Part 7 Parties to proceedings and representation
7.1 By whom proceedings may be commenced and carried on
(cf SCR Part 4, rules 4 and 4A, Part 66, rule 1; Act No 9 1973, section 43; Act No 11 1970, section 11)
(1) A natural person may commence and carry on proceedings in any court, either by a solicitor acting on his or her behalf or in person.(2) A company within the meaning of the Corporations Act 2001 of the Commonwealth:(a) may commence and carry on proceedings in any court by a solicitor or by a director of the company, and(b) may commence and, unless the court orders otherwise, carry on proceedings in a Local Court by a duly authorised officer or employee of the company.(3) In the case of proceedings in the Supreme Court, subrule (2) (a) authorises a company to commence proceedings by a director only if the director is also a plaintiff in the proceedings.(4) A corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth):(a) may commence and carry on proceedings in any court by a solicitor, and(b) may commence and carry on proceedings in any court (other than a Local Court) by a duly authorised officer of the corporation, and(c) may commence and, unless the court orders otherwise, carry on proceedings in a Local Court by a duly authorised officer or employee of the corporation.(5) Despite subrules (1)–(4), any person may commence and, unless the court orders otherwise, carry on proceedings in a Local Court:(a) by a commercial agent or subagent (within the meaning of the Commercial Agents and Private Inquiry Agents Act 1963), in relation only to proceedings on an application for:(i) an instalment order, or(ii) an order for examination, or(iii) a writ of execution, or(iv) a garnishee order, or(b) by a person holding a licence as a real estate agent, strata managing agent or on-site residential property manager within the meaning of the Property, Stock and Business Agents Act 2002 in relation only to:(i) proceedings on an application referred to in paragraph (a), or(ii) the filing of a certificate under section 51 of the Consumer, Trader and Tenancy Tribunal Act 2001.
7.2 Affidavit as to authority to commence and carry on proceedings in Supreme Court or District Court
(cf SCR Part 4, rule 4A, Part 11, rule 1A)
(1) A person who commences or carries on proceedings in the Supreme Court or District Court:(a) as the director of a company within the meaning of the Corporations Act 2001 of the Commonwealth, or(b) as the authorised officer of a corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth),must file with the originating process, notice of appearance or defence, as the case may be, an affidavit as to his or her authority to act in that capacity, together with a copy of the instrument evidencing that authority.(2) The affidavit made by the director of a company within the meaning of the Corporations Act 2001 of the Commonwealth must contain:(a) a statement to the effect that:(i) the director is a director of the company, and(ii) the director has been authorised by a resolution of the directors duly passed at a meeting of directors held on a specified date (which must not be earlier than 21 days before the date of the affidavit) to commence and carry on the proceedings, as the case requires, and(iii) the authority has not been revoked, and(iv) the director is aware that he or she may be liable to pay some or all of the costs of the proceedings, or(b) a statement to the effect that:(i) the director is the managing or governing director of the company and has authority to exercise the powers of the directors, and(ii) the director is aware that he or she may be liable to pay some or all of the costs of the proceedings.(3) The affidavit made by the authorised officer of a corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth) must contain a statement to the effect that:(a) the officer is the holder of a specified office within the corporation, and(b) the officer has been authorised by the corporation to commence and carry on the proceedings, and(c) the authority has not been revoked, and(d) the officer is aware that he or she may be liable to pay some or all of the costs of the proceedings.
7.3 Issue of subpoena in certain circumstances requires leave
(cf SCR Part 66, rule 1A)
(1) A subpoena may not be issued, except by leave of the court, unless the party at whose request the subpoena is to be issued is represented by a solicitor in the proceedings.(2) Leave under subrule (1) may be given either generally or in relation to a particular subpoena or subpoenas.(3) Despite subrule (1), a subpoena may not be issued in relation to proceedings in the Small Claims Division of a Local Court, except by leave of the court, in any circumstances.
7.4 Representation of concurrent interests
(cf SCR Part 8, rule 13; DCR Part 7, rule 15)
(1) This rule applies to any matter in which numerous persons have the same interest or same liability in any proceedings.(2) Unless the court orders otherwise, the proceedings may be commenced and carried on by or against any one or more persons as representing any one or more of them.(3) At any stage of the proceedings, the plaintiff may apply to the court for an order appointing one or more of the defendants or one or more of the other persons to represent any one or more of them.(4) If a person who is not a party to the proceedings is appointed as referred to in subrule (3), that person must be joined as a party under rule 6.24.(5) This rule does not apply to proceedings concerning:(a) the administration of a deceased person’s estate, or(b) property the subject of a trust.
