Part 6 Commencing proceedings and appearance
6.1 No step without originating process or notice of appearance
(cf SCR Part 11, rule 2)
(1) Except by leave of the court, a party may not take any step in proceedings (including any appearance in court) unless the party has filed a statement of claim or summons in the proceedings or has entered an appearance in the proceedings.(2) Subrule (1) does not apply to:(a) a defendant who applies for an order under rule 12.11 (Setting aside originating process etc), or(b) a plaintiff who applies for an order under rule 25.2 (Order in urgent case before commencement of proceedings), or(c) a defendant who makes an application in relation to the setting aside or enforcement of any judgment.(3) In any proceedings, a person (not being a party and not having filed a notice of motion) may not take any step in the proceedings (including any appearance in court) unless he or she has filed a notice of address for service.
6.1A Proceedings that do not require a defendant
(cf SCR Part 58, rule 1, Part 70, rule 11, Part 73, rule 4 and Schedule J)
Unless the court otherwise orders, proceedings that may be commenced without joining any person as a defendant include the following:(a) proceedings under the Adoption Act 2000,(b) proceedings under section 33 of the Evidence on Commission Act 1995,(c) proceedings under the Jury Act 1977,(d) proceedings under section 17 of the Witness Protection Act 1995,(e) proceedings under rule 55.9.
Division 2 Originating process
(cf SCR Part 4, rules 1 and 3, Part 7, rule 7; DCR Part 5, rules 5 and 6; LCR Part 5, rule 1)
(1) Subject to these rules, the practice notes and any other rules of court, a person may commence proceedings in the court by filing a statement of claim or a summons.(2) Subject to these rules, the practice notes and any other Act or law, the plaintiff may choose whether to commence proceedings by statement of claim or by summons.(3) Originating process must be served on each defendant.(3A) An originating process served in accordance with subrule (3) must include the following:(a) the seal of the court on the first page (whether an original sealed copy or a photocopy of a sealed copy),(b) the case number or unique identifier,(c) the listing date (if allocated by the court registry).(4) Subject to subrule (5), originating process is valid for service:(a) in the case of proceedings in the Supreme Court, the Land and Environment Court, the Dust Diseases Tribunal or the Local Court, for 6 months after the date on which it is filed, or(b) in the case of proceedings in the District Court:(i) except as provided by subparagraph (ii), for one month after the date on which it is filed, or(ii) if the defendant (or at least one of the defendants) is to be served outside New South Wales, for 6 months after the date on which it is filed.(5) Failure to serve originating process within the time limited by these rules does not prevent the plaintiff from commencing fresh proceedings by filing another originating process.
6.3 Where statement of claim required
(cf SCR Part 4, rule 2)
Proceedings of the following kinds must be commenced by statement of claim:(a) proceedings on a claim for relief in relation to a debt or other liquidated claim,(b) proceedings on a claim for relief in relation to a tort,(c) proceedings on a claim based on an allegation of fraud,(d) proceedings on a claim for damages for breach of duty (however arising) and the damages claimed consist of or include:(i) damages in respect of the death of any person, or(ii) damages in respect of personal injuries to any person, or(iii) damages in respect of damage to any property,(e) proceedings on a claim for relief in relation to a trust, other than an express trust wholly in writing,(f) proceedings on a claim for possession of land,(g) proceedings on a claim for relief under the Property (Relationships) Act 1984,(h) proceedings on a claim for relief in relation to the publication of defamatory matter.
