Part 1 Preliminary

Division 1 General

1.1   Name of rules

These rules are the Uniform Civil Procedure Rules 2005.

1.2   Definitions

(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.

1.4   Saving as to discovery

(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.

(4)  Without limiting the operation of subrule (2), if any Part, Division or other provision of these rules provides that it applies to proceedings or other matters in a specified court or courts, the Part, Division or other provision does not apply to proceedings or other matters in any other court.

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   (Repealed)

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.

Division 2 Time

1.11   Reckoning of time

(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.

1.13   Fixing times

(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.

1.24   Affidavit of service

(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.

Part 2 Case management generally

2.1   Directions and orders

(cf SCR Part 26, rule 1)

The court may, at any time and from time to time, give such directions and make such orders for the conduct of any proceedings as appear convenient (whether or not inconsistent with these rules or any other rules of court) for the just, quick and cheap disposal of the proceedings.

Note. See also the guiding principles in relation to the conduct of court proceedings (set out in Division 1 of Part 6 of the Civil Procedure Act 2005) and the general powers of the court to give directions (set out in Division 2 of that Part).

2.2   Appointment for hearing

(cf SCR Part 26, rule 2)

The court may, at any time and from time to time, of its own motion, appoint a date for a hearing at which it may give or make the directions or orders referred to in rule 2.1.

2.3   Case management by the court

(cf SCR Part 26, rule 3)

Without limiting the generality of rule 2.1, directions and orders may relate to any of the following:

(a)  the filing of pleadings,

(b)  the defining of issues, including requiring the parties, or their legal practitioners, to exchange memoranda in order to clarify questions,

(c)  the provision of any essential particulars,

(d)  the filing of “Scott Schedules” referred to in rule 15.2,

(e)  the making of admissions,

(f)  the filing of lists of documents, either generally or with respect to specific matters,

(g)  the delivery or exchange of experts’ reports and the holding of conferences of experts,

(h)  the provision of copies of documents, including their provision in electronic form,

(i)  the administration and answering of interrogatories, either generally or with respect to specific matters,

(j)  the service and filing of affidavits, witness statements or other documents to be relied on,

(k)  the giving of evidence at any hearing, including whether evidence of witnesses in chief must be given orally, or by affidavit or witness statement, or both,

(l)  the use of telephone or video conference facilities, video tapes, film projection, computer and other equipment and technology,

(m)  the provision of evidence in support of an application for an adjournment or amendment,

(n)  a timetable with respect to any matters to be dealt with, including a timetable for the conduct of any hearing,

(o)  the filing of written submissions.

Part 3 Electronic case management

3.1   Definitions

(1)  In this Part:

ECM system means an electronic case management system established under clause 2 of Schedule 1 to the Electronic Transactions Act 2000.

registered user means a person who is registered as a user of the ECM system under rule 3.3.

(2)  In this Part, a reference to filing a document in the court includes a reference to any other method of sending a document to the court.

3.2   Application of Part

This Part applies to those courts, and for those purposes, for which the use of an ECM system is authorised by an order in force under clause 3 of Schedule 1 to the Electronic Transactions Act 2000.

3.3   Registration of users

(1)  The registrar of the court may register any person as a user of the ECM system in relation to the court, either generally or for particular proceedings, and may specify the level of access to which the person is entitled, and the conditions of use applicable to the person, as a registered user of the system.

(2)  Subject to any order of the court, a person may not be registered as a user of the ECM system for particular proceedings unless the person is:

(a)  a party to the proceedings, or

(b)  a legal practitioner representing a party to the proceedings, or

(c)  a person authorised to use the ECM system in relation to the proceedings by a legal practitioner representing a party to the proceedings, or

(d)  a person who, pursuant to rule 4.4 (1) (b) or 4.4 (3), is authorised to sign documents on behalf of a party in proceedings in the Local Court, but only in connection with proceedings and matters in relation to which that paragraph or subrule authorises documents to be so signed.

(3)  The senior judicial officer of the court may establish a protocol for the registration of persons as users of the ECM system, either generally or for particular proceedings.

(4)  Such a protocol may provide for the automatic registration of particular classes of persons as users of the ECM system, and for the automatic specification of the level of access to which persons of such a class are entitled and the conditions of use applicable to persons of such a class as registered users of the system.

(5)  In relation to any proceedings before the court, the level of access to the ECM system to which a registered user is entitled, and the conditions of use applicable to a registered user, are subject to any order of the court.

3.4   Electronic filing of documents

(1)  This rule applies:

(a)  in relation to proceedings in any court other than the Land and Environment Court, to documents of a kind referred to in Part 1 of Schedule 4, and

(b)  in relation to proceedings in the Land and Environment Court, to documents of a kind referred to in Part 2 of Schedule 4.

(2)  In any proceedings, a document so specified may be filed in the court on behalf of a party, by means of the ECM system, by any registered user for the proceedings who is:

(a)  a person who is authorised by rule 4.4 to sign documents on the party’s behalf, or

(b)  a person who has been directed to file the document by a person who is so authorised.

(2A)  When filed by means of the ECM system, a document that is required to be signed by a person is taken:

(a)  to have been duly signed for the purposes of rule 4.4, and

(b)  to have been duly authenticated for the purposes of clause 5 of Schedule 1 to the Electronic Transactions Act 2000,

      if the person’s name is printed where his or her signature would otherwise appear.

(3)  A document that is filed by means of the ECM system is to be given initial acceptance as soon as it is received by the court, and is to be given final acceptance as soon as it is validated by the court.

(4)  Without limiting any other ground on which it may be refused, validation is to be refused if any fee payable with respect to the filing of a document is not received by the court within 24 hours after the document’s initial acceptance.

(5)  A document that is filed by means of the ECM system is taken to have been filed when it is given final acceptance and, when given final acceptance, is taken to have been filed at the time it was given initial acceptance.

(6)  Notice of the initial and final acceptance of a document, and of the dates of those acceptances, is to be given, by means of the ECM system, to the registered user by whom the document was filed.

(7)  The date and time at which initial or final acceptance was given must be set out in the notice referred to in subrule (6).

3.4A   Written record to be kept of direction to e-file document

(1)  A person who directs that a document be filed as referred to in rule 3.4 (2) (b) must make a written record of the fact that he or she has given such a direction.

(2)  If the person by whom the direction was given is a legal practitioner, the legal practitioner is taken:

(a)  to have affirmed to the court that he or she has given the direction, and

(b)  to have undertaken to the court that, if the court so directs, he or she will produce to the court the written record referred to in subrule (1).

(2A)  If the person by whom the direction was given is a person who, pursuant to rule 4.4 (1) (b) or 4.4 (3), is authorised to sign documents on behalf of a party in proceedings in the Local Court, that person is taken:

(a)  to have affirmed to the court that he or she has given the direction, and

(b)  to have undertaken to the court that, if the court so directs, he or she will produce to the court the written record referred to in subrule (1).

(2B)  If in any proceedings in which a document has been filed as referred to in rule 3.4 (2) (b) the court directs production of the written record referred to in subrule (1), it may also stay the proceedings until the record is produced.

(3)  A written direction for the purposes of rule 3.4 (2) (b) is taken to be a written record for the purposes of this rule.

3.5   Filing of affidavits

(1)  This rule applies to an affidavit that is filed in the court by means of the ECM system.

(2)  In the case of an affidavit filed by a legal practitioner, the legal practitioner is taken:

(a)  to have affirmed to the court that he or she has possession of the original affidavit, and

(b)  to have undertaken to the court that, if the court so directs, he or she will file the original affidavit in accordance with the court’s directions.

(3)  In the case of an affidavit filed otherwise than by a legal practitioner, the original affidavit must be filed in the court:

(a)  if a practice note so requires or the court so directs, and

(b)  if so required or directed, within the time limited by the relevant practice note or direction.

(4)  Any document referred to in an affidavit that cannot be filed by means of the ECM system is taken to be an exhibit, and not an annexure, regardless of the terms of the affidavit.

3.6   Filing of wills

(1)  This rule applies to a will that is required to be filed in the court together with an application for probate of the will, or for administration of a person’s estate with the will annexed, if the application is, but the will is not, filed by means of the ECM system.

(2)  A will to which this rule applies must be filed in the court:

(a)  at least 2 days before the date of the next hearing in the proceedings in which the will is intended to be used, or

(b)  within 7 days after the date on which the application is filed by means of the ECM system, or

(c)  within such earlier time as the court may by order direct,

      whichever first occurs.

(3)  If the application is filed by a legal practitioner, the legal practitioner is taken:

(a)  to have affirmed to the court that he or she has possession of the will, and

(b)  to have undertaken to the court that, if the court so directs, he or she will file the will in accordance with the court’s directions.

3.7   Electronic issuing of a document

(1)  The court may, by means of the ECM system, issue a document to any party who is a registered user for the proceedings.

(2)  The date and time at which the document was issued must be set out in the document.

(3)  When issued by means of the ECM system, a document that is required to be signed by a person is taken to have been duly authenticated for the purposes of clause 5 of Schedule 1 to the Electronic Transactions Act 2000 if the person’s name is printed where his or her signature would otherwise appear.

3.8   Electronic service of a document

A party to any proceedings before the court may use electronic mail to serve a document on any other party to the proceedings, whether by means of the ECM system or otherwise, but only with the consent of the other party.

3.9   Use of ECM system in business conducted in the absence of the public

(1)  Any business that, pursuant to section 71 of the Civil Procedure Act 2005, may be conducted in the absence of the public may be conducted by electronic communication sent and received by means of the ECM system, as provided by clause 9 of Schedule 1 to the Electronic Transactions Act 2000.

(2)  A legal practitioner who is a registered user for any proceedings may participate in any such business:

(a)  directly (the legal practitioner sends a communication in his or her own name), or

(b)  indirectly (someone authorised by the legal practitioner sends a communication in the legal practitioner’s name).

(3)  A legal practitioner who authorises someone else to send a communication, as referred to in subrule (2) (b), is taken to have affirmed to the court that he or she has actual knowledge of the contents of the communication.

Part 4 Preparation and filing of documents

Division 1 Preparation of documents generally

4.1   Application of Division

This Division applies to and in respect of any document that is prepared by or on behalf of a person (whether or not a party) for use in proceedings.

4.2   Documents to be filed to contain certain information

(cf SCR Part 1, rule 10, Part 7, rule 2, Part 11, rule 4, Part 65, rule 1; DCR Part 5, rule 2; LCR Part 36, rule 7)

(1)  Originating process filed on behalf of a party in any proceedings must contain the following information:

(a)  the name of the court in which the proceedings are to be commenced,

(b)  if relevant, the division in which the proceedings are intended to be heard,

(b1)  if relevant, the list in which the proceedings are intended to be entered,

(c)  the venue at which the proceedings are intended to be heard,

(d)  the title of the proceedings,

(e)  the nature of the process (summons or statement of claim),

(e1)  if the party has engaged a solicitor to act as the party’s legal representative, the name of the solicitor,

(f)  if the process is filed by a person who is neither the party nor the party’s solicitor or solicitor’s agent, the capacity in which the person acts when filing the document,

(g)  the party’s address and the party’s address for service,

(h)  the address, if known, of any defendant.

Note. A solicitor named on the originating process pursuant to paragraph (e1) is thereby the solicitor on the record in relation to the party on whose behalf the process is filed.

(2)  A document filed on behalf of a person in relation to any proceedings (other than originating process) must contain the following information:

(a)  the title of the proceedings, as appearing on the originating process for the proceedings,

(b)  if relevant, the division in which the proceedings are intended to be heard,

(b1)  if relevant, the list in which the proceedings are intended to be entered,

(c)  the case number for the proceedings, as appearing on the originating process for the proceedings,

(d)  the nature of the document,

(d1)  if the person has engaged a solicitor to act as the person’s legal representative, the name of the solicitor,

(e)  if the document is filed by a person who is neither a party nor a party’s solicitor or solicitor’s agent, the capacity in which the person acts when filing the document,

(f)  (Repealed)

Note 1. In relation to paragraph (c), see rule 9.1 (4) and (5) which require cross-claims to be numbered.

Note 2. A solicitor named in the document pursuant to paragraph (d1) is thereby the solicitor on the record in relation to the party on whose behalf the document is filed.

(2A)  A notice to be filed under Division 9 of Part 78 of the Supreme Court Rules 1970, or a caveat to be filed under Division 10 of that Part, must contain the following information:

(a)  if the notice or caveat relates to proceedings already commenced:

(i)  the title of the proceedings, as appearing on the originating process for the proceedings, and

(ii)  if relevant, the division in which the proceedings are intended to be heard, and

(iii)  if relevant, the list in which the proceedings are intended to be entered,

(b)  the case number or unique identifier assigned to the notice or caveat under rule 64 or 73 of that Part, as the case may be,

(c)  the nature of the document,

(d)  if the person has engaged a solicitor to act as the person’s legal representative, the name of the solicitor,

(e)  if the notice or caveat is filed by a person who is neither a party nor a party’s solicitor or solicitor’s agent, the capacity in which the person acts when filing the notice or caveat.

(3)  The originating process and any such document may also contain the DX address, fax number or electronic mail address of the person, the person’s solicitor or the person’s solicitor’s agent.

(3A)  Court documentation within the meaning of section 347 (Restrictions on commencing proceedings without reasonable prospects of success) of the Legal Profession Act 2004 that is not required by that section to be certified must include a statement to the effect that it is not required to be so certified.

(3B)  Subrule (3A) does not apply to documents that are filed in the Land and Environment Court in relation to proceedings in Class 1, 2 or 3 of that Court’s jurisdiction.

(4)  In this rule, originating process does not include any process (such as a statement of cross-claim or cross-summons) by which a cross-claim is made.

4.2A   List of parties

(1)  In any proceedings in which there are more than 2 plaintiffs, or more than 2 defendants, the plaintiff must file, together with the originating process, a list of parties.

(2)  In any proceedings in which there is a cross-claim brought by more than 2 cross-claimants, or to which there are more than 2 cross-defendants, or against a cross-defendant who is not already a party to the proceedings, the cross-claimant must file with the statement of cross-claim or cross-summons:

(a)  if no list of parties has yet been filed in the proceedings, a list of parties, or

(b)  if a list of parties has already been filed in the proceedings, an amended list of parties.

(3)  In any proceedings in which a list of parties has been filed, any party who files a document that effects a change of parties (including a change that involves the addition of a party who is not already a party to the proceedings) must file, together with the document, an amended list of parties.

4.3   Paper and writing

(cf SCR Part 65, rule 2; DCR Part 47, rule 3; LCR Part 36, rule 4)

(1)  A document must be on standard A4 paper of durable quality, capable of receiving ink writing.

(2)  Subject to the rules:

(a)  a document may be one-sided (that is, with writing on one side of each sheet) or two-sided (that is, with writing on both sides of each sheet), but not partly one-sided and partly two-sided, and

(b)  the sheets of a document must be securely fastened:

(i)  if the document is one-sided, at the top left hand corner, or

(ii)  it the document is two-sided, along the left hand side,

      without obscuring the writing or the margin, and

(c)  a left margin of at least 25 millimetres, and a top margin of 30 millimetres, must be kept clear on each sheet of a document that bears writing, and

(d)  the pages of a document (that is, the sides of the sheets that bear writing) must be consecutively numbered.

(3)  The spacing between the lines of writing in a document must be at least 3 millimetres.

(3A)  The following information in a document must be set out in bold:

(a)  the name of the first plaintiff and first defendant in the title of the proceedings,

(b)  in the case of a cross-claim, the name of the first cross-claimant and first cross-defendant in the title to the proceedings,

(c)  in the case of a notice of motion, the name of the person affected by the orders sought,

(d)  in all cases, the name of the person specified in the filing details as the person for whom the document is filed.

Note. Rule 4.2 requires the title of proceedings to be included in the originating process or other documents filed on or behalf of a person in proceedings.

(4)  A document must bear writing that is clear, sharp, legible and permanent, must not be a carbon copy and must not bear any blotting, erasure or alteration that causes material disfigurement.

(5)  This rule does not apply to a document to the extent to which the nature of the document renders compliance impracticable.

4.4   Signing documents

(cf SCR Part 65, rule 8, Part 66, rule 9; DCR Part 47, rule 5; LCR Part 36, rule 6)

(1)  If, in any proceedings, a document is required to be signed by a party:

(a)  in the case of a party who is represented by a solicitor, the document may not be signed by the party but must instead be signed:

(i)  by the party’s solicitor, or

(ii)  by a solicitor acting as agent for the party’s solicitor, or

(iii)  by some other solicitor belonging to or employed by the same firm or organisation as the party’s solicitor or party’s solicitor’s agent, and

(b)  in the case of a party who is not represented by a solicitor, the document may be signed by the party and may also be signed by any other person who is authorised by these rules to commence proceedings on the party’s behalf.

(2)  Subrule (1) is subject to the requirements of rule 35.3.

(3)  Despite subrule (1), a document prepared on behalf of a party in proceedings in the Local Court may instead be signed:

(a)  by a commercial agent with respect to debt collection (within the meaning of the Commercial Agents and Private Inquiry Agents Act 2004), 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.

(4)  Despite subrule (1), a document setting out proposed consent orders between the parties to the relevant proceedings may instead be signed on behalf of a party by the party’s barrister.

4.5   Address for service

(cf SCR Part 9, rule 6; DCR Part 8, rule 8; LCR Part 7, rule 8)

(1)  Subject to subrule (2), a person’s address for service is to be the address of a place in New South Wales (other than a DX address):

(a)  at which documents in the proceedings may be left for the person during ordinary business hours, and

(b)  to which documents in the proceedings may be posted for the person.

(2)  The address for service of a person who has a solicitor on the record is to be:

(a)  the office of the solicitor on the record, or

(b)  if the solicitor on the record has another solicitor acting as agent, the office of the agent.

(3)  Despite subrules (1) and (2):

(a)  the address for service of a defendant who is served with originating process outside New South Wales, but in Australia, may be any address in Australia, whether inside or outside New South Wales, and

(b)  the address for service of a person who files a notice under section 19 (1) of the Mutual Recognition Act 1992 of the Commonwealth (other than a person who is represented by a solicitor) may be any address in Australia, whether inside or outside New South Wales, and

(c)  the address for service contained in an application to set aside a subpoena made under section 13 of the Evidence and Procedure (New Zealand) Act 1994 of the Commonwealth (other than a person who is represented by a solicitor) may be:

(i)  any address in Australia, whether inside or outside New South Wales, or

(ii)  any address in New Zealand, and

(d)  the address for service of a person who has entered an appearance under the Service and Execution of Process Act 1992 of the Commonwealth is to be the address for service stated in relation to the appearance.

4.6   Changing address for service

(cf SCR Part 9, rule 6; DCR Part 8, rule 8; LCR Part 7, rule 8)

(1)  A person may change his or her address for service by filing a notice of the change showing his or her new address for service and serving the notice on all other active parties.

(2)  (Repealed)

4.7   Numbers

(cf SCR Part 65, rule 4; DCR Part 47, rule 4; LCR Part 36, rule 5)

(1)  All dates, sums and other numbers in a document are to be expressed in figures, rather than words.

(2)  Despite subrule (1):

(a)  months may be expressed in words, rather than numbers, and

(b)  if dates are expressed wholly in numbers, they must be expressed in the form DD/MM/YY or DD/MM/YYYY.

4.7A   Land descriptions

(1)  Unless the court otherwise orders, in any claim or judgment for the possession of land, and in any writ of execution in relation to land, the description of the land must include:

(a)  a formal description of the land sufficient to identify the land in any document establishing title to the land, together with any appropriate reference to title, and

(b)  the postal address (if any) of the land.

(2)  Without limitation, a formal description of land referred to in subrule (1) (a) may be given:

(a)  in the case of land under the provisions of the Real Property Act 1900 that comprises the whole of the land referred to in one or more folios of the register under that Act, by reference to the relevant folio identifiers, or

(b)  in the case of any land (including land referred to in paragraph (a)), by reference to:

(i)  a registered plan (within the meaning of the Conveyancing Act 1919), or

(ii)  a formal land survey plan (within the meaning of the Surveying Act 2002), or

(iii)  a metes and bounds description prepared by a registered land surveyor (within the meaning of the Surveying Act 2002).

