(1) Where, on application by any person, it appears to the Court or a Judge that:
(a) the applicant, having made reasonable inquiries, is unable to ascertain the identity of a person for the purpose of commencing proceedings against that person or is unable to ascertain the description of any person sufficiently for that purpose; and
(b) some person has or may have knowledge of facts, or has or may have in his or her possession, custody or power any document or thing tending to assist in the ascertainment of the identity or description of the person concerned;
the Court or a Judge may order that person:
(c) to attend before the Court or a Judge and be orally examined on any matter relating to the identity or description of the person concerned; and
(d) to produce to the Court or a Judge any document or thing in his or her possession, custody or power relating to the identity or description of the person concerned.
(2) Where, on the application of any person, the matters mentioned in paragraph (1) (a) appear to the Court or a Judge and it further appears to the Court or a Judge that a corporation has or may have in its possession, custody or power any document or thing tending to assist in the ascertainment of the identity or description of the person concerned, the Court or a Judge may order the corporation or any officer of the Corporation to produce any document or thing in the possession, custody or power of the corporation relating to the identity or description of the person concerned.
(3) In this rule:
description includes the name, place or residence, place of business, occupation and sex of the person concerned.
person concerned means the person referred to in paragraph (1) (a).
(4) An application for an order under this rule shall be in accordance with Form 5A, the person or corporation against whom the order is claimed being made respondent to the application.
(5) An order made under subrule (1) or (2) shall be served personally on the person or corporation ordered to attend or to produce any document or thing.
(6) An application for an order under subrule (1) or (2) shall be made in the Division in which the proceedings referred to in paragraph (1) (a) would be dealt with.
(7) An order under subrule (1) or (2) shall not require a person to attend or to produce any document or thing on any day on which his or her attendance, or production by that person, is required, unless a sum sufficient to meet his or her reasonable expenses of complying with the order in relation to that day is paid or tendered to that person at the time of service of the order or not later than a reasonable time before that day.
(8) Where an order under subrule (2) requires a corporation to produce any document or thing, the sum mentioned in subrule (7) may be paid or tendered to any person apparently an officer of, or in the service of, the corporation and apparently of or above the age of sixteen years.
(9) Where any person incurs expense or loss in complying with an order under subrule (1) or (2) in an amount exceeding any sum paid under subrule (7), the Court or a Judge may order the applicant to pay to that person an amount sufficient to make good the expense or loss.
Order 5 Cross-claims and third party claims
1 Claim by respondent
(1) A respondent may cross-claim against an applicant for any relief to which the respondent would be entitled against the applicant if the applicant were a respondent in a separate proceeding commenced in the Court by the respondent for that purpose.
(2) A respondent may cross-claim against any person whether another party or a third party for any relief which is related to or connected with the subject of the proceeding.
(3) Without prejudice to the generality of subrule (2), a respondent may cross-claim for contribution or indemnity.
2 Cross-claim — Form 1
(1) A cross-claim shall be entitled in the proceeding with an addition showing the names of the parties to the cross-claim.
(2) Order 4, rule 3 applies to a cross-claim whether the cross-claim is against an applicant or any other person.
3 Title
On a cross-claim being filed, a document afterwards filed or used in the proceeding shall be entitled in the manner in which the cross-claim is entitled.
4 Rules applicable where statement of claim
Rules 5 and 6 of this Order apply where a proceeding is commenced by application supported by statement of claim, or where the Court has ordered that the proceeding continue on pleadings.
5 Pleading — Forms 8, 9, 10
(1) A respondent may file a pleading by way of cross-claim within the time fixed for filing his or her defence or any extension thereof.
(2) A cross-claim under subrule (1) shall be in accordance with Form 8, 9 or 10.
(3) Where a cross-claimant cross-claims solely against a party who claims in the proceeding against the cross-claimant, the cross‑claimant may add the cross-claim to his or her defence.
(4) Subject to Order 11, rule 16 (which relates to embarrassing proceedings and the like), a cross-claimant may in the cross‑claim plead all or any of the facts relied on by reference to the prior pleadings in the proceeding.
(5) A cross-claimant must, in addition to pleading any other facts on which he or she relies, plead the facts showing that the cross-claim is one to which rule 1 of this Order applies.
