2A Discontinuance — unlawful termination of employment
An applicant for relief in respect of unlawful termination of employment may discontinue the proceeding at any time.
3 Costs
(1) Notwithstanding the filing of a notice of discontinuance pursuant to rule 2 or 2A, application may be made to the Court on motion for an order for payment of costs.
(2) The Court may determine the application and, subject to section 347 of the Act, make such order as it considers appropriate.
4 Withdrawal of defence reply etc — Form 30
(1) A party raising any matter in a defence or subsequent pleading may withdraw that matter at any time in accordance with Form 30.
(2) Subrule (1) does not enable a party to withdraw, without the consent of another party or the leave of the Court, an admission or any other matter operating for the benefit of that other party.
5 Mode of discontinuance or withdrawal
(1) A discontinuance or withdrawal under rule 2, 2A, 3 or 4 must be made by filing a notice stating the extent of the discontinuance or withdrawal.
(2) Where the discontinuance or withdrawal is by consent, the notice under subrule (1) must bear the consent of each consenting party.
A party filing a notice under rule 5 must, on the day of filing, serve the notice on each other party.
7 Effect of discontinuance
A discontinuance under this Order as to any cause of action shall not, subject to the terms of any leave to discontinue, be a defence to a proceeding for the same, or substantially the same, cause of action.
8 Stay to secure costs
(a) a party discontinues proceedings so far as concerns the whole or any part of any claim for relief;
(b) the party is liable to pay the costs of another party occasioned by the proceedings; and
(c) before payment of the costs, the party brings against that other party a further proceeding on the same or substantially the same cause of action as that on which the discontinued proceeding was brought;
the Court may stay the further proceeding until those costs are paid.
Order 23 Payment into Court
cause of action means a cause of action for the recovery of debt or damages; and
trial includes the hearing of a motion for judgment.
2 Bringing money into Court
(1) A respondent may from time to time:
(a) bring money into Court in answer to any one or more causes of action on which an applicant claims; and
(b) bring money into Court in addition to money previously brought in under this rule.
(2) A respondent may bring money into Court under this Order by paying the money into Court or by filing a security in accordance with rule 15.
3 Respondent to cross-claim
A respondent to a cross-claim may not bring money into Court in answer to a cause of action in respect of which the respondent may, before the trial, make an offer of contribution as mentioned in Order 5, rule 17.
4 Payment into Court not an admission
Payment of money into Court shall not be deemed an admission of liability.
5 Where tender before action pleaded
Where a respondent pleads or otherwise raises a defence of tender before action, the sum of money alleged to have been tendered shall unless the Court otherwise orders, be paid into Court.
6 Notice of deposit — Form 31
(1) On bringing money into Court under this Order, the respondent must file a notice of deposit in accordance with Form 31.
(2) Where an applicant claims on two or more causes of action and a respondent brings money into Court under this Order, the respondent must, in the notice of deposit:
(a) specify the cause or causes of action in answer to which the money is brought in; and
(b) if the respondent allots part of the money to any cause or causes of action — specify the amount of that part and the cause or causes of action to which he or she allots that part.
7 Order to allot
Where, before the beginning of the trial, a respondent brings money into Court or allots money under this Order in answer to two or more causes of action, the Court may order the respondent specifically to allot the money amongst the various causes of action and to file an amended notice of deposit accordingly.
8 Abandonments of cross-claim
Where a respondent:
(a) cross-claims against an applicant on any cause of action;
(b) brings money into Court under this Order; and
(c) in bringing the money into Court takes into account a cause of action against the applicant on the cross-claim with a view to its abandonment in case the applicant accepts the money;
the respondent shall, in the notice of deposit, specify the cause of action on the cross-claim thus taken into account.
9 Withdrawal by respondent — Form 32
(1) Subject to subrule (2), where:
(a) money brought into Court by a respondent is not accepted in accordance with rule 10; and
(b) leave of the Court is obtained;
the respondent may withdraw the whole or any part of money paid into Court or any security filed by the respondent in accordance with Form 32.
(2) A respondent may not make a withdrawal of any money after the money has been accepted by the applicant.
(3) A withdrawal under subrule (1) shall be made by filing a notice of withdrawal of deposit.
(4) On the filing of a notice of withdrawal of deposit under subrule (1) the respondent shall be entitled to receive payment of the money or delivery of the security as the case may be.
10 Acceptance by applicant — Forms 33 and 34
(1) An applicant may, within the time fixed by subrules (2), (3) and (4), accept money brought into Court in satisfaction of the cause of action in answer to which the money is brought in, as against the respondent bringing the money into Court.
(2) Where the notice of deposit or last notice of deposit, in answer to a cause of action is filed before the beginning of the trial, the applicant may accept the money in satisfaction of the cause of action within 14 days after service on him or her of the notice of deposit, or last notice of deposit, but before the beginning of the trial, by filing a notice of acceptance in accordance with Form 33.
(3) Where the notice of deposit, or last notice of deposit in answer to a cause of action is filed after the beginning of the trial, or a respondent, by notice, in accordance with Form 34, served on the applicant after the trial begins, confirms a notice of deposit, the applicant may, subject to subrule (4), accept the money in satisfaction of the cause of action within two days after service on him or her of the notice or the last notice, by announcement to the Court during the trial or by filing a notice of acceptance in accordance with Form 33.
(4) An applicant shall not accept money in a case to which subrule (3) applies:
(a) where the trial is before a jury — after the Judge begins to sum up to the jury; or
(b) in any other case — after the Judge gives his or her decision or begins to give his or her reasons for decision.
(5) A respondent who serves notice of confirmation under subrule (3) shall file the notice on the day of service.
(6) An applicant who accepts money by announcement to the Court under subrule (3) shall file a notice of acceptance in the prescribed form on the day of the announcement.
(7) Where an applicant who claims on more than one cause of action accepts money brought into Court in answer to some one or more but not all of the causes of action, he or she may, by filing a notice (which may be combined with a notice of acceptance), abandon all causes of action other than the cause of action to which the acceptance relates.
(8) Where an applicant who claims against two or more respondents on a cause of action against them jointly accepts money brought into Court by one or more but not all of those respondents in answer to that cause of action, he or she may, by filing a notice (which may be combined with a notice of acceptance), abandon any cause or causes of action against the other or all the others of those respondents.
(9) An applicant who accepts money under this rule shall, subject to rule 13, be entitled to receive payment of the money without any order.
11 Effect of acceptance
(1) On an applicant accepting money under rule 10 in satisfaction of a cause of action as against any respondent bringing money into Court, the proceeding shall be stayed in relation to:
(a) that cause of action, against that respondent;
(b) any alternative cause of action against that or any other respondent;
(c) any cause of action abandoned under subrule 10 (7) or subrule 10 (8); and
(d) where the respondent, in bringing the money into Court, has taken into account a cause of action on a cross-claim as mentioned in rule 8, that cause of action on the cross‑claim as against the applicant.
(2) Where a respondent brings money into Court in answer to a cause of action, and the applicant accepts the money in satisfaction of the cause of action as against that respondent, the liability of any other person (whether a party to the proceeding or not) jointly with that respondent on the cause of action:
(a) shall be satisfied in the amount of the money accepted; but
(b) shall not be discharged by the acceptance except to the extent of that satisfaction.
12 Withdrawal of acceptance — Form 35
(1) An applicant may, by filing a notice in accordance with Form 35, withdraw his or her acceptance of money brought into Court:
(a) where all or any of the money has been brought into Court by the filing of a security and the money accepted is not paid into Court within 7 days after service of notice of the acceptance on the respondent filing the security; or
(b) where the Court gives leave so to do.
(2) On withdrawal of an acceptance all steps in the proceeding taken in consequence of the acceptance shall have such effect only as the Court may direct.
(3) On withdrawal of an acceptance or on the motion for leave to withdraw an acceptance, the Court may:
(a) give directions under subrule (2);
(b) give directions for restoring the parties as nearly as may be to their positions at the time of the acceptance; and
(c) give directions for the further conduct of the proceeding.
13 Order for payment out after acceptance
Where an applicant accepts money in satisfaction of a cause of action, the money shall not be paid out except by order of the Court in the following cases:
(a) if the applicant claims on the cause of action against two or more respondents and any of those respondents does not join in bringing the money into Court and does not consent to the payment out;
(b) if the applicant claims on an alternative cause of action against a respondent who does not join in bringing the money into Court and does not consent to the payment out;
(c) if the money is brought into Court in answer to a cause of action to which the respondent bringing the money into Court pleads or otherwise properly raises a defence of tender before the commencement of the proceeding;
(d) if the applicant accepts the money after the beginning of the trial;
(e) if the applicant represents other persons pursuant to Order 6, rule 13; or
(f) if the applicant is a person under disability.
14 Non-disclosure
(1) Subject to subrules (2) and (3), the fact that money has been brought into Court must not:
(a) be pleaded or disclosed in an affidavit; or
(b) be disclosed to the Court at the trial or hearing of any question of liability or amount of debt or damages until all such questions have been decided.
(2) Subrule (1) does not apply where the money has been brought into Court in answer to a cause of action to which the respondent pleads or otherwise properly raises a defence of tender before commencement of the proceeding.
(3) Paragraph (1) (b) does not apply:
(a) where the applicant accepts the money pursuant to rule 10; or
(b) where the disclosure is necessary for the purpose of an application under this Order.
15 Security — Form 36
(1) A security filed for the purpose of bringing money into Court under this Order must be an instrument, in accordance with Form 36 and approved by the Registrar, by which an authorised person (whether a party to the proceeding or not):
(a) promises to observe the requirements of this Order with respect to a specified sum of money (in this rule called the money secured); and
(b) gives an address for service.
(2) A person who is a licensed or authorised insurer under legislation of any State or Territory providing for workers’ compensation or the insurance of motor vehicles against third party claims, shall, unless the Court otherwise orders, be an authorised person for the purposes of this rule.
(3) A person approved by the Court shall be an authorised person for the purposes of this rule.
(4) A person giving security under this rule may pay the money secured into Court and thereupon:
(a) subject to any order or judgment for interest under this rule the person shall have no further liability on the security in the proceeding; and
(b) the money paid in shall, unless the Court otherwise orders, be dealt with as if brought into Court in place of the security by the party filing the security.
(5) Where a security has been filed, the Court may order the person giving the security to pay, within a time specified in the order, the whole or any part of the money secured into Court or to such person as the Court may direct.
(6) If a person giving a security fails to comply with an order under subrule (5), the Court may:
(a) order the person giving the security to pay into Court, or pay to such person as the Court may direct, interest on the money unpaid until payment at such rate not exceeding 10 per cent yearly as the Court may determine;
(b) in addition to any order as to costs which the court may make, order the person giving the security to pay the costs of any party incurred or thrown away by reason of failure to comply with the order under subrule (5).
(7) The Court may pronounce such judgment as the nature of the case may require in favour of any party against the person giving the security for the whole or any part of any money secured or interest or costs the subject of an order under subrule (5) or subrule (6) or for costs.
