These rules are the Uniform Civil Procedure Rules 2005.
(1) Words and expressions that are defined in the Dictionary at the end of these rules have the meanings set out in the Dictionary.(2) Notes included in these rules do not form part of these rules.Note. In the notes, DCR means the District Court Rules 1973, LCR means the Local Courts (Civil Claims) Rules 1988 and SCR means the Supreme Court Rules 1970.
1.3 References to barristers and solicitors
(1) For the purposes of these rules:(a) a reference in these rules to a barrister is a reference to a legal practitioner who practises as a barrister, and(b) a reference in these rules to a solicitor is a reference to a legal practitioner who practises as a solicitor.Note. The rights of a person to practise as a barrister or to practise as a solicitor are regulated by the Legal Profession Act 2004.(2) For the purposes of rule 33.9 (9), a reference to a solicitor for a party includes a reference to:(a) a solicitor acting as agent for the solicitor for a party, and(b) any other solicitor belonging to or employed by the same firm or organisation as the solicitor for a party or the solicitor acting as agent for the solicitor for a party.(3) For the purposes of rule 33.9 (10):(a) a reference to a solicitor who removes a document or thing from the office of the registrar includes a reference to a solicitor who directs a person referred to in paragraph (b) to remove a document or thing from the office of the registrar, and(b) a reference to the personal custody of the solicitor includes a reference to the personal custody of:(i) any other solicitor belonging to or employed by the same firm or organisation as that solicitor, or any other person employed by that firm or organisation, and(ii) any other solicitor acting as agent for that solicitor, and(iii) any other solicitor belonging to or employed by the same firm or organisation as a solicitor acting as agent for that solicitor, or any other person employed by that firm or organisation, and(iv) if the registrar has approved a firm or organisation to provide photocopying services in respect of documents, any employee of a firm or organisation so approved.
(cf SCR Part 1, rule 14)
These rules do not affect the right of any person to commence proceedings for discovery.
1.5 Application of these rules
(1) Subject to subrule (2), these rules apply to each court referred to in Column 1 of Schedule 1 in relation to civil proceedings of a kind referred to in Column 2 of that Schedule.(2) In respect of each court referred to in Column 1 of Schedule 1, civil proceedings of a kind referred to in Column 2 of that Schedule are excluded from the operation of each provision of these rules referred to in Column 4 of that Schedule in respect of those proceedings.(3) The exclusion of civil proceedings from any such provision is subject to such conditions, limitations or exceptions as are specified in Column 4 of Schedule 1 in relation to that provision.
1.6 Exclusion of provisions of Civil Procedure Act 2005
In respect of each court referred to in Column 1 of Schedule 1:(a) civil proceedings of a kind referred to in Column 2 of that Schedule are excluded from the operation of the provisions of Parts 3–9 of the Civil Procedure Act 2005 referred to in Column 3 of that Schedule in respect of those proceedings, and(b) the following proceedings, to the extent to which they are civil proceedings, are excluded from all of Parts 3–9 of the Civil Procedure Act 2005:(i) proceedings under the Mental Health (Criminal Procedure) Act 1990,(ii) proceedings under the Habitual Criminals Act 1957,(iii) proceedings under the Bail Act 1978,(iv) proceedings under the Crimes (Domestic and Personal Violence) Act 2007,(v) proceedings under Part 4 of the Victims Support and Rehabilitation Act 1996.
1.7 Local rules that prevail over these rules
The rules of court specified in Schedule 2 prevail over these rules.
1.8 Determination of questions arising under these rules
(cf SCR Part 23, rule 4 (b) and (d))
The court may determine any question arising under these rules (including any question of privilege) and, for that purpose:(a) may inspect any document in relation to which such a question arises, and(b) if the document is not before the court, may order that the document be produced to the court for inspection.
1.9 Objections to production of documents and answering of questions founded on privilege
(cf SCR Part 36, rule 13; DCR Part 28, rule 16)
(1) This rule applies in the following circumstances:(a) if the court orders a person, by subpoena or otherwise, to produce a document to the court or to an authorised officer,(b) if a party requires another party, by notice under rule 34.1, to produce a document to the court or to an authorised officer,(c) if a question is put to a person in the course of an examination before the court or an authorised officer.(2) In subrule (1), authorised officer means:(a) any officer of the court, or(b) any examiner, referee, arbitrator or other person who is authorised by law to receive evidence.(3) A person may object to producing a document on the ground that the document is a privileged document or to answering a question on the ground that the answer would disclose privileged information.(4) A person objecting under subrule (3) may not be compelled to produce the document, or to answer the question, unless and until the objection is overruled.(5) For the purpose of ruling on the objection:(a) evidence in relation to the claim of privilege may be received from any person, by affidavit or otherwise, and(b) cross-examination may be permitted on any affidavit used, and(c) in the case of an objection to the production of a document, the person objecting may be compelled to produce the document.(6) This rule does not affect any law that authorises or requires a person to withhold a document, or to refuse to answer a question, on the ground that producing the document, or answering the question, would be injurious to the public interest.
1.10 Powers of the judicial registrar
(DCR Part 43A, rule 1)
(1) For the purposes of section 18FB (1) of the District Court Act 1973, all of the powers of the District Court are conferred on the judicial registrar of that Court other than:(a) the powers of the Court in its criminal jurisdiction, or(b) the power of the Court to deal with contempt of court.(2) Subrule (1) (b) does not prevent the judicial registrar from reporting to the District Court constituted by a Judge any allegation of contempt of the Court.