6 Service of prior pleadings — Form 11
(1) A respondent to a cross-claim who is made a party to the proceeding by the filing of the cross-claim may, by notice filed and served on the cross-claimant, require the cross-claimant to serve on him or her all or any of the pleadings in the proceeding filed before the filing of the cross-claim.
(2) A respondent to a cross-claim may add a notice under subrule (1) to his or her notice of appearance.
(3) Where a notice under subrule (1) is served on a cross-claimant then, unless the Court otherwise orders, the cross-claimant must, within 3 days after service of the notice or such longer time as may be specified in the notice, serve on the respondent to the cross-claim giving the notice each pleading mentioned in the notice.
7 Rules applicable where affidavit
Rules 8 and 9 apply where a proceeding is commenced by application supported by affidavit and where:
(a) a cross-claim is filed before the directions hearing; or
(b) a cross-claim is filed after the directions hearing and the Court has not ordered that the proceedings continue on pleadings.
8 Cross-claims by leave
(1) Subject to subrules 9 (1) and (2), a respondent may cross-claim against an applicant or any other party without the leave of the Court, but may not cross-claim against any other person not being a party without such leave.
(2) Subject to subrule (4), a respondent must not cross-claim against an applicant before he or she has filed an affidavit in reply to the applicant’s claim.
(3) A cross-claim must be in accordance with Form 8 or 9, and accompanied by an affidavit stating:
(a) the nature of the cross-claim;
(b) the material facts on which the cross-claimant relies; and
(c) the facts showing that the cross-claim is one to which rule 1 applies.
(4) A respondent who cross-claims against an applicant only may include the matters referred to in subrule (3) in the affidavit in reply to the applicant’s claim, and need not file a separate affidavit in support of the cross-claim.
9 Cross-claim after directions hearing
(1) A respondent desiring to cross-claim after the directions hearing must obtain all necessary directions at the directions hearing in relation to the cross-claim, including the time within which the cross-claim is to be filed.
(2) A respondent who does not obtain directions pursuant to subrule (1) must not cross-claim after the directions hearing without the leave of the Court.
10 Service
(1) Where a respondent to a cross-claim has, on the date of filing the cross-claim, an address for service in the proceeding, the cross-claimant must, on that date, serve the cross-claim on the respondent to the cross-claim.
(2) Where a respondent to a cross-claim has an address for service in the proceeding, personal service of the cross-claim on the respondent is not required.
(3) Order 7, rule 11 (which relates to cases where filing operates as service) does not apply to the service of a cross-claim.
11 Conduct of proceeding generally
(1) Subject to this Order and to Order 11, a proceeding on a cross‑claim must follow as nearly as may be the course of the proceeding on the originating process in respect of which the cross-claim is filed.
(2) Subject to this Order and to Order 11, and without limiting the generality of subrule (1), these Rules apply to a cross-claim and the proceeding arising from it as they apply to the originating process in respect of which the cross-claim is filed and the proceeding arising from it.
(3) Subrules (1) and (2) apply as if:
(a) the cross-claim were the originating process in respect of which the cross-claim is filed;
(b) the cross-claimant were an applicant; and
(c) the respondent to the cross-claim were a respondent.
(4) An applicant in an originating process need not enter an appearance to a cross-claim in the same proceeding.
(5) An appearance entered by a party to the proceeding shall, upon service of a cross-claim on him or her, operate as an appearance to the cross-claim.
(6) A cross-respondent who has not previously entered an appearance in the original proceedings must enter an appearance:
(a) where the cross-claim is served on the cross-respondent before the date appointed for a directions hearing in the application in the original proceeding — before that date; or
(b) in any other case — within 14 days after service of the cross-claim on the cross-respondent cross-respondent.
(7) Subject to this Order, the trial or hearing and all other steps in the proceeding on the cross-claim must as far as practicable be carried on together with the trial or hearing and similar steps in the proceeding on the originating process in respect of which the cross-claim is filed.
12 Directions
(1) A party to the proceeding may, at any time after the filing of a cross-claim, move for directions.