4.8   Separate documents for separate process

Separate process (such as a defence and a statement of cross-claim or a cross-summons, or a reply and a defence to a statement of cross-claim) are to be dealt with in separate documents.

4.9   Delegation by NSW Trustee and Guardian

(cf SCR Part 63, rule 16)

(1)  If, in connection with any proceedings involving a person under legal incapacity, a delegate under section 9 of the NSW Trustee and Guardian Act 2009 signs a document in the exercise of a function delegated under that section, the delegate must include in the document a statement:

(a)  of the delegate’s name and position, and

(b)  that the document is signed in exercise of a function delegated under that section, and

(c)  if the delegate has not previously signed such a document in the proceedings, as to whether or not he or she has an interest in the proceedings adverse to that of the person under legal incapacity.

(2)  On request by the court, the registrar or any party to the proceedings, the delegate must furnish to the person making the request a photocopy of the delegation, certified by the delegate as being a true copy.

Division 2 Filing of documents

4.10   Filing generally

(cf SCR Part 1, rule 9A)

(1)  A person may lodge a document for filing in relation to any proceedings:

(a)  by delivering it to an officer of the court in the registry, or

(b)  by sending it by post to the registry’s business address, or

(c)  by sending it to the registry’s DX address.

(2)  Any person may lodge a document with an officer of the court for the purpose of its being filed in relation to proceedings, or proposed proceedings, in the court.

(3)  Unless acceptance of the document is subsequently refused by the court or by an officer of the court, a document is taken to have been filed when it is lodged for filing.

(4)  The court may refuse to accept a document for filing whether or not an officer of the court has accepted the document for filing.

(5)  An officer of the court may refuse to accept a document for filing in the following circumstances:

(a)  in the case of originating process:

(i)  if the location specified in the document as the venue at which the proceedings are to be heard is a location at which the court does not sit, or

(ii)  if the person on whose behalf the originating process is sought to be filed is the subject of an order of the Supreme Court declaring the person to be a vexatious litigant,

(b)  in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment.

Note. See also rule 3.4 in relation to the electronic filing of documents.

4.11   Case number or other unique identifier to be assigned to originating process

(cf SCR Part 1, rule 10; DCR Part 5, rule 3; LCR Part 5, rule 3)

(1)  When originating process is accepted for filing, a case number or other unique identifier is to be assigned to the proceedings commenced by the process.

(2)  On accepting originating process for filing, an officer of the court must endorse on the process the case number or other unique identifier assigned to the proceedings commenced by the process.

(3)  In the case of originating process to commence proceedings for the grant of probate or administration, or the resealing of a foreign grant within the meaning of Part 78 of the Supreme Court Rules 1970, for an estate in respect of which:

(a)  a notice has been filed under Division 9 of that Part, or

(b)  a caveat has been filed under Division 10 of that Part,

      the case number or other unique identifier assigned to the proceedings is to be the same as that previously assigned to the notice or caveat.

4.12   Lodgment of additional copies of originating process for service

(cf SCR Part 7, rule 6; DCR Part 5, rule 3; LCR Part 5, rule 3)

(1)  When filing originating process, a person may lodge additional copies for sealing.

(2)  On receiving such copies, an officer of the court:

(a)  must seal with the court’s seal a sufficient number of copies of the process for service on the other parties, and

(b)  if the process was filed by post or by use of an authorised DX system, must forward the sealed copies to the lodging party.

(3)  This rule does not apply in relation to originating process that is filed by means of an electronic case management system referred to in Part 3.

Note. An original sealed copy of the originating process or a photocopy of a sealed copy may be served on a defendant: see rule 6.2.

4.13   Place for filing

(1)  Subject to Part 3, a document (other than originating process) that is filed in relation to any proceedings must be filed:

(a)  subject to paragraphs (b) and (c), in the same registry as that in which the originating process was filed, or

(b)  if the proceedings have been transferred to another court, in the registry for that other court, or

(c)  if the court has ordered that documents are to be filed in some other registry, in that other registry.

(2)  In this rule, originating process does not include any process (such as a statement of cross-claim or cross-summons) by which a cross-claim is made.

4.14   Filing of notices on behalf of multiple parties

(cf SCR Part 11, rule 3)

Two or more persons filing the same notice of appearance, notice of motion or other notice in the same proceedings, by the same solicitor and on the same day, may do so by a single notice.

4.15   Court’s power to deal with scandalous matter in documents

(cf SCR Part 38, rule 8, Part 65, rule 5; DCR Part 30, rule 8, Part 47, rule 7; LCR Part 25, rule 8, Part 36, rule 8)

(1)  If any matter contained in a document on the court file is scandalous, frivolous, vexatious, irrelevant or oppressive, the court may order:

(a)  that the matter to be struck out of the document, or

(b)  that the document be placed in a sealed envelope on the court file, or

(c)  that the document be taken off the court file.

(2)  A sealed envelope referred to in subrule (1) (b) may not be opened except by order of the court.

4.16   Court to be advised as to subrogation to corporation

A person, when paying a filing fee, must advise the court if the proceedings to which the fee relates are being carried on by a corporation in the name of a natural person pursuant to a right of subrogation.

Part 5 Preliminary discovery and inspection

5.1   Definitions

(cf Federal Court Rules, Order 15A, rule 1)

In this Part:

applicant means an applicant for an order under this Part.

identity or whereabouts includes the name and (as applicable) the place of residence, registered office, place of business or other whereabouts, and the occupation and sex, of the person against whom the applicant desires to bring proceedings, and also whether that person is an individual or a corporation.

5.2   Discovery to ascertain prospective defendant’s identity or whereabouts

(cf Federal Court Rules, Order 15A, rules 3, 5 and 9)

(1)  This rule applies if it appears to the court that:

(a)  the applicant, having made reasonable inquiries, is unable to sufficiently ascertain the identity or whereabouts of a person (the person concerned) for the purpose of commencing proceedings against the person, and

(b)  some person other than the applicant (the other person) may have information, or may have or have had possession of a document or thing, that tends to assist in ascertaining the identity or whereabouts of the person concerned.

(2)  The court may make either or both of the following orders against the other person:

(a)  an order that the other person attend the court to be examined as to the identity or whereabouts of the person concerned,

(b)  an order that the other person must give discovery to the applicant of all documents that are or have been in the other person’s possession and that relate to the identity or whereabouts of the person concerned.

(3)  A court that makes an order for examination under subrule (2) (a) may also make either or both of the following orders:

(a)  an order that the other person must produce to the court on the examination any document or thing that is in the other person’s possession and that relates to the identity or whereabouts of the person concerned,

(b)  an order that the examination be held before a registrar.

(4)  An order under this rule with respect to any information, document or thing held by a corporation may be addressed to any appropriate officer or former officer of the corporation.

(5)  A person need not comply with the requirements of an order under subrule (2) (a) unless conduct money has been handed or tendered to the person a reasonable time before the date on which attendance is required.

(6)  If the other person incurs expense or loss in complying with an order under subrule (2) (a), and the expense or loss exceeds the amount paid to the person under subrule (5), the court may order the applicant to pay to that person an amount sufficient to make good the expense or loss.

(7)  Unless the court orders otherwise, an application for an order under this rule:

(a)  must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of information, documents or things in respect of which the order is sought, and

(b)  must, together with a copy of the supporting affidavit, be served personally on the other person.

(8)  An application for an order under this rule is to be made:

(a)  if it is made in relation to proceedings in which the applicant is a party, by notice of motion in the proceedings, or

(b)  in any other case, by summons.

(9)  This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to claim or cross-claim against a person who is not a party to the proceedings.

5.3   Discovery of documents from prospective defendant

(cf Federal Court Rules, Order 15A, rules 6, 7 and 9)

(1)  If it appears to the court that:

(a)  the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b)  the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c)  inspection of such a document would assist the applicant to make the decision concerned,

      the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.

(2)  An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation.

(3)  Unless the court orders otherwise, an application for an order under this rule:

(a)  must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and

(b)  must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.

(4)  This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings.

5.4   Discovery of documents from other persons

(cf Federal Court Rules, Order 15A, rule 8)

(1)  The court may order that a person who is not a party to proceedings, but in respect of whom it appears to the court that the person may have or have had possession of a document that relates to any question in the proceedings, must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to that question.

(2)  Unless the court orders otherwise, an application for an order under this rule:

(a)  must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and

(b)  must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.

5.5   Discovery and inspection generally

(cf Federal Court Rules, Order 15A, rule 10)

Division 1 of Part 21 applies to and in respect of the discovery and inspection of documents the subject of an order for discovery under this Part in the same way as it applies to the discovery and inspection of documents the subject of an order for discovery under that Division.

Note. See also rule 23.8 with respect to inspection of property.

5.6   Security for costs

(cf Federal Court Rules, Order 15A, rule 11)

An order under this Part may be made subject to a condition requiring the applicant to give security for the costs of the person against whom the order is made.

5.7   Privilege

(cf Federal Court Rules, Order 15A, rule 2)

An order under this Part does not operate so as to require the person against whom it is made to produce any privileged document that the person could not be required to produce:

(a)  if the applicant had commenced proceedings against that person, or

(b)  if that person had otherwise become a party to proceedings to which the applicant is a party, or

(c)  if the person had been served with a subpoena for production of the document in proceedings to which the applicant is a party.

5.8   Costs and other expenses

(cf SCR Part 52A, rule 26; DCR Part 39A, rule 5; Federal Court Rules, Order 15A, rules 4 and 11)

(1)  On any application for an order under this Part, the court may make orders for the costs of the applicant, of the person against whom the order is made or sought and of any other party to the proceedings.

(2)  The costs in respect of which such an order may be made include:

(a)  payment of conduct money, and

(b)  payments made on account of any expense or loss in relation to the proceedings, and

(c)  the costs of making and serving any list of documents, and

(d)  the costs of producing any documents for inspection, and

(e)  the costs of otherwise complying with the requirements of any order under Division 1 of Part 21, as applying to the discovery and inspection of documents the subject of an order for discovery under this Part.

Part 6 Commencing proceedings and appearance

Division 1 General

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

6.2   How proceedings commenced

(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.

6.4   Where summons required

(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.

6.7   Determination

(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

6.9   How appearance entered

(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.

6.10   Time for appearance

(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

6.12   Relief claimed

(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.

6.12A   (Repealed)

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.

6.26   Joinder to recover costs

(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.

Division 6 Removal of parties

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

6.33   Definitions

(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.

6.34   Application of Division

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.

6.35   Originating process

(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).

6.36   Form of special case

(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.

6.38   Conduct of proceedings

(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.

6.39   Insufficient case

(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)

6.40   Inferences

(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

6.42   Definitions

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.

6.43   Filing of notices

(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.

6.44   Orders

(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.

Part 7 Parties to proceedings and representation

Division 1 General

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.

(1A)  Despite subrule (1), but subject to subrule (5), the court may order that proceedings commenced by a natural person acting on behalf of another person pursuant to a power of attorney be carried on, on behalf of that other person, by a solicitor.

(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 the 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 the Local Court) by a duly authorised officer of the corporation, and

(c)  may commence and, unless the court orders otherwise, carry on proceedings in the Local Court by a duly authorised officer or employee of the corporation.

(4A)  Despite subrules (1)–(4), any person may commence and, unless the Commission orders otherwise, carry on proceedings in the Industrial Relations Commission by an industrial agent within the meaning of the Industrial Relations Act 1996.

(4B)  Subrule (4A) does not apply to or in respect of proceedings in the Industrial Relations Commission when constituted as the Industrial Court.

(5)  Despite subrules (1)–(4), any person may commence and, unless the court orders otherwise, carry on proceedings in the Local Court:

(a)  by a commercial agent with respect to debt collection (within the meaning of the Commercial Agents and Private Inquiry Agents Act 2004), 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.

(6)  A solicitor who is a person’s solicitor on the record must hold an unrestricted practising certificate.

Note. The term solicitor on the record is defined in the Dictionary.

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 the Local Court, except by leave of the court, in any circumstances.

Division 2 Representation

7.4, 7.5   (Repealed)

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 one or more of them has represented the others pursuant to rule 7.4.

(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

7.13   Definition

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.

7.15   Tutors generally

(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 NSW Trustee and Guardian Act 2009, 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 the 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.

Division 5 Business names

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).

Division 6 Relators

7.23   Relators

(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.

7.25   Adverse parties

(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 for whom there is a solicitor on the record in any proceedings may change solicitors.

(1A)  The new solicitor on the record must hold an unrestricted practising certificate.

(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.

7.27   Removal of solicitor

(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.

7.29   Withdrawal of solicitor

(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 filed and served on the client 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.

7.30   Effect of change

(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.

Division 8 Commencement of proceedings under particular Acts

7.32   Proceedings under the Confiscation of Proceeds of Crime Act 1989

(1)  Without limiting rule 7.1 (1), an appropriate officer within the meaning of the Confiscation of Proceeds of Crime Act 1989 may commence and carry on proceedings in the Local Court by a police prosecutor in relation to an application under that Act:

(a)  for a pecuniary penalty order, forfeiture order or drug proceeds order under that Act, or

(b)  for confirmation of a freezing notice.

(2)  Once proceedings of the kind referred to in subrule (1) (a) or (b) (the original proceedings) have been commenced under the Confiscation of Proceeds of Crime Act 1989 in relation to any person, whether in the Local Court or elsewhere, any further proceedings under that Act in relation to the same person (whether or not they form part of, or relate to, the original proceedings), are to be commenced by notice of motion filed in the original proceedings.

Note. Pursuant to rule 6.4, the original proceedings must be commenced by summons.

Division 9 Court appointed referral for legal assistance

7.33   Objectives

(cf SCR Part 66A, rule 1; DCR Part 28C, rule 1)

(1)  In the interpretation of this Division, preference must be given to a construction that will promote, and be consistent with, the purpose in subrule (2) and the statements in subrules (3) and (4).

(2)  The purpose of this Division is to facilitate, where it is in the interests of the administration of justice, the provision of legal assistance to litigants who are otherwise unable to obtain assistance.

(3)  The provision of legal assistance under this Division is not intended to be a substitute for legal aid.

(4)  A referral under this Division is not an indication that the court has formed an opinion on the merits of a litigant’s case.

(5)  Nothing in this Division requires the court to make a referral, or to consider a litigant’s case for referral, under this Division.

7.34   Definitions

(cf SCR Part 66A, rule 2; DCR Part 28C, rule 2)

In this Division:

litigant, in relation to any proceedings, means:

(a)  a party to the proceedings, or

(b)  a person who has been served with a subpoena in the proceedings, or

(c)  a person who has applied to be joined in the proceedings.

Pro Bono Panel means the list of barristers and solicitors referred to in rule 7.35.

registrar means:

(a)  in relation to the Supreme Court, the principal registrar of that Court or any registrar of that Court nominated by the principal registrar, and

(b)  in relation to the Land and Environment Court, the registrar of that Court, and

(c)  in relation to the District Court when sitting at a proclaimed place (within the meaning of the District Court Act 1973), the registrar of the District Court for that place, and

(d)  in relation to the Local Court, the registrar for that Local Court.

scheme means the scheme for the provision of legal assistance to litigants under this Division.

7.35   Pro Bono Panel

(cf SCR Part 66A, rule 3; DCR Part 28C, rule 3)

The registrar may maintain a list of persons:

(a)  who are barristers or solicitors, and

(b)  who have agreed to participate in the scheme in relation to that court.

7.36   Referral to a barrister or solicitor

(cf SCR Part 66A, rule 4; DCR Part 28C, rule 4)

(1)  If satisfied that it is in the interests of the administration of justice, the court may, by order, refer a litigant to the registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance.

(2)  For the purposes of subrule (1), the court may take into account:

(a)  the means of the litigant, and

(b)  the capacity of the litigant to obtain legal assistance outside the scheme, and

(c)  the nature and complexity of the proceedings, and

(d)  any other matter that the court considers appropriate.

(2A)  The court may not refer a litigant for assistance under this rule if the litigant has obtained assistance under a previous referral at any time during the immediately preceding period of 3 years unless the court is satisfied that there are special reasons that justify a further referral.

(3)  The power to refer may be exercised in the absence of the public and without any attendance by or on behalf of any person.

(4)  If a litigant is referred for assistance under this rule, the registrar must attempt to arrange for legal assistance to be provided to the litigant by a barrister or solicitor on the Pro Bono Panel.

(4A)  If the registrar is unable to arrange legal assistance for a litigant who is referred under this rule within 28 days after the litigant’s referral, the registrar may make an order terminating the litigant’s referral.

(5)  The registrar may refer a litigant to a particular barrister or solicitor only if the barrister or solicitor has agreed to accept the referral.

(6)  A referral to a barrister does not prevent a referral also being made to a solicitor and a referral to a solicitor does not prevent a referral also being made to a barrister.

7.37   Kind of assistance

(cf SCR Part 66A, rule 5; DCR Part 28C, rule 5)

A referral may be made for the following kinds of assistance:

(a)  advice in relation to the proceedings,

(b)  representation on directions hearing, interlocutory or final hearing, arbitration or mediation,

(c)  drafting or settling of documents to be filed or used in the proceedings,

(d)  representation generally in the conduct of the proceedings or of part of the proceedings.

7.38   Provision of assistance by barrister or solicitor

(cf SCR Part 66A, rule 6; DCR Part 28C, rule 6)

Subject to rule 7.39, if a barrister or solicitor agrees to accept a referral, he or she must provide assistance to the litigant in accordance with the referral.

7.39   Cessation of assistance

(cf SCR Part 66A, rule 7; DCR Part 28C, rule 7)

(1)  A barrister or solicitor who has agreed to accept a referral may cease to provide legal assistance to the litigant only:

(a)  in the circumstances set out in any practice rules governing professional conduct that apply to the barrister or solicitor, or

(b)  with the written agreement of the litigant, or

(c)  with the leave of the registrar.

(2)  If a barrister or solicitor ceases to provide legal assistance to a litigant, the barrister or solicitor must inform the registrar in writing within 7 days of so ceasing.

(3)  If a barrister or solicitor ceases to provide legal assistance to a litigant, the referral of the litigant for legal assistance in the proceedings concerned is taken, unless the court otherwise orders, to have been terminated on that cessation.

7.40   Application for leave

(cf SCR Part 66A, rule 8; DCR Part 28C, rule 8)

(1)  An application by a barrister or solicitor to the registrar for leave to cease to provide legal assistance must be in writing and must briefly state the reasons for the application.

(2)  A copy of the application for leave must be served on the litigant.

(3)  An application for leave may be heard by the registrar in the absence of the public and without any attendance by or on behalf of any person.

(4)  In deciding whether to grant leave under this rule, the registrar may consider any of the following matters:

(a)  whether the barrister or solicitor would be likely to be able to cease to provide legal assistance to the litigant under any practice rules governing professional conduct that apply to the barrister or solicitor,

(b)  any conflict of interest that the barrister or solicitor may have,

(c)  whether there is a substantial disagreement between the barrister or solicitor and the litigant in relation to the conduct of the litigation,

(d)  any view of the barrister or solicitor:

(i)  that the litigant’s case is not well founded in fact or law, or

(ii)  that the litigant’s prosecution of the litigation is an abuse of process,

(e)  whether the barrister or solicitor lacks the time to provide adequate legal assistance to the litigant because of other professional commitments,

(f)  whether the litigant has refused or failed to pay any disbursements requested under rule 7.42,

(g)  whether it is unfair to the barrister or solicitor to require him or her to continue to provide legal assistance under the scheme,

(h)  any other matter that the registrar considers relevant.

(5)  An application for leave under this rule and any related correspondence:

(a)  is confidential, and

(b)  is not part of the proceedings in relation to which the referral was made, and

(c)  does not form part of the court file in relation to those proceedings.

