1Originating process includes a document that commences a proceeding as well as a counterclaim or third party claim.

1 Originating process includes a document that commences a proceeding as well as a counterclaim or third party claim. 2 If a proceeding is commenced in the Court and originating process is served out of Australia under this Rule but the Court later decides that it is more appropriate that the proceeding be determined by a court of another Australian jurisdiction, the **Jurisdiction of Courts (Cross-vesting) Act 1987** may enable the proceeding to be transferred to the Supreme Court to make an order transferring the proceeding to that Court or to that State's Supreme Court. 7.03 When allowed with leave (1) In any proceeding when service is not allowed under Rule 7.02, an originating process may be served out of Australia with the leave of the Court. (2) An application for leave under this Rule shall be made on notice to every party other than the person intended to be served. (3) A sealed copy of every order made under this Rule shall be served with the document to which it relates. (4) An application for leave under this Rule shall be supported by an affidavit stating any facts or matters related to the desirability of the Court assuming jurisdiction, including the place or country in which the person to be served is or possibly may be found, and whether or not the person to be served is an Australian citizen. (5) The Court may grant an application for leave if satisfied that— (a) the claim has a real and substantial connection with Victoria; and (b) Victoria is an appropriate forum for the trial of the proceeding; and (c) in all the circumstances the Court should assume jurisdiction. 7.04 Court's discretion whether to assume jurisdiction (1) On application by a person on whom an originating process has been served out of Australia, the Court may by order set aside the originating process or its service on the person or dismiss or stay the proceeding. (2) Without limiting paragraph (1), the Court may make an order under this Rule if satisfied— (a) that service out of Australia of the originating process is not authorised by these Rules; or (b) that the Court is an inappropriate forum for the trial of the proceeding; or (c) that the claim has insufficient prospects of success to warrant putting the person served out of Australia to the time, expense and trouble of defending the claim. 7.05 Notice to person served out of Australia If a person is to be served out of Australia with an originating process, the person shall also be served with a notice in Form 7AAA informing the person of— (a) the scope of the jurisdiction of the Court in respect of claims against persons who are served out of Australia; and (b) the grounds alleged by the plaintiff to found jurisdiction; and (c) the person's right to apply for an order setting aside the originating process or its service on the person or dismissing or staying the proceeding. 7.06 Time for filing appearance Except when the Court otherwise orders, a defendant who has been served out of Australia shall file an appearance within 42 days from the date of service. 7.07 Leave to proceed where no appearance by person (1) If an originating process is served on a person out of Australia and the person does not file an appearance, the party serving the document may not proceed against the person served except by leave of the Court. (2) An application for leave under paragraph (1) may be made without serving notice of the application on the person served with the originating process. 7.08 Service of other documents out of Australia Any document other than an originating process may be served out of Australia with the leave of the Court, which may be given with any directions that the Court thinks fit. 7.09 Mode of service A document to be served out of Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected. Part 2—Service in foreign country 7.09.1 Application This Part applies to the service of any document for the purpose of a proceeding in the Court— (a) in a country that is not a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; or (b) in such other country as the Attorney‑General, by instrument filed in the proceeding, specifies. Order 80 provides for service in accordance with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. 7.10 Documents required A person (in this Part called ***the applicant***) requiring a document to be served in another country under this Part shall— (a) lodge with the Registrar— (i) the document to be served; (ii) unless English is an official language in the country concerned, a translation of the document in accordance with Rule 7.11; (iii) a copy of the document and of any translation; (iv) such further copies of the document and of the translation as the Registrar directs; and (v) if any special manner of service is required, a request for service in that manner and, unless English is an official language of the country concerned, a translation of the request; and (b) file— (i) a copy of each of the documents mentioned in paragraph (a); and (ii) a request and undertaking in accordance with Rule 7.12. 7.11 Translation A translation of a document lodged under Rule 7.10 shall— (a) be a translation into an official language of the country in which service is required; and (b) bear a certificate of the translator, in that language, stating that it is an accurate translation of the document. 7.12 Request and undertaking (1) A request and undertaking filed under Rule 7.10 shall contain— (a) a request by the applicant to the Registrar that a sealed copy of the document to be served be transmitted to the country concerned for service on a specified person; (b) if the applicant requires service pursuant to a Convention, a reference to the Convention; and (c) an undertaking by the solicitor for the applicant or, where there is no solicitor, by the applicant, to pay to the Registrar an amount equal to the expenses incurred in consequence of the request for service. (2) The Registrar may require the applicant or the applicant's solicitor to give security to the Registrar's satisfaction for the expenses referred to in paragraph (1)(c). 7.13 Procedure on lodgment and filing (1) Where documents are lodged and filed in accordance with Rule 7.10, the Registrar shall seal the documents lodged with the seal of the Court and shall send them to the Attorney-General for transmission for service, together with such letter of request, if any, as may be necessary. (2) A letter of request shall be in Form 7A. 7.14 Evidence of service Where the Registrar has sent documents to the Attorney-General in accordance with Rule 7.13, and afterwards a certificate purporting to be a certificate of a judicial authority or other responsible person in the country concerned or of a British or Australian consular authority in that country as to service or attempted service or non-service is filed, the certificate shall be evidence of the matters stated in the certificate. 7.15 Order for payment of expenses Where a person has given an undertaking in accordance with Rules 7.10 and 7.12, and does not within 14 days after service on that person of an account of expenses incurred in consequence of the request for service pay to the Registrar the amount of the expenses, the Court, on application by the Registrar, may— (a) order the applicant or the applicant's solicitor (where the undertaking was given by the solicitor) or both of them 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 the applicant. Order 7A—Trans-Tasman proceedings 7A.01 Definitions (1) In this Order— ***Trans-Tasman Proceedings Act*** means the Trans‑Tasman Proceedings Act 2010 of the Commonwealth. (2) An expression used in the Trans-Tasman Proceedings Act has the same meaning in this Order as it has in that Act. The following expressions used in this Order are defined in section 4 of the Trans-Tasman Proceedings Act— • audio link • audiovisual link • Australian court • document • enforcement • entitled person • given • inferior Australian court • liable person • NZ judgment • party • person named • procedural rules • proceeding • subpoena. 7A.02 Application of Order This Order applies in relation to any proceeding or matter under the Trans-Tasman Proceedings Act. 7A.03 Commencement of proceeding for order under Trans‑Tasman Proceedings Act (1) Except as otherwise provided by or under the Trans‑Tasman Proceedings Act or by this Order, a proceeding for an order under the Trans‑Tasman Proceedings Act shall be commenced by originating motion. (2) The originating motion shall be supported by an affidavit that states the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at the hearing. 7A.04 Interlocutory application under Trans‑Tasman Proceedings Act An interlocutory application of which notice is to be given to any person in a proceeding for an order under the Trans-Tasman Proceedings Act shall be made by summons. 7A.05 Application for interim relief (1) An application for an order for interim relief under section 25 of the Trans-Tasman Proceedings Act shall be made by filing a summons. (2) The summons shall be supported by an affidavit stating— (a) if the applicant has commenced a proceeding in a New Zealand court— (i) that the person has commenced a proceeding in a New Zealand court; and (ii) the relief sought in the New Zealand proceeding; and (iii) the steps taken in the New Zealand proceeding; (b) if the applicant intends to commence a proceeding in the New Zealand court— (i) when the intended proceeding will be commenced; and (ii) the court in which the intended proceeding is to be commenced; and (iii) the relief to be sought in the intended proceeding; (c) the interim relief sought; (d) why the interim relief should be given. 7A.06 Application for leave to serve subpoena in New Zealand (1) An application under section 31(1) of the Trans‑Tasman Proceedings Act for leave to serve a subpoena in New Zealand may be made— (a) orally to the Court; and (2) The application shall be supported by an affidavit— (a) stating briefly, but specifically, the following— (i) the name, occupation and address of the addressee; (ii) whether the addressee has attained the age of 18 years; (iii) the nature and significance of the evidence to be given, or the document or thing to be produced, by the addressee; (iv) details of the steps taken to ascertain whether the evidence, document or thing could be obtained by other means without significantly greater expense, and with less inconvenience, to the addressee; (v) the date by which it is intended to serve the subpoena in New Zealand; (vi) details of the amounts to be given to the addressee to meet the addressee's reasonable expenses of complying with the subpoena; (vii) details of the way in which the amounts referred to in subparagraph (vi) are to be given to the addressee; (viii) if the subpoena requires a specified person to give evidence, an estimate of the time that the addressee will be required to attend to give evidence; (ix) any facts or matters known to the applicant that may be grounds for an application by the addressee to have the subpoena set aside, under section 36(2) or (3) of the Trans‑Tasman Proceedings Act; and (b) exhibiting a copy of the subpoena in relation to which leave is sought. Pursuant to section 37(4) of the Trans-Tasman Proceedings Act, the Court may make orders to ensure that the person complying with the subpoena receives the amount of the person's reasonable expenses in so complying. 7A.07 Form of subpoena A subpoena to which this Order applies shall be in accordance with— (a) Form 7AA, for a subpoena to give evidence; (b) Form 7AB, for a subpoena to produce documents; (c) Form 7AC, for a subpoena to give evidence and produce documents. 7A.08 Application to set aside subpoena (1) An application under section 35 of the Trans‑Tasman Proceedings Act to set aside a subpoena served in New Zealand shall be made by filing a summons in the proceeding in which the subpoena was issued. (2) The summons shall be supported by an affidavit— (a) stating the material facts on which the application is based; (b) stating whether the applicant requests that any hearing be held by audio link or audiovisual link; and (c) exhibiting a copy of the subpoena. 7A.09 Application for issue of certificate of non‑compliance with subpoena (1) A party may apply to the Court for the issue, under section 38 of the Trans-Tasman Proceedings Act, of a certificate of non‑compliance with a subpoena. (2) An application may be made— (a) orally to the Court; and (3) The application shall be supported by— (a) an affidavit of service of the subpoena; and (b) a further affidavit stating the following— (i) whether any application was made to set aside the subpoena; (ii) the material in support of any application to set aside the subpoena; (iii) any order that disposed of any application to set aside the subpoena; (iv) the material facts relied on for the issue of a certificate of non‑compliance. (4) The affidavit referred to in paragraph (3)(b) shall exhibit— (a) a copy of the subpoena; and (b) a copy of the order giving leave to serve the subpoena. 7A.10 Form of certificate of non-compliance (1) A certificate of non-compliance with a subpoena shall be in Form 7AD. (2) The certificate of non-compliance may be signed and sealed by the Judge or the associate judge who issued the certificate or by the Registrar. 7A.11 Application for registration of NZ judgment (1) An application under section 67 of the Trans‑Tasman Proceedings Act for registration under section 68 of that Act of an NZ judgment shall be made to the Registrar. See regulation 17 and Form 5 of the Trans-Tasman Proceedings Regulation 2012 of the Commonwealth made under the Trans-Tasman Proceedings Act. (2) Where the Registrar registers an NZ judgment, the matter in which the judgment is registered shall, for the purposes of Rules 7A.12, 7A.13(1), 7A.14(1), 7A.15(1) and 7A.16(1), be taken to be a proceeding. 7A.12 Notice of registration of NZ judgment An entitled person shall not take any step to enforce a registered NZ judgment, unless the entitled person has filed an affidavit stating that notice of the registration of the NZ judgment has been given in accordance with— (a) section 73 of the Trans-Tasman Proceedings Act; and (b) any regulations made under that Act. 7A.13 Application for extension of time to give notice of registration of NZ judgment (1) An application by an entitled person for an extension of the time within which to give notice of the registration of an NZ judgment under section 73(3) of the Trans-Tasman Proceedings Act may be made— (a) orally to the Court in the proceeding in which the judgment is registered; and (a) briefly, but specifically, the grounds relied on in support of the application; and (b) the material facts relied on in support of the application; and (c) why notice was not given within time. 7A.14 Application to set aside registration of NZ judgment (1) An application by a liable person to set aside the registration of an NZ judgment under section 72(1) of the Trans-Tasman Proceedings Act shall be made by filing a summons in the proceeding in which the judgment is registered. (a) briefly, but specifically, the grounds on which the registration of the judgment should be set aside; and (b) the material facts relied on in support of the application. An application to set aside the registration of an NZ judgment must be made within 30 working days of the Court after the day on which the liable person was served with notice of the registration, or within any longer period that the Court considers appropriate—see section 72(2) of the Trans‑Tasman Proceedings Act. 7A.15 Application for stay of enforcement of registered NZ judgment to enable liable person to appeal (1) An application by a liable person for a stay of the enforcement of a registered NZ judgment under section 76(1) of the Trans-Tasman Proceedings Act to enable the person to appeal against the judgment shall be made by filing a summons in the proceeding in which the judgment was registered. (a) the order sought; (b) briefly, but specifically, the grounds relied on in support of the order sought; and (c) the material facts relied on in support of the application. 7A.16 Application for extension of time to apply for stay of enforcement of registered NZ judgment to enable liable person to appeal (1) An application by a liable person for an extension of the time within which to apply for the stay of enforcement of a registered NZ judgment under section 76(3) of the Trans-Tasman Proceedings Act to enable the person to appeal against the judgment shall be made by filing a summons in the proceeding in which the judgment is registered. (a) the order sought; (b) briefly, but specifically, the grounds relied on in support of the application; (c) the material facts relied on in support of the application; and (d) why the application was not made within time. 7A.17 Application for order for use of audio link or audiovisual link (1) A party may apply for an order that evidence be taken, or submissions be made, by audio link or audiovisual link from New Zealand by filing an application in accordance with Order 41A. (2) Paragraph (1) does not apply to a request referred to in Rule 7A.08(2)(b). Order 8—Appearance 8.01 Application This Order applies to a proceeding commenced by writ or originating motion. 8.02 Appearance before taking step Except as provided by Rule 8.08 or 8.09 or by leave of the Court, a defendant shall not take any step in a proceeding unless the defendant has first filed an appearance. 8.03 Who to file appearance (1) Except as provided in Rule 15.02, a defendant may file an appearance by a solicitor or in person. (2) A corporation may file an appearance by any person duly authorised by it to so act. 8.04 Time for appearance Unless the Court otherwise orders, the time stated in the writ or originating motion for the defendant to file an appearance shall be— (a) where the originating process is to be served in Victoria, not less than 10 days after service; (b) where the originating process is to be served out of Victoria and in another part of Australia, 21 days after service; (c) where the originating process is to be served in Papua New Guinea, not less than 28 days after service; (d) where the originating process is to be served in New Zealand under Part 2 of the Trans-Tasman Proceedings Act 2010 of the Commonwealth, 30 working days (within the meaning of that Act) after service or, if a shorter or longer period has been fixed by the Court under section 13(1)(b) of that Act, the period so fixed; (e) in any other case, not less than 42 days after service. 8.05 Mode of filing appearance (1) An appearance shall be filed by filing a notice of appearance in Form 8A. (2) Upon the filing of a notice of appearance the Registrar shall seal with the seal of the Court a sufficient number of copies of the notice for service. (3) The defendant shall, on the day the defendant files a notice of appearance, take an appropriate step in accordance with Rule 6.07(1) to serve a sealed copy of the notice on the plaintiff. (4) The Court may order the defendant to pay any costs of the plaintiff occasioned by the failure of the defendant to comply with paragraph (3). 8.06 Address for service of defendant (1) A notice of appearance shall state— (a) if the defendant appears by a solicitor— (i) the address of the defendant; (ii) the name or firm and the business address within Victoria of the solicitor; (iii) if the solicitor is an agent of another, the name or firm and the business address of the principal; and (iv) an email address for service of the defendant; and (b) if the defendant appears in person— (i) the address of the defendant; (ii) if that address is out of Victoria, an address of the defendant within Victoria; and (iii) an email address for service of the defendant. (1.1) On the application of the defendant, the Registrar, at any time, may, for special reason, dispense with the requirement in paragraph (1)(a)(iv) or the requirement in paragraph (1)(b)(iii). (2) The address for service of a defendant shall be— (a) where the defendant appears by a solicitor, the business address of the solicitor stated in the notice of appearance or, where the solicitor acts by an agent, the business address of the agent; (b) where the defendant appears in person, the address of the defendant in Victoria stated in the notice of appearance. (3) Notwithstanding paragraphs (1) and (2), the address for service of the defendant duly stated in a notice of appearance to which the Service and Execution of Process Act 1992 of the Commonwealth or the Trans-Tasman Proceedings Act 2010 of the Commonwealth applies shall be such address for service. (4) Where the address of a defendant stated in a notice of appearance is not genuine, the Court may set aside the appearance and allow the plaintiff to continue the proceeding as if the appearance had not been filed. 8.07 Late appearance (1) A defendant may file an appearance at any time, but after judgment an appearance shall not be filed without the leave of the Court. (2) A defendant who files an appearance after the time for appearance stated in the writ or originating motion shall, unless the Court otherwise orders, have the same time for serving a defence or for any other purpose as if the defendant had filed an appearance on the last day so stated. 8.08 Conditional appearance (1) A defendant may file a conditional appearance. (2) A notice of conditional appearance shall be in Form 8B. (3) A conditional appearance shall have effect for all purposes as an unconditional appearance, unless on application by the defendant the Court otherwise orders. (4) Application under paragraph (3) shall be made by summons within 14 days after the day the conditional appearance is filed. 8.09 Setting aside writ or originating motion Notwithstanding Rule 8.08, the Court, on application made by the defendant before filing an appearance, whether conditional or not, may exercise its jurisdiction to— (a) set aside a writ or originating motion or its service; (b) make an order under Rule 46.08; or (c) stay a proceeding. Order 9—Joinder of claims and parties 9.01 Joinder of claims A plaintiff may join any number of claims against a defendant whether the plaintiff makes the claims in the same or in different capacities and whether the claims are made against the defendant in the same or in different capacities. 9.02 Permissive joinder of parties Two or more persons may be joined as plaintiffs or defendants in any proceeding— (a) where— Rule 9.02(a)(i)amended by S.R. No. 90/2022 rule 8. (i) if separate proceedings were brought by or against each of them, some common question of law or fact would arise in all the proceedings; or (ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or (b) where the Court, before or after the joinder, gives leave to do so. 9.03 Joinder of necessary parties (1) Except by order of the Court or as provided by or under any Act, where the plaintiff claims any relief to which any other person is entitled jointly with the plaintiff— (a) all persons so entitled shall be parties to the proceeding; and (b) any person who does not consent to being joined as a plaintiff shall be made a defendant. (2) Where the plaintiff claims relief against a defendant who is liable jointly with some other person and also liable severally, that other person need not be made a defendant to the proceeding. (3) Where persons are liable jointly, but not severally, under a contract, and the plaintiff in respect of that contract claims against some but not all of those persons, the Court may stay the proceeding until the other persons so liable are added as defendants. (4) The Court may make an order under paragraph (1) before or after the non-joinder. 9.04 Joinder inconvenient Notwithstanding Rules 9.01 and 9.02, where any joinder of claims or of parties may embarrass or delay the trial of the proceeding or cause prejudice to any party or is otherwise inconvenient, the Court may order that— (a) there be separate trials; (b) any claim be excluded; (c) any party be compensated by an award of costs or otherwise for being required to attend, or be relieved from attending, any part of a trial in which that party has no interest; (d) any person made a party cease to be a party on condition that that party be bound by the determination of the questions in the proceeding or without any such condition. 9.05 Effect of misjoinder or non-joinder of party A proceeding shall not be defeated by reason of the misjoinder or non-joinder of any party or person, and the Court may determine all questions in the proceeding so far as they affect the rights and interests of the parties. 9.06 Addition, removal, substitution of party At any stage of a proceeding the Court may order that— (a) any person who is not a proper or necessary party, whether or not that person was one originally, cease to be party; (b) any of the following persons be added as a party— (i) a person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; or (ii) a person between whom and any party to the proceeding there may exist a question arising out of or relating to or connected with any claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the proceeding; (c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies. 9.07 Procedure for addition of party (1) A person shall not be added as a plaintiff without that person's consent signified in writing or in such other manner as the Court orders. (2) Unless the Court otherwise orders, an application by a person for an order adding the person as a party shall be supported by an affidavit showing the person's interest in the questions in the proceeding or the question to be determined as between that person and any party to the proceeding. (3) Without limiting Rule 9.06(b), where a person not a party to a proceeding for the recovery of land is in possession by himself or herself or by a tenant or by a person claiming under that person of the whole or any part of the land, the Court may order that the person be added as a defendant. 9.08 Defendant dead at commencement of proceeding (1) Where a cause of action survives against the estate of a deceased person, a person wishing to obtain a judgment in respect of that cause of action may, if no grant of representation has been made, bring a proceeding against the estate of the deceased. (2) Without limiting paragraph (1), a proceeding brought against "the estate of A.B. deceased" shall be taken to have been brought against the deceased's estate in accordance with that paragraph. (3) A proceeding commenced naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and no grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the estate of the deceased in accordance with paragraph (1). (4) A proceeding commenced naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and a grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the personal representative of the deceased as representing the estate of the deceased. (5) In a proceeding within paragraph (1) or (3), the Court— (a) may— (i) appoint a person to represent the estate of the deceased for the purpose of the proceeding; or (ii) if a grant of representation has been made since the commencement of the proceeding, order that the personal representative of the deceased be made a party to the proceeding; and (b) may order that the proceeding be carried on against the person so appointed or against the personal representative, as if that person or representative had been substituted for the estate. (6) * * * * * (7) In any proceeding within paragraph (4), the Court may order that the personal representative of the deceased be made a party, and that the proceeding be carried on against the personal representative as representing the estate of the deceased. (8) An application for an order under paragraph (5) or (7) shall be made during the period of validity for service of the writ or other originating process, unless the Court otherwise orders. (9) Before making an order under paragraph (5) the Court may require notice to be given to— (a) any insurer of the deceased who has an interest in the proceeding; and (b) any person having an interest in the estate. (10) Where no grant of representation has been made any judgment or order given or made in the proceeding shall bind the estate of the deceased to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceeding. (11) In this Rule ***grant of representation*** means a grant of probate or administration in Victoria or the resealing of a foreign grant in Victoria. 