(cf SCR Part 4, rules 2, 2A and 3)
(1) Proceedings of the following kinds must be commenced by summons:(a) proceedings in which there is no defendant,(b) proceedings on an appeal or application for leave to appeal, other than proceedings assigned to the Court of Appeal,(b1) proceedings before the Supreme Court in the exercise of its jurisdiction under section 69 of the Supreme Court Act 1970,(c) proceedings for preliminary discovery or inspection under Part 5,(d) proceedings on a stated case,(e) proceedings on an application for approval under section 75 of the Civil Procedure Act 2005 of an agreement for the compromise or settlement of a claim,(f) proceedings on an application for a transfer order under Part 9 of the Civil Procedure Act 2005,(g) proceedings on an application for the removal or transfer of proceedings to the court under any Act, other than an application for a transfer order under Part 9 of the Civil Procedure Act 2005,(h) proceedings (other than proceedings on a claim for damages) on any application made under any Act (other than the Civil Procedure Act 2005),(i) proceedings on an application to the court under any Act, other than:(i) proceedings on an application under the Supreme Court Act 1970, the District Court Act 1973 or the Local Court Act 2007, and(ii) proceedings on an application that may properly be made in existing proceedings,(j) any other proceedings that, pursuant to these rules or any other rules of court, are required to be commenced by summons.(2) Proceedings of the following kinds may be commenced by summons, except where the application is made in proceedings that have been commenced in the court:(a) proceedings on an application for a writ of habeas corpus ad subjiciendum,(b) proceedings on an application for an order for the custody of a minor,(c) proceedings on an application for an order for the appointment of a tutor of a person under legal incapacity,(d) proceedings on an application for a declaration of right,(e) proceedings on an application for an injunction,(f) proceedings on an application for the appointment of a receiver,(g) proceedings on an application for an order for the detention, custody or preservation of property,(h) proceedings on a claim for relief for trespass to land.Note. If proceedings have already been commenced, the application should be made by motion: see rule 18.1.(3) Proceedings in the Supreme Court that the plaintiff intends to be entered in the Commercial List or the Technology and Construction List are to be commenced by summons.(4) Proceedings:(a) in which the sole or principal question at issue is, or is likely to be, one of:(i) the construction of an Act or a Commonwealth Act, or(ii) the construction of an instrument made under an Act or a Commonwealth Act, or(iii) the construction of a deed, will, contract or other document, or(iv) some other question of law, or(b) in which there is unlikely to be a substantial dispute of fact,are amongst those which are appropriate to be commenced by summons unless the plaintiff considers the proceedings more appropriate to be commenced by statement of claim.
6.5 Proceedings wrongly commenced by statement of claim
(cf SCR Part 4, rule 2B)
(1) Proceedings that have been commenced by statement of claim when they should have been commenced by summons are nevertheless, and for all purposes, taken to have been duly commenced as from the date of the filing of the statement of claim, and may be continued accordingly.(2) Despite subrule (1), the court may order the proceedings to be continued, as if they had been commenced by summons and as if any pleadings filed in the proceedings had been filed as affidavits, and may also make such orders as it thinks fit for the future conduct of the proceedings.
6.6 Proceedings wrongly commenced by summons
(cf SCR Part 5, rule 11)
(1) Proceedings that have been commenced by summons when they should have been commenced by statement of claim are nevertheless, and for all purposes, taken to have been duly commenced as from the date of the filing of the summons.(2) Despite subrule (1), the court may order that the proceedings continue on pleadings.(3) On or after making such an order, the court:(a) may order that any affidavits stand as pleadings, or(b) may make orders for the filing of a statement of claim or other pleadings.(4) After a statement of claim is filed pursuant to an order referred to in subrule (3) (b), the proceedings are to continue, subject to any other order of the court, as if commenced by statement of claim.
(cf SCR Part 5, rule 8)
The court may, on the first or any later day of hearing:(a) hear and determine the proceedings or any claim in the proceedings, and(b) make such order or give such judgment as the nature of the case requires.
6.8 Originating process for recovery of land to be served on occupier
(cf SCR Part 7, rule 8)
(1) If, when proceedings for possession of land are commenced, a person (the occupier) not joined as a defendant is in occupation of the whole or any part of the land, the plaintiff:(a) must state in the originating process that the plaintiff does not seek to disturb the occupier’s occupation of the land, or(b) must serve the originating process on the occupier together with a notice to the effect that:(i) the occupier may apply to the court for an order that the occupier be added as a defendant, and(ii) if the occupier does not so apply within 10 days after service, the occupier may be evicted under a judgment entered in the occupier’s absence.(2) For the purposes of subrule (1), documents may be served on the occupier personally or by leaving the documents on the land concerned addressed to the occupier by name or addressed simply “to the occupier”.(3) If originating process is amended by the addition of a claim for possession of land, the time at which proceedings for possession of that land are commenced is taken, for the purposes of subrule (1), to be the time at which the amendment is made.
