Part 20 Resolution of proceedings without hearing
This Division applies to matters referred to mediation under Part 4 of the Civil Procedure Act 2005.
(cf SCR Part 72C, rule 1)
The court may give directions regulating the practice and procedure to be followed in a mediation, including the preparation and service of documents.
20.3 Statements as to proposed referral to mediation
(cf SCR Part 72C, rule 2; Act No 9 1973, section 164A; Act No 11 1970, section 21L)
On any occasion that proceedings are before the court for directions, the court may require each active party to state any of the following:(a) whether the party consents to referral of a matter arising in the proceedings for mediation,(b) whether the parties agree as to who is to be the mediator,(c) whether the parties agree as to the proportions in which the costs of mediation are to be borne, and the terms of any such agreement.
(cf SCR Part 72C, rule 3)
(1) Within 7 days after being notified that a matter has been referred for mediation, the mediator to whom the matter is referred must appoint a time for the mediation and notify the parties, in writing, of the time appointed.(2) The mediator may also appoint a time for a preliminary meeting of the parties.
(cf SCR Part 72C, rule 4)
The parties and the mediator must conduct the mediation with the object, so far as practicable, of completing the mediation within 28 days.
20.6 Mediation session procedure
(cf SCR Part 72C, rule 6)
(1) The following provisions apply to the conduct of a mediation session unless the mediator, or the court, otherwise directs:(a) the session must be attended:(i) subject to subparagraph (ii), by each party or, if a party is a corporation, by an officer of the corporation having authority to settle the proceedings, or(ii) if the conduct of the proceedings by a party is controlled by an insurer, by an officer of the insurer having authority to settle the proceedings,(b) a party may be accompanied by that party’s barrister or solicitor at the session.(2) A person who is required by subrule (1) (a) to attend a mediation session may do so by telephone, video link or other form of communication, but only with the leave of the court or the mediator.
20.7 Notifications after mediation
Within 7 days after the conclusion of the last mediation session, the mediator must advise the court of the following:(a) the time and date the first mediation session commenced, and(b) the time and date the last mediation session concluded.
20.8 Proceedings that may not be referred to arbitration
(cf DCR Part 51A, rule 2; LCR Part 38, rule 12)
For the purposes of section 38 (3) (b) of the Civil Procedure Act 2005, the following proceedings may not be referred for arbitration unless the parties consent or the court finds there are special circumstances to justify their referral:(a) proceedings in which there is an allegation of fraud,(b) proceedings in the Small Claims Division of the Local Court.
20.9 Reference to arbitration under Part 5 of the Civil Procedure Act 2005
(cf SCR Part 72B, rule 1; DCR Part 51A, rule 3; LCR Part 38, rule 3)
(1) If an arbitrator is not prepared to hear or determine referred proceedings, whether before or after any hearing has commenced, the arbitrator must as soon as practicable inform the referring court of that fact, specifying his or her reasons.(2) If an arbitrator declines or fails to hear and determine referred proceedings, the referring court must revoke the order referring the proceedings to the arbitrator and may make another order referring the proceedings to another arbitrator.
(cf SCR Part 72B, rule 2; DCR Part 51A, rule 6; LCR Part 38, rule 7)
(1) In this rule, medical expert includes dentist, medical practitioner, occupational therapist, physiotherapist and psychologist.(2) A medical expert’s written report as to a person’s past, present or probable future physical or mental condition:(a) is not admissible unless it has been served on each of the active parties no later than 28 days before the arbitration hearing, and(b) if so served, is admissible as evidence of the matters contained in it,unless the referring court or the arbitrator orders otherwise.(3) At any arbitration, a party is not entitled to adduce a medical expert’s oral evidence as to a person’s past, present or probable future physical or mental condition unless the referring court or the arbitrator so directs or unless each of the parties consent.
(cf SCR Part 72B, rule 3; DCR Part 51A, rule 9; LCR Part 38, rule 10)
(1) An arbitrator’s award, and his or her reasons for the award, are to be in or to the effect of the approved form.(2) An arbitrator’s reasons for an award are to be specified so that, in his or her opinion, they make the parties aware of his or her view of the case made by each of them.(3) If a party fails to attend a hearing before an arbitrator, the arbitrator must include in his or her reasons for an award the fact that the party failed to attend and any information known to the arbitrator relating to the party’s reasons for the failure to attend.(4) As soon as practicable after receiving an arbitrator’s award, the registrar must send to each of the parties a copy of the award, with the date of sending set out in the award or in a notice accompanying the award.(5) For the purposes of subrule (4), date of sending means the date of leaving, sending, transmitting or otherwise serving copies of the award.