7.5 Judgments and orders in proceedings bind represented persons
(cf SCR Part 8, rule 13; DCR Part 7, rule 15)
(1) A judgment or order made in proceedings in which a party has, by an order under rule 7.4, been appointed to represent a number of persons binds all of those persons, but is not enforceable against any of those persons who is not a party except by leave of the court.(2) Notice of motion for an application for leave under subrule (1) must be personally served on the person against whom the judgment or order is sought to be enforced.(3) Subrule (1) does not prevent a person against whom the judgment or order is sought to be enforced from disputing liability by reference to circumstances peculiar to his or her case.
7.6 Representation in cases concerning administration of estates, trust property or statutory interpretation
(cf SCR Part 8, rule 14)
(1) In relation to proceedings 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,where a person or class of persons is or may be interested in or affected by the proceedings, the court may appoint one or more of those persons to represent any one or more of them.(2) A person or persons may not be appointed under subrule (1) unless the court is satisfied of one or more of the following:(a) that the person or class, or a member of the class, cannot, or cannot readily, be ascertained,(b) that the person or class, or a member of the class, although ascertained, cannot be found,(c) that, although the person or class, or a member of the class, has been ascertained and found, it is expedient for the purpose of saving expense (having regard to all of the circumstances, including the amount at stake and the degree of difficulty of the issue or issues to be determined) for a representative to be appointed to represent any one or more of them.(3) For the purposes of this rule, persons may be treated as having an interest or liability:(a) even if, in relation to one or more of them, the interest or liability is a contingent or future interest or liability, or(b) even if one or more of those persons is an unborn child.(4) This rule does not limit the operation of rule 7.10.
7.7 Judgments and orders bind represented persons in estate and trust property proceedings
(cf SCR Part 8, rule 14)
A judgment or order made in proceedings in which a party has, by an order under rule 7.6, been appointed to represent a number of persons, or members of a class of persons, binds all such persons, and all members of such a class, as if they had been parties to the proceedings.
7.8 Court may determine who has conduct of proceedings
(cf SCR Part 8, rule 17; DCR Part 7, rule 14; LCR Part 6, rule 15)
The court may give the conduct of the whole or any part of any proceedings to such person as it thinks fit.
7.9 Judgments and orders bind beneficiaries
(cf SCR Part 8, rule 15)
(1) This rule applies to proceedings that have been commenced by or against a trustee, executor or administrator, including proceedings to enforce a security by way of foreclosure or otherwise.(2) It is not necessary to join as a party any of the persons having a beneficial interest under the trust, or in the estate, concerned.(3) Subject to subrule (4), any judgment that is given, and any order that is made, is as binding on a person having a beneficial interest under the trust, or in the estate, as it is binding on the trustee, executor or administrator.(4) If, in relation to proceedings in which such a judgment or order has been made, the court is satisfied that the representative, trustee, executor or administrator did not in fact represent some or all of the persons having a beneficial interest under the trust, or in the estate, the court may order that the judgment or order does not bind those persons.(5) This rule does not limit the power of the court to order that a party be joined under rule 6.24.
7.10 Interests of deceased person
(cf SCR Part 8, rule 16; DCR Part 7, rule 13; LCR Part 6, rule 14)
(1) This rule applies to any proceedings in which it appears to the court:(a) that a deceased person’s estate has an interest in the proceedings, but is not represented in the proceedings, or(b) that the executors or administrators of a deceased person’s estate have an interest in the proceedings that is adverse to the interests of the estate.(2) The court:(a) may order that the proceedings continue in the absence of a representative of the deceased person’s estate, or(b) may appoint a representative of the deceased person’s estate for the purposes of the proceedings, but only with the consent of the person to be appointed.(3) Any order under this rule, and any judgment or order subsequently entered or made in the proceedings, binds the deceased person’s estate to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceedings.(4) Before making an order under this rule, the court may order that notice of the application be given to such of the persons having an interest in the estate as it thinks fit.
Division 3 Executors, administrators and trustees
7.11 Executors, administrators and trustees
(cf SCR Part 68, rule 4)
(1) In proceedings relating to an estate, all executors of the will of the deceased, or all administrators of the estate, must be parties unless an order has been made under rule 7.4 appointing one or more of them to represent the others.(2) In proceedings relating to a trust, all trustees must be parties.(3) In proceedings commenced by executors, administrators or trustees, any executor, administrator or trustee who does not consent to being joined as a plaintiff must be made a defendant.
7.12 Beneficiaries and claimants
(cf SCR Part 68, rule 5)
(1) In proceedings relating to an estate, all persons having a beneficial interest in or claim against the estate need not be parties, but the plaintiff may make parties of such of those persons as he or she thinks fit.(2) In proceedings relating to a trust, all persons having a beneficial interest under the trust need not be parties, but the plaintiff may make parties of such of those persons as he or she thinks fit.(3) This rule has effect despite rule 6.20 (Proceedings affecting persons having joint entitlement).
