Uniform Civil Procedure Rules (Amendment No 10) 2006 (NSW)
2006 No 391
New South Wales
Uniform Civil Procedure Rules
(Amendment No 10) 2006
under the
Civil Procedure Act 2005
The Uniform Rules Committee made the following rules of court under the Civil
Procedure Act 2005 on 5 July 2006.
Jennifer Atkinson
Secretary of the Committee
Explanatory note
The object of these Rules is to include in the Uniform Civil Procedure Rules 2005 certain provisions that are currently contained in, but are to be omitted from, the Supreme Court Rules 1970 and the District Court Rules 1973 in relation to:
| (a) | the service within the State of process concerning court proceedings outside the State, and |
| (b) | the distribution of business between the Divisions of the Supreme Court, and |
| (c) | the entry of proceedings in the specialist lists of the Supreme Court and the District Court, and |
| (d) | accounts and inquiries under judgments and orders of the Supreme Court, and |
| (e) | matters arising under the Commercial Arbitration Act 1984, and |
| (f) | matters arising under Commonwealth intellectual property legislation. |
These Rules also make other minor, consequential and ancillary amendments to the Uniform
Civil Procedure Rules 2005.
| Published in Gazette No 90 of 7 July 2006, page 5280 | Page 1 |
| 2006 No 391 | |
| Rule 1 | Uniform Civil Procedure Rules (Amendment No 10) 2006 |
Uniform Civil Procedure Rules (Amendment No 10) 2006
under the
Civil Procedure Act 2005
1 Name of Rules
These Rules are the Uniform Civil Procedure Rules (Amendment No 10)
2006.
2 Amendment of Uniform Civil Procedure Rules 2005
The Uniform Civil Procedure Rules 2005 are amended as set out in
Schedule 1.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
| Schedule 1 | Amendments |
(Rule 2)
[1] Part 1, Division 4
Insert after Division 3 of Part 1:
Division 4 Distribution of business between Divisions
of Supreme Court
1.16 Assignment of business to Divisions (cf SCR Part 12, rule 1 (1)) Proceedings in the Supreme Court:
(a)
under an Act or instrument referred to in Column 1 of Part 1 or 2 of Schedule 8, or
(b)
under a provision referred to in Column 2 of that Part in respect of such an Act or instrument,
are assigned to the Division of the Court referred to in Column 3
of that Part in respect of that Act, instrument or provision.
1.17 Bulk transfers between Supreme Court Divisions (cf SCR Part 14A,
rule 7)The Supreme Court may of its own motion, by a single order, direct that proceedings of a specified type be transferred between the Common Law Division and the Equity Division.
1.18 Assignment of business to Common Law Division (cf SCR Part 12,
rule 1 (3))The following proceedings in the Supreme Court are assigned to the Common Law Division:
(a)
proceedings for a debt arising under any Act (including any Commonwealth Act) by which any tax, fee, duty or other impost is collected or administered by or on behalf of the State or the Commonwealth,
(b) proceedings on an appeal or application to the Court:
(i)
in respect of a decision of a public body (other than a court or tribunal) or public officer (other than an officer of a court or tribunal), or
(ii)
for the removal into the Court of any matter before a public body (other than a court or tribunal) or public officer (other than an officer of a court or tribunal),
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
(c)
proceedings on an appeal or application to the Court in respect of:
(i)
a decision of a public body constituted or established by or under a Commonwealth Act (other than a court exercising federal jurisdiction within the meaning of section 26 of the Acts Interpretation Act 1901 of the Commonwealth), or
(ii)
a decision of a person holding or acting in a public office under a Commonwealth Act (other than an officer of a court referred to in subparagraph (i)),
(d)
subject to section 53 of the Supreme Court Act 1970, proceedings that are not assigned to the Equity Division by these rules.
1.19 Assignment of business to Equity Division (cf SCR Part 12, rule 5 (b)) The following proceedings in the Supreme Court are assigned to the Equity Division:
(a)
proceedings on an application for a writ of habeas corpus ad subjiciendum in respect of a minor,
(b)
proceedings for orders for the custody of and access to minors,
(c)
proceedings on an appeal to the Court in a Division in proceedings between husband and wife or parent and child,
(d)
proceedings for orders under and provision by or under any Act that a debenture or bond issued by a corporation constituted by that Act, or a coupon annexed to that debenture or bond, has been lost or destroyed or defaced and directions by or under that Act for advertisement relating to that debenture, bond or coupon,
(e)
proceedings for orders under any provision made by or under any Act for the appointment of a receiver of the income of a corporation which is constituted by that Act and which makes default in payment to the holder of any debenture, or coupon, issued or stock inscribed by that corporation,
(f)
proceedings in relation to any provision in any Act or Commonwealth Act by which a tax, fee, duty or other impost is levied, collected or administered by or on behalf of the State or the Commonwealth (other than proceedings for debt that are assigned to the Common Law Division by rule 1.18 (a)).
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
1.20 Declarations of right and injunctions (cf SCR Part 12, rule 3) Proceedings need not be assigned to the Equity Division solely because a declaration of right or an injunction is claimed in the proceedings.
1.21 Removal to Court of Appeal (cf SCR Part 12, rule 2)
(1)
The Supreme Court in a Division may, in relation to proceedings commenced in the Division, make an order that the proceedings be removed into the Court of Appeal:
(a)
if it makes an order under rule 28.2 for the decision of a question of law, or
(b)
if, having stated the question to be decided or determined, it is satisfied that special circumstances exist that render it desirable to make an order for their removal into the Court of Appeal.
(2) If an order is made under subrule (1):
(a) the Court of Appeal may order that the whole or any part of the proceedings be remitted to a Division for the determination, by trial or otherwise, of the proceedings or of any question arising in the proceedings, or (b) the proceedings may be continued and disposed of in the Court of Appeal. (3) Proceedings may be removed into the Court of Appeal under subrule (1) even if any decision or determination in the proceedings is expressed by any Act or law to be final or without appeal. (4) In this rule, question includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
[2] Rule 4.2 Documents to be filed to contain certain information
Omit rule 4.2 (1) (b). Insert instead:
(b) if relevant, the division in which the proceedings are intended to be heard, (b1) if relevant, the list in which the proceedings are intended
to be entered,
[3] Rule 4.2 (2) (b)
Omit the paragraph. Insert instead:
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
(b) if relevant, the division in which the proceedings are intended to be heard, (b1) if relevant, the list in which the proceedings are intended
to be entered,
[4] Part 11, heading
Omit the heading. Insert instead:
Part 11 Service of documents outside Australia
and service of external process[5] Part 11, Division 3
Insert after Division 2:
Division 3 Service of external process
| 11.13 | Application (cf SCR Part 57, rule 1) |
This Part applies to the service in the State of any document that is required in connection with civil proceedings pending before a court outside the State, where:
(a)
a letter of request from the court has been received by the Principal Registrar of the Supreme Court, and
(b) either:
(i)
the request is for service pursuant to a convention, or
(ii)
the Attorney General certifies that effect ought to be given to the request.
| 11.14 | Requisite documents (cf SCR Part 57, rule 2) |
In order that service may be effected in accordance with this Part, the following documents must be delivered to the Principal Registrar of the Supreme Court, unless the Principal Registrar otherwise directs:
(a) the document to be served and 2 copies of it, (b) a copy of the letter of request, (c)
if the document or letter is not in English, a translation of it in English and a copy of the translation.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 | |||
| 11.15 | Service (cf SCR Part 57, rule 3) | |||
| ||||
| (3) Proceedings for an order for substituted service may be commenced only by the Attorney General. | ||||
| 11.16 | Affidavit of service (cf SCR Part 57, rule 4) | |||
| ||||
| 11.17 | Certificate (cf SCR Part 57, rule 5) | |||
|
(a) a certificate complying with subrule (2), or (b)
such other certificate as is appropriate to the terms of the relevant convention.