6.8A Originating process for proceedings to be entered in Possession List
The originating process in proceedings in the Common Law Division of the Supreme Court that are to be entered in The Possession List is to have a coversheet in the approved form.
Division 3 Defendant to proceedings to enter appearance
(cf SCR Part 11, rule 3)
(1) A defendant may enter an appearance in proceedings by filing a notice of appearance.(2) A defendant who files a defence in proceedings is taken to have entered an appearance in the proceedings.Note. Appearance may be withdrawn: see rule 12.5.
(cf SCR Part 7, rule 5, Part 11, rule 6)
(1) For the purposes of these rules, the time limited for a defendant to enter an appearance (whether by filing a notice of appearance in accordance with this Division or by filing a defence in accordance with Division 4) is:(a) in the case of proceedings commenced by statement of claim:(i) 28 days after service on the defendant of the statement of claim or such other time as the court directs for the filing of a defence, or(ii) if the defendant makes an unsuccessful application to have the statement of claim set aside, 7 days after the refusal of the application,whichever is the later, or(b) in the case of proceedings commenced by summons:(i) on or before the return day stated in the summons, or(ii) if the defendant makes an unsuccessful application to have the summons set aside, 7 days after the refusal of the application,whichever is the later.(2) A reference in subrule (1) (b) to a summons extends, in relation to the Land and Environment Court, to an application that, in accordance with the rules of that Court, commences proceedings in Class 1, 2 or 3 of that Court’s jurisdiction.
6.11 Defendant may submit to judgment by notice of appearance
(cf SCR Part 11, rule 4 (3), (4) and (5))
(1) A defendant who intends to take no active part in proceedings may include in the defendant’s notice of appearance a statement to the effect that the defendant submits to the making of all orders sought and the giving or entry of judgment in respect of all claims made, to which may be added the words “, save as to costs”.(2) Except by leave of the court, a defendant who has filed a notice of appearance containing a statement referred to in subrule (1) may not file a defence or affidavit or take any other step in the proceedings.Note. See rule 20.34 which allows the defendant in proceedings on a liquidated claim to file a statement acknowledging the whole of the amount of the claim.
Division 4 Contents of statement of claim and summons
(cf SCR Part 7, rule 1; DCR Part 5, rules 6 and 6A; LCR Part 5, rules 1 and 2)
(1) A statement of claim or summons must specifically state the relief claimed by the plaintiff.(2) If the relief claimed requires the determination or direction of the court on any question, the statement of claim or summons must state the question.(3) Costs referred to in section 329 (1) (c) of the Legal Profession Act 2004 (costs payable for the enforcement of a lump sum debt or liquidated sum for damages) must be specifically claimed.(4) Costs, other than those referred to in section 329 (1) (c) of the Legal Profession Act 2004, need not be specifically claimed.(5) Exemplary damages and aggravated compensatory damages must be specifically claimed.(6) An order for interest up to judgment must be specifically claimed.(7) In the case of a liquidated claim, a claim for an order for interest up to judgment:(a) must specify the period or periods for which interest is claimed, and(b) may specify the rate or rates at which interest is claimed.(8) If no rate of interest is specified under subrule (7) (b), the rate at which interest is claimed is taken to be:(a) in respect of the period from 1 January to 30 June in any year—the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced, and(b) in respect of the period from 1 July to 31 December in any year—the rate that is 4% above the cash rate last published by the Reserve Bank of Australia before that period commenced.Note. See Part 46 as to the additional matters to be included in a summons relating to an appeal.
6.13 Notice to defendant in statement of claim
(cf SCR Part 7, rule 3)
A statement of claim:(a) must state that, unless a defence is filed in the registry, the proceedings may result in a judgment or order against the defendant, and(b) must give the address of the registry where the statement of claim is filed (which will consequently be the address where any further pleadings and other documents are to be filed), and(c) must specify the time limited by these rules for filing a defence.Note. See rule 6.8 in relation to claims for the possession of land.