7.41   Costs

(cf SCR Part 66A, rule 9; DCR Part 28C, rule 9)

(1)  Subject to subrules (2) and (3) and rule 7.42, a barrister or solicitor who provides legal assistance to a litigant under the scheme must not seek or recover any costs for the legal assistance.

(2)  If an order for costs is made in favour of a litigant who is assisted under the scheme, the barrister or solicitor who has provided the legal assistance is entitled to recover the amount of costs that another person is required to pay under the order.

(3)  A barrister or solicitor must account to the litigant for any money received by the barrister or solicitor in respect of any disbursements that have been paid by the litigant.

7.42   Disbursements

(cf SCR Part 66A, rule 10; DCR Part 28C, rule 10)

A barrister or solicitor who provides legal assistance to a litigant under the scheme may request the litigant to pay any disbursements that have been, or may reasonably be, incurred by the barrister or solicitor on the litigant’s behalf in connection with the legal assistance.

Part 8 Venue

8.1   Venue at which proceedings to be heard

(cf Act No 9 1973, section 4; DCR Part 2A, rule 1; LCR Part 1, rule 3, Part 3, rule 2)

(1)  Unless the court orders otherwise, the venue at which proceedings are to be heard is the venue specified by the plaintiff in the originating process.

(2)  The venue so specified must be a venue at which the court sits.

8.2   Change of venue generally

(cf Act No 9 1973, section 40; DCR Part 2A, rule 4)

(1)  If it appears to the court:

(a)  that a fair or unprejudiced trial of a question arising or likely to arise in or in connection with any proceedings cannot otherwise be had, or

(b)  for any other reason it is appropriate for the venue of any proceedings to be changed,

      the court may, subject to this Part, make an order changing the venue of the proceedings.

(2)  The judicial officer before whom proceedings are being heard by the court may direct that proceedings commenced at one location be continued at another location at which he or she is authorised to hear those proceedings.

8.3   Part not to apply to orders for examination

This Part does not apply to the examination of a judgment debtor under an order for examination.

Part 9 Cross-claims

9.1   Making of cross-claim

(cf SCR Part 6, rule 10; DCR Part 20, rule 10; LCR Part 18, rule 1)

(1)  A party (the cross-claimant) may make a cross-claim:

(a)  in proceedings commenced by statement of claim, within the time limited for the party to file a defence, or

(b)  in proceedings commenced by summons, before the return day specified in the summons,

      or within such further time as the court may allow.

(2)  A cross-claim is to be made:

(a)  by statement of cross-claim, in the case of a cross-claim in proceedings commenced by statement of claim, or

(b)  by cross-summons, in the case of a cross-claim in proceedings commenced by summons.

(3)  Subject to this Part, these rules apply to a statement of cross-claim and cross-summons in the same way as they apply to a statement of claim and summons, respectively.

(4)  In any proceedings, each cross-claim is to be numbered (“first cross-claim”, “second cross-claim” and so on) in the order in which the cross-claims are filed.

(5)  For the purposes of rule 4.2 (2) (d), the identification of a document as a cross-claim must include the number given to the cross-claim under this rule.

9.2   Existing parties need not enter separate appearance

A party against whom a cross-claim is made (the cross-defendant) is not required to enter an appearance if he or she:

(a)  is a party to the proceedings in which the cross-claim is made, and

(b)  has entered an appearance in those proceedings.

9.3   Cross-claimant may rely on previous pleadings

(cf SCR Part 6, rule 11; DCR Part 20, rule 11; LCR Part 18, rule 1)

A cross-claimant may, in the cross-claim, plead all or any of the facts on which he or she relies by reference to the previous pleadings in the proceedings from which the cross-claim arises.

9.4   Defence

The cross-defendant must include in his or her defence to a statement of cross-claim any grounds on which he or she disputes the claim made by the cross-claimant.

9.5   Default of cross-defendant to cross-claim

(cf SCR Part 6, rule 7; DCR Part 20, rule 7)

If a cross-defendant does not file a defence to a statement of cross-claim in accordance with these rules or an order of the court:

(a)  any judgment (including summary judgment, judgment by default or judgment by consent) on any claim, question or issue in the proceedings, so far as it is relevant to the cross-claim, and

(b)  any decision (including any decision by consent) on any claim, question or issue in the proceedings, so far as it is relevant,

is binding, as between the parties to the cross-claim, unless the court orders otherwise.

9.6   Service on active parties

(cf SCR Part 6, rule 5; DCR Part 20, rule 5)

(1)  If a cross-defendant is an active party, personal service of a statement of cross-claim or cross-summons on that party is not required.

(2)  Rule 10.16 (Service by filing) does not apply to service of a statement of cross-claim or cross-summons.

9.7   Service on new parties

(cf SCR Part 6, rule 5; DCR Part 20, rule 5; LCR Part 18, rule 1)

(1)  This rule applies to the service of a statement of cross-claim or cross-summons on a person who is not already a party to the proceedings from which the cross-claim arises.

(2)  When serving the statement of cross-claim or cross-summons, the cross-claimant must serve on the cross-defendant both the originating process in the proceedings from which the cross-claim arises and such of the following documents as have been filed by or served on the cross-claimant:

(a)  in proceedings commenced by statement of claim or in which a statement of claim has been filed, any other pleadings,

(b)  in proceedings commenced by summons, any other cross-summonses,

(c)  any notices of motion not finally disposed of,

(d)  any affidavits, other than affidavits that are not relevant to the questions arising on the cross-claim,

(e)  any other documents that have been served by the plaintiff on the defendant, or by the defendant on the plaintiff, and are intended to be relied on,

(f)  any amendments to any of the documents referred to in paragraphs (a)–(e).

(3)  Service of a statement of cross-claim or cross-summons must be effected in accordance with the provisions of these rules with respect to service of originating process.

9.8   Directions

(cf SCR Part 6, rule 4; DCR Part 20, rule 4; LCR Part 18, rule 4)

The court, at any stage of the proceedings:

(a)  may order that any cross-claim, or any question in or arising on any cross-claim, is to be separately tried, and

(b)  may direct generally the extent to which the usual procedures at a trial or hearing are to be modified because of the joinder of the cross-defendant.

9.9   Proceedings to continue together

(cf SCR Part 6, rule 6 (1); DCR Part 20, rule 6 (1); LCR Part 18, rule 3 (1))

Unless the court orders otherwise, proceedings on a cross-claim are to be carried on together with the proceedings from which the cross-claim arises.

9.10   Cross-claim may be separately prosecuted

(cf SCR Part 6, rule 8; DCR Part 20, rule 8; LCR Part 18, rule 3 (5))

(1)  A cross-claim may proceed even if:

(a)  judgment has been entered on the originating process in the proceedings from which the cross-claim arises or any other cross-claim in the proceedings, or

(b)  the proceedings on the originating process or any other cross-claim have been stayed, dismissed, withdrawn or discontinued.

(2)  Proceedings on the originating process in the proceedings from which the cross-claim arises may proceed even if:

(a)  judgment has been entered on any cross-claim in the proceedings, or

(b)  the proceedings on any such cross-claim have been stayed, dismissed, withdrawn or discontinued.

9.11   Contribution or indemnity

(cf SCR Part 6, rule 9; DCR Part 20, rule 9; LCR Part 19, rule 1)

(1)  If a defendant makes a cross-claim for contribution or indemnity in respect of a claim made against the defendant in the proceedings, judgment on the cross-claim:

(a)  is not to be entered except by leave of the court, and

(b)  is not to be enforced until any judgment in the proceedings against the defendant has been satisfied.

(2)  If a cross-claim in any proceedings includes a claim for contribution under section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 in respect of a claim made in the proceedings against the party by whom it is filed, a defence to the cross-claim, or subsequent pleadings on the cross-claim, may not be filed unless the court so directs.

Part 10 Service of documents generally

Division 1 Service generally

10.1   Service of filed documents

(cf SCR Part 15, rule 28)

(1)  Unless the court orders otherwise, a party that files a document must as soon as practicable serve copies of the document on each other active party.

(2)  In the case of proceedings in the Local Court, an originating process may, and a defence must, be served on the other parties, on behalf of the party by whom it was filed, by an officer of the Local Court.

Note. See rules 10.7 and 10.8 as to how service is to be effected by a court.

(3)  Despite subrule (2), a defence that is filed in proceedings in the Local Court by means of the ECM system (within the meaning of Part 3) must be served on the other parties by the party that filed the defence rather than by an officer of the Local Court.

10.2   Service of affidavits

(cf SCR Part 38, rule 7; DCR Part 30, rule 7; LCR Part 25, rule 7)

(1)  A party intending to use an affidavit that has not been filed must serve it on each other interested party not later than a reasonable time before the occasion for using it arises.

(2)  A party who fails to serve an affidavit as required by subrule (1) may not use the affidavit except by leave of the court.

10.3   Service of originating process in Australia

(cf SCR Part 10, rule 2B)

(1)  This rule applies to proceedings in the Supreme Court.

(2)  Subject to this Part, originating process may be served anywhere in Australia, whether in New South Wales or elsewhere.

(3)  An originating process for service in Australia, but outside New South Wales, must bear a statement either that the plaintiff intends to proceed under the Service and Execution of Process Act 1992 of the Commonwealth or that the plaintiff intends to proceed under the Uniform Civil Procedure Rules 2005.

(4)  The plaintiff may proceed otherwise than in accordance with the intention stated under subrule (3), but only with the leave of the court.

10.4   Operation of Service and Execution of Process Act 1992 of the Commonwealth

(cf SCR Part 9, rule 1A)

This Part does not limit the operation of the Service and Execution of Process Act 1992 of the Commonwealth or any other law of the Commonwealth.

Division 2 Manner of service

10.5   The various methods of service

(cf SCR Part 9, rules 3 and 4; DCR Part 8, rules 3, 9 and 12; LCR Part 7, rules 3, 9 and 12)

(1)  Subject to these rules, a document may be served on a person:

(a)  by means of personal service, or

(b)  by posting a copy of the document, addressed to the person:

(i)  to the person’s address for service, or

(ii)  if the person is not an active party, to the person’s business or residential address, or

(c)  by leaving a copy of the document, addressed to the person:

(i)  at the person’s address for service, or

(ii)  if the person is not an active party, at the person’s business or residential address,

      with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, or

(d)  in the case of service on a corporation, by serving the document on the corporation in any manner in which service of such a document may, by law, be served on the corporation.

(2)  In the case of a person having an address for service that is a solicitor’s office address, service of a document on the person may also be effected:

(a)  if the notice advising the address for service includes a DX address, by leaving a copy of the document, addressed to the solicitor, in that DX box at that address or in another DX box for transmission to that DX box, or

(b)  if the notice advising the address for service includes a fax number, by faxing a copy of the document to that number, or

(c)  if the notice advising the address for service includes an electronic service address, by transmitting an electronic copy of the document to that address.

(3)  Unless the contrary is proved, the time at which a document is taken to have been served is:

(a)  in the case of a document that is left in a DX box in accordance with subrule (2) (a), at the end of the second day following the day on which the copy is so left, or

(b)  in the case of a copy of a document that is faxed in accordance with subrule (2) (b), at the end of the first day following the day on which the copy is so faxed.

Note. See clause 13 of Schedule 1 to the Electronic Transactions Act 2000 as to when an electronic copy of a document is taken to have been delivered to an electronic mail address. See also Division 3 of this Part as to how personal service is to be effected.

10.6   Service in accordance with agreement between parties

(cf SCR Part 9, rule 9; DCR Part 8, rule 15; LCR Part 7, rule 15)

(1)  In any proceedings, any document (including originating process) may be served by one party on another (whether in New South Wales or elsewhere) in accordance with any agreement, acknowledgment or undertaking by which the party to be served is bound.

(1A)  In relation to the service of an originating process in proceedings on a claim for possession of land, the agreement, acknowledgment or undertaking referred to in subrule (1) must be made after the originating process is filed but before it is served.

(2)  Service in accordance with subrule (1) is taken for all purposes (including for the purposes of any rule requiring personal service) to constitute sufficient service.

10.7   Notice given or served by court

(cf SCR Part 9, rule 14)

Subject to any order of the court, any notice or other document that is required to be given to or served on any party by the court, or by any officer of the court, is taken to have been given or served if served in any manner in which a document not requiring personal service may be served under this Part.

10.8   Service of defence by court

(cf LCR Part 9, rule 3)

(1)  This rule applies to proceedings in the Local Court.

(2)  When filing a defence, whether in person, by post or by use of an authorised DX system, a party must lodge additional copies of the defence for service on each of the other active parties.

(3)  On receiving such copies, an officer of the court:

(a)  must mark each copy with the date of acceptance of the document, and

(b)  must return one copy to the party by which it was filed, and

(c)  must cause the remaining copies to be served on each of the other active parties.

10.9   Service of process on defendant operating under unregistered business name

(cf SCR Part 64, rule 3; DCR Part 46, rule 2; LCR Part 35, rule 2)

(1)  This rule applies to any 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.

(2)  For the purposes of any such proceedings, any document may be served on the defendant, whether sued in his or her own name or under the unregistered business name:

(a)  by leaving it with a person who is apparently engaged in the business, and apparently of or above the age of 16 years, at any place at which business is carried on under that name, or

(b)  by sending it by post, addressed to the defendant, to any place at which business is carried on under that name,

      whether or not the place concerned is within New South Wales.

(3)  For the purposes of any such proceedings:

(a)  service of a document in accordance with subrule (2) is taken to constitute personal service, and

(b)  the place at which the document is left, or to which the document is sent by post, is taken to be the place of service of the document, and

(c)  in the case of a document sent by post, the document is taken to have been served at the end of 7 days after the day on which it was sent.

(4)  This rule does not limit any other law with respect to the service of documents.

10.10   Service of process on defendant operating under registered business name

(cf SCR Part 64, rule 3)

(1)  This rule applies to any proceedings against a person carrying on business under a registered business name in respect of anything done or omitted to be done by the person in the course of, or in relation to, business carried on under that name.

(2)  For the purposes of any such proceedings, any document may be served on the defendant, whether sued in his or her own name or under the registered business name:

(a)  by leaving it with a person who is apparently engaged in the business, and apparently of or above the age of 16 years, at any place at which business is carried on under that name, or

(b)  by sending it by post, addressed to the defendant:

(i)  to any place at which business is carried on under that name, or

(ii)  to the address for service of any person in whose name the business name is registered under the Business Names Act 2002,

      whether or not the place concerned is within New South Wales.

(3)  For the purposes of any such proceedings:

(a)  service of a document in accordance with subrule (2) is taken to constitute personal service, and

(b)  the place at which the document is left, or to which the document is sent by post, is taken to be the place of service of the document, and

(c)  in the case of a document sent by post, the document is taken to have been served at the end of 7 days after the day on which it was sent.

(4)  This rule does not limit any other law with respect to the service of documents.

10.11   Service of process on partner in limited partnership

(cf SCR Part 64, rule 3A)

(1)  This rule applies to any proceedings against a partner in a limited partnership (within the meaning of Part 3 of the Partnership Act 1892) in respect of anything done or omitted to be done by any person in the course of, or in relation to, a business carried on by the partnership.

(2)  For the purposes of any such proceedings, any document may be served on the defendant, whether sued in his or her own name or under the firm-name of the partnership:

(a)  by leaving it with a person who is apparently engaged in the business, and apparently of or above the age of 16 years, at the registered office of the partnership, or

(b)  by sending it by post, addressed to the firm-name of the partnership, to the registered office of the partnership.

(3)  For the purposes of any such proceedings:

(a)  service of a document in accordance with subrule (2) is taken to constitute personal service, and

(b)  the place at which the document is left as referred to in subrule (2) (a), or to which the document is sent as referred to in subrule (2) (b), is taken to be the place of service of the document, and

(c)  in the case of a document sent as referred to in subrule (2) (b), the document is taken to have been served at the end of 7 days after the day on which it was sent.

(4)  This rule does not limit any other law with respect to the service of documents.

10.12   Service of process on person under legal incapacity

(cf SCR Part 63, rule 15)

(1)  This rule applies to any proceedings in which a document is required to be served personally on a person under legal incapacity.

(2)  Personal service on a person under legal incapacity may not be effected otherwise than in accordance with this rule.

(3)  If the person under legal incapacity has a tutor in the proceedings, the document may be served on the tutor.

(4)  The document may be served on any person (including the person under legal incapacity) whom the court may, before or after service, approve.

(5)  If the person to be served is a minor and has no tutor in the proceedings, the document may be served:

(a)  on the person, but only if the person is aged 16 years or more, or

(b)  on a parent or guardian of the person, or

(c)  if the person has no parent or guardian, on a person with whom he or she resides or in whose care he or she is.

(6)  If the person to be served is a protected person (within the meaning of the NSW Trustee and Guardian Act 2009) and has no tutor in the proceedings, the document may be served:

(a)  if the person has a manager in respect of his or her estate, on the manager, or

(b)  if the person does not have a manager, on a person with whom he or she resides or in whose care he or she is.

(7)  Subject to subrule (8), a document served pursuant to this rule must be served in the manner required by these rules in relation to documents of the same kind.

(8)  In addition to any other service required by these rules:

(a)  a judgment or order requiring a person under legal incapacity to do, or refrain from doing, any act, and

(b)  a notice of motion for the committal of a person under legal incapacity, and

(c)  a subpoena addressed to a person under legal incapacity,

      must be served personally on the person.

(9)  Subrule (8) does not apply to an order for interrogatories or for discovery or inspection of documents.

10.13   Acceptance of service by solicitor

(SCR Part 9, rule 7; DCR Part 8, rules 6 and 7; LCR Part 7, rules 6 and 7)

If a solicitor notes on a copy of:

(a)  any originating process, or

(b)  any other document required or permitted to be served in any proceedings, but not required to be personally served,

that he or she accepts service of the document on behalf of any person, the document is taken to have been duly served on that person on the date on which the note is made or on such earlier date of service as may be proved.

10.14   Substituted and informal service generally

(cf SCR Part 9, rules 10 and 11; DCR Part 8, rules 5 and 16; LCR Part 7, rules 5 and 16)

(1)  If a document that is required or permitted to be served on a person in connection with any proceedings:

(a)  cannot practicably be served on the person, or

(b)  cannot practicably be served on the person in the manner provided by law,

      the court may, by order, direct that, instead of service, such steps be taken as are specified in the order for the purpose of bringing the document to the notice of the person concerned.

(2)  An order under this rule may direct that the document be taken to have been served on the person concerned on the happening of a specified event or on the expiry of a specified time.

(3)  If steps have been taken, otherwise than under an order under this rule, for the purpose of bringing the document to the notice of the person concerned, the court may, by order, direct that the document be taken to have been served on that person on a date specified in the order.

(4)  Service in accordance with this rule is taken to constitute personal service.

10.15   Substituted and informal service of originating process in proceedings for possession of land

(cf SCR Part 9, rule 5)

(1)  This rule applies to originating process that is required to be served on a defendant in connection with proceedings for the possession of land but that cannot be served on the defendant without undue delay or expense.

(2)  The court may order that the plaintiff may serve the originating process on the defendant by affixing a copy of the originating process to a conspicuous part of the land.

(3)  An order under subrule (2) may direct that the originating process be taken to have been served on the defendant on the expiry of a specified time.

(4)  If a copy of the originating process has been affixed to a conspicuous part of the land, otherwise than under an order under subrule (2), the court may order that the originating process be taken to have been served on the defendant on a date specified in the order.

(5)  A party may apply for an order under this rule without filing or serving notice of motion.

(5A)  An application for an order under this rule must be supported by an affidavit by the applicant that includes:

(a)  a statement as to the applicant’s knowledge of the defendant’s whereabouts, and

(b)  a statement as to any communications that have occurred between the applicant and the defendant since the cause of action in the proceedings arose (including any communications by telephone, fax or electronic mail).

(6)  Service in accordance with this rule is taken to constitute personal service.

10.16   Service by filing

(cf SCR Part 9, rule 12)

(1)  If in any proceedings any document is required or permitted to be served on:

(a)  a person who is in default of appearance, or

(b)  a person who has entered an appearance but is not an active party in the proceedings,

      the filing of the document is taken to have the same effect as service of the document on the person unless the court orders otherwise.

