payment into Court of the money alleged to have been tendered. (3) Any money appropriated under subrule (2) is taken to be money paid into Court under this Part or money paid into Court with a plea of tender. 277Notice of payment into Court under an order (1) If the Court or a judge orders that a person pay money into Court, the order is to specify – (a) the parties to whom notice of the payment is to be given; and (b) the manner in which notice is to be given. (2) As soon as possible after a person makes a payment under an order, the person is to give notice of the payment to any party, and in any manner, specified in the order. 278Payment out in the case of small intestate estatesThe Court or a judge may direct that a fund or share of a fund be paid to any spouse, child, parent or sibling of a deceased person who would be entitled to a grant of administration if – (a) the estate of the deceased person who has died intestate is entitled to a fund in Court or a share of the fund not exceeding $20 000; and (b) letters of administration of the estate are not granted; and (c) the assets in the estate, including the fund or share of the fund to which the estate is entitled, do not exceed $20 000 in value. PART 9Offer of compromise279Interpretation of Part 9In this Part – claim includes a counterclaim and a cross-application; contribution claim means a claim to recover contribution from, or indemnity against, any person; defendant includes – (a) a respondent to an originating application; and (b) a defendant by counterclaim; and (c) a respondent by cross-application; plaintiff includes – (a) an applicant by originating application; and (b) a defendant who has filed and served a counterclaim; and (c) a respondent who has filed and served a cross-application. 280Offer of compromise (1) A party to any proceedings may make to another party to the proceedings an offer of compromise of a claim of that other party or a claim made against that other party. (2) An offer of compromise is to be – (a) lodged with the registrar; and (b) served on the other party. (3) An offer of compromise may be made by a defendant by offering to – (a) [Rule 280 Subrule (3) amended by S.R. 2016, No. 122, Applied:11 Jan 2017] pay a nominated sum of money, clear of costs, to the plaintiff; or (b) [Rule 280 Subrule (3) amended by S.R. 2016, No. 122, Applied:11 Jan 2017] pay a proportion, expressed as a percentage, of the plaintiff’s claim; or (c) give the plaintiff any relief that the defendant contends is sufficient to dispose of the whole action or one or more causes of action. (4) An offer of compromise may be made by a plaintiff by offering to – (a) [Rule 280 Subrule (4) amended by S.R. 2016, No. 122, Applied:11 Jan 2017] accept a nominated sum of money clear of costs; or (b) [Rule 280 Subrule (4) amended by S.R. 2016, No. 122, Applied:11 Jan 2017] accept a nominated sum of money clear of costs after giving credit to the defendant for any set-off or counterclaim raised by the defendant against the plaintiff; or (c) concede a proportion, expressed as a percentage, of the plaintiff’s claim; or (d) accept any relief that the plaintiff contends is sufficient to dispose of the whole action or one or more causes of action. (4A) [Rule 280 Subrule (4A) inserted by S.R. 2016, No. 122, Applied:11 Jan 2017] An offer of compromise is to include a term as to costs as provided by rule 281(c). (5) A party may make – (a) more than one offer of compromise; and (b) an offer of compromise to more than one party. (6) A party may make an offer of compromise at any time before the commencement of the trial in respect of the claim to which it relates. (7) An offer of compromise is open for any period, not less than 14 days after service of the offer, specified in the offer. (8) An offer of compromise may be made by or to 2 or more plaintiffs or defendants jointly. 281Form of offerAn offer of compromise – (a) is to be in writing; and (b) is to contain the following: (i) the title of the proceeding to which it relates; (ii) the name of the party making the offer; (iii) the name of the party to whom the offer is made; (iv) a statement that it is served in accordance with this Part; and (c) [Rule 281 Amended by S.R. 2016, No. 122, Applied:11 Jan 2017] is to include an offer to pay or accept – (i) [Rule 281 Amended by S.R. 2017, No. 101, Applied:20 Dec 2017] the whole, or a stated proportion, of a party’s costs on a specified scale; or (ii) [Rule 281 Amended by S.R. 2017, No. 101, Applied:20 Dec 2017] the whole, or a stated proportion, of a party’s costs on a scale to be determined by the Court or a judge following acceptance of the offer; or (iii) [Rule 281 Amended by S.R. 2017, No. 101, Applied:20 Dec 2017] the whole, or a stated proportion, of a party’s costs in a specified sum; or (iv) no costs; and (d) is to specify the cause or causes of action to which the offer relates; and (e) is to state whether or not the offer is made in addition to any payment into Court previously made by the offerer under Part 8. 282Acceptance of offer of proportion of unliquidated sumUnless the Court or a judge otherwise orders, if a claim is for an unliquidated sum, a party accepting an offer of compromise in the form of an offer to accept or concede a proportion of the claim is entitled to enter interlocutory judgment for the agreed proportion of damages to be assessed. 283Acceptance of offer (1) A party to whom an offer of compromise is made may accept the offer by serving notice of acceptance in writing on the party who made the offer before whichever is the earlier of the following: (a) the expiration of any period specified in the offer or, if no period is specified, the expiration of 14 days after service of the offer; (b) the delivery of a verdict or judgment in respect of the claim to which the offer relates. (2) An offer of compromise must not be withdrawn during the period within which it may be accepted unless the Court or a judge otherwise orders. (3) An offer of compromise is open to be accepted within the period referred to in subrule (1) even if during that period the party on whom the offer is served makes an offer of compromise to the party who served the first offer, whether or not the second offer is made in accordance with this Part. 284Costs [Rule 284 Substituted by S.R. 2016, No. 122, Applied:11 Jan 2017] (1) Where an offer of compromise to which rule 281(c)(i) applies is accepted, the party to whom costs are payable may tax costs after the expiry of 7 days after the date of acceptance. (2) Where an offer of compromise to which rule 281(c)(ii) applies is accepted, the party to whom costs are payable must apply to the Court or a judge within 14 days after the date of acceptance for a determination of the scale on which costs are to be paid. (3) Where an offer of compromise is made under rule 280(3)(a) or rule 280(4)(a) and the party to whom it is made wishes to accept it but not the term relating to costs under rule 281(c), that party may accept the nominated sum but must apply to the Court or a judge within 14 days after the date of acceptance for a determination of that party’s entitlement to recover, or liability to pay, costs. (4) A term in an offer of compromise that purports to negative or limit the effect of this rule or rule 281(c) is of no effect for any purpose under this Part. (5) A party to whom costs are payable under this rule may, unless the Court or a judge orders otherwise, sign judgment for the taxed costs after the expiration of 2 days after the conclusion of the taxation. 285Offer of compromise to be without prejudiceAn offer of compromise made in accordance with this Part is made without prejudice unless the offer provides otherwise. 286Disclosure of offer to Court (1) A statement of the fact that an offer of compromise has been made must not be contained in any pleading or affidavit. (2) Except as provided by rule 288(3), communication of an offer of compromise that is not accepted must not be made to the judge or jury at the trial of the proceeding to which the offer relates until all questions of liability and the relief to be granted are determined. (3) This rule applies only to an offer of compromise made without prejudice. 287Party under disabilityA person under disability may make or accept an offer of compromise, but an acceptance of the person’s offer and an acceptance by the person of an offer are not binding until the Court approves the compromise. 288Failure to comply with accepted offer (1) If a party to an accepted offer of compromise fails to comply with the terms of the offer within 14 days of its acceptance, the other party, at his or her election, is entitled to – (a) judgment in terms of the offer together with costs in accordance with rule 284 and costs of the judgment; or (b) if the party in default is the plaintiff, an order that the proceeding be dismissed and the plaintiff pay the defendant’s costs; or (c) if the party in default is the defendant, an order that the defence be struck out and the defendant pay the plaintiff’s costs. (2) Subrule (1) does not apply – (a) to an offer by a party to accept or concede a proportion of the other party’s claim; or (b) if, for any special cause, the Court or a judge otherwise orders. (3) If a party to an accepted offer of compromise fails to comply with the terms of the offer, the Court or a judge may make any order or give any judgment that the Court or judge thinks fit concerning the continuation of any proceeding, claim or counterclaim that is not the subject of the accepted offer. (4) The Court or a judge may set aside a judgment entered under subrule (1)(b) or (c) on any terms that the Court or judge thinks fit. 289Costs in relation to failure to accept offer (1) Unless the Court or a judge otherwise orders, a plaintiff is entitled to an order for costs against the defendant taxed on a solicitor-client basis if – (a) the plaintiff has made an offer of compromise in accordance with this Part; and (b) the defendant has not accepted the offer at the time of the judgment; and (c) the judgment is no less favourable to the plaintiff than the terms of the offer. (2) Unless the Court or a judge otherwise orders, a plaintiff is entitled to an order for costs against the defendant, up to and including the day on which an offer of compromise was served, on a party and party basis and the defendant is entitled to an order for costs against the plaintiff in respect of the claim after service of the offer on a party and party basis if – (a) [Rule 289 Subrule (2) amended by S.R. 2005, No. 71, Applied:29 Jun 2005] the defendant has made the offer in accordance with this Part; and (b) the plaintiff has not accepted the offer at the time of the judgment; and (c) the judgment is no more favourable to the plaintiff than the terms of the offer. (3) Subrules (1) and (2) do not apply unless the Court or judge is satisfied that the party making the offer was at all material times willing and able to carry out his or her part of the offer. (4) For the purposes of this rule, the Court or judge is to disregard any amount of interest awarded to the plaintiff in relation to the period after the day on which the offer was served. (5) For the purposes of subrule (4), the Court or judge may be informed of the fact that an offer of compromise has been served and of the date of service, but not of the terms of the offer. 290Multiple defendantsIf 2 or more defendants are alleged to be jointly, or jointly and severally, liable to the plaintiff in respect of a debt or damages and a right of contribution or indemnity is alleged to exist between the defendants, the consequences as to costs referred to in rule 289 do not apply to an offer of compromise unless – (a) in the case of an offer made by the plaintiff, the offer is made to all the defendants and is an offer of compromise of the claim against them all; or (b) in the case of an offer made to the plaintiff – (i) the offer is to compromise the claim against all defendants; and (ii) if the offer is made by 2 or more defendants, by the terms of the offer the defendants making the offer are jointly and severally liable to the plaintiff for the whole amount of the offer. 291Offer to contribute (1) If in any proceeding a defendant makes a contribution claim in respect of any claim for a debt or damages made by the plaintiff in the proceeding, a party to the contribution claim may serve on any other party to the contribution claim an offer to contribute toward a compromise of the claim made by the plaintiff on any terms specified in the offer. (2) The Court or a judge may take an offer to contribute into account in determining whether the party on whom the offer to contribute was served is to pay the whole or a part of – (a) the costs of the party making the offer; or (b) any costs which the party making the offer is liable to pay to the plaintiff. (3) Rules 286 and 287 apply, with any necessary modification, to an offer to contribute as if it were an offer of compromise. PART 10PartiesDivision 1Persons under disability292Person under disability as party (1) A person under disability, by litigation guardian, may – (a) sue as a plaintiff; or (b) make an application; or (c) defend a proceeding. (2) A person under disability is not to file a notice of appearance otherwise than by litigation guardian. (3) An order for the appointment of a litigation guardian for a person under disability is not necessary. (4) [Rule 292 Subrule (4) amended by S.R. 2002, No. 80, Applied:10 Jul 2002] Subject to any order of the Court or a judge, a person authorised under the Guardianship and Administration Act 1995 to conduct proceedings in the name, or on behalf, of a represented person, is entitled to be litigation guardian of the person under disability in any proceeding to which the authority extends. 293Appointment of litigation guardian (1) Subject to rule 295, the name of a person is not to be used in any proceeding as litigation guardian of any party under disability unless – (a) the person has signed a written authority for that purpose; and (b) that authority has been filed in the registry. (2) [Rule 293 Subrule (2) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] A practitioner who files a notice of appearance for a person under disability is to make and file an affidavit at the same time. (3) The affidavit is to be in accordance with the prescribed form. 294Persons not to be litigation guardianA corporation or a person residing out of the jurisdiction of the Court must not be a litigation guardian unless the corporation or person – (a) has been appointed as litigation guardian by the Court or a judge; or (b) is authorised under the Guardianship and Administration Act 1995 to conduct or defend a proceeding in the name, or on behalf, of a represented person. 295Appointment by Court or judge of litigation guardianIf a person under disability does not have a litigation guardian, the Court or a judge may appoint as litigation guardian – (a) an appropriate person, with that person’s consent; or (b) [Rule 295 Amended by S.R. 2016, No. 122, Applied:11 Jan 2017] the Public Guardian under the Guardianship and Administration Act 1995. 296Removal of litigation guardianThe Court or a judge may remove a litigation guardian. 297Litigation guardian in proceedings in chambersIn proceedings in chambers under a judgment or order, the judge may require a litigation guardian to be appointed for a person under disability who is served with notice of the judgment or order. 298Consent on behalf of person under disability (1) In proceedings to which a person under disability is a party, any consent of the litigation guardian has the same effect as if the person under disability were not under disability and had given the consent. (2) A consent given under subrule (1) is valid only if it is given – (a) on behalf of a minor; or (b) with the approval of the Court or a judge. 299Compromise by person under disability (1) Subject to the Guardianship and Administration Act 1995, in any proceeding, any settlement, compromise, payment or acceptance of money paid into Court, so far as it relates to a claim for money by or on behalf of a person under disability, is not valid without the approval of the Court or a judge. (2) [Rule 299 Subrule (2) amended by S.R. 2001, No. 100, Applied:12 Sep 2001] If, before the start of a proceeding in which a claim for money is made by or on behalf of a person under disability, an agreement is reached for the settlement or compromise of the claim and the parties, by originating application, seek the approval of the Court or a judge of the settlement or compromise, the parties may apply for – (a) that approval and any orders and directions necessary to give effect to the approval or as may be appropriate; or (b) directions as to the further prosecution of the claim. (3) An originating application concerning a claim under the Fatal Accidents Act 1934 is to state the particulars mentioned in section 7 of that Act. (4) Unless the Court or a judge otherwise orders, an application under this rule is to be supported by – (a) an affidavit by the litigation guardian of the person under disability; and (b) [Rule 299 Subrule (4) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] an affidavit by the applicant’s practitioner as to the opinion of that practitioner – (i) indicating any considerations relevant to the settlement or compromise; and (ii) exhibiting copies of relevant material appearing in any medical report or hospital record relevant to the claim of the person under disability. (5) An affidavit under subrule (4) is to be filed in a sealed envelope endorsed with – (a) the title of the action; and (b) the name of the deponent; and (c) the date on which the affidavit was sworn; and (d) a statement that the envelope contains the affidavit of the deponent. (6) If the approval of the Court or a judge is sought under this rule – (a) it is not necessary for the applicant to deliver a copy of any affidavit filed in support of the application to any other party; and (b) that other party is not entitled to access the affidavit unless – (i) the Court or a judge otherwise orders; or (ii) the party filing the affidavit consents. 300Control of money recovered by persons under disability (1) Unless the Court or a judge otherwise directs, the following are to be paid to the Public Trustee: (a) money recovered by or on behalf of, or adjudged, ordered or agreed to be paid to, or for the benefit of, a person under disability; (b) money paid into Court and accepted by or on behalf of a person under disability. (2) Subject to subrule (3), any money paid to the Public Trustee under this rule in respect of a person under disability is, subject to any direction of the Court or a judge, to be held in trust and applied by the Public Trustee in any manner the Public Trustee thinks fit for the maintenance and education or otherwise for the benefit of that person. (3) [Rule 300 Subrule (3) amended by S.R. 2002, No. 80, Applied:10 Jul 2002] If the Public Trustee is the administrator of the estate of a person under disability, any money paid to the Public Trustee under this rule in respect of that person is, subject to any direction of the Court or a judge, to be dealt with in any manner in which the Public Trustee is authorised or required to deal with the property of that person under the Guardianship and Administration Act 1995. (4) If the Public Trustee holds any money in trust under subrule (2), the Public Trustee may at any time ask the Court or a judge – (a) for directions as to the trust or its administration; or (b) to vary any directions already given in relation to the trust; or (c) to determine any question arising in relation to the trust. (5) The Court or a judge may give any directions or determination it considers appropriate. 301Costs of plaintiff under disability (1) The costs of a plaintiff under disability in a proceeding to which rule 299 applies are to be taxed by the taxing officer as between party and party and as between practitioner and client. (2) If, in relation to any proceeding, a taxation is required to be made under subrule (1), costs, other than those certified under that subrule, are not payable to the practitioner for any plaintiff in the proceeding. (3) The taxing officer is to certify the respective amounts of the party and party and solicitor and client costs and any difference or proportion payable by the parties to the proceeding. (4) If in any proceeding referred to in subrule (1) any sum is required under this rule to be paid to the Public Trustee, the taxing officer taxing any costs under that subrule in relation to that proceeding is to notify the result of the taxation to the Public Trustee. (5) [Rule 301 Subrule (5) amended by S.R. 2001, No. 100, Applied:12 Sep 2001] If the practitioner of a plaintiff in any proceeding to which rule 299 applies indicates to the defendant that the practitioner is claiming from the client only party and party costs in the proceeding, the parties may agree on those costs without having them taxed if the application in respect of the proceeding discloses the amount of those costs. (6) Notwithstanding that the parties have agreed upon party and party costs – (a) any party has the right to have those costs taxed; and (b) the Court or a judge may direct that those costs be taxed. Division 2Executors, administrators and trustees302Application of Division 2 of Part 10This Division applies to a proceeding relating to – (a) the administration of the estate of a deceased person; or (b) property subject to a trust; or (c) the construction of an instrument including an Act. 303Representation of unascertained persons (1) The Court or a judge may appoint one or more persons to represent any person or class of persons, including an unborn person, who is or may be interested in or affected by a proceeding if – (a) the person or class or a member of the class cannot be readily ascertained; or (b) the person or class or a member of the class cannot be found; or (c) the contingent right of any unborn person may be affected by the proceeding and it is desirable to have the proceeding determined before the person is born; or (d) it is expedient in all the circumstances, including the amount involved and the degree of difficulty of the point to be determined, to make the appointment for the purpose of saving expense. (2) A judgment or order binds any person or class represented by another person appointed under subrule (1) as if the person or each member of that class were parties. 