This Division applies to service of judicial documents in a non‑convention country.
14 Required documents
(1) A party seeking service under this Division must file a request in accordance with Form 14A.
(2) A document to be served must be sealed with the seal of the Court used for sealing documents that are to be served outside Australia and must be passed to the Secretary of the Attorney‑General’s Department by the Registrar, together with:
(a) a copy of the document translated into an official language of the country in which it is to be served; and
(b) a request in accordance with Form 14B;
for transmission to the government of the country in respect of which leave has been given.
15 Proof of service
An official certificate or declaration (on oath or otherwise) transmitted to the Court through the diplomatic channel by the government or a court of a country to which this Division applies is sufficient proof of the service of a document if it certifies or declares that (or to the effect that) the document has been:
(a) personally served; or
(b) served in accordance with the law of the country;
and, when filed, is taken to be a record of the service and the equivalent of an affidavit of service under these Rules.
16 Substituted service
(1) If an official certificate or declaration (on oath or otherwise) transmitted to the Court through the diplomatic channel by the government or a court of a country to which this Division applies, certifies or declares that efforts to serve a document have been without effect, the Court or a Judge, on ex parte application by the applicant, may order in accordance with Form 14C that the applicant be permitted to request substituted service of the document.
(2) A request for substituted service may be made by the applicant at the Registry out of which the document to be served has been issued, by filing:
(a) a request in accordance with Form 14A; and
(b) the document.
(3) A copy of the order and of the document must be sealed in accordance with subrule 14 (2) and must be passed to the Secretary of the Attorney-General’s Department by the Registrar, together with:
(a) a copy of the document translated into an official language of the country in which it is to be served; and
(b) a request in accordance with Form 14B;
for transmission to the government of the country in respect of which leave has been given.
Order 9 Appearance
1 Appearance by solicitor or authorised person or in person
Division Div 3 - Industrial Relations Court Rules - Service in non-convention countries | Zoe
(1) A respondent may enter an appearance and may defend a proceeding by a solicitor or authorised representative, by a person authorised to represent a party by or under section 469 of the Act or in person.
(2) Where a respondent is a person under disability subrule (1) has effect subject to Order 43.
(3) Except as is permitted under subrule (1) or any Act a corporation may not without the leave of the Court or a Judge enter an appearance or defend any proceeding except by a solicitor or authorised person.
(4) For the purposes of this Order respondent includes a person who is required to enter an appearance but is not named as a respondent.
2 Time for appearance
(1) Subject to these Rules, a respondent must enter an appearance before the date appointed for a directions hearing and before filing any document.
(2) Notwithstanding subrule (1), a respondent who has not entered an appearance by the date appointed for a directions hearing, may enter an appearance after that date without leave.
3 Mode of entry
(1) An appearance is entered by filing a notice of appearance.
(2) Two or more persons entering an appearance by the same solicitor or authorised representative or person on the same date may do so by a single notice of appearance.
(3) The date of entry of an appearance is the date when notice of the appearance is received in the Registry.
(4) The notice of appearance, and any copies, must be stamped in the Registry with the stamp of the Registry, with the addition of the words ‘appearance entered’ and the date on which the stamp is affixed. The copies must then be returned to the person entering the appearance.
4 Notice of appearance
(1) A notice of appearance must show:
(a) the name and address of the person entering the appearance; and
(b) if the person entering the appearance appears by a solicitor or authorised representative, or person authorised to represent a party by or under section 469 of the Act, the name, address and telephone number of the solicitor or authorised representative or person; and
(c) if the person entering the appearance appears by a solicitor and that solicitor has another solicitor as agent in the proceeding, the name, address and telephone number of the agent; and
(d) an address for service.
(2) Where an address shown in a notice of appearance by which a respondent enters an appearance is not genuine, the applicant may, with the leave of the Court, continue the proceeding as if the appearance had not been entered.
5 Service of appearance
A respondent shall, upon receiving the copies of the notice of appearance stamped with the stamp of the Registry, forthwith serve on the applicant at his or her place for service one of the copies so received.
6 Conditional appearance
(1) A respondent may enter a conditional appearance.
(2) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless the Court otherwise orders or the respondent applies under and in accordance with rule 7 and the Court makes an order under that rule.
7 Setting aside originating process etc
(1) The Court may, on application made by a respondent to any originating process on notice of motion filed within the time fixed by subrule (2), by order:
(a) set aside the originating process;
(b) set aside the service of the originating process on the respondent;
(c) declare that the originating process has not been duly served on the respondent;
(d) discharge any order giving leave to serve the originating process outside Australia or confirming service of the originating process outside Australia.