(2) A certificate referred to in subrule (1) (a):
(a) must certify: (i) that the document or a copy of it was served on the person at the time, and in the manner, specified in the certificate, or
(ii) if attempts to effect service failed, that service has failed and the reasons for the failure, and
(b) must certify the amount of the costs incurred. (3)
If the request for service is made otherwise than pursuant to a convention, the Principal Registrar of the Supreme Court must give either:
(a) a certificate complying with subrule (4), or (b)
such other certificate as is appropriate to the terms of the letter of request.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
(4) A certificate referred to in subrule (3) (a):
(a) must annex the letter of request, a copy of the document to be served and of any translation, and a copy of the affidavit under rule 11.16, and (b) must identify the annexures, and (c) must certify: (i) that the manner of service of the document and the proof of service are such as are required by these rules in relation to the service of originating process of the Supreme Court, or
(ii) if attempts to effect service failed, that service has failed and the reasons for the failure, and
(d) must certify the amount of the costs incurred. (5) In each case, the certificate is to be sealed with the seal of the
Supreme Court.(6) The Principal Registrar of the Supreme Court must send the certificate to the Director-General of the Attorney General’s Department or, if the letter of request or any relevant convention so requires, to the appropriate consul or other authority.
[6] Rule 31.10 Plans, photographs and models
Insert “Part 14, rule 2,” after “SCR” in the matter appearing after the heading to the rule.
[7] Rule 31.10 (3)
Insert after rule 31.10 (2):
(3) This rule does not apply to any proceedings entered, or intended
to be entered, in:
(a) the Commercial List or the Technology and Construction List in the Supreme Court, or (b) the Commercial List or the Construction List in the District Court.
[8] Rule 36.11 Entry of judgments and orders
Insert after rule 36.11 (3):
(4) This rule does not limit the operation of rule 36.10.
[9] Rule 39.20 Expiry and renewal of writ of execution
Insert “by the court” after “renewed”.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
[10] Rule 41.2
Omit the rule. Insert instead:
41.2 Deposit of funds Within one day after money is paid into court, the registrar must deposit the money in the court’s bank account.
[11] Existing Parts 45 and 46
Renumber as Parts 49 and 50, renumber rules 45.1–45.24 and 46.1–46.16 as rules 49.1–49.24 and 50.1–50.16, respectively, and update accordingly any references in those Parts to the renumbered rules.
[12] New Parts 45–48
Insert after Part 44:
Part 45 Specialist lists
Division 1 Supreme Court specialist lists
45.1 Entry as indicated by originating process
(1)
If the originating process in proceedings in the Common Law Division of the Supreme Court indicates that the proceedings are intended to be entered in one of the following lists, the proceedings are to be entered in that list:
The Administrative Law List
The Defamation List
The Possession List
The Professional Negligence List(2)
If the originating process in proceedings in the Equity Division of the Supreme Court indicates that the proceedings are intended to be entered in one of the following lists, the proceedings are to be entered in that list:
The Admiralty List
The Commercial List
The Revenue List
The Technology and Construction List
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
(3)
If proceedings are commenced by an originating process under the Supreme Court (Corporations) Rules 1999, the proceedings are to be entered in the Corporations List in the Equity Division of the Supreme Court.
(4) In this Division, the lists referred to in subrules (1), (2) and (3) are
referred to as specialist lists.
45.2 Entry and removal of proceedings pursuant to order of Supreme
CourtProceedings are to be entered in, or removed from, a specialist list if the Supreme Court so orders.
45.3 The Administrative Law List (cf SCR Part 14D, rule 1)
(1) The following proceedings in the Supreme Court are to be
entered in the Administrative Law List:
(a)
proceedings for commanding or otherwise requiring a public body or a public officer to perform a public duty,
(b)
proceedings for prohibiting or otherwise restraining a public body or a public officer from performing or purporting to perform any act,
(c)
proceedings for determining by declaration or otherwise any matter concerning the powers of a public body or a public officer,
(d)
proceedings in appeals or applications to the Court in respect of decisions of a public body or a public officer under any enactment specified in the rules for the purposes of this subrule.
(2) In this rule:
prescribed tribunal means:
(a)
a specified tribunal within the meaning of section 48 of the Supreme Court Act 1970, or
(b) a Local Court, or (c) a magistrate, coroner or assistant coroner, or (d)
any other tribunal, person or body of persons prescribed, or belonging to a class prescribed for the purposes of this definition.
public body means a body of persons, whether corporate or unincorporate, constituted by or under an Act and required to perform or performing public duties, but does not include a prescribed tribunal.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
public officer means a person holding or acting in a public office under the Government of the State or an office created by or under an Act and required to perform or performing public duties, but does not include a prescribed tribunal.
45.4 The Possession List (cf SCR Part 14B, rules 1 and 2)
(1)
Proceedings in the Common Law Division of the Supreme Court in which a claim for possession of land is made are to be entered in the Possession List.
(2) Subrule (1) does not apply to:
(a)
proceedings that involve a claim for professional negligence, being proceedings entered in the Professional Negligence List, or
(b)
proceedings that involve an appeal against, or an application for a stay of, an order made by the Consumer, Trader and Tenancy Tribunal under the Residential Tenancies Act 1987.
45.5 The Professional Negligence List (cf SCR Part 14C, rule 1)
(1)
Proceedings in the Common Law Division of the Supreme Court in which a professional negligence claim is made may be entered in the Professional Negligence List.
(2) In this rule:
professional negligence means the breach of a duty of care or of
a contractual obligation in the performance of professional work
or in the provision of professional services by a medical
practitioner, an allied health professional (for example, a dentist,
chemist or physiotherapist), a hospital, a solicitor or a barrister.
professional negligence claim means a claim for damages,
indemnity or contribution based on an assertion of professional
negligence.45.6 The Commercial List (cf SCR Part 14, rule 1)
(1) The following proceedings in the Equity Division of the Supreme
Court may be entered in the Commercial List:
(a) proceedings arising out of commercial transactions, (b)
proceedings in which there is an issue that has importance in trade or commerce.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
(2)
In this rule, issue includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
45.7 The Technology and Construction List (cf SCR Part 14A, rule 1)
(1)
The following proceedings in the Equity Division of the Supreme Court may be entered in the Technology and Construction List:
(a) proceedings relating to or arising out of:
(i)
the design, carrying out, supervision or inspection of any building or engineering work, or
(ii)
the performance by any building or engineering expert of any other services with respect to any building or engineering work, or
(iii)
any certificate, advice or information given or withheld with respect to any building or engineering work, or
(iv)
the Building and Construction Industry Security of Payment Act 1999,
(b)
proceedings relating to or arising out of, or the determination of which involves, the design, acquisition, disposal or operation of technology in commercial transactions or in transactions involving Government,
(c)
proceedings on a claim for rectification, setting aside or cancellation of any agreement with respect to matters mentioned in paragraph (a) or (b).
(2) In this rule:
building or engineering expert includes a builder, engineer,
architect, designer and quantity surveyor.
building or engineering work includes:
(a) any intended building or engineering work, and (b)
any building or engineering work in the course of construction or completion or which has been substantially or fully completed, and
(c) any associated work.
45.8 Proceedings under particular Acts and instruments (cf SCR Part 12,
rule 1)Proceedings in the Supreme Court:
(a)
under an Act or instrument referred to in Column 1 of Part 1 or 2 of Schedule 8, or
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
(b)
under a provision referred to in Column 2 of that Part in respect of any such Act or instrument,
are to be entered in the list (if any) referred to in Column 4 of that
Part in respect of that Act, instrument or provision.
Division 2 District Court specialist lists 45.9 Entry as indicated by originating process
(1)
If the originating process in proceedings in the District Court indicates that the proceedings are intended to be entered in one of the following lists (or, where the originating process contains no such indication, if the defence so indicates) the proceedings are to be entered in that list:
The Child Care List
The Coal Miners’ Workers Compensation List
The Construction List
The Commercial List
The Defamation List
The Professional Negligence List
The Property Relationships ListThe Special Statutory Compensation List
(2) In this Division, the lists referred to in subrule (1) are referred to
as specialist lists.
| 45.10 | Entry and removal of proceedings pursuant to order of District Court |
Proceedings are to be entered in, or removed from, a specialist list if the District Court so orders.
| 45.11 | The Construction List (cf DCR Part 24A, rules 1, 2 and 3) | |
|
(a) proceedings relating to or arising out of:
(i)
the design, carrying out, supervision or inspection of any building or engineering work, or
(ii)
the performance by any building or engineering expert of any other services with respect to any building or engineering work, or
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
(iii) any certificate, advice or information given or withheld with respect to any building or engineering work, or
(iv) the Building and Construction Industry Security of Payment Act 1999,
(b)
proceedings relating to or arising out of, or the determination of which involves, the design, acquisition, disposal or operation of technology in commercial transactions or in transactions involving Government,
(c)
proceedings on a claim for rectification, setting aside or cancellation of any agreement with respect to matters mentioned in paragraph (a) or (b).