304Compromises (1) This rule applies if a compromise of a proceeding is proposed and any person including an unborn or unascertained person interested in, or who may be affected by, the compromise is not a party to the proceeding and – (a) there is another person in the same interest before the Court who assents to the compromise or on whose behalf the Court or a judge sanctions the compromise; or (b) the person who is not a party is represented by a person appointed under rule 303(1) and that person assents to the compromise. (2) The Court or judge may approve a compromise and order that it is binding on any absent person if satisfied that – (a) the compromise is for the benefit of the absent person; and (b) to require service on that person would cause unreasonable expense or delay. (3) An absent person is bound by an order under subrule (2) in accordance with its terms as if he or she were a party. 305BeneficiariesIf a party sues or is sued as trustee or personal representative – (a) it is not necessary to join as a party any person having a beneficial interest under the trust or in the estate; and (b) a judgment or order in the proceedings binds that person as it does the trustee or personal representative. 306Deceased person (1) A person against whom a proceeding may be continued after the death of the plaintiff or applicant may apply to compel any person entitled to proceed to do so. (2) On the hearing of an application, the Court or a judge may order that the person entitled to proceed do so within any period specified in the order. (3) If a person entitled to proceed fails to comply with an order – (a) judgment may be entered for the defendant with costs, if the proceeding is an action; or (b) the application may be dismissed with costs, if the proceeding is not an action. (4) Execution may issue for the costs as is provided for by rule 878. Division 3Partners and sole proprietors307Application to proprietary clubsFor the purposes of this Division – (a) the proprietors of a proprietary club are taken to be persons carrying on business in partnership; and (b) the name of the club is taken to be a firm name. 308Actions by and against firms and proprietary clubs (1) Any 2 or more persons claiming, or being liable, as partners and carrying on business in Tasmania may sue or be sued in any firm name under which those persons carried on business in partnership at the time of the accrual of the cause of action. (2) The proprietors of a proprietary club may sue and be sued in the name of the club. 309Disclosure of partners' names (1) Any partners bringing an action in their firm name, on demand in writing by or on behalf of a defendant, are to declare in writing the names and addresses of all the persons constituting the firm. (2) If the plaintiffs comply with a demand under subrule (1), the action is to proceed in the name of the firm in the same manner and with the same consequences as if they had been named as the plaintiffs in the writ. (3) If the plaintiffs fail to comply with a demand under subrule (1), on application of the party making the demand, the Court or a judge may order that all proceedings in the action be stayed on any terms as are just. (4) If the plaintiffs fail to comply with a demand under subrule (1) or if the party making that demand is not satisfied with the declaration made, the Court or a judge, on the application of that party, may order that – (a) the plaintiffs provide a statement of the names and addresses of the persons who, at the time of the accrual of the cause of action, were partners in the firm; and (b) the statement be provided in a particular manner; and (c) the statement be verified on oath or otherwise. 310Service (1) If persons are sued as partners in a firm name, the writ may be served – (a) on one or more of the partners; or (b) on a person who, at the time of service, has the control or management of the partnership business at the principal place of business of the partnership within the jurisdiction. (2) Service in accordance with subrule (1) is taken to be service on each of the members of the firm sued, whether or not any of the members of the firm are out of Tasmania. (3) If a partnership is dissolved before the commencement of an action – (a) the writ is to be served on every person within Tasmania sought to be made liable; and (b) that service is taken to be service on any former partner out of Tasmania. (4) Any person served with a writ is to be informed by notice in writing, given at the time of service, stating whether the person is served – (a) as a partner; or (b) as a person having the control or management of the partnership business; or (c) as both. (5) If a notice is not given under subrule (4), the person served is taken to have been served as a partner. 311Appearance by partners (1) If persons are sued as partners in the name of their firm – (a) they are to appear individually in their own names; and (b) the action is to continue in the name of the firm. (2) A person served with a writ under rule 310(4)(b) is not to appear to the writ. (3) A person served as a partner may file a notice of conditional appearance denying that he or she is a partner. (4) A notice of conditional appearance does not preclude the plaintiff from otherwise serving the firm and obtaining judgment against the firm in default of appearance if no partner files a notice of appearance in the ordinary form. 312Execution of judgment against a firm (1) If a judgment or order is against a firm, execution may issue against – (a) any property of the partnership within the jurisdiction; or (b) any person who – (i) lodged a notice of appearance in his or her name; or (ii) was individually served with the writ as a partner and failed to lodge a notice of appearance; or (iii) admitted in a pleading to being, or having been at the material time, a partner; or (iv) was adjudged by the Court or a judge to have been a partner at a material time. (2) A party who obtains judgment or an order against a firm may issue execution, with the leave of the Court or a judge, against a person, other than a person referred to in subrule (1)(b), if the person is, or was at the material time, a member of the firm. (3) On an application for leave under subrule (2) – (a) if liability is not disputed, the Court or a judge may grant leave; or (b) if liability is disputed, the Court or a judge may order that the liability of the person be tried and determined in any manner in which any issue of fact or question in an action may be tried and determined. (4) Except as to the property of the partnership, a judgment or order against a firm does not affect a member of the firm who has not appeared and who was out of Tasmania when the writ was issued unless the member – (a) has been made a party to the action; or (b) has been served within Tasmania. 313Application to actions between firms and membersThis Division applies to an action – (a) between a firm carrying on business in Tasmania and one or more of its members; and (b) between firms carrying on business in Tasmania and having one or more members in common. 314Persons trading under another nameA person who carries on business within the jurisdiction in a name other than his or her name may sue or be sued in that other name as if it were a firm name. Division 4Societies315Interpretation of Division 4 of Part 10In this Division – formal codefendant means a person – (a) joined as a codefendant as an officer of a society under rule 320(1) or whose name is added to a writ under an order made under rule 320(4) or rule 326(3)(b); and (b) against whom remedy or relief is not sought otherwise than as a member of the society; formal coplaintiff means a person – (a) joined as a coplaintiff as an officer of a society under rule 320(1); and (b) for whom remedy or relief is not sought otherwise than as a member of the society. 316ApplicationThe procedure provided for by this Division with respect to actions by or against a society is an optional procedure. 317Members of society may sueAny number of persons claiming as members of a society may sue in the name of the society if, at the time the cause of action on which the claim is grounded arose, the society carried out any of its objects within Tasmania. 318Claims may be joinedA claim by an officer of a society may be joined with a claim in respect of the same matter on behalf of the members of the society. 319Enforcement of claimA person making a claim against a member or an officer of a society in respect of membership of the society or any liability incurred arising out of the conduct or management of the affairs of the society may enforce the claim by an action in which the society is named as a defendant. 320Officer to be joined as coplaintiff or codefendant (1) In an action in which a society is named as a party, an officer of the society is to be joined in the action as coplaintiff or codefendant with the society. (2) More than one coplaintiff or codefendant may be joined. (3) Each coplaintiff and codefendant is to be described in the writ and in the title of all subsequent proceedings by his or her office in the society. (4) On the application of an officer or member of a society which is a defendant to an action, the Court or a judge may order the writ and any subsequent proceedings to be amended by adding the officer or member as a formal codefendant. 321Claim against membersIn an action under rule 319, the plaintiff may join a claim in respect of the same act, transaction or matter against any officer of the society in respect of which the officer could be sued alone. 322Service of writA writ in an action in which a society is named as a defendant is to be served – (a) on each officer joined as a formal codefendant; and (b) if a claim is made against an officer of the society, on the officer. 323Appearance by formal codefendantA notice of appearance filed by a formal codefendant is taken to be entered on behalf of the society as well as on behalf of the formal codefendant. 324Names to be supplied (1) On demand in writing by a defendant, a formal coplaintiff is to declare in writing the names and addresses of all the persons constituting the society on whose behalf the action is brought. (2) If a formal coplaintiff fails to comply with a demand under subrule (1) and no other formal coplaintiff complies with a similar demand, on the application of the defendant making the demand, the Court or a judge may direct all proceedings in the action to be stayed. (3) A direction may be on any terms. (4) If a formal coplaintiff complies with a demand under subrule (1), the action is to proceed – (a) as if the persons declared had been named as plaintiffs in the writ; and (b) in the names of the society and each coplaintiff. 325Supply of namesOn the application of a party to an action to which a society is a party, the Court or a judge may order – (a) that – (i) a formal coplaintiff or formal codefendant deliver to the applicant a statement of the name and address of each person who was a member of the society at the time of the accrual of the cause of action or at the time the writ was issued; and (ii) the statement be verified on oath or otherwise; or (b) that disclosure of each person who was a member of the society at the time of the accrual of the cause of action or at the time the writ was issued be made in some other manner. 326Conditional appearance by formal codefendant (1) A formal codefendant may file a notice of conditional appearance denying that he or she was an officer of the society at the time of service of the writ. (2) If a formal codefendant files a notice of conditional appearance and another officer of the society who is also joined as a defendant files a notice of appearance, the action is to proceed as if the person who entered the conditional appearance had not been joined as a formal codefendant. (3) If each formal codefendant files a notice of conditional appearance denying that he or she was an officer of the society at the time of service of the writ and each establishes that he or she was not an officer at that time, the Court or a judge, on the application of a party, may amend the writ by –
(a) striking out the name of each formal codefendant; and (b) adding as formal codefendant any person alleged by the applicant to be an officer of the society or, if such an allegation is not made, any person alleged by the applicant to be a member of the society. (4) On service of the writ and any order adding a person as a formal codefendant, the action is to proceed as if the person had been originally joined in the action as a formal codefendant. 327Application to strike out conditional appearance (1) A plaintiff may apply to strike out a notice of conditional appearance on the ground that the person filing it, at the time the writ was served, was an officer or member of the society if the notice of conditional appearance – (a) is filed by a formal codefendant and denies that he or she is an officer or member of the society and no formal codefendant files a notice of unconditional appearance; or (b) is filed by a person joined as a defendant as an officer of the society but not as a formal codefendant and denies that he or she is an officer or member of the society. (2) On the hearing of an application, the Court or a judge may direct the trial of an issue to determine the question whether or not the person filing the notice of conditional appearance was an officer or member of the society at the time of service of the writ. (3) An issue under subrule (2) may be tried and determined in any manner in which any issue or question in an action may be tried and determined. 328Judgment against society as plaintiffIn an action instituted under rule 317 in which judgment is given for the defendant, the judgment is to be entered – (a) against the society as if it were a corporation; and (b) against each formal coplaintiff. 329Judgment against society as defendant (1) If a society is the defendant to an action, judgment is not to be entered against it unless the cause of action is one in respect of which it would have been liable as principal were it a corporation. (2) Subrule (1) does not apply to a judgment establishing the right of a person as a member of the society and restraining the exclusion of that person from the rights, benefits and privileges of membership. (3) In an action instituted under rule 319 in which an officer of the society is joined in the action otherwise than as a formal codefendant and the claim referred to in that rule against the officer succeeds, judgment is to be entered against the officer. (4) Subject to rule 331, in an action instituted under rule 319, judgment is to be entered against a society alone as if it were a corporation if – (a) no officer of the society is joined in the action otherwise than as a formal codefendant, and judgment is given or is to be entered for the plaintiff; or (b) an officer of the society is joined in the action otherwise than as a formal codefendant and the claim against the officer fails, but judgment is given or is to be entered for the plaintiff. 330Enforcement of judgment (1) A judgment entered against an officer or member of a society may be enforced against him or her as if the society were not a party to the action. (2) A judgment entered against a society may be enforced against the common property of the members of the society as if it were a corporation and the property were the property of the society. 331Enforcement of judgment against members of society (1) A plaintiff may apply for the leave of the Court or a judge to enforce a judgment against any past or present member of the society against whom judgment could have been recovered in respect of the same matter as that to which the judgment to be enforced relates in an action instituted by the plaintiff against that member. (2) On an application under subrule (1), the Court or a judge – (a) if the member does not dispute liability, may grant leave; or (b) if the member disputes liability, may order that the question of the liability be tried and determined in any manner in which an issue in an action may be tried and determined. 332Judgment for injunctionIn an action instituted under rule 319, if an injunction is granted or an order is made that any act be done or instrument be executed, the judgment or order may be enforced, with the leave of the Court or a judge, against any officer or member of the society, even though the officer or member is not a party to the action. 333Claims against members otherwise than as members (1) In an action in which a society is named as a defendant, a claim may be joined against a person who is a member or officer of the society in respect of any claim against the person, otherwise than as a member of the society, if the joinder is authorised by Division 12 of Part 7. (2) If a claim is joined in accordance with subrule (1), the action, so far as it concerns that claim, is to proceed as if the person against whom the claim is made were the only defendant to the action. 334Claims against officersIn an action in which a society is named as a defendant, a claim may be joined against a person otherwise than as an officer of the society as an alternative claim against the same person as an officer of the society. Division 5Representative proceedings335Application of Division [Rule 335 Substituted by S.R. 2019, No. 50, Applied:09 Sep 2019] This Division applies to representative proceedings commenced under Part VII of the Act. 335AInterpretation [Rule 335A Inserted by S.R. 2019, No. 50, Applied:09 Sep 2019] A word or expression used in this Division and in Part VII of the Act has the same meaning in this Division as it has in that Part. 335BOriginating process [Rule 335B Inserted by S.R. 2019, No. 50, Applied:09 Sep 2019] (1) In the heading of an originating process in representative proceedings, and in each document filed in support of the originating process, next to the name of the plaintiff or the applicant, the words “as a representative party under Part VII of the Supreme Court Civil Procedure Act 1932 ” are to be added. (2) The originating process in representative proceedings is to be accompanied by a notice in accordance with the prescribed form. 335COpt-out notices [Rule 335C Inserted by S.R. 2019, No. 50, Applied:09 Sep 2019] (1) In this rule – opt-out date means the date fixed by the Court before which a group member may opt out of representative proceedings. (2) If a group member opts out of representative proceedings in accordance with section 71(2) of the Act, the group member is to file and serve, on the relevant representative party, a notice in the prescribed form before the opt-out date. (3) A representative party on whom a notice is served in accordance with subrule (2) must provide to each of the other parties to the proceedings, within 14 days after the opt-out date, a list of persons who have filed and served a notice in accordance with subrule (2). 335DProcedural applications [Rule 335D Inserted by S.R. 2019, No. 50, Applied:09 Sep 2019] An application under section 72, 83, 84 or 87 of the Act must be accompanied by an affidavit stating – (a) the identity of each group member; and (b) the postal address of each group member; and (c) the means by which information may most effectively be given to the group members. Division 5ARepresentative defendants336Numerous defendants [Rule 336 Substituted by S.R. 2019, No. 50, Applied:09 Sep 2019] In any proceeding in which 7 or more persons – (a) are subject to the same or a common obligation; or (b) have the same or a common interest in or in respect of, or are under the like obligations in respect of, a fund or other property; or (c) otherwise have a common interest in any matter – one or more of those persons may be sued or made respondent or may be authorised by the Court or a judge to defend the proceeding with respect to the obligation or interest on behalf, or for the benefit, of all persons subject to the obligation or having the interest. Division 6Notice of constitutional matters337Interpretation of Division 6 of Part 10In this Division, [Rule 337 Amended by S.R. 2001, No. 100, Applied:12 Sep 2001] State includes the Australian Capital Territory and the Northern Territory. 338Notice of constitutional matter (1) A party whose case raises a matter arising under the Constitution or involving its interpretation, within the meaning of section 78B of the Judiciary Act 1903 of the Commonwealth, is to file a notice of a constitutional matter as soon as practicable, unless the Court or a judge directs another party to do so. (2) A notice is to state specifically the nature of the matter and the facts showing that the matter is one to which subrule (1) applies. 339Filing and service of notice (1) Subject to subrule (3), a party filing a notice of a constitutional matter is to serve a copy of the notice on – (a) each other party; and (b) the Attorney-General of the Commonwealth, if that Attorney-General or the Commonwealth is not a party; and (c) the Attorney-General of each State, if that Attorney-General or State is not a party. (2) Unless the Court or a judge otherwise orders, the copy is to be served as soon as practicable after the notice is filed. (3) A party is not required to serve an Attorney-General if the party takes steps that could reasonably be expected to cause the matters in the notice to be brought to the attention of that Attorney-General. (4) The party serving a copy of the notice is to file an affidavit of service as soon as practicable after service. PART 11JudgmentsDivision 1Judgment by consent340Order for judgment by consent (1) A judge may order that judgment be entered in terms consented to by each party to a proceeding. (2) If the judge considers that an application for judgment by consent ought to be dealt with in open court, the judge is to adjourn into Court and order that the judgment be entered. (3) Unless satisfied that it is proper to make an order that judgment be entered by consent, the Court or judge is not to make the order if it – (a) affects the interests of a person under disability; or (b) requires the exercise of a discretion by reference to matters other than those personal to the parties. (4) A judgment entered by consent under this rule is to be in accordance with the prescribed form. 341Judgment by consent on filing memorandum (1) On the filing of a memorandum of consent signed by or on behalf of each party in a proceeding, the registrar may – (a) enter judgment in accordance with that memorandum; or (b) require that the matter be dealt with by a judge under rule 340. (2) If the memorandum of consent so provides, a judgment entered by the registrar may include any or all of the following: (a) a recital of an undertaking given by a party; (b) a notation of an agreement between 2 or more of the parties; (c) an order granting time for a party to do anything under the judgment; (d) an order staying execution absolutely or on specified conditions or for a specified period; (e) an order providing for the payment out of money paid into Court or the interest on that money; (f) any provision as to costs. (3) The registrar must not enter judgment if the matter – (a) affects the interests of a person under disability; or (b) requires the exercise of a discretion by reference to any matter other than a matter personal to the parties. (4) A practitioner representing a party is to sign the memorandum on behalf of the party. (5) If a party is acting in person and is not a practitioner, the registrar is not to enter judgment against that party in accordance with a memorandum unless – (a) the party attends before the Principal Registrar, the Deputy Registrar, the Assistant Deputy Registrar or a district registrar and consents in writing to the judgment in person; or (b) that written consent is attested by a practitioner acting on behalf of that party. (6) A memorandum of consent and a judgment entered upon it under this rule are to be in accordance with the prescribed form. Division 2Judgment in default of appearance or pleading342Interpretation of Division 2 of Part 11In this Division, defaulting defendant means a defendant who does not – (a) appear to a writ within the period required by these rules; or (b) file and deliver a defence within the period required by these rules. 