(2) Notice of a motion under subrule (1) may be filed by a respondent before entering an appearance or within fourteen days after the date of entry of a conditional appearance.
Order 10 Directions hearing
1 Directions hearings
(1) On a directions hearing the Court shall give such directions with respect to the conduct of the proceeding as it thinks proper.
(1A) In any proceeding which is to be heard by a Full Court, whether in the original or appellate jurisdiction, such directions as is thought proper with respect to the conduct of the proceeding may be given by the Court constituted by a single Judge.
(2) Without prejudice to the generality of subrule (1) or (1A), the Court may:
(a) make orders with respect to:
(i) discovery and inspection of documents;
(ii) interrogatories;
(iii) inspections of real or personal property;
(iv) admissions of fact or of documents;
(v) the defining of the issues by pleadings or otherwise;
(vi) the standing of affidavits as pleadings;
(vii) the joinder of parties;
(viii) the mode and sufficiency of service;
(ix) amendments;
(x) cross-claims;
(xi) the filing of affidavits;
(xii) the giving of particulars;
(xiii) the place, time and mode of hearing;
(xiv) the giving of evidence at the hearing, including whether evidence of witnesses in chief shall be given orally or by affidavit, or both;
(xv) the disclosure of reports of experts;
(xvi) costs;
(xvii) the filing and exchange of signed statements of evidence of intended witnesses and their use in evidence at the hearing;
(xviii) the taking of evidence and receipt of submissions by video link or telephone or such other means as the Court considers appropriate; and
(xvix) the proportion in which the parties are to bear the costs (if any) of taking evidence or making submissions under a subparagraph (xviii) direction;
(b) notwithstanding that the application is supported by a statement of claim, order that the proceeding continue on affidavits;
(c) order that evidence of a particular fact or facts be given at the hearing:
(i) by statement on oath upon information and belief;
(ii) by production of documents or entries in books;
(iii) by copies of documents or entries; or
(iv) otherwise as the Court directs;
(ca) order that an agreed bundle of documents be prepared by the parties;
(d) order that no more than a specified number of expert witnesses may be called;
(da) order that the reports of experts be exchanged;
(e) appoint a court expert in accordance with Order 34, rule 2;
(f) direct that the proceeding be transferred to a place at which there is a Registry other than the then proper place. Where the proceeding is so transferred, the Registrar at the proper place from which the proceeding is transferred shall transmit all documents in his or her charge relating to the proceeding to the Registrar at the proper place to which the proceeding is transferred;
(g) order, under Order 72, that proceedings, part of proceedings or a matter arising out of proceedings be referred to a mediator or arbitrator;
(h) order that the parties attend before a Registrar for a conference with a view to satisfying the Registrar that all reasonable steps to achieve a negotiated outcome of the proceedings have been taken, or otherwise clarifying the real issues in dispute so that appropriate directions may be made for the disposition of the matter, or otherwise to shorten the time taken in preparation for and at the trial;
(ha) order that the parties attend before a Judge, Judicial Registrar or Registrar for an informal mediation in an endeavour to settle the dispute by amicable agreement;
(i) in a case in which the Court considers it appropriate, direct the parties to attend a case management conference with a Judge, Judicial Registrar or Registrar to consider the most economic and efficient means of bringing the proceedings to trial and of conducting the trial, at which conference the Judge, Judicial Registrar or Registrar may give further directions;
(j) direct that an application to the Court pursuant to section 170EA of the Act be referred to the Australian Industrial Relations Commission for conciliation in accordance with section 170ED of the Act.
(3) The Court may revoke or vary any order made under (1), (1A) or (2).
(4) The powers of the Court prescribed for the purposes of subsection 466 (1) (h) of the Act are those referred to in this rule.
2 Fixing of date
On the directions hearing the Court may:
(a) fix a date for a further directions hearing;
(b) fix a date for trial;
(c) direct the parties to arrange with the Registrar a date for trial; or
(d) fix a date after which either party may request a date for trial.
3 Despatch, orders and directions
(1) If the Court thinks fit and the parties agree, the Court may hear and determine the proceeding on a directions hearing.
(2) If no applicant appears before the Court on a directions hearing, the Court may dismiss the application or make any other order that it thinks proper.
(3) If no respondent appears before the Court on a directions hearing, the Court may give such directions as it thinks fit.
4 Summary disposal
(1) A party may move for an order under Order 20, rule 2 (summary disposal of proceedings) at the directions hearing, if notice of the motion is served on all other parties to the proceeding not less than 3 days before the directions hearing.
(2) The Court may dispense with service under subrule (1).