9.09 Change of party on death, bankruptcy (1) Where a party to a proceeding dies, but the cause of action survives, or where a party becomes bankrupt, the proceeding shall not abate by reason of the death or bankruptcy, but may be carried on in accordance with paragraph (2). (2) Where at any stage of a proceeding the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may order that the other person be added as a party to the proceeding or made a party in substitution for the original party and that the proceeding be carried on as so constituted. (3) Unless the Court otherwise directs, the person on whose application an order is made under paragraph (2) shall serve the order on every party to the proceeding and on every person who ceases to be a party or becomes a party as plaintiff by virtue of the order, and in the case of a person who becomes a defendant, shall serve that person personally with the order and with the writ or other originating process sealed in accordance with Rule 5.11. (4) A person upon whom originating process is served in accordance with paragraph (3) shall file an appearance in the proceeding within such time as the Court directs. (5) Where an order is made without notice to a person on whom the order is served, an application by that person to set aside or vary the order shall be made within 10 days after service. 9.10 Failure to proceed after death of party (1) Where a party dies, and a cause of action in the proceeding survives, but no order is made under Rule 9.09(2) substituting a personal representative of the deceased party as party, the Court, on application by a party or by a person to whom liability on the cause of action survives on the death, may order that unless an order for substitution is made within a specified time the proceeding be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability thereon survives on the death. (2) On making an order under paragraph (1), the Court may, whether or not a grant of representation within the meaning of Rule 9.08(11) has been made, direct that if the proceeding is dismissed by virtue of the order, costs of the proceeding be awarded as follows— (a) if the plaintiff dies, to the defendant against the personal representative of the deceased out of the estate of the deceased; (b) if the defendant dies, to the personal representative of the deceased against the plaintiff. (3) Where the plaintiff dies, the Court shall not make an order under paragraph (1) unless due notice of the application for it has been given to— (a) the personal representative, if any, of the deceased; and (b) any other person having an interest in the estate of the deceased who, in the opinion of the Court, should be notified. (4) Where a defendant serves a counterclaim, this Rule shall apply, with any necessary modification, as if the plaintiff were the defendant and the defendant were the plaintiff. 9.11 Amendment of proceedings after change of party (1) Where an order is made under Rule 9.06 or 9.08, the writ or other originating process filed in the Court shall be amended accordingly within the time specified in the order, and otherwise within 10 days after the making of the order, and a reference to the order, the date of the order and the date on which the amendment is made shall be indorsed upon such originating process. (2) The filing of a copy of the originating process amended and indorsed as required by paragraph (1) shall be a sufficient compliance with that paragraph. (3) Where an order is made under Rule 9.06 or 9.08 adding or substituting a person as defendant— (a) the proceeding against the new defendant commences upon the amendment of the filed originating process in accordance with paragraph (1) or (2); (b) the plaintiff shall serve the amended originating process on that defendant within such time as the Court directs and, unless the Court otherwise orders, it shall be served personally; (c) unless otherwise ordered, where the new defendant is an added defendant, the proceeding shall be continued as if the new defendant were an original defendant, and where the new defendant is a substituted defendant, all things done in the course of the proceeding before it was commenced against the new defendant shall have effect in relation to the new defendant as they had in relation to the old defendant, except that the filing of appearance by the old defendant shall not dispense with the filing of appearance by the new. 9.12 Consolidation or trial together (1) Where two or more proceedings are pending in the Court, and— (a) some common question of law or fact arises in both or all of them; (b) the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions; or (c) for any other reason it is desirable to make an order under this Rule— the Court may order the proceedings to be consolidated, or to be tried at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them. (2) Any order for the trial together of two or more proceedings or for the trial of one immediately after the other shall be subject to the discretion of the trial Judge. 9.13 Conduct of proceeding The Court may give the conduct of the whole or any part of a proceeding to such person as it thinks fit. Order 10—Counterclaim 10.01 Application of Order This Order applies only to a proceeding commenced by writ and to a proceeding in respect of which an order has been made under Rule 4.07(1). 10.02 When counterclaim allowed (1) A defendant who has a claim against the plaintiff may counterclaim in the proceeding. (2) Rule 9.01 applies to a counterclaim as if the plaintiff were the defendant and the defendant were the plaintiff. (3) A defendant who counterclaims shall plead the defendant's defence and the counterclaim in one document called a defence and counterclaim. 10.03 Counterclaim against plaintiff and another person A defendant may join with the plaintiff as defendant to the counterclaim any other person, whether a party to the proceeding or not, who, if the defendant were to bring a separate proceeding, could be properly joined with the plaintiff as a party in accordance with Rule 9.02. 10.04 Procedure after counterclaim against another person (1) Where a defendant joins a person as defendant to the counterclaim under Rule 10.03, the defence and counterclaim shall contain a second title of the proceeding showing who is plaintiff to the counterclaim and who are defendants to the counterclaim. (2) The defendant shall serve on the person joined as defendant to the counterclaim a copy of the defence and counterclaim as follows— (a) where the person so joined is already a party to the proceeding, the copy shall be served within the time fixed by Rule 14.04 for serving a defence; (b) where the person joined is not already a party, the copy shall be served personally and, unless the Court otherwise orders, shall be served within 30 days after the expiration of the time fixed by Rule 14.04 for serving a defence. (3) The person joined as a defendant to the counterclaim shall, upon service of a copy of the defence and counterclaim, if not already a party, become a party and be in the same position as if that person had been sued as defendant in the ordinary way by the defendant making the counterclaim. (4) Without limiting paragraph (3), where the person joined as defendant to the counterclaim is not already a party to the proceeding, Orders 8, 11, 14 and 21 shall apply as if— (a) the counterclaim were a writ the indorsement of claim on which constituted a statement of claim in accordance with Rule 5.04; (b) the defendant making the counterclaim were a plaintiff in the proceeding; and (c) the person joined were a defendant in the proceeding. (5) A counterclaim served on a defendant to the counterclaim who is not already a party shall commence with a notice in Form 10A. (6) A notice of appearance by a defendant to a counterclaim who is not already a party shall be in Form 10B. 10.05 Trial of counterclaim A counterclaim shall be tried at the trial of the claim of the plaintiff unless the Court otherwise orders. 10.06 Counterclaim inconvenient Notwithstanding Rules 10.02 and 10.03, where a counterclaim may embarrass or delay the trial of the claim of the plaintiff or cause prejudice to any party or otherwise cannot conveniently be tried with that claim, the Court may— (a) order separate trials of the counterclaim and the claim of the plaintiff; (b) order that any claim included in the counterclaim be excluded; (c) strike out the counterclaim without prejudice to the right of the defendant to assert the claim in a separate proceeding; (d) order that any person joined as defendant to the counterclaim cease to be a party to the counterclaim. 10.07 Stay of claim Where the defendant by the defendant's defence admits the claim of the plaintiff and counterclaims, the Court may stay the original proceeding until the counterclaim is disposed of. 10.08 Counterclaim on stay etc. of original proceeding A counterclaim may be prosecuted notwithstanding— (a) that judgment is given for the plaintiff in the original proceeding; or (b) that the original proceeding is stayed, discontinued or dismissed. 10.09 Judgment for balance Where the plaintiff succeeds on the claim and the defendant succeeds on the counterclaim and a balance in favour of one of them results, the Court may give judgment for the balance. Order 11—Third party procedure 11.01 Claim by third party notice Where a defendant claims as against a person not already a party to the proceeding (in this Order called ***the third party***)— (a) any contribution or indemnity; (b) any relief or remedy relating to or connected with the original subject matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff; or (c) that any question relating to or connected with the original subject matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party— the defendant may join the third party as a party to the proceeding and make the claim against that third party by filing and serving a third party notice. 11.02 Statement of claim on third party notice A third party notice shall be in Form 11A and shall be indorsed with a statement of claim. 11.03 Time for appearance (1) A third party notice shall state a time within which the third party may file an appearance in the proceeding. (2) The time under paragraph (1) shall be— (a) where the notice is to be served within Victoria—not less than 10 days after service; (b) where the notice is to be served out of Victoria— (i) the time limited by Rule 8.04(b), (c), (d) or (e) in the case of appearance by a defendant to a writ, whichever is appropriate; or (ii) the time limited by any order of the Court authorising service of the notice. 11.04 Filing and service of third party notice (1) A claim by third party notice shall be commenced by filing a third party notice in the Court whereupon the third party shall become a party to the proceeding. (2) A third party notice shall be filed and served on the third party in the same manner as originating process is filed and served on a defendant. 11.05 Time for third party notice (1) In a proceeding commenced by writ or a proceeding in respect of which an order has been made under Rule 4.07(1) a defendant may not file a third party notice until the defendant has first served a defence. (2) A defendant may file a third party notice— (a) within 30 days after the time limited for the service of a defence; or (b) at any time with the leave of the Court or the consent in writing of the plaintiff and any other party who has appeared. 11.06 Leave to file third party notice An application for leave to file a third party notice shall be made on notice to the plaintiff but the Court may direct notice to be given to any other party who has appeared. 11.07 Other requirements for service (1) A third party notice shall be served on the third party within 60 days after it is filed. (2) Notwithstanding paragraph (1), the Court may fix another period for the service of a third party notice either— (a) before the notice is filed; or (b) at the time it grants leave under Rule 11.05(2) to file the notice. (3) Where a third party notice has not been served on the third party, the Court from time to time by order may extend the period for service of the notice for such further period it thinks fit. (4) An order may be made under paragraph (3) before or after expiry of the period for service. (5) At the time of service of a third party notice on a third party there shall also be served a copy of— (a) any order or consent under Rule 11.05(2); (b) any order under paragraph (2) of this Rule made before the third party notice was filed fixing a period for service of the notice; (c) any order under paragraph (3) of this Rule; (d) the writ or other originating process; (e) any pleadings or affidavits filed and served in the proceeding. (6) Within the period for service of the third party notice on the third party a copy of the notice shall be served— (b) on any other party who has appeared. (7) If a copy of the third party notice is not served in accordance with paragraph (6), the Court, on application by the plaintiff or the third party, may order that the questions between the plaintiff and the defendant be tried before and separately from the questions between the defendant and the third party. 11.08 Appearance by third party (1) A third party may file an appearance— (a) within the time limited for appearance; or (b) within such further time as the Court may allow. (2) A third party who files an appearance shall, on the same day, serve a sealed copy of the notice of appearance on the plaintiff. (3) Rules 8.05 and 8.06 apply, with any necessary modification, to an appearance by a third party under this Rule. 11.09 Defence of third party (1) A third party who files an appearance shall serve a defence to the statement of claim indorsed on the third party notice within 30 days after filing the appearance. (2) The third party may serve a defence to the statement of claim of the plaintiff by which the third party disputes the liability to the plaintiff of the defendant by whom the third party was joined on any ground not raised by that defendant in the defendant's defence. (3) Rules 14.05 to 14.10 shall apply, with any necessary modification, as if the claim by third party notice were a proceeding commenced by writ. (4) Where a third party files an appearance, the defendant by whom the third party was joined shall serve on the third party a copy of any pleading that may from time to time thereafter be served between the plaintiff and that defendant. 11.10 Counterclaim by third party (1) A third party who has a claim against the defendant may assert the claim in the proceeding by way of counterclaim and Rule 10.02 applies as if the claim by third party notice were a proceeding commenced by writ. (2) A third party who counterclaims may join the plaintiff as defendant to the counterclaim along with the defendant if the plaintiff and defendant could be joined properly as defendants in accordance with Rule 9.02 in a separate proceeding brought against them by the third party. 11.11 Default by third party (1) Where at the time any judgment is entered or given for the plaintiff against the defendant by whom the third party was joined the third party has not filed an appearance or after appearance has not served a defence, and the time limited for filing an appearance or serving a defence has expired— (a) the third party— (i) shall be taken to admit any claim stated in the third party notice; and (ii) shall be bound by the judgment between the plaintiff and the defendant insofar as it is relevant to any claim or question stated in the notice; (b) the defendant may at any time after satisfaction of that judgment or, with the leave of the Court, before satisfaction, enter judgment against the third party— (i) for any contribution or indemnity claimed in the notice; and (ii) with the leave of the Court, for any other relief or remedy claimed therein. (2) If a third party or the defendant by whom the third party was joined fails to serve any pleading within the time limited, the Court may give such judgment for the party not in default or make such order as it thinks fit. (3) The Court may set aside or vary any judgment or order under paragraph (1)(b) or (2). 11.12 Discovery and trial Where the third party files an appearance— (a) the third party and the defendant by whom the third party was joined may have discovery of one another; and (b) unless the Court otherwise orders— (i) the third party may attend and take part at the trial of the proceeding; (ii) at the trial the questions between the defendant and the third party shall be tried concurrently with the questions between the plaintiff and the defendant; and (iii) the third party shall be bound by the result of the trial. 11.13 Third party directions (1) Where the third party files an appearance, the Court may make any order or give any direction as follows— (a) where the liability of the third party to the defendant by whom the third party was joined as third party is established, give judgment for that defendant against the third party; (b) order that any claim or question stated in the third party notice be tried in such manner as it directs; (c) give the third party leave to defend the proceeding, either alone or jointly with any defendant, or to attend and take part at the trial; (d) generally make such orders and give such directions— (i) as are necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon; and (ii) as to the extent to which the third party is to be bound by any judgment or decision in the proceeding. (2) The Court— (a) may make any order or give any direction under paragraph (1) either before or after any judgment in the proceeding has been entered or given for the plaintiff against the defendant; and (b) may at any time vary or rescind any such order or direction. 11.14 Judgment between defendant and third party (1) Where a third party has been joined under this Order, the Court may at or after the trial of the proceeding or on its determination otherwise than by trial give judgment for the defendant by whom the third party was joined against the third party or for the third party against that defendant. (2) Where judgment is given for the plaintiff against the defendant and judgment is given for that defendant against a third party, unless the Court otherwise orders, the judgment against the third party shall not be enforced until the judgment against the defendant has been satisfied. 11.15 Claim against another party (1) Where a party claims as against another party to the proceeding any relief of the kind described in Rule 11.01, the party may make the claim against the other party by filing and serving a notice in accordance with this Rule— (a) within 60 days after the service on the party of the document in the proceeding by which the claim in respect of which the notice is served was made; or (b) if when the document was served the other party was not a party, then within 60 days after the party became a party. (2) Paragraph (1) does not apply where the claim could be made by counterclaim in the proceeding. (3) No appearance to a notice under paragraph (1) shall be necessary if the party on whom it is served has filed an appearance in the proceeding or is a plaintiff, but otherwise this Order applies, with any necessary modification, as if— (a) the defendant had filed and served a third party notice under Rule 11.01; and (b) the party on whom the notice is served were a third party joined under that Rule. (4) Except as provided by paragraph (5), a notice under paragraph (1) shall, with any necessary modification— (a) be in accordance with Form 11A; and (b) be indorsed with a statement of claim. (5) Where a party claims against another party to the proceeding contribution pursuant to Part IV of the **Wrongs Act 1958**, a notice under paragraph (1) shall be in accordance with Form 11B. 11.16 Fourth and subsequent parties (1) Where a third party has filed an appearance this Order applies, with any necessary modification, as if the third party were a defendant. (2) Where a person joined as a party (in this Order called a ***fourth party***) by a third party under this Order has filed an appearance, this Order as applied by this Rule shall have effect as regards such further person and any other further person or persons so joined and so on successively. (3) A third or subsequent party may not make a claim against another person whether that person is a party to the proceeding or not by notice under this Order without the leave of the Court. 11.17 Counterclaim Where a defendant has served a counterclaim, this Order applies, with any necessary modification, as if the defendant were the plaintiff and the plaintiff were the defendant. Order 12—Interpleader 12.01 Definitions ***claimant*** means a person making a claim to or in respect of property in dispute; ***execution creditor*** means a person for whom a warrant is issued; ***property in dispute*** means any debt or other property which is the subject of proceedings under this Order; ***stakeholder*** means an applicant under Rule 12.02; ***warrant*** means warrant of execution under these Rules. 12.02 Stakeholder's interpleader (a) a person is under a liability (otherwise than as a sheriff) in respect of a debt or other personal property; and (b) the person is sued or expects to be sued in any court for or in respect of the debt or property by two or more persons making adverse claims to or in respect of the debt or property— the Court may, on application by that person, grant relief by way of interpleader. (2) Where a stakeholder is sued in a proceeding in the Court for or in respect of the property in dispute, an application under paragraph (1) shall be made by summons in the proceeding. (3) A summons under paragraph (2)— (a) shall be served on each party to the proceeding who is a claimant; and (b) shall be served personally on each claimant who is not a party. (4) Where paragraph (2) does not apply, an application under paragraph (1) shall be commenced by originating motion in which all claimants are joined as defendants. 12.03 Sheriff's interpleader (1) Where a sheriff takes or intends to take any personal property under a warrant, a person making a claim to or in respect of the property or the proceeds or value of the property may give notice in writing of that person's claim to the sheriff. (2) A notice of claim under paragraph (1) shall— (a) state the name and address of the claimant, which address shall be the address for service; (b) identify each item of personal property the subject of the claim; and (c) state the grounds of the claim. 12.04 Sheriff's summons to state claim (1) Where a person who is entitled to give notice under Rule 12.03 does not, within a reasonable time after having knowledge of the facts, give notice under that Rule, the Court may, on application by the sheriff, restrain the commencement or stay or restrain the continuance by that person of proceedings in any court against the sheriff for or in respect of anything done by the sheriff in execution of the warrant after the time when that person might reasonably have given notice under the Rule. (2) A sheriff may apply for an order under paragraph (1) by summons in the proceeding in which the warrant is issued and, if a sheriff so applies, the sheriff shall serve the summons personally on the person against whom the order is sought. 12.05 Notice to execution creditor (1) On being given a notice of claim under Rule 12.03, a sheriff shall serve forthwith— (a) a copy of the notice; and (b) a notice in accordance with Form 12A on the execution creditor. (2) The execution creditor may serve on the sheriff notice in writing that the execution creditor admits or disputes the claim. 12.06 Admission of claim Where an execution creditor admits a claim by notice under Rule 12.05(2)— (a) the execution creditor shall not be liable for any fees or expenses incurred by the sheriff under the warrant after the notice is given; (b) the sheriff shall withdraw from possession of the property claimed; and (c) on application by the sheriff, the Court may restrain the commencement or stay or restrain the continuance by the person whose claim is admitted of proceedings in any court against the sheriff for or in respect of anything done by the sheriff in execution of the warrant. 12.07 Interpleader summons (1) Where under Rule 12.05 a sheriff has served a notice of claim and a notice in accordance with Form 12A on the execution creditor, the sheriff may by summons in the proceeding in which the warrant is issued apply to the Court for relief by way of interpleader if the execution creditor— (a) does not within five days after the service of the notices under Rule 12.05 serve on the sheriff notice in writing that the execution creditor admits the claim; or (b) within that period of five days serves on the sheriff notice in writing that the execution creditor disputes the claim— and, if the claim has not been withdrawn, the Court may grant relief by way of interpleader. (2) A summons under paragraph (1)— (a) shall be served on each party to the proceeding who claims an interest in the property in dispute; and (b) shall be served personally on each claimant who is not a party. 12.08 Powers of Court On application for relief by way of interpleader the Court may— (a) where a proceeding in the Court is pending in which the applicant is sued for or in respect of any of the property in dispute— (i) order that any claimant be added as a defendant in that proceeding in addition to or in substitution for the applicant; or (ii) order that the proceeding be stayed or dismissed; (b) order that a question between the claimants be stated and tried and direct which of the claimants is to be plaintiff and which defendant; (c) * * * * * (d) order the applicant— (i) to pay or transfer any of the property in dispute into court; or (ii) otherwise to dispose of any of the property; (e) where a claimant claims to be entitled by way of security for debt to any of the property in dispute, make orders for the sale of any of the property and for the application of the proceeds of sale; (f) summarily determine any question of fact or law arising on the application; and (g) make such order or give such judgment it thinks fit. 12.09 Default by claimant (a) a claimant has been given due notice of the hearing of an application for relief by way of interpleader and does not attend on the hearing; or (b) a claimant does not comply with an order made on such an application— the Court may order that the claimant and all persons claiming under the claimant be barred from prosecuting the claimant's claim against the applicant and all persons claiming under the applicant. (2) An order under paragraph (1) shall not affect the rights of the claimants as between themselves. 12.10 Neutrality of applicant (1) Where a stakeholder applies for relief by way of interpleader, the Court may dismiss the application or give judgment against the applicant unless the Court is satisfied that the applicant— (a) claims no interest in the property in dispute except for charges or costs; and (b) does not collude with any claimant. (2) Where a sheriff applies for relief by way of interpleader, the Court— (a) may require the sheriff to satisfy the Court on the matters referred to in paragraph (1); and (b) may, if not satisfied on those matters, dismiss the application. (3) Nothing in this Rule affects the power of the Court in other cases to dismiss the application or to give judgment against the applicant. 12.11 Order in several proceedings (1) Where an application for relief by way of interpleader is made and several proceedings are pending in the Court for or in respect of any of the property in dispute, the Court may make an order in any two or more of those proceedings. (2) An order made under paragraph (1) shall be entitled in all the proceedings in which it is made and shall be binding on all the parties to them. 12.12 Trial of interpleader question (1) Order 49 applies, with any necessary modification, to the trial of an interpleader question. (2) On the trial of an interpleader question the Court may finally determine all questions arising on the application for relief by way of interpleader. (3) An interpleader question, including any other question arising on the application for relief, may with the consent of all parties be tried by an associate judge. Order 13—Pleadings 13.01 Formal requirements (1) Every pleading shall bear on its face— (a) the description of the pleading; and (b) the date on which it is served. (2) A pleading shall be divided into paragraphs numbered consecutively, and each allegation so far as practicable shall be contained in a separate paragraph. (3) A pleading which is settled by counsel shall be signed by that counsel and, if it is not so settled, it shall be signed by the solicitor for the party or, if there is none, by the party. 