6.14 Notice to defendant in summons
(cf SCR Part 7, rule 3)
A summons filed in proceedings in which there is a defendant:(a) must state that:(i) the proceedings may be heard, and(ii) the defendant is liable to suffer judgment or an order against the defendant,unless there is attendance before the court by the defendant or his or her barrister or solicitor at the time and place stated in the summons, and(b) must further state that, before any such attendance, the defendant must file a notice of appearance in the registry, and(c) must give the address of the registry at the place named as the place for attendance.
6.15 Summons to specify return day
(cf SCR Part 5, rule 3)
(1) A summons must state a return day.(2) The return day may be fixed by the court or, if not fixed by the court, is to be obtained from the registry.(3) If there is a defendant, the summons is to be served on the defendant not less than 5 days before the return day unless the court orders otherwise.(4) A summons is to bear a note stating the terms of any order made under subrule (3).(5) If a return day is obtained from the registry and the summons is to be served outside New South Wales, the return day is to be not less than one month after the date of filing of the summons.
6.16 Alteration of return day in summons
(cf SCR Part 5, rule 5A)
The court may, by notice given to the parties by telephone or otherwise, postpone the return day for a summons to a later day, and may authorise the parties’ solicitors to make corresponding alterations to the copies of the summonses held by them.
6.17 Payment towards liquidated claim stays proceedings on claim
(cf SCR Part 7, rule 4; DCR Part 14, rule 2; LCR Part 12, rule 2)
(1) This rule applies to proceedings in which the plaintiff makes a liquidated claim, but makes no claim of any other kind.(2) The defendant in any such proceedings may, within the time limited for appearance, pay to the plaintiff the sum of:(a) the amount claimed (other than costs), including any interest claimed, and(b) an amount for costs equal to the amount fixed in relation to such a claim by the regulations under the Legal Profession Act 2004, and(c) if the amount so fixed does not include the fee paid on filing the originating process, an amount equal to that fee.(3) Having made such a payment, the defendant may file a notice of payment.(4) The filing of a notice of payment operates as a permanent stay of the proceedings unless the court orders otherwise.(5) A statement of claim commencing proceedings to which this rule applies must bear a note to the effect of this rule and must specify the amounts for costs referred to in subrule (2) (b) and (c).
Division 5 Joinder of causes of action and joinder of parties
6.18 Joinder of causes of action
(cf SCR Part 8, rule 1; DCR Part 7, rule 1; LCR Part 6, rule 1)
(1) In any originating process, the plaintiff may claim relief against the defendant in respect of more than one cause of action in any of the following circumstances:(a) if the plaintiff sues in the same capacity, and claims the defendant to be liable in the same capacity, in respect of each cause of action,(b) if the plaintiff sues:(i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and(ii) in his or her personal capacity, but with reference to the estate of the same deceased person, in respect of the remaining causes of action,(c) if the plaintiff claims the defendant to be liable:(i) in his or her capacity as executor of the will of a deceased person, or administrator of the estate of a deceased person, in respect of one or more of the causes of action, and(ii) in his or her personal capacity, and in relation to the estate of the same deceased person, in respect of the remaining causes of action,(d) if the court grants leave for all of the causes of action to be dealt with in the same proceedings.(2) Leave under subrule (1) may be granted before or after the originating process is filed.
6.19 Proceedings involving common questions of law or fact
(cf SCR Part 8, rule 2; DCR Part 7, rule 2; LCR Part 6, rule 2)
(1) Two or more persons may be joined as plaintiffs or defendants in any originating process if:(a) separate proceedings by or against each of them would give rise to a common question of law or fact, and(b) all rights of relief claimed in the originating process are in respect of, or arise out of, the same transaction or series of transactions,or if the court gives leave for them to be joined.(2) Leave under subrule (1) may be granted before or after the originating process is filed.
6.20 Proceedings affecting persons having joint entitlement
(cf SCR Part 8, rules 3 and 4; DCR Part 7, rules 3 and 4; LCR Part 6, rules 3 and 4)
(1) Unless the court orders otherwise, all persons jointly entitled to the same relief must be joined as parties in any claim for that relief that is made by any one or more of them.(2) Unless the court orders otherwise, any other such person is to be joined:(a) as a plaintiff, if he or she consents to being a plaintiff, or(b) as a defendant, if he or she does not consent to being a plaintiff.(3) Despite subrule (1), a person may not be joined as a party to proceedings in contravention of any other Act or law.Note. See, for example, section 62 of the Bankruptcy Act 1966 of the Commonwealth.