343Application of Division 2 of Part 11This Division applies to any proceeding other than a proceeding by a mortgagee for possession of land. 344Judgment not to be entered by party to marriage (1) Judgment in default of appearance or defence is not to be entered in an action in tort brought by one party to a marriage against the other during the subsistence of the marriage, otherwise than with the leave of a judge given on an application. (2) An application for leave is to be – (a) filed after the time limited for appearance or for the delivery of a defence; and (b) served on the defendant. 345Default of appearance of person under disability (1) If a defendant under disability has not appeared by litigation guardian, the plaintiff, before proceeding further in the action, is to apply to the Court or a judge for an order that a person be appointed as litigation guardian of the defendant. (2) On an application under subrule (1), the Court or a judge may make an order appointing a litigation guardian if – (a) the guardian is a person who may become a litigation guardian under Division 1 of Part 10; and (b) the writ was duly served; and (c) subject to any order to the contrary, after the expiration of the period limited by the writ for the filing of a notice of appearance, the application is served on the defendant in the same manner as the writ is required to be served. (3) A litigation guardian appointed by an order has the same period for filing and serving a notice of appearance after the service of the order on the litigation guardian as if the order were the writ. 346Proof of service and default (1) Before proceeding on default of appearance by a defendant, the plaintiff is to file an affidavit of service of the writ on the defendant. (2) Before proceeding on default of defence by a defendant – (a) [Rule 346 Subrule (2) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] the plaintiff’s practitioner personally must certify in writing to the registrar that the defendant has failed to deliver a defence within the time limited; or (b) if the plaintiff is acting in person, the plaintiff must file an affidavit verifying the facts entitling him or her to enter judgment in default of defence. 347Final judgment for liquidated demand (1) If the plaintiff’s claim is for a debt or liquidated demand only against a defaulting defendant, the plaintiff may enter final judgment against that defendant for the amount claimed, together with costs and – (a) if the endorsement on the writ or the statement of claim contains a claim that the plaintiff is entitled, contractually or under any statute, other than the Act, to interest at a particular rate from a particular date on the amount of that claim, an amount representing the interest claimed calculated up until the day on which final judgment is entered; or (b) if the endorsement on the writ or the statement of claim contains a claim that the plaintiff is entitled to interest under section 34(1) of the Act together with particulars of the basis of that claim and the date from which interest is claimed, an amount representing the interest claimed at the prescribed rate of interest calculated up until the day on which final judgment is entered. (2) The costs referred to in subrule (1) are – (a) if each defendant against whom the judgment is entered failed to appear – (i) the amount for costs properly claimed in the writ; and (ii) the costs of signing judgment in accordance with the Table in Part 3 in Schedule 1; and (iii) if the taxing officer thinks fit, an additional sum for the costs of service of the writ; or (b) in any other case, an amount to be taxed. (3) [Rule 347 Subrule (3) inserted by S.R. 2014, No. 46, Applied:23 Apr 2014] A debt or liquidated demand referred to in subrule (1) is taken to include a claim pursuant to an Act or Commonwealth Act for the recovery of a sum of money that has been paid pursuant to an Act or Commonwealth Act. 348Interlocutory judgment for unliquidated demand (1) If a plaintiff’s claim is for pecuniary damages only or for detention of goods with or without a claim for pecuniary damages against a defaulting defendant, the plaintiff may enter interlocutory judgment against that defendant for damages to be assessed or for the return of the goods or the recovery of their value. (2) If interlocutory judgment is entered against one or more defaulting defendants but not against all the defendants, the assessment of damages under that judgment is to proceed at the same time as the trial of the action or issue against the other defendant or defendants, unless the Court or a judge otherwise directs. 349Liquidated demand, detention of goods and damagesIf a plaintiff’s claim against a defaulting defendant is for a liquidated demand and for pecuniary damages, or for detention of goods with or without a claim for pecuniary damages, the plaintiff may enter – (a) [Rule 349 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] final judgment against that defendant for the debt or liquidated demand in accordance with rule 347; and (b) interlocutory judgment for damages to be assessed or for the return of the goods or the recovery of their value in accordance with rule 348. 350Recovery of land and mesne profits (1) If a plaintiff’s claim is for the recovery of land against a defaulting defendant, or a defendant who files a notice of appearance stating that the defence is limited to part only of the land, the plaintiff may enter final judgment against the defendant for possession of the land, or of the part of the land to which the defence does not apply, and costs in accordance with rule 347(2). (2) If the plaintiff is entitled to enter final judgment and has claimed mesne profits, arrears of rent, double value or damages concerning the land which is the subject of the judgment, the plaintiff may also enter judgment with respect to that claim in accordance with rule 348. 351Judgment for part unanswered by defence (1) If a defendant delivers a defence to part only of a plaintiff’s alleged cause of action, the plaintiff, by leave of the Court or a judge, may enter final or interlocutory judgment for the part unanswered if – (a) the part unanswered consists of a separate cause of action or is severable from the rest; and (b) if the plaintiff’s claim is for one or more of the following: (i) a debt or liquidated demand; (ii) pecuniary damages only; (iii) the detention of goods, with or without a claim for pecuniary damages; (iv) the recovery of land. (2) If a defendant has a counterclaim, execution on a judgment entered under subrule (1) is not to issue without leave of the Court or a judge. 352Default by any other partyIf an issue arises in an action other than between plaintiff and defendant and a party to the issue does not deliver any pleading, the Court or a judge, on the application of the opposite party, may give any judgment as may be appropriate. 353Default in actions not otherwise specially provided for (1) In an action not provided for under this Division, the Court or a judge, on the application of the plaintiff, may give any judgment on the statement of claim to which the plaintiff is entitled against a defaulting defendant. (2) If a statement of claim is not endorsed on the writ, the plaintiff is to file a statement of claim before making an application under subrule (1). (3) In an action in which not all defendants are defaulting defendants and the cause of action is severable, the plaintiff may – (a) at any time apply under subrule (1) against any defaulting defendant; or (b) apply for judgment against any defaulting defendant at the trial of the action. (4) [Rule 353 Subrule (4) omitted by S.R. 2014, No. 46, Applied:23 Apr 2014] . . . . . . . . (5) An application for judgment is not to be made after the expiration of one year from the date on which the defendant became a defaulting defendant otherwise than with leave of the Court or a judge. 354Effect of judgment by defaultIf judgment by default is entered under this Division against one or more of several defendants, the entry of judgment or the issue of execution does not prejudice the plaintiff’s right to proceed in the action against any other defendant. 355Judgment by default set asideAny judgment by default under these rules may be set aside or varied by the Court or a judge either unconditionally or on any terms the Court or a judge considers appropriate. Division 3Summary judgment for plaintiff356Application by plaintiff for summary judgment (1) If a statement of claim has been served on a defendant in an action and the defendant has appeared in the action, the plaintiff may apply to a judge for judgment against the defendant on the ground that the defendant – (a) does not have a defence to a claim included in the writ or to a particular part of that claim; or (b) does not have a defence to that claim or part, other than as to the amount of any damages claimed. (2) This rule applies to any action begun by writ other than an action that includes a claim – (a) for defamation, malicious prosecution or false imprisonment; or (b) based on an allegation of fraud. 357Manner of application (1) An application under rule 356 is to be supported by an affidavit – (a) verifying the facts on which the claim to which the application relates is based; and (b) stating that, in the deponent’s belief – (i) there is no defence to that claim; or (ii) there is no defence other than as to the amount of any damages claimed. (2) [Rule 357 Subrule (2) substituted by S.R. 2004, No. 56, Applied:21 Jul 2004] Unless a judge otherwise directs, the hearsay rule does not apply to evidence in an affidavit made under subrule (1) if the party who adduces the evidence also adduces evidence of its source. (3) The application and a copy of the affidavit are to be served on the defendant not less than 4 clear days before the return day of the application. 358Judgment for plaintiff (1) On the hearing of an application for summary judgment, the judge is to give any judgment for the plaintiff against the defendant on the claim or a part of the claim as may be just having regard to the nature of the remedy or relief claimed, unless – (a) the judge dismisses the application; or (b) the defendant satisfies the judge with respect to the claim or a part of the claim that there is an issue or question in dispute that ought to be tried; or (c) the defendant satisfies the judge that for some other reason there ought to be a trial of the claim or a part of the claim. (2) A judge who gives judgment for the plaintiff may also order a stay of execution on the judgment, either unconditionally or on any terms, until after the trial of any counterclaim raised by the defendant in the action. 359Leave to defend (1) A defendant may show cause against an application for summary judgment by affidavit or otherwise. (2) [Rule 359 Subrule (2) substituted by S.R. 2004, No. 56, Applied:21 Jul 2004] Unless a judge otherwise directs, the hearsay rule does not apply to evidence in an affidavit made under subrule (1) if the party who adduces the evidence also adduces evidence of its source. (3) On the hearing of an application, the judge may order a defendant showing cause or, if the defendant is a corporation, any officer of the corporation – (a) to produce any document; or (b) to attend and be examined on oath if it appears to the judge that it is desirable because of special circumstances. (4) A judge is to grant leave either unconditionally or on any terms to defend the claim or a part of the claim if – (a) there is an issue or question in dispute that ought to be tried; or (b) for some other reason there ought to be a trial of the claim or a part of the claim. 360Application for summary judgment on counterclaim (1) Subject to subrule (2), if a defendant to an action has served a counterclaim on the plaintiff, other than a counterclaim that includes a claim of the type referred to in rule 356(2), the defendant may apply to a judge for judgment against the plaintiff on the ground that the plaintiff – (a) does not have a defence to a claim made in the counterclaim or to a particular part of that claim; or (b) does not have a defence to that claim or part, other than as to the amount of any damages claimed. (2) Rules 357, 358 and 359 apply to an application under subrule (1) as if – (a) a reference to the plaintiff and defendant were a reference to the defendant and plaintiff, respectively; and (b) the words "any counterclaim raised by the defendant in the action" in rule 358(2) were replaced with “the plaintiff’s action”. 361Directions (1) A judge may give any directions as to the further conduct of the action that may be necessary after the judge – (a) orders that a defendant or plaintiff have leave, whether conditional or unconditional, to defend any action or counterclaim with respect to a claim or a part of a claim; or (b) gives judgment for a plaintiff or defendant on a claim or a part of a claim and orders that execution of the judgment be stayed pending the trial of a counterclaim or of the action. (2) [Rule 361 Subrule (2) amended by S.R. 2008, No. 2, Applied:01 Mar 2008] If the parties consent, a judge may direct that the claim in question and any other claim in the action be tried by a judge of an inferior court of civil jurisdiction. 362Dismissal of application (1) A judge may dismiss an application under rule 356 or 360 with costs if – (a) the case is not within this Division; or (b) the plaintiff or defendant knew that the party against whom judgment was sought relied on a contention that would entitle that party to unconditional leave to defend. (2) The judge may require the costs to be paid immediately. 363Right to proceed with residue of action or counterclaim (1) A plaintiff who obtains judgment under rule 356 against a defendant to an action may proceed with the action with respect to any remaining claim or part of a claim or against any other defendant. (2) A defendant who obtains judgment under rule 360 against a defendant to a counterclaim may proceed with the counterclaim with respect to any remaining claim or part of a claim or against any other defendant to the counterclaim. 364Judgment for delivery up of chattelOn an application under rule 356 or 360 relating to a claim for the delivery up of a specific chattel, the judge may order the party against whom judgment is given to deliver up the chattel without giving that party an option of retaining it on paying its assessed value. 365Relief against forfeitureA tenant has the same right to apply for relief after judgment has been given under this Division for the recovery of land on the ground of forfeiture for non-payment of rent as if the judgment had been given after trial. 366Setting aside judgmentA judgment given against a party who does not appear at the hearing of an application under rule 356 or 360 may be set aside or varied by a judge on any terms the judge considers just. Division 4Summary judgment for defendant367Defendant may apply for summary judgment (1) Within 10 days after appearing, a defendant to an action may apply to a judge for summary judgment. (2) A judge may do anything set out in subrule (3) if satisfied that – (a) the action is frivolous or vexatious; or (b) the defendant has a good defence on the merits; or (c) the action should be disposed of summarily or without pleadings. (3) A judge may – (a) order that judgment be entered for the defendant, with or without costs; or (b) order that the plaintiff proceed to trial without pleadings; or (c) if all parties consent, dispose of the action finally and without appeal in a summary manner. 368Plaintiff may show causeThe plaintiff may show cause against an application by affidavit, oral evidence or otherwise. 369Judge may order examination of partiesOn the hearing of an application, the judge may order a plaintiff or defendant, or in the case of a corporation any officer of the corporation – (a) to produce any document; or (b) to attend and be examined on oath. 370Order directing action to proceedIf, on an application, an order is not made under rule 367(3), the judge – (a) is to direct that the action proceed to trial; and (b) may give any directions as to the further conduct of the action as may be given on an application for directions under rule 552; and (c) may order the action to be set down for trial and define the issues that are to be tried. Division 5Judgment on failure to prosecute or comply with an order371Judgment upon non-delivery of statement of claim (1) If a plaintiff who is bound to deliver a statement of claim fails to do so within the time prescribed, the defendant may apply at the expiration of that time to the Court or a judge for an order dismissing the action with costs. (2) If, on the hearing of an application, a statement of claim has not been delivered, the Court or a judge may – (a) order that the action be dismissed; or (b) make any other appropriate order. 372Judgment upon failure to make discoveryIf a party fails to comply with a provision of Part 13 or an order under that Part requiring the party to answer interrogatories, make discovery of documents or produce a document for the purpose of inspection or any other purpose, the Court or a judge may order – (a) that the action or other proceeding be dismissed; or (b) that judgment be entered or an order be made in the proceeding in favour of the opposite party. 373Stay on non-payment of costsIf a plaintiff in an action dismissed for want of prosecution is ordered to pay any costs of the defendant and the plaintiff commences another action for the same, or substantially the same, cause of action before paying those costs, the Court or a judge, by order, may stay the further action until those costs are paid. 374Setting aside judgmentThe Court or a judge may set aside or vary – (a) an order made under this Part; or (b) any judgment or order entered, given or made on the failure of a party to – (i) do any act or take any step required to be done or taken by these rules; or (ii) comply with an order to do any act or take any step. PART 12Discontinuance and withdrawal375Withdrawal of appearance (1) A party appearing in a proceeding may withdraw the notice of appearance with the leave of the Court or a judge. (2) After the withdrawal of a notice of appearance, the proceeding is to continue as if the party withdrawing the notice had not appeared. 376Discontinuance of action (1) A plaintiff, by notice, may discontinue, wholly or in part, an action against a defendant – (a) at any time before delivery of a defence; or (b) after the delivery of a defence and before taking any other step in the action, other than making an interlocutory application. (2) At any time before judgment, the Court or a judge may grant leave – (a) to a plaintiff to discontinue, wholly or in part, an action against all or any of the defendants; or (b) to a defendant to discontinue, wholly or in part, a counterclaim against all or any of the defendants to the counterclaim. (3) Leave may be granted on any terms as may be just. 377Discontinuance of originating application (1) A proceeding or any part of a proceeding not commenced by writ may be discontinued – (a) by leave of the Court or a judge; or (b) with the consent of all other parties. (2) Leave may be granted on any terms as may be just. 378Costs of discontinuance (1) [Rule 378 Subrule (1) substituted by S.R. 2003, No. 139, Applied:26 Nov 2003] A plaintiff or applicant who discontinues a proceeding wholly or in part is, subject to any order to the contrary, to pay – (a) the defendant’s or respondent’s costs of the proceeding; or (b) if the proceeding is partly discontinued, the costs arising from the matter discontinued. (2) The costs referred to in subrule (1) or ordered to be paid by an order under rule 376(3) or rule 377(2) are to be taxed. (3) If the costs are not paid within 4 days after taxation, the party to whom those costs are payable may enter judgment for those costs. (4) A judgment under subrule (3) is to be in accordance with the prescribed form. 379Discontinuance (1) A discontinuance under rule 376 or 377 is not a defence or answer to any subsequent proceeding. (2) A plaintiff or applicant may not discontinue a proceeding otherwise than under rule 376 or 377. (3) A discontinuance is to be by notice in accordance with the prescribed form. 380Subsequent proceeding stayed until costs paidIf a party discontinues a proceeding, wholly or in part, and is liable to pay the costs of another party and that party, before paying those costs, commences another proceeding against that other party concerning the same, or substantially the same, subject matter, the Court or a judge, by order, may stay the further proceeding until those costs are paid. PART 13Discovery and interrogatoriesDivision 1Interpretation381Interpretation of Part 13 [Rule 381 Amended by S.R. 2009, No. 109, Applied:16 Sep 2009] In this Part – [Rule 381 Amended by S.R. 2012, No. 91, Applied:17 Oct 2012] discoverable document – see rule 382; document includes the following: (a) any book, map, plan, graph or drawing; (b) any photograph; (c) any label, marking or writing which identifies or describes anything of which it forms a part or to which it is attached; (d) any disk, tape, soundtrack, film, negative or other device in which sounds, data or visual images are embodied so as to be capable of being reproduced, with or without the aid of equipment; (e) anything on which is marked a word, figure, letter or symbol which is capable of carrying a definite meaning to a person conversant with it. Division 1A[Division 1A of Part 13 Heading inserted by S.R. 2009, No. 109, Applied:16 Sep 2009] Discovery and inspection of documents382Mutual discovery of documents [Rule 382 Substituted by S.R. 2012, No. 91, Applied:17 Oct 2012] (1) For the purposes of this Division, but subject to any agreement between the parties or an order of the Court or a judge, the discovery obligation is a continuing obligation and the discoverable documents are documents – (a) that are directly relevant to the issues raised by the pleadings; and (b) of which, after a reasonable search, a party is aware; and (c) that are, or have been, in that party’s possession, custody or power. (2) For subrule (1)(a), the documents must meet at least one of the following criteria: (a) the documents are those on which the party intends to rely; (b) the documents adversely affect the party’s own case; (c) the documents support another party’s case; (d) the documents adversely affect another party’s case. (3) For subrule (1)(b), in making a reasonable search, a party may take into account the following: (a) the nature and complexity of the proceedings; (b) the number of documents involved; (c) the ease and cost of retrieving the document; (d) the significance of any documents likely to be found; (e) any other relevant matter. 