(8) A party moving for an order or direction under any of subrules (5), (6) and (7) must serve notice of the motion on the person giving the security.
(9) A party filing a security must, on the day of filing, serve a copy of it on each party interested.
16 Service
A party filing a notice under this Order must, on the day of filing, serve the notice on each other party on whom the notice has not previously been served.
Order 24 Evidence taken in Australia or abroad or evidence taken under Part IIIB of the Evidence Act 1905
1 Order for examination of witness — Forms 37, 38 and 39
The Court may, for the purpose of proceedings in the Court, make orders:
(a) for the examination of any person on oath before a Judge or before such other person as the Court may appoint as examiner at any place whether in or out of Australia; or
(b) for the sending of a letter of request to the judicial authorities of another country to take, or cause to be taken, the evidence of any person.
1A
The Court may in its discretion take evidence from a witness by telephone or video link or other similar means in accordance with such procedures as the Court directs.
2 Letter of request
(1) Upon the making of an order under paragraph 1 (b) or under paragraph 7V (1) (c) of the Evidence Act 1905 for the sending of a letter of request, the party obtaining the order must:
(a) lodge with the Registrar:
(i) a form of the appropriate letter of request;
(ii) the interrogatories (if any) and cross-interrogatories (if any) to accompany the letters of request; and
(iii) where English is not an official language of the country to whose judicial authorities the letter of request is to be sent, a translation of each of the documents mentioned in subparagraph (i) and (ii) in an official language of that country appropriate to the place where the evidence is to be taken; and
(b) file:
(i) a copy of each of the documents mentioned in paragraph (a); and
(ii) an undertaking by the party obtaining the order or the party’s solicitor or authorised representative to be responsible for all expenses incurred by the Court or by any person at the request of the Court in respect of the letter of request and, on being given notice of the amount of any such expenses, to pay the amount to the Registrar.
(2) A translation lodged under subparagraph (1) (a) (iii) must be certified by the person making it to be a correct translation, and the certificate must state the translator’s full name and address and qualifications for making the translation.
2A Procedure where orders are made under paragraph 7V (1) (a) or (b) of the Evidence Act 1905
Where an order is made pursuant to paragraph 7V (1) (a) or (b) of the Evidence Act 1905, rules 3 — 11 apply, mutatis mutandis, subject to any directions which may be given by the Court under subsection 7V (3) of that Act.
3 Documents for examiner
(1) The party obtaining an order for examination before an examiner under paragraph 1 (a) or under paragraph 7V (1) (a) or (b) of the Evidence Act 1905 shall furnish the examiner with copies of such of the documents in the proceeding as are necessary to inform the examiner of the questions to which the examination is to relate.
(2) Where the documents in the proceeding are not sufficient to inform the examiner of the questions to which the examination is to relate the Court shall, in the order for examination or in a later order, state the question to which the examination is to relate.
4 Appointment for examination
(1) Unless otherwise ordered by the Court, the examiner must appoint a place and time for the examination.
(2) A time appointed by an examiner under subrule (1) shall, having regard to the convenience of the person to be examined and to the circumstances, be as soon as practicable after the making of the order.
(3) An examiner who appoints a time under subrule (1) must give notice of the appointment to the party obtaining the order and that party shall, not less than 3 days before the time appointed, give notice of the appointment to each other party.
5 Conduct of examination
(1) The examiner shall permit each party and each party’s counsel and solicitor to attend the examination.
(2) Subject to this Order, the proceeding before the examiner shall be in accordance with the procedure of the Court.
(3) A person examined before an examiner may, unless the Court otherwise orders, be cross-examined and re-examined.
(4) The examination, cross-examination and re-examination of a person before an examiner shall, unless the Court otherwise orders, be conducted in like manner as at a trial.
(5) The examiner may put any question to a person examined before him or her as to:
(a) the meaning of any answer made by that person; or
(b) any matter arising in the course of the examination.
(6) The examiner may adjourn the examination from time to time or from place to place.
6 Examination of additional persons
The examiner may, with the consent in writing of each party to the proceeding, take the examination of any person in addition to the person named or provided for in the order for examination. If the examiner does so, he or she shall annex to the deposition of that person the consent of each of the parties.
7 Objection
If any person being examined before the examiner objects to answering any question or producing any document or thing:
(a) the examiner shall state to the parties his or her opinion on, but shall not decide, the validity of the ground for the objection;
(b) the question, the ground for the objection, the opinion
of the examiner, and the answer (if any) must be set out in the deposition of that person or in a statement attached
to the deposition; and
(c) the Court may, on motion by the person taking the objection or by any party, decide the validity of the ground for the objection.
8 Taking of depositions
(1) The deposition of a person examined before an examiner must be taken down by the examiner or a shorthand writer or some other person in the presence of the examiner.
(2) The deposition must contain as nearly as may be the statement of the person examined.
(3) The examiner may direct that the words of any question and the answer to the question be set out in the deposition.
(4) Subject to subrules (2) and (3) and subject to paragraph 7 (b) the deposition need not set out every question and answer.
9 Authentication and filing
(1) The deposition of a person examined (or the shorthand notes of his or her examination) must be read to or by the person.
(2) The examiner must, if any party so requests, ask the person examined to sign his or her deposition.
(3) The examiner must authenticate the deposition by signing it.
(4) The examiner shall make on, or attach to, the deposition a note of the time occupied in the examination and the fees received by him or her in respect of the examination.
(5) The examiner must send the deposition to the Registrar and the Registrar shall file it in the proceeding.
(6) The examiner must, unless the Court otherwise orders, send the exhibits to the Registrar and the Registrar shall deal with the exhibits in such manner as the Court may direct.
10 Special report
(1) The examiner may make to the Court a special report with regard to an examination and with regard to the absence of any person from, or the conduct of any person at, the examination.
(2) The Court may direct such proceedings to be taken, or make such order, on the report as the Court thinks fit.
11 Default of witness
(1) If a person who has been required by subpoena to attend before an examiner, and refuses to be sworn for the purposes of the examination or to answer any lawful question, or to produce any document or thing, the examiner must, at the request of any party, give to that party a certificate, signed by the examiner, of the refusal.
(2) The Court may, upon the certificate being filed, and on motion by any party:
(a) order that person to be sworn, or to answer the question or to produce the document or thing as the case may be; and
(b) order that person to pay any costs occasioned by his or her refusal.
Where a party has given an undertaking as mentioned in subparagraph 2 (1) (b) (ii) and does not, within 7 days after service on the party of notice of the amount of the expenses concerned, pay the amount of the expenses to the Registrar, the Court may, on application by the Registrar:
(a) order the party to pay the amount of the expenses to the Registrar; and
(b) stay the proceeding until payment so far as concerns the whole or any part of any claim for relief by that party.
13 Perpetuation of testimony
(1) Witnesses shall not be examined to perpetuate testimony unless a proceeding has been commenced for the purpose.
(2) Any person who would, in the circumstances alleged by that person to exist, become entitled, upon the happening of any future event, to any property, the right or claim to which cannot be tried before the happening of the future event, may commence a proceeding to perpetuate any testimony which may be material for establishing the right or claim.
(3) A proceeding to perpetuate the testimony of witnesses shall not be set down for trial.
(4) Where a proceeding to perpetuate testimony touches any matter or thing in which the Crown may have an interest, the Attorney-General may be made a respondent.
(5) Where, pursuant to subrule (4), the Attorney-General is made a respondent to a proceeding to perpetuate testimony, a deposition taken in that proceeding shall not be inadmissible in other proceedings by reason that the Crown was not a party to the proceeding to perpetuate testimony.
(6) Subrule (2) does not affect the right of any person to commence a proceeding to perpetuate testimony in cases to which that subrule does not apply.
14 Exclusion of evidence in criminal proceedings
This order does not affect the power of the Court in a criminal proceeding to exclude evidence that has been obtained illegally or would, if admitted, operate unfairly against a defendant.
Order 25 Interim orders
1 Order before commencement of proceeding
In an urgent case, the Court or a Judge may, on the application of a person who intends to commence a proceeding:
(a) grant an injunction;
(b) appoint a receiver; or
(c) make an order under rule 2;
to the same extent as if the applicant had commenced the proceeding and the application were made in the proceeding and whether or not the party against whom relief is sought has been given notice of the application.
2 Preservation of property
(1) In a proceeding concerning any property, or in a proceeding in which any question may arise as to any property, the Court or a Judge may make orders for the detention, custody, preservation or inspection of the property.
(2) An order under subrule (1) may authorise any person to enter any land or to do any other thing for the purpose of giving effect to the order.
(3) In a proceeding concerning the right of any party to a fund, the Court or a Judge may order that the fund be paid into Court or otherwise secured.
3 Disposal of personal property
Where, in a proceeding concerning any property (other than land) or in a proceeding in which any question may arise as to any property (other than land), it appears to the Court or a Judge that:
(a) the property is of a perishable nature or is likely to deteriorate; or
(b) for any other reason it is desirable that the property should be sold or otherwise disposed of;
the Court or the Judge may make an order for the sale or other disposal of the whole or any part of the property by such person, in such manner, and upon such terms (if any) as the Court or the Judge may direct.
4 Interim distribution
Where, in a proceeding concerning property, it appears to the Court or a Judge that the property is more than sufficient to answer the claims on the property for which provision ought to be made in the proceeding, the Court or the Judge may allow any part of the property to be conveyed, transferred or delivered to any person having an interest in the property.
5 Interim income
Where, in a proceeding concerning property, it appears to the Court or a Judge that the whole or any part of the income of the property is not required to answer the claims on the property or its income for which provision ought to be made in the proceeding, the Court or a Judge may allow that income or part to be paid during such period as the Court may determine, to all or any of the persons having an interest in the income.
6 Payment before ascertainment of all persons interested
Where two or more persons are entitled to share in a fund, the Court or a Judge may order or allow immediate payment to any of those persons of that person’s share without reserving any part of that share to meet the subsequent costs of ascertaining any other of those persons.
7 Terms: time for order
The Court or a Judge may make orders under this Order at any stage of the proceeding.
Order 26 Receivers
1 Receiver and manager
(1) A party applying for an order for the appointment of a receiver under any Act, shall move the Court or a Judge for the order on notice, but in urgent cases may move ex parte.
(2) Unless the Court otherwise orders, a person appointed by the Court as a receiver shall have the powers of a receiver and manager.
2 Address for service
A receiver must, within 7 days after appointment, file a notice specifying an address for service.
3 Security — Form 40
(1) Where the Court appoints a receiver, the Court may give directions for the filing by the receiver of security in accordance with this rule.
(2) Where the Court directs the appointment of a receiver, then, unless the Court otherwise orders, a person must not be appointed receiver pursuant to the direction until the person has filed a security in accordance with this rule.
(3) A security to be filed in accordance with this rule must be a security approved by the Court, that the receiver will account for what he or she receives as receiver and will deal with it as the Court may direct.
(4) Where a security has been filed under this rule, the Court may make orders for the vacation of the security.