(2) In this rule:
building or engineering expert includes a builder, engineer,
architect, designer and quantity surveyor.
building or engineering work includes:
(a) any intended building or engineering work, and (b)
any building or engineering work in the course of construction or completion or which has been substantially or fully completed, and
(c) any associated work.
| 45.12 | The Commercial List (cf DCR Part 24B, rules 2 and 3) | |
|
(a) proceedings arising out of commercial transactions, (b)
proceedings in which there is an issue that has importance in trade or commerce.
(2) This rule does not apply to proceedings that may be entered in the
Construction List.(3)
In this rule, issue includes any question or issue in any proceedings, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
| 45.13 | The Professional Negligence List (cf SCR Part 14C, rule 1) | |
|
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
(2) In this rule:
professional negligence means the breach of a duty of care or of
a contractual obligation in the performance of professional work
or in the provision of professional services by a medical
practitioner, an allied health professional (for example, a dentist,
chemist or physiotherapist), a hospital, a solicitor or a barrister.
professional negligence claim means a claim for damages,
indemnity or contribution based on an assertion of professional
negligence.
| 45.14 | Proceedings under particular Acts and instruments |
Proceedings in the District Court:
(a)
under an Act or instrument referred to in Column 1 of Part 1 or 2 of Schedule 9, or
(b)
under a provision referred to in Column 2 of that Part in respect of such an Act or instrument,
are to be entered in the list (if any) referred to in Column 3 of that
Part in respect of that Act, instrument or provision.
Part 46 Accounts and inquiries
Division 1 General 46.1 Application of Part (cf SCR Part 49, rule 1)
(1)
This Part applies to accounts, inquiries and other matters under an order in the same way as it applies to accounts, inquiries and other matters under a judgment.
(2) In the application of this Part to accounts, inquiries and other
matters under an order:
(a) references in this Part to a judgment extend to an order, and (b)
references in this Part to the giving of judgment extend to the making of an order.
46.2 Account: summary order (cf SCR Part 48, rule 1)
(1)
If a party claims an account or makes a claim which involves taking an account, the court may, on application by that party at any stage of the proceedings:
(a) order that an account be taken, and (b)
order that any amount certified on taking the account to be due to any party be paid to him or her.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
(2) The court may not make an order under subrule (1) (a):
(a)
against a defendant who has not filed an appearance, unless he or she is in default of appearance, or
(b)
if it appears that there is some preliminary question to be determined.
46.3 Account or inquiry at any stage (cf SCR Part 48, rule 2) The court may make orders for the taking of any account or the making of any inquiry.
46.4 Account: directions (cf SCR Part 48, rule 3) If the court makes an order for the taking of an account, the court, by the same or a subsequent order:
(a)
may give directions concerning the manner of taking or vouching the account, and
(b)
without limiting paragraph (a), may direct that in taking the account the relevant books of account are taken to be evidence of the matters contained in them.
46.5 Account: form and verification (cf SCR Part 48, rule 4)
(1) The items on each side of an account must be numbered
consecutively.(2) Unless the court otherwise orders, an accounting party must verify his or her account by affidavit and the account must be made an exhibit to the affidavit. 46.6 Account: filing and service (cf SCR Part 48, rule 5) Unless the court otherwise orders, an accounting party must file his or her account and verifying affidavit.
46.7 Account: notice of charge or error (cf SCR Part 48, rule 6)
(1)
If a party seeks to charge an accounting party with an amount beyond that in respect of which the accounting party by his or her account admits receipt, he or she must give to the accounting party notice of the charge, stating, so far as he or she is able, the amount that he or she seeks to charge, with brief particulars.
(2)
If a party alleges that any item in the account of an accounting party is erroneous in amount or otherwise, he or she must give to the accounting party notice of the allegation, stating the grounds for alleging the error.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
46.8 Account: allowances (cf SCR Part 48, rule 7) In taking an account under a judgment, all just allowances must be made.
46.9 Delay (cf SCR Part 48, rule 8) If it appears to the court that there is delay in the prosecution of any account, inquiry or other matter under a judgment, the court may make such orders as it thinks fit for staying or expediting the proceedings or for the conduct of the proceedings.
Division 2 Equity Division of the Supreme Court:
General
| 46.10 | Application (cf SCR Part 49, rule 1) |
This Division applies to proceedings in the Equity Division of the Supreme Court, other than proceedings entered in the following lists:
(a) the Admiralty List, (b) the Commercial List, (c) the Probate List, (d) the Protective List, (e) the Technology and Construction List.
| 46.11 | Motion to proceed (cf SCR Part 49, rule 2) |
If a judgment contains directions as to any account, inquiry or other matter under the judgment, any party may, after entry of the judgment, move the Supreme Court to proceed under the judgment.
| 46.12 | Notice of judgment (cf SCR Part 49, rule 3) | |
|
(a) the administration of the estate of a deceased person, or (b) the execution of a trust, or (c) the sale of property. (2) If the Supreme Court gives a judgment:
(a)
affecting the rights or interests of a person who is not a party, or
(b) for the taking of an account or the making of an inquiry,
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
the Court may, by the judgment or by subsequent order:
(c)
give directions for service of notice of the judgment on any person interested, or
(d)
if it appears to be impracticable to serve notice of the judgment on any person interested, dispense with service on him or her.
(3) Without limiting subrule (2) (c), the Supreme Court may direct
that notice be served personally or in some other manner.(4)
If, under this rule, notice of a judgment is served on a person, or the Supreme Court dispenses with service of notice of a judgment on a person:
(a)
subject to paragraph (b), he or she is bound by the judgment to the same extent as if he or she were a party at the time when the judgment was given, except where the judgment has been obtained by fraud or non-disclosure of material facts,
(b)
the Court may, on application by him or her on notice of motion filed within the time limited by subrule (5), discharge or vary the judgment or order,
(c)
he or she may attend the accounts, inquiries or other matters under the judgment.
(5) Notice of a motion under subrule (4) (b) must be filed:
(a)
if notice of the judgment has been served on the applicant, within 28 days after the date of service, and
(b)
if the Supreme Court has dispensed with service of notice of the judgment on him or her, within 28 days after the date of the order dispensing with service.
| 46.13 | Directions (cf SCR Part 49, rule 4) |
On the hearing of a motion to proceed under a judgment, the Supreme Court may give directions as to the conduct of the proceedings, including directions as to the material that may be used as evidence.
| 46.14 | Representation of parties (cf SCR Part 49, rule 5) |
On the hearing of a motion to proceed under a judgment or subsequently, the Supreme Court:
(a)
may require parties whose interests are similar to be represented by the same solicitor and nominate a solicitor to represent them, or
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
(b)
may require that parties represented by the same solicitor be separately represented.
| 46.15 | Costs of attendance (cf SCR Part 49, rule 6) |
The Supreme Court may order, on terms, that the costs to be incurred by any party of and incidental to his or her attendance on the account, inquiry or other matter under the judgment are to be paid out of the estate or property to which the proceedings relate.
| 46.16 | Settlement of instrument (cf SCR Part 49, rule 7) |
If the judgment directs the settlement of an instrument, the Supreme Court may give directions for the preparation and service of a draft instrument and of objections to the draft.
| 46.17 | Interest on debts (cf SCR Part 49, rule 8) | |||||||||
|
(a) the costs of the proceedings, and (b) the debts which have been established, and (c) the interest on such of those debts as by law carry interest.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments | |||
| 46.18 | Interest on legacies (cf SCR Part 49, rule 9) | |||
|
Division 3 Equity Division of the Supreme Court:
administration accounts and inquiries etc
| 46.19 | Application (cf SCR Part 49, rule 10) | |
|
(a)
the taking of any account of debts or other liabilities of the estate of the deceased, or
(b)
the making of any inquiry for persons entitled to any interest in the estate on intestacy or otherwise.