13.02 Content of pleading (1) Every pleading shall— (a) contain in a summary form a statement of all the material facts on which the party relies, but not the evidence by which those facts are to be proved; (b) where any claim, defence or answer of the party arises by or under any Act, identify the specific provision relied on; and (c) state specifically any relief or remedy claimed. (2) A party may by that party's pleading— (a) raise a point of law; (b) plead a conclusion of law if the material facts supporting the conclusion are pleaded. 13.03 Document or conversation The effect of any document or the purport of any conversation, if material, shall be pleaded as briefly as possible, and the precise words of the document or conversation shall not be pleaded unless those words are themselves material. 13.04 Fact presumed true A party need not plead any fact if it is presumed by law to be true or the burden of disproving it lies on the opposite party unless the other party has specifically denied it in that party's pleading. 13.05 Condition precedent An allegation of the performance or occurrence of any condition precedent necessary for the claim or defence of a party shall be implied in that party's pleading. 13.06 Implied contract or relation Where it is alleged that a contract or relation between any persons is to be implied from a series of letters or conversations or other circumstances, it shall be sufficient to allege the contract or relation as a fact, and to refer generally to the letters, conversations or circumstances without setting them out in detail. 13.07 Matter which must be pleaded (1) A party shall in any pleading subsequent to a statement of claim plead specifically any fact or matter which— (a) the party alleges makes any claim or defence of the opposite party not maintainable; or (b) if not pleaded specifically, might take the opposite party by surprise; or (c) raises questions of fact not arising out of the preceding pleading. (2) In a proceeding for the recovery of land— (a) the indorsement of claim on the writ or, if that indorsement does not constitute a statement of claim, the statement of claim shall describe the land so that it is physically identifiable; (b) the defendant shall plead specifically every ground of defence on which the defendant relies and a plea that the defendant or the defendant's tenant is in possession of the land is not sufficient. (3) A claim for exemplary damages shall be specifically pleaded together with the facts on which the party pleading relies. 13.08 Subsequent fact A party may plead any fact or matter which has arisen at any time, whether before or since the commencement of the proceeding. 13.09 Inconsistent pleading (1) A party may in any pleading make inconsistent allegations of fact if the pleading makes it clear that the allegations are pleaded in the alternative. (2) A party shall not in any pleading make any allegation of fact, or raise any new claim, inconsistent with any allegation made or claim raised in a previous pleading by that party. (3) Paragraph (2) shall not affect the right of a party to amend, or apply for leave to amend, that party's previous pleading so as to plead the allegations or claims in the alternative. 13.10 Particulars of pleading (1) Every pleading shall contain the necessary particulars of any fact or matter pleaded. (2) Without limiting paragraph (1), particulars shall be given if they are necessary— (a) to enable the opposite party to plead; or (b) to define the questions for trial; or (c) to avoid surprise at trial. (3) Without limiting paragraph (1), every pleading shall contain particulars of any— (a) misrepresentation, fraud, breach of trust, wilful default or undue influence which is alleged; or (b) disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice which is alleged. (4) The pleading of a party who claims damages for bodily injury shall state— (a) particulars, with dates and amounts, of all earnings lost in consequence of the injury complained of; (b) particulars of any loss of earning capacity resulting from the injury; (c) the date of the party's birth; (d) the name and address of each of the party's employers commencing from the day being 12 months before the party sustained the injury, the time of commencement and the duration of each employment and the total net amount, after deduction of tax, that was earned in each employment. (5) In a proceeding for libel the indorsement of claim on the writ or, if that indorsement does not constitute a statement of claim, the statement of claim shall state sufficient particulars to identify the publication in respect of which the proceeding is commenced. (6) Particulars of debt, damages or expenses which exceed three folios shall be set out in a separate document referred to in the pleading and the pleading shall state whether the document has already been served and, if so, when, or is to be served with the pleading. 13.11 Order for particulars (1) The Court may order a party to serve on any other party particulars or further and better particulars of any fact or matter stated in the party's pleading or in an affidavit filed on that party's behalf ordered to stand as a pleading. (2) The Court shall not make an order under paragraph (1) before service of the defence unless the order is necessary or desirable— (a) to enable the defendant to plead; or (b) for some other special reason. (3) The Court may refuse to make an order under paragraph (1) if the party applying for the order did not first apply by letter for the particulars the party requires. 13.12 Admission and denials (1) Except as provided in paragraph (3), every allegation of fact in any pleading shall be taken to be admitted unless it is denied specifically or by necessary implication or is stated to be not admitted in the pleading of the opposite party, or unless a joinder of issue under Rule 13.13 operates as a denial of it, and a general denial of the allegations, or a general statement that they are not admitted, shall not be sufficient. (2) Where the party pleading intends to prove facts which are different to those pleaded by the opposite party, it shall not be sufficient for the party merely to deny or not to admit the facts so pleaded, but the party shall plead the facts the party intends to prove. (3) Any allegation that a party has suffered damage and any allegation as to the amount of damages shall be taken to be denied unless specifically admitted. 13.13 Denial by joinder of issue (1) No reply or subsequent pleading merely joining issue shall be served. (2) At the close of pleadings a joinder of issue on the pleading last served shall be implied. (3) No joinder of issue, express or implied, shall be made on a statement of claim or counterclaim. (4) A joinder of issue operates as a denial of every material allegation of fact made in the pleading upon which issue is joined unless, in the case of an express joinder of issue, any such allegation is excepted from the joinder and is stated to be admitted, in which case the joinder of issue operates as a denial of every other allegation. 13.14 Money claim as defence Where a defendant has a claim against a plaintiff for the recovery of a debt or damages, the claim may be relied on as a defence to the whole or part of a claim made by the plaintiff for the recovery of a debt or damages and may be included in the defence and set off against the plaintiff's claim, whether or not the defendant also counterclaims for that debt or damages. 13.15 Counterclaim This Order applies, with any necessary modification, to a counterclaim as if it were a statement of claim, and to a defence to counterclaim as if it were a defence. Order 14—Service of pleadings 14.01 Statement of claim indorsed on writ Where the indorsement of claim on a writ constitutes a statement of claim in accordance with Rule 5.04, no statement of claim shall be served. 14.02 Statement of claim not indorsed on writ Where the indorsement of claim on a writ does not constitute a statement of claim in accordance with Rule 5.04 and a defendant files an appearance, the plaintiff shall serve a statement of claim on that defendant within 30 days after the defendant's appearance, unless the Court otherwise orders. 14.03 Alteration of claim as indorsed on writ (1) Where a statement of claim is served in a proceeding commenced by writ, the plaintiff may therein alter, modify or extend the claim as indorsed on the writ without amendment of the indorsement. (2) The Court may, by order, allow the plaintiff to serve a statement of claim the effect of which will be to add a new cause of action to or substitute a new cause of action for a cause of action disclosed in the writ. (3) Where the Court makes an order under paragraph (2), it may further order that the plaintiff shall amend the indorsement of claim on the writ to make it conform to the statement of claim. 14.04 Service of defence In a proceeding commenced by writ, a defendant who files an appearance shall serve a defence as follows— (a) where the indorsement of claim on the writ constitutes a statement of claim in accordance with Rule 5.04, within 30 days after filing the appearance; (b) where the plaintiff serves a statement of claim, within 30 days after service of the statement of claim; or (c) within such time as the Court directs. 14.05 Reply Where the plaintiff is required to serve a reply, it shall be served within 30 days after service of the defence, unless the Court otherwise orders. 14.06 Pleading after reply No pleading subsequent to reply shall be served without an order of the Court. 14.07 Defence to counterclaim Where the defendant sets up a counterclaim in the defence, the plaintiff or any person joined as defendant to the counterclaim who is already a party to the proceeding shall serve a reply and defence to counterclaim or a defence to counterclaim within 30 days after service of the defence and counterclaim, unless the Court otherwise orders. 14.08 Close of pleadings Unless the Court otherwise orders, pleadings shall be closed— (a) where no pleading beyond a defence is ordered or served, at the expiration of 30 days after service of the defence; (b) where pleadings beyond a defence are ordered or served, at the expiration of 30 days after service of the last of those pleadings. 14.09 Order as to pleadings Notwithstanding anything contained in this Order, in a proceeding commenced by writ, the Court may order that— (a) any party serve any pleading; (b) the service of any pleading be dispensed with; or (c) the proceeding be tried without pleadings. 14.10 Filing of pleadings A party who serves a pleading on another party shall forthwith after service file a copy of the pleading. Order 15—Persons under disability 15.01 Definitions ***handicapped person*** means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing that person's affairs in relation to the proceeding; ***person under disability*** means minor or handicapped person. 15.02 Litigation guardian of person under disability (1) Except where otherwise provided by or under any Act, a person under disability shall commence or defend a proceeding by the person's litigation guardian. (2) Except where otherwise provided by these Rules, anything in a proceeding that is required or permitted by the Rules to be done by a party shall or may, if the party is a person under disability, be done by the person's litigation guardian. (3) A litigation guardian of a person under disability shall act by a solicitor. (4) Unless for special reason the Court otherwise orders, the litigation guardian of a person under disability is not personally liable for costs awarded against the person. 15.03 Appointment of litigation guardian (1) A person may be a litigation guardian of a person under disability if the first-mentioned person— (a) is not a person under disability; and (b) has no interest in the proceeding adverse to that of the person under disability. (2) Where a person is authorised by or under any Act to conduct legal proceedings in the name of or on behalf of a handicapped person, that person shall, unless the Court otherwise orders, be entitled to be litigation guardian of the handicapped person in any proceeding to which that person's authority extends. (3) Where, after a proceeding is commenced, a party to the proceeding becomes a handicapped person, the Court shall appoint a litigation guardian of that party. (4) Where the interests of a party who is a person under disability so require, the Court may— (a) appoint or remove a litigation guardian; or (b) substitute another person as litigation guardian. (5) Where a party has a litigation guardian in a proceeding, no other person shall act as litigation guardian, unless the Court otherwise orders. (6) Except where a litigation guardian has been appointed by the Court, the name of a person shall not be used in a proceeding as litigation guardian of a person under disability unless there is first filed in the office of the Registrar— (a) the written consent of the person to be the litigation guardian; and (b) a certificate by the solicitor for the person under disability certifying that the solicitor knows or believes that— (i) the person to whom the certificate relates is a minor or is a handicapped person, giving the grounds of the solicitor's knowledge or belief; and (ii) the litigation guardian of the person under disability has signed the written consent and has no interest in the proceeding adverse to that person. 15.04 No appearance by person under disability Where a defendant who is a person under disability does not file an appearance within the time limited, the plaintiff shall not continue the proceeding unless a person— (a) is made litigation guardian of the defendant in accordance with Rule 15.03(6); or (b) is appointed litigation guardian by order of the Court. 15.05 Application to set aside or vary certain orders An application to the Court on behalf of a person under disability served with an order made without notice under Rule 9.09 for the setting aside or variation of the order shall be made— (a) if a litigation guardian is acting for that person in the proceeding in which the order is made, within 10 days after the service of the order on that person; (b) if no litigation guardian is acting for that person in that proceeding, within 10 days after the appointment of a litigation guardian to act for the person under disability. 15.06 Pleading admission by person under disability Notwithstanding anything in Rule 13.12(1), a person under disability shall not be taken to admit the truth of any allegation of fact made in the pleading of the opposite party unless in the person under disability's pleading the person states that the allegation is admitted. 15.07 Discovery (1) Subject to paragraph (2), a party shall be entitled to have discovery of a person under disability as if that person were not under disability. (2) The discovery shall be given by the person under disability or the person's litigation guardian, whichever is appropriate. 15.08 Compromise of claim by a person under disability (1) Where in a proceeding a claim is made by or on behalf of or against a person under disability, no compromise, payment of money or acceptance of an offer of compromise under Order 26, whenever entered into or made, shall so far as it relates to that claim be valid without the approval of the Court. (2) Unless the Court otherwise orders, application for approval shall be without notice to any other party by filing— (a) affidavits, including affidavits of— (i) the litigation guardian of the person under disability; and (ii) the solicitor for the person under disability; and (b) two copies of the proposed order— not later than 30 days after the compromise, payment or acceptance. (2.1) A copy of an affidavit in support of the application shall not be served. (3) * * * * * (4) On the application, evidence shall be given of the date of the compromise, payment or acceptance and the date of birth of the person under disability, and the dates shall be stated in any order approving the compromise, payment or acceptance. (5) Where the acceptance of an offer of compromise is approved, the person under disability shall be taken to have made or accepted the offer at the time of approval. (6) Where an order is made approving a compromise by which money is to be paid to a person under disability, the forms of order in Forms 15A and 15B shall, where appropriate, be used. 15.09 Execution against money in court (a) a person under disability is required by a judgment to pay money; (b) money stands in court to the credit of that person or that person has a beneficial interest in money or funds in court; and (c) under these Rules, the Court may, on the application of the person entitled to enforce the judgment, order that the money in court or so much of the money as is sufficient to satisfy the judgment be paid to that person or, as the case may be, make an order imposing a charge on the beneficial interest of the person under disability in the money or funds in court to secure the payment of the sum due under the judgment. (2) In determining whether to make an order for payment or an order imposing a charge, as the case may be, the Court shall have regard to— (a) the fact that the person liable under the judgment is a person under disability; (b) the purpose for which payment of the money or funds into court was made; and (c) the purpose for which the money or funds are held. ***funds in court*** has the same meaning as it has in Rule 73.01; ***judgment*** includes order. 15.10 Counterclaim and claim by third party notice This Order applies, with any necessary modification— (a) to a counterclaim against a person under disability who is joined as defendant to the counterclaim under Rule 10.03; and (b) to a claim by third party notice by or on behalf of or against a person under disability. Order 16—Executors, administrators and trustees 16.01 Representation of unascertained persons (1) This Rule applies to a proceeding relating to— (a) the administration of the estate of a deceased person; (b) property subject to a trust; or (c) the construction of an instrument, including an Act. (2) The Court may appoint one or more persons to represent any person (including an unborn person) who or class which is or may be interested (whether presently or for any future, contingent or unascertained interest) in or affected by the proceeding where— (a) the person, the class or some members of the class cannot be ascertained or cannot readily be ascertained; (b) the person, class or some member of the class, though ascertained, cannot be found; or (c) though the person or the class and the members of the class can be ascertained and found, it appears to the Court expedient, regard being had to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined, to make the order for the purpose of saving expense. (3) Where the Court makes an order under paragraph (2), a judgment or an order in the proceeding shall bind the person or class represented as if the person or class were parties. (4) Where a compromise of a proceeding is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties (including unborn or unascertained persons) but— (a) there is a party in the same interest— (i) who assents to the compromise; or (ii) on whose behalf the Court sanctions the compromise; or (b) the absent persons are represented by a person appointed under paragraph (2) and the appointed person so assents— the Court, if satisfied that the compromise is for the benefit of the absent persons, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order is obtained by fraud or non-disclosure of material facts. 16.02 Beneficiaries (1) Where a party sues or is sued as executor, administrator or trustee— (a) it shall not be necessary to join as a party any of the persons having a beneficial interest in the estate or under the trust; (b) a judgment or order in the proceeding shall bind those persons as it does the executor, administrator or trustee. (2) Paragraph (1) does not limit the power of the Court— (a) to order the addition of a party under Rule 9.06; or (b) to make an order under Rule 16.01(2). 16.03 Deceased person (1) Where a deceased person was interested, or the estate of a deceased person is interested, in any question in a proceeding and the deceased person has no personal representative, the Court may— (a) proceed in the absence of such personal representative; or (b) by order (with the consent of the person appointed) appoint a person to represent the estate for the purpose of the proceeding. (2) An order under paragraph (1), and any judgment or order subsequently given or made in the proceeding, shall bind the estate of the deceased person as it would had a personal representative of the deceased been a party. (3) Before making an order under this Rule, the Court may require notice of the application for the order to be given to any person having an interest in the estate. Order 17—Partners and sole proprietors 17.01 Partners (1) Where two or more persons carry on business as partners within Victoria, a proceeding may be commenced by or against them in the name (if any) of the firm of which they were partners when the cause of action accrued. (2) Paragraph (1) applies where partners sue or are sued by— (a) any partner of the same firm; (b) partners of another firm, and any partner of the one firm is a partner of the other. 17.02 Disclosure of partners (1) Where a proceeding is commenced by or against partners in the firm name under Rule 17.01, any party other than the partners may by notice served at the address for service of the partners in the proceeding require the partners to disclose in writing within 14 days of service— (a) the name and the address of the usual or last known place of residence or of business of each person constituting the firm at the time when the cause of action accrued; and (b) whether since that time there has been any and what change in the membership of the firm. (2) Where partners fail to comply with a notice under paragraph (1), the Court may order— (a) if the partners are plaintiffs, that the proceeding be dismissed; (b) if the partners are defendants, that their defence be struck out. 17.03 Service of originating process (1) Originating process in a proceeding commenced against partners in the firm name under Rule 17.01 may be served on— (a) any one or more of the partners; or (b) any person at the principal place of business of the partnership within Victoria who appears to have control or management of the partnership business there. (2) Originating process served under paragraph (1) shall be taken to have been duly served on the partners whether or not any partner is out of Victoria. (3) Where a partnership has to the knowledge of the plaintiff been dissolved before the proceeding against the partners has commenced, the originating process shall be served on every person sought to be made liable in the proceeding. (4) Every person upon whom originating process is served under paragraph (1) shall be informed by notice in writing given at the time of service whether the person is served as a partner or as a person having the control or management of the partnership business or in both characters and, in default of such notice, the person served shall be taken to be served as a partner. 17.04 Appearance by partners Partners sued in the name of their firm shall appear individually in their own names, but the proceeding shall, nevertheless, continue in the name of the firm. 17.05 No appearance except by partners A person served with originating process as a person having the control or management of the partnership business may not file an appearance unless that person is a partner. 17.06 Appearance under objection of person sued as partner (1) A person served with originating process as a partner may file an appearance stating— (a) that the person does so as a person served as a partner; and (b) that the person denies that the person was a partner at any material time or is liable as such. (2) An appearance filed under paragraph (1) shall not preclude the plaintiff from otherwise serving the partners and, if no party has filed an appearance in the ordinary form, obtaining judgment against the partners in the name of the firm in default of appearance. (3) Where an appearance is filed under paragraph (1)— (a) the plaintiff may either— (i) apply to set it aside on the ground that the person filing it was a partner or is liable as a partner; or (ii) leave that question to be determined at a later stage of the proceeding; (b) the person filing the appearance may either— (i) apply to set aside the service on that person on the ground that the person was not a partner at a material time or liable as such; or (ii) at the proper time serve a defence on the plaintiff denying in respect of the plaintiff's claim either the person's liability as a partner or the liability of the partners or both; (c) the Court may give directions as to the mode and time of trial of any question of the liability of the person who filed the appearance or of the liability of the partners. (4) Rule 8.08 does not apply to an appearance filed under this Rule. 17.07 Enforcement of judgment (1) A judgment given or an order made against partners suing or sued in the name of their firm may, subject to paragraph (2) and Rule 17.08, be enforced against— (a) any property of the partnership; and (b) any person who— (i) filed an appearance as a partner; (ii) having been served as a partner with originating process, failed to file an appearance; (iii) admitted in the person's pleading that the person is a partner; or (iv) was served with originating process as a partner and was adjudged to be a partner. (2) Where a party who has obtained a judgment or an order against partners suing or sued in the name of their firm claims that a person is liable to satisfy the judgment or order as a partner, and paragraph (1) does not apply in relation to that person, the Court— (a) if liability is not disputed, may order that the judgment or order be enforced against that person; or (b) if the liability is disputed, may give directions for the trial of the question of liability. (3) An application under paragraph (2) shall be made by summons served personally on the person against whom enforcement of the judgment or order is sought. 17.08 Enforcement between partners A judgment given or order made against partners suing or being sued in the name of their firm in a proceeding of the kind referred to in Rule 17.01(2)(a) or (b)— (a) shall not be enforced without the leave of the Court; and (b) on application for leave, the Court may make an order that any necessary accounts and inquiries be taken and made. 17.09 Attachment of debts (1) A debt due or accruing due from partners may be attached under these Rules notwithstanding that any partner is resident out of Victoria, if a partner or some person apparently having the control or management of the partnership business within Victoria is served with the garnishee summons. (2) The attendance of a partner before the Court on the hearing of a garnishee summons is a sufficient attendance by the partners. 17.10 Person using the business name Any person carrying on business within Victoria in a name or style other than that person's own may be sued in that name or style as if it were the name of a firm, and Rules 17.02 to 17.09 shall apply, with any necessary modification, as if that person were a partner and the name in which the person carries on business were the name of that person's firm. 17.11 Charge on partner's interest (1) An application to the Court by a judgment creditor of a partner for an order charging that person's interest in the partnership property and profits under section 27 of the **Partnership Act 1958**, and for such other orders as are thereby authorised to be made, and every application to the Court by a partner of a judgment debtor made in consequence of the first mentioned application shall be made by summons. (2) A summons filed by the judgment creditor under this Rule and an order made on the summons shall be served on the judgment debtor and on such of that person's partners as are within Victoria. (3) A summons filed by a partner of a judgment debtor under this Rule and an order made on the summons shall be served— (a) on the judgment creditor; (b) on the judgment debtor; and (c) on such of the other partners of the judgment debtor as do not join in the application and are within Victoria. (4) A summons or an order served under this Rule on some only of the partners of the judgment debtor shall be taken to have been served on all of the partners. Order 18—Representative proceeding 18.01 Application This Order applies where numerous persons have the same interest in any proceeding, but does not apply to— (a) a proceeding under Part 4A of the **Supreme Court Act 1986**; (b) a proceeding concerning— (i) the administration of the estate of a deceased person; or (ii) property subject to a trust. 