4 Remuneration
A receiver shall be allowed such remuneration, if any, as may be fixed by the Court.
5 Accounts
(1) A receiver shall file accounts at such intervals or on such dates as the court may direct.
(2) The receiver must, on the day on which he or she files an account, obtain an appointment to pass the account and serve the account, with a note of the appointment, on each party interested who has an address for service in the proceeding.
(3) The receiver must, unless the Court otherwise orders, attend on the appointment to pass the account.
6 Default
(1) Where a receiver:
(a) is required by these Rules or by an order or direction of the Court:
(i) to file any account or affidavit;
(ii) to attend on an appointment to pass his or her account; or
(iii) to do any other thing; and
(b) does not carry out the requirement;
the Court may make such orders and give such directions as the Court thinks fit, including orders and directions for:
(c) the discharge of the receiver;
(d) the appointment of another receiver; and
(e) the payment of costs.
(2) Without limiting subrule (1), where a receiver who is required by these rules or by an order or direction of the Court to pay into Court any sum shown by his or her account as due from him or her, does not carry out the requirement, the Court may charge the receiver with interest at the rate of 10 per cent yearly on that sum while in the receiver’s possession.
(3) This rule does not limit the powers of the Court as to the enforcement of orders or as to the punishment of contempt.
7 Powers
(1) The Court may authorise a receiver to do (either in the receiver’s own name or in the name of the parties or any of them and either generally or in any particular instance) any act or thing which the parties or any of them might do if of full age and capacity.
(2) Subrule (1) has effect notwithstanding that the parties or any of them are not of full age and capacity.
(3) This rule does not limit the powers of the Court apart from this rule to authorise a receiver to do any act or thing.
8 Account on death
(1) Where a receiver in any proceeding dies, the Court may on motion in the proceeding, make such orders as the Court thinks fit for the filing and passing of accounts by the representatives of the deceased receiver or by any other person who has or has had possession or control of any property being subject to the receivership for the payment into Court of any amount shown to be due or for the delivery of any property being subject to the receivership.
(2) The Court shall not make any order under subrule (1) unless notice of the motion has been served on the representatives or any other person.
(3) Notice of a motion under this rule may be served in any manner in which a statement of claim may be served.
Order 27 Subpoenas
In this Order, unless the contrary intention appears:
person named means, in relation to a subpoena, the person to whom the subpoena is addressed.
subpoena for production means an order in writing requiring the person named to attend as directed by the order and produce a document or thing for the purpose of evidence.
subpoena to give evidence means an order in writing requiring the person named to attend as directed by the order for the purpose of giving evidence.
2 Power to issue
The Court may, in any proceeding, issue a subpoena to give evidence, or a subpoena for production, or a subpoena both to give evidence and for production in the prescribed form or in such other form as the Court may direct for the attendance of the person named before the Court or before any Judge, Judicial Registrar, officer, examiner or other person having authority to take evidence.
3 Conduct money
A person named shall be excused from complying with a subpoena requiring him or her to attend or produce any document or thing on any day on which his or her attendance is required unless a sum sufficient to meet the person’s reasonable expenses of complying with the subpoena in relation to that day is paid or tendered to him or her at the time of service of the subpoena or not later than a reasonable time before that day.
4 Production by non-party
(1) Where the person named in the subpoena for production of any document or thing, being a subpoena requiring attendance before the Court or a Judge, Judicial Registrar or officer of the Court, is not a party to the proceeding, the subpoena shall, unless the Court otherwise orders, permit the person to produce the document or thing to the Registrar at the Registry from which the subpoena was issued not later than the day before the first date on which his or her attendance is required, instead of attending and producing the document or thing as required by the subpoena.
(2) Where a document or thing is produced to the Registrar pursuant to subrule (1), the Registrar shall:
(a) give a receipt to the person producing the document or thing; and
(b) produce the document or thing as the nature of the case requires or as the Court may direct.
(3) This rule does not apply to so much of a subpoena as requires the person named to attend to testify in any proceeding.
4A Costs of complying with subpoena
(1) Where a person named in a subpoena who is not a party to the proceeding incurs substantial expense or loss in complying with the subpoena the Court or a Judge may order that the party who requested the issue of the subpoena pay to that person, in addition to any amount which the person served with the subpoena is entitled to be paid pursuant to rule 3, an amount to compensate the person for such expense or loss as is reasonably incurred or lost by that person in complying with the subpoena.
(2) Where an order is made under subrule (1) the Court or a Judge shall either fix the amount or direct that the amount shall be fixed by the taxing officer.
(3) The provisions of Order 62 shall apply mutatis mutandis to any taxation under this rule.
5 Banker’s books
(1) Where, in any proceeding, the person named in the subpoena is an officer of a bank, and the bank is not a party to the proceeding, and the subpoena requires the officer to produce any banker’s book, the contents of which can be proved under an enactment of the State or Territory in which the proceeding is pending by means other than the production of the book, the subpoena shall, unless the Court otherwise orders, expressly permit the officer to produce proof of the relevant entries in accordance with that enactment, instead of producing the banker’s book.
(2) The Registrar issuing a subpoena shall not be concerned to enquire whether subrule (1) applies to the subpoena but the Court may set aside as irregular a subpoena which does not comply with subrule (1).
6 Issue of subpoena
(1) On request by a party, the Registrar shall, unless the Court otherwise orders, issue a subpoena to give evidence or a subpoena for production or a subpoena for both testimony and production.
(2) A subpoena shall be issued under seal.
(3) A party requesting the issue of a subpoena shall file a copy of the subpoena.
(4) Subpoenas must be in accordance with Form 41, 42 or 43.
(5) Subrule (1) applies whether or not the proceedings were commenced in or transferred to the Registry to which the request is directed.
(6) If the Registrar is of the opinion that the issue of a subpoena may be an abuse of the process of the Court or be frivolous or vexatious, he or she may refer the request to a Judge for directions.
7 Document or thing in custody of a court
(1) The Registrar must not issue a subpoena for production of any document or thing in the custody of the Court or another court.
(2) A party desiring the production of a document or thing in the custody of another court must request the Registrar to proceed under subrule (3).
(3) On the receipt of a request under subrule (2), the Registrar must request the court holding the document or thing to send it to the Registrar.
(4) The Registrar must produce the document or thing as the nature of the case requires or as the Court may direct.
(1) Service of a subpoena must be effected in accordance with this rule and not otherwise.
(2) Service of a subpoena may be effected by handing it to the person named.
(3) If, on tender of a subpoena to the person named, the person refuses to accept it, the subpoena may be served by putting it down in his or her presence after he or she has been told of the nature of the subpoena.
(4) Where the person named in a subpoena is a party and has a solicitor or authorised representative in the proceeding, the subpoena may, with the consent of the solicitor or authorised representative, be served on the person named by leaving it at the person’s address for service.
(5) A subpoena shall not be enforced pursuant to Order 37 unless service of it has been effected in accordance with this rule.
9 Setting aside
(1) The Court may, on motion by the person named in a subpoena, set aside the subpoena wholly or in part.
(2) Notice of a motion under subrule (1) must be filed and must be served on the party on whose request the subpoena was issued.
Order 28 Security for costs
(a) references to an applicant extend to any person who makes a claim for relief in any proceedings; and
(b) references to a respondent extend to any person against whom a claim for relief is made in any proceeding.
2 Application
(1) An application that an applicant shall provide security for costs must be made by motion upon notice.
(2) The notice of motion must be supported by an affidavit stating the material facts and the grounds upon which security for costs is sought.
3 Cases for security
Where, in any proceeding, it appears to the Court on the application of a respondent that a proceeding may have been instituted vexatiously or without reasonable cause and:
(a) that an applicant is ordinarily resident outside Australia;
(b) that an applicant is suing, not for the applicant’s own benefit, but for the benefit of some other person and there is reason to believe that the applicant will be unable to pay the costs of the respondent if ordered to do so;
(c) subject to subrule (2), that the address of an applicant is not stated or is mis-stated in his or her originating process; or
(d) that an applicant has changed address after the commencement of the proceeding with a view to avoiding the consequences of the proceeding;
the Court may order that applicant to give such security as the Court thinks fit for the costs of the respondent of and incidental to the proceeding.
4 Manner of giving security
Where the Court orders an applicant to give security for costs, the security must be given in such manner, at such time, and in such terms (if any), as the Court may by order direct.
5 Stay or dismissal
(1) Where the court orders that the applicant provide security for costs, it may order:
(a) that the proceeding on any claims by the applicant for relief be stayed until security is provided; or
(b) that if the applicant fails to comply with the order to provide security within the time limited in the order, the proceeding be thereafter stayed or dismissed.
(2) Subject to subrule (1), the Court may set aside or vary any order made under this Order.
(3) Where a proceeding stands dismissed pursuant to an order under this Order, that order shall not be set aside or varied except in special circumstances.
6 Saving
This Order does not affect the provisions of any Act of the Commonwealth or of a State or Territory under which the Court may require security for costs to be given.
Order 29 Separate decision of questions: consolidation
Division 1 Separate decision of questions
In this Order, question includes any question or issue in any proceeding, whether of fact or law or partly of fact and partly of law, and whether raised by pleadings, agreement of parties or otherwise.
2 Order for decision
The Court may make orders for:
(a) the decision of any question separately from any other question, whether before, at or after any trial or further trial in the proceedings; and
(b) the statement of a case and the question for decision.
3 Orders, directions upon decision
Where any question is decided under this Order, the Court shall, subject to rule 4, make such order, grant such relief or give such directions as the nature of the case requires.
4 Disposal of proceedings
Where the decision of a question under this Order:
(a) substantially disposes of the proceeding or of the whole or any part of any claim for relief in the proceeding; or
(b) renders unnecessary any trial or further trial in the proceeding or on the whole or any part of any claim for relief in the proceeding;
the Court may, as the nature of the case requires:
(c) dismiss the proceeding or the whole or any part of any claim for relief in the proceeding; or
(d) pronounce any judgment; or
(e) make any other order.
Division 2 Consolidation
5 Consolidation etc
Where several proceedings are pending then, if it appears to the Court:
(a) that some common question of law or fact arises in both or all of them;
(b) that the rights to relief claimed therein are in respect of, or arise out of, the same transaction or series of transactions; or
(c) that for some other reason it is desirable to make an order under this rule;
the Court may order those proceedings to be consolidated or may order them to be tried at the same time or one immediately after another or may order them to be stayed until after the determination of any of them.
Order 30 Setting down
(a) a reference to the trial of a proceeding includes any interlocutory hearing for which a date for trial is required to be fixed in the proceeding; and
(b) the rules apply, with any necessary modification, to proceedings commenced by way of cross-claim.
2 Request to fix date for trial (Form 44)
(1) If the time provided for taking any step in a proceeding has ceased to run, and no date has been fixed for the trial of the proceeding, a party who is not in default may request the Registrar to fix a date for the trial by filing a notice in accordance with Form 44.
(2) The party filing notice must serve a copy of the notice on all other parties to the proceeding within 3 days after filing it.