(2) On any directions hearing, or on the trial or hearing of the cross-claim, the Court may:
(a) make any order or direction it may make under Order 10;
(b) order that any claim, question or issue in or arising on the cross-claim be tried in such manner as the Court may direct;
(c) give to a respondent to the cross-claim leave to defend the claim on the originating process or any other cross-claim in the proceeding, either alone or in addition to any other party;
(d) give to a respondent to the cross-claim leave to appear at the trial or hearing of the claim on the originating process or on any other cross-claim in the proceeding and to take such part in the trial or hearing as the Court thinks fit;
(e) dismiss the cross-claim;
(f) determine the extent to which the cross-claimant and a respondent to the cross-claim shall be bound as between themselves by a judgment (including a judgment by consent or by default) or decision (including a decision by consent) on the claim on the originating process or any other cross-claim in the proceeding;
(g) pronounce such judgment as the nature of the case may require;
(h) give such directions as the Court thinks fit for having the rights and liabilities of the parties determined and enforced, including any order or direction which may be made or given under this Order.
(3) Order 10, rules 4 to 7 apply to a motion for directions under this rule.
13 Default of respondent to cross-claim
Where a respondent to a cross-claim does not enter an appearance or file a defence, if and as required by these Rules, or does not file a defence in accordance with an order to do so, a judgment (including a judgment by default or by consent) or decision (including a decision by consent) on any claim, question or issue in the proceeding on the originating process or on any other cross-claim in the proceeding shall, unless the Court otherwise orders, be binding as between the cross‑claimant and the respondent to the cross-claim so far as the judgment or decision is relevant to any claim, question or issue in the proceeding on the cross-claim.
14 Setting aside default judgment
Where judgment on a cross-claim is pronounced and an order made in default of appearance or where applicable, in default of defence or in consequence of default in compliance with an order or direction of the Court, the Court may set aside or vary the judgment or order.
15 Separate prosecution
A cross-claim may proceed notwithstanding that judgment has been pronounced and an order made and entered on the originating process or any other cross-claim in the proceeding, or that the proceeding on the originating process or any other cross-claim is stayed, dismissed or discontinued.
16 Contribution or indemnity
Where a respondent makes a cross-claim for contribution or indemnity in respect of a claim against him or her in the proceeding:
(a) an order on a judgment for the claimant on the cross-claim must not be entered except by direction of the Court;
(b) judgment for the claimant on the cross-claim shall not, unless the Court otherwise orders, be enforced by execution until satisfaction of any judgment in the proceeding against the cross-claimant.
17 Offer of contribution
Where in any proceeding:
(a) a party (in this rule called the first party) stands to be held liable to another party (in this rule called the second party) to contribute towards any debt or damages which may be recovered against the second party in the proceeding; and
(b) the first party, at any time after entering an appearance, makes an offer to the second party to contribute to a specific extent to the debt or damages;
then, if the first party makes the offer without prejudice to his or her defence, the offer shall not be brought to the attention of the Court until all questions of liability or amount of debt or damages have been decided.
Order 6 Parties and causes of action
1 Multiple claims
Subject to rule 6, an applicant, whether claiming in the same or different capacities, may, in any proceeding, claim relief in respect of more than one cause of action.
2 Joinder of parties generally
Two or more persons may be joined as applicants or respondents in any proceeding:
(a) where:
(i) if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and
(ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or
(b) where the Court gives leave so to do.
3 Joint right
(1) Where, in any proceeding, the applicant claims relief to which any other person is entitled jointly with the applicant:
(a) all persons so entitled shall be parties to the proceeding; and
(b) any of them who does not consent to being joined as an applicant shall be made a respondent.
(2) Subrule (1) applies subject to any Act and applies unless the Court gives leave to the contrary.
4 Leave under rule 2 and subrule 3 (2)
(1) The Court may grant leave under rule 2 or subrule 3 (2) before or after the non-joinder.
(2) An applicant may apply for leave under rule 2 or subrule 3 (2):
(a) either before or after the filing of the originating process; and
(b) without serving notice of the motion on any person on whom the application has not been served.
5 Common liability
(1) Where, in any proceeding, relief is claimed against a respondent who is jointly liable with some other person and also severally liable, that other person need not be made a respondent to the proceeding.
(2) Where persons may be jointly, but not severally, liable and relief is claimed against some but not all of those persons in a proceeding, the Court may stay the proceeding until the other persons so liable are added as respondents.
6 Inconvenient joinder
Where any joinder of parties or of causes of action may complicate or delay trial of the proceeding or is otherwise inconvenient, the Court may order separate trials or make such other order as the Court thinks fit.
7 Misjoinder and non-joinder of parties
(1) A proceeding shall not be defeated by reason of the misjoinder of a party or the non-joinder of any person as a party.