18.02 Proceeding by or against representative A proceeding may be commenced and, unless the Court otherwise orders, continued, by or against any one or more persons having the same interest as representing some or all of them. 18.03 Order for representation by defendant (1) At any stage of a proceeding under Rule 18.02 against one or more persons having the same interest the Court may appoint any one or more of the defendants or the persons as representing whom the defendants are sued to represent some or all of those persons in the proceeding. (2) Where the Court appoints a person who is not a defendant, the Court shall make an order under Rule 9.06 adding that person as a defendant. 18.04 Effect of judgment (1) A judgment given or an order made in a proceeding to which this Order applies shall bind the parties and all persons as representing whom the parties sue or are sued, as the case may be. (2) The judgment or order shall not be enforced against a person not a party except by leave of the Court. (3) An application for leave shall be made by summons served personally on the person against whom enforcement of the judgment or order is sought. Order 19—Notice of constitutional matter 19.01 Definitions ***State*** has the meaning given in section 78AA of the Act; ***the Act*** means the Judiciary Act 1903 of the Commonwealth. 19.02 Notice (1) Where a proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Act, the party whose case raises the matter shall, unless the Court directs another party to do so, forthwith file a notice of a constitutional matter. (2) A notice under paragraph (1) shall state— (a) specifically the nature of the matter; and (b) the facts showing that the matter is one to which paragraph (1) applies. (3) The notice shall be in Form 19A. 19.03 Filing and service (1) Subject to paragraph (3), the party required or directed under Rule 19.02 to file the notice shall serve a copy on— (a) every other party; and (b) the Attorney-General for the Commonwealth, if the Attorney-General or the Commonwealth is not a party; and (c) the Attorney-General of each State, if the Attorney-General or that State is not a party. (2) Unless the Court otherwise orders, the copy shall be served forthwith after the notice is filed. (3) Service of a copy of the notice need not be effected on an Attorney-General if steps have been taken that could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General. (4) The party serving a copy of the notice shall forthwith file an affidavit of service. Order 20—Change of solicitor 20.01 Notice of change Where a solicitor acts for a party in a proceeding and the party changes that party's solicitor, the party shall forthwith— (a) file notice of the change; and (b) serve a copy of the notice on the other parties and, where practicable, the party's former solicitor. 20.02 Party appointing solicitor Where a party who has no solicitor in a proceeding appoints a solicitor to act for that party in the proceeding, the solicitor shall forthwith— (a) file notice of the appointment; and (b) serve a copy of the notice on the other parties. 20.03 Solicitor ceasing to act (1) Where a solicitor ceases to act for a party in a proceeding, unless a notice of change is filed and served under Rule 20.01, the solicitor shall forthwith— (a) file notice that the solicitor has ceased to act; and (b) serve a copy on all parties. (2) A notice under paragraph (1) shall state the address of the party last known to the solicitor. (3) Except by leave of the Court, a solicitor shall not file a notice under paragraph (1)— (a) where the address of the party in the notice is outside Victoria; (b) after a proceeding has been set down for trial; or (c) within 28 days after a proceeding has been finally determined subject only to an appeal, if any, to the Court of Appeal. (4) Except by leave of the Court of Appeal, a solicitor shall not file a notice under paragraph (1) where in the proceeding— (a) a summons for leave to appeal to the Court of Appeal has been filed; or (b) notice of appeal to the Court of Appeal has been served. 20.04 Removal of solicitor from record (a) a solicitor who has acted for a party in a proceeding— (i) has died or become bankrupt, or cannot be found; (ii) has ceased to have the right of practising in the Court; or (iii) for any other reason has ceased to practise, and (b) the party has not given notice under Rule 20.01 or the solicitor has not given notice under Rule 20.03— the Court, on application made by any other party to the proceeding, may by order declare that the solicitor has ceased to be the solicitor acting for the first-mentioned party in the proceeding. (2) An application under paragraph (1) shall be made by summons supported by affidavit stating the facts on which the application is made and, unless the Court otherwise orders, the summons and a copy of the affidavit shall be served on the party to whose solicitor the application relates. (3) Where an order is made under paragraph (1), the party on whose application it was made shall forthwith— (a) serve a copy of the order on every other party to the proceeding; and (b) file an affidavit of service. 20.05 Address for service (1) The address for service of a party— (a) who changes the party's solicitor and files and serves notice under Rule 20.01, shall be the business address of the new solicitor; (b) who appoints a solicitor in the circumstances referred to in Rule 20.02, shall be the business address of the solicitor; (c) for whom a solicitor has ceased to act, where notice is filed and served by the solicitor under Rule 20.03 without leave, shall be the address stated in the notice. (2) The Court may by order direct what address shall be the address for service of a party for whom a solicitor has ceased to act where the Court— (a) under Rule 20.03(3) or (4) gives a solicitor leave to file notice that the solicitor has ceased to act; or (b) under Rule 20.04(1) by order declares that a solicitor has ceased to act. (3) Where the Court makes no order under paragraph (2), any document in the proceeding which is not required to be served personally may be served on the party for whom the solicitor has ceased to act by filing it. (4) A party who serves a document by filing in accordance with paragraph (3) shall indorse upon a backsheet or on the back of the last sheet a statement that the document is filed as such service. 20.06 Death, retirement etc., of Victorian Government Solicitor or Australian Government Solicitor It shall not be necessary to file and serve notice under Rule 20.01 where— (a) the person who occupies or acts in the office of Victorian Government Solicitor or the person who occupies or acts in the office of Australian Government Solicitor acts as solicitor for a party in a proceeding; and (b) the person so acting dies or retires or otherwise ceases to occupy or act in that office. Order 21—Judgment in default of appearance or pleading 21.01 Default of appearance (1) This Rule applies only to a proceeding commenced by writ. (2) Where a defendant does not file an appearance within the time limited, the plaintiff may enter or apply for judgment against that defendant in accordance with this Order. (3) Judgment shall not be entered or given for the plaintiff unless there is filed— (a) * * * * (b) an affidavit proving service of the writ on the defendant; and (c) where the plaintiff applies for judgment in accordance with Rule 21.04 and the indorsement of claim on the writ does not constitute a statement of claim in accordance with Rule 5.04, a statement of claim. 21.02 Default of defence Rule 21.02(1) substituted by S.R. No. 73/2023 rule 6(1). (1) Where any defendant, being required to serve a defence, does not do so within the time limited, the plaintiff may serve on the defendant a notice in Form 21A informing the defendant that the plaintiff intends to enter or apply for judgment against the defendant. Rule 21.02(1A) inserted by S.R. No. 73/2023 rule 6(1). (1A) If the defendant does not serve a defence within seven days of service of the notice under paragraph (1), the plaintiff may enter or apply for judgment against the defendant in accordance with this Order. Rule 21.02(2) amended by S.R. No. 73/2023 rule 6(2). (2) Judgment shall not be entered or given for the plaintiff unless the plaintiff files an affidavit proving— Rule 21.02 (2)(a) inserted by S.R. No. 73/2023 rule 6(2). (a) the defendant's failure to serve a defence within the time limited; Rule 21.02 (2)(b) inserted by S.R. No. 73/2023 rule 6(2). (b) the service on the defendant of the notice under paragraph (1); and Rule 21.02 (2)(c) inserted by S.R. No. 73/2023 rule 6(2). (c) the defendant's failure to serve a defence within seven days of service of that notice. Rule 21.02(3) amended by S.R. No. 73/2023 rule 6(3). (3) Paragraphs (1), (1A) and (2) shall apply, with any necessary modification, where— (a) the defendant has served a defence; and (b) by or under an order of the Court the defence is struck out. 21.03 Judgment for recovery of debt, damages or property (1) Where a claim is made for the recovery of a debt, damages or any property, whether or not another claim is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or Rule 21.02, the plaintiff may— (a) for the recovery of a debt, enter final judgment against that defendant for an amount not exceeding the amount claimed in the writ or, if the plaintiff has served a statement of claim, the amount claimed in the statement of claim, together with interest from the commencement of the proceeding to the date of the judgment— (i) on any debt which carries interest, at the rate it carries; (ii) on any other debt, at the rates payable on judgment debts during that time; (b) for the recovery of damages, enter interlocutory judgment against that defendant for the damages to be assessed; (c) for the recovery of land, enter judgment for possession of the land against that defendant; (d) for the detention of goods, enter interlocutory judgment against that defendant— (i) either for the delivery of goods or their value to be assessed or for the value of the goods to be assessed; and (ii) if a claim is made for the recovery of damages for the detention of goods, for the damages to be assessed. (1.1) Where a claim is made for the recovery of land, and the plaintiff also claims mesne profits, if the indorsement of claim on the writ or statement of claim shows that the amount claimed for mesne profits is calculated according to rent which had been payable by the defendant to the plaintiff in respect of the land, the claim for mesne profits shall, for the purpose of paragraph (1), be taken to be a claim for the recovery of a debt. (1.2) Paragraph (1) does not apply to a claim for the recovery of a debt or damages in a currency not Australian dollars, and if the plaintiff is entitled to judgment on the claim against any defendant in accordance with Rule 21.01 or Rule 21.02, the Court may give judgment for the plaintiff under Rule 21.04 as if the claim were a claim to which that Rule applies. (2) Upon entering judgment under paragraph (1) the plaintiff may also enter judgment for costs. (3) Where under paragraph (1) damages or the value of goods are to be assessed, the assessment shall, unless the Court otherwise orders, be made by an associate judge or judicial registrar in accordance with Order 51. 21.04 Judgment other than for recovery for debt, damages or property (1) Where a claim is made other than for the recovery of a debt, damages or any property, whether or not a claim for such recovery is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or 21.02, the Court may give judgment for the plaintiff upon the statement of claim. (2) An application for judgment under paragraph (1) may be made without notice to the defendant. 21.05 Proceeding continued against other defendants A plaintiff who enters or obtains judgment against a defendant in accordance with this Order may enforce the judgment and continue the proceeding against any other defendant, but in a proceeding for the recovery of land against more than one defendant a judgment for possession of the land shall not be enforced against any defendant unless judgment for possession has been entered or given against all defendants. Rule 21.06 amended by S.R. No. 73/2023 rule 7. 21.06 Default of defence to counterclaim Where a defendant serves a counterclaim, Rule 21.02 shall apply as if— (a) the defendant were the plaintiff; (b) the defence were the defence to counterclaim; and Rule 21.06(c) substituted by S.R. No. 73/2023 rule 7. (c) the plaintiff were the defendant— and Form 21A applies with the corresponding modifications. 21.07 Setting aside judgment The Court may set aside or vary any judgment entered or given in accordance with this Order. Order 22—Summary judgment 22.01 Scope of Order This Order applies to all civil proceedings in the Court to which, in accordance with section 4 of the **Civil Procedure Act 2010**, that Act applies. 22.02 Interpretation (1) In this Order, a reference— (a) to a plaintiff includes a reference to a plaintiff by counterclaim; and (b) to a defendant includes a reference to a defendant by counterclaim. (2) Without limiting paragraph (1), expressions used in this Order, unless the contrary intention appears, have the same meaning as in Part 4.4 of Chapter 4 of the **Civil Procedure Act 2010**. Part 2—Application by plaintiff for summary judgment 22.03 Application by plaintiff for judgment An application under section 61 of the **Civil Procedure Act 2010** by a plaintiff in a civil proceeding for summary judgment in the proceeding shall be made in accordance with this Part of this Order. 22.04 Summons and affidavit in support (1) An application shall be made by summons supported by an affidavit— (a) verifying the facts on which the claim or the part of the claim to which the application relates is based; and (b) stating that in the belief of the deponent the defence to the claim or the defence to the relevant part of the claim— (i) has no real prospect of success; or (ii) has no real prospect of success except as to the amount of the claim or as to the amount of the relevant part of the claim. (2) Where a statement in a document tends to establish a fact within paragraph (1) and at the trial of the proceeding the document would be admissible by or under the **Evidence (Miscellaneous Provisions) Act 1958**, the **Evidence Act 2008** or any other Act to verify the fact, the affidavit under paragraph (1) may set forth the statement. (3) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted. (4) The plaintiff shall serve the summons and a copy of the affidavit or affidavits and of any exhibit referred to in the affidavit or affidavits on the defendant not less than 14 days before the day for hearing named in the summons. 22.05 Defendant to show cause (1) The defendant may show cause against the application by affidavit or otherwise to the satisfaction of the Court. (2) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out. (3) Unless the Court otherwise orders, the defendant shall serve a copy of any affidavit and of any exhibit referred to in the affidavit or affidavits on the plaintiff not less than three days before the day for hearing named in the summons. 22.06 Affidavit in reply (1) Where the defendant serves an affidavit under Rule 22.05, the Court may by order allow the plaintiff to rely upon an affidavit in reply. (2) Paragraphs (2) and (3) of Rule 22.04 apply, with any necessary modifications, to an affidavit in reply made under this Rule. 22.07 Cross-examination on affidavit (1) The Court may order any party or the maker of any affidavit— (a) to attend and be examined and cross‑examined; or (b) to produce any documents, or copies of or extracts from those documents. (2) Where a party is a corporation, the Court may make an order under paragraph (1) in respect of any director, manager, secretary or other similar officer of the corporation or any person purporting to act in any such capacity. 22.08 Hearing of application (1) Subject to Part 4.4 of Chapter 4 of the **Civil Procedure Act 2010**, on the hearing of an application the Court may— (a) dismiss the application; (b) give such judgment for the plaintiff against the defendant on the claim or the part of the claim to which the application relates as is appropriate, having regard to the nature of the relief or remedy claimed; (c) give the defendant leave to defend with respect to the claim or the part of the claim to which the application relates either unconditionally or on terms as to giving security, paying money into court, time, the mode of trial or otherwise; or (d) with the consent of all parties, dispose of the proceeding finally in a summary manner. (2) The Court may stay execution of any judgment given under paragraph (1)(b) until after the trial of any other claim or counterclaim which remains outstanding in the proceeding as between the relevant parties. 22.09 Assessment of damages Where the Court gives summary judgment under section 63 of the **Civil Procedure Act 2010** for damages or the value of goods to be assessed, the assessment shall be made in accordance with Order 51. 22.10 Judgment where debt amount unascertained Where on an application under section 61 of the **Civil Procedure Act 2010** for summary judgment on a claim for a debt the amount of the debt is not established to the satisfaction of the Court, and where if the amount were established the Court would give summary judgment on the claim under section 63 of that Act, the Court may— (a) make a declaration as to liability for the debt and order that its amount be ascertained in such manner as the Court directs; and (b) give leave to enter judgment for the debt once the amount is ascertained. 22.11 Directions (1) Where on an application under section 61 of the **Civil Procedure Act 2010** for summary judgment leave is given to defend or summary judgment is given on a claim or part of a claim but execution of the judgment is stayed pending the trial of an outstanding claim or counterclaim or of the proceeding, as the case may be, the Court may give directions as to the further conduct of the proceeding. (2) The Court— (a) may direct that an affidavit made under this Order shall serve as a defence or defence and counterclaim; (b) may order the proceeding to be forthwith set down for trial; and (c) may define the questions to be tried. 22.12 Continuing for other claim or against other defendant Where the plaintiff obtains summary judgment under section 63 of the **Civil Procedure Act 2010** on a claim or part of a claim against any defendant, the plaintiff may continue with the proceeding for any other claim or for the remainder of the claim or against any other defendant. 22.13 Judgment for delivery up of chattel Where the Court gives summary judgment under section 63 of the **Civil Procedure Act 2010** for the delivery up of a specific chattel, it may order the party against whom judgment is given to deliver up the chattel without giving the party an option to retain it on paying the assessed value of the chattel. 22.14 Relief against forfeiture A tenant may apply for relief after summary judgment for possession of land on the ground of forfeiture for non-payment of rent has been given under section 63 of the **Civil Procedure Act 2010** as if the judgment were given after trial. 22.15 Setting aside judgment The Court may set aside or vary any judgment given against a party who does not attend on the hearing of an application under section 61 of the **Civil Procedure Act 2010**. Part 3—Application by defendant for summary judgment 22.16 Application by defendant for judgment An application under section 62 of the **Civil Procedure Act 2010** by a defendant in a civil proceeding for summary judgment in the proceeding shall be made in accordance with this Part of this Order. 22.17 Summons The application shall be made by summons. 22.18 Affidavit in support (1) If the defendant intends to rely on an affidavit in support of the application, the affidavit shall be filed with the summons. (2) Where a statement in a document tends to establish a fact upon which the defendant relies and at the trial of the proceeding the document would be admissible by or under the **Evidence (Miscellaneous Provisions) Act 1958**, the **Evidence Act 2008** or any other Act to verify the fact, the affidavit may set forth the statement. (3) An affidavit relied upon by the defendant may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted. (4) The defendant shall serve the summons and a copy of any affidavit in support and of any exhibit referred to in the affidavit on the plaintiff not less than 14 days before the day for hearing named in the summons. 22.19 Plaintiff to show cause (1) The plaintiff may show cause against the application by affidavit or otherwise to the satisfaction of the Court. (2) An affidavit under paragraph (1) may contain a statement of fact based on information and belief if the grounds are set out. (3) Unless the Court otherwise orders, the plaintiff shall serve a copy of any affidavit and of any exhibit referred to in the affidavit on the defendant not less than three days before the day for hearing named in the summons. 22.20 Affidavit in reply (1) Where the plaintiff serves an affidavit under Rule 22.19, the Court may by order allow the defendant to rely upon an affidavit in reply. (2) Paragraphs (2) and (3) of Rule 22.18 apply, with any necessary modifications, to an affidavit in reply made under this Rule. 22.21 Cross-examination on affidavit (1) The Court may order any party or the maker of any affidavit— (a) to attend and be examined and cross‑examined; or (b) to produce any documents, or copies of or extracts from those documents. (2) Where a party is a corporation, the Court may make an order under paragraph (1) in respect of any director, manager, secretary or other similar officer of the corporation or any person purporting to act in any such capacity. 22.22 Hearing of application Subject to Part 4.4 of Chapter 4 of the **Civil Procedure Act 2010**, on the hearing of an application the Court may— (a) dismiss the application; (b) give such judgment for the defendant against the plaintiff on the claim or the part of the claim to which the application relates as is appropriate (including the grant of any appropriate stay of the proceeding), having regard to the nature of the relief or remedy claimed; or (c) with the consent of all parties, dispose of the proceeding finally in a summary manner. 22.23 Setting aside judgment The Court may set aside or vary any judgment given against a party who does not attend on the hearing of an application under section 62 of the **Civil Procedure Act 2010**. Part 4—Application by or against third or subsequent party 22.24 Third or subsequent party (1) A party who has joined a third or subsequent party to a civil proceeding may apply to the Court for summary judgment against the third or subsequent party on the ground that the defence or part of the defence of that party has no real prospect of success. (2) A party joined as a third or subsequent party to a civil proceeding may apply to the Court for summary judgment on the ground that the claim made against the party or part of that claim has no real prospect of success. (3) Part 2 of this Order applies, with any necessary modifications, to an application under paragraph (1). (4) Part 3 of this Order applies, with any necessary modifications, to an application under paragraph (2). (5) The Court may order that a claim made by or against a third or subsequent party proceed to trial if the Court is satisfied that, despite there being no real prospect of success, the claim should not be disposed of summarily because— (a) it is not in the interests of justice to do so; or (b) the dispute is of such a nature that only a full hearing on the merits is appropriate. Order 23—Summary stay or dismissal of claim and striking out pleading 23.01 Stay or judgment in proceeding (1) Where a proceeding generally or any claim in a proceeding— (a) is scandalous, frivolous or vexatious; or (b) is an abuse of the process of the Court— the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim. (2) Where the defence to any claim in a proceeding is scandalous, frivolous or vexatious, the Court may give judgment in the proceeding generally or in relation to any claim. (a) a claim in a proceeding includes a claim by counterclaim and a claim by third party notice; and (b) a defence includes a defence to a counterclaim and a defence to a claim by third party notice. 23.02 Striking out pleading Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading— (a) does not disclose a cause of action or defence; (b) is scandalous, frivolous or vexatious; (c) may prejudice, embarrass or delay the fair trial of the proceeding; or (d) is otherwise an abuse of the process of the Court— the Court may order that the whole or part of the indorsement or pleading be struck out or amended. 23.03 * * * * * 23.04 Affidavit evidence (1) On an application under Rule 23.01 evidence shall be admissible for any party by affidavit or, if the Court thinks fit, orally. (2) On an application under Rule 23.02 no evidence shall be admissible on the question whether an indorsement of claim or pleading offends against that Rule. (3) Rule 22.07 or Rule 22.21, as the case requires, applies to an affidavit under paragraph (1). 23.05 Declaratory judgment No proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not any consequential relief is or could be claimed. Order 24—Judgment on failure to prosecute or obey order for particulars or discovery 24.01 Judgment on dismissal The Court may order that a proceeding be dismissed for want of prosecution if the plaintiff being required to serve a statement of claim, fails to do so within the time limited. 24.02 Failure to obey order (1) Where a party fails to comply with an order to give particulars of any pleading or with an order for the discovery or inspection of documents or for answers to interrogatories, the Court may order— (a) if the party is the plaintiff, that the proceeding be dismissed; (b) if the party is a defendant, that the defendant's defence, if any, be struck out. (2) A defendant whose defence is struck out in accordance with paragraph (1)(b) shall, for the purpose of Rule 21.02(1), be taken to be a defendant who, being required to serve a defence, does not do so within the time limited for that purpose. 24.03 Stay on non-payment of costs (a) a proceeding is dismissed for want of prosecution and the plaintiff is liable to pay the costs of the defendant of the proceeding; and (b) the plaintiff, before paying those costs commences another proceeding for the same, or substantially the same, cause of action— the Court may by order stay the proceeding until those costs are paid. 24.04 Counterclaim and third party claim This Order applies, with any necessary modification, to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. 24.05 Inherent jurisdiction Nothing in this Order affects the inherent power of the Court to dismiss any proceeding for want of prosecution or to order that upon the failure of a party to do any act or to take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step the proceeding shall be dismissed or the defence struck out and that judgment may be entered or that there be judgment accordingly. 24.06 Setting aside judgment The Court may set aside or vary— (a) an order under this Order or an order referred to in Rule 24.05; (b) a judgment entered or given upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step. Order 25—Discontinuance and withdrawal 25.01 Withdrawal of appearance A party who has filed an appearance in a proceeding may withdraw the appearance at any time with the leave of the Court. 