3 Fixing date for trial
Where the Court or the Registrar is satisfied that a proceeding is ready for trial and fixes a date for trial, the Registrar must notify the date and place of the trial to all parties to the proceeding as soon as practicable after the date is fixed.
5 Want of prosecution
(1) If, before or after the date for trial of a proceeding is fixed, a party has not done any act required to be done by or under these Rules or has not prosecuted the proceeding with due diligence, the Court may:
(a) if the party in default is the applicant — order that the proceeding be stayed, or dismissed, as to the whole or any part of the relief claimed by the applicant in the proceeding; or
(b) if the party in default is a respondent — order that judgment be entered or an order be made against the respondent; or
(c) make any other order or give any directions that the Court thinks just, and specify such consequences for non‑compliance with the order or the directions as the Court thinks just.
(2) An order or direction under subrule (1) may be given:
(a) when a party not in default moves on notice for an order or direction; or
(b) after notice of default has been given by the Registrar to the party in default — of the Court’s own motion.
6 Place of trial
(1) Subject to subrule (2), the place of trial of a proceeding is to be the proper place.
(2) On the application of a party or of its own motion, the Court may direct that the trial, or part of the trial, of a proceeding be held at a place other than the proper place.
7 Vacating date for trial
A date for trial fixed by the Court may be vacated only by order of the Court.
Order 31 Juries
1 Notice of motion for jury trial
(1) A party applying for an order that the trial of a suit or of an issue of fact be heard by a Judge and jury must file and serve a notice of motion not later than 21 days before the date appointed for the trial.
(2) A notice of motion under subrule (1) must be supported by an affidavit stating the particular facts and grounds upon which the application is based.
Order 32 Trial
For the purposes of this Order:
(a) where the burden of proof on any issue lies on the applicant, the applicant shall begin; and
(b) where the burden of proof on all the issue lies on the respondent, the respondent shall begin.
2 Absence of party
(1) If, when a proceeding is called on for trial, any party is absent, the Court may:
(a) adjourn the trial;
(b) if the party absent is an applicant or cross-claimant dismiss the action or the cross-claim; or
(c) proceed with the trial generally or so far as concerns any claim for relief in the proceeding.
(2) Where the Court proceeds with a trial in the absence of a party, and at or at the conclusion of the trial an order is made, the Court, on motion by that party, may set aside or vary the order, and may give directions for the further conduct of the proceeding.
(3) Subrule (2) does not enable the Court to vary the verdict, finding or assessment of a jury at a trial except with the consent of each interested party present at the trial.
3 Default of appearance of both parties
(1) If, when a proceeding is called on for trial, no party appears, the Court may:
(a) adjourn the trial;
(b) order that the proceeding be struck out.
(2) Where an order is made under paragraph (1) (b) the proceeding shall thereupon, unless the Court otherwise orders, be wholly discontinued, and neither party shall be entitled to costs.
4 Conduct of the trial
(1) The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.
(2) Subject to subrule (1):
(a) where the only parties are the applicant and persons in the same interest and the respondent and persons in the same interest, and there is no cross-claim, the order of evidence and addresses shall be as provided by the following subrules of this rule; and
(b) in any other case, the order of evidence and addresses shall be as provided by the following subrules of this rule, subject to such modifications as the nature of the case may require.
(3) The party to begin may make an opening address and then adduce evidence.
(4) Where, at the conclusion of the evidence for the party to begin, no document or thing has been admitted in evidence on tender by the opposite party, the opposite party may elect to adduce evidence or not to adduce evidence.
(5) If, pursuant to subrule (4), the opposite party elects not to adduce evidence, the party to begin may make a closing address and then the opposite party may make an address.
(6) If, pursuant to subrule (4), the opposite party elects to adduce evidence, the opposite party may make an opening address before adducing evidence and, after adducing evidence, may make a closing address and thereupon the party to begin may make a closing address.
5 Record
(1) The associate, or other proper officer present at the trial, shall be clerk at the trial and shall maintain and complete a record of the trial.
(2) The associate or other proper officer shall:
(a) take charge of every document or object put in as an exhibit during the trial or hearing of a proceeding;
(b) mark or label every exhibit so as to indicate the party by whom the exhibit was put in, and so that all exhibits put in by a party are lettered or numbered consecutively; and
(c) make a list of the exhibits.
(3) The list of exhibits when completed shall form part of the record of the proceeding.
6 Death before judgment
(1) Where a party dies after the verdict or finding on the issues of fact, the Court may pronounce judgment, and the order of the judgment may be entered, notwithstanding the death.
(2) Subrule (1) does not affect the power of the Court to make orders under Order 6, rule 10 (which relates to change of parties by reason of death, etc.).
Order 33 Evidence: general
1 Witnesses at a trial
Unless the Court otherwise orders or the parties otherwise agree, the evidence of a witness at the trial of a cause shall be given orally.
2 Hearsay and copies
(1) This rule applies only to evidence other than evidence on an issue at a trial and only where the circumstances are such that undue delay or inconvenience would otherwise be caused.
(2) Where a statement on information and belief is made by a deponent in an affidavit, or by a witness being examined orally, and the deponent or witness gives the source and ground of the information, the Court or Judge may admit such statement notwithstanding that it is hearsay.
(3) Where a deponent swears in an affidavit, or a witness being examined orally states, that a document is a copy of an original, the Court or Judge may admit the document as evidence of the contents of the original notwithstanding that the original is not produced.
3 Dispensing with rules of evidence
The Court may at any stage of the proceedings:
(a) dispense with compliance with the rules of evidence for proving any matter which is not bona fide in dispute; or
(b) dispense with compliance with the rules of evidence where such compliance might occasion or involve unnecessary or unreasonable expense or delay, including, but without limiting the generality of this power, compliance with the rules relating to proof of handwriting or of documents and the proof of the identity of parties or of authority.
4 Depositions
(1) A deposition taken in the proceedings pursuant to Order 24, is admissible as evidence, but the Court may direct that the deposition be not admissible unless the party tendering it produces the deponent for cross-examination.
(2) This rule does not apply to evidence taken pursuant to an order made under subsection 7V (1) of the Evidence Act 1905 or a record of that evidence.
5 Evidence in other proceedings
(1) A party may, with the leave of the Court, but saving all just exceptions, read evidence taken, or an affidavit filed, in other proceedings.
(2) Subrule (1) does not enable evidence taken, or an affidavit filed, in other proceedings to be read as evidence on any issue at a trial, except in relation to the proof of particular facts.
6 Plans, photographs and models
(1) A party who intends to tender any plan, photograph or model at a trial or hearing must, not less than 7 days before the commencement of the trial or hearing, give the other parties an opportunity to inspect it and to agree to its admission without proof.
(2) Non-compliance with subrule (1) does not affect the admissibility of a plan, photograph or model.
7 Proof of court documents
(1) A document purporting to be marked with a seal of the Court is admissible in evidence without further proof.
(2) An office copy of a document filed in or issued out of the Court is admissible in evidence in all proceedings and between all parties to the same extent as the original document would be admissible.
(3) A document purporting to be marked with a seal of the Court and to be a copy of a document filed in or issued out of the Registry is admissible as an office copy of the latter document without further proof.
8 Production of court documents
Where, for the purpose of any proceedings, a person, by request in writing, requires a Registrar to produce to the Court, a Judge, a Judicial Registrar or an officer of the Court any document in the custody of the Registrar, the Registrar shall, unless the Court otherwise orders, produce the document in accordance with the request.
9 Consent of trustee etc
(1) A document purporting to contain the written consent of a person to act as tutor of a person under disability, to act as trustee, to act as receiver, or to act in any other office on appointment by the Court, and purporting to be executed and authenticated in accordance with subrule (2), is evidence of the consent.
(2) A document is sufficiently executed and authenticated for the purposes of subrule (1):
(a) where the consenting person is not a corporation, if the document is signed by the consenting person and the signature is verified by some other person; or
(b) where the consenting person is a corporation, if the seal of the corporation is affixed to the document in the presence of and attested by its clerk, secretary or other permanent officer or his or her deputy, and a member of the board of directors, council or other governing body of the corporation.
10 Leading questions to witness
Where a person is examined in relation to an investigation, inspection or report made by him or her in the course of carrying out public or official duties, the party calling the person may, unless the Court otherwise directs, examine that person by asking leading questions.
11 Privilege
(1) Where the Court, by subpoena or otherwise, orders any person to produce any document or thing, and any person makes and substantiates sufficient lawful objection to production on grounds of privilege, the Court shall not compel production of that document or thing except production to the Court for the purpose of ruling on the objection.
(2) Where a question is put to a person in the course of examination, and any person makes and substantiates sufficient lawful objection on grounds of privilege to the question being answered, the Court shall not compel an answer to the question.
(3) Subrule (1) applies where an order is made for production to, and subrule (2) applies where a question is put to a person in the course of examination before the Court or any officer of the Court, or any examiner, or other person authorised to receive evidence, whether on a trial or hearing or on any other occasion.
(4) This rule does not affect any rule of law which authorises or requires the withholding of any document or thing or the refusal to answer any question on the ground that the disclosure of the document or thing or the answering of the question would be injurious to the public interest.
12 Production on notice — Form 45
(1) Where a party to any proceedings serves on another party notice, in accordance with Form 45, requiring the party served to produce at any trial or hearing in the proceedings, or before any Judge, Judicial Registrar, officer, examiner or other person having authority to take evidence in the proceedings any document or thing for the purpose of evidence and the document or thing is in the possession, custody or power of the party served, the party served shall, unless the Court otherwise orders, produce the document or thing in accordance with the notice, without the need for any subpoena for production.
(2) Where the document or thing required to be produced in accordance with subrule (1) is not produced, the party serving the notice may lead secondary evidence of the contents or nature of the document or thing.
13 Attendance and production
(1) The Court may make orders for:
(a) the attendance of any person for the purpose of being examined; or
(b) the attendance of any person and production by him or her of any document or thing specified or described in the order.
(2) An order under subrule (1) may be made for the attendance of any person before, and production by the person to, the Court, a Judicial Registrar or any other officer of the Court, examiner, or other person authorised to take evidence, on any trial, hearing or other occasion.
(3) Subrules (1) and (2) apply whether or not the person for whose attendance the order is made has been required to attend by subpoena.
14 Attendance of prisoner in proceedings before Court or examiner
(1) A party requiring the production of a prisoner from lawful custody to give evidence in proceedings whether before the Court or before an examiner pursuant to Order 24, shall move for an order to that effect.
(2) A motion under subrule (1) may be made ex parte and shall be supported by an affidavit showing:
(a) the person in whose custody the prisoner is held; and
(b) the reasons for which the prisoner’s evidence and attendance are required.
(3) An order under subrule (1) shall be in accordance with Form 46.
15 Parties in lawful custody
(1) Where a party to a proceeding before the Court is in lawful custody, the Court may on the request of that party, or of any other party, or of its own motion make an order requiring production of that party and may make such order in relation to the continuing custody of that party as may in the opinion of the Court be appropriate.