6.21 Proceedings affecting persons having joint or several liability
(cf SCR Part 8, rule 5; DCR Part 7, rule 5; LCR Part 6, rule 5)
(1) A person who is jointly and severally liable with some other person in relation to any act, matter or thing need not be a defendant in proceedings with respect to that act, matter or thing merely because the other person is a defendant in those proceedings.(2) In any proceedings in which a defendant is one of a number of persons who are jointly, but not severally, liable in contract or tort, or under an Act or statutory instrument, the court may order that the other persons be joined as defendants and that the proceedings be stayed until those other persons have been so joined.
6.22 Court may order separate trials if joinder of party or cause of action inconvenient
(cf SCR Part 8, rule 6; DCR Part 7, rule 6; LCR Part 6, rule 6)
If the court considers that the joinder of parties or causes of action in any proceedings may embarrass, inconvenience or delay the conduct of the proceedings, the court:(a) may order separate trials, or(b) may make such other order as it thinks fit.
6.23 Effect of misjoinder or non-joinder of parties
(cf SCR Part 8, rule 7 (1); DCR Part 7, rule 7 (1); LCR Part 6, rule 7 (1))
Proceedings are not defeated merely because of the misjoinder or non-joinder of any person as a party to the proceedings.
6.24 Court may join party if joinder proper or necessary
(cf SCR Part 8, rule 8 (1); DCR Part 7, rule 8 (1); LCR Part 6, rule 8 (1))
(1) If the court considers that a person ought to have been joined as a party, or is a person whose joinder as a party is necessary to the determination of all matters in dispute in any proceedings, the court may order that the person be joined as a party.(2) Without limiting subrule (1), in proceedings for the possession of land, the court may order that a person (not being a party to the proceedings) who is in possession of the whole or any part of the land (whether in person or by a tenant) be added as a defendant.
6.25 Joinder as plaintiff requires party’s consent
(cf SCR Part 8, rule 8 (2); DCR Part 7, rule 8 (2); LCR Part 6, rule 8 (2))
A person is not to be joined as a plaintiff in any proceedings except with his or her consent.
(cf SCR Part 52A, rule 4 (3) and (4))
(1) Except to the extent to which these rules expressly provide, a party may not join another person as a party to any proceedings for the purpose of making an application for costs against the other person.(2) This rule does not apply:(a) if the other person would otherwise be a proper party to the proceedings, or(b) if the party joins the other person by means of a cross-claim in respect of a claim for costs against the party.
6.27 Joinder on application of third party
(cf SCR Part 8, rule 8; DCR Part 7, rule 8; LCR Part 6, rule 8)
A person who is not a party may apply to the court to be joined as a party, either as a plaintiff or defendant.
6.28 Date of commencement of proceedings in relation to parties joined
(cf SCR Part 8, rule 11 (3) and (4); DCR Part 7, rule 11 (3); LCR Part 6, rule 11 (3))
If the court orders that a person be joined as a party, the date of commencement of the proceedings, in relation to that person, is taken to be the date on which the order is made or such later date as the court may specify in the order.
6.29 Removal of parties by order
(cf SCR Part 8, rule 9; DCR Part 7, rule 9; LCR Part 6, rule 9)
The court may order that a person:(a) who has been improperly or unnecessarily joined, or(b) who has ceased to be a proper or necessary party,be removed as a party.
6.30 Effect of certain changes on proceedings
(cf SCR Part 8, rule 10; DCR Part 7, rule 10; LCR Part 6, rule 10)
(1) Proceedings do not abate as a result of a party’s death or bankruptcy if a cause of action in the proceedings survives.(2) If a cause of action survives, and the interest or liability of a party to any proceedings passes from the party to some other person, the court may make such orders as it thinks fit for the joinder, removal or re-arrangement of parties.(3) Without limiting subrule (2), if a party to an application under section 20 of the Property (Relationships) Act 1984 dies, the court may order the substitution of the legal representative, as mentioned in section 24 (1) of that Act, as a party to the application.