(cf SCR Part 72B, rule 5; DCR Part 51A, rule 11; LCR Part 38, rule 12)
(1) An application under section 42 of the Civil Procedure Act 2005 for the rehearing of referred proceedings is to be made by notice of motion.(2) On the date fixed for the proceedings to be listed before the court, or any date to which the proceedings are adjourned, the court must make a determination as to whether the proceedings are to be a full rehearing or a limited rehearing.(3) Before the record of any proceedings is brought before the court for a rehearing, the registrar must seal within the record, or separate from the record, both the application for rehearing and all information as to the nature and quantum of the arbitrator’s award.(4) Despite subrule (3), the court is not required to disqualify itself from rehearing the proceedings because it becomes aware in any manner of information as to the nature or quantum of the arbitrator’s award.(5) Unless the court otherwise orders, matter that has been sealed within the record is not to be opened, and matter that has been separated from the record is not to be returned to the record, until after the rehearing has been determined.
Division 3 References to referees
(cf SCR Part 72, rule 1)
In this Division:order of referral means an order in force under rule 20.14.
question includes any question or issue arising in any proceedings, whether of fact or law, or both, and whether raised by pleadings, agreement of parties or otherwise.
(cf SCR Part 72, rule 2)
(1) At any stage of the proceedings, the court may make orders for reference to a referee appointed by the court for inquiry and report by the referee on the whole of the proceedings or on any question arising in the proceedings.(2) The court must not make an order under subrule (1) in respect of a question to be tried with a jury.
(cf SCR Part 72, rule 3)
(1) Subject to this rule, the court may appoint any person as a referee.(2) A judicial officer or other officer of the court may not act as a referee otherwise than with the concurrence of the senior judicial officer.
(cf SCR Part 72, rule 4)
(1) If the court appoints 2 referees and a decision to be made in the course of proceedings under the reference is not agreed, the decision that is binding is:(a) if a judicial officer is a referee, the decision of the judicial officer, or(b) in any other case, the decision of the referee appointed by the court to be senior referee.(2) If the court appoints 3 or more referees, any decision to be made in the course of proceedings under the reference may be made by a majority of the referees and, failing a majority, the decision that is binding is:(a) if a judicial officer is a referee, the decision of the judicial officer, or(b) in any other case, the decision of the referee appointed by the court to be senior referee.
(cf SCR Part 72, rule 5)
(1) The court may, at any time and from time to time:(a) authorise the referee to inquire into and report on any facts relevant to the inquiry and report on the matter referred, and(b) direct the referee to make a further or supplemental report or inquiry and report, and(c) give such instructions as the court thinks fit relating to the inquiry or report.(2) Instructions under subrule (1) (c) may include provision concerning any experiment or test for the purposes of any inquiry or report of a referee.
(cf SCR Part 72, rule 6)
(1) The court:(a) may determine the amount of the fees to be paid to a referee, and(b) may direct how, when and by whom the whole or any part of any such fees are to be payable, and(c) may determine the consequences of failure to comply with a direction under paragraph (b).(2) Subrule (1) does not affect the powers of the court as to costs.
(cf SCR Part 72, rule 7)
The court may give directions for the provision:(a) of services of officers of the court, and(b) of court rooms and other facilities,for the purpose of any reference under this Division.
20.20 Conduct of proceedings under the reference
(cf SCR Part 72, rule 8)
(1) The court may give directions with respect to the conduct of proceedings under the reference.(2) Subject to any direction under subrule (1):(a) the referee may conduct the proceedings under the reference in such manner as the referee thinks fit, and(b) in conducting proceedings under the reference, the referee is not bound by the rules of evidence but may inform himself or herself in relation to any matter in such manner as the referee thinks fit.(3) Evidence before the referee:(a) may be given orally or in writing, and(b) if the referee so requires, must, be given on oath or by affidavit.(4) A referee may take the examination of any person.(5) Each party must, within a time fixed by the referee but in any event before the conclusion of evidence on the inquiry, give to the referee and each other party a brief statement of the findings of fact and law for which the party contends.(6) The parties must at all times do all things which the referee requires to enable a just opinion to be reached and no party may wilfully do or cause to be done any act to delay or prevent an opinion being reached.
20.21 Interlocutory directions
(cf SCR Part 72, rule 9)
The court may, at any time and from time to time, on application of the referee or of a party, give directions with respect to any matter arising in proceedings under the reference.
20.22 Setting aside or variation of reference
(cf SCR Part 72, rule 10)
(1) The court may, of its own motion or on application by a referee or a party, set aside or vary any order of referral.(2) Nothing in this rule affects any other power of the court to set aside or vary an order of referral.
(cf SCR Part 72, rules 11 and 12)
(1) Unless the court orders otherwise, the referee must make a written report to the court on the matter referred to the referee, annexing the statements given under rule 20.20 (5) and stating:(a) the referee’s opinion on the matter, and(b) the referee’s reasons for that opinion.(2) On receipt of the report, the court must send it to the parties.