(2) An order made under subrule (1) may if the Court thinks it appropriate be in accordance with Form 46B.
Order 34 Court expert
This Part does not apply to a question or matter to be tried before a jury.
2 Appointment
(1) Where a question for an expert witness arises in any proceedings the Court may, at any stage of the proceedings, on its own motion or on application by a party or the Registrar:
(a) appoint an expert as court expert to inquire into and report upon the question;
(b) authorise the court expert to inquire into and report upon the question and the facts relevant to it;
(c) direct the court expert to make a further or supplemental report or inquiry and report; and
(d) give such instructions as the Court thinks fit relating to any inquiry or report of the court expert.
(2) In subrule (1), expert, in relation to any question, means a person who has such knowledge or experience of, or in connection with, that question, or questions of the character of that question, that his or her opinion on that question would be admissible in evidence.
(3) Instructions pursuant to paragraph (1) (d) may include provision concerning any experiment or test for the purposes of any inquiry or report of a court expert.
3 Report
(1) The court expert must send his or her report to the Registrar, together with so many copies of the report as the Court may direct.
(2) The Registrar must send a copy of the report to each party interested in the question.
(3) Unless the Court otherwise orders, the report is admissible in evidence on the question on which it is made, but is not binding on any party except to the extent to which that party agrees to be bound by it.
4 Cross-examination
Upon application made by any party within 14 days after receiving a copy of a court expert’s report, the Court shall make an order for the cross-examination of the court expert by all the parties, either:
(a) before the Court, at the trial or at some other time; or
(b) before an examiner.
5 Remuneration
(1) The remuneration of the court expert shall be fixed by the Court and shall include:
(a) a report fee; and
(b) a proper sum for each day during which the expert is required to attend before the Court or before an examiner.
(2) Unless the Court otherwise orders, the parties shall be jointly and severally liable to the court expert to pay the remuneration fixed by the Court.
(3) The Court may, on application by any party or by the court expert, make orders in the proceedings for payment in or towards discharge of the liability of any party under subrule (2).
6 Further expert evidence
Where, pursuant to this Order, a court expert has made a report on any question:
(a) any party may adduce evidence of one other expert on the same question, but only if that party has, at a reasonable time before the commencement of the trial, hearing or examination at which the party adduces the evidence, given to the other interested parties notice of intention to do so; but
(b) subject to paragraph (a), a party shall not adduce evidence of any other expert on the same question, except with the leave of the Court.
Order 35 Judgments and orders
1 General relief
The Court may, at any stage of any proceedings, on the application of any party, pronounce such judgment or make such order as the nature of the case requires, notwithstanding that the applicant does not make a claim for relief extending to that order in any originating process.
2 Written reasons
The reasons of the Court for any order may, if in written form, be published by being delivered in open Court to an associate or other proper officer.
3 Date of effect
A judgment or order shall take effect on the date on which it is pronounced or made, unless the Court orders that it take effect at an earlier or later date.
4 Time for compliance
(1) Subject to subrules (3) and (4), an order which requires a person to do an act shall specify the time within which the person is required to do the act.
(2) The time shall, unless the Court otherwise orders, be 14 days after the date of service of the order on the person required to do the act.
(3) Subrules (1) and (2) apply to an order which requires a person to pay money into Court, but otherwise do not apply to so much of an order as requires a person to pay money.
(4) Where an order requires a person to do an act within a specified time, the Court may, by further order, vary that time.
(5) Where an order requires a person to do an act but does not specify a time, the Court may, by order, require the person to do the act within a specified time.
5 Fine
(1) Where the Court imposes a fine, the Court shall order that the person on whom the fine is imposed pay the fine to the Registrar within a specified time.
(2) Subject to the Act, the Registrar shall pay into the Consolidated Revenue Fund all moneys paid to him or her on account of any fine imposed by the Court.
6 Dismissal
(1) Where the Court makes an order for the dismissal of proceedings or for the dismissal of proceedings so far as concerns any cause of action or the whole or any part of any claim for relief, the Court may order that such dismissal shall be without prejudice to any right of the applicant or claimant to bring fresh proceedings or to claim the same relief in fresh proceedings.
(2) Where:
(a) the Court makes an order for the dismissal of proceedings so far as concerns any cause of action or the whole or any part of any claim for relief by any party;
(b) the Court orders that party to pay any costs; and
(c) before payment of the costs, that party brings against a party to whom the costs are payable further proceedings on the same or substantially the same cause of action or for the same or substantially the same relief;
the Court may stay the further proceedings until those costs are paid.
7 Setting aside
(1) The Court may vary or set aside a judgment or order before it has been entered.
(2) The Court, where it is not exercising its appellate or related jurisdiction under Division 5 of Part XIV of the Act, may if it thinks fit vary or set aside a judgment or order after the order has been entered where:
(a) the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default and whether or not the absent party had notice of the motion for the order;
(b) the order was obtained by fraud;
(c) the order is interlocutory;
(d) the order is an injunction or for the appointment of a receiver;
(e) the order does not reflect the intention of the Court; or
(f) the party in whose favour the order was made consents.
(3) A clerical mistake in a judgment or order, or an error arising in a judgment order from an accidental slip or omission, may at any time be corrected by the Court.
(4) Subrule (2) shall not affect the power of the Court to vary or terminate the operation of an order by a supplementary order.
8 Interest
A judgment debt carries interest at the rate of 12% per annum unless, in a particular case, the Court determines that justice requires that a lower rate should be applicable.
9 Judicial notice of order
(1) In any proceedings, the Court may take judicial notice of any order of the Court in the proceedings.
(2) In any proceedings, the Court may be informed of an order of the Court in the proceedings by (amongst other things) reference to a note made by the Judge, Judicial Registrar or Registrar making the order or by an associate or other proper officer.
10 Consent orders
(1) A written consent of the parties to a proceeding, or their solicitors or authorised representatives, to the making of an order in the proceeding may be filed in the Registry at the proper place.
(2) Notwithstanding anything contained in these Rules, upon the written consent being so filed, the Registrar must bring the matter before a Judge who, if he or she thinks fit, may, without any other application being made, direct the Registrar to draw up, sign and seal an order in accordance with the terms of the consent.
(3) The order shall state that it is made by consent and shall be of the same force and validity as if it had been made after a hearing by the Judge.
11 Undertakings
(a) a person (whether a party or not) gives an undertaking to the Court to do or refrain from doing any act or to pay any sum of money; and
(b) the person fails to fulfil the undertaking;
any party may move on notice for a judgment or order requiring that person to do or refrain from doing the act in question, or to pay the sum of money in question.
(2) The Court, on being satisfied that the undertaking was binding on the person, shall make the order referred to in subrule (1).
(3) The Court may be informed of an undertaking to the Court in the proceedings by (amongst other things) reference to a note made by the Judge, Judicial Registrar or Registrar before whom the undertaking was given or by an associate or other proper officer.
(4) This rule does not affect the powers of the Court to punish a person for contempt.
Order 36 Judgments and orders: entry
1 Lodgment — Form 47
A party desiring to enter an order shall lodge a draft of the order, in accordance with Form 47, with the Registrar.
2 Settlement
The Registrar may:
(a) settle the draft without an appointment for the attendance of the parties; or
(b) appoint a time and place for attendance of the parties to settle the draft.
3 Appointment for settlement
(1) Where the Registrar makes an appointment for settlement under paragraph 2 (b), the Registrar must notify the appointment to the party lodging the draft order.
(2) The party lodging the draft must serve notice of the appointment on all other parties, not less than 2 days before the appointed date.
4 Procedure on appointment
(1) Where a party has been served with notice of an appointment to settle a draft of an order, but does not attend on the appointment, or where the party lodging the draft does not attend on the appointment, the Registrar may settle the draft in the absence of that party.
(2) The Registrar shall, on or after the appointment, settle the draft.
5 Settlement without lodgment
(1) Where the entry of an order is authorised by the Rules or by a direction of the Court, the Registrar may, subject to subrule (3), draw and settle the order.
(2) The Registrar may exercise power under subrule (1):
(a) notwithstanding that no party has lodged a draft order; and
(b) without appointing any time or place for attendance of the parties on settlement.
(3) The Registrar must not exercise power under subrule (1) unless:
(a) the Court so directs, or
(b) a party so requests.
6 Signature
The Registrar must on settling a draft of an order, sign the draft or a fair copy of it.
7 Review
Where the Registrar has signed a draft of an order, but the order has not been entered, the Court may review the draft and give such directions as it thinks fit for varying the form and content of the draft.
8 Order: where entry required
(1) Unless the Court otherwise orders, a party may enter an order at any time.
(2) An order must be entered in the following cases:
(a) where the order only takes effect on the signing of the order;
(b) where the order is to be served;
(c) where the order is to be enforced;
(d) where an appeal from the order has been instituted, or an application for leave to appeal from the order has been made;
(e) where the Court so directs.
(3) Subject to subrule (4), an order must, unless the Court otherwise directs, be entered where some step is to be taken under the order.
(4) Subrule (3) does not apply to an order which (in addition to any provision as to costs) merely:
(a) makes an extension or abridgment of time; or
(b) grants leave or makes a direction:
(i) to amend any document other than an order;
(ii) to file any document; or
(iii) to do any act to be done by an officer of the Court other than a solicitor; or
(c) gives directions concerning the conduct of proceedings, or which refers a matter to the Australian Industrial Relations Commission for conciliation in accordance with section 170ED of the Act.
9 Manner of entry
(1) A party may enter an order by filing it in the form in which it has been settled by the Registrar.
(2) The Registrar may enter an order under subrule (1) on the direction of the Court or the request of a party.
(3) Unless the Court otherwise orders, the entry of an order shall bear the date on which it is pronounced or made.
10 Sealing
Upon its being entered, the Registrar shall seal the order with the seal of the Court.
11 Copies
(1) The Registrar shall, upon the request of any party, furnish that party with a certified or office copy of the order entered in the proceeding.
(2) The Registrar may, upon payment of the prescribed fee, furnish to any person appearing to have a sufficient interest in the order entered in any proceeding, a certified or office copy of the order.
(3) The Registrar must provide a certificate, in accordance with Form 47A, setting forth the particulars of the judgment, on the request of a judgment creditor.
12 Service
An order need not be served unless the Rules require service or the Court directs service.
Order 37 Judgments and orders: enforcement
1 Attendance
(1) Where the Court by subpoena or otherwise, makes an order in any proceedings for the attendance of a person:
(a) for the purpose of giving evidence;
(b) for the production of any document or thing;
(c) to answer a charge of contempt; or
(d) for any other purpose;
and the person defaults in attendance in accordance with the order, the Court may, on application by a party or of its own motion:
(e) issue, or make an order for the issue of, a warrant to the Sheriff or such other person as the Court may appoint for the arrest of the person in default and for the production of the person in default before the Court or before an examiner or other person for the purpose of the proceedings and for the person’s detention in custody in the meantime; and
(f) order the person in default to pay any costs occasioned by the default.