1.10A Powers of associate Judges of the Supreme Court
(cf SCR Part 60, rule 1A)
(1) Subject to subrule (2), an associate Judge of the Supreme Court may exercise any of the powers of the Court under the Civil Procedure Act 2005, or under rules of court, in relation to defamation proceedings.(2) An associate Judge may not exercise the power conferred by rule 29.15 or 29.16 in relation to any such proceedings.Note. Section 118 of the Supreme Court Act 1970 sets out the powers exercisable by an associate Judge. Those powers include powers conferred by rules of court. In addition to the power conferred by this rule, see rule 1A of Part 60 of the Supreme Court Rules 1970, together with Schedule D to those rules, for other powers of the Supreme Court that may be exercised by an associate Judge.
1.10B When Part 11A concerning service under Hague Convention has effect
The provisions of Part 11A have effect on and from the day on which the Hague Convention enters into force for Australia.
(cf SCR Part 2, rule 2; DCR Part 3, rule 1; LCR Part 4, rule 1)
(1) Any period of time fixed by these rules, or by any judgment or order of the court or by any document in any proceedings, is to be reckoned in accordance with this rule.(2) If a time of one day or longer is to be reckoned by reference to a given day or event, the given day or the day of the given event is not to be counted.(3) If, apart from this subrule, the period in question, being a period of 5 days or less, would include a day or part of a day on which the registry is closed, that day is to be excluded.(4) If the last day for doing a thing is, or a thing is to be done on, a day on which the registry is closed, the thing may be done on the next day on which the registry is open.(5) Section 36 of the Interpretation Act 1987 (which relates to the reckoning of time) does not apply to these rules.
1.12 Extension and abridgment of time
(cf SCR Part 2, rule 3; DCR Part 3, rule 2; LCR Part 4, rule 2)
(1) Subject to these rules, the court may, by order, extend or abridge any time fixed by these rules or by any judgment or order of the court.(2) The court may extend time under this rule, either before or after the time expires, and may do so after the time expires even if an application for extension is made after the time expires.
(cf SCR Part 2, rule 4; DCR Part 3, rule 3; LCR Part 4, rule 3)
If no time is fixed by these rules, or by any judgment or order of the court, for the doing of any thing in or in connection with any proceedings, the court may, by order, fix the time within which the thing is to be done.
Division 3 Fees and other amounts
1.14 Prescribed fees and other amounts
The fees and other amounts prescribed by these rules are set out in Schedule 3.
1.15 Fees chargeable under the Oaths Act 1900
The fees chargeable under section 28 of the Oaths Act 1900 are set out in item 1 of Schedule 3.
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),(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)).
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.
Division 5 Notices under section 78B of Judiciary Act 1903 of Commonwealth
1.22 Notice of constitutional matter
(cf Federal Court Rules, Order 51, rule 1)
(1) If proceedings pending in a court involve a matter arising under the Commonwealth Constitution or involving its interpretation within the meaning of section 78B of the Judiciary Act 1903 of the Commonwealth, the party whose case raises the matter must file a notice of a constitutional matter.Note. Section 78B of the Judiciary Act 1903 of the Commonwealth provides that if a cause is pending in a State court that involves a matter arising under the Commonwealth Constitution or involving its interpretation, the court is under a duty not to proceed in the cause unless or until it is satisfied that notice of the cause and the matter raised in the cause has been served on the Attorneys-General of the Commonwealth and the States.The purpose of such a notice is to afford the Attorneys-General a reasonable time to consider whether or not they wish to intervene in the proceedings or to have the cause removed into the High Court for determination.
(2) Notice of a constitutional matter must state:(a) specifically the nature of the matter, and(b) facts showing the matter is one to which subrule (1) applies.
1.23 Time for filing and service of notice of constitutional matter
(cf Federal Court Rules, Order 51, rule 2)
(1) The party whose case raises the constitutional matter, or such other party as the court may direct, must file notice of a constitutional matter and serve a copy of the notice on all other parties and the Attorneys-General of the Commonwealth, the States, the Australian Capital Territory and the Northern Territory:(a) if the matter arises before any directions hearing or case management conference in the proceedings, not later than 2 days before the date of that hearing or conference, or(b) if no directions hearing or case management conference has been fixed or is imminent, as soon as practicable, or(c) if the matter arises at a hearing, within such time as the court directs.(2) As soon as practicable after a party files and serves a notice in the circumstances referred to in subrule (1) (b), the party must apply to the court for directions.
(cf Federal Court Rules, Order 51, rule 3)
The party whose case raises a constitutional matter must file an affidavit of service of each notice required to be served under rule 1.23, and must do so promptly after the notice is served.
1.25 Documents for intervening Attorneys-General
(cf Federal Court Rules, Order 51, rule 4)
The party whose case raises a constitutional matter must provide copies of any other documents that have been filed in the proceedings and that are relevant to the matter to any intervening Attorney-General as soon as practicable after notice of the intervention is given to the party.
Division 6 Procedure in particular circumstances
1.26 Procedure under particular Acts
(1) The provisions of Schedule 10 apply to proceedings under the Acts referred to in that Schedule.(2) A reference in any such provision to “the Act” is a reference to the Act referred to in the heading beneath which that provision appears.
1.27 Procedure in particular District Court lists
The provisions of Schedule 11 apply to proceedings in the District Court that are assigned to the Coal Miners’ Workers Compensation List or the Special Statutory Compensation List.