20.24 Proceedings on the report
(cf SCR Part 72, rule 13)
(1) If a report is made under rule 20.23, the court may on a matter of fact or law, or both, do any of the following:(a) it may adopt, vary or reject the report in whole or in part,(b) it may require an explanation by way of report from the referee,(c) it may, on any ground, remit for further consideration by the referee the whole or any part of the matter referred for a further report,(d) it may decide any matter on the evidence taken before the referee, with or without additional evidence,and must, in any event, give such judgment or make such order as the court thinks fit.(2) Evidence additional to the evidence taken before the referee may not be adduced before the court except by leave of the court.
(cf SCR Part 22, rule 3)
In this Division:final deadline for an offer means:
(a) if the trial is before a jury, the time at which the judicial officer begins to sum up to the jury, or(b) if the proceedings have been referred for arbitration, the conclusion of the arbitration hearing, or(c) in any other case, the time at which the judicial officer begins to give his or her decision or his or her reasons for decision, whichever is the earlier, on a judgment (except an interlocutory judgment).offer means an offer of compromise referred to in rule 20.26.
period for acceptance for an offer means the period from when the offer is made until:
(a) the expiration of the time limited by the offer or, if no time is limited, the expiration of 28 days after the offer is made, or(b) the final deadline for offers in respect of the claim to which the offer relates,whichever first occurs.
(cf SCR Part 22, rules 1A, 2, 3 and 4; DCR Part 19A, rules 1, 2, 2A, 3 and 4; LCR Part 17A, rules 2 and 5)
(1) In any proceedings, any party may, by notice in writing, make an offer to any other party to compromise any claim in the proceedings, either in whole or in part, on specified terms.(2) An offer must be exclusive of costs, except where it states that it is a verdict for the defendant and that the parties are to bear their own costs.(3) A notice of offer:(a) must bear a statement to the effect that the offer is made in accordance with these rules, and(b) if the offeror has made or been ordered to make an interim payment to the offeree, must state whether or not the offer is in addition to the payment so made or ordered.(4) Despite subrule (1), a plaintiff may not make an offer unless the defendant has been given such particulars of the plaintiff’s claim, and copies or originals of such documents available to the plaintiff, as are necessary to enable the defendant to fully consider the offer.(5) If a plaintiff makes an offer, no order may be made in favour of the defendant on the ground that the plaintiff has not supplied particulars or documents, or has not supplied sufficient particulars or documents, unless:(a) the defendant has informed the plaintiff in writing of that ground within 14 days after receiving the offer, or(b) the court orders otherwise.(6) An offer may be expressed to be limited as to the time it is open for acceptance.(7) The following provisions apply if an offer is limited as to the time it is open for acceptance:(a) the closing date for acceptance of the offer must not be less than 28 days after the date on which the offer is made, in the case of an offer made 2 months or more before the date set down for commencement of the trial,(b) the offer must be left open for such time as is reasonable in the circumstances, in the case of an offer made less than 2 months before the date set down for commencement of the trial.(8) Unless the notice of offer otherwise provides, an offer providing for the payment of money, or the doing of any other act, is taken to provide for the payment of that money, or the doing of that act, within 28 days after acceptance of the offer.(9) An offer is taken to have been made without prejudice, unless the notice of offer otherwise provides.(10) A party may make more than one offer in relation to the same claim.(11) Unless the court orders otherwise, an offer may not be withdrawn during the period of acceptance for the offer.(12) A notice of offer that purports to exclude, modify or restrict the operation of rule 42.14 or 42.15 is of no effect for the purposes of this Division.
(cf SCR Part 22, rule 3; DCR Part 19A, rule 3; LCR Part 17A, rule 5)
(1) A party may accept an offer by serving written notice of acceptance on the offeror at any time during the period of acceptance for the offer.(2) An offer may be accepted even if a further offer is made during the period of acceptance for the first offer.(3) If an offer is accepted in accordance with this rule, any party to the compromise may apply for judgment to be entered accordingly.
20.28 Withdrawal of acceptance
(cf SCR Part 22, rule 5; DCR Part 19A, rule 5; LCR Part 17A, rule 7)
(1) A party who accepts an offer may withdraw the acceptance in any of the following circumstances by serving written notice of withdrawal on the offeror:(a) if the offer provides for payment of money, or the doing of any other act, and the sum is not paid to the offeree or into court, or the act is not done, within 28 days after acceptance of the offer or within such other time as the offer provides, or(b) if the court grants the party leave to withdraw the acceptance.(2) If acceptance of an offer is withdrawn:(a) except as provided by paragraph (b), all steps in the proceedings that have been taken as a consequence of the offer having been accepted cease to have effect, and(b) the court may give directions:(i) to restore the parties as nearly as may be to their positions at the time of the acceptance, and(ii) to give effect to any steps in the proceedings that have been taken as a consequence of the offer having been accepted, and(iii) to provide for the further conduct of the proceedings,and may do so either after the offer is withdrawn or when granting leave to withdraw the offer.