(2) This Division applies to proceedings for the execution of a trust
in respect of which the Supreme Court by judgment directs:
(a)
the taking of any account of debts or other liabilities of the trust, or
(b)
the making of any inquiry for persons entitled to any interest in the trust property.
(3)
This Division applies, with the necessary modifications, to any other proceedings in respect of which the Supreme Court by judgment directs:
(a)
the taking of any account of debts or other liabilities of the trust, or
(b) the making of any inquiry.
| 46.20 | Advertisements (cf SCR Part 49, rule 11) | |||
|
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
(3)
If the Supreme Court directs the issue of advertisements for creditors or other claimants, the Court may specify the time within which, and the person on whom, a claimant must serve particulars of his or her claim.
(4)
An advertisement for creditors or other claimants must state the time and name of the person specified under subrule (3) and an address for service of that person and must contain such other matters as the Supreme Court may direct.
(5)
An advertisement for creditors or other claimants must be prepared by the party prosecuting the judgment and signed by the registrar.
| 46.21 | Particulars of claim (cf SCR Part 49, rule 12) | |||
| ||||
| 46.22 | Notice of judgment (cf SCR Part 49, rule 13) | |||
| ||||
| 46.23 | Examination of claims (cf SCR Part 49, rule 14) |
The Supreme Court:
(a)
may appoint a person to examine and list claims for the purposes of an account or inquiry under a judgment, and
(b) may fix a date for adjudication on the claims.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments | |
| 46.24 | Account: list of claims (cf SCR Part 49, rule 15) | |
|
(a)
must examine the claim of each claimant and consider whether it ought to be allowed, and
(b)
at least 7 days before the date for adjudication on the claims, must file lists of:
(i) claims served in response to any advertisement, and (ii)
other claims received by any of the personal representatives or trustees concerned, and
(iii)
debts and liabilities for which claims have not been received but which are or may still be due and which have come to the knowledge of any of the personal representatives or trustees concerned.
(2)
A list filed under subrule (1) must specify, in relation to each alleged debt or liability included in the list, whether, in the belief of the party making the list, the debt or liability ought to be allowed, and the reasons for the belief.
| 46.25 | Inquiry: list of claims (cf SCR Part 49, rule 16) | |
|
(a)
must examine the claim of each claimant and consider whether it is valid, and
(b)
at least 7 days before the date for adjudication on the claims, must file lists of:
(i) claims served in response to any advertisement, and (ii)
other claims received by, or which have come to the knowledge of, any of the personal representatives or trustees concerned.
(2)
A list filed under subrule (1) must specify, in relation to each claim included in the list, whether, in the belief of the party making the list, the claim is valid, and the reasons for the belief.
| 46.26 | Verification of list (cf SCR Part 49, rule 17) |
The Supreme Court may direct a person appointed under rule 46.23 (a), and any of the personal representatives or trustees concerned, to verify by affidavit a list filed under rule 46.24 or rule 46.25.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 | |
| 46.27 | Adjudication (cf SCR Part 49, rule 18) | |
|
(a) may allow any claim, with or without proof, or (b)
may direct that any claim be investigated in such manner as the Court thinks fit, or
(c)
may require any claimant to attend and prove his or her claim or to furnish further particulars or evidence of his or her claim or to produce any security relating to his or her claim, or
(d) may disallow any claim. (2)
A claimant need not make an affidavit or attend in support of his or her claim unless the Supreme Court so directs under subrule (1) (c).
(3) If the Supreme Court so directs, a party must file a list of the
claims allowed.
| 46.28 | Notice to prove claim (cf SCR Part 49, rule 19) | |||||
|
(a)
to serve on the party serving the notice an affidavit in support of his or her claim within such time, not less than 7 days after the date of service of the notice, as may be specified in the notice, and
(b)
to attend before the Supreme Court for adjudication on the claim at such time as may be specified in the notice, and
(c)
to produce to the Supreme Court, at such time as may be specified in the notice, such documents as may be specified or described.
(4)
If a claimant does not comply with a notice served on him or her under subrule (3), the Supreme Court may disallow his or her claim.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
Part 47 Matters arising under the Commercial
Arbitration Act 1984Division 1 General 47.1 Definitions (cf SCR Part 72A, rule 1) In this Part:
arbitrator includes an umpire.
award includes an interim award.
the court has the same meaning as the Court has in theCommercial Arbitration Act 1984.
47.2 Preliminary point of law (cf SCR Part 72A, rule 3) An application to the Supreme Court for a determination under section 39 (1) of the Commercial Arbitration Act 1984 must be made within 14 days after the date on which the consent or all the consents in writing was or were given to the party who wishes to apply to the Court under that subsection.
47.3 Interlocutory orders (cf SCR Part 72A, rule 4) In proceedings on an application for an order under section 47 of the Commercial Arbitration Act 1984, the court may refuse to make the order if the court considers that the arbitrator has power to make the order.
47.4 Time for applications and appeals (cf SCR Part 72A, rule 5)
(1)
An appeal to the Supreme Court under section 38 (4) (a) of the Commercial Arbitration Act 1984 must be instituted within 28 days after the material date.
(2)
An application to the Supreme Court for an order under section 38 (4) (b) of the Commercial Arbitration Act 1984 must be made within 28 days after the material date.
(3)
An application to the court for an order under section 42 or 43 of the Commercial Arbitration Act 1984 must be made within 28 days after the material date.
(4) In this rule material date, in relation to an application or appeal,
means:
(a)
in the case of an award that includes a statement of the reasons for making the award, the date on which the arbitrator gives notice of the award to the applicant or appellant, and
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
(b)
in the case of an award that does not include such a statement, the date on which the arbitrator gives notice of the reasons for making the award to the applicant or appellant.
47.5 Application for leave under section 38 (4) (b) to appeal (cf SCR Part
14, rule 4, Part 72A, rule 6)
(1)
The plaintiff must file with or subscribe to the originating process on an application for leave under section 38 (4) (b) of the Commercial Arbitration Act 1984 a statement:
(a)
describing the nature of the case with particularity sufficient for an understanding of the matters referred to in paragraphs (b), (c), (d) and (e), and
(b) identifying the question of law, and (c)
of the circumstances and manner in which the determination of the question of law could substantially affect the rights of one or more parties to the arbitration agreement, and
(d)
if applicable, of the manifest error of law on the face of the award, and
(e)
if applicable, of the error of law made by the arbitrator and of why the determination of the question may add, or be likely to add, substantially to the certainty of commercial law.
(2) This rule does not apply to proceedings that are entered in the
Commercial List in the Supreme Court.
47.6 Subpoena (cf SCR Part 72A, rule 7)
(1)
Part 33 applies to the issue of a subpoena under section 17 (1) of the Commercial Arbitration Act 1984 in the same way as it applies to the issue of a subpoena in proceedings in the court.
(2)
A subpoena for production before an arbitrator may, with the leave of the court or the arbitrator, require production on any day.
(3) Unless the court otherwise orders, a subpoena requiring production of any document or thing before an arbitrator must permit the person named, instead of attending and producing it before the arbitrator, to produce the document or thing:
(a)
to a person, and at a place, nominated in writing by the arbitrator and stated in the subpoena, and
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
(b) by hand or by post, so that the person nominated receives it not later than 2 days before the first date on which production before the arbitrator is required.
(4) If a document or thing is produced in accordance with subrule (3)
the person nominated:
(a)
if required to do so, must give a receipt to the person producing the document or thing, and
(b)
must produce the document or thing as the nature of the case requires or as the arbitrator may direct.
(5) Subrule (3) does not apply to so much of a subpoena as requires
a person to attend to give evidence.
47.7 Order for examination of witness (cf SCR Part 72A, rule 8)
(1)
Rule 24.3 applies to an arbitration under the Commercial Arbitration Act 1984 in the same way as it applies to proceedings in the court.
(2) If any order is made pursuant to rule 24.3 as so applied, the other
provisions of Part 24 apply as if:
(a) a reference in that Part to proceedings included a reference to the arbitration proceedings, and (b) the provisions of rule 24.14 (4), (5) and (6) were omitted. Unless the court otherwise orders, the examiner must send the transcript of evidence, any document that constitutes an audio-visual recording and the exhibits to the registrar.