(2)  This rule does not apply to any document that is required to be served personally.

10.17   Service of injunctions

(cf SCR Part 9, rule 15)

If the court grants an interlocutory injunction, the party may serve notice of the injunction by letter signed by or on behalf of the registrar.

10.18   Service at address for service in other court or tribunal

(cf SCR Part 9, rule 8)

If:

(a)  a decision is given or a case is stated in proceedings before any judicial officer or other person (the proceedings below), and

(b)  a party to the proceedings below (the subject party) has an address for service in New South Wales for the purposes of those proceedings at the office of a solicitor (the address below), and

(c)  proceedings (not being proceedings in relation to punishment for contempt) arising out of the proceedings below are commenced in the court (the new proceedings), and

(d)  the plaintiff in the new proceedings has not received notice that the address below has ceased to be applicable,

documents, including the originating process, may be served on the subject party at the address below, until the subject party has an address for service in the new proceedings, as if the address below were the subject party’s address for service in the new proceedings.

10.19   Waiver of objection to service

(cf DCR Part 8, rule 5 (3))

A party who files a document in reply to a document alleged to have been served on that party is taken to have waived any objection to the fact or manner of service unless he or she files and serves notice of the objection together with the document so filed.

Division 3 Personal service

10.20   Personal service required only in certain circumstances

(cf SCR Part 9, rules 1 and 2; DCR Part 8, rule 3; LCR Part 7, rules 3 and 20)

(1)  Any document required or permitted to be served on a person in any proceedings may be personally served, but need not be personally served unless these rules so require or the court so orders.

(2)  Except as otherwise provided by these rules:

(a)  any originating process, and any order for examination or garnishee order, in proceedings in the Supreme Court, the Industrial Relations Commission (including the Commission when constituted as the Industrial Court), the Land and Environment Court, the District Court or the Dust Diseases Tribunal must be personally served, and

(b)  any originating process in the Local Court must be served in one of the following ways:

(i)  it may be personally served on the defendant,

(ii)  it may be left, addressed to the defendant, at the defendant’s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address,

(iii)  if served by the Local Court, it may be sent by post, addressed to the defendant, to the defendant’s business or residential address in an envelope marked with a return address (being the address of the Local Court but not so identified), and

(c)  any order for examination, garnishee order or subpoena for attendance in proceedings in the Local Court must be served in one of the following ways:

(i)  it may be personally served on the person to whom it is directed,

(ii)  it may be left, addressed to the person to whom it is directed, at that person’s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, and

(d)  any subpoena for production in proceedings in the District Court or the Local Court must be served in one of the following ways:

(i)  it may be served personally on the person to whom it is directed,

(ii)  it may be left, addressed to the person to whom it is directed, at that person’s business or residential address, with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address,

(iii)  it may be sent by post, addressed to the person to whom it is directed, to the person’s business or residential address in an envelope marked with the return address of the party at whose request the subpoena was issued.

Note. As to service by post, see section 76 of the Interpretation Act 1987.

(3)  If an envelope, posted as referred to in subrule (2) (b) (iii), is returned to the court by the postal authority as having not been delivered to the addressee:

(a)  service of the document contained in the envelope is taken not to have been effected, and

(b)  any judgment given or entered on the basis of that service is to be set aside,

      and the registrar must so advise the party by whom or on whose behalf it was posted.

(4)  Service of a subpoena in accordance with subrule (2) (c) (ii) or (d) (ii) or (iii) is taken to be personal service for the purposes of rule 33.5 (1).

(5)  Unless an earlier date is proved, a defendant who enters an appearance is taken to have been personally served with the relevant originating process on the date on which appearance was entered.

10.21   How personal service effected generally

(cf SCR Part 9, rule 3; DCR Part 8, rules 3 and 14; LCR Part 7, rules 3 and 14)

(1)  Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document.

(2)  If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person.

(3)  Service in accordance with subrule (2) is taken to constitute personal service.

10.22   Personal service on corporation

(cf SCR Part 9, rule 3; DCR Part 8, rule 12; LCR Part 7, rule 12)

Personal service of a document on a corporation is effected:

(a)  by personally serving the document on a principal officer of the corporation, or

(b)  by serving the document on the corporation in any other manner in which service of such a document may, by law, be served on the corporation.

10.23   Personal service on Crown Solicitor

(cf SCR Part 9, rule 3; DCR Part 8, rule 7A)

For the purposes of section 6 of the Crown Proceedings Act 1988, personal service of a document on the Crown Solicitor may be duly effected by leaving the document at the office of the Crown Solicitor with a person who is apparently a member of the Crown Solicitor’s staff.

10.24   Personal service on judicial officers

(cf SCR Part 9, rules 7A and 7B)

(1)  In proceedings against a judicial officer, personal service of any document may be effected by leaving a copy of the document:

(a)  in the case of a judicial officer of the Supreme Court or District Court, at the office of the principal registrar of that Court, or

(b)  in any other case, at the office of the senior judicial officer of the court at which the decision or determination was made,

      addressed, in either case, to the judicial officer on whom it is to be served.

(2)  In subrule (1), judicial officer includes an Assessor within the meaning of the Local Court Act 2007.

10.25   Personal service on inmate of correctional centre

(cf DCR Part 8, rule 11; LCR Part 7, rule 11)

(1)  Personal service of a document on an inmate (within the meaning of the Crimes (Administration of Sentences) Act 1999) is effected by leaving a copy of the document, at the correctional centre at which the inmate is held in custody, with the general manager of the correctional centre.

(2)  Personal service of a document on a detainee (within the meaning of the Children (Detention Centres) Act 1987) is effected by leaving a copy of the document, at the detention centre at which the detainee is held in custody, with the centre manager of the detention centre.

10.26   Personal service on person who “keeps house”

(cf DCR Part 8, rule 13; LCR Part 7, rule 13)

(1)  If a person keeps house (that is, remains in premises to which a person attempting service cannot lawfully or practicably obtain access), the person attempting service may serve the document on the person keeping house:

(a)  by doing one of the following:

(i)  placing the document in the mail-box for the premises,

(ii)  affixing the document to an outer door of the premises,

(iii)  if the person attempting service cannot lawfully or practicably obtain access to any such mail-box or door, affixing the document to some part of the premises, or to some fence or wall surrounding the premises, as near as practicable to the principal door or entrance to the premises, and

(b)  within 24 hours after doing so, by posting a notice to the premises, addressed to the person keeping house, informing the person of the fact that the document has been so placed or affixed.

(2)  Service in accordance with subrule (1) is taken to constitute personal service.

10.27   Proof of identity

(cf SCR Part 9, rule 4A; DCR Part 8, rule 17; LCR Part 7, rule 17)

For the purposes of proof of service, evidence of a statement by a person of his or her identity or of his or her holding some office is evidence of his or her identity or that he or she holds that office, as the case may be.

Division 4 Service under particular Acts

10.28   Service under the Confiscation of Proceeds of Crime Act 1989

In any proceedings in which notice under the Confiscation of Proceeds of Crime Act 1989 is required to be given in accordance with rules of court, the notice is to be given by filing it, and serving it on:

(a)  all active parties, and

(b)  all other persons to whom it is required by that Act to be given,

as soon as practicable after it has been filed.

10.29   Service under the Industrial Relations Act 1996

In any proceedings under the Industrial Relations Act 1996 in which a document is required to be served on an industrial organisation within the meaning of that Act, service of the document must be effected:

(a)  by serving it personally on the organisation’s secretary or principal officer, or

(b)  by leaving it at the organisation’s registered office with a person who is apparently employed by the organisation, or

(c)  by sending it by post, addressed to the organisation’s secretary or principal officer:

(i)  to the organisation’s address for service in the proceedings, or

(ii)  if it has no address for service in the proceedings, to the organisation’s registered office.

Part 11 Service of documents outside Australia and service of external process

Division 1 General

11.1   Application of Part

(1)  This Part applies to proceedings in the Supreme Court.

(2)  For the purposes of this Part, a reference to Australia includes a reference to the external Territories.

11.2   Cases for service of originating process

(cf SCR Part 10, rule 1A)

(1)  Originating process may be served outside Australia in the circumstances referred to in Schedule 6.

(2)  This rule extends to originating process to be served outside Australia in accordance with the Hague Convention.

11.3   Notice to the defendant served outside Australia

(cf SCR Part 10, rule 2A)

(1)  If originating process is intended to be served on a defendant outside Australia, a notice to that effect must be included in the originating process.

(2)  This rule does not apply to originating process that is intended to be served on a defendant outside Australia in accordance with the Hague Convention.

Note. Division 2 of Part 11A deals with the service of local judicial documents in a country (other than Australia) that is a party to the Hague Convention.

11.4   Leave for plaintiff to proceed where no appearance by defendant

(cf SCR Part 10, rule 2)

(1)  If originating process is served on a defendant outside Australia, and the defendant does not enter an appearance, the plaintiff may not proceed against the defendant except by leave of the Supreme Court.

(2)  A motion for leave under subrule (1) may be made without serving notice of motion on the defendant.

Note. Rule 11.8 provides for the interaction between this Division and Part 11A (which deals with service of judicial documents under the Hague Convention). See Division 3 of Part 11A in relation to default judgment in proceedings in the Supreme Court after service overseas of a local judicial document.

11.5   Service of documents other than originating process

(cf SCR Part 10, rule 3)

Service outside Australia of a document other than originating process is valid only if it is effected pursuant to the leave of the Supreme Court or is subsequently confirmed by the Supreme Court.

11.6   Mode of service

(cf SCR Part 10, rule 5)

A document to be served outside Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.

11.7   Setting aside originating process served outside Australia

(cf SCR Part 10, rule 6A)

(1)  The Supreme Court may make an order of a kind referred to in rule 12.11 (Setting aside originating process etc) on application by a defendant on whom originating process is served outside Australia.

(2)  Without limiting subrule (1), the Supreme Court may make an order under this rule:

(a)  on the ground that the service of the originating process is not authorised by these rules, or

(b)  on the ground that the court is an inappropriate forum for the trial of the proceedings.

11.8   Operation of Commonwealth laws and Hague Convention

(cf SCR Part 10, rule 6)

This Part does not require the leave of the Supreme Court for any service or other thing that may be effected or done under any law of the Commonwealth, the Hague Convention or Part 11A.

Note. Part 11A deals with service of judicial documents under the Hague Convention.

Division 2 Service outside Australia in accordance with Attorney General’s arrangements

11.8A   Application of Division

This Division does not apply to any document that is intended to be served on a person outside Australia in accordance with the Hague Convention.

Note. Division 2 of Part 11A deals with the service of local judicial documents in a country (other than Australia) that is a party to the Hague Convention.

11.9   Definitions

(cf SCR Part 10, rule 7)

In this Division:

applicant means the person by whom an application is made under rule 11.10 (1) (a).

participating country means:

(a)  any country that is a signatory to an international convention with respect to the service of documents in that country to which Australia is a signatory, or

(b)  in relation to particular proceedings, any other country declared by the Attorney General, or by some other person authorised by the Attorney General for the purposes of this definition, by notice filed in the proceedings, to be a country to which this Division applies.

undertaking as to expenses means an undertaking by an applicant or his or her solicitor to pay to the registrar an amount equal to the sum of all expenses incurred in consequence of the request for service.

11.10   Filing of requisite documents

(cf SCR Part 10, rules 8, 9 and 10)

(1)  A person requiring a document to be served in a participating country may file the following documents in the Supreme Court:

(a)  an application to the principal registrar of the Supreme Court that a sealed copy of a document be transmitted to that country for service on the person specified in the application as the person to be served,

(b)  if the applicant requires service of the document under an international convention with respect to the service of documents to which that country and Australia are both signatories, a statement to that effect,

(c)  the document to be served and (unless English is an official language of the country concerned) a translation of the document,

(d)  if any special manner of service is required, a request for service in that manner and (unless English is an official language of the country concerned) a translation of the request,

(e)  an undertaking as to expenses,

      together with such further copies of those documents as the principal registrar may direct.

(2)  A translation of a document referred to in subrule (1):

(a)  must be in an official language of the country in which service is required, and

(b)  must bear a certificate by the translator, in that language, stating his or her qualifications and certifying that the translation is a correct translation of the document.

11.11   Procedure on filing and lodgment

(cf SCR Part 10, rules 11 and 12)

(1)  After all relevant documents have been filed as referred to in rule 11.10, the principal registrar of the Supreme Court must seal them and send the lodged documents to the Director-General of the Attorney General’s Department for transmission for service, together with such letter of request (if any) as may be necessary.

(2)  A certificate as to service, attempted service or non-service of any document so sent that is issued by:

(a)  a judicial authority or other responsible person in the country concerned, or

(b)  a British or Australian consular authority in the country concerned,

      is evidence of the matters stated in the certificate.

11.12   Recovery of unpaid expenses

(cf SCR Part 10, rule 13)

If an applicant who has given an undertaking as to expenses does not, within 7 days after service on the applicant of an account of expenses incurred in relation to his or her application, pay to the principal registrar of the Supreme Court the amount of the expenses, the Supreme Court:

(a)  may order the applicant to pay the amount of the expenses to the principal registrar, and

(b)  may stay the proceedings, until payment is made, so far as concerns the whole or any part of any claim for relief by the applicant.

Division 3 Service of external process

11.13   Application

(cf SCR Part 57, rule 1)

(1)  Subject to subrule (2), this Division applies to the service in the State of any document that is required in connection with civil proceedings pending before a court outside the State, where:

(a)  a letter of request from the court has been received by the principal registrar of the Supreme Court, and

(b)  either:

(i)  the request is for service pursuant to a convention, or

(ii)  the Attorney General, or some other person authorised by the Attorney General for the purposes of this rule, certifies that effect ought to be given to the request.

(2)  This Division does not apply to the service in this State of any foreign judicial document (within the meaning of Part 11A) in accordance with a request for service made under the Hague Convention.

Note. Division 4 of Part 11A deals with the service in New South Wales of foreign judicial documents originating in countries that are parties to the Hague Convention.

11.14   Requisite documents

(cf SCR Part 57, rule 2)

In order that service may be effected in accordance with this Division, the following documents must be delivered to the principal registrar of the Supreme Court, unless the principal registrar otherwise directs:

(a)  the document to be served and 2 copies of it,

(b)  a copy of the letter of request,

(c)  if the document or letter is not in English, a translation of it in English and a copy of the translation.

11.15   Service

(cf SCR Part 57, rule 3)

(1)  The principal registrar of the Supreme Court is to request the Sheriff or some other person to serve the document concerned.

(2)  The document may be served in any manner in which originating process in proceedings in the Supreme Court may be served, including substituted service pursuant to rule 10.14.

(3)  Proceedings for an order for substituted service may be commenced only by the Attorney General.

11.16   Affidavit of service

(cf SCR Part 57, rule 4)

(1)  After the document has been served or attempts to serve the document have failed, the Sheriff or other person requested to serve the document must make an affidavit of service, and lodge it together with such further copies of the affidavit as the principal registrar of the Supreme Court may direct.

(2)  The affidavit must state when, where and how service was effected or attempted, and the costs incurred in connection with the service or attempted service.

11.17   Certificate

(cf SCR Part 57, rule 5)

(1)  If the request for service is made pursuant to a convention, the principal registrar of the Supreme Court must give either:

(a)  a certificate complying with subrule (2), or

(b)  such other certificate as is appropriate to the terms of the relevant convention.

(2)  A certificate referred to in subrule (1) (a):

(a)  must certify:

(i)  that the document or a copy of it was served on the person at the time, and in the manner, specified in the certificate, or

(ii)  if attempts to effect service failed, that service has failed and the reasons for the failure, and

(b)  must certify the amount of the costs incurred.

(3)  If the request for service is made otherwise than pursuant to a convention, the principal registrar of the Supreme Court must give either:

(a)  a certificate complying with subrule (4), or

(b)  such other certificate as is appropriate to the terms of the letter of request.

(4)  A certificate referred to in subrule (3) (a):

(a)  must annex the letter of request, a copy of the document to be served and of any translation, and a copy of the affidavit under rule 11.16, and

(b)  must identify the annexures, and

(c)  must certify:

(i)  that the manner of service of the document and the proof of service are such as are required by these rules in relation to the service of originating process of the Supreme Court, or

(ii)  if attempts to effect service failed, that service has failed and the reasons for the failure, and

(d)  must certify the amount of the costs incurred.

(5)  In each case, the certificate is to be sealed with the seal of the Supreme Court.

(6)  The principal registrar of the Supreme Court must send the certificate to the Director-General of the Attorney General’s Department or, if the letter of request or any relevant convention so requires, to the appropriate consul or other authority.

Part 11A Service under the Hague Convention

Division 1 Preliminary

Note 1. This Part forms part of a scheme to implement Australia’s obligations under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. Under the Convention, the Attorney-General’s Department of the Commonwealth is designated as the Central Authority (under Article 2 of the Convention) and certain courts and government departments are, for certain purposes, designated as “other” or “additional” authorities (under Article 18 of the Convention).

Note 2. This Part provides (in Division 2) for service in overseas Convention countries of local judicial documents (documents that relate to proceedings in the Court) and (in Division 3) for default judgment in proceedings in the Court after service overseas of such a document. Division 4, on the other hand, deals with service by the Court or arranged by the Court in its role as an other or additional authority, of judicial documents emanating from overseas Convention countries.

Note 3. The Attorney-General’s Department of the Commonwealth maintains a copy of the Convention, a list of all Convention countries, details of declarations and objections made under the Convention by each of those countries and the names and addresses of the Central and other authorities of each of those countries. A copy of the Convention can be found at http://www.hcch.net.

11A.1   Definitions

In this Part:

additional authority, for a Convention country, means an authority that is:

(a)  for the time being designated by that country, under Article 18 of the Hague Convention, to be an authority (other than the Central Authority) for that country, and

(b)  competent to receive requests for service abroad emanating from Australia.

applicant, for a request for service abroad or a request for service in this jurisdiction, means the person on whose behalf service is requested.

Note. 

The term applicant may have a different meaning in other Parts of these rules.

Central Authority, for a Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Convention, to be the Central Authority for that country.

certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Convention.

certifying authority, for a Convention country, means the Central Authority for the country or some other authority that is for the time being designated by the country, under Article 6 of the Hague Convention, to complete certificates of service in the form annexed to the Hague Convention.

civil proceedings means any judicial proceedings in relation to civil or commercial matters.

Convention country means a country, other than Australia, that is a party to the Hague Convention.

defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be served.

foreign judicial document means a judicial document that originates in a Convention country and that relates to civil proceedings in a court of that country.

forwarding authority:

(a)  for a request for service of a foreign judicial document in this jurisdiction—the authority or judicial officer of the Convention country in which the document originates that forwards the request (being an authority or judicial officer that is competent under the law of that country to forward a request for service under Article 3 of the Hague Convention), or

(b)  for a request for service of a local judicial document in a Convention country—the Registrar.

Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.

initiating process means any document by which proceedings (including proceedings on any cross-claim or third party notice) are commenced.

local judicial document means a judicial document that relates to civil proceedings in the Court.

Registrar means the principal registrar of the Court, and includes any other person who, by delegation or otherwise, is authorised to exercise the functions of that office.

request for service abroad means a request for service in a Convention country of a local judicial document mentioned in rule 11A.4 (1).

request for service in this jurisdiction means a request for service in this jurisdiction of a foreign judicial document mentioned in rule 11A.13 (1).

the Court means the Supreme Court.

this jurisdiction means New South Wales.

11A.2   Provisions of this Part to prevail

The provisions of this Part prevail to the extent of any inconsistency between those provisions and any other provisions of these rules.

Division 2 Service abroad of local judicial documents

11A.3   Application of Division

(1)  Subject to subrule (2), this Division applies to service in a Convention country of a local judicial document.

(2)  This Division does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Convention.

11A.4   Application for request for service abroad

(1)  A person may apply to the Registrar, in the Registrar’s capacity as a forwarding authority, for a request for service in a Convention country of a local judicial document.