5 Interlocutory orders
On a directions hearing, each party must, so far as is practicable, apply for any interlocutory order or directions that he or she may require.
6 Motion on notice
A party may move, on notice, for any interlocutory order or direction not made at the directions hearing appointed in the application.
7 Procedure on default
(1) If a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court, on notice:
(a) if the party in default is an applicant — for an 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;
(c) for an order that the step in the proceeding be taken within the time limited in that order.
(2) The Court may make an order of the kind mentioned in subrule (1) or any other order or may give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just.
Order 11 Pleadings
1 Paragraphs — Form 7
Where a pleading alleges or otherwise deals with several matters:
(a) the pleading must be divided into paragraphs;
(b) each matter must, so far as convenient, be put in a separate paragraph; and
(c) the paragraphs must be numbered consecutively.
2 Facts not evidence
Subject to these Rules:
(a) a pleading of a party must contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved; and
(b) paragraph (a) has effect subject to this Order and to Order 4 (commencement of proceedings) and to Order 12 (particulars).
3 Brevity
A pleading must be as brief as the nature of the case admits.
4 Documents and spoken words
Where any document or spoken words are referred to in a pleading, it is permissible to state the effect of the document or spoken words without setting out the precise terms thereof.
5 Presumed facts
A party need not plead a fact if:
(a) the fact is presumed by law to be true; or
(b) the burden of disproving the fact lies on the other party; except so far as may be necessary to meet a specific denial of that fact by the other party in his or her pleading or failure to plead such fact is likely to cause the other party to be taken by surprise.
6 Conditions precedent
(1) It is not necessary, in any pleading, to make a general allegation of fulfilment of a condition precedent to a right of action.
(2) Any party wishing to deny the fulfilment of any such condition precedent must plead such denial.
7 New matter
A party may plead a new matter which has arisen since the commencement of the proceeding.
8 Departure
(1) A party must not, in any pleading, make an allegation of fact, or raise any ground or claim, inconsistent with a previous current pleading of that party.
(2) Subrule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative.
9 Points of law
A party may, by a pleading, raise any point of law.
10 Matters for specific pleading
In a pleading subsequent to a statement of claim, a party must plead specifically any matter of fact or point of law that:
(a) the party alleges makes a claim or defence of the opposite party not maintainable;
(b) if not specifically pleaded, might take the other party by surprise; or
(c) raises issues of fact not arising out of the preceding pleading.
11 Tender
Where, in any proceeding, a defence of tender before the commencement of the proceeding is pleaded, the respondent must bring into Court, in accordance with Order 23, the amount alleged to have been tendered. Unless the Court has dispensed with compliance with this rule, the tender is not available as a defence unless and until the amount has been brought into Court.
12 Set-off
Where a claim by a respondent to a sum of money (whether of an ascertained amount or not) is relied on as a defence to the whole or part of a claim made by an applicant, it may be included in the defence and set off against the applicant’s claim, whether or not the respondent also cross-claims for that sum of money.
13 Admissions and traverse
(1) Subject to subrule (3) and to Order 43, rule 7 (persons under disability), an allegation of fact made by a party in a pleading is deemed to be admitted by the opposite party unless:
(a) it is traversed by that party in a pleading; or
(b) a joinder of issue under rule 14 operates as a denial of it.
(2) A traverse may be made either by a specific denial or by a statement of specific non-admission.
(3) Subject to subrule (4):
(a) every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit, must be specifically traversed in the party’s defence or defence to counterclaim, as the case may be; and
(b) a general denial of such allegations, or a general statement on non-admission of them is not a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any allegations as to the amount of damages is deemed to be traversed unless specifically admitted.
14 Joinder of issue
(1) If there is no reply to a defence, there shall be an implied joinder of issue on that defence.
(2) Subject to subrule (3), a joinder of issue operates as a denial of every allegation of fact made in the pleading on which there is a joinder of issue.
(3) A party may admit or specifically plead to allegations of fact made in the pleading on which there is a joinder of issue, in which case the joinder shall operate as a denial of every other allegation of fact.
15 Close of pleadings
(1) The pleadings on a statement of claim shall, unless the Court otherwise orders, be closed, as between any applicant and any respondent, on the date of expiry of the last of the times fixed by or under these Rules for filing a defence or reply or other pleading between those parties.
(2) Subrule (1) shall have effect notwithstanding that, on the date mentioned in that subrule, a request or order for particulars has been made but has not been complied with.
16 Embarrassment etc
Where a pleading:
(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading;
(b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or
(c) is otherwise an abuse of the process of the Court;
the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.