(2) The Court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the parties.
8 Addition of parties
(1) Where a person who is not a party:
(a) ought to have been joined as a party; or
(b) is a person whose joinder as a party is necessary to ensure that all matters in dispute in the proceeding may be effectually and completely determined and adjudicated upon;
the Court, on application by that person or by any party, or of its own motion, may order that the person be added as a party and make orders for the further conduct of the proceeding.
(2) A person must not be added as an applicant without his or her consent.
9 Removal of parties
Where a party:
(a) has been improperly or unnecessarily joined; or
(b) has ceased to be a proper or necessary party;
the Court, on application by any party or of its own motion, may order that the first-named party cease to be a party and make orders for the further conduct of the proceeding.
10 Death, transmission etc
(1) Where a party dies or becomes bankrupt but a cause of action in the proceeding survives, the proceeding shall not abate by reason of the death or bankruptcy.
(2) Where the interest or liability of a party passes, by assignment, transmission, devolution or otherwise to another person, the Court may make orders for the addition, removal or re‑arrangement of parties and may make orders for the further conduct of the proceeding.
(3) The Court may act under subrule (2) on application by a party or by a person to whom the interest or liability passes, or of its own motion.
11 Further conduct of proceedings
(1) Without limiting the generality of the powers of the Court under rules 8, 9 and 10, orders under those rules for the further conduct of the proceeding may include orders relating to:
(a) service of the order and other documents in the proceeding;
(b) amendment;
(c) appearance of added parties; and
(d) substitution of one party for another party or former party.
(2) Where the Court orders that a party be substituted for another party or a former party, all things done in the proceeding before the making of the order, unless the Court otherwise orders, have effect in relation to the new party as those things had effect in relation to the old, but entry of appearance by the old party is not to dispense with entry of appearance by the new.
(3) Subject to subrule (2), where a party is added pursuant to an order under rule 8 or rule 10, the date of commencement of the proceeding so far as concerns that party, is:
(a) the date of filing of the originating process, amended to add that person as a party; or
(b) if an amended originating process is not filed — the date of the amendment adding that person as a party.
12 Failure to proceed after death of party
(a) a party dies but a cause of action in the proceeding survives; and
(b) an order under rule 10 for the addition of a party in substitution for the deceased party is not made within 3 months after the death;
the Court may, on application by a party or by a person to whom liability on the cause of action survives on the death, order that, unless, within a specified time after service of the order in accordance with subrule (2), a party is added in substitution for the deceased party, the proceedings be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon, as the case may be, survives on the death.
(2) On making an order under subrule (1), the Court shall give such directions as it thinks fit for service of the order on the persons (whether parties or not) interested in continuing the proceeding.
13 Representation: concurrent interests
(1) Where numerous persons have the same interest in any proceeding the proceeding may be commenced, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing all, or as representing all except one or more of them.
(2) At any stage of a proceeding under this rule, the Court, on the application of the applicant, may appoint any one or more of the respondents or other persons (as representing whom the respondents are sued) to represent all, or all except one or more, of those persons in the proceeding.
(3) Where, under subrule (2), the Court appoints a person who is not a respondent, the Court must make an order under rule 8 adding that person as a respondent.
(4) A judgment pronounced or an order made in a proceeding under this rule is binding on all the persons as representing whom the applicants sue or, as the case may be, the respondents are sued, but must not be enforced against any person not a party to the proceeding except with the leave of the Court.
(5) An application for leave under subrule (4) may be made only by motion, notice of which must be served personally on the person against whom it is sought to enforce the judgment or order.
(6) Notwithstanding that a judgment or order to which an application under subrule (5) relates is binding on the person against whom the application is made, that person may dispute liability to have the judgment or order enforced against him or her on the ground that by reason of facts and matters particular to the case he or she is entitled to be exempted from the liability.
(7) This rule does not apply to a proceeding concerning property subject to a trust or included in a deceased estate.
14 Representation of beneficiaries by trustees
(1) A proceeding concerning property subject to a trust or included in a deceased estate may be brought by or against the trustees or personal representatives without joining a person having a beneficial interest in the trust or estate and unless the Court otherwise orders on the ground that the trustees or personal representatives could not or did not represent the interest of that person, an order granted or made in the proceedings is binding on that person.
(2) Subrule (1) does not limit the power of the Court to order a person having an interest to be made a party.