(2)  The application must be accompanied by 3 copies of each of the following documents:

(a)  a draft request for service abroad, which must be in the approved form,

(b)  the document to be served,

(c)  a summary of the document to be served, which must be in the approved form,

(d)  if, under Article 5 of the Hague Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, the official language or one of the official languages of that country, a translation into that language of both the document to be served and the summary of the document to be served.

(3)  The application must contain a written undertaking to the Court, signed by the legal practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no legal practitioner on the record for the applicant in those proceedings, by the applicant:

(a)  to be personally liable for all costs that are incurred:

(i)  by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Convention country in which the documents are to be served, or

(ii)  by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served, and

(b)  to pay the amount of those costs to the Registrar within 28 days after receipt from the Registrar of a notice specifying the amount of those costs under rule 11A.6 (3), and

(c)  to give such security for those costs as the Registrar may require.

(4)  The draft request for service abroad:

(a)  must be completed (except for signature) by the applicant, and

(b)  must state whether (if the time fixed for entering an appearance in the proceedings to which the local judicial document relates expires before service is effected) the applicant wants service to be attempted after the expiry of that time, and

(c)  must be addressed to the Central Authority, or to an additional authority, for the Convention country in which the person is to be served, and

(d)  may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority.

(5)  Any translation required under subrule (2) (d) must bear a certificate (in both English and the language used in the translation) signed by the translator stating:

(a)  that the translation is an accurate translation of the documents to be served, and

(b)  the translator’s full name and address and his or her qualifications for making the translation.

11A.5   How application to be dealt with

(1)  If satisfied that the application and its accompanying documents comply with rule 11A.4, the Registrar:

(a)  must sign the request for service abroad, and

(b)  must forward 2 copies of the relevant documents:

(i)  if the applicant has asked for the request to be forwarded to a nominated additional authority for the Convention country in which service of the document is to be effected—to the nominated additional authority, or

(ii)  in any other case—to the Central Authority for the Convention country in which service of the document is to be effected.

(2)  The relevant documents mentioned in subrule (1) (b) are the following:

(a)  the request for service abroad (duly signed),

(b)  the document to be served,

(c)  the summary of the document to be served,

(d)  if required under rule 11A.4 (2) (d), a translation into the relevant language of each of the documents mentioned in paragraphs (b) and (c).

(3)  If not satisfied that the application or any of its accompanying documents complies with rule 11A.4, the Registrar must inform the applicant of the respects in which the application or document fails to comply.

11A.6   Procedure on receipt of certificate of service

(1)  Subject to subrule (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, the Registrar:

(a)  must arrange for the original certificate to be filed in the proceedings to which the document relates, and

(b)  must send a copy of the certificate to:

(i)  the legal practitioner on the record for the applicant in those proceedings, or

(ii)  if there is no legal practitioner on the record for the applicant in those proceedings—the applicant.

(2)  For the purposes of subrule (1), a certificate of service is in due form if:

(a)  it is in the approved form, and

(b)  it has been completed by a certifying authority for the Convention country in which service was requested, and

(c)  if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority, it has been so countersigned.

(3)  On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in subrule (1), the Registrar must send to the legal practitioner or applicant who gave the undertaking mentioned in rule 11A.4 (3) a notice specifying the amount of those costs.

(4)  For the purposes of subrule (3), a statement of costs is in due form if:

(a)  it relates only to costs of a kind mentioned in rule 11A.4 (3) (a), and

(b)  it has been completed by a certifying authority for the Convention country in which service was requested.

(5)  Subrule (1) does not apply unless:

(a)  adequate security to cover the costs mentioned in subrule (3) has been given under rule 11A.4 (3) (c), or

(b)  to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to the Registrar.

11A.7   Payment of costs

(1)  On receipt of a notice under rule 11A.6 (3) in relation to the costs of service, the legal practitioner or applicant, as the case may be, must pay to the Registrar the amount specified in the notice as the amount of those costs.

(2)  If the legal practitioner or applicant fails to pay that amount within 28 days after receiving the notice:

(a)  except by leave of the Court, the applicant may not take any further step in the proceedings to which the local judicial document relates until those costs are paid to the Registrar, and

(b)  the Registrar may take such steps as are appropriate to enforce the undertaking for payment of those costs.

11A.8   Evidence of service

A certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of rule 11A.6 (2)) that certifies that service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that:

(a)  service of the document was effected by the method specified in the certificate on that date, and

(b)  if that method of service was requested by the applicant, that method is compatible with the law in force in the Convention country in which service was effected.

Division 3 Default judgment following service abroad of initiating process

11A.9   Application of Division

This Division applies to civil proceedings for which an initiating process has been forwarded following a request for service abroad to the Central Authority (or to an additional authority) for a Convention country.

11A.10   Restriction on power to enter default judgment if certificate of service filed

(1)  This rule applies if:

(a)  a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 11A.6 (2)) that states that service has been duly effected, and

(b)  the defendant has not appeared or filed a notice of address for service.

(2)  In circumstances to which this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that:

(a)  the initiating process was served on the defendant:

(i)  by a method of service prescribed by the internal law of the Convention country for the service of documents in domestic proceedings on persons who are within its territory, or

(ii)  if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in that country, by that method, or

(iii)  if the applicant did not request a particular method of service, in circumstances where the defendant accepted the document voluntarily, and

(b)  the initiating process was served in sufficient time to enable the defendant to enter an appearance in the proceedings.

(3)  In subrule (2) (b), sufficient time means:

(a)  42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected, or

(b)  such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to enter an appearance in the proceedings.

11A.11   Restriction on power to enter default judgment if certificate of service not filed

(1)  This rule applies if:

(a)  a certificate of service of initiating process has not been filed in the proceedings, or

(b)  a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 11A.6 (2)) that states that service has not been effected,

      and the defendant has not appeared or filed a notice of address for service.

(2)  If this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that:

(a)  the initiating process was forwarded to the Central Authority, or to an additional authority, for the Convention country in which service of the initiating process was requested, and

(b)  a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which initiating process was so forwarded, and

(c)  every reasonable effort has been made:

(i)  to obtain a certificate of service from the relevant certifying authority, or

(ii)  to effect service of the initiating process,

      as the case requires.

11A.12   Setting aside judgment in default of appearance

(1)  This rule applies if default judgment has been entered against the defendant in proceedings to which this Division applies.

(2)  If this rule applies, the Court may set aside the judgment on the application of the defendant if it is satisfied that the defendant:

(a)  without any fault on the defendant’s part, did not have knowledge of the initiating process in sufficient time to defend the proceedings, and

(b)  has a prima facie defence to the proceedings on the merits.

(3)  An application to have a judgment set aside under this rule may be filed:

(a)  at any time within 12 months after the date on which the judgment was given, or

(b)  after the expiry of that 12-month period, within such time after the defendant acquires knowledge of the judgment as the Court considers reasonable in the circumstances.

(4)  Nothing in this rule affects any other power of the Court to set aside or vary a judgment.

Division 4 Local service of foreign judicial documents

11A.13   Application of Division

(1)  This Division applies to service in this jurisdiction of a foreign judicial document in relation to which a due form of request for service has been forwarded to the Court:

(a)  by the Attorney-General’s Department of the Commonwealth, whether in the first instance or following a referral under rule 11A.14, or

(b)  by a forwarding authority.

(2)  Subject to subrule (3), a request for service in this jurisdiction is in due form if it is in the approved form and is accompanied by the following documents:

(a)  the document to be served,

(b)  a summary of the document to be served, which must be in the approved form,

(c)  a copy of the request and of each of the documents mentioned in paragraphs (a) and (b),

(d)  if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.

(3)  Any translation required under subrule (2) (d) must bear a certificate (in English) signed by the translator stating:

(a)  that the translation is an accurate translation of the document, and

(b)  the translator’s full name and address and his or her qualifications for making the translation.

11A.14   Certain documents to be referred back to the Attorney-General’s Department of the Commonwealth

If, after receiving a request for service in this jurisdiction, the Registrar is of the opinion:

(a)  that the request does not comply with rule 11A.13, or

(b)  that the document to which the request relates is not a foreign judicial document, or

(c)  that compliance with the request may infringe Australia’s sovereignty or security, or

(d)  that the request seeks service of a document in some other State or Territory of the Commonwealth,

the Registrar must refer the request to the Attorney-General’s Department of the Commonwealth together with a statement of his or her opinion.

Note. The Attorney General’s Department of the Commonwealth will deal with misdirected and non-compliant requests, make arrangements for the service of extrajudicial documents and assess and decide questions concerning Australia’s sovereignty and security.

11A.15   Service

(1)  Subject to rule 11A.14, on receipt of a request for service in this jurisdiction, the Court must arrange for the service of the relevant documents in accordance with the request.

(2)  The relevant documents mentioned in subrule (1) are the following:

(a)  the document to be served,

(b)  a summary of the document to be served,

(c)  a copy of the request for service in this jurisdiction,

(d)  if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the document.

(3)  Service of the relevant documents may be effected by any of the following methods of service:

(a)  by a method of service prescribed by the law in force in this jurisdiction:

(i)  for the service of a document of a kind corresponding to the document to be served, or

(ii)  if there is no such corresponding kind of document, for the service of initiating process in proceedings in the Court,

(b)  if the applicant has requested a particular method of service and that method is compatible with the law in force in this jurisdiction, by that method,

(c)  if the applicant has not requested a particular method of service and the person requested to be served accepts the document voluntarily, by delivery of the document to the person requested to be served.

11A.16   Affidavit as to service

(1)  If service of a document has been effected pursuant to a request for service in this jurisdiction, the person by whom service has been effected must lodge with the Court an affidavit specifying:

(a)  the time, day of the week and date on which the document was served, and

(b)  the place where the document was served, and

(c)  the method of service, and

(d)  the person on whom the document was served, and

(e)  the way in which that person was identified.

(2)  If attempts to serve a document pursuant to a request for service in this jurisdiction have failed, the person by whom service has been attempted must lodge with the Court an affidavit specifying:

(a)  details of the attempts made to serve the document, and

(b)  the reasons that have prevented service.

(3)  When an affidavit as to service of a document has been lodged in accordance with this rule, the Registrar:

(a)  must complete a certificate of service, sealed with the seal of the Court, on the reverse side of, or attached to, the request for service in this jurisdiction, and

(b)  must forward the certificate of service, together with a statement as to the costs incurred in relation to the service or attempted service of the document, directly to the forwarding authority from which the request was received.

(4)  A certificate of service must be:

(a)  in the approved form, or

(b)  if a form of certificate of service that substantially corresponds to the approved form accompanies the request for service, in that accompanying form.

Part 12 Discontinuance, withdrawal, dismissal and setting aside of originating process

Division 1 Discontinuance of claim

12.1   Discontinuance of proceedings

(cf SCR Part 21, rules 2 and 5; DCR Part 18, rule 1; LCR Part 17, rule 1)

(1)  The plaintiff in any proceedings may, by filing a notice of discontinuance, discontinue the proceedings, either as to all claims for relief or as to all claims for relief so far as they concern a particular defendant:

(a)  with the consent of each other active party in the proceedings, or

(b)  with the leave of the court.

(2)  A notice of discontinuance:

(a)  must bear a certificate by the plaintiff, or by his or her solicitor, to the effect that the plaintiff does not represent any other person, and

(b)  except where it is filed with the leave of the court, must be accompanied by a notice from each party whose consent is required by subrule (1) to the effect that the party consents to the proceedings being discontinued in accordance with the notice of discontinuance.

(3)  If any such consent is given on terms, those terms are to be incorporated in the notice of consent.

(4)  If any party has not been served with the originating process, the plaintiff must file an affidavit to that effect.

(5)  For the purposes of this rule, proceedings on a cross-claim are taken to be different proceedings to the proceedings on the originating process and to proceedings on any other cross-claim.

12.2   (Repealed)

12.3   Effect of discontinuance

(cf SCR Part 21, rule 7; DCR Part 18, rule 7; LCR Part 17, rule 8)

(1)  A discontinuance of proceedings with respect to a plaintiff’s claim for relief does not prevent the plaintiff from claiming the same relief in fresh proceedings.

(2)  Subrule (1) is subject to the terms of any consent to the discontinuance or of any leave to discontinue.

12.4   Stay of further proceedings to secure costs of discontinued proceedings

(cf SCR Part 21, rule 8; DCR Part 18, rule 8; LCR Part 17, rule 9)

If:

(a)  as a consequence of the discontinuance of proceedings, a plaintiff is liable to pay the costs of another party in relation to those proceedings, and

(b)  before payment of the costs, the plaintiff commences further proceedings against that other party on the same or substantially the same cause of action as that on which the former proceedings were commenced,

the court may stay the further proceedings until those costs are paid and may make such consequential orders as it thinks fit.

Note. See also section 67 of the Civil Procedure Act 2005 as to the terms on which a stay may be granted, and rule 42.19 as to costs payable in relation to discontinued proceedings.

Division 2 Withdrawal of appearance or pleading

12.5   Withdrawal of appearance

(cf SCR Part 21, rule 1)

An active party may withdraw an appearance by leave of the court.

12.6   Withdrawal of matter in defence or subsequent pleading

(cf SCR Part 21, rules 3 and 5; DCR Part 18, rule 2; LCR Part 17, rule 2)

(1)  A party raising any matter in a defence or subsequent pleading may withdraw the matter at any time.

(2)  Despite subrule (1), a party may not withdraw any admission, or any other matter that operates for the benefit of another party, except with the consent of the other party or by leave of the court.

(3)  A withdrawal under this rule is to be made by filing a notice of withdrawal stating the extent of the withdrawal.

(4)  If the withdrawal is by consent, the notice under subrule (3) must be accompanied by a notice from each party whose consent is required by subrule (2) to the effect that the party consents to the admission or other matter being withdrawn in accordance with the notice of withdrawal.

Division 3 Dismissal of proceedings etc for lack of progress

12.7   Dismissal of proceedings etc for want of due despatch

(cf SCR Part 5, rule 12, Part 32A, rules 1 and 2; DCR Part 18, rules 3 and 9; LCR Part 17, rule 4)

(1)  If a plaintiff does not prosecute the proceedings with due despatch, the court may order that the proceedings be dismissed or make such other order as the court thinks fit.

(2)  If the defendant does not conduct the defence with due despatch, the court may strike out the defence, either in whole or in part, or make such other order as the court thinks fit.

Note. See rule 42.20 as to the effect of dismissal with respect to costs.

12.8   Additional grounds for dismissal of proceedings by Supreme Court or Land and Environment Court

(cf SCR Part 32A, rules 1 and 2)

(1)  This rule applies to proceedings in the Supreme Court or the Land and Environment Court.

(2)  The court may, of its own motion, make an order dismissing the proceedings if it appears from the court’s records that, for over 5 months, no party to the proceedings has taken any step in the proceedings.

(3)  Such an order may not be made:

(a)  if the proceedings, or any part of the proceedings, are listed for a future date, or

(b)  if there are any notices of motion or other applications in the proceedings that are yet to be determined, or

(c)  if a party satisfies the court that such an order should not be made.

(4)  Before such an order is made, notice of the proposed order is to be given to the plaintiff and to each other active party, being a notice that gives each of them a reasonable opportunity to be heard in relation to the proposal.

(5)  Such a notice is to be sent by post, addressed to the person to whom it is directed:

(a)  at the person’s address for service, or

(b)  if the person has no address for service, at the person’s last known address,

      in an envelope marked with the court’s return address.

(6)  A notice, posted as referred to in subrule (5), is taken to have been received by the person to whom it was addressed even if it is returned to the court as having not been delivered to the addressee.

12.9   Additional grounds for dismissal of proceedings by District Court or Local Court

(1)  This rule applies to proceedings in the District Court or the Local Court that have been commenced by statement of claim or in which a statement of claim has been filed.

(2)  The court may, of its own motion, make an order dismissing the proceedings if:

(a)  a defence or cross-claim is not filed, or

(b)  an application for default judgment is not filed, or

(c)  the proceedings are not otherwise disposed of,

      within 9 months after the statement of claim is filed.

(3)  Such an order may be made without notice to the plaintiff or any other party.

(4)  Such an order may not be made if there are any notices of motion or other applications in the proceedings that are yet to be determined.

12.10   Stay of further proceedings to secure costs of proceedings dismissed

(cf SCR Part 40, rule 8 (2); DCR Part 18, rule 8; LCR Part 17, rule 9)

If:

(a)  as a consequence of the dismissal of proceedings, a party is liable to pay the costs of another party in relation to those proceedings, and

(b)  before payment of the costs, the party commences further proceedings against that other party on the same or substantially the same cause of action, or for the same or substantially the same relief, as that on or for which the former proceedings were commenced,

the court may stay the further proceedings until those costs are paid and make such consequential orders as it thinks fit.

Note. See also section 67 of the Civil Procedure Act 2005 as to the terms on which a stay may be granted, and rule 42.20 as to costs payable in relation to proceedings that are dismissed.

Division 4 Setting aside originating process

12.11   Setting aside originating process etc

(cf SCR Part 11, rule 8)

(1)  In any proceedings, the court may make any of the following orders on the application of a defendant:

(a)  an order setting aside the originating process,

(b)  an order setting aside the service of the originating process on the defendant,

(c)  an order declaring that the originating process has not been duly served on the defendant,

(d)  an order discharging:

(i)  any order giving leave to serve the originating process outside New South Wales, or

(ii)  any order confirming service of the originating process outside New South Wales,

(e)  an order discharging any order extending the validity for service of the originating process,

(f)  an order protecting or releasing:

(i)  property seized, or threatened with seizure, in the proceedings, or

(ii)  property subject to an order restraining its disposal or in relation to which such an order is sought,

(g)  an order declaring that the court has no jurisdiction over the defendant in respect of the subject-matter of the proceedings,

(h)  an order declining to exercise jurisdiction in the proceedings,

(i)  an order granting such other relief as the court thinks appropriate.

(2)  Such an order may not be made unless notice of motion to apply for the order is filed by the defendant within the time limited for the defendant to enter an appearance in the proceedings.

(3)  Notice of motion under subrule (2):

(a)  may be filed without entering an appearance, and

(b)  must bear a note stating the applicant’s address for service.

(4)  The making of an application for an order under subrule (1) does not constitute submission to the jurisdiction of the court.

Part 13 Summary disposal

13.1   Summary judgment

(cf SCR Part 13, rule 2; DCR Part 11A, rule 2; LCR Part 10A, rule 2)

(1)  If, on application by the plaintiff in relation to the plaintiff’s claim for relief or any part of the plaintiff’s claim for relief:

(a)  there is evidence of the facts on which the claim or part of the claim is based, and

(b)  there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed,

      the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires.

(2)  Without limiting subrule (1), the court may give judgment for the plaintiff for damages to be assessed.

(3)  In this rule, a reference to damages includes a reference to the value of goods.

13.2   Stay of judgment pending determination of cross-claim

(cf SCR Part 13, rule 3; DCR Part 11A, rule 2A)

If the court gives judgment against a party under rule 13.1, and that party has made a cross-claim against the party obtaining the judgment, the court may stay enforcement of the judgment until determination of the cross-claim.

13.3   Continuation of proceedings following partial judgment

(cf SCR Part 13, rule 6; DCR Part 11A, rule 4; LCR Part 10A, rule 4)

If, in any proceedings:

(a)  a party applies for judgment, and

(b)  the proceedings are not wholly disposed of by the judgment,

the proceedings may be continued as regards any claim or part of a claim not disposed of by the judgment.

13.4   Frivolous and vexatious proceedings

(cf SCR Part 13, rule 5; DCR Part 11A, rule 3; LCR Part 10A, rule 3)

(1)  If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a)  the proceedings are frivolous or vexatious, or

(b)  no reasonable cause of action is disclosed, or

(c)  the proceedings are an abuse of the process of the court,

      the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

13.5   Continuation of proceedings following partial dismissal

(cf SCR Part 13, rule 6; DCR Part 11A, rule 4; LCR Part 10A, rule 4)

If, in any proceedings:

(a)  a party applies for an order for dismissal of proceedings, and

(b)  the proceedings are not wholly disposed of by dismissal,

the proceedings may be continued as regards any claim or part of a claim not disposed of by dismissal.