(3)
(4) On receiving the transcript of evidence, the registrar must file it
in the proceedings on the examination.(5)
The court may make orders for the transmission to the arbitrator of the transcript of evidence, document, any exhibit or copy of any exhibit and any such transcript, document, exhibit or copy is taken to have been taken or received (as the case requires) in the course of the arbitration proceedings.
47.8 Leave to enforce award (cf SCR Part 72A, rule 9)
(1)
The originating process for leave under section 33 of the Commercial Arbitration Act 1984 must join the party who seeks enforcement of the award as plaintiff and the party against whom the enforcement is sought as defendant.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
(2)
Section 9 of the International Arbitration Act 1974 of the Commonwealth applies to proceedings in which a person seeks leave under section 33 of the Commercial Arbitration Act 1984 to enforce an award in the same way as it applies to proceedings in which a person seeks the enforcement of a foreign award by virtue of the Commonwealth Act.
47.9 Leave to appeal (cf SCR Part 72A, rule 10) An appeal does not lie from a direction or decision in proceedings in the court under the Commercial Arbitration Act 1984 except by leave of the court to which the appeal is to be made.
Division 2 Offer of compromise
| 47.10 | Application of Division (cf SCR Part 72A, rule 11) |
This Division applies except so far as is otherwise agreed in writing by the parties to the arbitration agreement.
| 47.11 | Interim awards (cf SCR Part 72A, rule 12) | |
|
(a)
must make an interim award dealing with all questions of liability and the relief to be granted, and
(b)
must, before making any provision in an award with respect to the costs of the arbitration, give the parties an opportunity to be heard on the question of the costs of the arbitration.
(2) Subrule (1) does not apply if an offer has been accepted in
accordance with this Division.
| 47.12 | Mode of making offer (cf SCR Part 72A, rule 13) | |||
| ||||
| 47.13 | Application (cf SCR Part 72A, rule 14) |
Any party may make to any other party an offer to compromise any claim to which the arbitration agreement applies on the terms specified in the notice of offer.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments | |||||||||
| 47.14 | Time for making or accepting offer (cf SCR Part 72A, rule 15) | |||||||||
|
(a)
the expiration of the time specified in accordance with subrule (3) or, if no time is specified, the expiration of 28 days after the offer is made, or
(b)
the time prescribed by subrule (8) in respect of the claim to which the offer relates,
whichever is sooner.
(6) An offer may not be withdrawn during the time it is open to be
accepted.(7)
An offer is open to be accepted within the period referred to in subrule (5) even if during that period the party to whom the offer (the first offer) is made makes an offer (the second offer) to the party who made the first offer, whether or not the second offer is made in accordance with this Division.
(8) The time prescribed for the purposes of subrules (1) and (5) is the
time when the arbitrator:
(a)
has made decisions on all questions of liability and the relief to be granted in respect of the claim to which the offer relates, and
(b)
has communicated the decisions to one or more of the parties.
| 47.15 | Time for payment (cf SCR Part 72A, rule 16) |
An offer providing for the payment of a sum of money, or for the doing of any other act, is, unless the notice of offer otherwise provides, taken to provide for the payment of that sum or the doing of that act within 28 days after acceptance of the offer.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 | |
| 47.16 | Withdrawal of acceptance (cf SCR Part 72A, rule 17) | |
|
(a)
the offer provides for payment of a sum of money or the doing of any other act, and
(b)
the sum is not paid to the offeree, or the act is not done, within 28 days after acceptance of the offer or within such other time as the offer provides.
(2)
On withdrawal of an acceptance all steps in the arbitration taken in consequence of the acceptance have such effect only as the arbitrator may direct.
(3) On withdrawal of an acceptance the arbitrator:
(a) may give directions under subrule (2), and (b)
may give directions for restoring the parties as nearly as may be to their positions at the time of the acceptance, and
(c)
may give directions for the further conduct of the arbitration.
| 47.17 | Offer without prejudice (cf SCR Part 72A, rule 18) |
An offer made in accordance with this Division is taken to have been made without prejudice, unless the notice of offer otherwise provides.
| 47.18 | Disclosure of offer to arbitrator (cf SCR Part 72A, rule 19) | |||||||
|
(a)
has made decisions on all questions of liability and the relief to be granted in respect of the claim to which the offer relates, and
(b)
has communicated the decisions to one or more of the parties.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
| 47.19 | Failure to comply with accepted offer (cf SCR Part 72A, rule 20) |
If a party to an accepted offer fails to comply with the terms of the offer, then, unless the court otherwise orders, the other party is entitled, as he or she may elect, to:
(a)
such judgment or order as is appropriate to give effect to the terms of the accepted offer, or
(b)
if the party in default is the claimant, an order that the arbitration be stayed, or
(c)
if the party in default is opposing the claim, an order declaring that:
(i)
the compromise constituted by the acceptance of the offer is of no effect, and
(ii)
the claimant is at liberty to proceed with the arbitration.
| 47.20 | Costs where offer not accepted (cf SCR Part 72A, rule 21) |
In any exercise of discretion as to costs, the arbitrator must consider whether the offeror was at all material times willing and able to carry out the offeror’s part of what was proposed in the offer.
Part 48 Matters arising under Commonwealth
intellectual property legislation
Division 1 Intellectual property cases generally 48.1 Application (cf SCR Part 81, rule 1) This Part applies to intellectual property cases in the Supreme
Court.
48.2 Definitions (cf SCR Part 81, rule 2)
(1) In this Part:
Commissioner means:
(a)
in relation to proceedings under the Designs Act 2003 of the Commonwealth, the Registrar within the meaning of that Act, or
(b)
in relation to proceedings under the Patents Act 1990 of the Commonwealth, the Commissioner within the meaning of that Act, or
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
(c) in relation to proceedings under the Trade Marks Act 1995 of the Commonwealth, the Registrar within the meaning of that Act. intellectual property Act means the Circuit Layouts Act 1989 of the Commonwealth, the Copyright Act 1968 of the Commonwealth, the Designs Act 2003 of the Commonwealth, the Patents Act 1990 of the Commonwealth or the Trade Marks Act 1995 of the Commonwealth.
intellectual property case means:
(a)
any proceedings for infringement of EL rights subsisting under the Circuit Layouts Act 1989 of the Commonwealth, or
(b)
any proceedings for infringement of copyright under the Copyright Act 1968 of the Commonwealth, or
(c)
any proceedings for infringement of a monopoly in a design registered under the Designs Act 2003 of the Commonwealth, or
(d)
any proceedings for infringement of a patent granted under the Patents Act 1990 of the Commonwealth, or
(e)
any proceedings for infringement of a trade mark registered under the Trade Marks Act 1995 of the Commonwealth, or
(f) any other proceedings under any of those Acts, whether or not the cause of action in those proceedings is joined
with any other cause of action.
(2)
These rules apply to proceedings under the Patents Act 1990 of the Commonwealth as if a reference in that Act to an applicant were a reference to a plaintiff and as if a reference in that Act to a respondent were a reference to a defendant.
48.3 Expressions in this Part (cf SCR Part 81, rule 3)
(1) Unless the contrary intention appears, expressions used in this Part have the same meanings, in relation to proceedings taken under an intellectual property Act, as they have in that Act. (2) A reference in any of the intellectual property Acts to a counter-claim (sometimes spelled counterclaim) is taken to be a reference to a statement of cross-claim or cross-summons, as the case requires. Note. See rule 9.1 (3) as to the application of these rules to cross-claims and cross-summonses.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
48.4 Mode of commencement (cf SCR Part 81, rule 5) The requirements of these rules for a statement of claim or summons do not apply to an application for an order under an intellectual property Act if the application is required to be and is made under that Act in a petition, counter-claim or other document.
48.5 Applications: service and date of hearing (cf SCR Part 81, rule 9)
(1)
Unless the Supreme Court otherwise orders, the summons by which an application under an intellectual property Act is made to the Court:
(a) must be served on the Commissioner, and (b)
must not be heard before 14 days after service on the parties and the Commissioner.
(2) Unless the Supreme Court otherwise orders, where:
(a)
rule 48.11, 48.12, 48.13 or 48.14 applies to the proceedings, and
(b) the proceedings are commenced by summons, the proceedings must not be heard before 14 days after the requirements as to service contained in the applicable rule have been complied with.