Division 4 Persons under legal incapacity
In this Division, person under legal incapacity includes a person who is incapable of managing his or her affairs.
7.14 Proceedings to be commenced or carried on by tutor
(cf SCR Part 63, rules 2 and 3 (2); DCR Part 45, rules 2 and 3; LCR Part 34, rules 3 and 4)
(1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.(2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.
(cf SCR Part 63, rules 4 and 5; DCR Part 45, rules 4 and 5; LCR Part 34, rules 5 and 6)
(1) Subject to this Division, a person may become the tutor of a person under legal incapacity without the need for any formal instrument of appointment or any order of a court.(2) Any person (other than a corporation) is eligible to be the tutor of a person under legal incapacity, in respect of any proceedings, unless the person is:(a) a person under legal incapacity, or(b) a judicial officer, a registrar or any other person involved in the administration of a court, or(c) a person who has an interest in the proceedings adverse to the interests of the person under legal incapacity.(3) In the case of proceedings with respect to the estate of a person whose estate is subject to management under the Protected Estates Act 1983, the tutor of that person is to be the person who has the management of the person’s estate under that Act.(4) Subrule (3) does not apply if the person concerned declines to act as tutor or is unable to act as tutor, or if the court orders otherwise.(5) A person may not replace another person as tutor of a person under legal incapacity except by order of the court.(6) Anything that these rules authorise or require a party to do in relation to the conduct of proceedings may, if the party is a person under legal incapacity, be done on his or her behalf by his or her tutor.
7.16 Tutor to file certain documents
(cf SCR Part 63, rule 4; DCR Part 45, rule 4; LCR Part 34, rule 5)
A tutor may not commence or carry on proceedings on behalf of a person under legal incapacity unless there have been filed:(a) the tutor’s consent to act as tutor, and(b) a certificate, signed by the tutor’s solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.
7.17 Non-appearance of person under legal incapacity
(cf SCR Part 63, rule 6; DCR Part 45, rule 6; LCR Part 34, rules 3A and 7)
(1) Subject to subrule (2), the plaintiff in proceedings against a defendant who is a person under legal incapacity may take no further step in the proceedings following service of the originating process until a tutor has entered an appearance on behalf of the defendant.Note. If no such appearance is entered, the plaintiff may apply to the court under rule 7.18 for the appointment of a tutor of the defendant, or for the removal and appointment of such a tutor.(2) In the case of proceedings in a Local Court against a defendant who appears to be a person under legal incapacity by reason only of his or her minority:(a) the plaintiff may serve on the defendant a notice requiring a tutor of the defendant to enter an appearance in the proceedings, and(b) unless the court orders otherwise, the plaintiff may continue the proceedings as if the defendant were not a person under legal incapacity if such an appearance is not entered within 28 days after service of the notice.
7.18 Court may appoint and remove tutors
(cf SCR Part 63, rules 5, 7 and 8; DCR Part 45, rules 7 and 8; LCR Part 34, rules 8 and 9)
(1) In any proceedings in which a party is or becomes a person under legal incapacity:(a) if the person does not have a tutor, the court may appoint a tutor, or(b) if the person has a tutor, the court may remove the party’s tutor and appoint another tutor.(2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings.(3) If the court removes a party’s tutor, it may also stay the proceedings pending the appointment of a new tutor.(4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person’s tutor, on the tutor.(5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include:(a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and(b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.(6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor.
7.19 Persons to sue and be sued in own name
(cf SCR Part 64, rule 4)
Subject to this Division, persons are to sue and be sued in their own names, and not under any business name.
7.20 Proceedings against defendant operating under unregistered business name
(cf SCR Part 64, rule 2; DCR Part 46, rule 2; LCR Part 35, rule 2)
(1) Proceedings against a person in respect of anything done or omitted to be done by the person in the course of, or in relation to, a business carried on under an unregistered business name may be commenced against that person, as defendant, under that name.(2) For the purposes of any such proceedings, the unregistered business name is taken to be a sufficient description of that person.(3) Any judgment or order arising from any such proceedings may be enforced against that person.
7.21 Defendant sued in business name to respond in own name
(cf SCR Part 64, rule 4; DCR Part 46, rule 3; LCR Part 35, rule 3)
(1) In any proceedings in which a defendant is sued under a business name, the defendant must not enter an appearance or file a defence otherwise than in his or her own name.(2) When entering an appearance or filing a defence, the defendant must also file a statement of the names and residential addresses of all persons who were carrying on business under the business name concerned when the proceedings were commenced.(3) The court may order that a defendant’s notice of appearance or defence be struck out if the defendant has failed to comply with subrule (2).