13.6   Non-appearance by plaintiff

(cf SCR Part 13, rule 5A)

(1)  If there is no attendance by or on behalf of a plaintiff at a hearing of which the plaintiff has had due notice, the court may adjourn the hearing to another date and direct that not less than 5 days before that date a notice of the adjournment be served on the plaintiff advising that the proceedings may be dismissed if there is no attendance by or on behalf of the plaintiff at the adjourned hearing.

(2)  If the plaintiff has been given notice in accordance with subrule (1) and there is no attendance by or on behalf of the plaintiff at the adjourned hearing, the court may dismiss the proceedings.

(3)  This rule does not restrict any other power of the court to dismiss proceedings.

Part 14 Pleadings

Division 1 Preliminary

14.1   Application

This Part applies to proceedings commenced by statement of claim and to proceedings in which a statement of claim has been filed.

Division 2 Defence and further pleadings

14.2   Trial without further pleadings

(cf SCR Part 15, rule 2)

(1)  If in the opinion of the court:

(a)  the issues between the parties can be defined without further pleadings, or

(b)  for any other reason the proceedings may properly be tried without further pleadings,

      the court may order that the proceedings be so tried.

(2)  A court that makes an order under subrule (1) may direct the parties to prepare a statement of the issues involved in the proceedings or, if the parties do not agree on a statement, may settle a statement itself.

14.3   Defence

(cf SCR Part 15, rule 3; DCR Part 10, rule 1; LCR Part 9, rule 1)

(1)  Subject to these rules, the time limited for a defendant to file a defence is 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.

(2)  If, before the defendant files a defence, a notice of motion for summary judgment under rule 13.1 is served on the defendant, but the court does not on that motion dispose of all of the claims for relief against the defendant, the court may fix a time within which the defendant must file a defence.

Note. See rule 9.11 (2) under which a defence to a cross-claim for contribution under section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 may not be filed unless the court so directs.

14.4   Reply

(cf SCR Part 15, rule 4)

(1)  In proceedings in the Supreme Court or the District Court, a plaintiff may file a reply to a defence.

(2)  In proceedings in the Local Court, a plaintiff may file a reply to a defence only by leave of the Court.

(3)  The time limited for the plaintiff to file a reply is 14 days after service of the defence on the plaintiff.

14.5   Further pleadings

(cf SCR Part 15, rule 5)

(1)  Except by leave of the court, a party to proceedings may not file any pleading subsequent to a reply.

(2)  The time limited for a party to seek leave to file a pleading subsequent to a reply (the further pleading) is 14 days after service on the party of the pleading to which further pleading responds.

Division 3 Form of pleading generally

14.6   Pleadings to be divided into paragraphs

(cf SCR Part 15, rule 6; DCR Part 9, rule 2)

If a pleading alleges or otherwise deals with several matters:

(a)  the pleading must be divided into paragraphs, and

(b)  each matter must, so far as convenient, be put in a separate paragraph, and

(c)  the paragraphs must be numbered consecutively.

14.7   Pleadings to contain facts, not evidence

(cf SCR Part 15, rule 7; DCR Part 9, rule 3)

Subject to this Part, Part 6 and Part 15, a party’s pleading must contain only a summary of the material facts on which the party relies, and not the evidence by which those facts are to be proved.

14.8   Pleadings to be brief

(cf SCR Part 15, rule 8; DCR Part 9, rule 4)

A pleading must be as brief as the nature of the case allows.

14.9   References in pleadings to documents and spoken words

(cf SCR Part 15, rule 9; DCR Part 9, rule 5)

If any documents or spoken words are referred to in a pleading:

(a)  the effect of the document or spoken words must, so far as material, be stated, and

(b)  the precise terms of the document or spoken words must not be stated, except so far as those terms are themselves material.

14.10   Certain facts need not be pleaded

(cf SCR Part 15, rule 10; DCR Part 9, rule 6)

A party need not plead a fact if:

(a)  the fact is presumed by law to be true, or

(b)  the burden of disproving the fact lies on the opposite party,

except so far as may be necessary to meet a specific denial of that fact by another party’s pleading.

14.11   Conditions precedent presumed to have been met

(cf SCR Part 15, rule 11; DCR Part 9, rule 7)

If it is a condition precedent necessary for a party’s case in any pleading that:

(a)  a thing has been done, or

(b)  an event has happened, or

(c)  a state of affairs exists, or has existed at some time or times, or

(d)  the party is ready and willing, or was at all material times ready and willing, to perform an obligation,

a statement to the effect that the condition has been satisfied is taken to be implied in the party’s pleading.

14.12   Pleading of facts in short form in certain money claims

(cf SCR Part 15, rule 12; DCR Part 9, rule 8)

(1)  Subject to this rule, if the plaintiff claims money payable by the defendant to the plaintiff for any of the following:

(a)  goods sold and delivered by the plaintiff to the defendant,

(b)  goods bargained and sold by the plaintiff to the defendant,

(c)  work done or materials provided by the plaintiff for the defendant at the defendant’s request,

(d)  money lent by the plaintiff to the defendant,

(e)  money paid by the plaintiff for the defendant at the defendant’s request,

(f)  money had and received by the defendant for the plaintiff’s use,

(g)  interest on money due from the defendant to the plaintiff, and forborne at interest by the plaintiff at the defendant’s request,

(h)  money found to be due from the defendant to the plaintiff on accounts stated between them,

      it is sufficient to plead the facts concerned in short form (that is, by using the form of words set out in the relevant paragraph above).

(2)  The defendant may file a notice requiring the plaintiff to plead the facts on which he or she relies in full (that is, in accordance with the provisions of this Part other than this rule).

(3)  Such a notice must be filed within the time limited for the filing of the defence.

(4)  If the defendant files a notice under this rule:

(a)  the plaintiff must, within 28 days after service of the notice:

(i)  file an amended statement of claim pleading the facts on which he or she relies in full, and

(ii)  include in the amended statement of claim a note to the effect that the statement has been amended in response to the notice, and

(b)  if a defence has not been filed, the time limited for the filing of defence is extended until 14 days after service on the defendant of the plaintiff’s amended statement of claim.

14.13   Pleading not to claim an amount for unliquidated damages

(cf SCR Part 15, rule 12A; LCR Part 5, rule 1)

(1)  A pleading must not claim an amount for unliquidated damages.

(2)  Despite subrule (1), a pleading in proceedings in the Local Court may claim an amount for unliquidated damages if:

(a)  the claim is for the recovery of:

(i)  the cost of repair to a motor vehicle, or

(ii)  the value, less any salvage value, of a motor vehicle, or

(iii)  the towing of a motor vehicle, or

(iv)  the cost of hiring a replacement car,

      where the repair, loss, towing or cost of hiring is a consequence of damage alleged to have been sustained as a result of the negligence of the defendant or the defendant’s servant or agent, or

(b)  the claim is for the recovery of:

(i)  the cost of repair to property other than a motor vehicle, or

(ii)  the value, less any salvage value, of property other than a motor vehicle,

      where the repair or loss is a consequence of damage alleged to have been sustained as a result of the negligence of the defendant or the defendant’s servant or agent in driving, riding or controlling a motor vehicle.

(3)  In subrule (2), a reference to a motor vehicle is a reference to a motor vehicle within the meaning of the Motor Accidents Compensation Act 1999, and includes a reference to a trailer within the meaning of that Act.

14.14   General rule as to matters to be pleaded specifically

(cf SCR Part 15, rule 13; DCR Part 9, rule 9)

(1)  In a statement of claim, the plaintiff must plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise.

(2)  In a defence or subsequent pleading, a party must plead specifically any matter:

(a)  that, if not pleaded specifically, may take the opposite party by surprise, or

(b)  that the party alleges makes any claim, defence or other case of the opposite party not maintainable, or

(c)  that raises matters of fact not arising out of the preceding pleading.

(3)  Matters which must be pleaded pursuant to subrule (2) include (but are not limited to) fraud, performance, release, statute of limitation, extinction of right or title, voluntary assumption of risk, causation of accident by unknown and undiscoverable mechanical defect and facts showing illegality.

14.15   Pleadings concerning possession of land

(cf SCR Part 15, rule 15)

(1)  This rule applies to proceedings on a claim for possession of land.

(2)  The plaintiff must plead specifically the following matters:

(a)  the nature of any instrument (such as a certificate of title, conveyance, will, trust instrument, mortgage or lease) from which the plaintiff’s claim is alleged to be derived,

(b)  if any such instrument is alleged to impose an obligation on the defendant whose breach has given rise to the plaintiff’s claim (such as an obligation to pay money to the plaintiff), the existence of that obligation and the occurrence of any such breach,

(c)  if any such instrument is alleged to confer a right on the plaintiff that vests at a specified time or is contingent on the occurrence of a specified event, the existence of that right and the occurrence of any such time or event,

(d)  if the plaintiff’s right to possession arises from the defendant’s failure to pay money to the plaintiff, particulars of the date on which the failure began, the amount of money currently unpaid and the method by which that amount has been calculated,

(e)  if the plaintiff’s right to possession arises from any other act or omission by the defendant, particulars of the date on which the act or omission occurred and the nature of the act or omission,

(f)  if the plaintiff’s right to possession is not exercisable until the plaintiff has given notice to the defendant of the plaintiff’s intention to exercise that right, the date on which, and the terms in which, such notice was given.

(3)  The defendant must plead specifically every ground of defence on which he or she relies, including:

(a)  any claim for relief against forfeiture, and

(b)  any claim for rectification, and

(c)  any claim for relief under the Contracts Review Act 1980,

      and it is not sufficient for a defendant to merely state that he or she is in possession of the land (whether personally or by a tenant) and relies on that possession.

14.16   Defendant’s pleading of contributory negligence

(cf SCR Part 15, rule 14; DCR Part 9, rule 10)

A defendant who relies on contributory negligence must plead specifically the contributory negligence.

14.17   New matter may be raised in pleading

(cf SCR Part 15, rule 16; DCR Part 9, rule 11)

A party may plead any matter even if the matter has arisen after the commencement of the proceedings.

14.18   Pleadings to be consistent as to allegations of fact

(cf SCR Part 15, rule 17; DCR Part 9, rule 12)

(1)  A party must not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with any of his or her previous pleadings.

(2)  Subrule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative.

14.19   Pleadings may raise points of law

(cf SCR Part 15, rule 18; DCR Part 9, rule 13)

A pleading may raise any point of law.

14.20   Pleading the general issue

(cf SCR Part 15, rule 27)

A pleading may not plead the general issue.

14.21   Pleadings concerning claims under Property (Relationships) Act 1984

A pleading with respect to a claim for relief under section 20 (1) of the Property (Relationships) Act 1984 must plead specifically any contribution referred to in that subsection on which the plaintiff relies.

Division 4 Verification of pleadings

14.22   Pleadings in proceedings for defamation, malicious prosecution, false imprisonment, death and personal injury

(cf SCR Part 15, rule 23 (16) and (17))

(1)  This Division does not apply to pleadings in proceedings for the recovery of damages for:

(a)  defamation, or

(b)  malicious prosecution, or

(c)  false imprisonment, or

(d)  trespass to the person, or

(e)  death, or

(f)  personal injury.

(2)  Despite subrule (1), the court may order that this Division is to apply to any or all pleadings in any such proceedings (including pleadings filed before the order is made) with such variations (if any) as the court may direct.

14.23   Verification of certain pleadings

(cf SCR Part 15, rule 23 (1)–(7); DCR Part 10, rule 2 (1)–(6))

(1)  This rule applies to proceedings in the Supreme Court and the District Court.

(2)  A party’s pleading (including any amendment of the pleading) must be verified by affidavit.

Note. See rule 35.3 as to who may make such an affidavit.

(3)  The affidavit verifying a pleading must state:

(a)  as to any allegations of fact in the pleading, that the deponent believes that the allegations are true, and

(b)  as to any allegations of fact that the pleading denies, that the deponent believes that the allegations are untrue, and

(c)  as to any allegations of fact that the pleading does not admit, that after reasonable inquiry the deponent does not know whether or not the allegations are true.

(4)  If the deponent is unable to make an affidavit that complies with subrule (3) in relation to all parts of a pleading, the affidavit may comply with so much of that subrule as can be complied with and state why the affidavit does not comply with the remainder of that subrule.

(5)  Subject to any order of the court, an affidavit made in accordance with subrule (4) is taken to comply with subrule (3).

(6)  Unless the court otherwise orders, the affidavit verifying a pleading must be subscribed to the pleading.

14.24   Court may order pleadings to be further verified

(cf SCR Part 15, rule 23 (8)–(14); DCR Part 10, rule 2 (7)–(10))

(1)  Within 14 days after service of an affidavit under rule 14.23 in relation to a pleading, a party may apply to the court for a direction that the party pleading verify or further verify the pleading and for such other directions as may be appropriate.

(2)  If a party applies to the court under subrule (1), the court may direct the party pleading to file such further affidavit (if any), by such deponent and as to such facts as the court may determine.

(3)  The court may, by order, grant leave to a party to file, instead of an affidavit complying with rule 14.23 (3), an affidavit by such deponent and as to such facts as the court may determine.

Division 5 General

14.25   Defence of tender

(cf SCR Part 15, rule 24; DCR Part 10, rule 1A; LCR Part 9, rule 1)

(1)  If, in proceedings on a liquidated claim, a defence of tender before commencement of the proceedings is pleaded, the tender is not available as a defence unless and until the amount has been paid into court.

(2)  In the case of a tender to which section 224 of the Customs Act 1901 of the Commonwealth applies:

(a)  subrule (1) does not apply to a defence that pleads the tender, and

(b)  the amount tendered may be paid into court when the defence is filed.

(3)  On paying the money into court, the defendant must file notice of the payment into court and serve the notice on each other party to the proceedings.

(4)  The plaintiff may accept the money by filing a notice of acceptance.

(5)  If the plaintiff accepts the money, the proceedings are to be stayed in relation to the defence of tender.

(6)  Whether or not accepted, the money must not be paid out except by order of the court.

14.26   Admission and traverse from pleadings

(cf SCR Part 15, rule 20, Part 63, rule 9; DCR Part 9, rule 14, Part 45, rule 9)

(1)  An allegation of fact made by a party in a pleading is taken to be admitted by any opposite party required to plead in response unless:

(a)  in the pleading in response, the opposite party traverses the allegation, or

(b)  a joinder of issues under rule 14.27 operates as a denial of the allegation.

(2)  A traverse may be made by denial or by a statement of non-admission, either expressly or by necessary implication, and either generally or as to any particular allegation.

(3)  Despite subrule (1), a pleading in response to a pleading that alleges the suffering of damage or an amount of damages is taken to traverse the allegation unless it specifically admits the allegation.

(4)  Subrule (1) does not apply to an opposite party who is a person under a legal incapacity.

14.27   Joinder of issue

(cf SCR Part 15, rule 21; DCR Part 9, rule 15)

(1)  A pleading may expressly join issue on a previous pleading.

(2)  If there is no reply by a plaintiff to a defence, there is an implied joinder of issue on that defence.

(3)  If there is no answer by the opposite party to a reply or subsequent pleading, there is an implied joinder of issue on the reply or subsequent pleading.

(4)  There can be no joinder of issue, express or implied, on a statement of claim.

(5)  An implied joinder of issue on a pleading operates as a denial of every allegation of fact made in the pleading.

(6)  An express joinder of issue on a pleading operates as a denial of every allegation of fact made in the pleading other than an allegation that is expressly admitted.

14.28   Circumstances in which court may strike out pleadings

(cf SCR Part 15, rule 26; DCR Part 9, rule 17; LCR Part 8, rule 3)

(1)  The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a)  discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)  has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)  is otherwise an abuse of the process of the court.

(2)  The court may receive evidence on the hearing of an application for an order under subrule (1).

14.29   Defence of extinction of right or title

(cf SCR Part 5, rule 5B)

For the purposes of section 68A of the Limitation Act 1969, a claim by the defendant that a right or title has been extinguished under Division 1 of Part 4 of that Act may be made by affidavit or by notice.

Division 6 Pleadings concerning defamation

Note. The Defamation Act 2005 applies to the publication of defamatory matter after the commencement of that Act. The Act commenced on 1 January 2006. However, the Defamation Act 1974 (as in force before its repeal by the Defamation Act 2005) continues to apply to the following causes of action by virtue of clause 2 (Application of this Act) of Schedule 4 (Savings, transitional and other provisions) to the Defamation Act 2005:

(a)  a cause of action for defamation that accrued before 1 January 2006,

(b)  a cause of action for defamation that accrued after the commencement of the Defamation Act 2005, but only if:

(i)  the action is raised in proceedings that include other causes of action that accrued before 1 January 2006, and

(ii)  the action accrued no later than 12 months after the earliest pre-1 January 2006 action accrued, and

(iii)  each action in the proceedings arose out of the publication of the same, or substantially the same, matter on different occasions.

Clause 2 of Schedule 4 to the Defamation Act 2005 also ensures that any other law (both legislative and common law) that would have applied to such causes of action but for the enactment of the new Act will continue to apply to such causes of action.

14.30   Allegations in statements of claim generally

(cf SCR Part 67, rule 11; DCR Part 49, rule 10)

(1)  A statement of claim seeking relief in relation to the publication of defamatory matter must not include any allegation that the matter or its publication was false, malicious or unlawful.

(2)  Any such statement of claim must:

(a)  subject to subrule (3), specify each imputation on which the plaintiff relies, and

(b)  allege that the imputation was defamatory of the plaintiff.

(3)  A plaintiff in proceedings for defamation must not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same matter unless the imputations differ in substance.

14.31   Defamation defences generally

(cf SCR Part 67, rules 13 and 19 (1); DCR Part 49, rule 12)

(1)  Subject to rules 14.32–14.40, a defendant in proceedings for defamation must plead any defamation defence specifically.

(2)  If the plaintiff in defamation proceedings complains of two or more imputations, the pleading of any of the following defences must specify to what imputation or imputations the defence is pleaded:

(a)  a defence under section 15 (2) or 16 (2) of the Defamation Act 1974,

(b)  a defence under section 25 or 26 of the Defamation Act 2005,

(c)  the defence of justification at common law.

(3)  If a plaintiff intends to meet any defamation defence:

(a)  by alleging that the defendant was actuated by express malice in the publication of the matter complained of, or

(b)  by relying on any matter which, under the Defamation Act 1974 or the Defamation Act 2005, defeats the defence,

      then the plaintiff must plead that allegation or matter of defeasance by way of reply.

14.32   Defence of justification generally

(cf SCR Part 67, rule 14; DCR Part 49, rule 13)

(1) Defence under Defamation Act 1974
Subject to rule 14.31 (2), a defence under section 15 (2) of the Defamation Act 1974 is sufficiently pleaded if it alleges:

(a)  that the imputation in question was a matter of substantial truth, and

(b)  either:

(i)  that the imputation in question related to a matter of public interest, or

(ii)  that the imputation in question was published under qualified privilege.

Note. The defence of justification under section 15 (2) of the Defamation Act 1974 applies to the exclusion of the common law defence of justification. See section 15 (1) of the Defamation Act 1974.

(2) Defences under Defamation Act 2005 and at common law
Subject to rule 14.31 (2), a defence of justification under section 25 of the Defamation Act 2005 or at common law is sufficiently pleaded if it alleges that the imputation in question was substantially true.

Note. The defence of justification under section 25 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of justification. See section 24 (1) of the Defamation Act 2005.