25.02 Discontinuance or withdrawal of proceeding or claim (1) This Rule applies only to a proceeding commenced by writ. (2) A plaintiff may discontinue a proceeding or withdraw any part of it— (a) before the close of pleadings; or (b) at any time, by leave of the Court or with the consent of all other parties. (3) A defendant may discontinue a counterclaim or withdraw any part of it— (a) before the close of pleadings; or (b) at any time, by leave of the Court or with the consent of all other parties to the counterclaim. (4) At any time the plaintiff may withdraw a defence to counterclaim or any part of it and a defendant may withdraw the defendant's defence or any part of it. (5) Paragraph (4) does not enable a party to withdraw an admission or any other matter operating for the benefit of another party without the consent of that party or the leave of the Court. (6) A defendant who has joined a third party may discontinue the claim made against the third party by the third party notice or withdraw any part of the claim at any time by leave of the Court or with the consent of the third party. 25.03 Proceeding not commenced by writ A proceeding not commenced by writ may be discontinued and any part of a proceeding not commenced by writ may be withdrawn at any time by leave of the Court or with the consent of all other parties. 25.04 Notice of discontinuance or withdrawal (1) A discontinuance or withdrawal without the leave of the Court shall be made by filing a notice stating the extent of the discontinuance or withdrawal. (2) When the discontinuance or withdrawal is with the consent of other parties the notice under paragraph (1) shall be indorsed with the consent of each party who consents. (3) On the day the notice is filed a copy shall be served on each other party. 25.05 Costs Where a proceeding, counterclaim or claim by third party notice is discontinued, or where part of a proceeding, counterclaim or third party notice is withdrawn, liability for costs shall be determined in accordance with Rule 63A.15. 25.06 Discontinuance or withdrawal no defence The discontinuance of a proceeding, counterclaim or claim by third party notice or the withdrawal of any part of a proceeding, counterclaim or claim by third party notice shall not be a defence to a subsequent proceeding for the same, or substantially the same, cause of action, unless the Court otherwise provides by any order granting leave to discontinue or withdraw. 25.07 Stay on non-payment of costs Where by reason of a discontinuance or a withdrawal under this Order a party is liable to pay the costs of any other party, and the party, before paying those costs, commences another proceeding for the same, or substantially the same, cause of action, the Court may by order stay the proceeding until those costs are paid. Order 26—Offers of compromise 26.01 Definitions ***business day*** means a day on which the office of the Court is open as specified in Rule 3.08; ***claim*** includes a counterclaim and any claim made in accordance with Order 11; ***defendant*** includes a defendant by counterclaim and a party against whom a claim is made in accordance with Order 11; ***ordinarily applicable basis*** means— (a) in respect of costs incurred before 6 October 2014, party and party basis; (b) in respect of costs incurred on or after 6 October 2014, standard basis. ***plaintiff*** includes a defendant who serves a counterclaim and a party who makes a claim in accordance with Order 11. Part 2—Offers of compromise 26.02 Offers of compromise generally (1) A party may, in respect of any claim in a proceeding, serve on another party an offer of compromise on the terms specified in the offer. (2) An offer of compromise in respect of a claim may be on terms that take into account any other claim made in the proceeding between the parties. (3) An offer of compromise must— (a) be in writing and prepared in accordance with Rules 27.02 to 27.04; and (b) contain a statement to the effect that it is served in accordance with this Order. (4) An offer of compromise must state either— (a) that the offer is inclusive of costs; or (b) that costs are to be paid or received, as the case may be, in addition to the offer. 26.03 Time for making, accepting etc. offer (1) An offer of compromise may be served at any time before verdict or judgment in respect of the claim to which it relates. (2) A party may serve more than one offer of compromise. (3) An offer of compromise may be expressed to be limited as to the time the offer is open to be accepted after service on the party to whom it is made, but the time expressed shall not be less than 14 days after such service. (4) A party on whom an offer of compromise is served may accept the offer by serving notice of acceptance in writing on the party who made the offer before— (a) the expiration of the time specified in accordance with paragraph (3) or, if no time is specified, the expiration of 14 days after service of the offer; or (b) verdict or judgment in respect of the claim to which the offer relates— whichever event is the sooner. (5) An offer of compromise shall not be withdrawn during the time it is open to be accepted, unless the Court otherwise orders. (6) An offer of compromise is open to be accepted within the period referred to in paragraph (4) notwithstanding that during that period the party on whom the offer is served makes an offer of compromise to the party who served the offer of compromise, whether or not the offer made by the party served is made in accordance with this Part. (7) Upon the acceptance of an offer of compromise that states that costs are to be paid or received in addition to the offer, then, unless the offer otherwise provides or the Court otherwise orders— (a) such costs are to be paid or received in respect of the claim up to and including the day the offer was served; (b) liability for any costs in respect of the claim in relation to any subsequent period shall be in the discretion of the Court; and (c) any party to the accepted offer may apply for the taxation of the costs. 26.03.1 Time for payment An offer of compromise providing for payment of a specified sum of money to a party shall, unless it otherwise provides, be taken to be an offer providing for payment of that sum within 28 days after acceptance of the offer. 26.04 Effect of offer An offer of compromise made in accordance with this Part shall be taken to be an offer of compromise made without prejudice, unless the offer otherwise provides. 26.05 Disclosure of offer to Court (1) No statement of the fact that an offer of compromise has been made shall be contained in any pleading or affidavit. (2) Where an offer of compromise has not been accepted, then, except as provided by Rule 26.08(6), no communication with respect to the offer shall be made to the Court on the trial of the proceeding until after all questions of liability and the relief to be granted have been determined. (3) Paragraphs (1) and (2) do not apply where an offer of compromise provides that the offer is not made without prejudice. 26.06 Party under disability A person under disability may make or accept an offer of compromise, but no acceptance of an offer made by a person under disability and no acceptance by a person under disability of an offer shall be binding until the Court has approved the compromise. 26.07 Withdrawal of acceptance (1) A party who has accepted an offer for the payment to that party of a sum of money may withdraw the acceptance if— (a) the sum of money is not paid— (i) within the time provided by the offer; or (ii) where no time is specified by the offer, within 28 days after acceptance of the offer; and (b) the Court, on the application of the party who accepted the offer, gives leave. (2) A party seeking the leave of the Court under paragraph (1)(b) may also seek orders— (a) to restore the parties as nearly as practicable to each party's position in the proceeding at the time of acceptance; and (b) as to the further conduct of the proceeding. 26.07.1 Failure to comply with accepted offer If, after acceptance of an offer of compromise, a party to the accepted offer defaults in complying with that party's obligations under the offer, any non-defaulting party to the accepted offer may apply to the Court for an order— (a) giving effect to the accepted offer; (b) staying or dismissing the proceeding if the plaintiff is in default; (c) striking out the defendant's defence if the defendant is in default; or (d) that a claim, not the subject of the offer, shall proceed. 26.07.2 Multiple defendants (1) Rule 26.07.1 does not apply if— (a) two or more defendants are alleged to be jointly, or jointly and severally, liable to the plaintiff for a debt or damages; and (b) rights of contribution or indemnity appear to exist between the defendants. (2) Notwithstanding paragraph (1), Rule 26.07.1 applies if— (a) in the case of an offer made by the plaintiff, the offer— (i) is made to all defendants; and (ii) is an offer to compromise the claim against all of them; or (b) in the case of an offer made to the plaintiff— (i) the offer is to compromise the claim against all defendants; and (ii) if the offer is made by two or more defendants, those defendants offer to be jointly, or jointly and severally, liable to the plaintiff for the whole amount of the offer. 26.08 Costs consequences of failure to accept (1) This Rule applies to an offer of compromise which has not been accepted at the time of verdict or judgment. (2) Where an offer of compromise is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled— (a) if the claim of the plaintiff is for damages for or arising out of death or bodily injury, to an order against the defendant for the plaintiff's costs in respect of the claim, taxed on an indemnity basis; (b) in the case of any other claim of the plaintiff, to an order against the defendant for the plaintiff's costs in respect of the claim before 11.00 a.m. on the second business day after the offer was served, taxed on the ordinarily applicable basis and for the plaintiff's costs thereafter taxed on an indemnity basis. (3) Where an offer of compromise is made by a defendant and not accepted by the plaintiff, and the plaintiff obtains a judgment on the claim to which the offer relates not more favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders— (a) the plaintiff shall be entitled to an order against the defendant for the plaintiff's costs in respect of the claim before 11.00 a.m. on the second business day after the offer was served, taxed on the ordinarily applicable basis; and (b) the defendant shall be entitled to an order against the plaintiff for the defendant's costs in respect of the claim thereafter taxed on the ordinarily applicable basis. (4) Where an offer of compromise is made by a defendant and the plaintiff unreasonably fails to accept the offer and the claim to which the offer relates is dismissed or judgment on the claim is entered in favour of the defendant, then unless the Court otherwise orders— (a) the defendant shall be entitled to an order against the plaintiff for the defendant's costs in respect of the claim until 11.00 a.m. on the second business day after the offer was made, taxed on the ordinarily applicable basis; and (b) the defendant shall be entitled to an order against the plaintiff in respect of the defendant's costs after the time referred to in paragraph (a) taxed on an indemnity basis. (5) Where a plaintiff obtains judgment for the recovery of a debt or damages and— (a) the amount for which the Court pronounces judgment includes an amount for interest or damages in the nature of interest; or (b) by or under any Act the Court awards the plaintiff interest or damages in the nature of interest in respect of the judgment amount— for the purpose of determining the consequences as to costs referred to in paragraphs (2) and (3) the Court shall disregard so much of the amount recovered by or awarded to the plaintiff for interest or damages in the nature of interest as relates to the period after the day the offer of compromise was served. (6) For the purpose only of paragraph (5), the Court may be informed of the fact that the offer of compromise was served, and of the date of service, but shall not be informed of its terms. (7) Paragraphs (2), (3) and (4) shall not apply unless the Court is satisfied by the party serving the offer of compromise that that party was at all material times willing and able to carry out that party's part of what was proposed in the offer. (8) Where the plaintiff obtains judgment for the recovery of a debt or damages, and the amount of the debt or the damages was not in dispute, but only the question of liability, paragraph (2) shall not apply unless the Court is satisfied that the plaintiff's offer was of a genuine compromise. 26.08.1 Pre-litigation offers (1) If— (a) a party, before a proceeding has commenced, has made an offer in writing to another party (whether or not expressed to be without prejudice) to compromise any claim made in the proceeding on the terms specified in the offer; (b) the offer was open to be accepted for a reasonable time, but was not accepted; and (c) the offeror obtains an order or judgment in respect of the claim no less favourable to the offeror than the terms of the offer— the Court shall take those matters into account in determining what order for costs to make in respect of the costs of the proceeding. (2) In exercising its discretion as to costs in accordance with paragraph (1), the Court may order that the offeree pay all or part of the offeror's costs of the proceeding taxed on a basis other than the ordinarily applicable basis, from— (a) the day the offer was made; (b) the commencement of the proceeding; or (c) any other time that the Court thinks fit. 26.10 Contributor parties (1) If two or more parties (the ***contributor parties***) may be held liable to contribute towards an amount of debt or damages that may be recovered from the contributor parties, any of those contributor parties may, without prejudice to that contributor party's defence, make an offer to another contributor party, to contribute, to a specified extent, to the amount of the debt or damages. (2) If an offer is made by a contributor party (the ***first contributor party***) and not accepted by another contributor party, and the first contributor party obtains a judgment against the other contributor party more favourable than the terms of the offer, then, unless the Court otherwise orders, the first contributor party is entitled to an order that the contributor party who did not accept the offer pay the costs incurred by the first contributor party— (a) before 11.00 a.m. on the second business day after the offer was served—on the ordinarily applicable basis; and (b) after the time referred to in paragraph (a)—on an indemnity basis. Order 27—Content and form of Court documents 27.01 Conformity with Rules Except to the extent that the nature of the document renders compliance impracticable, a document prepared by a party for use in the Court shall be prepared in accordance with these Rules. 27.02 Heading of document (1) A document shall— (a) be headed "In the County Court of Victoria at", stating in which office of the Court the proceeding commenced; and (b) show any identifying number assigned by the Court to the proceeding. (2) Where a proceeding is commenced by originating motion and the claim of the plaintiff arises under any Act, the heading of a document shall also state "In the matter of", identifying the specific provision relied on. (3) Subject to paragraphs (5) and (6), the heading of a document shall include the title to the proceeding and the title to the proceeding shall name the parties. (4) Except where otherwise provided by these Rules, a document in a proceeding in which there is no defendant shall be entitled "The application of", naming the plaintiff. (5) Where there are more than two plaintiffs, the heading of a document shall state the full name of the first plaintiff followed by the words "and others" and similarly with respect to defendants and other parties. (6) In the case of originating process or a judgment or an order authenticated in accordance with Order 60A or process of execution, if the heading of the document is in accordance with paragraph (5)— (a) immediately after the words "and others" in the title to the document there shall follow the words "according to the schedule"; and (b) a schedule stating the full names of all the parties to the proceeding, and dated, shall be part of the document. 27.03 Form of document (1) A document shall be of durable white paper 297 millimetres by 210 millimetres, the size known as International Paper Size A4, and be capable of receiving writing in ink. (2) Subject to the Rules— (a) a document may be printed single-sided or double-sided, but not partly single-sided and partly double-sided; (b) the sheets of the document shall be securely fastened— (i) at the top left hand corner; and (ii) without obscuring the writing or the margin; (c) a left hand margin of at least 25 millimetres and a top margin of 30 millimetres shall be kept clear on each sheet of a document that bears writing; (d) the pages of a document shall be consecutively numbered; and (e) a document shall have double spacing between the lines. (3) The text of a document shall be printed or typewritten in at least 12 point type and shall be clear, sharp, legible and permanent. (4) A document shall not bear any erasure or alteration that causes material disfigurement. (5) Subject to Rule 27.02(5) and (6), the heading of the document shall be indorsed on the first sheet of the document and shall be followed immediately by a short description of the document. (6) The heading shall occupy a space at the top of the first sheet of the document not exceeding 100 millimetres in depth. (7) The description of the document shall, in the case of an affidavit, include the name of the deponent. (8) A document shall also be indorsed on the first sheet with— (a) the date of the document; (b) the party or other person on whose behalf it is filed; (c) if a solicitor prepares the document, particulars in accordance with paragraph (11); and (d) if the party or person on whose behalf the document is filed is acting without a solicitor, particulars in accordance with paragraph (12). (9) The indorsements referred to in paragraph (8) shall occupy a space immediately following the description of the document and not exceeding 50 millimetres in depth. (10) Paragraph (8)(a) is satisfied by indorsement with— (a) in the case of originating process or a summons, the date of filing; (b) in the case of a pleading, the date the document was made; (c) in the case of an affidavit, the date of swearing. (11) The particulars referred to in paragraph (8)(c) are— Rule 27.03(11)(a) amended by S.R. No. 120/2023 rule 5. (a) the name, address, telephone number and code reference of the solicitor's firm; and (b) the name and e-mail address of an individual in the firm to whom reference can be made in respect of the proceeding. (12) The particulars referred to in paragraph (8)(d) are the name, address, telephone number and email address of the party or other person on whose behalf the document is filed. (13) A document or copy document which is to be filed shall not be folded. (14) The Court may require any document to be prepared in any other manner it thinks fit. 27.04 Numbers Dates, amounts and other numbers shall be expressed in figures and not in words. 27.05 Copies on request Rule 27.05(1) substituted by S.R. No. 135/2024 rule 6. (1) A party who prepares a document for use in the Court shall, on the request of any other party entitled to a copy of the document and on payment of a charge at a reasonable rate for copying a document, supply that party with a copy of the document. (2) A person against whom an order is made without notice shall be entitled to a copy of any document used in support of the application for the order, and paragraph (1) shall apply accordingly. 27.06 Registrar refusing to seal or accept document (1) The Registrar may refuse to seal an originating process without the direction of the Court where the Registrar considers that the form or contents of the document show that were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court. (2) Where a document for use in the Court is not prepared in accordance with these Rules or any order of the Court— (a) the Registrar may refuse to accept it for filing without the direction of the Court; (b) the Court may order that the party responsible shall not be entitled to rely upon it in any manner in the proceeding until a document which is duly prepared is made available. (3) The Court may direct the Registrar to seal an originating process or accept a document for filing. 27.07 Scandalous matter Where a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order— (a) that the matter be struck out; or (b) if the document has been filed, that it be taken off the file. Order 28—Filing and sealing of Court documents 28.01 How document filed (1) Except as this Rule otherwise provides, a document to be filed in the Court is to be filed electronically in accordance with Part 2 in— (a) a pdf version; or (b) any other form approved by the Registrar. (2) The Court may order, or the Registrar may direct, in relation to any or all documents in a proceeding or a part of a proceeding, that the documents be filed— (a) in the office of the Registrar or, where a proceeding is commenced in an office of the Court outside Melbourne, in that office; or (b) with the proper officer in court; or (c) in any other manner that the Court or the Registrar considers appropriate. (3) Subject to any order of the Court, any document under the **Adoption Act 1984** or any rules or regulations under that Act must not be filed electronically in accordance with Part 2. (4) A document that, under paragraph (3), must not be filed electronically in accordance with Part 2, is filed by filing it— (a) in the office of the Registrar or, where a proceeding is commenced in an office of the Court outside Melbourne, in that office; or (b) with the proper officer in court. 28.02 Proceedings commenced outside Melbourne Unless the Court otherwise orders or the Registrar allows— (a) a document filed in an office of the Court outside Melbourne shall remain in the custody of the Registrar at that office; (b) a document in a proceeding commenced in an office of the Court outside Melbourne shall not be filed in any other office. 28.03 Date of filing The Registrar shall indorse the date and time of filing on every document filed. 28.04 Seal of Court (1) The Registrar and every associate to a Judge, an associate judge or a judicial registrar, shall each have in that person's custody a stamp, the design of which shall as near as practicable be the same as the design of the seal of the Court with the addition of, in the case of— (a) the Registrar, the word "Registrar"; (b) an associate to a Judge, the words "Associate to a Judge of the Court"; (c) an associate to an associate judge, the words "Associate to an Associate Judge"; (d) an associate to a judicial registrar, the words "Associate to a Judicial Registrar". (2) * * * * * (3) Marking a document or a copy of a document with a stamp referred to in paragraph (1) is sufficient compliance with any requirement of these Rules or an order of the Court that the document or copy be sealed with the seal of the Court. 28.04A Requirements for seal of the Court if electronic filing used (1) The seal of the Court shall not be required to be affixed to any document prior to it being uploaded into CITEC Confirm. (2) The affixing of an electronic watermark or electronic stamp under Rule 28.11(1)(c)(i) to a document filed in CITEC Confirm is sufficient compliance with any requirement of these Rules or any order of the Court that the document be sealed with the seal of the Court. (2.1) The production of a filing confirmation notice under Rule 28.11(1)(c)(ii) in respect of a document filed in CITEC Confirm is sufficient compliance with any requirement of these Rules or any order of the Court that the document be sealed with the seal of the Court. (3) This Rule applies despite anything to the contrary in Rule 28.04. Rule 28.05 substituted by S.R. No. 158/2021 rule 5. 28.05 Inspection of documents (1) Subject to this Rule, when the office of the Court is open, any person, on payment of the proper fee, may inspect and obtain a copy of any document filed in a proceeding. (2) A person not a party may not inspect or obtain a copy of the following documents without leave of the Court— (a) affidavits; (b) exhibits to affidavits; (c) witness statements; (d) expert reports, including those filed pursuant to Order 33 or Order 44 of these Rules; and (e) written submissions, outlines of argument and chronologies. (3) Paragraph (2) does not apply to a document that has been— (a) read or relied on in open court; or (b) relied on in an application determined without a hearing. (4) No person may inspect or obtain a copy of a document which the Court has ordered remain confidential. (5) A person not a party may not, without leave of the Court, inspect or obtain a copy of a document which, in the opinion of the Registrar, ought to remain confidential to the parties. 28.06 Production of Court document Production to the Court of a document in a proceeding shall be obtained by filing a notice to produce the document— (a) in the office of the Registrar; or (b) where the document is in an office of the Court outside Melbourne, in that office. 28.07 * * * * * Part 2—Electronic filing 28.08 Application of Part This Part applies to the electronic filing of documents in the Court. 28.09 Definitions In this Part— ***authorised provider*** means the STATE OF QUEENSLAND through CITEC, a commercial business of the Queensland Government—ABN 52 566 829 700; ***authorised user*** means a person or body who has arranged for an authorised provider to file documents in the Court electronically, in accordance with the provisions of this Part. 28.10 Authorised provider may send request to file documents electronically An authorised provider may on behalf of an authorised user, send by electronic communication to the Registrar, a document for filing at Court. 28.11 Registrar may accept a document for filing (1) If satisfied that a copy of a document sought to be filed electronically in the Court by an authorised provider complies with the requirements of the Rules, the Registrar must— (a) retain a copy of the document; and (b) record the date and time the document was received and entered in CITEC Confirm; and (c) in the case of a document which, if filed personally would be required to be sealed and dated by the Registrar— (i) authorise the affixing by CITEC Confirm of an electronic watermark or electronic stamp containing a facsimile of the seal of the Court to the document; or (ii) authorise the production of a filing confirmation notice by electronic communication to the authorised provider. (2) A filing confirmation notice shall be in Form 28 and shall contain a facsimile of the seal of the Court. (3) If the Registrar receives by electronic communication a copy of a document for filing after 4.00 p.m. on a day the office of the Court is open or on a day referred to in Rule 3.08, subject to the Registrar being satisfied that the document sought to be filed in the Court complies with the requirements of the Rules, the document shall be taken to have been filed at 9.00 a.m. on the next day the office of the Court is open. 28.12 Registrar may reject a document If the Registrar is not satisfied that a copy of a document sought to be filed in the Court electronically complies with the requirements of the Rules, the Registrar shall send an electronic communication to the authorised provider advising— (a) that the document has not been filed in the Court; and (b) the reason it was not filed. 28.13 * * * * * 28.14 * * * * * 28.15 Production of original document Rule 28.15(1) amended by S.R. No. 90/2022 rule 5(1). (1) At the request of a Judge, an associate judge, a judicial registrar or the Registrar, an authorised user must produce the original version of a document that has been electronically filed in the Court. Rule 28.15(2) amended by S.R. No. 90/2022 rule 5(2). (2) If, subsequent to a request under paragraph (1), the authorised user cannot produce the original version of the document, a Judge, associate judge, judicial registrar or the Registrar may order or direct that the filing of the document be set aside or be of no effect. 28.16 Retention of original documents (1) The possession of a filing confirmation notice does not relieve an authorised user from any obligation to retain an original document. Rule 28.16(2) amended by S.R. No. 90/2022 rule 6. (2) Without limiting any other obligation to retain any document, a party who has filed an affidavit electronically under this Order shall retain the original version of the affidavit until the later of— (a) the expiry of any period within which, without an extension of time, an application for leave to appeal may be made or an appeal brought in the proceeding; or (b) the determination of any application for leave to appeal made or appeal brought— (i) within the period referred to in paragraph (a); or Rule 28.16 (2)(b)(ii) amended by S.R. No. 90/2022 rule 6. (ii) after that period, if the party still retains the original version of the affidavit. 