6.31 Court may dismiss proceedings not prosecuted following death of party
(cf SCR Part 8, rule 12; DCR Part 7, rule 12; LCR Part 6, rule 12)
(1) This rule applies to any proceedings in which:(a) a party dies, but a cause of action in the proceedings survives his or her death, and(b) an order for the joinder of a party to replace the deceased party is not made within 3 months after the death.(2) The court may order that, unless an application to join a party to replace the deceased party is made within a specified time, the proceedings in relation to the cause of action concerned be dismissed.(3) An application for such an order may be made by any person to whom the deceased party’s liability in relation to the cause of action concerned has passed (whether or not a party to the proceedings).(4) On making an order under this rule, the court may give such directions as it thinks fit for service of the order on any person (whether or not a party to the proceedings) who is interested in continuing the proceedings.
Division 7 Orders as to future conduct of proceedings
6.32 Orders as to the future conduct of proceedings
(cf SCR Part 8, rule 11; DCR Part 7, rule 11; LCR Part 6, rule 11)
(1) If in any proceedings the court makes an order under Division 5 or 6, it may also make such orders as it thinks fit for the future conduct of the proceedings, including orders with respect to the following:(a) the service of the order, and other documents,(b) the amendment of documents,(c) the entering of an appearance, or the filing of a defence, by persons who are joined as defendants,(d) the substitution of one party for another party or former party.(2) If the court orders the substitution of one party for another party or former party, all things previously done in the proceedings have the same effect in relation to the new party as they had in relation to the old, subject to any other order by the court.Note. See rule 6.28 as to when proceedings are taken to have commenced in relation to a new party.
Division 8 Referred questions of law and stated cases
(1) In this Division:original proceedings, in relation to a referred question of law or stated case, means the proceedings (if any) in which the question or case has arisen.
referred matter means a question of law or stated case that has been referred to the Supreme Court for determination.
referring body means the court or other authority by which a question of law or stated case is referred to the Supreme Court for determination.
(2) A reference in this Division to the Supreme Court includes a reference to the Court of Appeal where the proceedings concerned are assigned to or in the Court of Appeal.
This Division applies to proceedings in the Supreme Court for an order with respect to a referred matter under a legislative provision, including (but not limited to) the following provisions:Administrative Decisions Tribunal Act 1997, section 79A, 118 or 118D,
Constitution Further Amendment (Referendum) Act 1930, section 28,
Consumer, Trader and Tenancy Tribunal Act 2001, section 66,
Powers of Attorney Act 2003, section 39,
Real Property Act 1900, section 123 or 124,
Note. This Division also applies by force of rules 12.1A and 15.1 of the Supreme Court (Corporations) Rules 1999 to questions referred to the Supreme Court under the following Commonwealth legislation:Australian Securities and Investments Commission Act 2001, section 61,
Corporations Act 2001, section 659A.
(1) (Repealed)(2) The originating process:(a) in the case of proceedings to which the Supreme Court (Corporations) Rules 1999 apply, must be in the form of the originating process prescribed by rule 2.2 of those rules, and(b) in any other case, must be in the form of a summons.(3) The referred matter:(a) must be in the form of a special case, and(b) must be filed with the originating process.(4) The originating process must join as defendants (or as respondents where the proceedings are in the Court of Appeal):(a) if the referred matter has arisen in original proceedings, all of the parties to the original proceedings, or(b) in any other case, all of the persons who may be directly affected by the Supreme Court’s determination of the referred matter.(5) In the case of proceedings under section 123 of the Real Property Act 1900, the originating process must also join the Registrar-General as a defendant.(6) The Supreme Court may order that such other persons as it considers appropriate be joined as defendants (or as respondents where the proceedings are in the Court of Appeal).
(cf Federal Court Rules Order 50, rule 1)
A special case:(a) must be divided into consecutively numbered paragraphs, and(b) must state concisely the questions to be decided and the facts from which those questions arise, and(c) must annex all documents necessary to enable the Supreme Court to decide those questions.