14.33   Defence of contextual truth

(cf SCR Part 67, rule 15; DCR Part 49, rule 14)

(1) Defence under Defamation Act 1974
Subject to rule 14.31 (2), a defence under section 16 of the Defamation Act 1974 is sufficiently pleaded if it:

(a)  alleges either:

(i)  that the imputation in question related to a matter of public interest, or

(ii)  that the imputation in question was published under qualified privilege, and

(b)  specifies one or more imputations on which the defendant relies as being contextual to the imputation in question, and

(c)  as to the contextual imputations on which the defendant relies:

(i)  alleges either that they related to a matter of public interest or that they were published under qualified privilege, and

(ii)  alleges that they were matters of substantial truth, and

(d)  alleges that, by reason that the contextual imputations on which the defendant relies are matters of substantial truth, the imputation in question did not further injure the reputation of the plaintiff.

(2) Defence under Defamation Act 2005
Subject to rule 14.31 (2), a defence under section 26 of the Defamation Act 2005 is sufficiently pleaded if it:

(a)  specifies one or more imputations on which the defendant relies as being contextual to the imputation in question, and

(b)  alleges each contextual imputation on which the defendant relies was substantially true, and

(c)  alleges that the imputation in question did not further harm the reputation of the plaintiff because of the contextual imputations on which the defendant relies.

14.34   Defence of absolute privilege

(1)  This rule applies:

(a)  to a defence of absolute privilege under Division 3 of Part 3 of the Defamation Act 1974 or under section 27 of the Defamation Act 2005, and

(b)  to the defence of absolute privilege at common law.

(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under absolute privilege.

14.35   Defences for publication of public and official documents

(1) Defence under section 25 of Defamation Act 1974
A defence under section 25 of the Defamation Act 1974 is sufficiently pleaded if it alleges that the matter complained of was:

(a)  a document or record specified as a document or record to which that section applies or a copy of such a document or record, or

(b)  a fair summary of, or a fair extract from, such a document or record.

(2) Defence under section 27 of Defamation Act 1974
A defence under section 27 of the Defamation Act 1974 is sufficiently pleaded if it alleges that the matter complained of was a notice published in accordance with the direction of a court.

(3) Defence under section 28 of Defamation Act 2005
A defence under section 28 of the Defamation Act 2005 is sufficiently pleaded if it alleges that the matter complained of was contained in:

(a)  a public document or a fair copy of a public document, or

(b)  a fair summary of, or a fair extract from, a public document.

14.36   Defences of fair report of proceedings of public concern

(1) Defences under Defamation Act 1974
A defence under section 24 of the Defamation Act 1974 is sufficiently pleaded if it alleges that:

(a)  the matter complained of was a fair protected report, or

(b)  the matter complained of was a later publication by the defendant of:

(i)  a protected report or a copy of the protected report, or a fair extract or fair abstract from, or fair summary of, a protected report that was previously published by another person, or

(ii)  material purporting to be a protected report or a copy of a protected report, or of a fair extract or fair abstract from, or fair summary of, material purporting to be a protected report that was previously published by another person,

      and the defendant did not have knowledge that should have made the defendant aware that the protected report is not fair or the material purporting to be a protected report was not a protected report or is not fair.

(2) Defences under Defamation Act 2005
A defence under section 29 of the Defamation Act 2005 is sufficiently pleaded if it alleges that:

(a)  the matter complained of was, or was contained in, a fair report of any proceedings of public concern, or

(b)  the matter complained of:

(i)  was, or was contained in, an earlier published report of proceedings of public concern, and

(ii)  was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report,

      and the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

14.37   Defence of qualified privilege

(cf SCR Part 67, rule 16; DCR Part 49, rule 15)

(1)  This rule applies:

(a)  to a defence under Division 4 of Part 3 of the Defamation Act 1974 or section 30 of the Defamation Act 2005, and

(b)  to any other defence of qualified privilege other than any of the following:

(i)  a defence under Division 5, 6 or 7 of Part 3 of the Defamation Act 1974,

(ii)  a defence under section 28, 29 or 31 of the Defamation Act 2005,

(iii)  the defence of fair comment at common law.

(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the matter complained of was published under qualified privilege.

14.38   Defences of comment or honest opinion

(cf SCR Part 67, rule 17 (1) and (2); DCR Part 49, rule 16 (1) and (2))

(1) Defences under Defamation Act 1974
A defence under Division 7 of Part 3 of the Defamation Act 1974 is sufficiently pleaded if, as to the matter it alleges was comment, it:

(a)  either:

(i)  alleges that the comment was comment based on proper material for comment and on no other material, or

(ii)  alleges that the comment was comment based to some extent on proper material for comment and represented an opinion that might reasonably be based on that material to the extent to which it was proper material for comment, and

(b)  alleges that the comment related to a matter of public interest, and

(c)  either:

(i)  alleges that the comment was the comment of the defendant, or

(ii)  alleges that the comment was the comment of a servant or agent of the defendant, or

(iii)  alleges that the comment was not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant.

Note. A defence of fair comment under Division 7 of Part 3 of the Defamation Act 1974 applies to the exclusion of the common law defence of fair comment. See section 29 of the Defamation Act 1974.

(2) Defences under Defamation Act 2005
A defence under section 31 of the Defamation Act 2005 is sufficiently pleaded if, as to the matter it alleges was opinion, it:

(a)  either:

(i)  alleges that the opinion was based on proper material and on no other material, or

(ii)  alleges that the opinion was an opinion based to some extent on proper material and represented an opinion that might reasonably be based on that material to the extent to which it was proper material, and

(b)  alleges that the opinion was an opinion related to a matter of public interest, and

(c)  either:

(i)  alleges that the opinion was an expression of opinion of the defendant, or

(ii)  alleges that the opinion was an expression of opinion of an employee or agent of the defendant, or

(iii)  alleges that the opinion was an expression of opinion of a person other than the defendant or an employee or agent of the defendant.

Note. A defence of honest opinion under section 31 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of fair comment. See section 24 (1) of the Defamation Act 2005.

(3) Defence of fair comment at common law
A defence of fair comment at common law is sufficiently pleaded if, as to the matter it alleges was comment, it:

(a)  alleges that the comment was comment based on true facts or material that was published under privilege, and

(b)  alleges that the comment related to a matter of public interest.

(c)  (Repealed)

Note. See the note to subrule (2).

14.39   Defence of innocent dissemination

A defence under section 32 of the Defamation Act 2005 is sufficiently pleaded if it alleges that:

(a)  the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor, and

(b)  the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and

(c)  the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

14.40   Defence of triviality

(1)  This rule applies to:

(a)  a defence under section 13 of the Defamation Act 1974, and

(b)  a defence under section 33 of the Defamation Act 2005.

(2)  A defence to which this rule applies is sufficiently pleaded if it alleges that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm.

Part 15 Particulars

Division 1 General

15.1   Pleadings must give all necessary particulars

(cf SCR Part 16, rules 1 and 1A; DCR Part 9, rule 19; LCR Part 8, rule 2)

(1)  Subject to this Part, a pleading must give such particulars of any claim, defence or other matter pleaded by the party as are necessary to enable the opposite party to identify the case that the pleading requires him or her to meet.

(2)  Subrule (1) does not require a pleading to give particulars of any claim for interest up to judgment other than those required by rule 6.12 (7).

15.2   Use of “Scott Schedule” in building, technical and other cases

(cf DCR Part 9, rule 19A; LCR Part 8, rule 7)

(1)  In proceedings involving a building, technical or other matter in which several items of a claim are in dispute as to liability or amount, or both, the party making the claim may, and if the court so orders must, prepare and file a “Scott Schedule” in the approved form.

(2)  A party on whom a Scott Schedule is served must complete and file the Schedule.

15.3   Allegations of behaviour in the nature of fraud

(cf SCR Part 16, rule 2; DCR Part 9, rule 20)

A pleading must give particulars of any fraud, misrepresentation, breach of trust, wilful default or undue influence on which the party relies.

15.4   Allegations as to condition of mind

(cf SCR Part 16, rule 3; DCR Part 9, rule 21)

(1)  A pleading that alleges any condition of mind must give particulars of the facts on which the party pleading relies.

(2)  In subrule (1), condition of mind includes any disorder or disability of mind, any malice and any fraudulent intention, but does not include knowledge.

15.5   Allegations of negligence and breach of statutory duty in common law claims in tort

(cf SCR Part 16, rule 4; DCR Part 9, rule 22; LCR Part 8, rule 4)

(1)  The particulars to be given by a pleading that alleges negligence (whether contributory or otherwise):

(a)  must state the facts and circumstances on which the party pleading relies as constituting the alleged negligent act or omission, and

(b)  if the party pleading alleges more than one negligent act or omission, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged negligent act or omission.

(2)  The particulars to be given by a pleading that alleges breach of statutory duty:

(a)  must state the facts and circumstances on which the party pleading relies as constituting the alleged breach of statutory duty, and

(b)  if the party pleading alleges more than one breach of statutory duty, must, so far as practicable, state separately the facts and circumstances on which the party relies in respect of each alleged breach of statutory duty.

15.6   Claims for out of pocket expenses

(cf SCR Part 16, rule 5; DCR Part 9, rule 23; LCR Part 8, rule 5)

A party pleading who claims damages that include money that he or she has paid or is liable to pay must give particulars of that money.

15.7   Claims for exemplary damages

(cf SCR Part 16, rule 5A)

The particulars to be given by a pleading that claims exemplary damages must state the facts and circumstances on which the party pleading relies to establish that claim.

15.8   Claims for aggravated damages

(cf SCR Part 16, rule 5B)

The particulars to be given by a pleading that claims aggravated compensatory damages must state the facts and circumstances on which the party pleading relies to establish that claim.

15.9   Manner of giving particulars

(cf SCR Part 16, rule 6; DCR Part 9, rule 25; LCR Part 8, rule 6)

The particulars to be given by a pleading must be set out in the pleading or, if that is inconvenient, must be set out in a separate document referred to in the pleading and filed with the pleading.

15.10   Order for particulars

(cf SCR Part 16, rule 7; DCR Part 9, rule 26; LCR Part 8, rule 8)

(1)  The court may order a party to file:

(a)  particulars of any claim, defence or other matter stated in the party’s pleading or in any affidavit relevant to the proceedings, or

(b)  a statement of the nature of the case on which the party relies, or

(c)  if the party claims damages, particulars relating to general or other damages.

(2)  Without limiting subrule (1), if a pleading alleges that a person had knowledge or notice of some fact, matter or thing, the court may order that party to file:

(a)  if the pleading alleges knowledge, particulars of the facts on which that party relies, and

(b)  if the pleading alleges notice, particulars of the notice.

15.11   Particulars concerning claims under Property (Relationships) Act 1984

The particulars to be given by a pleading with respect to a claim for relief under section 20 (1) of the Property (Relationships) Act 1984 must include:

(a)  particulars of any payment on which the plaintiff relies as to any contribution referred to in that subsection, and

(b)  particulars of any document on which the plaintiff relies as evidence that any such payment has been made.

Division 2 Personal injury cases

15.12   Particulars required for proceedings generally

(cf DCR Part 9, rule 27 (2)–(5))

(1)  This rule applies to a claim for damages in respect of personal injuries arising from any event (the accident), other than a claim that is the subject of proceedings under the Compensation to Relatives Act 1897.

(2)  On or as soon as practicable after serving the statement of claim, the plaintiff must serve on the defendant, or on the defendant’s insurer or solicitor, a statement accompanied by the following documents:

(a)  copies of all documents available to the plaintiff in support of a claim for special damage and economic loss, whether past, present or continuing, including:

(i)  hospital, medical and similar accounts, and

(ii)  letters from a workers’ compensation insurer indicating moneys paid to or for the plaintiff, and

(iii)  letters from employers, wage records, income records and group certificates, and

(iv)  reports, award rates and correspondence relied on to support any claim in respect of domestic assistance or attendant care,

(b)  copies of all hospital and medical reports available at the time of serving the statement on which the plaintiff intends to rely at the hearing.

(2A)  On or as soon as practicable after serving the statement required by subrule (2), the plaintiff must file a copy of that statement (without the accompanying documents required by this rule).

(3)  The statement must set out the following particulars:

(a)  particulars of injuries received,

(b)  particulars of continuing disabilities,

(c)  particulars of out-of-pocket expenses.

(4)  If the statement makes any claim in respect of domestic assistance or attendant care, it must also set out full particulars of the claim.

(5)  If the statement makes any claim in respect of loss of income, it must also set out the following particulars:

(a)  the name and address of each employer during the 12 months immediately before the accident, together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,

(b)  the name and address of each employer since the accident, together with details of the periods of employment, capacity in which employed and net earnings during each period of employment,

(c)  the amount claimed in respect of loss of income to the date of the statement (by comparison between what the plaintiff has earned since the accident and what the plaintiff would have earned but for the accident) setting out, in respect of what the plaintiff would have earned but for the accident, including, where appropriate:

(i)  particulars of the earnings of comparable employees and the identity of those employees, or

(ii)  particulars of any payment that the plaintiff would have received under a relevant award or industrial agreement, together with the title of that award or industrial agreement,

(d)  particulars of any alleged loss of earning capacity and future economic loss,

(e)  if the plaintiff is self-employed or has been self-employed at any time during the 12 months immediately before the accident, such additional particulars as will achieve full disclosure of the basis of the claim for loss of income.

(6)  If the statement makes any claim in respect of loss of income, copies of the following documents must be served on all active parties:

(a)  a letter from the employer or employers (if any) of the plaintiff immediately before the accident the subject of the proceedings, providing particulars of:

(i)  the dates on which the plaintiff was absent from work due to the accident, and

(ii)  the total net remuneration lost by the plaintiff in respect of that absence, including overtime, and

(iii)  if the plaintiff returned to work for that employer, the plaintiff’s classification and duties, and any alteration in the remuneration paid to the plaintiff, after that return, and

(iv)  if that employment has been terminated, the date of and reason for the termination,

(b)  if the plaintiff was self-employed immediately before the accident, copies of any accountants’ reports or other documents on which the plaintiff intends to rely to establish his or her pre-accident income,

(c)  copies of the plaintiff’s income tax returns relating to income received during the period of 2 financial years ending immediately before the financial year that included the date of the accident, together with copies of any income tax returns lodged by the plaintiff since the date of the accident.

(7)  If any, or any part of, any document required to be served by subrule (6) cannot be served, a statement of the reasons why it cannot be served must be included in the documents served.

15.13   Particulars required for proceedings under Compensation to Relatives Act 1897

(cf DCR Part 9, rule 27 (6) and (7))

(1)  This rule applies to a claim for damages in respect of personal injuries arising from any act, neglect or default (the accident) that is the subject of proceedings under the Compensation to Relatives Act 1897.

(2)  On or as soon as practicable after serving the statement of claim, the plaintiff must serve on the defendant, or on the defendant’s insurer or solicitor:

(a)  in respect of each person on whose behalf the proceedings are commenced, a statement containing the following information:

(i)  the person’s name, address, relationship to the deceased person the subject of the proceedings, marital status and any anticipated alteration to that status,

(ii)  whether the person’s dependency on the deceased person, or the person’s reliance on services provided by the deceased person, is claimed to have been whole or partial, the circumstances in which the person received support or services from the deceased person, and the quantum of that support or those services during the 12-month period immediately before the death of the deceased person, and

(b)  in respect of each person on whose behalf the proceedings are commenced, copies of the following documents:

(i)  a copy or extract of the person’s birth certificate and, if the person has been married, a copy of the person’s marriage certificate,

(ii)  copies of any bank statements, financial records or other documents on which the person intends to rely to establish the extent of the support and other benefits provided to the person by the deceased person, covering a period of not less than 12 months immediately before the date of the death of the deceased person, and

(c)  in respect of the deceased person, copies of the following documents:

(i)  a letter from the employer (if any) of the deceased person immediately before the accident, providing particulars of the deceased person’s remuneration and prospects of promotion at the date of his or her death,

(ii)  copies of the deceased person’s income tax returns relating to income received during the period of 2 financial years ending immediately before the financial year that included the date of his or her death,

(iii)  copies of all documents, including accounts and receipts, in support of any claim for the cost of a funeral or headstone or for any other expenses relating to the deceased person’s death,

(iv)  copies of documents evidencing the net value of the estate of the deceased person.

(3)  On or as soon as practicable after serving the statement required by subrule (2), the plaintiff must file a copy of that statement (without the other documents required to be served by this rule).

(4)  If any, or any part of, any document required to be served by subrule (2) cannot be served, a statement of the reasons why it cannot be served must be included in the documents served.

15.14   Statements, documents and reports to be complete

(cf DCR Part 9, rule 27 (8)–(10))

(1)  The statement and documents required by rule 15.12 or 15.13 to be served:

(a)  must be as final and complete as to the plaintiff’s case as they can, with the exercise of reasonable diligence, be made, and

(b)  must contain such information as the plaintiff can then provide as to any medical examination of the plaintiff to be conducted after the date of service.

(2)  As soon as practicable after becoming aware that any information contained in a statement or document that has been served as required by rule 15.12 or 15.13 is no longer accurate and complete as regards the plaintiff’s claim, the plaintiff must give to all active parties such advice as is necessary to make that information accurate and complete.

(3)  If the plaintiff gives advice as referred to in subrule (2), the court may direct the plaintiff to file an amended statement of particulars.

(4)  Unless the court orders otherwise, the plaintiff must file a copy of the final statement of particulars at least 42 days prior to the date fixed for hearing or arbitration of the proceedings.

(5)  Subject to subrules (3) and (4), an amended statement of particulars may not be filed except by leave of the court.

15.15   (Repealed)

15.16   Effect of failure to comply with Division

(cf DCR Part 9, rule 27 (11))

If, after conducting a review or status conference or otherwise, the court is of the opinion that the plaintiff has not sufficiently complied with the requirements of this Division, the court may dismiss the proceedings or make such other order as it thinks fit.

15.17   Division not to apply in certain circumstances

(cf DCR Part 9, rule 27 (1))

This Division does not apply to a claim that is accompanied by:

(a)  a notice of motion seeking a separate trial on the question of liability, or

(b)  a notice of motion seeking an order to defer the application of this Division to the proceedings.

Division 3 Interim payments

15.18   Interim payments

(cf SCR Part 16, rule 8)

If an application for an order under section 82 of the Civil Procedure Act 2005 is made in any proceedings, the plaintiff must serve on the defendant against whom the order is sought, no later than the date of filing of notice of the motion:

(a)  if the application relates to a claim for damages in respect of personal injuries, the statement and documents referred to in rule 15.12, or

(b)  if the application relates to a claim for damages under the Compensation to Relatives Act 1897 that includes a claim for loss of maintenance and support, the statement and documents referred to in rule 15.13.

Division 4 Defamation

Note. The Defamation Act 2005 applies to the publication of defamatory matter after the commencement of that Act. The Act commenced on 1 January 2006. However, the Defamation Act 1974 (as in force before its repeal by the Defamation Act 2005) continues to apply to the following causes of action by virtue of clause 2 (Application of this Act) of Schedule 4 (Savings, transitional and other provisions) to the Defamation Act 2005:

(a)  a cause of action for defamation that accrued before 1 January 2006,

(b)  a cause of action for defamation that accrued after the commencement of the Defamation Act 2005, but only if:

(i)  the action is raised in proceedings that include other causes of action that accrued before 1 January 2006, and

(ii)  the action accrued no later than 12 months after the earliest pre-1 January 2006 action accrued, and

(iii)  each action in the proceedings arose out of the publication of the same, or substantially the same, matter on different occasions.

Clause 2 of Schedule 4 to the Defamation Act 2005 also ensures that any other law (both legislative and common law) that would have applied to such causes of action but for the enactment of the new Act will continue to apply to such causes of action.

15.19   Particulars in relation to statements of claim for defamation

(cf SCR Part 67, rule 12; DCR Part 49, rule 11)

(1)  The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter must include the following:

(a)  particulars of any publication on which the plaintiff relies to establish the cause of action, sufficient to enable the publication to be identified,

(b)  particulars of any publication, circulation or distribution of the matter complained of or copy of the matter complained of on which the plaintiff relies on the question of damages, sufficient to enable the publication, circulation or distribution to be identified,

(c)  if the plaintiff alleges that the matter complained of had a defamatory meaning other than its ordinary meaning—particulars of the facts and matters on which the plaintiff relies to establish that defamatory meaning, including:

(i)  full and complete particulars of the facts and matters relied on to establish a true innuendo, and

(ii)  by reference to name or class, the identity of those to whom those facts and matters were known,

(d)  if the plaintiff is not named in the matter complained of—particulars of identification of the plaintiff together with the identity, by reference to names and addresses or class of persons, of those to whom any such particulars were known, and

(e)  particulars of the part or parts of the matter complained of relied on by the plaintiff in support of each pleaded imputation.