28.17 * * * * * Order 29—Discovery and inspection of documents 29.01 Application and definition (1) Except where the Rules of this Order otherwise provide, the Order applies only— (a) to a proceeding commenced by writ; and (b) to a proceeding in respect of which an order has been made under Rule 4.07(1). (2) In this Order ***possession*** means possession, custody or power. 29.01.1 Scope of discovery (1) Unless the Court otherwise orders, discovery of documents pursuant to this Order is limited to the documents referred to in paragraph (3). (2) Paragraph (1) applies despite any other rule of law to the contrary. (3) Without limiting Rules 29.05 and 29.07, for the purposes of this Order, the documents required to be discovered are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given— (a) documents on which the party relies; (b) documents that adversely affect the party's own case; (c) documents that adversely affect another party's case; (d) documents that support another party's case. (4) Notwithstanding paragraph (3)— (a) if a party giving discovery reasonably believes that a document is already in the possession of the party to which discovery is given, the party giving discovery is not required to discover that document; (b) a party required to give discovery who has, or has had in the party's possession more than one copy, however made, of a particular document is not required to give discovery of additional copies by reason only of the fact that the original or any other copy is discoverable. (5) For the purposes of paragraph (3), in making a reasonable search a party may take into account— (a) the nature and complexity of the proceeding; (b) the number of documents involved; (c) the ease and cost of retrieving a document; (d) the significance of any document to be found; and (e) any other relevant matter. 29.02 Notice for discovery (1) Where the pleadings between any parties are closed, any of those parties, may, by notice for discovery served on any other of those parties, require the party served to make discovery of all documents which are or have been in that party's possession and which, in accordance with Rule 29.01.1, are required to be discovered. (2) A notice for discovery shall be in Form 29A. (3) A notice for discovery served before the pleadings are closed shall be taken to have been served on the day after the pleadings close. (4) Notwithstanding paragraph (1), a notice for discovery shall not be served without leave of the Court in— (a) a proceeding under the **Workers Compensation Act 1958**; or (b) a proceeding under the **Accident Compensation Act 1985**; or (c) a proceeding under the **Workplace Injury** **Rehabilitation and Compensation Act 2013**. 29.03 Discovery after notice A party upon whom a notice for discovery is served shall make discovery of documents within 42 days after the later of— (a) service of the notice; or (b) the day upon which the notice is taken by virtue of Rule 29.02(3) to have been served. 29.04 Affidavit of documents (1) An affidavit of documents for the purpose of making discovery of documents shall be in Form 29B and shall— (a) identify the documents which are or have been in the possession of the party making the affidavit; (b) enumerate the documents in convenient order and shall describe each document or, in the case of a group of documents of the same nature, shall describe the group, sufficiently to enable the document or group to be identified; (c) distinguish those documents which are in the possession of the party making the affidavit from those that have been but are no longer in that party's possession, and shall as to any document which has been but is no longer in the possession of the party— (i) state when the party parted with the document; and (ii) the party's belief as to what has become of it; (d) where the party making the affidavit claims that any document in that party's possession is privileged from production, state sufficiently the grounds of the privilege. (2) If a party required to give discovery in accordance with Rule 29.01.1 does not, in making a reasonable search as required by Rule 29.01.1, search for a category or class of document, the party must include in the affidavit of documents a statement of— (a) the category or class of document not searched for; and (b) the reason why. 29.05 Order limiting discovery In order to prevent unnecessary discovery, the Court may, before or after any party is required to make discovery by virtue of a notice for discovery served in accordance with Rule 29.02, order that discovery by any party shall not be required or shall be limited to such documents or classes of document, or to such of the questions in the proceeding, as are specified in the order. 29.05.1 Order for general discovery At any stage of a proceeding, the Court may order any party to give discovery in accordance with Rule 29.01.1. 29.05.2 Order for expanded discovery (1) At any stage of a proceeding, the Court may, by order, expand a party's obligation to give discovery beyond that required by Rule 29.01.1. (2) Without limiting any power of the Court, an order under paragraph (1) may specify any document or class of document to which the expanded obligation relates. 29.06 Co-defendants and third party (1) A defendant who has pleaded shall be entitled to obtain from the party making discovery a copy of any affidavit of documents served on— (a) the plaintiff by any other defendant to the proceeding; (b) any other defendant by the plaintiff. (2) Where the defendant has served a counterclaim joining another person with the plaintiff as defendant to the counterclaim in accordance with Rule 10.03, paragraph (1), with any necessary modification, applies as if— (a) the defendant were the plaintiff; and (b) the plaintiff and the other person were the defendants. (3) A third party who has pleaded shall be entitled to obtain from the party making discovery a copy of any affidavit of documents served— (a) by the plaintiff on the defendant by whom the third party was joined; (b) on the plaintiff by that defendant. 29.07 Order for discovery (1) In a proceeding within Rule 29.01, notwithstanding that the pleadings between any parties are not closed, the Court may order that any of those parties make discovery of documents to any other of those parties. (2) In a proceeding not within Rule 29.01 the Court may at any stage order any party to make discovery of documents. (3) An order under paragraph (1) or (2) may be limited to such documents or classes of document, or to such questions in the proceeding, as the Court thinks fit. 29.08 Order for particular discovery (1) This Rule applies to any proceeding in the Court. (2) Where, at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating— (a) whether that document or any, and if so what, document or documents of that class is or has been in that party's possession; and (b) if it has been but is no longer in that party's possession, when the party parted with it and that party's belief as to what has become of it. (3) An order may be made against a party under paragraph (2) notwithstanding that the party has already made or been required to make an affidavit of documents. 29.09 Inspection of documents referred to in affidavit of documents (1) A party upon whom an affidavit of documents is served in accordance with Rule 29.03 or in accordance with an order made under Rule 29.07 or 29.08 and a party to whom an affidavit of documents is supplied in accordance with Rule 29.06 may, by notice to produce served on the party making the affidavit, require that the party produce the documents in that party's possession referred to in the affidavit (other than any which that party objects to produce) for inspection. (2) A party upon whom a notice to produce is served in accordance with paragraph (1) shall, within seven days after that service, serve on the party requiring production a notice appointing a time within seven days after service of the notice under this paragraph when, and a place where, the documents may be inspected. (3) A notice to produce under paragraph (1) shall be in Form 29C. (4) A party to whom documents are produced for inspection under this Rule may take copies of the documents. (5) For the purpose of paragraph (4), taking a copy of a document includes photocopying the document, and if the party to whom a document is produced states that the party wishes to have it photocopied, the party producing the document shall at that party's option either— (a) allow the other party to photocopy the document at such place as the parties agree; or (b) supply the other party with a photocopy of the document. (6) Unless the Court otherwise orders, the cost of a photocopy of a document supplied to a party in accordance with paragraph (5) shall— (a) be borne by that party in the first instance and be ultimately a cost in the proceeding; and Rule 29.09(6)(b) amended by S.R. No. 135/2024 rule 7. (b) be in the amount allowed at a reasonable rate for copy documents. 29.10 Inspection of documents referred to in pleadings and affidavits (1) This Rule applies to any proceeding. (2) Where, in the originating process filed by a party or in any pleading, interrogatories or answers, affidavit, or notice filed by a party, reference is made to a document, any other party may, by notice to produce served on that party, require that party to produce the document for inspection. (3) Except as provided by paragraph (4), Rule 29.09, with any necessary modification, shall apply to the production and inspection of a document under this Rule. (4) A party upon whom a notice to produce is served under paragraph (2) shall not be required to produce a document for inspection where— (a) the party claims that the document is privileged from production, and that party makes and serves on the other party an affidavit in which the party— (i) makes that claim; and (ii) states sufficiently the grounds of the privilege; (b) the document is not in that party's possession, and the party makes and serves on the other party an affidavit in which the party— (i) states that fact and states to the best of the party's knowledge, information and belief where the document is and in whose possession it is; and (ii) where the document has been but is no longer in the party's possession, when the party parted with it and the party's belief as to what has become of it. (5) A notice to produce under paragraph (2) shall be in Form 29C. 29.11 Order for discovery Where a party— (a) fails to make discovery of documents in accordance with Rules 29.03 and 29.04; (b) fails to serve a notice appointing a time for inspection of documents as required by Rule 29.09 or 29.10; (c) objects to produce any document for inspection; (d) offers inspection unreasonable as to time or place; or (e) objects to allow any document to be photocopied or to supply a photocopy of the document— the Court may order the party to do such act as the case requires. 29.12 Direction as to documents (1) Where a party is entitled under this Order to inspect a document which consists of— (a) a video tape, audio tape, disc, film or other means of recording, the Court may give directions— (i) for the screening or playing thereof; and (ii) for the making by or supply to the party of a transcript of the recording (insofar as it can be transcribed) or a copy of the recording; (b) information which has been processed by or is stored in a computer, the Court may give directions for making the information available. (2) On an application under paragraph (1) the Court may make an order for the costs and expenses of the party against whom an order giving directions is sought. (3) The Court may make an order giving directions on condition that the party applying give security for the costs and expenses of the party against whom the order is made. 29.12.1 Default notice (1) This Rule shall not limit the power of the Court under Rule 24.02. (2) If a party required to make discovery of documents fails to make discovery within the time limited by these Rules or fixed by any order of the Court, the party entitled to the discovery may serve on that party a notice in Form 29D. (3) If within seven days after service of a notice under paragraph (2) the party on whom the notice is served does not make discovery, the Court may order— (a) if the party required to make discovery is the plaintiff, that the proceeding be dismissed; (b) if the party required to make discovery is a defendant, that the defendant's defence, if any, be struck out. (4) This Rule, with any necessary modification, applies to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. (5) For the purpose of Rule 21.02(1), a defendant whose defence is struck out in accordance with paragraph (3) shall be taken to be a defendant who, being required to serve a defence, does not do so within the time limited for that purpose. (6) The Court may set aside or vary an order made under paragraph (3). 29.13 Inspection of document by Court Where an application is made for an order under Rule 29.11 and a claim is made that the document is privileged from production or objection to production is made on any other ground, the Court may inspect the document for the purpose of deciding the validity of the claim or objection. 29.14 Default on discovery (1) Without limiting Rule 24.02, a party who does not within the time limited comply with an order under Rule 29.08(2) or 29.11, or an order under Rule 29.12(1) giving directions shall be liable to committal. (2) Service on the solicitor for a party of an order for discovery or production of documents made against that party shall be sufficient service to found an application for committal of the party disobeying the order but the party may show in answer to the application that that party had no notice or knowledge of the order. (3) A solicitor on whom such an order made against the solicitor's client is served and who fails without reasonable excuse to give notice of the order to the solicitor's client shall be liable to committal. 29.15 Continuing obligation to make discovery A party who has made an affidavit of documents is under a continuing obligation to make discovery of documents with respect to documents of which the party obtains possession after making the affidavit. Order 30—Interrogatories 30.01 Definitions ***interrogating party*** means a party who serves interrogatories; ***party interrogated*** means a party on whom interrogatories are served; ***servant or agent***, in relation to a corporation, includes officer and member. 30.02 When interrogatories allowed (1) Subject to the other paragraphs of this Rule, any party may serve interrogatories on another party relating to any question between them in the proceeding. (2) Where the pleadings between any parties are closed, interrogatories may be served without leave of the Court by any of those parties on any other of them. (3) Where paragraph (2) does not apply, the Court may order that any party may serve interrogatories on any other party. (4) By leave of the Court an interrogating party may serve further interrogatories. Rule 30.02(5) amended by S.R. No. 135/2024 rule 8. (5) An interrogatory served without reasonable cause is, for the purposes of an assessment or taxation of costs, work which is unreasonable. (6) Interrogatories shall not be served on any other party without leave of the Court in— (a) a proceeding under the **Workers Compensation Act 1958**; or (b) a proceeding under the **Accident Compensation Act 1985**. 30.03 Statement as to who to answer Where interrogatories are to be answered by two or more parties, the interrogating party shall state in the document containing the interrogatories which of them each party is required to answer. 30.04 Filing interrogatories and time for answers Where interrogatories are served— (a) the interrogating party shall forthwith file a copy; (b) the party interrogated shall within 42 days after service answer by affidavit, file it and serve a copy on the interrogating party. 30.05 Source for answers to interrogatories (1) A party interrogated shall answer each interrogatory insofar as it is not objectionable in accordance with the following provisions— (a) the party shall answer from the party's own knowledge of the fact or matter which is inquired after by the interrogatory and, if the party has no such knowledge, from any belief the party has as to that fact or matter; (b) a party who has a knowledge of the fact or matter inquired after shall be taken not to have a belief as to the fact or matter where the party has no information relating to the fact or matter on which to form a belief or where, if the party has such information, for reasonable cause the party has no belief that the information is true; (c) except as provided by paragraph (d), the party shall answer from any belief the party has as to the fact or matter inquired after irrespective of the source of the information on which the belief is formed; (d) the party shall not be required to answer from the party's belief as to any fact or matter where the belief is formed on information that was given to the party in a communication the contents of which the party could not, on the ground of privilege, be compelled to disclose; (e) where the party has no personal knowledge of the fact or matter inquired after, the party shall, for the purpose of enabling the party to form a belief as to the fact or matter (so far as the party can), make all reasonable inquiries to determine— (i) whether any person has knowledge of the fact or matter which was acquired by that person in the capacity of that party's servant or agent; and (ii) if that is the case, what that knowledge is; (f) the party shall make the inquiries referred to in paragraph (e) notwithstanding that at the time the party is required to answer the interrogatory any person having the relevant knowledge has ceased to be that person's servant or agent; (g) where the party is a corporation, this Rule applies, with any necessary modification, as if— (i) the person who answers the interrogatories on behalf of the corporation were that party; and (ii) in particular, as if the reference in paragraph (e) to a servant or agent of the party were a reference to a servant or agent of the corporation. (2) Where an interrogatory relates to a fact or matter alleged in the pleading of the party interrogated, nothing in paragraph (1)(d) shall affect the right of the interrogating party to obtain information as to that fact or matter pursuant to an application of the kind referred to in Rule 13.11. 30.06 How interrogatories to be answered (1) A party interrogated shall answer each interrogatory specifically by answering the substance of the interrogatory without evasion except insofar as it is objectionable on any of the grounds referred to in Rule 30.07. (2) Where the party objects to answer an interrogatory the party shall state briefly— (a) the ground of objection; and (b) the facts, if any, on which it is based. Rule 30.06(3) inserted by S.R. No. 120/2023 rule 6. (3) A party interrogated shall answer each interrogatory by stating both the question and the answer to that question in the one document. 30.07 Ground of objection to answer (1) A party interrogated shall answer each interrogatory except to the extent that it may be objected to on any of the following grounds— (a) the interrogatory does not relate to any question between the party and the interrogating party; (b) the interrogatory is unclear or vague or is too wide; (c) the interrogatory is oppressive; (d) the interrogatory requires the party to express an opinion which the party is not qualified to give; (e) privilege. (2) Without limiting paragraph (1)(a), an interrogatory that does not relate to any question includes an interrogatory the sole purpose of which is to— (a) impeach the credit of the party interrogated; (b) enable the interrogating party to ascertain whether the party has a claim or defence other than that which the party has raised in the proceeding; (c) enable the interrogating party to ascertain the evidence by which the party interrogated intends to prove the person's case, including the identity of witnesses. (3) A party may not object to answer an interrogatory on the ground that the party cannot answer without going to a place which is not the party's usual place of residence or business if the interrogating party undertakes to pay the reasonable cost of the person going there, unless the Court otherwise orders. 30.08 Who to answer interrogatories (1) Interrogatories shall be answered— (a) where the party interrogated is— (i) a natural person, by the party; (ii) a person under disability, but that person or that person's litigation guardian, whichever is appropriate; (iii) a corporation, by an officer of the corporation or by any person duly authorised by it to answer; or (b) by such person as the Court may direct. (2) The answers of a person made in accordance with a direction given under paragraph (1)(b) shall be as effective and binding in all respects as if made by the party interrogated. 30.09 Failure to answer interrogatories Where a party interrogated fails to answer the interrogatories within the time limited or does not answer the interrogatories sufficiently, the Court may order that the party answer or answer further, as the case may be, within such time as it directs. 30.09.1 Default notice (1) This Rule shall not limit the power of the Court under Rule 24.02. (2) If a party interrogated fails to answer interrogatories within the time limited by the Rules or fixed by any order of the Court, the interrogating party may serve on that party a notice in Form 30A. (3) If within seven days after service of a notice under paragraph (2) the party interrogated does not answer the interrogatories, the Court may order— (a) if the party interrogated is the plaintiff, that the proceeding be dismissed; (b) if the party interrogated is a defendant, that the defendant's defence, if any, be struck out. (4) This Rule, with any necessary modification, applies to a counterclaim and to a claim by third party notice as if the counterclaim or the third party claim were a proceeding. (5) For the purpose of Rule 21.02(1), a defendant whose defence is struck out in accordance with paragraph (3) shall be taken to be a defendant who, being required to serve a defence, does not do so within the time limited for that purpose. (6) The Court may set aside or vary an order made under paragraph (3). 30.10 Non-compliance with order (1) Without limiting Rule 24.02, a party who does not within the time limited comply with an order made under Rule 30.09 shall be liable to committal. (2) Service on the solicitor for a party of an order made against that party under Rule 30.09 shall be sufficient service to found an application for committal of the party disobeying the order, but the party may show in answer to the application that the party had no notice or knowledge of the order. (3) A solicitor on whom such an order made against the solicitor's client is served and who fails without reasonable excuse to give notice of the order to the solicitor's client shall be liable to committal. 30.11 Answers as evidence (1) On an application in or at the trial of a proceeding a party may tender as evidence— (a) one or more answers to interrogatories given by another party without tendering the others; (b) part of an answer to an interrogatory without tendering the whole of the answer. (2) Upon the tender of the whole or part of an answer to an interrogatory, the Court may look at the whole of the answers and if any other answer or any part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without the other answer or part, the Court may reject the tender unless that other answer or part is also tendered. (3) Where the answer of a party interrogated is stated to be given on the basis of belief, and the answer is received into evidence, the Judge or the jury, as the case may be, shall give the answer such weight as the circumstances require. Order 31—Discovery by oral examination 31.01 Definitions ***examiner*** means examiner appointed under this Order; ***examining party*** means a party who orally examines or is to examine orally another party in accordance with this Order; ***party examined*** means a party orally examined or to be orally examined by another party in accordance with this Order, and includes, where the party is a corporation, the officer of the corporation or other person attending to be examined in accordance with Rule 31.08(1). 31.02 When available (1) Where under these Rules a party may serve interrogatories on another party relating to any question between them in the proceeding, that party may, subject to this Rule, orally examine the other party in relation to that question. (2) A party shall not be orally examined by another except with the party's consent given in accordance with Rule 31.04. (3) A party who has consented to be orally examined by another shall not be required to answer written interrogatories served by the other unless that party has undertaken to do so. 31.03 Party a corporation A party which is a corporation may be orally examined under this Order. 31.04 How consent given The consent of a party to be orally examined shall— (a) be in writing; (b) state the name of the examiner; and (c) be filed. 31.05 Effect of consent Where the consent of a party to be orally examined is filed under Rule 31.04— (a) the party shall be liable to be examined in accordance with this Order; (b) if the party fails to comply with an order of the Court to attend an examination or answer a question, Rule 24.02, with any necessary modification, applies as if the failure were a failure of a kind referred to in that Rule; (c) at the trial of or on the hearing of an application in the proceeding— (i) the examining party may, in accordance with Rule 30.11, use in evidence the answers given under this Order by the party examined; and (ii) that Rule, with any necessary modification, applies as if the answers were answers of the party examined to written interrogatories served by the examining party. 31.06 Appointment of examiner (1) An examination shall be held before an examiner who has been appointed by agreement of the parties and who consents to be appointed. (2) The consent of the examiner shall be in writing and be filed. 31.07 Attendance on examination (1) The time and place of the examination shall be determined by the examiner. (2) The party examined shall attend the examination to be examined by the examining party. (3) Counsel and solicitor for each party may attend the examination. (4) If the party examined fails to attend an examination, the Court may order that the party attend to be examined in accordance with this Order at such time and place as it directs. 31.08 Party a corporation (1) Where the party examined is a corporation— (a) an officer of the corporation; or (b) by agreement of the party examined and the examining party, a person who is not an officer— shall be examined and any answer given shall be taken to be the answer of the corporation. (2) Unless the party examined and the examining party otherwise agree, nothing in paragraph (1) shall be taken to authorise the examination of more than one person. 31.09 Powers of examiner The examiner— (a) may administer oaths and receive affirmations; and (b) may adjourn the examination from time to time and from place to place. 31.10 Record of examination (1) A deposition of the examination of the party examined shall be made. (2) Where objection is taken to any question, proceedings before the examiner with respect to the objection shall be recorded in the deposition. (3) The deposition shall be authenticated by the signature of the examiner, and forthwith after signing the deposition the examiner shall give notice in writing to the party examined and the examining party of the authentication. 