48.6 Mode of giving notice to Commissioner (cf SCR Part 81, rule 10) Notice of any application to the Supreme Court under an intellectual property Act is to be given to the Commissioner by serving on the Commissioner the originating process by which proceedings on the application are commenced.
48.7 Appearance of Commissioner (cf SCR Part 81, rule 11)
(1) In an intellectual property case, the Commissioner:
(a) may appear and be heard, and (b)
may file a statement in writing signed by the Commissioner giving particulars of:
(i)
any proceedings before the Commissioner in relation to the matter in issue, and
(ii)
the grounds of a decision, determination or direction given or made by the Commissioner in respect of those proceedings, and
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
(iii) the practice of the Commissioner’s Office in like cases,
and, as soon as practicable, serve it on all active parties.
(2) The Supreme Court may make such use of a statement filed under
subrule (1) (b) as the Court thinks just.
48.8 Commissioner: notice of objection (cf SCR Part 81, rule 12) Unless the Supreme Court otherwise orders, if the Commissioner elects or is required by the Court to appear in proceedings before the Court, the Commissioner must give reasonable notice to all active parties:
(a)
of the grounds of any objection the Commissioner proposes to take, and
(b)
of any evidence the Commissioner proposes to place before the Court.
48.9 Statement of facts (cf SCR Part 81, rule 16)
(1)
The Supreme Court may direct each party to lodge a statement of the facts alleged to establish infringement, validity and absence of infringement and validity.
(2)
Subrule (1) does not affect any requirement of an intellectual property Act or of these rules for the giving or delivery of particulars.
Division 2 The Patents Act 1990 of the Commonwealth
| 48.10 | Amendment of patent etc: section 105 (cf SCR Part 81, rule 17) | |
|
(a)
the identity of the proceedings in which the application will be made, and
(b) the particulars of the amendment sought, and (c) the applicant’s address for service, and (d)
that a person intending to oppose the application who is not a party to the proceedings must, not later than 28 days after publication of the advertisement, give written notice of that intention to the Commissioner and to the active parties.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
(2)
Unless the Supreme Court otherwise orders, the Commissioner must publish the advertisement once in the Australian Official Journal of Patents referred to in section 222 of the Patents Act 1990 of the Commonwealth.
Note. The Australian Official Journal of Patents is published by IP
Australia (an agency of the Commonwealth Government).(3)
A person who gives notice under subrule (1) (d) is entitled to be heard in opposition to the application, subject to any direction of the Supreme Court as to costs.
(4)
The application may be instituted by filing a notice of motion in the relevant proceedings no later than 50 days after the date of publication of the advertisement.
(5)
The notice of motion, together with a copy of the patent, patent request or complete specification, as appropriate, showing in ink of contrasting colour the amendment sought, must be served on the Commissioner, each active party and each person who has given notice under subrule (1) (d).
(6)
On the hearing of the motion, the Supreme Court may give such directions as it thinks fit for the conduct of proceedings on the motion, including any one or more of the following:
(a)
a direction requiring the applicant to give, to each party or other person opposing the application, a statement of the grounds relied on for the amendment,
(b)
a direction requiring a party or other person opposing the application to give to the applicant a statement of the grounds relied on in opposition to the amendment,
(c)
a direction determining that the motion will be heard with the relevant proceedings or separately and, if separately, fixing the date for hearing the motion,
(d)
a direction determining the manner in which evidence will be adduced and, in the case of evidence by affidavit, fixing the times within which the affidavits must be served.
| 48.11 | Infringement proceedings: section 120 (1) (cf SCR Part 81, rule 18) | |
|
(a) on the defendant in the proceedings, and (b) if the plaintiff is an exclusive licensee, on the patentee, and (c) on the Commissioner.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
(2)
If the application relates to an innovation patent, the originating process or its supporting affidavit must state the date when the innovation patent was granted under the Patents Act 1990 of the Commonwealth.
(3) Particulars of infringements complained of:
(a)
must give at least one instance of each type of infringement alleged, and
(b)
in proceedings for infringement of a standard patent, must specify which of the claims of the complete specification of that patent are alleged to be infringed.
(4)
A defendant relying on a defence under section 144 (4) of the Patents Act 1990 of the Commonwealth must give particulars of:
(a)
the date of, and the parties to, a contract on which the defendant intends to rely for the defence, and
(b)
the provision of the contract that the defendant asserts is void.
| 48.12 | Non-infringement declarations: section 125 (1) (cf SCR Part 81, rule 19) |
The originating process in proceedings under section 125 (1) of the Patents Act 1990 of the Commonwealth must be served:
(a)
on the nominated person, or the patentee, as the case requires, and
(b) on the Commissioner.
| 48.13 | Relief from unjustified threat: section 128 (1) (cf SCR Part 81, rule 20) |
The originating process in proceedings under section 128 (1) of the Patents Act 1990 of the Commonwealth must be served:
(a) on the person making the threat, and (b) on the Commissioner.
| 48.14 | Compulsory licences, revocation etc (cf SCR Part 81, rule 21) | |
|
(a) on the patentee, and (b)
as a further defendant—on any person who claims an interest in the patent as exclusive licensee, and
(c) on the Commissioner.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
(2)
A plaintiff in proceedings to which subrule (1) applies must comply with Chapter 12 of the Patents Regulations 1991 of the Commonwealth.
(3)
If an application under section 133 (1) or 138 (1) of the Patents Act 1990 of the Commonwealth relates to an innovation patent, the originating process or its supporting affidavit must state the date when the innovation patent was granted under that Act.
(4)
An application for leave under section 137 (4) of the Patents Act 1990 of the Commonwealth may be made by motion in the proceedings pending in the Supreme Court.
| 48.15 | Particulars of invalidity (cf SCR Part 81, rule 22) | |||
|
(a)
in the case of a document, the time when, and the place where, the document is alleged to have become publicly available, and
(b) in the case of an act:
(i)
the name of the person alleged to have done the act, and
(ii)
the period in which, and the place where, the act is alleged to have been done publicly, and
(iii) a description that is sufficient to identify the act, and (iv)
if the act relates to apparatus or machinery, whether the apparatus or machinery exists and, if so, where it can be inspected.
(3) If:
(a)
one of the grounds referred to in subrule (1) is that the invention, so far as claimed in any claim of the complete specification of the patent, is not useful, and
(b)
it is intended, in connection with that ground, to rely on the fact that an example of the invention which is the subject of any such claim cannot be made to work, either at all or as described in the specification,
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
the particulars must identify each such claim and state that fact and must include particulars of each such example, specifying the respect in which it is alleged that it does not work as described.
(4)
Except by leave of the Supreme Court, evidence is not admissible in proof of a ground of invalidity of which particulars have not been given.
| 48.16 | Experiments (cf SCR Part 81, rule 23) | |
|
(a)
for the service on the other parties, by any party desiring to submit experimental proof, of particulars of the experiments proposed and of the facts which the party claims to be able to establish by the experiments, and
(b)
for the conduct of, and the persons who may attend, the experiments.
(2)
In any proceedings for infringement or the revocation of a patent, the Supreme Court may direct that evidence with respect to any experiment made is not admissible unless the experiment has been made substantially in accordance with directions given under subrule (1).
Division 3 The Trade Marks Act 1995 of the
Commonwealth
| 48.17 | Particulars of infringements (cf SCR Part 81, rule 37) |
Particulars of the infringements of a registered trade mark:
(a)
must specify the manner in which the trade mark is alleged to be infringed, and
(b)
must give at least one instance of each type of infringement alleged.
| 48.18 | Counter-claim to proceedings for infringement (cf SCR Part 81, rule 38) | |
|
(a) that the Register be rectified, or (b)
directing the Registrar to remove the trade mark from the Register.
(2) There must be delivered with the counter-claim particulars of the
grounds on which the order is sought.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments | |||
| 48.19 | Judgment in absence of defendant (cf SCR Part 81, rule 38B) | |||
| ||||
| 48.20 | Evidences for purposes of regulation 8.2 of the Trade Marks Regulations 1995 (cf SCR Part 81, rule 38C) |
Unless the Supreme Court otherwise orders, the evidence in support of an application to which regulation 8.2 of the Trade Marks Regulations 1995 of the Commonwealth (which relates to certain applications for rectification of the Register) applies must include evidence sufficient to enable the Court to comply with the regulation.