(2)  Such of the following as is applicable must be filed and served with a statement of claim seeking relief in relation to the publication of defamatory matter (or any amended statement of claim) and be referred to in the statement of claim or amended statement of claim:

(a)  a legible photocopy of the original publication or, in the case of an internet, e-mail or other computer displayed publication, a printed copy,

(b)  a typescript, with numbered lines, of:

(i)  if the original publication is in English—the text of the original publication, or

(ii)  otherwise—a translation of the text of the original publication.

(3)  Subrule (2) (b) must be complied with in respect of radio and television publications.

15.20   Particulars in relation to statements of claim by corporations

The particulars required by rule 15.1 in relation to a statement of claim seeking relief in relation to the publication of defamatory matter about a corporation must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that the corporation is not precluded from asserting a cause of action for defamation.

Note. Subject to limited exceptions, corporations are precluded from bringing defamation proceedings:

(a)  in relation to causes of action to which the Defamation Act 1974 applies, by section 8A of that Act, and

(b)  in relation to causes of action to which the Defamation Act 2005 applies, by section 9 of that Act.

15.21   Particulars of defamation defences generally

(cf SCR Part 67, rule 18; DCR Part 49, rule 17)

(1)  The particulars of a defamation defence required by rule 15.1 must, unless the court orders otherwise, include particulars of the facts, matters and circumstances on which the defendant relies to establish:

(a)  that any imputation, notice, report, comment or other material was or related to a matter of public interest,

(b)  that any imputation was published under qualified privilege,

(c)  that any imputation or contextual imputation was true or was a matter of substantial truth,

(d)  that any material being proper material for comment was a matter of substantial truth.

(2)  If a defendant in proceedings for defamation intends to make a case in mitigation of damages by reference to:

(a)  the circumstances in which the publication complained of was made, or

(b)  the reputation of the plaintiff, or

(c)  any apology for, or explanation or correction or retraction of, any imputation complained of, or

(d)  any recovery, proceedings, receipt or agreement to which section 48 of the Defamation Act 1974 or section 38 (1) (c), (d) or (e) of the Defamation Act 2005 applies,

      the defendant must give particulars of the facts, matters and circumstances on which the defendant relies to make that case.

(3)  If a defendant in proceedings for defamation intends to show, in mitigation of damages, that any imputation complained of was true or was a matter of substantial truth, the defendant must give particulars identifying the imputation, stating that intention, and of the facts, matters and circumstances the defendant relies on to establish that the imputation was true or was a matter of substantial truth.

(4)  The particulars required by subrules (2) and (3) must be set out in the defence, or, if that is inconvenient, may be set out in a separate document, referred to in the defence and that document must be filed and served with the defence.

15.22   Particulars in relation to defence of justification

(1) Defence under section 15 of Defamation Act 1974
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 15 (2) of the Defamation Act 1974 must (unless the court orders otherwise) include particulars of the facts, matters and circumstances on which the defendant relies to establish:

(a)  that the imputation in question was a matter of substantial truth, and

(b)  either:

(i)  that the imputation in question related to a matter of public interest, or

(ii)  that the imputation in question was published under qualified privilege.

Note. The defence of justification under section 15 (2) of the Defamation Act 1974 applies to the exclusion of the common law defence of justification. See section 15 (1) of the Defamation Act 1974.

(2) Defences under section 25 of Defamation Act 2005 and at common law
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of justification under section 25 of the Defamation Act 2005 or at common law must (unless the court orders otherwise) include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation in question was substantially true.

Note. The defence of justification under section 25 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of justification. See section 24 (1) of the Defamation Act 2005.

15.23   Particulars in relation to the defence of contextual truth

(1) Defence under section 16 of Defamation Act 1974
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 16 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish:

(a)  that the imputation in question related to a matter of public interest or was published under qualified privilege, and

(b)  that the contextual imputations on which the defendant relies:

(i)  related to a matter of public interest or that they were published under qualified privilege, and

(ii)  are matters of substantial truth.

(2) Defence under section 26 of Defamation Act 2005
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of contextual truth under section 26 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the contextual imputations on which the defendant relies are substantially true.

15.24   Particulars in relation to defence of absolute privilege

(1)  This rule applies:

(a)  to a defence of absolute privilege under Division 3 of Part 3 of the Defamation Act 1974 or under section 27 of the Defamation Act 2005, and

(b)  to the defence of absolute privilege at common law.

(2)  Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of absolute privilege to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation or matter complained of was published under absolute privilege.

15.25   Particulars in relation to defences for publication of public and official documents

(1) Defence under section 25 of Defamation Act 1974
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 25 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was:

(a)  a document or record specified as a document or record to which that section applies or a copy of such a document or record, or

(b)  a fair extract or fair abstract from, or a fair summary of, such a document or record.

(2) Defence under section 27 of Defamation Act 1974
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 27 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was a notice published in accordance with the direction of a court.

(3) Defence under section 28 of Defamation Act 2005
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 28 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the matter complained of was contained in:

(a)  a public document or a fair copy of a public document, or

(b)  a fair summary of, or a fair extract from, a public document.

15.26   Particulars in relation to defences of fair report of proceedings of public concern

(1) Defences under section 24 of Defamation Act 1974
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 24 of the Defamation Act 1974 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that:

(a)  the matter complained of was a fair protected report, or

(b)  the matter complained of was a later publication by the defendant of:

(i)  a protected report or a copy of the protected report, or a fair extract or fair abstract from, or fair summary of, a protected report that was previously published by another person, or

(ii)  material purporting to be a protected report or a copy of the protected report, or of a fair extract or fair abstract from, or fair summary of, material purporting to be a protected report that was previously published by another person,

      and the defendant did not have knowledge that should have made the defendant aware that the protected report is not fair or the material purporting to be a protected report was not a protected report or is not fair.

(2) Defences under section 29 of Defamation Act 2005
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 29 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that:

(a)  the matter complained of was, or was contained in, a fair report of any proceedings of public concern, or

(b)  the matter complained of:

(i)  was, or was contained in, an earlier published report of proceedings of public concern, and

(ii)  was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report,

      and the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.

15.27   Particulars in relation to defence of qualified privilege

(1)  This rule applies:

(a)  to a defence under Division 4 of Part 3 of the Defamation Act 1974 or section 30 of the Defamation Act 2005, and

(b)  to any other defence of qualified privilege other than any of the following:

(i)  a defence under Division 5, 6 or 7 of Part 3 of the Defamation Act 1974,

(ii)  a defence under section 28, 29 or 31 of the Defamation Act 2005,

(iii)  the defence of fair comment at common law.

(2)  Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of qualified privilege to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the imputation or matter complained of was published under qualified privilege.

15.28   Particulars in relation to defences of comment and honest opinion

(cf SCR Part 67, rule 17 (3)–(6); DCR Part 49, rule 16 (3)–(6))

(1) Defences under Division 7 of Part 3 of Defamation Act 1974
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of comment under Division 7 of Part 3 of the Defamation Act 1974 must include:

(a)  particulars identifying the material on which it is alleged that the matter alleged to be comment was comment and identifying to what extent that material is alleged to be proper material for comment, and

(b)  as to material alleged to be proper material for comment, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation.

(c)  if the defendant relies on a defence under section 33 of that Act—particulars identifying the servant or agent of the defendant whose comment it is alleged to be.

Note. A defence of fair comment under Division 7 of Part 3 of the Defamation Act 1974 applies to the exclusion of the common law defence of fair comment. See section 29 of the Defamation Act 1974.

(2) Defences under section 31 of Defamation Act 2005
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of honest opinion under section 31 of the Defamation Act 2005 must include:

(a)  particulars identifying the material on which it is alleged that the matter alleged to be an opinion was an opinion and identifying to what extent that material is alleged to be proper material, and

(b)  as to material alleged to be proper material, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation, and

(c)  if the defendant relies on a defence under section 31 (2) of that Act—particulars identifying the employee or agent of the defendant whose opinion it is alleged to be, and

(d)  if the defendant relies on a defence under section 31 (3) of that Act—particulars identifying the commentator whose opinion it is alleged to be.

Note. A defence of honest opinion under section 31 of the Defamation Act 2005 is in addition to, and does not vitiate, limit or abrogate, the common law defence of fair comment. See section 24 (1) of the Defamation Act 2005.

(3) Defence of fair comment at common law
Without limiting rule 15.21, the particulars required by rule 15.1 for a defence of fair comment at common law must include:

(a)  particulars identifying the material on which it is alleged that the matter alleged to be comment was comment and identifying to what extent that material is alleged to be based on true facts or material that was published under privilege, and

(b)  as to material alleged to be true facts or material that was published under privilege, particulars of the facts, matters and circumstances on which the defendant relies to establish that allegation.

Note. See note to subrule (2).

15.29   Particulars in relation to defence of innocent dissemination

Without limiting rule 15.21, the particulars required by rule 15.1 for a defence under section 32 of the Defamation Act 2005 must include particulars of the facts, matters and circumstances on which the defendant relies to establish that:

(a)  the defendant published the matter complained of merely in the capacity, or as an employee or agent, of a subordinate distributor, and

(b)  the defendant neither knew, nor ought reasonably to have known, that the matter was defamatory, and

(c)  the defendant’s lack of knowledge was not due to any negligence on the part of the defendant.

15.30   Particulars in relation to defence of triviality

(1)  This rule applies to:

(a)  a defence under section 13 of the Defamation Act 1974, and

(b)  a defence under section 33 of the Defamation Act 2005.

(2)  Without limiting rule 15.21, the particulars required by rule 15.1 for a defence to which this rule applies must include particulars of the facts, matters and circumstances on which the defendant relies to establish that the circumstances of publication of the matter complained of were such that the plaintiff was unlikely to sustain any harm.

15.31   Particulars concerning grounds that defeat defamation defences

(cf SCR Part 67, rule 19 (1); DCR Part 49, rule 18)

(1)  If a plaintiff intends to meet any defamation defence:

(a)  by alleging that the defendant was actuated by express malice in the publication of the matter complained of, or

(b)  by relying on any matter which, under the Defamation Act 1974 or the Defamation Act 2005, defeats the defence,

      then the particulars required by rule 15.1 in relation to the reply must include particulars of the facts, matters and circumstances on which the plaintiff relies to establish that allegation or matter of defeasance.

(2)  The particulars required by subrule (1) must be set out in the reply, or, if that is inconvenient, may be set out in a separate document, referred to in the reply, and that document must be filed and served with the reply.

15.32   Particulars concerning damages

(cf SCR Part 67, rule 19 (2) and (3); DCR Part 49, rule 18)

The plaintiff must give:

(a)  particulars of facts, matters and circumstances on which the plaintiff will rely in support of a claim for aggravated damages, and

(b)  particulars of any claim the plaintiff makes by way of:

(i)  special damages, or

(ii)  any claim for general loss of business or custom.

Part 16 Default judgment

16.1   Application of Part

(cf SCR Part 17, rule 1; DCR Part 13, rule 1; LCR Part 11, rule 1)

This Part applies to proceedings commenced by statement of claim.

16.2   Definition of “in default”

(cf SCR Part 17, rule 2; DCR Part 13, rule 1; LCR Part 11, rule 1)

(1)  A defendant is in default for the purposes of this Part:

(a)  if the defendant fails to file a defence within the time limited by rule 14.3 (1) or within such further time as the court allows, or

(b)  if the defendant fails to file any affidavit verifying his or her defence in accordance with any requirement of these rules, or

(c)  if, the defendant having duly filed a defence, the court orders the defence to be struck out.

(2)  Despite subrule (1), a defendant is not in default if the defendant:

(a)  has made a payment towards a liquidated claim under rule 6.17, or

(b)  has filed an acknowledgment of claim under rule 20.34, or

(c)  has filed a defence after the time limited by these rules or allowed by the court, but before a default judgment is given against the defendant.

16.3   Procedure where defendant in default

(cf SCR Part 17, rule 3; DCR Part 13, rule 1)

(1)  If a defendant is in default, the plaintiff:

(a)  may apply for judgment to be given under this Part, according to the nature of his or her claim for relief, against the defendant in default, and

(b)  may carry on the proceedings against any other party to the proceedings.

(1A)  Unless the court otherwise orders, an application under this rule:

(a)  may be dealt with in the absence of the parties, and

(b)  need not be served on the defendant.

(2)  Unless the court orders otherwise, an application for judgment to be given under this Part must be accompanied by:

(a)  an affidavit of service of the statement of claim (the affidavit of service), and

(b)  an affidavit in support of the application (the affidavit in support).

(3)  An affidavit of service is unnecessary in relation to a statement of claim whose service has been effected by the Local Court under rule 10.1 (2).

(4)  Unless the court orders otherwise, an affidavit in support is valid for the purposes of an application only if it has been sworn within 14 days before the date on which the application is filed.

16.4   Default judgment on claim for possession of land

(cf SCR Part 17, rule 7)

(1)  Subject to rule 36.8, if the plaintiff’s claim against a defendant in default is for possession of land only, judgment may be given for the plaintiff for possession of land, as against the defendant, and for costs.

(2)  If, before judgment is given, any person files notice of motion for the person’s addition as a defendant, judgment may not be given under this rule until the motion is disposed of.

(3)  The relevant affidavit in support:

(a)  must identify any persons (other than parties to the proceedings) who were in occupation of the whole or any part of the land:

(i)  as at the time the originating process was filed, or

(ii)  if the claim for possession arises from an amendment to the originating process, as at the time the amendment was made,

      and, if any such person was in occupation of the land pursuant to a right of occupation under a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010, must contain a statement to that effect, and

(b)  in relation to each such person:

(i)  must state that the person’s occupation of the land is not to be disturbed, or

(ii)  must state that the person is no longer in occupation of any part of the land, or

(iii)  must state that the person has been served with a notice pursuant to rule 6.8 and that the time allowed for the person to apply to the court to be joined as a defendant has now passed,

      as the case requires, and

(c)  if the claim for possession of the land arises from a default in the payment of money, must give particulars of the default (including any payments made to date to reduce the amount owing and the current amount owing taking into account any such payments), and

(d)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the occupation of the land and any default in the payment of money referred to in paragraph (c), and

(e)  must state whether costs are claimed and, if so, how much is claimed for costs, indicating:

(i)  how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and

(ii)  how much is claimed on account of filing fees, and

(iii)  how much is claimed on account of the costs of serving the originating process, and

(f)  must state when and how the originating process was served on the defendant.

(4)  A reference in this rule to a residential tenancy agreement within the meaning of the Residential Tenancies Act 2010 is taken to include a reference to a residential tenancy agreement within the meaning of the Residential Tenancies Act 1987 as in force before its repeal.

16.5   Default judgment on claim for detention of goods

(cf SCR Part 17, rule 6)

(1)  If the plaintiff’s claim against a defendant in default relates to the detention of goods only, judgment may be given for the plaintiff against the defendant, in accordance with the plaintiff’s claim:

(a)  for delivery of the goods to the plaintiff and for costs, or

(b)  for payment to the plaintiff of the value of the goods (as assessed by or in accordance with the directions of the court) and for costs,

      at the plaintiff’s option.

Note. See Part 30 for provisions as to assessment of value of goods.

(2)  The relevant affidavit in support:

(a)  must state which goods have, and which have not, been delivered to the plaintiff since the time the originating process was filed, and

(b)  must give particulars of any payments that the defendant has made to the plaintiff in respect of the goods or state that no such payments have been made, as the case may be, since the time the originating process was filed, and

(c)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the delivery or non-delivery of the goods, and

(d)  must state whether costs are claimed and, if so, how much is claimed for costs, indicating:

(i)  how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and

(ii)  how much is claimed on account of filing fees, and

(iii)  how much is claimed on account of the costs of serving the originating process, and

(e)  must state when and how the originating process was served on the defendant.

16.6   Default judgment on debt or liquidated claim

(cf SCR Part 17, rule 4; DCR Part 13, rule 1; LCR Part 11, rule 1)

(1)  If the plaintiff’s claim against a defendant in default is for a debt or liquidated claim or for a claim for unliquidated damages of the kind referred to in rule 14.13 (2), judgment may be given for the plaintiff against the defendant for:

(a)  a sum not exceeding the sum claimed, and

(b)  interest up to judgment, and

(c)  costs.

(2)  The relevant affidavit in support:

(a)  must state the amount due to the plaintiff, in respect of the cause of action for which the proceedings were commenced, as at the time the originating process was filed, and

(b)  must give particulars of any reduction of that amount, and costs, as a consequence of any payments made, or credits accrued, since the time the originating process was filed, and

(c)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the debt or debts, and

(d)  must state the amount claimed by way of interest, and

(e)  must state whether costs are claimed and, if so, how much is claimed for costs, indicating:

(i)  how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and

(ii)  how much is claimed on account of filing fees, and

(iii)  how much is claimed on account of the costs of serving the originating process, and

(f)  must state when and how the originating process was served on the defendant.

16.7   Default judgment on claim for unliquidated damages

(cf SCR Part 17, rule 5)

(1)  If the plaintiff’s claim against a defendant in default is for unliquidated damages only, judgment may be given for the plaintiff against the defendant for damages to be assessed and for costs.

Note. See Part 30 for provisions as to assessment of damages.

(2)  The relevant affidavit in support:

(a)  must state that the matter has not been settled with the defendant, and

(b)  must state the source of the deponent’s knowledge of the matters stated in the affidavit concerning the claim, and

(c)  must state whether costs are claimed and, if so, how much is claimed for costs, indicating:

(i)  how much is claimed on account of professional costs (not exceeding the amount fixed by the regulations made for the purposes of section 329 of the Legal Profession Act 2004), and

(ii)  how much is claimed on account of filing fees, and

(iii)  how much is claimed on account of the costs of serving the originating process, and

(d)  must state when and how the originating process was served on the defendant.

16.8   Default judgment on mixed claims

(cf SCR Part 17, rule 8)

(1)  If the plaintiff’s claim against a defendant in default includes any 2 or more of the claims referred to in this Part, and no other claim, judgment may be given for the plaintiff against the defendant on any of those claims as if it were the plaintiff’s only claim for relief against that defendant.

(2)  In the case of two or more such claims, the relevant affidavit in support must comply with the requirements of this Part in relation to each of those claims.

16.9   Judgment for costs alone after other claims satisfied

(cf SCR Part 17, rule 10 (1); DCR Part 31, rule 13; LCR Part 26, rule 4)

(1)  If a plaintiff is entitled to have judgment given under this Part against a defendant in default for any relief and for costs, but it appears by affidavit that, by reason of the defendant having satisfied the plaintiff’s claims, it is unnecessary for the plaintiff to continue the proceedings against the defendant, judgment for the plaintiff may be given under this Part against that defendant for costs alone.

(2)  Whatever the plaintiff’s claims for relief against a defendant in default, if:

(a)  the defendant satisfies the plaintiff’s claims or complies with the plaintiff’s demands, or

(b)  it otherwise becomes unnecessary for the plaintiff to continue the proceedings against the defendant,

      the court may, on application by the plaintiff, give judgment against the defendant for costs.

16.10   Judgment not limited by plaintiff’s claims for relief

(cf SCR Part 17, rules 9 and 10 (2))

Whatever the plaintiff’s claims for relief against a defendant in default, the court may, on application by the plaintiff, give such judgment against the defendant as the plaintiff appears to be entitled to on his or her statement of claim.

Part 17 Admissions

17.1   Definitions

In this Part, other than rule 17.5:

the admitting party means a party who is admitting, or being asked to admit, any matter.

the requesting party means a party in whose favour another party is admitting, or being asked to admit, any matter.

17.2   Voluntary admissions of fact