31.11 How party to be examined (1) On the examination the party examined shall be questioned by or on behalf of the examining party and no questions shall be asked of the party examined by that party's own counsel or solicitor. (2) The examination shall be in the nature of an examination-in-chief of the party examined by the examining party. (3) The party examined shall answer each question asked of that party unless it may be objected to on any of the grounds referred to in Rule 30.07, and that Rule, with any necessary modification, shall apply as if the examination were an examination of the party by written interrogatories. (4) Where the party examined answers a question, the party shall answer in accordance with Rules 30.05 and 30.06(1), and those Rules, with any necessary modification, shall apply as if the examination were an examination of the party by written interrogatories. (5) A question may be answered by the counsel or solicitor for the party examined, and the answer shall be taken to be the answer of the party. (6) Where Rule 30.05(1)(e) applies, the examiner may adjourn the examination to enable the party examined to make the inquiries referred to in that Rule. 31.12 Procedure on objection to question (1) This Rule applies where objection is taken to answering a question on the examination. (2) The party examined shall state each ground of objection to answering, but, unless the Court otherwise orders, shall not be required to answer the question. (3) The examining party may apply to the Court under Rule 31.13 for an order that the party examined answer the question. 31.13 Order to answer question (1) An application by the examining party under Rule 31.12(3) shall be made to an associate judge by summons identifying each question to which the application relates. (2) The associate judge may order that the party examined shall answer any question in respect of which the application is made. (3) If an order is made under paragraph (2), unless the associate judge otherwise orders, the party shall answer the question before the examiner, and the associate judge may direct that the examining party be at liberty to ask such further questions of the party examined as the case requires. (4) The associate judge— (a) may order that the party examined shall answer the question in writing; and (b) may direct whether that answer shall be given on oath or not. 31.14 Costs The costs of an examination shall be costs in the proceeding, unless the Court otherwise orders. Order 32—Preliminary discovery and discovery from non‑party 32.01 Definitions ***applicant*** means applicant for an order under this Order; ***description*** includes the name, place of residence, place of business, occupation and sex of the person against whom the applicant desires to bring a proceeding and whether that person is an individual or a corporation; ***possession*** means possession, custody or power. 32.02 Privilege An order made under this Order shall not operate to require the person against whom the order is made to produce any document or answer any question which, on the ground of privilege, that person is not required to produce or answer. 32.03 Discovery to identify a defendant (1) The Court may make an order under paragraph (2) where— (a) an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this Rule called ***the person concerned***); and (b) it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had in that person's possession any document or thing, tending to assist in such ascertainment. (2) The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, shall— (a) attend before the Court to be orally examined in relation to the description of the person concerned; (b) make discovery to the applicant of all documents which are or have been in the person or corporation's possession relating to the description of the person concerned. (3) Where the Court makes an order under paragraph (2)(a), it may— (a) order that the person or corporation against whom or which the order is made shall produce to the Court on the examination any document or thing in the person or corporation's possession relating to the description of the person concerned; (b) direct that the examination be held before an associate judge or judicial registrar. 32.04 Party an applicant Rule 32.03, with any necessary modification, applies where the applicant is a party to a proceeding and wishes to make in the proceeding against a person who is not a party a claim which the applicant could properly have made in the proceeding had the person been a party. 32.05 Discovery from prospective defendant (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person's possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision— the Court may order that that person shall make discovery to the applicant of any document of the kind described in paragraph (c). 32.06 Party an applicant Rule 32.05, with any necessary modification, applies where the applicant is a party to a proceeding and there is reasonable cause to believe that the applicant has or may have the right to obtain against a person who is not a party relief which the applicant could properly have claimed in the proceeding had the person been a party. 32.07 Discovery from non-party On the application of any party to a proceeding the Court may order that a person who is not a party and in respect of whom it appears that that person has or is likely to have or has had or is likely to have had in that person's possession any document which relates to any question in the proceeding shall make discovery to the applicant of any such document. 32.08 Procedure (1) An application under Rule 32.03 or 32.05 shall be made by originating motion to which the person against whom the order is sought shall be made respondent. (2) An application under Rule 32.04, 32.06 or 32.07 shall be made by summons served on every party to the proceeding and served personally on the person against whom the order is sought. (3) An order shall not be made under any of the Rules referred to in paragraphs (1) and (2) except by a Judge. (4) An originating motion under paragraph (1) or a summons under paragraph (2) shall be supported by an affidavit— (a) stating the facts on which the application is made; and (b) specifying or describing the documents or any class of documents in respect of which the order is sought. (5) A copy of the supporting affidavit shall be served on every person on whom the originating motion or the summons is served. 32.09 Inspection of documents Rule 29.09, with any necessary modification, applies to the inspection of the documents referred to in an affidavit of documents made and served in accordance with this Order as if the affidavit were an affidavit of documents as mentioned in Rule 29.09(1). 32.10 Directions as to documents Rule 29.12, with any necessary modification, applies to the inspection of a document under this Order. 32.11 Costs (1) On an application under this Order the Court may make an order for the costs and expenses of the applicant, of the person against whom the order is made or sought and of any party to the proceeding, including the costs of— (a) making and serving any affidavit of documents; (b) producing any document for inspection in accordance with Rule 32.09; or (c) complying with any direction given under Rule 32.10. (2) The Court may make an order under this Order on condition that the applicant give security for the costs and expenses of the person against whom the order is made. Order 33—Medical examination and service of hospital and medical reports 33.01 Application This Order applies to— (a) a proceeding in which the plaintiff claims damages for, or otherwise claims in respect of, bodily injury; (b) a proceeding under the **Accident Compensation Act 1985**; (c) a proceeding under the **Workers Compensation Act 1958**. 33.02 Counterclaim This Order, with any necessary modification, applies to a counterclaim by which the defendant makes a claim of the kind referred to in Rule 33.01. 33.03 Definitions ***dentist*** means— (a) a person registered or qualified to be registered under the Health Practitioner Regulation National Law— (i) to practise in the dentistry profession (other than as a student); and (ii) in the dentists division of that profession; or (b) a person entitled to practise dentistry in a place out of Australia under an enactment of that place corresponding to the Health Practitioner Regulation National Law, whether or not the person does so practise; ***examination*** means an examination for medical, dental, or psychological purposes as the case requires; ***hospital report*** means a statement in writing concerning the plaintiff made by or on behalf of a hospital, rehabilitation centre or other like institution; ***medical expert*** means medical practitioner, dentist or psychologist as the case requires; ***medical matters*** includes dental matters and psychological matters; ***medical practitioner*** means— (a) a person registered or qualified to be registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); or (b) a person entitled to practise medicine in a place out of Australia under an enactment of that place corresponding to the Health Practitioner Regulation National Law, whether or not the person does so practise; ***medical report***— (a) means a statement on medical matters concerning the plaintiff, whether in writing or oral, made by a medical expert; and (b) includes any document which the medical expert intends should be read with the statement whether the document was in existence at the time the statement was made or was a document which the expert obtained or caused to be brought into existence subsequently; ***psychologist*** means— (a) a person registered or qualified to be registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student); or (b) a person who is qualified or registered to practise psychology in a place out of Australia under an enactment of that place corresponding to the Health Practitioner Regulation National Law, whether or not the person does so practise; ***serve***, in relation to the service of a medical report, means— (a) where the medical report was in writing, serve a copy; and (b) where the medical report was oral, serve notice in writing of its substance. 33.04 Notice for examination (1) The defendant may request the plaintiff in writing to submit to appropriate examinations by a medical expert or experts at specified times and places. (2) Where a plaintiff refuses or neglects without reasonable cause to comply with a request under paragraph (1), the Court may, if the request was on reasonable terms, stay the proceeding. 33.05 Expenses (1) The costs of and incidental to the examination shall be costs in the proceeding. (2) Without limiting paragraph (1), the defendant , on request by the plaintiff whether before or after the plaintiff is examined, shall pay to the plaintiff a reasonable sum to meet the plaintiff's travelling and other expenses of, and incidental to, the examination. 33.06 Report of examination of plaintiff (1) A defendant for whom a plaintiff is examined under Rule 33.04 shall as soon as practicable after the examination obtain from the medical expert a medical report. (2) Upon obtaining the medical report the defendant shall forthwith serve the medical report on the plaintiff. (3) If the defendant later obtains another medical report from the medical expert concerning the plaintiff, whether or not the other report is consequent upon a further examination by the medical expert of the plaintiff, the defendant shall forthwith serve the medical report on the plaintiff. 33.07 Service of reports by plaintiff (1) A plaintiff shall serve on each other party who has an address for service in the proceeding any hospital or medical report (other than a hospital or medical report served on or supplied to the plaintiff by another party)— (a) which the plaintiff intends to tender or the substance of which the plaintiff intends to adduce in evidence; or (b) which otherwise the plaintiff intends to use at the trial. (2) The plaintiff shall serve the hospital report or medical report at such time as the Court directs. 33.08 Service of reports by defendant (1) A defendant shall serve on each other party who has an address for service in the proceeding any hospital report or medical report (other than a hospital report or medical report served on or supplied to the defendant by another party)— (a) which the defendant intends to tender or the substance of which the defendant intends to adduce in evidence; or (b) which otherwise the defendant intends to use at the trial. (2) Paragraph (1) does not require the defendant to serve on the plaintiff a medical report served on the plaintiff under Rule 33.06, but the defendant shall by notice to the plaintiff in writing identify any medical report so served— (a) which the defendant intends to tender or the substance of which the defendant intends to adduce in evidence; or (b) which otherwise the defendant intends to use at the trial. (3) The defendant shall serve the hospital report or medical report and give any notice under paragraph (2) at such time as the Court directs. (4) In this Rule ***defendant*** includes a third or subsequent party. 33.08.1 Other medical reports to be served Where after a party has served a medical report under Rule 33.07 or Rule 33.08 the medical expert who made the report makes another medical report to the party, then, notwithstanding that the party— (a) no longer intends to tender the medical report so served or to adduce its substance in evidence or to otherwise use it at the trial; or (b) does not intend to tender the other medical report or to adduce its substance in evidence or to otherwise use it at the trial— the party shall serve the other medical report forthwith on each other party who has an address for service in the proceeding. 33.09 Opinion on liability Unless the Court otherwise orders, a party who is required to serve a copy of a hospital report or medical report under this Order may exclude from the copy served— (a) any expression of opinion in the original report on the question of liability; and (b) if the original report contains any statement with respect to the facts on which the opinion is based, any statement with respect to a fact that relates only to the question of liability. 33.10 Material for Court (1) This Rule applies only to a proceeding which is to be tried by a Judge without a jury. (2) If, for the purpose of evidence at the trial, a party intends to— (a) use a medical report or a hospital report a copy of which was served under this Order; (b) call the maker of a medical report or a hospital report a copy of which was served under this Order— the party shall file a copy of the report for the use of the Court not less than two days before the day fixed for trial. 33.11 Medical report admissible (1) This Rule does not apply in the case of the trial of a proceeding before a Judge with a jury. (2) A medical report which was served under this Order is admissible as evidence of the opinion of the medical expert who gave the report and, where the medical expert's oral evidence of a fact upon which the opinion was based would be admissible, as evidence of that fact. (3) Subject to paragraphs (4) and (5), a medical report may be used in evidence— (a) by the party who served the report; or (b) by any party on whom it was served. (4) If a medical report is tendered by the party who served the report— (a) that party shall cause the medical expert who gave the report to attend at the trial of the proceeding to be cross-examined if notice that such attendance is required is served on the party by any other party not later than five days before the commencement of the trial; and (b) if the medical expert does not attend for cross-examination, the Court may order that the medical report be not received in evidence. (5) If a medical report is tendered by a party on whom the report was served— (a) that party shall cause the medical expert who gave the report to attend at the trial of the proceeding to be cross-examined, and if the medical expert does not attend the Court may order that the medical report be not received in evidence; (b) if the report is received in evidence and the medical expert is cross-examined by any party against whom the report is received, at the conclusion of the cross-examination the party who tendered the report may examine the expert as if by re-examination. 33.12 No evidence unless disclosed in report Except with the leave of the Court or by consent of the parties, a party shall not except in cross‑examination adduce evidence from a medical report on medical matters concerning the plaintiff unless that evidence is disclosed by a medical report served in accordance with this Order. Order 34—Directions 34.01 Powers of Court (1) At any stage of a proceeding the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination. (2) Subject to paragraph (3), a party may apply for directions on the hearing either of a summons filed for the purpose or of a summons for other relief. (3) The requirement to file a summons does not apply in respect of an interlocutory application in a proceeding in a specialist list if a practice note applying in respect of proceedings in that list otherwise provides. 34.02 Nature of directions Without limiting Rule 34.01(1), the Court may give directions relating to— (a) amendment of a document, under Rule 36.01; (b) evidence under Order 40. 34.03 Admissions and agreements (1) On an application for directions the Court— (a) may take steps with a view to securing that the parties make all admissions and all agreements as to the conduct of the proceeding which ought reasonably to be made by them; and (b) may, by order, record any admission or agreement so made. (2) The Court may, by order, record any refusal to make an admission or an agreement as to the conduct of the proceeding so that the refusal may later, if the Court thinks fit, be taken into account on any question of costs. 34.04 Duty to obtain directions Where a party applies for directions any other party who attends on the application shall apply at the same time for any direction which that other party requires and which may be given before trial. Order 34A—Case management Part 1—Court lists Rule 34A.01 substituted by S.R. No. 142/2019 rule 9. 34A.01 Application of Part This Part applies to— (a) every civil proceeding in the Court; and (b) every other proceeding referred to in Rule 34A.03— irrespective of which Chapter of the Rules of the County Court applies to those proceedings. 34A.02 Court Divisions The Registrar shall establish and maintain the following Court Divisions— (a) the Common Law Division; (b) the Commercial Division. 34A.03 Common Law Division The Common Law Division shall consist of— (a) any proceeding in which the plaintiff has in accordance with Rule 47.02(1) signified that the plaintiff desires to have the proceeding tried with a jury; (b) any proceeding in which the plaintiff claims the recovery of damages— (i) founded on tort (including breach of statutory duty); (ii) for wrongful dismissal; (c) any proceeding commenced by originating motion in which the plaintiff applies for an order under— (i) section 23A of the **Limitation of Actions Act 1958**; (ii) section 93 of the **Transport Accident Act 1986**; (iii) section 134AB or 135A of the **Accident Compensation Act 1985**; (iv) Order 32; (v) section 6 of the **Choice of Law (Limitation Periods) Act 1993**; (d) any claim arising under section 138 of the **Accident Compensation Act 1985** or section 107 of the **Transport Accident Act 1986**; (da) any proceeding in which orders are sought pursuant to— (i) the **Relationships Act 2008**; or (ii) Part IV of the **Administration and Probate Act 1958**; (e) any proceeding under— (i) the **Accident Compensation Act 1985**, except an application undersection 134AB, a proceeding under section 135A or a claim arising under section 138; or (ii) the **Workers Compensation Act 1958**; Rule 34A.03(f) amended by S.R. No. 29/2019 rule 5(a). (f) any proceeding under the **Workplace Injury Rehabilitation and Compensation Act 2013**; Rule 34A.03(g) inserted by S.R. No. 29/2019 rule 5(b). (g) any proceeding under— (i) the **Confiscation Act 1997**; or (ii) the Proceeds of Crime Act 2002 of the Commonwealth; Rule 34A.03(h) inserted by S.R. No. 29/2019 rule 5(b). (h) any proceeding under— (i) the **Adoption Act 1984**; (ii) the **Births, Deaths and Marriages Registration Act 1996**; or Rule 34A.03(h)(iii) amended by S.R. No. 142/2019 rule 5(1). (iii) Part IV of the **Status of Children Act 1974**; Rule 34A.03(i) inserted by S.R. No. 142/2019 rule 5(2). (i) any appeal under— (i) section 114 of the **Family Violence Protection Act 2008**; (ii) section 91 of the **Personal Safety Intervention Orders Act 2010**; or (iii) section 328 of the **Children, Youth and Families Act 2005**; Rule 34A.03(j) inserted by S.R. No. 142/2019 rule 5(2), amended by S.R. No. 120/2023 rule 7(1). (j) any application under the **Serious Offenders Act 2018**; Rule 34A.03(k) inserted by S.R. No. 142/2019 rule 5(2), amended by S.R. No. 120/2023 rule 7(2). (k) any application under section 85B or 86(1A)(a) of the **Sentencing Act 1991**; or Rule 34A.03(l) inserted by S.R. No. 120/2023 rule 7(3). (l) any proceeding in which a claim founded on or arising out of death or personal injury allegedly resulting from abuse is made against— (i) a body corporate or an unincorporated body or association; (ii) a proper defendant for such an entity under the **Legal Identity of Defendants (Organisational Child Abuse) Act 2018**; or (iii) an appropriate defendant for such an entity under Part XIII of the **Wrongs Act 1958**. Rule 34A.03.1 inserted by S.R. No. 142/2019 rule 8. 34A.03.1 Effect of certain proceedings being within Common Law Division In providing that the Common Law Division consists of the proceedings referred to in the paragraphs of Rule 34A.03, that Rule— (a) does not affect the application of any other Chapter of the Rules of the County Court that provides for procedure in relation to those proceedings; and (b) does not of itself operate to require that the Rules of another Order of this Chapter apply to those proceedings. 34A.04 Lists of Common Law Division (1) The Common Law Division shall be divided into— (a) the General List; (b) the Defamation List; (c) the Medical List; (d) the Applications List; (da) the Family Property List; (e) the WorkCover List; Rule 34A.04(1)(f) amended by S.R. No. 29/2019 rule 6(1)(a). (f) the Serious Injury List; Rule 34A.04(1)(g) amended by S.R. Nos 29/2019 rule 6(1)(b), 142/2019 rule 6(1)(a). (g) the Confiscations List; Rule 34A.04(1)(h) inserted by S.R. No. 29/2019 rule 6(1)(c), amended by S.R. Nos 142/2019 rule 6(1)(b), 120/2023 rule 8(1). (h) the Adoptions, Surrogacy and Name Changes List; Rule 34A.04(1)(i) inserted by S.R. No. 142/2019 rule 6(1)(c), amended by S.R. No. 120/2023 rule 8(2). (i) the Appeals and Post Sentence Applications List; and Rule 34A.04(1)(j) inserted by S.R. No. 120/2023 rule 8(3). (j) the Institutional Liability List. Rule 34A.04(2) substituted by S.R. No. 29/2019 rule 6(2). (2) The General List shall consist of any proceeding in the Common Law Division that is not in another List referred to in paragraph (1). (3) The Defamation List shall consist of any proceeding commenced by writ that includes a claim for defamation. (4) The Medical List shall consist of any proceeding that includes a claim for damages in respect of death or bodily injury resulting from medical or the like treatment or advice given in respect of any physical or mental condition. (5) The Applications List shall consist of any proceeding referred to in Rule 34A.03(c)(i), (iv) and (v) and any other proceeding commenced by originating motion, other than a proceeding referred to in paragraph (6) or (7) or Rule 34A.06(2). (6) The Serious Injury List shall consist of any proceeding referred to in Rule 34A.03(c)(ii) and (iii). (7) The WorkCover List shall consist of any proceeding under— (a) the **Accident Compensation Act 1985**, except an application under section 134AB, a proceeding under section 135A or a claim arising under section 138; or (b) the **Workers Compensation Act 1958**. (8) The Family Property List shall consist of any proceeding referred to in Rule 34A.03(da). Rule 34A.04(9) inserted by S.R. No. 29/2019 rule 6(3). (9) The Confiscations List shall consist of any proceeding referred to in Rule 34A.03(g). Rule 34A.04(10) inserted by S.R. No. 29/2019 rule 6(3). (10) The Adoptions, Surrogacy and Name Changes List shall consist of any proceeding referred to in Rule 34A.03(h). Rule 34A.04(11) inserted by S.R. No. 142/2019 rule 6(2). (11) The Appeals and Post Sentence Applications List shall consist of any proceeding referred to in Rule 34A.03(i), (j) or (k). Rule 34A.04(12) inserted by S.R. No. 120/2023 rule 8(4). (12) The Institutional Liability List shall consist of any proceeding referred to in Rule 34A.03(l). 34A.05 Commercial Division The Commercial Division shall consist of— (a) any proceeding in which the plaintiff claims the recovery of a debt, damages (other than damages referred to in Rule 34A.03) or any property; (b) any proceeding relating to trusts; (c) any appeal from or review of an order, decision or determination of a court or of a person or body, not being a court, in a civil proceeding which may be brought in or made by the Court by or under any Act; and (d) any proceeding not entered in any other list. 34A.06 Lists of Commercial Division (1) The Commercial Division shall be divided into— (a) the General List; Rule 34A.06(1)(b) substituted by S.R. No. 158/2021 rule 15(1). (b) the Complex Cases List; (c) the Banking and Finance List; Rule 34A.06(1)(d) substituted by S.R. No. 158/2021 rule 16(1). (d) the Arbitration List; (e) the Building Cases List. (2) The General List— (a) shall consist of any proceeding which— (i) generally arises out of a commercial transaction; or (ii) involves personal or real property; and (b) may include a proceeding which does not fit within the definition of any other List or Division. Rule 34A.06(3) substituted by S.R. No. 158/2021 rule 15(2). (3) The Complex Cases List shall consist of any proceeding where it is appropriate for that proceeding to be subject to more intensive case management. (4) The Banking and Finance List shall consist of any proceeding arising out of, concerning or related to, any transaction involving the provision of credit, including a proceeding concerning a mortgage or guarantee or for the recovery of possession of land. (5) In paragraph (4), ***credit*** includes any form of financial accommodation. Rule 34A.06(6) substituted by S.R. No. 158/2021 rule 16(2). (6) The Arbitration List shall consist of any proceeding under the **Commercial Arbitration Act 2011**. (7) The Building Cases List shall consist of those proceedings arising out of, or in any way concerning, any agreement expressed or implied for— (a) the design or carrying out of building works; (b) the supervision or inspection of the construction of building works; (c) the performance by an architect, designer, engineer, quantity surveyor or other expert of any other services in relation to the design or construction or the supervision or inspection of building works; (d) the manufacture or provision of any materials for inclusion in building works. (8) In paragraph (7), ***building works*** means building or engineering works of any description whatever. 34A.07 * * * * * 34A.08 * * * * * 34A.09 Entry of proceeding in Division and List Every proceeding shall be entered in— (a) a List of the Common Law Division; or (b) a List of the Commercial Division. 34A.10 Mode of entry in Division and List (1) A proceeding commenced on or after the day this Order comes into operation shall upon commencement be entered by the Registrar in a Division and a List referred to in Rule 34A.09. (2) In the case of a proceeding remitted or transferred to the Court after the commencement of this Order, the Registrar shall enter the proceeding in a Division and a List referred to in Rule 34A.09 and shall notify the parties of a date and time for a directions hearing. 34A.11 Transfer from one Division or List to another The Court, including the Registrar, may by order transfer a proceeding from— (a) a Division to another Division; or (b) a List to another List, including to a List in another Division. Part 2—List Judges 34A.12 * * * * * 34A.13 * * * * * Rule 34A.13A inserted by S.R. No. 142//2019 rule 10. 34A.13A Application of this Part This Part applies to any proceeding in the Common Law Division or the Commercial Division. 