383Discovery by parties without order (1) A party to an action, if requested by notice by any other party at any time after the pleadings between them are deemed to be closed, is to – (a) make discovery by producing to the other party for inspection all discoverable documents in respect of which privilege is not claimed; and (b) if the other party so requires in the notice, make and serve on the other party a list of all discoverable documents. (2) Discovery is to be made – (a) within 14 days after receipt of the notice; or (b) within any further period as is agreed between the parties or allowed by the Court or a judge before the filing of the certificate of readiness or the making of an order that the action be set down for trial, whichever occurs first. (3) Subrule (1) does not apply to third or subsequent party proceedings, unless the Court or a judge otherwise orders. (4) Subrule (1) does not require a defendant to an action – (a) to recover a penalty recoverable under an enactment, to make discovery of any document; or (b) to enforce a forfeiture, to make discovery of any document relating to the issue of forfeiture; or (c) arising out of an accident on land due to a collision or apprehended collision involving a vehicle, to make discovery of any document unless the Court or a judge otherwise orders. (5) Subrule (4) applies to a counterclaim as it applies to an action as if references to the defendant were references to the defendant to the counterclaim. (6) On the application of any party required to make discovery of documents, the Court or a judge – (a) may order a party to the action to make discovery of any document or class of document, or as to any of the matters in question, as may be specified in the order; or (b) if discovery by a party is not necessary, or not necessary at that stage of the action, may order that there be no discovery of documents by that party, either at all or at that stage; or (c) may dispense with or limit the discovery of documents. (7) An application under subrule (6) is to be made before the expiration of the period within which discovery of documents in an action is required to be made. (8) A party requiring discovery of documents to be made may serve on the party required to make discovery a notice requiring that party to make an affidavit verifying the list of discoverable documents. (9) A notice under subrule (8) may be served at any time before the certificate of readiness is filed or an order that the action be set down for trial is made, whichever occurs first. (10) Within 14 days after service on a party of a notice under subrule (8), the party is to – (a) make and file an affidavit in compliance with the notice; and (b) serve a copy of the affidavit on the party by whom the notice was served. (11) Subject to section 11(9) of the Act, a party is not bound to make discovery as to any fact, communication or document in relation to which that party would have been protected from making discovery before the commencement of the Act. 384List and affidavit (1) A list of documents is to – (a) be in accordance with the prescribed form; and (b) enumerate the documents in a convenient order and as briefly as possible; and (c) describe each document or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable the document or bundle to be identified. (2) A party claiming that a document is privileged from production is to make the claim in the list of documents with a statement of the grounds of the privilege. (3) In an action against or by the Sheriff or an officer of the Sheriff in respect of any matter connected with the execution of the office held by that person, the affidavit verifying a list of documents made by the Sheriff or officer is to be made by the officer actually concerned. (4) An affidavit verifying a list of documents is to be in accordance with the prescribed form. 385Parties entitled to copy of list of documents (1) A defendant who delivers a defence is entitled to obtain from a plaintiff making discovery a copy of any list of documents and any affidavit verifying the list served on – (a) the plaintiff by any other defendant; or (b) any other defendant by the plaintiff. (2) If the defendant delivers a counterclaim joining another person with the plaintiff as defendant to the counterclaim, subrule (1) applies as if the defendant were the plaintiff and the plaintiff and the other person were the defendants. (3) A third party who delivers a pleading is entitled to obtain from the defendant by whom the third party was joined and who is making discovery, a copy of any list of documents and any affidavit verifying the list served – (a) by the plaintiff on that defendant; or (b) on the plaintiff by that defendant. 386Order for discovery (1) Subject to subrules (2) and (3) and rules 387 and 389, the Court or a judge, on application by a party to any proceeding, may order any other party to – (a) [Rule 386 Subrule (1) amended by S.R. 2012, No. 91, Applied:17 Oct 2012] make and serve on any other party a list of the discoverable documents; and (b) make and file an affidavit verifying the list and to serve a copy of the affidavit on the other party. (2) An order under subrule (1) may be limited to certain documents or classes of documents or to certain of the matters in question in the proceeding. (3) If an application is made under this rule by the insurer in an action arising out of a policy of marine insurance, the Court or a judge may make an order for the production of ship’s papers if it is necessary or expedient to do so. 387Order for determination of issue before discoveryIf, on an application for an order under rule 386, it appears that any issue or question in the proceeding should be determined before any discovery of documents is made by the parties, the Court or a judge may order that the issue or question be determined first. 388Order for discovery of particular documents (1) [Rule 388 Subrule (1) amended by S.R. 2012, No. 91, Applied:17 Oct 2012] If it appears to the Court or a judge that there are grounds for a belief that a discoverable document or class of discoverable documents may be, or may have been, in the possession of a party, the Court or a judge may order that party to make, file and serve an affidavit. (2) An affidavit is to state – (a) whether that document or any document of that class is, or has been, in his or her possession, custody or power; and (b) if the document is not in his or her possession, custody or power, when he or she parted with it and what has become of it. (3) An order may be made under subrule (1), notwithstanding that the party against whom it is made has made, or has been required to make, a list of documents or an affidavit verifying a list of documents. 389Discovery to be ordered only if necessaryOn the hearing of an application for an order under rules 386 or 388 the Court or a judge may – (a) dismiss the application if discovery is not necessary; or (b) adjourn the application if discovery is not necessary at that stage of the proceeding; or (c) refuse to make the order if discovery is not necessary for disposing of the proceeding fairly or for saving costs. 390Inspection of documents referred to in list [Rule 390 Substituted by S.R. 2010, No. 57, Applied:30 Jun 2010] (1) A party who serves a list of documents on any other party is to – (a) allow that other party to inspect, and take copies of, the documents referred to in the list at any reasonable time and on reasonable notice; and (b) deliver copies of those documents to that other party on payment of the reasonable costs, or on written undertaking by a legal practitioner to pay the reasonable costs, of copying and delivering the documents. (2) Subrule (1) does not apply to a document if the party serving the list has objected to producing the document. 391Inspection of documents referred to in pleadings or affidavits (1) A party to a proceeding may serve on any other party in whose pleading or affidavit reference is made to a document notice that the first-mentioned party intends to inspect that document. (2) Within 4 days after being served with a notice under subrule (1), a party is to serve on the party giving that notice a notice stating – (a) a place and time within 7 days after service at which the documents that the party served does not object to producing may be inspected; and (b) which of the documents that party objects to producing and the grounds for that objection. 392Order for production for inspection (1) On the application of a party entitled to inspect any document under rule 390 or 391, the Court or a judge may make an order for production of the document for inspection. (2) [Rule 392 Subrule (2) amended by S.R. 2012, No. 91, Applied:17 Oct 2012] The Court or a judge, on the application of any party to a proceeding, may order any other party to permit the party applying to inspect a discoverable document. (3) An application under subrule (2) is to be supported by an affidavit – (a) specifying or describing each document of which inspection is sought; and (b) [Rule 392 Subrule (3) amended by S.R. 2012, No. 91, Applied:17 Oct 2012] stating the belief of the deponent that each document is a discoverable document of the other party. 393Failure to comply with order concerning discovery (1) A party who fails to comply with an order for discovery or production of documents is liable to attachment. (2) [Rule 393 Subrule (2) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] Service on a party’s practitioner of an order for discovery or production of documents is sufficient service to found an application for attachment if the party disobeys the order, but the party may show, in answer to the application, that he or she did not have notice or knowledge of the order. (3) [Rule 393 Subrule (3) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] A practitioner is liable to attachment if – (a) he or she is served with an order for discovery or production of documents; and (b) without reasonable cause he or she fails to give notice of the order to the client. 394Order for production to Court (1) [Rule 394 Subrule (1) amended by S.R. 2012, No. 91, Applied:17 Oct 2012] The Court or a judge may order a party to produce to the Court or judge a discoverable document. (2) The Court or judge may deal with any document produced under subrule (1) in any appropriate manner. (3) An order for production is not to be made unless the Court or a judge is of opinion that the order is necessary for disposing of the proceeding fairly or for saving costs. 395Determination of claim for privilegeIf, on an application under this Division for production of a document for inspection, a party claims privilege from the production or objects to the production on any other ground, the Court or a judge may inspect the document to decide whether the claim or objection is valid. 396Use in evidenceUnless the Court or a judge otherwise orders, a document is not to be received in evidence unless – (a) it has been disclosed to the opposing party or parties in accordance with the provisions of this Division; or (b) it has been disclosed in any certificate of readiness filed under rule 544 or joint letter of readiness filed under rule 545. 397Revocation and variation of ordersAn order made under this Division, including an order made on appeal, may be revoked or varied by a subsequent order of the Court or a judge at or before trial. 398Admission and production of documents specified in list (1) Subject to subrules (2) and (3) and any order to the contrary, a party on whom a list of documents is served is taken to admit – (a) that a document described in the list as an original document is an original and was printed, written, signed or executed as it purports to have been; and (b) that a document described as a copy is a true copy. (2) Subrule (1) does not apply to a document the authenticity of which has been denied in a pleading by a party on whom a list of documents is served. (3) Subrule (1) does not apply to a document if, before the party has signed a certificate or joint letter of readiness or the proceeding has been set down for trial, whichever occurs first, the party on whom the list is served serves on the party whose list it is a notice stating that the authenticity of the document is not admitted and is required to be proved at the trial. (4) Subrule (1) does not affect a party’s right to object to the admission in evidence of a document. (5) A party who serves a list of documents on any other party or who has under rule 544 or 545 signed a certificate of readiness or joint letter of readiness to which a list of documents is attached is taken to have been served with a notice requiring that party to produce at the trial any document specified in the list that is in his or her possession, custody or power. (6) This rule applies to an affidavit made in compliance with an order under rule 388 as it does to a list of documents served under this Division. Division 2Admissions and production of documents399Notice to admit documents (1) At any time after discovery of documents and before the filing of a certificate of readiness or joint letter of readiness or the making of an order that the proceedings be set down for trial, whichever occurs first, a party to a proceeding may serve on any other party a notice requiring that other party to admit the authenticity of the documents specified in the notice. (2) A party seeking to challenge the authenticity of a document specified in the notice, within 14 days after service, is to serve on the party by whom the notice was given a notice stating that the authenticity of the document is not admitted and is required to be proved at the trial. (3) A party on whom the notice is served who fails to give a notice under subrule (2) in relation to a document is taken to have admitted the authenticity of that document unless the Court or a judge otherwise orders. 400Notices to produce documentsUnless rule 398(5) applies, a party to a proceeding may serve on any other party a notice requiring that other party to produce the documents specified in the notice at the trial. 401Notice to admit facts (1) At any time before the filing of a certificate of readiness or joint letter of readiness or the making of an order under rule 416, a party to a proceeding by notice may call on any other party to admit, for the purposes of the proceeding, any fact specified in the notice. (2) If a party to whom a notice is given fails to admit any fact specified within 14 days of receiving the notice, or within any further period allowed by the Court or a judge, the costs of proving that fact are to be paid by that party, regardless of the result of the proceeding, unless at the trial or hearing the Court or a judge certifies that the failure to admit was reasonable or otherwise orders. (3) An admission under this rule is made only for the purpose of the particular proceeding, and is not to be used against the party on any other occasion or in favour of any person other than the party giving the notice. (4) The Court or a judge may at any time allow any party to amend or withdraw any admission made on any terms as are just. 402Admission of opposite caseA party to a proceeding, by a pleading or otherwise in writing, may admit the truth of the whole or any part of the case of any other party. 403Order of Court during action (1) At any stage of a proceeding in which an admission of fact has been made, a party may apply to the Court or a judge for any judgment or order on the admission that the party may be entitled to without waiting for the determination of any other question between the parties. (2) On an application, the Court or a judge may make any order or give any judgment as may be appropriate. Division 2APreliminary discovery and discovery from non-party403AInterpretation of Division 2A of Part 13 [Rule 403A of Part 13 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] In this Division – applicant means an applicant for an order under this Division; description, in relation to a person, includes the name, place of residence, place of business, occupation and sex of the person and whether the person is an individual or a corporation; possession includes custody and power. 403BPrivilege [Rule 403B Amended by S.R. 2009, No. 74, Applied:15 Jul 2009] [Rule 403B of Part 13 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] An order made under this Division may not require the person against whom the order is made to produce any document or answer any question which, on the ground of privilege, the person could not be required to produce or answer – (a) in the case of an order under rule 403C or 403E, if the applicant had commenced a proceeding against the person; or (b) [Rule 403B Amended by S.R. 2009, No. 74, Applied:15 Jul 2009] in the case of an order under rule 403D or 403F, if the applicant had made the person a party to a proceeding to which the applicant is a party; or (c) [Rule 403B Amended by S.R. 2009, No. 74, Applied:15 Jul 2009] in the case of an order under rule 403FA, if the person had been served with a subpoena for production of the document at the trial of the proceeding in respect of which the order is made. 403CDiscovery to identify a defendant [Rule 403C of Part 13 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) The Court or a judge may make an order under subrule (2) if – (a) the applicant is unable to ascertain through reasonable inquiries the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this rule called "the person concerned"); and (b) it appears that another person – (i) has or is likely to have knowledge of facts tending to assist in ascertaining such a description; or (ii) has or is likely to have, or has had or is likely to have had, in that other person’s possession any document or thing tending to assist in ascertaining such a description. (2) The Court or a judge may order the person referred to in subrule (1)(b), or if that person is a corporation, the corporation by an appropriate officer, to – (a) attend before the Court, a judge or an officer to be orally examined in relation to the description of the person concerned; or (b) make discovery to the applicant of all documents which are or have been in his, her or its possession and which relate to the description of the person concerned. (3) If the Court or a judge makes an order under subrule (2)(a), the Court or judge may order the person against whom, or the corporation against which, the order is made to produce on the examination any document or thing in his, her or its possession which relates to the description of the person concerned. 403DRule 403C applies in relation to party to proceeding [Rule 403D of Part 13 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] Rule 403C also applies, with any necessary modification, if – (a) the applicant is a party to a proceeding and wishes to make a claim in the proceeding against a person who is not a party to the proceeding; and (b) the applicant could properly have made the claim in the proceeding if the person had been a party. 403EDiscovery from prospective defendant [Rule 403E of Part 13 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] If – (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description has been ascertained; and (b) after making all reasonable inquiries, the applicant does not have sufficient information to enable a decision to be made as to whether or not to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that – (i) that person has or is likely to have, or has had or is likely to have had, in that person’s possession any document relating to the question whether the applicant has the right to obtain the relief; and (ii) inspection of the document by the applicant would assist in making the decision – the Court or a judge may order that person to make discovery to the applicant of any document of the kind described in paragraph (c). 403FRule 403E applies in relation to party to proceeding [Rule 403F of Part 13 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] Rule 403E also applies, with any necessary modification, if – (a) the applicant is a party to a proceeding and there is reasonable cause to believe that the applicant has or may have the right to obtain relief against a person who is not a party; and (b) the applicant could properly have claimed such relief in the proceeding if the person had been a party. 