7.22 Plaintiff to amend documents in the proceedings to replace business name with defendant’s own name
(cf SCR Part 64, rule 5; DCR Part 46, rule 4; LCR Part 35, rule 4)
(1) In any proceedings in which a defendant is sued under a business name, the plaintiff must take such steps as are reasonably practicable:(a) to ascertain the name and residential address of the defendant, and(b) to amend such documents in the proceedings as will enable the proceedings to be continued against the defendant in his or her own name.(2) In any such proceedings, the plaintiff may not, except by leave of the court, take any step in the proceedings other than:(a) the steps of filing and serving originating process, and(b) steps to ascertain the name and residential address of the defendant,until the documents in the proceedings have been amended as referred to in subrule (1) (b).
(cf SCR Part 4, rule 5)
(1) A relator must act by a solicitor.(2) A solicitor may not act for a relator in any proceedings unless:(a) the relator has authorised the solicitor to act in that regard, and(b) a copy of the instrument authorising the solicitor to act in that regard has been filed.
Division 7 Appointment and removal of solicitors
7.24 Power to act by solicitor
(cf SCR Part 66, rule 1; DCR Part 48, rule 1; LCR Part 37, rule 1)
(1) Every act, matter or thing which, by or under the Civil Procedure Act 2005 or these rules or otherwise by law, is required or allowed to be done by a party may be done by his or her solicitor.(2) Subrule (1) does not apply where the context or subject-matter otherwise indicates or requires.
(cf SCR Part 66, rule 2; DCR Part 48, rule 2; LCR Part 37, rule 2)
If a solicitor or a partner of the solicitor is a party to any proceedings, or acts as solicitor for a party to any proceedings, that solicitor may not act for any other party in the proceedings, not in the same interest, except by leave of the court.
7.26 Change of solicitor or agent
(cf SCR Part 66, rules 3 and 4; DCR Part 48, rule 4; LCR Part 37, rule 4)
(1) A party having a solicitor in any proceedings may change solicitors.(2) A solicitor who has another solicitor acting as his or her agent in relation to a party may change agents.(3) A party who changes solicitors, or whose solicitor changes agents, must file notice of the change.(4) A copy of the notice of change, as filed, must be served on all other active parties and, if practicable, on the former solicitor or agent.
(cf SCR Part 66, rule 6; DCR Part 48, rule 4; LCR Part 37, rule 4)
(1) A party that terminates the authority of a solicitor to act on the party’s behalf must file notice of the termination.(2) A copy of the notice of termination, as filed, must be served on all other active parties and, if practicable, on the former solicitor.(3) Filing and service of the notice of termination on the other parties may be effected by the former solicitor.(4) This rule does not apply to a change of solicitor referred to in rule 7.26.
7.28 Appointment of solicitor by previously unrepresented party
(cf SCR Part 66, rule 5; DCR Part 48, rule 3; LCR Part 37, rule 3)
(1) A party that acts for himself or herself in any proceedings may afterwards appoint a solicitor to act in the proceedings on the party’s behalf.(2) A party that appoints a solicitor as referred to in subrule (1) must file and serve notice of the appointment.
(cf SCR Part 66, rule 7; DCR Part 48, rule 4; LCR Part 37, rule 4)
(1) A solicitor who ceases to act for a party in any proceedings may file notice of the change and serve the notice on the parties.(2) Except by leave of the court, a solicitor may not file or serve notice of the change unless he or she has served on the client and the registrar a notice of intention to file and serve the notice of change:(a) in the case of proceedings for which a date for trial has been fixed, at least 28 days before doing so, or(b) in any other case, at least 7 days before doing so.(3) Unless notice of the change is filed with the leave of the court, a solicitor filing such a notice must include in the notice a statement as to the date on which service of the notice of intention required by subrule (2) was effected.(4) A solicitor may serve a notice of change or notice of intention under this rule on the former client by posting it to the former client at the residential or business address of the former client last known to the solicitor.
(cf SCR Part 66, rule 8; DCR Part 48, rule 5; LCR Part 37, rule 5)
A change for which notice is required or permitted to be given under this Division does not take effect:(a) as regards the court, until the notice is filed, and(b) as regards any person on whom it is required or permitted to be served, until a copy of the notice, as filed, is served on that person.
7.31 Actions by a solicitor corporation
(cf SCR Part 66, rule 10)
Where, by or under the Civil Procedure Act 2005 or these rules or otherwise by law:(a) any act, matter or thing is authorised or required to be done by a solicitor for a person, and(b) the solicitor is a solicitor corporation, and(c) the act, matter or thing can, in the circumstances of the case, only be done by a natural person,the act, matter or thing may be done by a solicitor who is a director, officer or employee of the corporation.