(2) Subrule (1) does not affect:
(a) the powers of the Court to punish for the contempt; or
(b) the provisions of Order 40 (which relates to contempt).
2 Service before committal or sequestration
(1) Subject to the Rules, an order shall not be enforced by committal or sequestration unless:
(a) the order or a certified or office copy thereof is served personally on the person bound; and
(b) if the order requires the person bound to do an act within a specified time, the order or a certified or office copy thereof is so served before that time expires.
(2) Subject to the Rules, where the person bound by an order is a corporation or organisation the order shall not be enforced by committal of an officer of the person bound or by sequestration of the property of an officer of the person bound unless, in addition to service under subrule (1) on the person bound:
(a) the order or a certified or office copy thereof is served personally on the officer; and
(b) if the order requires the person bound to do an act within a specified time, the order or a certified or office copy thereof is so served before that time expires.
(3) An order or a certified or office copy thereof served under this rule must bear a notice (naming the persons concerned) that the person served is liable to imprisonment or to sequestration of property if:
(a) where the order requires the person bound to do an act within a specified time, the person bound refuses or neglects to do the act within that time; or
(b) where the order requires the person bound to abstain from doing an act, the person bound disobeys the order.
(4) Subject to the Rules, where:
(a) an order requires the person bound to do an act; and
(b) another order specifies the time in which the act is required to be done;
each order or a certified or office copy thereof shall be served on the person bound before the expiry of that time as so abridged or extended.
(5) Where a person liable to committal or sequestration of his or her property by way of enforcement of a judgment or order has notice of the judgment or order:
(a) by being present when the judgment is pronounced or when the order is made; or
(b) by being notified of the terms of the judgment or order whether by telephone, telegram or otherwise;
the judgment or order may be enforced by committal of that person or by sequestration of his or her property notwithstanding that service has not been effected in accordance with this rule.
(6) The Court may dispense with service under this rule.
3 Substituted performance
(1) Where a judgment or order requires the person bound to do an act and the person bound does not do the act, the Court may:
(a) direct that the act be done by a person appointed by the Court; and
(b) order the person bound to pay the costs incurred pursuant to the direction.
(2) Subrule (1) does not affect any other mode of enforcement of the judgment or order, or the powers of the Court to punish for contempt.
4 Enforcements by or against non-party
(1) Where, in any proceeding, a person who is not a party obtains an order, or an order is made in favour of a person who is not a party, that person may enforce the order by the same means as if the person were a party.
(2) Where, in any proceeding, obedience to a judgment may be enforced against a person who is not a party, the judgment may be enforced against the person by the same means as if the person were a party.
(3) Where, in any proceeding, obedience to a judgment may be enforced against a corporation or organisation which is not a party, an officer of the corporation or organisation shall be liable to the same process of enforcement as if the corporation or organisation were a party.
5 Non-performance of condition
Where a person is entitled under a judgment subject to the fulfilment of a condition, and there is a failure to fulfil the condition, then, unless the Court otherwise orders:
(a) the person shall lose the benefit of the judgment; and
(b) any other person interested may take any steps which:
(i) are warranted by the judgment; or
(ii) might have been taken if the judgment had not been pronounced or the order had not been made.
6 Matters occurring after judgment
(1) A person bound by a judgment may move the Court for a stay of execution of the judgment, or for some other order, on the ground of matters occurring after the date on which the judgment takes effect and the Court may make such order as the nature of the case requires.
(2) Subrule (1) does not affect the powers of the Court to stay execution under rule 10.
7 Enforcement as in State and Territory Supreme Courts
(1) Subject to the Rules, and without limiting any other means of enforcement which may be available, the Court may, in order to enforce a judgment or order of the Court, make any order, issue any writ or take any other step that could be made, issued or taken, by the Supreme Court of the State or Territory in which the judgment or order is to be enforced if the judgment or order had been made by that Supreme Court.
(2) The modes of procedure and forms of process of the Supreme Court of the State or Territory in which the judgment or order is sought to be enforced shall be available and followed in the Court so far as is practicable mutatis mutandis for the enforcement of orders of the Court.
(3) The Sheriff when executing the orders of the Court, shall be authorised to act in the same manner and to the same extent as the Sheriff, or like officer of the Supreme Court of the State or Territory in which the order is being executed, is entitled to act.
(4) Where it is desired to enforce an order in more than one State or Territory:
(a) it shall not be necessary to adopt different modes of procedure and forms of process in each State or Territory; and
(b) it shall be sufficient to adopt the mode of procedure and form of process of the Supreme Court of one of the States or Territories in which execution is to be made, and to execute the order in like manner in the other States and Territories.
8 Ex parte application
A party interested in the execution or enforcement of an order may apply to the Court ex parte for directions as to its execution or enforcement.
9 Committal — Form 49
A person shall not be committed except by or under an order of the Court, in accordance with Form 49, stating why the person is being committed.
10 Stay of execution
The Court may stay execution of a judgment or order.
Order 38 Assessment of damages
1 Ascertainment of damages where a matter of calculation
(a) a respondent admits liability on an applicant’s claim, but denies liability to the extent of the damages claimed; or
(b) the Court finds that a party is liable to pay damages;
the Court, if it considers that the amount of damages to be recovered is substantially a matter of calculation, may direct that the amount which the party liable shall be ordered to pay be ascertained by the Registrar at the proper place.
(2) The attendance of witnesses and the production of documents before the Registrar may be compelled by subpoena.
(3) The Registrar may adjourn the inquiry from time to time.
2 Certificate of Registrar
(1) The Registrar shall certify the amount of damages ascertained pursuant to rule 1, and shall deliver a copy of the certificate to each party and, unless within 7 days of the delivery thereof any party objects, the Registrar shall deliver the certificate to a Judge, who, without the attendance of any party, may make an order that the person liable pay the amount of damages so ascertained.
(2) On an order being made under subrule (1), the Registrar must deliver a copy of the order to each party.
(3) Where an objection is made under subrule (1), the Registrar shall give notice of the objection to the other party and list the matter for hearing before the Court and deliver his or her certificate to the Court.
(4) On a hearing under subrule (3) it shall be a matter for the Court as to what weight should, in the circumstances of the case, be given to the certificate of the Registrar.
3 Damages in respect of continuing cause of action
Where damages are assessed in respect of a continuing cause of action, they shall be assessed down to the time of assessment.
Order 39 Accounts and inquiries
1 Account: summary order
(1) Subject to subrule (2), where a party claims an account
or makes a claim which involves taking an account, the
Court may, on application by that party at any stage of the proceedings:
(a) order that an account be taken; and
(b) order that any amount certified on taking the account to be due to any party be paid to that party.
(2) The Court shall not make an order under subrule (1):
(a) as against a respondent who has not filed an appearance and is not in default of appearance; or
(b) if it appears there is some preliminary question to be determined.
2 Account or inquiry at any stage
The Court may, on application by a party at any stage of proceedings, make orders for the taking of any account or the making of any inquiry.
3 Account: directions
Where the Court makes an order for the taking of an account, the Court, by the same or subsequent order:
(a) may give directions concerning the manner of taking or vouching the account; and
(b) without limiting paragraph (a), may direct that in taking the account the relevant books of account shall be evidence of the matters contained in them.
4 Account: form and verification
(1) The items on each side of an account shall be numbered consecutively.
(2) An accounting party shall, unless the Court otherwise orders, verify his or her account by affidavit and the account shall be made an exhibit to the affidavit.
5 Account: filing and service
An accounting party shall, unless the Court otherwise orders:
(a) file his or her account and verifying affidavit; and
(b) serve the account and affidavit on each other party on the date of filing.
6 Account: notice of charge or error
(1) A party who seeks to charge an accounting party with an amount beyond that of which the accounting party admits receipt shall give to the accounting party notice of the charge, stating the amount which the party seeks to charge, with brief particulars.
(2) A party who alleges that any item in the account of an accounting party is erroneous in amount or otherwise shall give to the accounting party notice of the allegation, stating the grounds for alleging the error.
7 Account: allowances
In taking an account under a judgment or order, all just allowances shall be made.
8 Delay
Where it appears to the Court that there is delay in the prosecution of any account, inquiry or other matter under a judgment or order, the Court may make such orders as it thinks fit for staying or expediting the proceedings or for the conduct of the proceedings.
9 Account: taken before Registrar
The Court may order any account or inquiry under this Order to be taken before or held by the Registrar.
10 Certificate of Registrar
(1) The Registrar shall certify the results of the account or inquiry taken or held pursuant to rule 9, and shall deliver a copy of the certificate to each party and, unless within 7 days of the delivery thereof any party objects, the Registrar shall deliver the certificate to a Judge, who, without the attendance of any party, may make an order that the person liable pay the amount so certified to be due to any party.
(2) Upon an order being made pursuant to subrule (1), the Registrar shall deliver a copy of the order to each party.
(3) Where an objection is made under subrule (1), the Registrar shall give notice of the objection to the other party and list the matter for hearing before the Court and deliver his or her certificate to the Court.
(4) Upon a hearing pursuant to subrule (3) it shall be a matter for the Court as to what weight should, in the circumstances of the case, be given to the certificate of the Registrar.
Order 40 Contempt
Division 1 Contempt in the face or hearing of the Court
1 Arrest
Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of court, committed in the face of the Court or in the hearing of the Court, the Court may:
(a) by oral order direct that the person be brought before the Court; or
(b) issue a warrant for the person’s arrest.
2 Charge, defence and determination
Where the accused person is brought before the Court, the Court shall:
(a) cause the person to be informed orally of the contempt with which he or she is charged;
(b) require the person to make his or her defence to the charge;
(c) after hearing the person, determine the matter of the charge; and
(d) make an order for the person’s punishment or discharge.
3 Interim custody
(1) The Court may, pending disposal of the charge:
(a) direct that the accused person be kept in such custody as the Court may determine; or
(b) direct that the person be released.
(2) The Court may make a direction under subrule (1) which may include a requirement that the accused person give security, in such sum as the Court directs, for his or her appearance in person to answer the charge.
Division 2 Motion or proceedings for punishment
4 Application
This Division does not apply to a case in which the Court proceeds under Division 1.
5 Procedure generally
(1) Where it is alleged that a contempt has been committed in connection with a proceeding in the Court, an application for punishment for the alleged contempt must be made by motion on notice in the proceeding, but if a separate proceeding for punishment of the alleged contempt is commenced, the proceeding so commenced may be continued unless the Court otherwise orders.
(2) Where it is alleged that a contempt has been committed, but not in connection with the proceeding in the Court, the proceeding for punishment of the alleged contempt must be commenced as a substantive proceeding but, if an application for punishment of the alleged contempt is made by motion on notice in any proceeding, the application may be heard and disposed of in the latter proceeding, unless the Court otherwise orders.
6 Statement of charge
A statement of charge, that is, a statement specifying the contempt of which the accused person is alleged to be guilty, shall be subscribed to, or filed with, the notice of motion or application.
7 Evidence
(1) Subject to subrule (2), the evidence in support of the charge shall be by affidavit.