403FADiscovery from non-party [Rule 403FA Inserted by S.R. 2009, No. 74, Applied:15 Jul 2009] (1) If it appears to the Court or a judge that a person who is not a party to a proceeding has or is likely to have, or has had or is likely to have had, in that person’s possession any document that relates to any matter in question in the proceeding, the Court or judge may order that person to – (a) make and serve on each party a list of the documents that are or have been in that person’s possession that relate to any matter in question in the proceeding; and (b) make and file an affidavit verifying the list and serve a copy of the affidavit on each party. (2) An order under subrule (1) may be limited to certain documents or classes of documents or to certain of the matters in question in the proceeding. (3) If an order is made under subrule (1), rules 384, 385, 388, 390, 391, 392, 393, 394, 395 and 398 apply, with any necessary modifications, as if the person against whom the order is made were a party to the proceeding. (4) The Court or a judge may make an order under subrule (1) on condition that the applicant gives security for the costs and expenses of the person against whom the order is made. (5) An order made under subrule (1) may be revoked or varied by a subsequent order of the Court or a judge at or before trial. 403GCosts and expenses of compliance [Rule 403G of Part 13 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] (1) The Court or a judge may order the applicant to pay the amount of any reasonable loss or expense incurred by a person in complying with an order under this Division. (2) If an order is made under subrule (1), the Court or a judge must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs. 403HCosts orders in other proceedings [Rule 403H of Part 13 Inserted by S.R. 2007, No. 23, Applied:02 May 2007] When an order is made under rule 403C or 403E, the Court or a judge may make an order that a party to other proceedings pay the costs of the applicant of and incidental to the application in respect of which that order was made. Division 3Interrogatories404Interpretation of Division 3 of Part 13In this Division, party interrogating means a party to a proceeding issuing interrogatories under this Division. 405InterrogatoriesA party to a proceeding may deliver interrogatories in writing for the examination of an opposite party at any time before the filing of a certificate of readiness or joint letter of readiness, or the making of an order that the proceeding be set down for trial, whichever occurs first. 406Matters for interrogatories (1) A party may interrogate any opposite party to obtain – (a) an admission of any fact which the party interrogating is required to prove on an issue against the opposite party; or (b) an answer as to – (i) any fact directly in issue between the parties; or (ii) any fact, the existence or non-existence of which is relevant to the existence or non-existence of any fact directly in issue between the parties; or (c) any fact, knowledge of which would inform the party interrogating of evidence of any fact directly in issue between the parties; or (d) the name and address of any person who would be a necessary or proper party to the proceeding, if that information is required to make that person a party to the proceeding; or (e) any other fact as to which discovery may have been obtained in a suit in equity before the commencement of the Act. (2) [Rule 406 Subrule (2) omitted by S.R. 2011, No. 39, Applied:08 Jun 2011] . . . . . . . . (3) An interrogatory which does not relate to any matter in question in the proceeding is irrelevant, even though it might be admissible on the oral cross-examination of a witness. (4) This rule does not give a party the right to interrogate an opposite party with a view to finding out – (a) a case for the party interrogating; or (b) the name of any person intended to be called or who might be called by the opposite party as a witness and whose name is not a material fact in the proceeding; or (c) the evidence of the opposite party; or (d) the manner in which the opposite party intends to establish their case; or (e) the line of facts, not being facts directly in issue, on which the opposite party intends to rely in support of their case; or (f) the manner in which the opposite party intends to conduct the case at the trial. (5) The fact that a party who is otherwise bound to answer an interrogatory is not able to do so without disclosing the evidence or name of a person who might be called as a witness does not excuse the party from answering the interrogatory. 407408Form of interrogatoriesInterrogatories are to – (a) be divided into paragraphs numbered consecutively; and (b) if there is more than one opposite party, have a note at the foot stating which of the interrogatories each opposite party is required to answer. 408AWhen leave is required [Rule 408A Inserted by S.R. 2011, No. 39, Applied:08 Jun 2011] (1) A party interrogated may give notice to the party interrogating that some or all of the interrogatories will not be answered unless administered with the leave of the Court or a judge. (2) A notice under subrule (1) is to – (a) be in writing; and (b) be given within 14 days after the interrogatories are delivered; and (c) identify, by its distinctive number, each interrogatory that will not be answered unless administered with the leave of the Court or a judge. (3) A party interrogated that gives notice under subrule (1) must, within 14 days after the interrogatories are delivered, give the party interrogating a written answer or objection to each of the interrogatories that is not identified under subrule (2)(c). (4) A party interrogated that does not give notice under subrule (1) must, within 14 days after the interrogatories are delivered, give the party interrogating a written answer or objection to each of the interrogatories. (5) A party interrogating that is given notice under subrule (1) in respect of an interrogatory may apply to the Court or a judge for leave to administer the interrogatory. (6) The Court or a judge may grant leave to a party to administer an interrogatory only if satisfied that – (a) the interrogatory is necessary; or (b) special reasons justify its administration. (7) A party interrogated pursuant to leave granted under subrule (6) must, within 14 days after leave is granted, give the party interrogating a written answer or objection to each of the interrogatories. (8) A party interrogated that objects under subrule (3), (4) or (7) to answering an interrogatory is not entitled to object to answering the interrogatory on the ground that the interrogatory is unnecessary. (9) For the removal of doubt, if a party gives notice under subrule (1) in respect of an interrogatory, no obligation to answer the interrogatory arises other than pursuant to a grant of leave. 409Answers to interrogatories and affidavit verifying (1) [Rule 409 Subrule (1) amended by S.R. 2011, No. 39, Applied:08 Jun 2011] A person required to answer interrogatories is to answer each interrogatory by a document identifying each separate interrogatory by its distinctive number followed by – (a) the answer to that interrogatory; or (b) the objection to answering it with a concise statement of the reasons for the objection. (2) [Rule 409 Subrule (2) amended by S.R. 2011, No. 39, Applied:08 Jun 2011] A person required to answer interrogatories is to – (a) verify the answers and objections to interrogatories by an affidavit exhibiting a copy of the interrogatories and the answers and objections; and (b) file the affidavit, and serve a copy of it on the party interrogating, within 14 days after the interrogatories are delivered. (3) [Rule 409 Subrule (3) omitted by S.R. 2011, No. 39, Applied:08 Jun 2011] . . . . . . . . (4) [Rule 409 Subrule (4) omitted by S.R. 2011, No. 39, Applied:08 Jun 2011] . . . . . . . . (5) In an action against or by the Sheriff or a similar officer in respect of any matter connected with the execution of that person’s office, the affidavit verifying answers to interrogatories is to be made by the officer actually concerned. 410Application for order by person interrogating (1) A party interrogating may apply to the Court or a judge for an order that the person interrogated – (a) answer an interrogatory which the person interrogated has objected to answering in the affidavit; or (b) answer further any other interrogatory that the person interrogated has not objected to answering. (2) An application is to be made within 7 days after the day on which a copy of the affidavit required by rule 409(2) is served. (3) On the hearing of an application, the Court or a judge may – (a) [Rule 410 Subrule (3) amended by S.R. 2011, No. 39, Applied:08 Jun 2011] . . . . . . . . (b) order to be answered or answered further, by affidavit or oral examination, any interrogatory the Court or judge directs. 411Failure to comply with order concerning interrogatories (1) A party who fails to comply with an order that interrogatories be answered is liable to attachment. (2) [Rule 411 Subrule (2) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] Service on a party’s practitioner of an order that interrogatories be answered is sufficient service to found an application for attachment if the party disobeys the order, but the party may show, in answer to the application, that he or she did not have notice or knowledge of the order. (3) [Rule 411 Subrule (3) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] A practitioner is liable to attachment if – (a) he or she is served with an order that interrogatories be answered; and (b) without reasonable cause he or she fails to give notice of the order to the client. 412Interrogatories to corporationIf a party to a proceeding is a corporation or a body of persons capable of suing or of being sued, any opposite party may deliver interrogatories to be answered by any officer of the corporation or a member of the body. 413Use of answers to interrogatories (1) At the trial of any proceeding a party may use in evidence any answer or any part of an answer to an interrogatory without putting in any other answer or the whole of the answer. (2) The Court or a judge may consider all the answers and direct any of them to be put in evidence if of the view that they are so connected with those answers put in that the answers put in ought not to be used without them. PART 14Pre-trial directionsDivision 1Case management414Application of Division 1 of Part 14This Division applies to – (a) a proceeding which – (i) is of a class specified by a practice direction authorised by the Chief Justice as being a class of proceedings to which this Division is to apply; and (ii) was commenced after the date on which the practice direction took effect; and (b) an action in which a judge has granted leave to defend under rule 359; and (c) an action in which a judge has given judgment under rule 358 and has ordered that execution of the judgment be stayed pending the trial of a counterclaim or the action; and (d) an action in which a judge has declined to order judgment under Division 3 or 4 of Part 11; and (e) any other proceeding in which a party requests in writing to the Principal Registrar that this Division apply to it, or in which a judge, of his or her own motion, has so directed. 414APurpose of case management [Rule 414A Inserted by S.R. 2011, No. 14, Applied:08 Apr 2011] The overarching purpose of case management is to ensure that proceedings are conducted and resolved justly and efficiently. 415Directions hearing (1) Unless a judge has already commenced a directions hearing, the Principal Registrar is to give notice to the parties of a directions hearing before a judge in the following cases: (a) an action within rule 414(a), on the filing of a defence; (b) an originating application within rule 414(a), on the first filing of an affidavit, other than an affidavit of service; (c) a proceeding within rule 414(e), on the making of the request to the Principal Registrar. (2) [Rule 415 Subrule (2) substituted by S.R. 2011, No. 14, Applied:08 Apr 2011] The purpose of a directions hearing is to eliminate any lapse of time, from the commencement of a proceeding to its final determination, that is not reasonably required for – (a) the fair and just determination of the outstanding issues between the parties; and (b) the preparation of the case for trial. (3) [Rule 415 Subrule (3) amended by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 415 Subrule (3) substituted by S.R. 2011, No. 14, Applied:08 Apr 2011] A judge may make any order, as part of a directions hearing, to ensure that the proceeding is conducted and resolved justly and efficiently. (4) [Rule 415 Subrule (4) substituted by S.R. 2011, No. 14, Applied:08 Apr 2011] Without affecting the generality of subrule (3), the judge may, when making an order under that subrule, take into account any matters relevant to the proceeding, including the following matters: (a) the most suitable manner in which to deal with the proceeding, in a way that is proportionate to – (i) the amount of money involved; and (ii) the importance of the proceeding; and (iii) the complexity of the issues; and (iv) the financial position of each party; (b) the most efficient manner in which to deal with the proceeding which will not prevent the fair and just resolution of the dispute; (c) the allocation of court resources taking into account other demands imposed on those resources by other proceedings. (4A) [Rule 415 Subrule (4A) inserted by S.R. 2011, No. 14, Applied:08 Apr 2011] Without affecting the generality of subrule (3), an order made under that subrule may – (a) be inconsistent with, or dispense with or vary, any provisions of the rules in their application to the proceeding; and (b) require the filing and service of statements of contentions including the material facts, the relief claimed, the grounds for that relief and responses thereto; and (c) limit the bringing of interlocutory applications to those certified by a practitioner, or determined by a judge, as having a reasoned likelihood that the determination of the application will be productive in the just and efficient overall disposition of the proceeding; and (d) require a practitioner to certify whether or not he or she has issued detailed written advice to his or her client – (i) reciting the facts as known at that point in time; and (ii) stating concisely the legal principles that apply; and (iii) identifying issues of fact that are in dispute or are likely to be in dispute; and (iv) identifying issues of law which are, or may be, controversial as to their application to the facts; and (v) setting out the likely timetable for the conduct of the litigation; and (vi) stating the likely cost of the litigation; and (vii) providing a reasoned opinion as to the risks associated with the proceeding; and (viii) mentioning the non-litigious avenues for dispute resolution which are reasonably available to the client; and (e) refer the proceeding, or a matter arising in the proceeding, to mediation; and (f) impose, or dispense with, limitations on the procedures for interrogation and the discovery of documents; and (g) require the filing and service of witness lists and statements; and (h) impose a timetable which ensures that the proceeding will be ready to be heard as soon as possible; and (i) require a practitioner to forewarn his or her opposing parties of any likely non-compliance with rules or orders; and (j) appoint a trial date; and (k) limit the number of expert witnesses at a trial; and (l) require the trial of any issue of fact or law before any other issue of fact or law is dealt with. (5) A judge may – (a) direct that a directions hearing be held by telephone, video link or other means; and (b) give directions as to the manner in which such a hearing is to be conducted and the persons who are to attend it. (6) Subject to subrule (7), when a directions hearing has commenced every interlocutory application is to be made under it by letter to the Principal Registrar and the other party stating the order or direction sought. (7) Subrule (6) does not apply to the following types of application: (a) for an injunction; (b) for the appointment of a receiver; (c) for judgment in default of defence under Division 2 of Part 11; (d) for judgment under Division 3 or 4 of Part 11; (e) to set aside any proceeding; (f) to stay proceedings absolutely; (g) to dismiss or discontinue an action; (h) to transfer an action to an inferior court of civil jurisdiction; (i) for the issue of a writ of attachment; (j) for the committal of any person. (8) At a directions hearing – (a) [Rule 415 Subrule (8) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] subject to paragraph (d), a party and the practitioner or counsel for a party are to give any information and produce any documents the judge reasonably directs; and (b) the judge may authorise information to be given or a document to be produced by a party under paragraph (a) without it being disclosed to another party; and (c) if a direction under paragraph (a) is not complied with, the judge may cause the facts to be recorded in an order and those facts may be relied on at trial for the making of a special order as to costs; and (d) any thing that is privileged from disclosure is not required to be given or produced otherwise than with the consent of the person having the benefit of that privilege. (9) An affidavit is not to be used on a directions hearing, except by order of the Court or a judge. 416Setting down for trial (1) If a judge conducting a directions hearing is satisfied that the proceeding is ready to proceed to trial, the judge may make an order which – (a) directs that the proceeding be set down for trial; and (b) recites – (i) the action taken at the directions hearing, whether by that judge or another judge, relevant to the trial; and (ii) any amendment allowed to the pleadings; and (iii) any admission or agreement made or refused by the parties; and (c) controls the subsequent course of the proceeding unless the trial judge otherwise orders; and (d) is to be taken out and filed by the registrar and delivered to each party. (2) If a judge orders that a proceeding be listed for trial, the registrar is to list that proceeding for trial at a convenient time. 417Costs of unnecessary applicationsIf a party files an interlocutory application seeking an order required to be made at a directions hearing, unless the Court or a judge for special reasons otherwise orders – (a) that party may not recover any costs of the application; and (b) the practitioner representing that party may not recover any costs of the application from that party; and (c) that party or, if represented by a practitioner, that practitioner, must be ordered to pay the costs of any other party to the application. Division 2Directions418Application of Division 2 of Part 14This Division does not apply to a case to which Division 1 of this Part applies. 419Application for directionsA party to a proceeding may make a general application for directions – (a) after the appearance of any defendant or respondent sought to be affected by the application, if the proceeding is one in which the defendant or respondent is required to appear; or (b) at any time in any other proceeding. 420Circumstances of application (1) If, at any time before the trial of a proceeding, a party makes an application to the Court or a judge for any order or direction, other than an application referred to in subrule (2) – (a) the party is to make a general application for directions; or (b) if the order or direction is sought by consent and an order is not required to be drawn up on the order or direction, the parties are to apply by a memorandum to the registrar who may make the order or direction sought. (2) Subrule (1) does not apply to any of the following applications: (a) for an injunction; (b) for the appointment of a receiver; (c) for judgment in default of defence under Division 2 of Part 11; (d) for judgment under Division 3 or 4 of Part 11; (e) to set aside any proceeding; (f) to stay proceedings absolutely; (g) to dismiss or discontinue the action; (h) to transfer an action to an inferior court of civil jurisdiction; (i) for the issue of a writ of attachment; (j) for the committal of any person. (3) A respondent to a general application for directions may apply for any relevant order or direction as to any interlocutory matter in the proceeding. (4) In any case in which a general application for directions is made, each application before judgment, other than an application referred to in subrule (2), is to be made under that application. (5) Any application for an order or direction made under the general application for directions subsequent to the first hearing of that general application is to be set down for further hearing on 2 clear days’ notice given by letter to the other party stating the order or direction required. 421Matters to be specifiedA general application for directions is to – (a) specify the matters as to which any order or direction is sought; and (b) be served on each party who may be affected by the order or direction. 422Affidavit not to be usedAn affidavit is not to be used on the hearing of a general application for directions, except by order of the Court or a judge. 423AdjournmentThe directions hearing may be adjourned from time to time until the conclusion of the proceeding. 424Costs of unnecessary application (1) Unless the Court or a judge otherwise orders, the costs of an application made otherwise than by or under a general application for directions are not to be allowed to a party if the party could have made the application by or under a general application. (2) An application by a party which might have been made at the first hearing of the general application for directions, if granted on any subsequent application, is to be granted at the costs of the party applying, unless the Court or a judge otherwise orders. 425Order on hearing of application (1) On the hearing of a general application for directions, the Court or a judge – (a) is to make any order as may be appropriate in relation to the steps to be taken in the proceeding and the costs of those steps; and (b) may exercise any of the powers conferred by rule 550. (2) On the hearing of a general application for directions in an action in tort brought by one of the parties to a marriage against the other during the subsistence of the marriage in which an application for a stay has not been made, the judge is to consider whether the power to stay the action under section 7A(2) of the Married Women’s Property Act 1935 ought to be exercised, whether or not that matter is raised by a party.