20.29 Failure to comply with accepted offer
(cf SCR Part 22, rule 8; DCR Part 19A, rule 8; LCR Part 17A, rule 10)
(1) If the plaintiff, being a party to an accepted offer, fails to comply with the terms of the offer, the defendant is entitled:(a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or(b) to an order that the proceedings be dismissed, and to judgment accordingly,as the defendant elects, unless the court orders otherwise.(2) If the defendant, being a party to an accepted offer, fails to comply with the terms of the offer, the plaintiff is entitled:(a) to such judgment or order as is appropriate to give effect to the terms of the accepted offer, or(b) to an order that the defence be struck out, and to judgment accordingly,as the plaintiff elects, unless the court orders otherwise.(3) If a party to an accepted offer fails to comply with the terms of the offer, and a defendant in the proceedings has made a statement of cross-claim or cross-summons that is not the subject of the accepted offer, the court:(a) may make such order or give such judgment under this rule, and(b) may make such order as to the further conduct of proceedings on the statement of cross-claim or cross-summons,as it thinks fit.
20.30 Disclosure of offer to court or arbitrator
(cf SCR Part 22, rule 7; DCR Part 19A, rule 7; LCR Part 17A, rule 9)
(1) No statement of the fact that an offer has been made may be contained in any pleading or affidavit.(2) If an offer is not accepted, no communication with respect to the offer may be made to the court at the trial or, as the case may require, to the arbitrator.(3) Despite subrule (2), an offer may be disclosed to the court or, as the case may require, to the arbitrator:(a) if a notice of offer provides that the offer is not made without prejudice, or(b) to the extent necessary to enable the offer to be taken into account for the purpose of determining an amount of interest up to judgment, or(c) after all questions of liability and relief have been determined, to the extent necessary to determine questions as to costs, or(d) to the extent necessary to enable the offer to be taken into account for the purposes of section 73 (4) of the Motor Accidents Act 1988, section 137 (4) of the Motor Accidents Compensation Act 1999 or section 151M of the Workers Compensation Act 1987.
20.31 Compromises in certain Supreme Court proceedings
(cf SCR Part 8, rule 14)
(1) This rule applies to proceedings in the Supreme Court concerning:(a) the administration of a deceased person’s estate, or(b) property the subject of a trust, or(c) the construction of an Act, instrument or other document,involving any matter in which one or more persons have the same interest or liability.(2) The court may approve a compromise:(a) that one party has assented to, or(b) that the court has sanctioned on behalf of one party,being in either case a compromise that affects other persons (not being parties) having the same interest or liability, but only if the court is satisfied that the compromise will be to the benefit of those other persons.(3) A compromise referred to in subrule (2) binds the absent persons unless the court’s approval of the compromise has been obtained by fraud or non-disclosure of material facts.
(cf SCR Part 22, rule 12; DCR Part 19A, rule 11; LCR Part 17A, rule 13)
(1) If in any proceedings:(a) one party (the first party) stands to be held liable to another party (the second party) to contribute towards any debt or damages which may be recovered against the second party in the proceedings, and(b) the first party, at any time after entering an appearance, makes an offer to the second party to contribute to a specified extent to the debt or damages, and(c) the offer is made without prejudice to the first party’s defence,the offer must not be brought to the attention of the court or any arbitrator until all questions of liability or amount of debt or damages have been decided.(2) In subrule (1), debt or damages includes any interest up to judgment claimed on any debt or damages.
20.33(Repealed)
Division 6 Acknowledgment of liquidated claim
20.34 Defendant may file acknowledgment
(cf DCR Part 14, rule 2; LCR Part 12, rule 2)
(1) In proceedings with respect to a liquidated claim, the defendant may file a statement acknowledging the whole of the amount of the claim.(2) Subrule (1) does not apply if the defendant has filed a defence or the plaintiff has, in accordance with these rules, filed an application for a default judgment.(3) On the filing of a statement under subrule (1), judgment is to be entered for the plaintiff for the whole of the amount of the claim.(4) Judgment entered as referred to in subrule (3) fully discharges all of the plaintiff’s claims in the proceedings.(5) In proceedings in which a default judgment has been set aside under rule 36.15 or 36.16, the defendant may not file a statement referred to in subrule (1) except by leave of the court.Note. See rule 6.11 which allows the defendant in proceedings on a liquidated claim to submit to judgment by his or her notice of appearance.