(2) The Court may permit evidence in support of the charge to be given otherwise than by affidavit.
The notice of motion or application, the statement of charge, and the affidavits shall be served personally on the accused person.
9 Arrest — Form 48
(a) notice of a motion for punishment of a contempt has been filed or a proceeding has been commenced for punishment of a contempt; and
(b) it appears to the Court that the accused person is likely to abscond or otherwise withdraw from the jurisdiction of the Court;
the Court may issue a warrant for the arrest of the accused person and his or her detention in custody until he or she is brought before the Court to answer the charge, unless the accused person, in the meantime, gives security in such manner and in such sum as the Court directs, for his or her appearance in person to answer the charge and to be dealt with in accordance with any order of the Court.
10 Motion or proceedings by the Registrar
(1) Where it is alleged, or appears to the Court on its own view, that a person is guilty of contempt of the Court, the Court may, by order, direct the Registrar to apply by motion for, or to commence a proceeding for, punishment of the contempt.
(2) Subrule (1) does not affect such right as any person other than the Registrar may have to apply by motion for, or to commence a proceeding for, punishment of contempt.
11 Warrant — Form 48
A warrant for the arrest or detention under this Order of an accused person shall be addressed to the Sheriff and may be issued under the hand of the Judge presiding in the Court directing the arrest or detention.
12 Discharge
Where an accused person is committed to prison for a term, the Court may order the person’s discharge before the expiry of the term.
Order 41 Documents
1 First page of a document — Form 1
(1) A document in any proceeding must be headed in the manner indicated in Form 1, that is to say with a reference to:
(a) the District Registry in which the document is filed; and
(b) the serial number of the proceeding.
(2) A document in any proceeding between parties must be entitled between the parties.
Form 3
(3) A document in any proceeding in which there is no respondent must be entitled “The application of” together with the name of the applicant, in accordance with Form 3.
Form 2
(4) Except in the case of:
(a) an originating process;
(b) a document to be served on a person not a party to a proceeding; or
(c) a final order;
a document may bear an abbreviation of the title of the proceeding sufficient to identify the proceeding, in accordance with Form 2.
2 Documents
(1) This rule applies to a document prepared by a party for use in the Court, except to the extent that the nature of the document renders compliance impracticable.
(2) A document must be on paper of durable quality, capable of receiving ink writing, and measuring about 295 millimetres long and 210 millimetres wide provided that the Chief Justice may direct that documents of different dimensions be accepted in the case of any particular Registry.
(3) The writing on a document must be on one face of the paper only and a margin of not less than 25 millimetres must be kept clear on the left hand side.
(4) There must be a space of not less than 3 millimetres between the lines of writing.
(5) The writing must be clear, sharp, legible and permanent.
(6) A carbon copy must not be filed.
(7) A document must not be filed if it bears any blotting, erasure, or such alteration as to cause material disfigurement.
(8) There must be a space of not less than 20 mm between the last line of writing and the end of each page of a document.
3 Details to be shown on first page of a document
(1) A document prepared by a party for use in the Court must have a horizontal line drawn at the foot of the first page below which shall be shown:
(a) the party on whose behalf the document is filed, the name, address, telephone number and, if applicable, the number of the facsimile receiver of the solicitor or authorised representative for the party, and, if a solicitor acts in the proceedings by an agent, the name, address, telephone number and, if applicable, the number of the facsimile receiver of the agent; and
(b) where a notice for service at a document exchange is filed under Order 7, rule 7, the exchange box number.
(2) Where a party preparing a document for use in the Court is not represented by a solicitor or authorised representative, paragraph (1) (a) does not apply but instead the name and address for service of the party, and his or her telephone number, if any, must be shown.
4 Numbers
Dates, sums and other numbers must be expressed in figures and not in words.
5 Scandal etc
The Court may order to be struck out of any document any matter which is scandalous, vexatious or oppressive.
6 Signing documents — Form 4
Any document filed other than an affidavit, annexure or exhibit attached to another document must be signed by the party filing it or by his or her solicitor or authorised representative unless the nature of the document is such that the signature is inappropriate.
Order 42 Partnerships and business names
Division 1 Partnerships
In this Division, partnership name means a name under which two or more persons carry on business in partnership within Australia, whether or not the name consists of the names of one or more of those persons.
2 Action in partnership name
(1) An action by or against two or more persons claiming as partners or against two or more persons claimed to be liable as partners and who carry on business in partnership within Australia may be brought in the partnership name.
(2) The partnership name must be that obtaining at the time the cause of action arose.
(3) Where the proceeding is commenced pursuant to subrule (1), unless the Court otherwise orders, it must continue in the partnership name, and not in the names of the individual partners.
3 Disclosure of names etc of partners
(1) At any stage of a proceeding any party may, by notice in writing, require the partnership to furnish it with the names and places of residence of the persons who were partners of the partnership at the time the cause of action arose.
(2) If the partnership fails to furnish the information pursuant to subrule (1), the party making the requirement may move on notice:
(a) for an order requiring the partnership to furnish the information; and
(b) if the partnership is an applicant — for an order that the action be stayed until the information is provided.
(1) Subject to subrule (3), where persons are sued as partners in the partnership name pursuant to rule 2, the originating process must be served personally:
(a) on any one or more of the partners; or
(b) by leaving a copy of the process at the place where the business is carried on with some person apparently engaged (as an employee or otherwise) in the business and apparently of or above the age of 16 years.
(2) Where service is effected under subrule (1), it is taken to be served upon all the partners of the partnership, including any partner outside the jurisdiction at the time of the issue of the originating process.
(3) An applicant who is aware that the partnership has been dissolved prior to the commencement of the proceedings shall, in addition to effecting service under subrule (1), effect service on any partner sought to be made liable who has ceased to be a partner of the partnership at the time of the commencement of the proceedings.
5 Appearance of partners
(1) A person who is served pursuant to rule 4 must enter an appearance in his or her own name.
(2) Notwithstanding subrule (1), the proceeding shall continue in the name of the partnership.
6 Appearance under protest of person served as partner
(1) A person served under rule 4 who denies that he or she is a partner of the partnership, or was a partner of the partnership at the time the cause of action arose, shall file an affidavit making that denial before the directions hearing appointed in the application.
(2) The affidavit shall state the material facts in support of that person’s contention.
7 Defence
Where the proceeding is commenced against partners in the partnership name under rule 2, a partner is not entitled to file a personal defence, or file affidavits in defence as if the proceeding were brought against him personally but any partner may file a defence or an affidavit in defence in the partnership name.
8 Entry of order
Where a proceeding has been commenced under this Order, an order in favour of or against the partnership shall be entered in the partnership name and not in the name of an individual partner.
9 Execution of judgment against a partnership
(1) Where a judgment or order is against partners in the name of the partnership, the judgment or order may be executed:
(a) against any property of the partnership within Australia;
(b) against any partner who has entered an appearance;
(c) against any person who has admitted that he or she is, or who has been adjudged to be, a partner; and
(d) against any partner who has been individually served with the originating process.
(2) Execution may be had against any partnership property within Australia, notwithstanding that any partner may be resident abroad.
10 Judgment against individual partner
(1) A party who has obtained judgment against partners in the partnership name and desires to issue execution against an individual partner who is not subject to execution under rule 9 may move on notice to the individual partner for leave to execute the judgment against him or her.
(2) On the hearing of the motion, if it appears that the person was a partner when the liability giving rise to the judgment arose, the Court may give leave to execute the judgment against that person.
Division 2 Individuals trading under a business name
In this Division, business name means a name, style, title or designation under which a person carries on a business not being a name consisting of the name of that person and the name of each other person, if any, in association with whom that person carried on business, without any addition.
12 Proceedings in business name
(1) Where a claim is made against any person in respect of anything done or omitted or suffered in the course of, or otherwise relating to, a business carried on within Australia by that person under a business name:
(a) if the business name is registered in a register in the State or Territory in which the business is carried on, which register discloses the name and residential address of the person — a proceeding shall only be commenced against that person in that person’s own name or pursuant to Division 1; and
(b) if the business name is not registered in a register referred to in paragraph (a) — a proceeding may be commenced against that person in that business name.
(2) Where a proceeding is commenced against a person in a business name under paragraph (1) (b):
(a) that business name shall, for the purpose of the proceeding, be a sufficient designation of that person in any process; and
(b) any judgment or order made in the proceeding may be enforced against that person.
13 Application of rules
The succeeding rules of this Order apply where a proceeding is commenced against a person, under paragraph 12 (1) (b), in a business name.
14 Service
Personal service of any document on the person may be made:
(a) by leaving a copy of the document with the person; or
(b) by leaving a copy of the document at the place where the business is carried on, with some person apparently engaged (as an employee or otherwise) in the business and apparently of or above the age of 16 years.
15 Appearance
(1) A person sued in a business name shall not enter an appearance except in the person’s own name.
(2) A person who enters an appearance in a proceeding in which he or she is sued in a business name shall file and serve with the notice of appearance a statement of the names and places of residence of all the persons carrying on business under that business name on the date of commencement of the proceeding.
(3) Where a person fails to comply with subrule (2), the court may order that the appearance be struck out.
16 Proceeding under either Division
Where an appearance filed under subrule 15 (2) discloses the names of other persons who carry on or who carried on business under that business name, a party may proceed in accordance with Division 1 or under this Division, both on the date of commencement of the proceeding and on the date (if any) specified in the application as the date on which the cause of action arose.
17 Amendment as to parties
(1) Where a proceeding is commenced against a person in a business name, the applicant shall, as soon as practicable, take all reasonable steps (whether by way of discovery of documents, interrogatories or otherwise) for the purpose of ascertaining the name of the respondent and shall, so far as practicable, make amendments so that the proceedings are continued in the person’s own name and not in the business name.
(2) Where an amendment is made under this rule, the mode of amendment and service after amendment shall be in accordance with Order 13, rules 8, 9 and 10.
(3) A party may make an amendment pursuant to Order 13, rule 4 notwithstanding he or she has made an amendment under this rule.
18 Execution
(1) A judgment or order against a person in a business name may be enforced by execution against any property of the business carried on under that name and, where the judgment or order is against partners in the partnership name it may be executed in accordance with rule 9.
(2) In subrule (1), the expression ‘property of the business’, in relation to a judgment or order against a person in a business name, means all property and rights and interests in property, originally brought into the business carried on under that name or acquired, whether by purchase or otherwise, on account of the business, or for the purposes and in the course of the business, being property, rights or interest of that person.
19 Variation of judgment or order
(1) Notwithstanding rule 18, the Court may vary a judgment or order against a person in a business name so as to make it a judgment or order against that person in the person’s own name, and when so varied, the judgment or order may be enforced accordingly.
(2) Notice of a motion for a variation of a judgment or order under subrule (1) shall be served personally on the person against whom the judgment was given or the order was made, and paragraph 14 (b) shall not apply to that service.