937Stop order for funds in Court (1) The Court or a judge may make an order that any funds in Court, or any part of them or income from them, not be transferred, sold, delivered, paid or otherwise dealt with unless notice is first given to the person applying for the order. (2) The following persons may apply for an order: (a) any person who has a mortgage or charge on the interest of any person in the funds in Court; (b) any person to whom that interest has been assigned; (c) any person who is a judgment creditor of the person entitled to that interest. (3) The application is to be made by interlocutory application in the proceeding in which the funds are in Court or, if there is no proceeding, by originating application. (4) The application and a copy of any affidavit in support – (a) are to be served on every person who has an interest in the funds in Court which may be affected by the order sought; and (b) need not be served on any other person. (5) On an application under this rule, the Court or a judge may make any order as may be just for the costs and expenses of any party or any other person against whom an order is sought. Division 1AFreezing orders937AInterpretation of Division 1A of Part 36 [Rule 937A of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] 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 [Rule 937B of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] (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 [Rule 937C of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] (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 [Rule 937D of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] 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 [Rule 937E of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] (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 [Rule 937F of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] 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 [Rule 937G of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] 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 [Rule 937H of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] (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 orders937IInterpretation of Division 1B of Part 36 [Rule 937I of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] 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 [Rule 937J of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] 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 [Rule 937K of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] 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 [Rule 937L of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] Nothing in this Division diminishes the inherent, implied or statutory jurisdiction of the Court to make a search order. 937MTerms of search order [Rule 937M of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] (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 practitioners [Rule 937N of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] (1) [Rule 937N Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] If the Court or a judge makes a search order, the Court or judge must appoint one or more practitioners, each of whom is independent of the applicant’s practitioners, (the "independent practitioners") 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) [Rule 937N Subrule (2) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] The Court or a judge may appoint an independent practitioner to supervise execution of the order at any one or more premises, and a different independent practitioner or practitioners to supervise execution of the order at other premises, with each independent practitioner having power to do such other things in relation to the order as the Court or judge considers appropriate. 937OCosts [Rule 937O of Part 36 Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006] (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. Division 2Enforcement by appointment of a receiver938Procedure (1) An application for the appointment of a receiver by way of equitable execution is to be made to a judge. (2) Subject to subrule (1), an application for the appointment of a receiver by way of equitable execution may be made in accordance with Part 18 and that part is to apply to such a receiver as it applies to a receiver appointed for any other purpose. 939AppointmentOn the hearing of an application for the appointment of a receiver by way of equitable execution, the Court or judge, in determining whether an order ought to be made – (a) is to have regard to the following: (i) the amount claimed by the judgment creditor; (ii) the amount likely to be obtained by the receiver; (iii) the probable costs of the appointment; and (b) may direct inquiries on the matters referred to in paragraph (a) or any other matters before determining the application. Division 3Contempt940Interpretation of Division 3 of Part 36In this Division – Court includes a judge sitting in chambers; respondent means a person who is alleged or appears to be guilty of contempt of court. 941Contempt in face of Court (1) If it is alleged or appears to the Court that a person is guilty of contempt of court committed in the face of the Court, the Court may – (a) by oral order, direct that the respondent be arrested and brought before the Court; or (b) issue a warrant for the arrest of the respondent. (2) If the respondent is brought before the Court, the Court is to – (a) inform the respondent of the contempt charged; and (b) require the respondent to defend the charge; and (c) determine the matter of the charge after having heard the respondent; and (d) if it finds the respondent guilty of contempt, make any order for the punishment or discharge of the respondent as may be just. (3) The respondent is to be detained in custody until the charge is disposed of, unless the Court grants bail. 942Other procedure for contempt (1) An application for punishment for contempt of court, other than contempt in the face of the Court, is to be – (a) on notice to the respondent; and (b) specify the nature of the alleged contempt. (2) [Rule 942 Subrule (2) substituted by S.R. 2011, No. 39, Applied:08 Jun 2011] If the application is made in relation to a pending proceeding, the application is to be made by interlocutory application. (2A) [Rule 942 Subrule (2A) inserted by S.R. 2011, No. 39, Applied:08 Jun 2011] If the application is not made in relation to a pending proceeding, the application is to be made by originating application. (3) Unless the Court or a judge otherwise orders, the application is to be served personally on the respondent. (4) If an application has been filed and it appears to a judge that the respondent is likely to abscond, the judge, by warrant directed to the Sheriff, may direct that the respondent be arrested and brought before the Court or a judge. (5) A respondent brought before the Court or a judge under a warrant is to be detained in custody until the charge is disposed of, unless the Court or a judge grants bail. (6) On the hearing of the application, the Court may order the respondent to answer on oath within 4 days interrogatories relating to the alleged contempt. (7) The respondent, unless otherwise ordered, is to answer the interrogatories by affidavit. (8) If the respondent is ordered to answer interrogatories, the hearing of the application is to be adjourned for a sufficient time to allow the answers to be made and filed. (9) On the hearing of the application, the Court may – (a) commit the respondent to prison for a fixed term or until the occurrence of some event; and (b) impose a fine, either instead of or in addition to ordering committal; and (c) if it imposes a fine, commit the respondent to be imprisoned, or further imprisoned, until the fine is paid; and (d) make any order as to costs as is appropriate. (10) If the accused person is ordered to be committed to a prison, the order of committal is to specify which prison. (11) The Court may order the discharge of a respondent committed to prison, even though the time for which the respondent was ordered to be committed has not expired. Division 4Attachment943Attachment (1) A writ of attachment is to be in accordance with the prescribed form. (2) A writ of attachment has the same effect as a writ of attachment issued out of the Court in its equity jurisdiction before the commencement of the Act. (3) A writ of attachment is not to be issued without the leave of the Court or a judge granted on an application made on notice to the party against whom the attachment is to be issued. 944Return of the writ (1) An order is not to issue for the return of a writ. (2) The party at whose suit the writ was issued may give notice to the Sheriff requiring the Sheriff to return the writ or make a report or bring in the body within a specified time, being not less than 8 days. (3) If the Sheriff does not comply with the notice, the Sheriff is liable to attachment on the application of the person giving the notice. Division 5Sequestration945Writ of sequestration (1) A writ of sequestration is to be in accordance with the prescribed form. (2) If a person fails to comply with a judgment or order within the period limited by the judgment or order, the person prosecuting the judgment or order is entitled, at the expiration of that period, to issue a writ of sequestration against the estate and effects of the person failing to comply, without obtaining an order for that purpose. (3) A writ of sequestration under this rule has the same effect as a writ of sequestration issued out of the Court in its jurisdiction in equity before the commencement of the Act and the proceeds of such a sequestration may be dealt with in the same manner as the proceeds of a writ of sequestration were dealt with by the Court in its equity jurisdiction before that commencement. 946No subpoena for costsA subpoena for the payment of costs is not to be issued. 947No sequestration for costs without leaveA writ of sequestration for the payment of costs is not to be issued without the leave of the Court or a judge granted on an application made on notice to the party against whom the writ is sought to be issued. Division 6Proceedings under a judgment948Interpretation of Division 6 of Part 36In this Division – administration proceeding means a proceeding for the administration of the estate of a deceased person or the execution of a trust under the direction of the Court; judgment includes order. 949Directions in judgment (1) If by a judgment further proceedings are necessary, the Court or a judge, when giving the judgment or at any later stage, may give directions for the conduct of those proceedings. (2) The Court or a judge may give directions with respect to any or all of the following: (a) the taking of any account or the making of any inquiry; (b) the evidence to be adduced on the account or inquiry; (c) the preparation of any draft instrument directed by the judgment to be settled and the making of any objections to the draft; (d) the parties required to attend the proceedings; (e) the representation – (i) [Rule 949 Subrule (2) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] by the same practitioner of parties who constitute a class; and (ii) [Rule 949 Subrule (2) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] by different practitioners of parties who ought to be separately represented; (f) the time for taking each step in the proceedings and the day or days for the further attendance of the parties; (g) the publication of advertisements for creditors or other claimants and the time for creditors and claimants to respond. (3) The Court or a judge may revoke or vary any direction given under this Division. 950Dispensing with service of notice of judgment (1) If it appears to the Court or a judge that service on a party of notice of a judgment by which further proceedings are necessary cannot be made or ought to be dispensed with, the Court or judge may order that service – (a) be dispensed with; or (b) be by way of any form of substituted service instead of personal service. (2) In addition to an order under subrule (1), the Court or a judge may order that a person in respect of whom the order is made be bound by the judgment as if it had been served personally on that person, except if the judgment has been obtained by fraud or non-disclosure of material facts. 951Attendance of parties not directed to attend (1) A party who has not been directed to attend further proceedings under a judgment may – (a) attend at his or her own cost and may be ordered to pay any costs caused by that attendance; and (b) by order of the Court or a judge, be permitted to attend at the cost of the estate; and (c) by order of the Court or a judge, have the conduct of the matter in addition to, or in substitution of, any of the parties who have been directed to attend. (2) The Court or judge is to certify which of the parties have been directed to attend and which, if any, of the parties have elected to attend at their own expense. 952Stoppage of proceedingsIf, on further proceedings under a judgment, it appears that all necessary parties are not parties to the relevant proceeding or have not been served with notice of the judgment – (a) the Court or a judge may give directions as to – (i) advertising for creditors; and (ii) leaving the accounts in chambers; and (iii) the parties who are to attend on the proceedings; and (b) the Court or a judge may give directions under rule 949; and (c) the adjudication on creditors’ claims and the accounts is not to be proceeded with, and other proceedings are not to be taken, until all necessary parties have been served or service has been dispensed with. 953Classifying interests of parties (1) If, on proceedings under this Division, or at any time during the prosecution of a judgment, it appears to the Court or a judge, with respect to the whole or any portion of the proceeding, that the interests of the parties can be grouped into a class, the Court or judge – (a) may direct what parties may attend all or any part of the proceedings; and (b) may require the parties constituting each or any class to be represented by the same practitioner; and (c) if the parties constituting a class cannot agree on the practitioner to represent them, may nominate a practitioner for the purpose of the proceedings. (2) If a party declines to authorise the practitioner nominated under subrule (1)(c) to act for the party and is represented by a different practitioner, that party is to pay – (a) the costs of that practitioner; and (b) any costs incurred by any other party because of the representation by a practitioner other than the nominated practitioner. 954Settling instrument in case parties differ (1) If a judgment requires an instrument to be settled and the parties do not agree on the form of the instrument, the party entitled to prepare the draft instrument may apply for the settlement of the draft. (2) An application under subrule (1) is to be – (a) accompanied by a draft of the instrument; and (b) served on each other party not less than 14 days before the return date; and (c) endorsed with a notice stating the effect of subrule (3). (3) Within 7 days after being served with an application under subrule (1), a party must file and serve a statement of any objections to the draft. 955AdvertisementsAn advertisement directed under rule 949(2)(g) is to – (a) be prepared by the party prosecuting the judgment and approved by the registrar; and (b) [Rule 955 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] be signed by that party’s practitioner or, if the party has no practitioner, by the registrar, if the advertisement is for creditors; and (c) be signed by the registrar, if the advertisement is for claimants other than creditors; and (d) be published – (i) in the Gazette, unless otherwise directed; and (ii) in any newspaper, whether published in the State or elsewhere, as may be directed; and (e) be in accordance with the prescribed form; and (f) fix a time within which a claimant is to send any person the Court or judge directs, who is to be named and described in the advertisement, the name and address of the claimant and the full particulars of the claim; and (g) contain – (i) notice of the time appointed for adjudicating on claims; and (ii) a direction that a claimant not residing in the State must send with particulars of the claim the name and address of a person within the State to whom notices to the claimant can be sent; and (iii) a statement that a notice sent to such a person is equivalent to a notice sent to the claimant; and (iv) a statement that a claimant who does not comply with the direction referred to in subparagraph (ii) is not entitled to receive any further notice. 956Claims (1) A claimant who does not send full particulars of the claim in accordance with and within the time fixed by an advertisement under rule 955 is excluded from the benefit of the judgment unless the Court or a judge otherwise orders. (2) A notice to be served on or given to a claimant may be sent by pre-paid post to the claimant at the address given in the claim sent in by the claimant unless otherwise ordered. (3) If required by notice in accordance with the prescribed form, given by any party a judge directs, a claimant is to produce at a time and place specified in the notice all documents relevant to the substantiation of the claim. 957Determination of claims (1) If the judgment in an administration proceeding directs the taking of an account of debts or other liabilities of a deceased person, the Court or a judge may direct a party to – (a) examine the claims of any person claiming to be a creditor of the estate and determine, so far as the party is able, to which of the claims the estate is liable; and (b) determine, so far as the party is able, what are the other debts and liabilities of the deceased; and (c) file an affidavit stating the party’s conclusions and reasons for those conclusions. (2) If the judgment in an administration proceeding directs an inquiry for unascertained persons entitled, the Court or a judge may direct a party to – (a) examine the claims of any person claiming to be entitled and determine, so far as the party is able, which of them are valid; and (b) determine, so far as the party is able, what other persons are entitled; and (c) file an affidavit stating the party’s conclusions and reasons for those conclusions. (3) If the party directed to examine claims under subrule (1) or (2) is not the personal representative or trustee concerned, that personal representative or trustee is to join with the party in making the affidavit unless otherwise ordered. (4) A copy of the affidavit under subrule (1) or (2) is to be served on each other party not less than 7 days before the date and time appointed for adjudicating on claims. (5) For the purpose of adjudicating on claims, the Court or a judge may – (a) direct any claim to be investigated in any manner as may be appropriate; or (b) require any claimant to attend and prove the claim or to furnish further particulars or evidence of it; or (c) allow any claim with or without proof. (6) The Court or a judge may give directions for service on any person claiming to be a creditor of notice of the result of the adjudication. (7) With any necessary modifications, this rule applies to a judgment in any proceeding other than an administration proceeding that directs an account of debts or other liabilities to be taken or an inquiry to be made. 958Costs (1) A creditor who establishes a debt under a judgment or order is entitled to the costs of doing so unless the Court or a judge otherwise directs. (2) The costs referred to in subrule (1) are to be – (a) added to the debt established; and (b) fixed by the Court or judge unless the Court or judge directs the taxation of those costs. (3) The Court or a judge may – (a) disallow any costs of a creditor unnecessarily or improperly incurred; and (b) order a creditor to pay the costs of a party incurred in opposing a claim, or any part of a claim, that the creditor fails to establish. 959Interest on debts (1) If a judgment directs an account of the debts of a deceased person, unless the estate is insolvent or it is otherwise ordered, interest is to be allowed – (a) on any debt which carries interest at the rate it carries; and (b) [Rule 959 Subrule (1) amended by S.R. 2003, No. 142, Applied:03 Dec 2003] on any other debt at the prescribed rate of interest for each calendar year from the date of the judgment. (2) A creditor whose debt does not carry interest and who establishes the debt in proceedings under the judgment is, unless otherwise ordered, entitled to interest on the debt in accordance with subrule (1)(b) payable out of any assets which remain after satisfying – (a) the costs of the proceeding; and (b) the debts established; and (c) the interest on those debts which by law carry interest. 960Interest on legacies [Rule 960 Amended by S.R. 2003, No. 142, Applied:03 Dec 2003] If a judgment directs an account of legacies, subject to any order or provision in the will to the contrary, interest is allowed on those legacies at the prescribed rate of interest for each calendar year from the end of one year after the testator’s death. 961Account or inquiry (1) [Rule 961 Subrule (1) amended by S.R. 2008, No. 2, Applied:01 Mar 2008] The Associate Judge is to take any account or make any inquiry with respect to further proceedings under a judgment unless otherwise ordered. (2) [Rule 961 Subrule (2) amended by S.R. 2008, No. 2, Applied:01 Mar 2008] The result of proceedings before the Associate Judge under subrule (1) is to be stated in the form of an order. (3) An order under subrule (2) immediately binds the parties to the proceeding. (4) [Rule 961 Subrule (4) amended by S.R. 2008, No. 2, Applied:01 Mar 2008] A copy of the order is to be served on such parties as the Associate Judge directs. (5) [Rule 961 Subrule (5) amended by S.R. 2008, No. 2, Applied:01 Mar 2008] The Associate Judge may give directions as to the further consideration of the proceeding. (6) Subject to any direction under subrule (5) or otherwise, an order under subrule (2) has effect as a final order disposing of the proceeding in which it is made. (7) [Rule 961 Subrule (7) amended by S.R. 2008, No. 2, Applied:01 Mar 2008] If an account or inquiry is made other than by the Associate Judge, subrules (2), (3), (4), (5) and (6) apply to the account or inquiry, subject to any necessary modifications. (8) [Rule 961 Subrule (8) amended by S.R. 2008, No. 2, Applied:01 Mar 2008] On the application of a party filed and served within 8 days after the making of the order, the Court or a judge may by order discharge or vary an order made under subrule (2) by the Associate Judge or by a person appointed for the purpose of taking any account or making any inquiry. (9) On the application of a party filed and served within 8 days after the making of an order under subrule (8), the Full Court may discharge or vary an order made under that subrule or subrule (2). PART 37The Associate Judge962Jurisdiction of Associate Judge [Rule 962 Substituted by S.R. 2005, No. 100, Applied:31 Aug 2005] (1) [Rule 962 Subrule (1) amended by S.R. 2008, No. 2, Applied:01 Mar 2008] The Associate Judge sitting in chambers or in court may exercise all of the powers of the court, including the exercise of inherent jurisdiction, which may be exercised by a single judge sitting in chambers or by a single judge sitting in court without a jury, except for the hearing and determination of the following: (a) [Rule 962 Subrule (1) amended by S.R. 2019, No. 50, Applied:09 Sep 2019] appeals, other than a review of a taxation of costs by an officer of the Court; (b) [Rule 962 Subrule (1) amended by S.R. 2011, No. 26, Applied:20 Apr 2011] an application for relief similar to certiorari, mandamus or prohibition; (c) an application for an order of review under the Judicial Review Act 2000; (d) proceedings for the declaration of a public right; (e) proceedings to determine a question of construction, arising under a statute, regulation, letters patent, by-law or other written instrument of a public nature made by the Crown or a public or local authority, and a declaration of the rights of persons interested under that instrument; (f) [Rule 962 Subrule (1) amended by S.R. 2012, No. 90, Applied:17 Oct 2012] proceedings under section 27J of the Commercial Arbitration Act 2011; (g) [Rule 962 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] proceedings for admission to the legal profession, other than by an application made in accordance with the mutual recognition principle; (h) [Rule 962 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] proceedings to require a practitioner to answer an affidavit; (i) [Rule 962 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] proceedings to strike a practitioner off the roll or to suspend or otherwise discipline a practitioner; (j) proceedings to disbar or otherwise discipline a barrister; (k) subject to subrule (2), other proceedings commenced under rule 88 or 89. (2) [Rule 962 Subrule (2) amended by S.R. 2008, No. 2, Applied:01 Mar 2008] The Associate Judge may hear and determine proceedings referred to in subrule (1)(k) if – (a) the parties consent or a judge so orders; or (b) the hearing is consequent upon the entry of an interlocutory judgment under rule 348 following a failure to appear to a writ. 963Reference to judge [Rule 963 Amended by S.R. 2008, No. 2, Applied:01 Mar 2008] [Rule 963 Substituted by S.R. 2005, No. 100, Applied:31 Aug 2005] At any time before giving judgment, the Associate Judge may – (a) adjourn the hearing of any matter to a judge sitting in chambers or in court; or (b) reserve any matter or any point or question in a matter for the consideration of a judge sitting in chambers or in court. 