6.37 Procedure for preparing special case
(cf Federal Court Rules Order 50, rule 2)
(1) In the case of a referred matter that has arisen in original proceedings, a special case:(a) must be prepared in draft by the party having the conduct of the original proceedings in consultation with the other parties to those proceedings, and(b) must be settled by the referring body,unless the referring body otherwise directs.(2) In the case of a referred matter that has arisen otherwise than in original proceedings, a special case must be prepared:(a) in the case of proceedings under section 123 of the Real Property Act 1900, by the applicant referred to in that section, or(b) in any other case, by the referring body.
(cf Federal Court Rules Order 50, rule 4)
(1) This rule applies to any proceedings with respect to a referred matter that has arisen in original proceedings.(2) Subject to rule 7.8, the party at whose instance the matter has been referred is to have the conduct of the proceedings.
(cf SCR Part 32, rule 7)
(1) This rule applies to any proceedings in which it appears to the Supreme Court that a special case:(a) does not sufficiently state the questions to be decided or the facts from which those questions arise, or(b) does not annex sufficient documents,to enable it to determine the proceedings.(2) In these circumstances, the Supreme Court:(a) may add to or otherwise alter the special case, or(b) may send the special case back to the referring body for the purpose of addition or other alteration.(c) (Repealed)
(cf FCR Ord 50, rule 1 (3))
The Supreme Court may draw from the facts stated in, and the documents annexed to, a special case any inference, whether of fact or law, that might have been drawn from them if proved at a trial.
6.41 Referred matters under section 28 of the Constitution Further Amendment (Referendum) Act 1930
(1) This rule applies to any question that is referred to the Supreme Court under section 28 of the Constitution Further Amendment (Referendum) Act 1930.(2) Proceedings on the question are commenced by transmission to the Prothonotary of a statement of the question, as provided for in section 29 of the Constitution Further Amendment (Referendum) Act 1930.(3) On receiving the statement, the Prothonotary must list the matter before a Judge of the Supreme Court for directions.(4) The Supreme Court may give all such directions as are necessary for the conduct and disposal of the proceedings on the question.(5) Rules 6.35–6.40 do not apply to the proceedings on the question.
Division 9 Issues arising under foreign law
In this Division:foreign court means a court of a country other than Australia.
foreign law means the law of a country other than Australia.
(1) A party who contends that an issue in proceedings in the Supreme Court is governed by foreign law must file and serve on the other parties affected by the issue a notice (a foreign law notice) setting out the relevant principles of foreign law and their application to the issue.(2) The foreign law notice must be filed and served by the party contending that an issue is governed by foreign law not more than 6 weeks after the filing by that party of a summons, statement of claim, statement of cross-claim or defence in respect of the proceedings.(3) A party on whom a foreign law notice is served who disputes the principles of foreign law or their application must file and serve on the other parties affected by the issue a notice setting out the matter or matters in dispute (a notice of dispute as to foreign law).(4) The notice of dispute as to foreign law must be filed and served not more than 8 weeks after the date of service of the foreign law notice.
(1) The Supreme Court may, on the application of one or more of the parties and with the consent of all of the parties, order that proceedings be commenced in a foreign court in order to answer a question as to the principles of foreign law or as to their application.(2) The Supreme Court may, on the application of one or more of the parties or of its own motion, order that the question of foreign law be answered by a referee appointed in accordance with Division 3 of Part 20.(3) An order under subrule (1) must:(a) state the question of foreign law to be answered, and(b) state the facts or assumptions upon which the answer to the question is to be determined, and(c) contain a statement to the effect that the foreign court may vary the facts or assumptions and the question to be answered, and(d) state whether and to what extent the parties may depart from the facts or assumptions in the determination of the question by the foreign court.(4) The Supreme Court may give directions for the preparation of a statement as to the nature of the issue out of which the question arises for inclusion with the question to be answered by the foreign court or the referee.
6.45 Determination of issues arising in foreign court proceedings
Proceedings for determination of an issue of Australian law, being an issue with respect to which the Supreme Court may exercise its jurisdiction and which is relevant to an issue in proceedings in a foreign court, may be commenced by summons seeking a declaration of the answer to a question in the form determined by the foreign court.