Division 4 The Designs Act 2003 of the Commonwealth
| 48.21 | Particulars of infringements (cf SCR Part 81, rule 39) |
Particulars of infringements of the monopoly in a registered design:
(a)
must specify the manner in which the design is alleged to be infringed, and
(b)
must give at least one instance of each type of infringement alleged.
| 48.22 | Particulars of invalidity (cf SCR Part 81, rule 40) | |
|
(a)
applies under section 93 of the Designs Act 2003 of the Commonwealth for the revocation of the registration of a design, or
(b)
applies under section 120 of that Act for the rectification of the Register, or
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
(c) disputes, in any proceedings, the validity of a registered design, must, in the pleading or other document that disputes the validity of the registered design, give particulars of the grounds of invalidity on which the person relies.
(2) If one of those grounds is previous publication or user, the particulars must state the time and place of the previous publication or user alleged, and, in the case of previous user, the particulars:
(a) must specify the name of the person who is alleged to have made the previous user, and (b) must specify the period during which the previous user is alleged to have continued, and (c) must contain a description sufficient to identify the previous user. (3) Except by leave of the Supreme Court, evidence is not admissible in proof of a ground of invalidity of which particulars have not been given. (4) The Supreme Court may extend the time for delivering particulars under this rule and may allow particulars so delivered to be amended.
| 48.23 | Application for compulsory licence: section 90 (cf Federal Court Rules, Order 58, rule 23) |
An application for the grant of a compulsory licence under section 90 of the Designs Act 2003 of the Commonwealth must state the facts intended to be relied on to show that:
(a)
products embodying the design have not been made in Australia, to the extent that is reasonable in the circumstances of the case, and
(b)
the registered owner of the design has given no satisfactory reason for failing to exercise the exclusive rights in the design, and
(c)
the applicant has tried for a reasonable period, but without success, to obtain from the registered owner of the design an authorisation to do, on reasonable terms and conditions, any of the things mentioned in section 10 (1) (a)–(e) of that Act in relation to the design.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
Division 5 The Circuit Layouts Act 1989 of the
Commonwealth
| 48.24 | Applications concerning infringement of EL rights |
In proceedings for infringement of EL rights (within the meaning of the Circuit Layouts Act 1989 of the Commonwealth), particulars of the infringement must specify the manner in which it is alleged that the EL rights have been infringed and must give at least one instance of each type of infringement alleged.
[13] Part 49, Division 3 (as renumbered by item [11])
Omit “or judicial registrar” from the heading to the Division.
[14] Rule 49.8 (as renumbered by item [11])
Omit “, or an application under section 18FB (2) of the District Court Act 1973 for the varying or setting aside of a judgment or order of the judicial registrar of the District Court (also referred to in this Division as an appeal),” from rule 49.8 (1).
[15] Rule 49.8 (3) (as renumbered by item [11])
Omit “or judicial registrar”.
[16] Rule 49.8 (4) (as renumbered by item [11])
Omit “or District Court”.
[17] Rule 49.10 (as renumbered by item [11])
Omit rule 49.10 (1). Insert instead:
(1) An appeal under this Division:
(a) does not operate as a stay of execution or stay of proceedings under the decision of the associate Judge of the Supreme Court, and (b) does not invalidate any intermediate act or proceedings, except so far as the Supreme Court (or, subject to any direction
of the Supreme Court, the associate Judge) may direct.
[18] Rule 49.13 (as renumbered by item [11])
Omit “or judicial registrar”.
[19] Rule 50.4 (as renumbered by item [11])
Insert “Part 14, rule 3,” after “SCR” in the matter appearing after the heading to the rule.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
[20] Rule 50.4 (as renumbered by item [11])
Insert at the end of the rule:
(2) This rule does not apply to proceedings that are entered in the
Commercial List in the Supreme Court.
[21] Rule 50.9 (as renumbered by item [11])
Insert “Part 14, rule 3,” after “SCR” in the matter appearing after the heading to the rule.
[22] Rule 50.9 (as renumbered by item [11])
Insert at the end of the rule:
(2) This rule does not apply to proceedings that are entered in the
Commercial List in the Supreme Court.
[23] Rule 50.10 (as renumbered by item [11])
Insert “Part 14, rule 3,” after “SCR” in the matter appearing after the heading to the rule.
[24] Rule 50.10 (as renumbered by item [11])
Insert after rule 50.10 (4):
(5) This rule does not apply to proceedings that are entered in the
Commercial List in the Supreme Court.
[25] Rule 50.11 (as renumbered by item [11])
Insert “Part 14, rule 3,” after “SCR” in the matter appearing after the heading to the rule.
[26] Rule 50.11 (as renumbered by item [11])
Insert after rule 50.10 (3):
(4) This rule does not apply to proceedings that are entered in the
Commercial List in the Supreme Court.
[27] Schedule 1 Application of rules
Omit “Parts 31, 32 and 33” from Column 4 of the matter relating to a Local
Court.Insert instead “Parts 31 and 32”.
[28] Schedule 2 Local rules that prevail over these rules
Omit the matter relating to Parts 14, 14A, 81 and 83 from the matter relating to the Supreme Court Rules 1970.
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
[29] Schedules 8 and 9
Insert after Schedule 7:
Schedule 8 Assignment of business in the
Supreme Court
(Rules 1.16 and 45.8)
Part 1 Legislation of New South Wales
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Administrative Section 118 or 119 Common Law Administrative Decisions Tribunal Act Law 1997 Adoption Act 2000 Equity Agricultural Tenancies Common Law Act 1990 Apiaries Act 1985 Section 45 Equity Associations Section 40, 54, 55B Equity Incorporation Act 1984 or 58 Australian Mutual Equity Provident Society
(Demutualisation and
Reconstruction) Act
1997Bishopsgate Insurance Section 7 Equity Australia Limited Act
1983Building and Common Law Administrative Construction Industry Law Long Service Payments
Act 1986Business Names Act Common Law Administrative 2002 Law Casino Control Act Section 33, 34 or Common Law Administrative 1992 155 Law Charitable Fundraising Equity Act 1991 2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Children and Young Equity Persons (Care and
Protection) Act 1998Children (Care and Equity Protection) Act 1987 Children (Criminal Common Law Proceedings) Act 1987 Commercial Arbitration Equity Commercial Act 1984, except in
relation to arbitration
proceedings that are
appropriate for
assignment to the
Technology and
Construction ListCommercial Arbitration Equity Technology and Act 1984, in relation to Construction arbitration proceedings that are appropriate for assignment to the
Technology and Construction List
Community Land Equity Development Act 1989 Community Land Equity Management Act 1989 Community Services Equity (Complaints, Reviews
and Monitoring) Act
1993Community Welfare Act Common Law 1987 Companies Act 1961 Section 9 or 166B Common Law Administrative
LawCompanies (Acquisition Equity of Shares) (New South
Wales) CodeCompanies (Application Equity of Laws) Act 1981
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Companies (New South Equity Wales) Code Competition Policy Common Law or Reform (New South Equity (as Wales) Act 1995 appropriate in the
circumstances)Confiscation of Common Law Proceeds of Crime Act
1989Consumer, Trader and Section 65, 66 and Common Law Administrative Tenancy Tribunal Act 67 Law 2001 Conveyancers All provisions Common Law Licensing Act 2003 except in relation to
proceedings
assigned to the
Court of AppealCo-operative Housing Equity and Starr-Bowkett Societies Act 1998
Co-operatives Act 1992 Equity Corporations (New any “national Equity South Wales) Act 1990 scheme law” as
defined in section
60
Crimes Act 1900 Section 172 or 474E Common Law Crimes (Forensic Section 74 Common Law Procedures) Act 2000 Criminal Assets Common Law Recovery Act 1990