20 Discovery in aid of rules 17 and 19
(1) Where it appears to the Court that 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 a respondent sued in a business name, the Court may, for the purpose of enabling amendments to be made under rule 17 or a variation of a judgment or order to be made under rule 19:
(a) order that person to attend before the Court or an officer of the Court and be orally examined on any matter relating to the identity or description of the respondent;
(b) order that person to produce any document or thing in his possession, custody or power relating to the identity or description of the respondent; and
(c) if that person is a corporation or organisation order the corporation or organisation or any officer of the corporation or organisation to produce any document or thing in the possession, custody or power of the corporation or organisation relating to the identity or description of the respondent.
(2) In subrule (1), description, in relation to a respondent, includes the name, place of residence, place of business, occupation and sex of the respondent.
Order 43 Disability
1 Proceeding by or against person under disability
(1) A minor may sue by a next friend.
(2) A minor may defend in a proceeding by a guardian appointed for that purpose.
(3) A mentally disabled person may sue in a proceeding by the committee if any, of his or her person or estate as the case may be, or where there is no such committee, by a next friend.
(4) A mentally disabled person may defend by a committee if any, or where there is no such committee, by a guardian appointed for that purpose.
2 Appointment of tutor by the court
(1) The Court may, on motion by a party to a proceeding or any other person, appoint a tutor for a person under disability for the purpose of the proceeding.
(2) A person moving for an appointment under this rule shall, unless the Court otherwise orders, serve notice of the motion on the person under disability.
3 Removal of tutor
(1) The Court may, on motion by a party to a proceeding or by any other person or of its own motion:
(a) remove a tutor; and
(b) stay the proceeding until appointment of a tutor in place of the tutor removed.
(2) A person moving for an order under this rule shall, unless the Court otherwise orders, serve notice of the motion on the tutor whose removal is sought and on the person under disability.
4 Appointment of tutor generally
(1) Subject to these Rules, an order appointing a tutor is not necessary.
(2) Any person may be a tutor except:
(a) a person under disability;
(b) a corporation or organisation unless the corporation or organisation is any of the following:
(i) the Public Trustee of New South Wales;
(ii) the Public Trustee of Victoria;
(iii) the Public Curator of Queensland;
(iv) the Public Trustee of South Australia;
(v) the Public Trustee of Western Australia;
(vi) the Public Trustee of Tasmania;
(vii) the Public Trustee for the Australian Capital Territory;
(viii) the Public Trustee of the Northern Territory;
(ix) a trustee company which has by Statute or Ordinance of a State or Territory of Australia been given a right to act as trustee, executor or administrator.
(3) A person may not be a tutor of a person under disability in any proceeding in which he or she has an interest adverse to the interest of the person under disability.
(4) A person shall not be made a tutor without the person’s consent.
(5) Where a person has been or is tutor for a person under disability in any proceeding, no other person may, except on appointment by the Court, act as tutor for the person under disability in that proceeding.
(6) A person shall not take any step in any proceeding as tutor for a person under disability unless beforehand there have been filed:
(a) the person’s consent to act; and
(b) a certificate by the tutor’s solicitor that the tutor has no interest in the proceeding adverse to that of the person under disability.
5 Conduct of proceedings by tutor
(1) Subject to the Rules, where a person under disability is a party to any proceedings, anything which would, if he or she were not a person under disability, be required or authorised by these Rules to be done by the person shall or may be done by the tutor.
(2) A tutor must act by a solicitor.
6 Cross-claim
A tutor defending any proceeding for a person under disability may bring a cross-claim under Order 5.
7 No imputed admission on pleadings
Order 11, subrule 13 (1) does not apply to an opposite party who is a person under disability.
8 Discovery and interrogatories
Orders 15 and 16 apply to a person under disability and to the person’s tutor.
9 Compromise etc of matter in suit
(1) Where a proceeding has been commenced, and afterwards an agreement is made by the tutor in the proceeding of a person under disability, for the compromise or settlement of any matter in dispute in the proceeding, the tutor shall apply to the Court for approval of the agreement and the Court may approve or disapprove the agreement.
(2) An agreement approved by the Court under subrule (1) is as binding on the person under disability as if the person under disability were not a person under disability and the person’s tutor were his or her agent to make the agreement.
(3) An agreement disapproved by the Court under subrule (1) is not binding on the person under disability.
10 Payment into Court
A tutor shall not, except by leave of the Court, bring money into Court under Order 23 or accept money brought into Court under that Order.
11 Compromise etc before suit
(1) Where a claim enforceable by a proceeding in the Court is made by or on behalf of, or against a person under disability and, before the proceeding is commenced to enforce the claim, an agreement is made by or on behalf of the person under disability for the compromise or settlement of the claim, the Court may approve or disapprove the agreement.
(2) An agreement approved by the Court under subrule (1) is as binding on the person under disability by or on whose behalf it is made as if the person under disability were not a person under disability and, where the agreement is made by another person on behalf of the person under disability, as if that other person were the person’s agent to make the agreement.
(3) An agreement disapproved by the Court under subrule (1) is not binding on a person under disability by or on whose behalf it is made.
(4) A person may, by application, commence a proceeding for approval of an agreement under this rule, and may, by the application, seek enforcement of the claim in case the Court does not approve the agreement.
(5) Where, in a proceeding under this rule, the Court does not approve an agreement but the applicant seeks to enforce the claim, the Court may give directions for the further conduct of the proceeding.
12 Terms of approval
(1) The Court may give its approval under rule 10 or rule 12 on terms.
(2) Without affecting the generality of subrule (1), the Court:
(a) may, as a term of its approval, require that any money or other property payable or applicable to or for the benefit of a person under disability be dealt with by way of settlement or otherwise as the Court thinks fit for the benefit of the person under disability; and
(b) may make such orders as it thinks fit for the carrying out of its requirements under paragraph (a).
13 Service
(1) This rule applies where, in any proceeding, a document is required to be served personally on a person under disability.
(2) Personal service on a person under disability shall not be effected otherwise than in accordance with this rule.
(3) Where the person under disability has a tutor in the proceeding, the document may be served on the tutor.
(4) The document may be served on any person (including the person under disability) whom the Court may, before or after service, approve.
(5) Where the person to be served is a minor and has no tutor in the proceeding, the document may be served:
(a) if the person is aged 16 years or upward, on the person;
(b) on the person’s parent or guardian; or
(c) if the person has no parent or guardian, on a person with whom the person resides or in whose care the person is.
(6) Where the person to be served is a mentally disabled person and has no tutor in the proceeding, the document may be served:
(a) if a committee is appointed of the person’s person or estate, or the person has a guardian, on the committee or guardian; or
(b) if there is no committee or guardian, on a person with whom the person resides or in whose care the person is.
(7) A document served pursuant to any of subrules (3) to (6) must be served in the manner required by the Rules with respect to the document.
(8) A judgment or order requiring a person under disability to do, or refrain from doing, any act, a notice of motion for the committal of a person under disability, and a subpoena against a person under disability, must, in addition to any other service required by these Rules, and notwithstanding anything in subrules (3) to (6), be served personally on the person under disability.
(9) Subrule (8) does not apply to an order for interrogatories or for discovery or inspection of documents.
Order 44 Interpleader
claimant means a person making a claim to property in dispute.
execution creditor means a person on whose behalf process is issued.
process means process for execution issued by or under the authority of the Court.
property in dispute means any debt or property which is the subject of proceedings under this Order.
Division 2 Stakeholder’s interpleader
2 Case for relief
Where a person under a liability (otherwise than as a Sheriff) in respect of a debt or other personal property is sued, or expects to be sued, in the Court, for or in respect of the debt or property by two or more persons making adverse claims to the debt or property the Court may, on application by such person (in this Order referred to as a ‘stakeholder’), grant relief by way of interpleader.
3 Application in a pending proceeding
(1) Where a stakeholder has, in a proceeding in the Court, been sued for or in respect of the property in dispute, the application shall be by motion in the proceeding.
(2) A stakeholder applying pursuant to subrule (1):
(a) must serve notice of the motion on each party to the proceeding who claims any interest in the property in dispute; and
(b) must serve notice of the motion personally on each claimant who is not a party to the proceeding.
(3) In a case to which subrule (1) does not apply, a stakeholder applying for relief by way of interpleader must commence
the proceeding by application, joining each claimant as a respondent.
Division 3 Sheriff’s interpleader
4 Notice of claim — Form 50
(1) Where a Sheriff takes or intends to take any personal property in execution under process, a person making a claim to or in respect of the property or the proceeds or value of the property may give notice of claim to the Sheriff, in accordance with Form 50.
(2) A notice of claim given under this rule shall:
(a) specify the claim;
(b) state the name and place of abode of the claimant;
(c) state an address for service; and
(d) be accompanied by a copy of the notice.
(3) Where a person who is entitled to give notice under this rule does not, within a reasonable time after having knowledge of the facts, give notice under this rule, the Court may, on application by the Sheriff, restrain the commencement or stay the continuance by that person of the proceeding in the Court or restrain the commencement or the continuance by that person of a proceeding in any other court against the Sheriff for or in respect of anything done by the Sheriff in execution of the process after the time when that person might reasonably have given notice under this rule.
(4) Subject to subrule (5), a Sheriff may apply for an order under subrule (3) by motion in the proceeding in which the process is issued. Notice of the motion shall be served personally on the person against whom the order is sought.
(5) If a proceeding to which subrule (3) applies is brought in the Court against a Sheriff, an application for an order under that subrule restraining the continuance of that proceeding must be made by motion in that proceeding.
5 Notice to execution creditor
(1) A Sheriff must, on being given notice of claim under rule 4, serve the notice on the execution creditor.
(2) The execution creditor may serve on the Sheriff notice that he or she admits the claim.
6 Admission of claim
(1) Where an execution creditor admits a claim by notice under rule 5:
(a) the execution creditor shall not be liable to the Sheriff for any fees or expenses incurred by the Sheriff under the process after the notice under rule 5 is given;
(b) the Sheriff shall withdraw from possession of the property claimed; and
(c) the Court may, on application by the Sheriff, restrain the commencement or stay or restrain the continuance by the person whose claim is admitted of a proceeding in any court against the Sheriff for or in respect of anything done by the Sheriff in execution of the process.
(2) If a proceeding to which paragraph (1) (c) applies is brought in the Court against the Sheriff, an application by the Sheriff for an order under that paragraph restraining the continuance of that proceeding shall be made by motion in that proceeding.
(3) Subject to subrule (2), a Sheriff may apply for an order under paragraph (1) (c) by motion in the proceeding in which the process is issued.
7 Interpleader motion
(1) Where a Sheriff has, under rule 5, served a notice of claim on the execution creditor and the execution creditor does not, within 4 days after service of the notice, under rule 5, serve on the Sheriff notice that he or she admits the claim, and the claim has not been withdrawn, the Court may, on application by the Sheriff, grant relief by way of interpleader.
(2) An application of the Sheriff under this rule must be by motion in the proceeding in which the process is issued.
(3) A Sheriff moving pursuant to this rule must serve notice of the motion on each party to the proceeding who claims any interest in the property in dispute and on each claimant.