964Recording of proceedings [Rule 964 Amended by S.R. 2008, No. 2, Applied:01 Mar 2008] The provisions of Part 23 apply to proceedings before the Associate Judge. 965PART 38Service of foreign process966Application of Part 38 [Rule 966 Amended by S.R. 2009, No. 52, Applied:01 Nov 2010] This Part applies to the service on a person in the State of any document in connection with civil or commercial proceedings pending before a court or other tribunal in a foreign country, other than a Hague Convention country, if the Principal Registrar receives – (a) a letter from the court or tribunal requesting service on the person in the State and – (i) it is in accordance with a Convention; or (ii) it is not in accordance with a Convention and the Attorney-General certifies that effect ought to be given to it; or (b) a letter from the consular or other authority of the foreign country requesting service on the person in the State and the request is in accordance with a Convention. 967Documents required (1) For service to be effected in accordance with this Part, unless the Principal Registrar otherwise directs, the following are to be delivered to the Principal Registrar: (a) the document to be served and 2 copies of it; (b) a copy of the letter of request; (c) if the document to be served or the letter of request is not in English, a translation of it into English and a copy of the translation. (2) A translation under subrule (1) is to bear a certificate of the translator, in English, stating that it is an accurate translation of the relevant document. 968Service (1) The Principal Registrar is to request the Sheriff to have the document, a copy of the letter of request and a copy of any relevant translation served by a process server appointed by the Sheriff for the purpose. (2) Service is to be effected in the manner provided for by these rules for the service of originating process including substituted service. (3) An application for substituted service is to be made ex parte by originating application by the Attorney-General. 969Affidavit of service (1) After the document, copy letter of request and any translation have been served or attempts to serve them have failed, the Sheriff is to file an affidavit made by the person who effected or attempted to effect service. (2) The affidavit is to – (a) be in accordance with the prescribed form, if the document, copy letter of request and any translation have been served; or (b) describe the attempts made to serve the document, copy letter of request and any translation if they have not been served. 970Certificate (1) If the letter of request is in accordance with a Convention, the Principal Registrar is to give – (a) a certificate sealed with the seal of the Court certifying – (i) that the document, copy letter of request for service and any translation were served on the person to be served on the date and in the manner specified in the certificate or, if attempts to effect service failed, certifying the failure and the reasons for the failure; and (ii) the amount of the costs incurred; or (b) such other certificate as is appropriate in the terms of the relevant Convention. (2) If the letter of request is not in accordance with a Convention, the Principal Registrar is to give – (a) a certificate sealed with the seal of the Court – (i) annexing the letter of request, a copy of the document to be served and of any translation and a copy of the affidavit under rule 969; and (ii) identifying the annexures; and (iii) certifying that the manner of service of the documents and the proof of service are as required by the rules regulating the service of originating process of the Court in the State or, if attempts to effect service failed, certifying the failure and the reasons for the failure; and (iv) certifying the amount of the costs incurred; or (b) any other certificate as is appropriate in the terms of the letter of request. (3) The Principal Registrar is to send the certificate to – (a) the Attorney-General; or (b) the appropriate consul or other authority, if the letter of request or any relevant Convention so requires. PART 38AService under the Hague ConventionDivision 1Preliminary Note 1This Part forms part of a scheme to implement Australia’s obligations under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the Convention, the Attorney-General’s Department of the Commonwealth is designated as the Central Authority (under Article 2 of the Convention) and certain courts and government departments are, for certain purposes, designated as "other" or "additional" authorities (under Article 18 of the Convention). Note 2This Part provides (in Division 2) for service in overseas Hague Convention countries of local judicial documents (documents that relate to proceedings in the Court) and (in Division 3) for default judgment in proceedings in the Court after service overseas of such a document. Division 4, on the other hand, deals with service by the Court or arranged by the Court in its role as an other or additional authority, of judicial documents emanating from overseas Convention countries. Note 3 [Division 1 of Part 38A Amended by S.R. 2021, No. 20, Applied:24 Mar 2021] Information about the Hague Convention, including a copy of the Hague Convention, a list of all Contracting States, details of declarations and reservations made under the Hague Convention by each of those States and the names and addresses of the central and other authorities of each of those States, can be found at the website of the Hague Conference on Private International Law. 970AInterpretation of Part 38AIn this Part – additional authority, for a Hague Convention country, means an authority that is – (a) for the time being designated by the country, under Article 18 of the Hague Convention, to be an authority (other than the Central Authority) for the country; and (b) competent to receive requests for service abroad emanating from Australia; applicant, for a request for service abroad or a request for service in this jurisdiction, means the person on whose behalf service is requested;
Note The term "applicant" may have a different meaning in other provisions of these rules. |
Central Authority, for a Hague Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Convention, to be the Central Authority for that country; certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Convention; certifying authority, for a Hague Convention country, means the Central Authority for the country or some other authority that is for the time being designated by the country, under Article 6 of the Hague Convention, to complete certificates of service in the form annexed to the Hague Convention; civil proceedings means any judicial proceedings in relation to civil or commercial matters; defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served; foreign judicial document means a judicial document that originates in a Hague Convention country and that relates to civil proceedings in a court of that country; forwarding authority means – (a) for a request for service of a foreign judicial document in this jurisdiction, the authority or judicial officer of the Hague Convention country in which the document originates that forwards the request (being an authority or judicial officer that is competent under the law of that country to forward a request for service under Article 3 of the Hague Convention); or (b) for a request for service of a local judicial document in a Hague Convention country, the Registrar; Hague Convention – see rule5; Hague Convention country – see rule 5; initiating process means any document by which proceedings (including proceedings on any cross-claim or third-party notice) are commenced; local judicial document means a judicial document that relates to civil proceedings in the Court; request for service abroad means a request for service in a Hague Convention country of a local judicial document mentioned in rule 970D(1); request for service in this jurisdiction means a request for service in this jurisdiction of a foreign judicial document mentioned in rule 970M(1); this jurisdiction means Tasmania. 970BProvisions of this Part to prevailThe provisions of this Part prevail to the extent of any inconsistency between those provisions and any other provisions of these rules. Division 2Service abroad of local judicial documents970CApplication of Division (1) Subject to subrule (2), this Division applies to service in a Hague Convention country of a local judicial document. (2) This Division does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Convention. 970DApplication for request for service abroad (1) A person may apply to the Registrar, in the Registrar’s capacity as a forwarding authority, for a request for service in a Hague Convention country of a local judicial document. (2) The application must be accompanied by 3 copies of each of the following documents: (a) a draft request for service abroad, which must be in accordance with Part 1 of the prescribed form; (b) the document to be served; (c) a summary of the document to be served, which must be in accordance with the prescribed form; (d) if, under Article 5 of the Hague Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, the official language or one of the official languages of that country, a translation into that language of both the document to be served and the summary of the document to be served. (3) The application must contain a written undertaking to the Court, signed by the practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no practitioner on the record for the applicant in the proceedings, by the applicant – (a) to be personally liable for all costs that are incurred – (i) by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Hague Convention country in which the documents are to be served; or (ii) by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served; and (b) to pay the amount of those costs to the Registrar within 28 days after receipt from the Registrar of a notice specifying the amount of those costs under rule 970F(3); and (c) to give such security for those costs as the Registrar may require. (4) The draft request for service abroad – (a) must be completed (except for signature) by the applicant; and (b) must state whether (if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected) the applicant wants service to be attempted after the expiry of that time; and (c) must be addressed to the Central Authority, or to an additional authority, for the Hague Convention country in which the person is to be served; and (d) may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority. (5) Any translation required under subrule (2)(d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating – (a) that the translation is an accurate translation of the documents to be served; and (b) the translator’s full name and address and his or her qualifications for making the translation. 970EHow application to be dealt with (1) If satisfied that the application and its accompanying documents comply with rule 970D, the Registrar – (a) must sign the request for service abroad; and (b) must forward 2 copies of the relevant documents – (i) if the applicant has asked for the request to be forwarded to a nominated additional authority for the Hague Convention country in which service of the document is to be effected, to the nominated additional authority; or (ii) in any other case, to the Central Authority for the Hague Convention country in which service of the document is to be effected. (2) The relevant documents mentioned in subrule (1)(b) are the following: (a) the request for service abroad (duly signed); (b) the document to be served; (c) the summary of the document to be served; (d) if required under rule 970D(2)(d), a translation into the relevant language of each of the documents mentioned in paragraphs (b) and (c). (3) If not satisfied that the application or any of its accompanying documents complies with rule 970D, the Registrar must inform the applicant of the respects in which the application or document fails to comply. 970FProcedure on receipt of certificate of service (1) Subject to subrule (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the Registrar – (a) must arrange for the original certificate to be filed in the proceedings to which the document relates; and (b) must send a copy of the certificate to – (i) the practitioner on the record for the applicant in the proceedings; or (ii) if there is no practitioner on the record for the applicant in the proceedings, the applicant. (2) For the purposes of subrule (1), a certificate of service is in due form if – (a) it is in accordance with Part 2 of the prescribed form; and (b) it has been completed by a certifying authority for the Hague Convention country in which service was requested; and (c) if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority, it has been so countersigned. (3) On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in subrule (1), the Registrar must send to the practitioner or applicant who gave the undertaking mentioned in rule 970D(3) a notice specifying the amount of those costs. (4) For the purposes of subrule (3), a statement of costs is in due form if – (a) it relates only to costs of a kind mentioned in rule 970D(3)(a); and (b) it has been completed by a certifying authority for the Hague Convention country in which service was requested. (5) Subrule (1) does not apply unless – (a) adequate security to cover the costs mentioned in subrule (3) has been given under rule 970D(3)(c); or (b) to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to the Registrar. 970GPayment of costs (1) On receipt of a notice under rule 970F(3) in relation to the costs of service, the practitioner or applicant, as the case may be, must pay to the Registrar the amount specified in the notice as the amount of the costs. (2) If the practitioner or applicant fails to pay that amount within 28 days after receiving the notice – (a) except by leave of the Court, the applicant may not take any further step in the proceedings to which the local judicial document relates until those costs are paid to the Registrar; and (b) the Registrar may take such steps as are appropriate to enforce the undertaking for payment of those costs. 970HEvidence of serviceA certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of rule 970F(2) ) that certifies that service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that – (a) service of the document was effected by the method specified in the certificate on that date; and (b) if that method of service was requested by the applicant, that method is compatible with the law in force in the Hague Convention country in which service was effected. Division 3Default judgment following service abroad of initiating process970IApplication of DivisionThis Division applies to civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Hague Convention country. 970JRestriction on power to enter default judgment if certificate of service filed (1) This rule applies if – (a) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form (within the meaning of rule 970F(2) ) that states that service has been duly effected; and (b) the defendant has not appeared or filed a notice of address for service. (2) In circumstances to which this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that – (a) the initiating process was served on the defendant – (i) by a method of service prescribed by the internal law of the Hague Convention country for the service of documents in domestic proceedings on persons who are within its territory; or (ii) if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in the country, by that method; or (iii) if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily; and (b) the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings. (3) In subrule (2)(b) – sufficient time means – (a) 42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or (b) such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings. 970KRestriction on power to enter default judgment if certificate of service not filed (1) This rule applies if – (a) a certificate of service of initiating process has not been filed in the proceedings; or (b) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 970F(2) ) that states that service has not been effected – and the defendant has not appeared or filed a notice of address for service. (2) If this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that – (a) the initiating process was forwarded to the Central Authority, or to an additional authority, for the Hague Convention country in which service of the initiating process was requested; and (b) a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which initiating process was so forwarded; and (c) every reasonable effort has been made – (i) to obtain a certificate of service from the relevant certifying authority; or (ii) to effect service of the initiating process – as the case requires. 970LSetting aside judgment in default of appearance (1) This rule applies if default judgment has been entered against the defendant in proceedings to which this Division applies. (2) If this rule applies, the Court may set aside the judgment on the application of the defendant if it is satisfied that the defendant – (a) without any fault on the defendant’s part, did not have knowledge of the initiating process in sufficient time to defend the proceedings; and (b) has a prima facie defence to the proceedings on the merits. (3) An application to have a judgment set aside under this rule may be filed – (a) at any time within 12 months after the date on which the judgment was given; or (b) after the expiry of that 12-month period, within such time after the defendant acquires knowledge of the judgment as the Court considers reasonable in the circumstances. (4) Nothing in this rule affects any other power of the Court to set aside or vary a judgment. Division 4Local service of foreign judicial documents970MApplication of Division (1) This Division applies to service in this jurisdiction of a foreign judicial document in relation to which a due form of request for service has been forwarded to the Court – (a) by the Attorney-General’s Department of the Commonwealth, whether in the first instance or following a referral under rule 970N; or (b) by a forwarding authority. (2) Subject to subrule (3), a request for service in this jurisdiction is in due form if it is in accordance with Part 1 of the prescribed form and is accompanied by the following documents: (a) the document to be served; (b) a summary of the document to be served, which must be in accordance with the prescribed form; (c) a copy of the request and of each of the documents mentioned in paragraphs (a) and (b); (d) if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document. (3) Any translation required under subrule (2)(d) must bear a certificate (in English) signed by the translator stating – (a) that the translation is an accurate translation of the document; and (b) the translator’s full name and address and his or her qualifications for making the translation. 970NCertain documents to be referred back to Attorney-General’s Department of CommonwealthIf, after receiving a request for service in this jurisdiction, the Registrar is of the opinion – (a) that the request does not comply with rule 970M; or (b) that the document to which the request relates is not a foreign judicial document; or (c) that compliance with the request may infringe Australia’s sovereignty or security; or (d) that the request seeks service of a document in some other State or Territory of the Commonwealth – the Registrar must refer the request to the Attorney-General’s Department of the Commonwealth together with a statement of his or her opinion. Note The Attorney-General’s Department of the Commonwealth will deal with misdirected and non-compliant requests, make arrangements for the service of extrajudicial documents and assess and decide questions concerning Australia’s sovereignty and security. 970OService (1) Subject to rule 970N, on receipt of a request for service in this jurisdiction, the Court must arrange for the service of the relevant documents in accordance with the request. (2) The relevant documents mentioned in subrule (1) are the following: (a) the document to be served; (b) a summary of the document to be served; (c) a copy of the request for service in this jurisdiction; (d) if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document. (3) Service of the relevant documents may be effected by any of the following methods of service: (a) by a method of service prescribed by the law in force in this jurisdiction – (i) for the service of a document of a kind corresponding to the document to be served; or (ii) if there is no such corresponding kind of document, for the service of initiating process in proceedings in the Court; (b) if the applicant has requested a particular method of service and that method is compatible with the law in force in this jurisdiction, by that method; (c) if the applicant has not requested a particular method of service and the person requested to be served accepts the document voluntarily, by delivery of the document to the person requested to be served. 