Criminal Procedure Act Section 30 or Part 5 Common Law 1986 of Chapter 4 Dividing Fences Act Section 19 (2) or (3) Common Law Administrative 1991 Law
Driving Instructors Act Section 39 (1) Common Law Administrative 1992 Law Drug Misuse and Section 39R Common Law Trafficking Act 1985 2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Electricity Supply Act Common Law 1995 Exotic Diseases of Common Law Animals Act 1991 Fair Trading Act 1987 All provisions Common Law or except in relation to Equity (as proceedings appropriate in the specified in the circumstances) Third Schedule to the Supreme Court Act 1970 or
assigned by Part 75
of the Supreme
Court Rules 1970Family Provision Act Equity 1982 Felons (Civil Common Law or Proceedings) Act 1981 Equity (whichever
the other
proceedings to
which the
proceedings relate
have been
assigned)Fines Act 1996 Section 75 (9) Common Law Administrative
LawForfeiture Act 1995 Equity Freedom of Information Section 58A (1) Common Law Administrative Act 1989 Law
Funeral Funds Act 1979 Section 74 Equity
Part 6 Common Law Administrative
Law
Futures Industry (New Equity South Wales) Code Gas Industry Equity Restructuring Act 1986
Gas Supply Act 1996 Section 17 Common Law Guardianship Act 1987 Equity
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Independent Common Law Administrative Commission Against Law Corruption Act 1988 Landlord and Tenant Common Law Act 1899 Law Enforcement Division 2 of Part Common Law (Powers and 17 Responsibilities) Act
2002Liquor Act 1982 Common Law Listening Devices Act Common Law 1984 Loan Fund Companies Section 64 Common Law Administrative Act 1976 Law Local Government Act Section 330 or 485 Common Law Administrative 1993 Law Married Persons Section 13 Equity (Equality of Status) Act
1996
Mental Health Act 1990 Section 174, 281 or Equity 285
Mental Health Common Law (Criminal Procedure)
Act 1990
Mining Act 1992 Section 319 Common Law Minors (Property and Equity Contracts) Act 1970 Motor Accidents Act Common Law 1988 Motor Accidents Common Law Compensation Act 1999 Motor Dealers Act 1974 Section 38 (2), 38 Common Law Administrative
(3B) (a) or Part 5A Law Other than Common Law proceedings under section 38 (2), 38 (3B) (a) or Part 5A
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Murray–Darling Basin Section 27 Common Law Administrative Act 1992 Law Mutual Recognition Common Law (New South Wales)
1992National Companies Equity and Securities
Commission (State
Provisions) Act 1981National Electricity Section 46 or 48 Common Law Administrative (NSW) Law Law National Trust of Equity Australia (New South
Wales) Act 1990Native Title (New South Common Law Administrative Wales) Act 1994 Law New South Wales Crime Common Law Commission Act 1985 Nurses and Midwives Section 67 Common Law Act 1991 Offshore Minerals Act Section 49 (2), 136 Equity 1999
(2), 196 (2), 351, 354 (1) or 355 (1)
Ombudsman Act 1974 Section 21A, 35A Common Law Administrative or 35B Law Parliamentary Common Law Electorates and
Elections Act 1912Petroleum (Submerged Section 8 or 73 Common Law Administrative Lands) Act 1982 Law Pipelines Act 1967 Section 33 or 52 Common Law Administrative
LawPolice Integrity Common Law Administrative Commission Act 1996 Law Powers of Attorney Act Equity 2003
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Price Exploitation Code Common Law or (New South Wales) Act Equity (as 1999 appropriate in the
circumstances)Prisoners (Interstate Section 16 Common Law Transfer) Act 1982 Professional Standards Section 15 Common Law Act 1994 Property Equity (Relationships) Act
1984Protected Estates Act Equity 1983 Protection of the Common Law Environment
Operations Act 1997Public Notaries Act Section 6 or 10 Common Law 1997 Real Property Act 1900 Equity Registered Clubs Act Section 42 (1) Common Law 1976 Residential Tenancies Common Law Act 1987 Restraints of Trade Act Equity 1976 Restricted Premises Act Common Law 1943 Retail Leases Act 1994 Section 62B (1) or Equity (2), 76A, 77 (2) or
(4)Retirement Villages Act All sections other Equity 1999 than section 183 (1) Royal Commission Section 11B Common Law Administrative (Police Service) Act Law 1994 Royal Commissions Act Section 18B Common Law Administrative 1923 Law 2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Rural Assistance Act Section 54 Common Law Administrative 1989 Law Securities Industry Act Equity 1975 Securities Industry Equity (Application of Laws)
Act 1981Securities Industry Equity (New South Wales)
CodeState Owned Clause 9 of Equity Corporations Act 1989 Schedule 10
State Records Act 1998 Section 42, 45 or 72 Equity Status of Children Act Equity 1996 Strata Schemes Equity (Freehold
Development) Act 1973Strata Schemes Equity (Leasehold
Development) Act 1986
Strata Schemes Section 200 Equity Management Act 1996 Summary Offences Act Section 25 or 26
Common Law Administrative 1988 Law
Supreme Court Act Section 70 Common Law 1970 Surveying Act 2002
Common Law Administrative
LawTaxation Part 10 Equity Administration Act
1996Testator’s Family Equity Maintenance and
Guardianship of Infants
Act 1916Totalizator Act 1997 Section 39 or 46
Common Law Administrative
Law
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Totalizator Agency Section 44 Common Law Administrative Board Privatisation Act Law 1997 Travel Agents Act 1986 Section 39 Common Law Trustee Companies Act Equity 1964 Uncollected Goods Act Section 18 Equity 1995 Victims Support and Common Law Rehabilitation Act 1996 Warnervale Airport Section 13 Equity (Restrictions) Act 1996 Witness Protection Act Section 17, 19 or Common Law 1995 34 (2) Workers Compensation Common Law Act 1987
Part 2 Legislation of the Commonwealth
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Admiralty Act 1988 Equity Admiralty Australian Securities Equity and Investments
Commission Act 2001Circuit Layouts Act Equity 1989 Commonwealth Section 383 Common Law Electoral Act 1918 Copyright Act 1968 Equity Corporations Act 2001 Equity Crimes Common Law (Superannuation
Benefits) Act 19892006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Customs Act 1901 Section 205F (1), Common Law 206 (6), 207 (2),
221 or 245 (1)Designs Act 2003 Equity Futures Industry Act Equity 1986 International War Common Law Crimes Tribunals Act
1995Judiciary Act 1903 Section 39B (1B) Common Law Administrative (b) or 39B (1C) (d) Law Marriage Act 1961 Equity Mutual Assistance in Common Law Criminal Matters Act
1987Navigation Act 1912 Equity Admiralty Offshore Minerals Act Section 49 (2), 136 Equity 1994
(2), 196 (2), 351, 354 (1) or 355 (1)
Patents Act 1990 Equity Proceeds of Crime Act Common Law 1987 Racial Discrimination Common Law Administrative Act 1975 Law Retirement Savings Section 43, 74, 119, Equity Accounts Act 1997 158 (4), 160, 161
(1), (2), (8) or (10),
162, 163, 166 or
176Service and Execution Section 57 (1), 67 Common Law of Process Act 1992
(1), 76 (1), 79 (1), 93 (1), 101 or 105 Section 72 (1) or 86
(except in relation
to proceedings
before the Court)Shipping Registration Equity Admiralty Act 1981
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Schedule 1 | Amendments |
Column 1 Column 2 Column 3 Column 4 Act or instrument Provisions Division List Telecommunications Section 107A (3) or Common Law (Interception and (4) Access) Act 1979 Trade Marks Act 1995 Equity Trade Practices Act Division 1 or 1A of Common Law or 1974 Part V Equity (as
appropriate in the
circumstances)
Schedule 9 Assignment of business in the
District Court
(Rule 45.14)
Part 1 Legislation of New South Wales
Column 1 Column 2 Column 3 Act or instrument Provisions List Police Act 1990 Section 216A Special Statutory Compensation
ListPolice Regulation Section 21 Special Statutory Compensation (Superannuation) Act 1906 List Sporting Injuries Insurance Act Section 29 Special Statutory Compensation 1978 List Workers Compensation Act Coal Miners’ Workers 1987 Compensation List Workers Compensation (Bush Section 16 or Special Statutory Compensation Fire, Emergency and Rescue 30 List Services) Act 1987 Workers’ Compensation (Dust Section 8I Special Statutory Compensation Diseases) Act 1942 List Workplace Injury Management Coal Miners’ Workers and Workers Compensation Act Compensation List 1998
2006 No 391
Uniform Civil Procedure Rules (Amendment No 10) 2006
| Amendments | Schedule 1 |
Part 2 Legislation of the Commonwealth
Column 1 Column 2 Column 3 Act or instrument Provisions List
BY AUTHORITY
0
0
0