15 Deceased person
(1) Where in any proceeding it appears to the Court that a deceased person was interested, or that the estate of a deceased person is interested, in any matter in question in the proceeding, and that the estate has no personal representative, the Court may, on the application of any party:
(a) order that the proceeding continue in the absence of a person representing the estate; or
(b) by order (with the consent of the person appointed) appoint a person to represent that estate for the purposes of the proceeding.
(2) An order under subrule (1), and any judgment or order subsequently pronounced or made in the proceeding, binds the estate of the deceased person to the same extent as the estate would have been bound had a personal representative of the deceased person been a party to the proceeding.
(3) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.
16 Conduct
The Court may give the conduct of the whole or any part of any proceeding to such person as it thinks fit.
Order 7 Service
1 Originating process
(1) Subject to the provisions of this Order, originating process must be served personally on each respondent.
(2) The copy for service shall be signed and sealed as mentioned in Order 4, rule 7.
(3) Where a respondent to any originating process files an unconditional appearance, the originating process shall be taken to have been served on the respondent personally on the date on which the respondent’s notice of appearance is filed or on such earlier date as may be proved.
2 Personal service: how effected
(1) Personal service of a document is effected on:
(a) an individual — by leaving a copy of the document with him or her;
(b) a corporation — by leaving a copy of the document with some person apparently an officer of or in the service of the corporation and apparently of or above the age of sixteen years:
(i) at the registered office of the corporation; or
(ii) if there is no registered office, at the principal place of business or the principal office of the corporation; and
(c) an unincorporated association — by leaving a copy of the document at the principal place of business or the principal office of the association with some person apparently an officer of or in the service of the association and apparently of or above the age of sixteen years; and
(d) an organisation — by leaving a copy of the document with some person apparently an officer of or in the service of the organisation and apparently of or above the age of 16 years at the office of the organisation shown in the copy records of the organisation lodged in the Industrial Registry under section 268 of the Act;
or as the Court or a Judge may direct.
(2) If a person refuses to accept service of a document, personal service may be effected on the person by putting the document down in his or her presence and telling him or her the nature of it.
(3) It shall not be necessary in order to effect personal service that the original document be shown.
(4) In spite of subrule 2 (1), personal service may be effected:
(a) on a company, as defined in section 9 of the Corporations Law of the Commonwealth or corresponding legislation of a State or Territory (the Corporations Law), in any manner permitted by section 220 of the Corporations Law; and
(b) on the liquidator of a company, in the manner permitted by subsection 220 (5) of the Corporations Law; and
(c) on an official manager of a company, in the manner permitted by subsection 220 (6) of the Corporations Law.
3 Mode of service
A document which is not an originating process and which is required or permitted to be served in any proceeding may be served personally, but unless personal service is expressly required, it need not be served personally.
4 Ordinary service: how effected
(1) Where personal service of a document is not required, the document may be served:
(a) by leaving a copy of the document at the proper address of the person to be served between the hours of nine in the morning and five in the afternoon on any day on which the Registry in that State or Territory is open; or
(b) by sending a copy of the document by pre-paid post addressed to the person to be served at the person’s proper address; or
(c) where any enactment of the Commonwealth or of the State or Territory in which service is to be effected provides for service of a document on a corporation or organisation by serving the document in accordance with such provision; or
(d) where a person to be served has, under rule 7 of this Order, filed a notice for service at an exchange box of a solicitor or authorised representative, by leaving a copy of the document, addressed to that solicitor or authorised representative, in that exchange box; or
(e) by facsimile transmission directed to the facsimile transmission number operated at, or in connection with, the proper address.
(2) For the purposes of subrule (1), the proper address of a person shall be the address for service of that person in the proceeding but if, at the time when the copy is left or posted pursuant to subrule (1), the person has no address for service in the proceeding, the person’s usual or last known place of business or of abode shall be the proper address.
(3) The time of service of any document for the purpose of any proceeding shall, where the copy of the document:
(a) is sent by pre-paid post in accordance with paragraph (1) (b) — be seven days after the copy is so sent; or
(b) is left in an exchange box in accordance with paragraph (1) (d) — be two days after the copy is so left; or
(c) if the copy of the document is sent by facsimile transmission in accordance with paragraph (1) (e) — be one day after the copy is transmitted excluding Saturdays, Sundays and public holidays.