970PAffidavit as to service (1) If service of a document has been effected pursuant to a request for service in this jurisdiction, the person by whom service has been effected must lodge with the Court an affidavit specifying – (a) the time, day of the week and date on which the document was served; and (b) the place where the document was served; and (c) the method of service; and (d) the person on whom the document was served; and (e) the way in which that person was identified. (2) If attempts to serve a document pursuant to a request for service in this jurisdiction have failed, the person by whom service has been attempted must lodge with the Court an affidavit specifying – (a) details of the attempts made to serve the document; and (b) the reasons that have prevented service. (3) When an affidavit as to service of a document has been lodged in accordance with this rule, the Registrar – (a) must complete a certificate of service, sealed with the seal of the Court, on the reverse side of, or attached to, the request for service in this jurisdiction; and (b) must forward the certificate of service, together with a statement as to the costs incurred in relation to the service or attempted service of the document, directly to the forwarding authority from which the request was received. (4) A certificate of service must be – (a) in accordance with Part 2 of the prescribed form; or (b) if a form of certificate of service that substantially corresponds to Part 2 of the prescribed form accompanies the request for service, in that accompanying form. PART 39Obtaining evidence for external court or tribunal971Interpretation of Part 39In this Part – [Rule 971 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] Evidence Act means Part 2 of the Evidence on Commission Act 2001; and examiner means a person appointed under rule 973 as a person before whom a examination is to be conducted. 972Procedure (1) An application for an order under the Evidence Act may be made by a person nominated for that purpose by the court or tribunal concerned or, if no person is so nominated, by the Attorney-General. (2) An application under subrule (1) is to be – (a) made ex parte; and (b) accompanied by an affidavit to which is exhibited the request for the application; and (c) if the request is not in English, accompanied by a translation of it into English bearing a certificate of the translator, in English, that it is an accurate translation of the relevant document. 973ExaminerOn or after making an order for the examination of a witness under the Evidence Act, the Court or a judge is to order that the examination be conducted before a fit and proper person specified in the order. 974Manner of taking examination (1) The examiner is to conduct an examination in accordance with this rule unless the Court or a judge otherwise orders. (2) Subject to this Part, rule 475 to rule 481, inclusive, and rule 483 to rule 487, inclusive, apply to the examination as if – (a) the proceeding pending before the external court or tribunal concerned were a proceeding in the Court; and (b) the order for the examination were made under rule 476 in that proceeding; and (c) [Rule 974 Subrule (2) amended by S.R. 2008, No. 2, Applied:01 Mar 2008] if the examiner is a judge or the Associate Judge, an order were made under rule 476 for the examination before a judge or the Associate Judge. 975Examination to be forwarded to RegistrarUnless otherwise ordered – (a) an examiner, on completion of the examination, is to forward the depositions taken to the Principal Registrar; and (b) a person to whom any document is produced pursuant to an order under section 152(3)(b) of the Evidence Act 1910 is to forward the document to the Principal Registrar; and (c) a person who has done anything in connection with an examination, other than conduct the examination or receive a document, is to – (i) prepare a certificate setting out what that person has done; and (ii) forward the certificate to the Principal Registrar; and (d) the Principal Registrar, on receipt of a deposition, document or certificate sent under this rule, is to – (i) append to it a certificate in accordance with the prescribed form, duly sealed with the seal of the Court, for use out of the jurisdiction; and (ii) forward to the Attorney-General the deposition, document or certificate so certified, and the request for transmission to the external court or tribunal. PART 40Miscellaneous976Transitional provisions Schedule 4 has effect in respect of transitional provisions. 977Rules of the Supreme Court 1965 amendedThe Rules of the Supreme Court 1965 are amended as set out in Schedule 5. 978Civil Process Rules 1985 rescindedThe Civil Process Rules 1985 are rescinded. Schedule 1Fees and costsRule 837
PART 1Scale of fees to be allowed to practitioners and counselItem | Fee ($) |
Instructions – |
1. | To institute or defend any original proceeding (including instructions to institute or defend interpleader proceedings) and to appeal | 189.00 |
However – |
(a) no fee is allowable under this item to the Sheriff for instructions to interplead; and |
(b) no fee is allowable for instructions to take or oppose any interlocutory proceedings in a cause or matter, unless the taxing officer is satisfied that instructions were necessary, except in the case of a person, not a party to the action or matter, who is respondent to an application in a pending cause or matter |
2. | For a statement of claim, defence, counterclaim or special case | 189.00 |
Where – |
(a) the instructions for a defence cover, or include, the instruction for a counterclaim, only one fee is allowable; and |
(b) separate instructions – |
(i) are not required for pleadings, no fee should be allowed under this item; or |
(ii) are required for pleadings, the fee allowed under this item is an amount that the taxing officer determines after taking into account the fee allowed under item 1 and after being satisfied of the need for those instructions, the time spent taking them and the status of the person taking them |
3. | For other pleadings, processes, statements of fact, reports, accounts and other similar documents when proper and not otherwise provided for, for interrogatories, for affidavits verifying interrogatories and other special affidavits and for payment into or out of Court, if the taxing officer is satisfied that any special further instruction was necessary | 140.00 |
Where separate instructions – |
(a) are not required for pleadings, no fee should be allowed under this item; or |
(b) are required for pleadings, the fee allowed under this item is an amount that the taxing officer determines after taking into account the fee allowed under item 1 and after being satisfied of the need for those instructions, the time spent taking them and the status of the person taking them |
4. | To amend a pleading if the taxing officer is satisfied that any further special instruction was necessary | 91.40 |
5. | For particulars to be supplied if the taxing officer is satisfied that any further special instruction was necessary | 91.40 |
6. | For brief, such fee may be allowed as the taxing officer thinks fit having regard to all the circumstances of the case |
No allowance is to be made under item 6 in respect of any attendance, perusal, work or service which is allowed for under some other item and, in fixing the amount to be allowed under item 6, the taxing officer is to have regard to any allowance made for earlier instructions in the cause or matter so that, in no case, are any instructions to be allowed for more than once |
Process – |
7. | An originating process | 131.00 |
8. | The renewal of a writ | 54.40 |
9. | A subpoena | 78.00 |
The names of any number of witnesses may be included in a subpoena to give evidence and the taxing officer is not to allow any costs in respect of such a subpoena which has been issued unnecessarily |
10. | A writ of execution or other writ to enforce a judgment or an order | 126.00 |
11. | A writ not included above | 131.00 |
The fees specified in items 7 to 11 include drawing and engrossing and any endorsement and copy to be filed on the sealing of the writ, any attendance to issue the writ and any copy for service, but exclude the service of the writ |
12. | An interlocutory application to attend in chambers or in Court as in chambers (including drawing and engrossing and copy for judge and attending to issue the interlocutory application and copies for service) | from 66.00 up to and including 96.30 |
13. | A certificate of readiness | 96.30 |
Appearances – |
14. | Entering an appearance (including preparation of notice and attending to enter appearance, copy and service) | 54.40 |
Drawing documents – |
15. | Drawing a document, including a pleading, particulars, affidavit, brief, judgment, bill of costs and any other document not otherwise provided for, for each 100 words | 17.40 |
No fee is allowable for drawing in respect of a matter which is a copy, repetition or adaptation of an existing document or part of an existing document (including the title of the Court and the cause or matter) |
Copies – |
16. | A copy of a document, if no other provision is made – |
(a) for each 100 words of an original copy | 9.30 |
(b) for each page of a photocopy | 1.20 |
Perusals – |
17. | Perusal of all necessary documents, other than formal and ordinary letters and entries of appearance, for each 100 words | 8.20 |
However – |
(a) no allowance is to be made for perusal of a document when preparing for trial, but the time occupied in that perusal may be considered in fixing an allowance under item 6; and |
(b) if the practitioner is already familiar with the contents of the document, no allowance, or a smaller allowance than that mentioned above, is to be made as the taxing officer thinks proper; and |
(c) the allowance for perusal is to be allowed once only for each document |
Attendances – |
18. | A proper attendance of a practitioner – |
(a) being other than a formal attendance – |
(i) for each hour, a fee may be allowed as the taxing officer thinks fit, having regard to the degree of difficulty of the case, the experience and any particular expertise of the practitioner and all the circumstances of the case | from 194.00 up to and including 423.00 |
(ii) proportionately for part of an hour |
(b) being a formal attendance | 26.70 |
19. | A proper attendance of a clerk – |
(a) being other than a formal attendance – |
(i) for each hour | 76.40 |
(ii) proportionately for part of an hour |
(b) being a formal attendance | 17.40 |
(c) for sending a document by facsimile transmission anywhere in Australia, including disbursements (or, if a very long document, at the discretion of the taxing officer) | 9.30 |
Services – |
20. | The following fees are allowable: |
(a) For service, or filing instead of service, of any writ, application, order or notice on a person proper to be served therewith who has not entered an appearance, and if not authorised to be served by post (or any other fee as in special circumstances the taxing officer thinks proper) | 62.50 |
(b) If served at a distance of more than 2 kilometres from the nearest place of business or office of the practitioner (whether principal or agent) serving the same or through whom service is effected – |
(i) if served by the practitioner or the practitioner’s clerk, for each 2 kilometres (one way) beyond each such 2 kilometres, and in addition to the fee allowed under paragraph (a) | 7.00 |
(ii) if served by any other person, the sum actually and reasonably paid |
(c) If, in the opinion of the taxing officer, a more expensive means of service has been adopted than should have been adopted, the taxing officer is to allow for the service only the fee as would have been paid if the less or the least expensive means of service had been adopted |
(d) If more than one attendance is necessary to effect service or to ground an application for substituted service, a further allowance may be made as the taxing officer thinks fit |
(e) For service out of the jurisdiction, an allowance may be made as the taxing officer thinks fit |
(f) If any writ, application, order, notice of motion, summons, petition, notice or other process or any 2 of them have to be, are or ought to be, or the taxing officer is of the opinion that they should have been, served together, one fee only for service is to be allowed |
Correspondence, &c. – |
21. | The following fees are allowable: |
(a) formal letter | 26.70 |
(b) ordinary letter | 34.80 |
(c) special letter | 60.20 |
or, if very long or very special, at the discretion of the taxing officer |
(d) circular letters after the first | 7.00 |
If 2 or more letters in similar terms are to be sent to 2 or more persons, all the letters except the first are to be allowed for as circular letters |
No letter (other than a letter before action) is to be allowed for, unless the taxing officer is satisfied that it was necessary |
22. | For any necessary postage, carriage or transmission of a document, at the discretion of the taxing officer |
Default judgments – |
23. | Entering judgment by default without an order (including any instructions, drawing, engrossing any copy and attendance to have judgment entered) | 76.40 |
PART 2FeesFees on the scale specified in Part 1 of Schedule 1 to the Magistrates Court (Civil Division) Rules 1998 as applicable to the amount involved in the action |
PART 3Costs to be endorsed on writs and claimed on signing judgmentItem | Fee - claim exceeding $50 000.00 ($) |
1. | Costs of writ for service within the jurisdiction | 309.00 |
2. | Costs of writ for service outside the jurisdiction | 412.00 |
In addition to the fees allowed in items 1 and 2, the practitioner may claim the Court fees set out in the Supreme Court (Fees) Rules 2017, and the fee, if any, prescribed under section 5(1) of the Appeal Costs Fund Act 1968 |
3. | Costs of signing judgment | 80.80 |
PART 4Garnishee and judgment summons proceedings (Inclusive of Court costs)Rules 912 and 921
Judgment creditor’s costs | Fee ($) |
In respect of a debt exceeding $50 000.00 | 234.00 |
In respect of a debt not exceeding $50 000.00 | 157.00 |
PART 5Costs to be endorsed on application under section 146(1) of the Land Titles Act 1980 for possession of propertyRule 601
1. | Costs of the application | $484.00 |
In addition to the above fee, the practitioner may claim the Court fees set out in the Supreme Court (Fees) Rules 2017, and the fee, if any, prescribed under section 5(1) of the Appeal Costs Fund Act 1968 . |
Schedule 2Schedule 3Expenses of executionRule 902
Costs of a writ of execution which may be directed to be levied |
1. In a case where the amount of debt does not exceed $50 000 | $77.50 |
2. In a case where the amount of debt exceeds $50 000 | $112.00 |
Schedule 4Transitional provisionsRule 976
1. Interpretation In this Schedule – commencement date means the date on which these rules take effect; former rules means Part 1 of the Rules of the Supreme Court 1965 and the Civil Process Rules 1985; pending proceeding means a civil proceeding in the Court to which, immediately before the commencement date, the former rules applied. 2. Application (1) Subject to subclause (3), these rules apply to a civil proceeding commenced in the Court on or after the commencement date. (2) Subject to this Schedule, these rules apply, with any necessary modification, to a pending proceeding, and anything required or permitted to be done under these rules with respect to a proceeding commenced on or after the commencement date is required or permitted to be done in a pending proceeding. (3) These rules do not apply to a civil proceeding commenced in the Court on or after the commencement date to which any other Part of the Rules of the Supreme Court 1965 applies except as that Part provides. (4) The repeal of the former rules does not affect anything done or omitted to be done in a pending proceeding before the commencement date and, except as provided in this Schedule, anything so done or omitted to be done before the commencement date is taken to have been done or omitted under these rules. (5) Where the time for entering an appearance in any pending proceeding is limited by the originating process in the proceeding and before the commencement date any defendant or respondent had not entered an appearance in the proceeding, the time limited for the purpose of entering an appearance by that defendant or respondent under these rules is the time limited in the originating process. (6) If before the commencement date, originating process issued in a pending proceeding for service on a defendant out of Tasmania had not been served on that defendant, the former rules continue to apply with respect to the service of the originating process on that defendant as if these rules had not been made and, in particular – (a) the Court may make an order authorising service of the originating process on that defendant; and (b) nothing in these rules affects any order authorising such service made before the commencement date; and (c) if the defendant is served out of Tasmania in accordance with an order of the Court, and does not enter an appearance within the time limited, the plaintiff is entitled to enter or apply for judgment, and Part 11 applies, with any necessary modification, as if the proceeding had been commenced by writ after the commencement date and the writ served on the defendant within Tasmania. (7) If originating process issued in a pending proceeding has not been served on a defendant or respondent who is out of Tasmania, the former rules continue to apply with respect to the service of the originating process on the defendant or respondent out of Tasmania as if these rules had not been made, and, in particular, concurrent originating process may, in accordance with Order 6 of the former rules, be issued for the purpose of such service. (8) If an endorsement of claim on a writ in a pending proceeding did not stand in place of or otherwise constitute a statement of claim under the former rules, then, in respect of any defendant to whom the plaintiff had not delivered a statement of claim before the commencement date, the plaintiff is to deliver a statement of claim to that defendant – (a) if the defendant entered an appearance before the commencement date, within 21 days after the commencement date; or (b) if the defendant enters an appearance after the commencement date, within 21 days after appearance. (9) An endorsement of claim on a writ in a pending proceeding which stood in place of or otherwise constituted a statement of claim under the former rules is taken to be a statement of claim for the purpose of these rules. 3. Jurisdiction not affected Nothing in these rules limits the jurisdiction, power or authority which the Court had immediately before the commencement date. 4. Proceeding in another court (1) Except as the Court otherwise orders these rules apply, with any necessary modification, to proceedings commenced in another court and remitted or transferred to or removed into the Court on or after the commencement date as if they were a proceeding commenced in the Court on the day they were remitted, transferred or removed. (2) For the purpose of this Schedule, proceedings commenced in another court and remitted or transferred to or removed into the Court before the commencement date are taken to be a pending proceeding. 5. Judgment in pending proceeding (1) In this clause references to a judgment entered or given include references to an order made. (2) Except as provided in this clause, these rules apply to a judgment entered or given in a pending proceeding as if it had been entered or given in a proceeding commenced after the commencement date. (3) A judgment entered or given in a pending proceeding before the commencement date may be enforced in accordance with these rules, but otherwise the judgment has the same force and effect as if these rules had not been made. (4) Without limiting subclause (3) – (a) no appeal may be brought, application to set aside or vary made or other proceeding taken in respect of a judgment entered or given before the commencement date which could not have been brought, made or taken in respect of that judgment under the former rules immediately before the commencement date; and (b) process commenced under the former rules to enforce a judgment entered or given before the commencement date may be continued or carried out and aided in accordance with those rules. 6. Costs (1) The amount of costs for work done in a pending proceeding before the commencement date is to be determined in accordance with the former rules and the amount of costs for work done in the proceeding on or after that date is to be determined in accordance with these rules. (2) For the purpose of this clause, work done in a pending proceeding on or after the commencement date in accordance with the former rules, so far as practicable, is to be taken to have been done in accordance with these rules. Schedule 5Rules of the Supreme Court 1965 amendedRule 977
1. Rules of the Supreme Court 1965 amended (1) Parts I, III, V, VI, VII, VIII and XI of the Rules of the Supreme Court 1965 are rescinded. (2) Part II of the Rules of the Supreme Court 1965 is amended as follows: (a) by omitting from rule 38(1) "Order 70" and substituting " Division 2 of Part 34 of the Supreme Court Rules 2000 "; (b) by omitting from rule 44(1) "Table C in Appendix M" and substituting "Part 4 of Schedule 1 to the Supreme Court Rules 2000 ". (3) Part IV of the Rules of the Supreme Court 1965 is amended as follows: (a) by omitting from rule 1(1) "Orders and rules contained in Part I, including rule 32 of Order 21" and substituting " Supreme Court Rules 2000 "; (b) by omitting from rule 24 "Orders 18 and 20 of Part I" and substituting "Division 12 of Part 7 of the Supreme Court Rules 2000 "; (c) by omitting from rule 31 "Order 24 of Part I" and substituting "Part 8 of the Supreme Court Rules 2000 "; (d) by omitting rule 56 and substituting the following rule: 56Transfer of admiralty action (1) The Court or a judge may order that an admiralty action be transferred from one registry to another. (2) If an admiralty action is transferred to another registry, any document filed in that action is to be transferred to the other registry. (e) by omitting from the opening words to Appendix Q "Appendices to Part I" and substituting " Supreme Court Forms Rules 2000 ". (4) Part IX of the Rules of the Supreme Court 1965 is amended as follows: (a) by omitting from rule 2 "Schedule 1 to the Civil Process Rules 1985 " and substituting "the Supreme Court Forms Rules 2000 "; (b) by omitting subrule (4) of rule 3 and substituting the following subrule: (4) Rule 10 of the Supreme Court Rules 2000 applies, with any necessary modifications, to proceedings under the Act. (c) by omitting from rule 6(4) "Division I of Order 76 of Part I of these rules" and substituting " Division 1 of Part 27 of the Supreme Court Rules 2000 "; (d) by omitting from rule 10(2) "Form 3 of Part II of Appendix B to Part I to these rules" and substituting "the appropriate form in the Supreme Court Forms Rules 2000 ". (5) Part XII of the Rules of the Supreme Court 1965 is amended as follows: (a) by omitting from rule 2(1)(b) "in Appendix L" and substituting "in Schedule 2 to the Supreme Court Rules 2000 "; (b) by omitting from rule 9 "Order 9 of Part 1" and substituting " Division 9 of Part 7 of the Supreme Court Rules 2000 ". (6) Part XIII of the Rules of the Supreme Court 1965 is amended by omitting from rule 3(a) " Civil Process Rules 1985 " and substituting " Supreme Court Rules 2000 ". (7)[Part 4 of Schedule 1 Amended by S.R. 2009, No. 74, Applied:15 Jul 2009] Part X of the Rules of the Supreme Court 1965 is rescinded. W. J. E. COX
Chief Justice
P. G. UNDERWOOD
Puisne Judge
E. C. CRAWFORD
Puisne Judge
P. E. EVANS
Puisne Judge
Countersigned,
I. G. RITCHARD
Registrar
Displayed and numbered in accordance with the Rules Publication Act 1953.
Notified in the Gazette on 15 March 2000
These Rules of Court are administered in the Department of Justice and Industrial Relations.