34A.14 Control of proceedings (1) Subject to any order of the Court in special circumstances— (a) the Judge in charge of a Division or List shall have control of every proceeding in the Division or the List; and (b) subject to any direction of the Chief Judge, any directions hearing or application in a proceeding shall be held by or made to the Judge. (2) The powers of the Judge in charge in relation to a proceeding in a Division or List may be exercised by another Judge sitting in the Division or the List if— (a) the Judge in charge requests that Judge to do so; or (b) in special circumstances that other Judge thinks fit to do so. (3) The powers of the Judge or the other Judge in charge of a Division or List may, in relation to a directions hearing or application in a proceeding in the Division or List, be exercised by an associate judge, a judicial registrar or the Registrar if the Judge or the other Judge requests the associate judge, judicial registrar or the Registrar to do so. Part 3—Dismissal of proceeding Rule 34A.14A inserted by S.R. No. 142/2019 rule 11. 34A.14A Application of this Part This Part applies to any proceeding in the Common Law Division or the Commercial Division other than a proceeding in the Appeals and Post Sentence Applications List. 34A.15 Dismissal of proceeding (1) A proceeding shall stand dismissed as against any defendant at the expiration of three months after the period of the validity for service of the writ or originating motion, or any extension of that period expires, if at that time— (a) that defendant has not filed an appearance; and (b) judgment has not been entered or given against that defendant. (2) The Court may, from time to time, by order extend the period of three months referred to in paragraph (1) for a period not more than three months after the day of the order. (3) If an order is made under paragraph (2), there shall in the particular case be taken to be substituted for the period of three months in paragraph (1) the period as extended by the order. 34A.16 Reinstatement The Court may reinstate any proceeding that stands dismissed by operation of Rule 34A.15. Part 4—Discovery by leave Rule 34A.16A inserted by S.R. No. 142/2019 rule 12. 34A.16A Application of this Part This Part applies to any proceeding in the Common Law Division or the Commercial Division other than a proceeding in the Appeals and Post Sentence Applications List. 34A.17 Discovery of documents and interrogatories Unless the Court otherwise orders, a party shall not— (a) be required to make discovery of documents; (b) serve written interrogatories. 34A.17.1 Discovery other than by affidavit Rule 29.15, with any necessary modification, shall apply where a party has by order of the Court, or with the consent of another party, given discovery of documents other than by making an affidavit of documents. Part 5—Directions hearing Rule 34A.17.2 inserted by S.R. No. 142/2019 rule 13. 34A.17.2 Application of this Part Except where otherwise specified by a Rule of this Part, this Part applies to any proceeding in the Common Law Division or the Commercial Division other than a proceeding in the Appeals and Post Sentence Applications List. Rule 34A.19 also applies to a proceeding in the Appeals and Post Sentence Applications List—see paragraph (2) of that Rule. 34A.18 Application of this Part This Part applies to any proceeding in the Common Law Division or the Commercial Division. Rule 34A.19 amended by S.R. No. 142/2019 rule 14 (ILA s. 39B(2)). 34A.19 Directions (1) At a directions hearing held in accordance with this Order, the Court may give any direction for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination. Rule 34A.19(2) inserted by S.R. No. 142/2019 rule 14. (2) Despite Rule 34A.17.2, this Rule also applies to a proceeding in the Appeals and Post Sentence Applications List. 34A.19.1 Expert reports (1) In this Rule— ***expert*** means a person who has specialised knowledge based on the person's training, study or experience; ***report***— (a) means a communication in writing by an expert to a party that contains a statement by the expert as an expert in respect of any question in the proceeding, and whether or not the statement contains the opinion of the expert in respect of the question and whether or not it sets out the acts, facts, matters and circumstances on which any opinion is formed; and (b) includes any document which the expert intends should be read with the statement, whether the document was in existence at the time the statement was made or was a document which the expert obtained or caused to be brought into existence subsequently. (2) At a directions hearing, the Court may order that a party who has now or may later have in the party's possession, custody or power the report of an expert from whom the party intends to adduce evidence as an expert at the trial serve a copy of the report on any other party. (3) Save with leave of the Court or by consent of the parties, a party shall not, except in cross‑examination, adduce evidence from a person as an expert witness at the trial of a proceeding unless that evidence is covered by a report served by the party in accordance with an order made under paragraph (2). (4) For the purpose of paragraph (3), evidence is covered by a report if the report contains the substance of the matters sought to be adduced in evidence. 34A.20 Admissions and agreements (1) At a directions hearing, the Court— (a) may take steps with a view to securing that the parties make all admissions and all agreements as to the conduct of the proceeding which ought reasonably to be made by them; and (b) may, by order, record any admission or agreement so made. (2) The Court may, by order, record any refusal to make an admission or an agreement as to the conduct of the proceeding so that the refusal may later, if the Court thinks fit, be taken into account on any question of costs. 34A.21 Mediation or arbitration At a directions hearing, the Court may, with or without the consent of any party, refer the whole or any part of the proceeding to— (a) mediation in accordance with Rule 50.07; (b) arbitration in accordance with Rule 50.08. 34A.22 Reference to special referee At a directions hearing, the Court may, with the consent of the parties, refer any question in the proceeding to a special referee in accordance with Rules 50.01 to 50.06 for the special referee— (a) to decide the question; or (b) to give the special referee's opinion with respect to it. 34A.23 Personal attendance of parties Any party to whom notice of a directions hearing is given by the Court in accordance with this Order shall, if required by the Judge in charge of the Division or List, attend the hearing in person, whether legally represented or not. 34A.24 Time for first directions hearing (1) Not less than 35 days after the defendant has filedan appearance or, if there are two or more defendants, after the defendant who appears first has filed an appearance, the Court may hold a directions hearing in the proceeding at a time and place which the Court appoints. (2) The Court shall serve notice of the time and place of the directions hearing— (b) on any party who has filed an appearance— at the address for the service of the party in the proceeding. (3) Nothing in this Rule shall affect the right of the plaintiff to enter or apply for judgment if the defendant does not serve a defence within the time limited. 34A.25 Other directions hearing (1) The Court may adjourn a directions hearing or hold a further directions hearing on such terms as it thinks fit. (1.1) The Court shall serve notice of the time and place of the directions hearing— (b) on any party who has filed an appearance— at the address for the service of the party in the proceeding. (2) Unless a notice under Rule 20.01 has been filed and served, a solicitor for a party on whom a notice of a directions hearing is served under paragraph (1.1) shall not file a notice of ceasing to act for that party under Rule 20.03, except by leave of the Court. Part 6—Setting down for trial Rule 34A.25A inserted by S.R. No. 142/2019 rule 15. 34A.25A Application of this Part This Part applies to any proceeding in the Common Law Division or the Commercial Division other than a proceeding in the Appeals and Post Sentence Applications List. 34A.26 No certificate of readiness A proceeding shall not be set down for trial except by order of the Court. Part 7—Court book Rule 34A.26A inserted by S.R. No. 142/2019 rule 16. 34A.26A Application of this Part This Part applies to any proceeding in the Common Law Division or the Commercial Division other than a proceeding in the Appeals and Post Sentence Applications List. 34A.27 No trial without court book Unless the Court otherwise orders, the trial of a proceeding shall not be held if any court book required to be filed and served in accordance with this Order has not been filed and served. A practice note may make further provision with respect to the requirements and contents of a court book. 34A.28 Time for serving and filing court book A party shall file and serve a court book at such time as the Court directs. 34A.29 Failure to include document in court book Save with the leave of the Court or by consent of the parties, a party shall not tender in evidence at the trial of a proceeding a document a copy of which the party was required to include in the court book of the party but which the party did not include. Pt 8 (Heading and rule 34A.30) inserted by S.R. No. 158/2021 rule 17. Part 8—Transitional provisions Rule 34A.30 inserted by S.R. No. 158/2021 rule 17. 34A.30 County Court (Chapter I Miscellaneous Amendments) Rules 2021 The proceedings of which the Expedited Cases List consisted immediately before 1 March 2022 are, on that day, taken to be entered in the Complex Cases List. 1 March 2022 is the day on which the Complex Cases List was established by the County Court (Chapter I Miscellaneous Amendments) Rules 2021. Order 35—Admissions 35.01 Definition In this Order, ***authenticity of a document*** means that a document— (a) is what it purports to be; (b) if an original or described as such, is an original document and was printed, written, signed or executed as it purports to have been; (c) if a copy or described as such, is a true copy. 35.02 Voluntary admission of facts (1) A party, by notice served on another party, may admit, in favour of the other party, for the purpose of the proceeding only, the facts specified in the notice. (2) A party, by leave of the Court, may withdraw an admission made in accordance with paragraph (1). 35.03 Notice for admission of facts (1) A party may serve on another party a notice stating that unless that party, within a time to be expressed in the notice (which shall not be less than 14 days after service), disputes the facts specified in the notice, that party shall, for the purpose of the proceeding only, be taken to admit those facts. (2) If the party served with the notice does not dispute any fact specified by serving notice that that party disputes the fact within the time allowed for that purpose, that party shall, for the purpose of the proceeding only, be taken to admit that fact. (3) A party may, by leave of the Court, withdraw an admission which is taken to have been made under paragraph (2). (4) A notice under paragraph (1) shall be in Form 35A, and a notice under paragraph (2) shall be in Form 35B. 35.04 Judgment on admissions (1) Where a party makes admissions of fact in a proceeding, whether by that party's pleading or otherwise, the Court may, on the application of any other party, give the judgment or make the order to which the applicant is entitled on those admissions. (2) The Court may exercise its powers under paragraph (1) without waiting for the determination of any other question in the proceeding. 35.05 Notice for admission of documents (1) A party may serve on another party a notice stating that unless that party, within a time to be expressed in the notice (which shall not be less than 14 days after service), disputes the authenticity of the documents mentioned in the notice, that party shall, for the purpose of the proceeding only, be taken to admit the authenticity of those documents. (2) If the party served with the notice does not dispute the authenticity of any document mentioned by serving notice that the party disputes its authenticity within the time allowed for that purpose, that party shall, for the purpose of the proceeding only, be taken to admit its authenticity. (3) A party may, by leave of the Court, withdraw an admission which is taken to have been made under paragraph (2). (4) A notice under paragraph (1) shall be in Form 35A, and a notice under paragraph (2) shall be in Form 35B. 35.06 Cost of non-admission of fact or document Where a party serves a notice under Rule 35.03(2) or 35.05(2) disputing a fact or the authenticity of a document, and afterwards that fact or document is proved in the proceeding, liability for costs shall be determined in accordance with Rule 63A.18. 35.07 Restrictive effect of admission An admission made by a party under this Order is for the purpose of the pending proceeding only and shall not be used against that party as an admission in any other proceeding. 35.08 Notice to produce documents (1) A party to a proceeding may serve on any other party a notice requiring that other party to produce the documents mentioned in the notice on any application in or at the trial of the proceeding. (2) Unless the Court otherwise orders, the party on whom the notice is served shall produce on the application or at the trial such of the documents mentioned in the notice— (a) as are in that party's possession, custody or power; and (b) which that party does not object to produce on the ground of privilege. (3) Where the party on whom the notice is served fails to comply with the notice, the Court may order that the party produce the document or give such directions for the proof of any matter in relation to the document, including the contents of the document and its making, delivery or receipt, as it thinks fit. Order 36—Amendment 36.01 General (1) For the purpose of— (a) determining the real question in controversy between the parties to any proceeding; or (b) correcting any defect or error in any proceeding; or (c) avoiding multiplicity of proceedings— the Court may, at any stage, order that any document in the proceeding be amended or that any party have leave to amend any document in the proceeding. (2) In this Order ***document*** includes originating process, an indorsement of claim on originating process and a pleading. (3) An indorsement of claim or pleading may be amended under paragraph (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding. (4) A mistake in the name of a party may be corrected under paragraph (1), whether or not the effect is to substitute another person as a party. (5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced. (6) Notwithstanding the expiry of any relevant limitation period after the day a proceeding is commenced, the Court may make an order under paragraph (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of that party's claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise. (7) For the purpose of paragraph (6) ***any other party to the proceeding*** includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party. (8) Paragraph (6), with any necessary modification, applies to an application under Rule 14.03(2). (9) Paragraph (1) shall not apply to the amendment of a judgment or an order. 36.02 Failure to amend within time limited An order giving a party leave to amend a document shall cease to have effect if the party has not amended the document in accordance with the order at the expiration of— (a) the time limited by the order for making the amendment; or (b) if no time was limited, 21 days from the date of the order. 36.03 Amendment of writ or other originating process before service and disallowance of amendment (1) With leave of the Registrar or of the Court, a party may amend a writ or other originating process if— (a) the writ or other originating process has not been served on the defendant or other party to the proceeding; (b) the party seeking to amend files an affidavit stating that service of the original writ or other originating process on the defendant or other party to the proceeding has not occurred; and (c) all sealed copies of the writ or other originating process and other documents filed with the writ or other originating process are returned to the Court. (2) Each amendment under paragraph (1) shall be made in such a way as to distinguish the amendment from the original writ or other originating process. (3) Where a party amends a writ or other originating process in accordance with paragraph (1), the Court may, on application by any other party made within 21 days after service of the amended writ or other originating process on that party— (a) disallow the amendment; or (b) allow it either wholly or in part. 36.04 Amendment of pleading and disallowance of amendment (1) A party may amend any pleading served by that party— (a) once before the close of pleadings; or (b) at any time by leave of the Court or with the consent of all other parties. (2) Where a party amends a pleading in accordance with paragraph (1)(a), the Court may, on application by any other party made within 21 days after service of the amended pleading on that party— (a) disallow the amendment; or (b) allow it either wholly or in part. 36.05 How pleading amendment made (1) Unless the Court otherwise orders, an amendment to a pleading shall be made by— (a) amending the copy of the pleading filed in the Court or filing a copy of that pleading as amended; and (b) serving a copy of the amended pleading on all parties. (2) A party who files an amended copy of a pleading in accordance with paragraph (1)(a) shall indorse the copy pleading previously filed with a statement to the effect that the amended copy has been substituted. (3) Where either of the requirements of paragraph (1)(a) is complied with, the Registrar shall, as the case requires, indorse the copy of the pleading filed in the Court with the date it is amended or the copy of the pleading as amended with the date it is filed. (4) Each amendment to a pleading shall be made in such a way as to distinguish the amendment from the original pleading and from any previous amendment to the original. 36.06 Pleading to an amended pleading (1) A party shall plead to an amended pleading within 30 days after it is served on that party. (2) Where a party has pleaded to a pleading which is subsequently amended, the party shall be taken to rely on that party's original pleading in answer to the amended pleading unless the party pleads to it within the time limited for so doing. 36.07 Amendment of judgment or order The Court may at any time correct a clerical mistake in a judgment or an order or an error arising in a judgment or an order from any accidental slip or omission. Order 37—Inspection, detention and preservation of property 37.01 Inspection, detention etc. of property (1) In any proceeding the Court may make an order for the inspection, detention, custody or preservation of any property, whether or not in the possession, custody or power of a party. (2) An order under paragraph (1) may authorise any person to— (a) enter any land or do any other thing for the purpose of obtaining access to the property; (b) take samples of the property; (c) make observations (including the photographing) of the property; (d) conduct any experiment on or with the property; (e) observe any process. (3) On an application under paragraph (1), the Court may make an order for the costs and expenses of any person not being a party where— (a) that person attends on the hearing of the application pursuant to a summons served under Rule 37.03(1); or (b) the Court makes an order under paragraph (1) which will affect that person. (4) The Court may make an order under this Rule on condition that the party applying for the order give security for the costs and expenses of any person, whether or not a party, who will be affected by the order. 37.02 Inspection from prospective defendant (1) This Rule applies to any property not being a document. (2) In this Rule ***applicant*** means an applicant for an order under the Rule. (3) Where— (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from an identified person; (b) after making all reasonable enquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that that person has or is likely to have in that person's possession, custody or power any property relating to the question whether the applicant has the right to obtain the relief and that inspection of the property by the applicant would assist the applicant to make the decision— the Court may make an order for the inspection, detention, custody or preservation of the property. (4) An order under paragraph (3) may authorise any person to do any of the things referred to in Rule 37.01(2). (5) On an application under this Rule, the Court may make an order for the costs and expenses of the applicant and the person against whom the order is sought. (6) The Court may make an order under this Rule on condition that the applicant give security for the costs and expenses of the person against whom the order is made. 37.03 Procedure (1) An application for an order under Rule 37.01 shall be made by summons served on all parties to the proceeding and served personally on each person who would be affected by the order if made. (2) The Court may make an order under Rule 37.01 notwithstanding that any person not being a party who will be affected by the order has not been served with the summons personally or at all. (3) An application under Rule 37.02 shall be made by originating motion to which the person against whom the order is sought shall be made respondent. (4) An order shall not be made under Rule 37.02 except by a Judge. (5) A summons under paragraph (1) or an originating motion under paragraph (3) shall be supported by an affidavit— (a) stating the facts on which the application is made; and (b) specifying or describing the property in respect of which the order is sought. (6) A copy of the supporting affidavit shall be served on every person on whom the summons or originating motion is served. 37.04 Disposal of perishable 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), the property is of a perishable nature or is likely to deteriorate or diminish in value if kept, the Court may make an order for the sale or other disposal of the whole or any part of the property. 37.05 Payment into Court in discharge of lien (1) Where in any proceeding— (a) the plaintiff claims the recovery of specific property (other than land); and (b) it appears from the pleadings or otherwise that the defendant does not dispute the title of the plaintiff but claims to be entitled to retain the property by virtue of a lien or otherwise as security for any sum of money— the Court may order that the plaintiff be at liberty to pay into court, to abide the event of the proceeding, the amount of money in respect of which the security is claimed and such further amount, if any, for interest and costs as the Court may direct and that, upon the making of such payments, the property claimed be given up to the plaintiff. (2) This Rule, with any necessary modification, applies to a counterclaim. 37.06 Interim distribution of property or income Where in a proceeding concerning any property the property will be more than sufficient to answer the claims on the property for which provision ought to be made in the proceeding, the Court— (a) may by order allow the whole or part of the annual income of the property or any part thereof to be paid, during such period as the Court may determine, to all or any of the persons having an interest in the income; or (b) may direct that any part of the property be conveyed, transferred or delivered to any person having an interest in the property. 37.07 Jurisdiction of Court not affected The provisions of this Order shall not affect the exercise by the Court of any power to make orders with respect to the inspection, detention, custody or preservation of property which is exercisable apart from those provisions. Order 37A—Freezing orders 37A.01 Definitions In this Order, unless the contrary intention appears— ***ancillary order*** has the meaning given by Rule 37A.03(1); ***another court*** means a court outside Australia or a court in Australia other than the Court; ***applicant*** means a person who applies for a freezing order or an ancillary order; ***freezing order*** has the meaning given by Rule 37A.02(1); ***respondent*** means a person against whom a freezing order or an ancillary order is sought or made. 37A.02 Freezing order (1) The Court may make an order (a ***freezing order***), upon or without notice to the respondent, for the purpose of preventing the frustration or inhibition of the Court's process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied. (2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets. (3) A freezing order may be in Form 37AA. (4) In making a freezing order or an ancillary order, the Court shall have regard to the practice note concerning freezing orders. (5) The affidavits relied on in support of an application for a freezing order or an ancillary order shall, as far as possible, address the following— (a) information about the judgment that has been obtained, or if no judgment has been obtained, the following information about the cause of action— (i) the basis of the claim for substantive relief; (ii) the amount of the claim; and (iii) if the application is made without notice to the respondent, the applicant's knowledge of any possible defence; (b) the nature and value of the respondent's assets, so far as they are known to the applicant, within and outside Australia; (c) the matters referred to in Rule 37A.05; and (d) the identity of any person, other than the respondent, who the applicant believes may be affected by the freezing order and how that person may be affected by it. 37A.03 Ancillary order (1) The Court may make an order (an ***ancillary order***) ancillary to a freezing order or prospective freezing order as the Court considers appropriate. (2) Without limiting the generality of paragraph (1), an ancillary order may be made for either or both of the following purposes— (a) eliciting information relating to assets relevant to the freezing order or prospective freezing order; (b) determining whether the freezing order should be made. 37A.04 Respondent need not be party to proceeding The Court may make a freezing order or an ancillary order against a respondent, whether or not the respondent is a party to a proceeding in which substantive relief is sought against the respondent. 37A.05 Order against judgment debtor or prospective judgment debtor or third party (a) judgment has been given in favour of an applicant by— (i) the Court; or (ii) in the case of a judgment to which paragraph (2) applies, another court; or (b) an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in— (i) the Court; or (ii) in the case of a cause of action to which paragraph (3) applies, another court. (2) This paragraph applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the Court. (3) This paragraph applies to a cause of action if— (a) there is a sufficient prospect that the other court will give judgment in favour of the applicant; and (b) there is a sufficient prospect that the judgment will be registered in or enforced by the Court. (4) The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied because any of the following might occur— (a) the judgment debtor, prospective judgment debtor or another person absconds; or (b) the assets of the judgment debtor, prospective judgment debtor or another person are— (i) removed from Australia or from a place inside or outside Australia; or (ii) disposed of, dealt with or diminished in value. (5) The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a ***third party***) if the Court is satisfied, having regard to all the circumstances, that— (a) there is a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied because— (i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or (ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or (b) a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment of the Court, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment. (6) Nothing in this Rule affects the power of the Court to make a freezing order or an ancillary order if the Court considers it is in the interests of justice to do so. 37A.06 Jurisdiction of Court not limited Nothing in this Order limits the inherent, implied or statutory jurisdiction of the Court to make a freezing order or an ancillary order. 37A.07 Service A freezing order— (a) shall be authenticated pursuant to Rule 60A.04; (b) when served, shall be served together with a copy of— (i) the summons, or, if none was filed, any draft summons produced to the Court; (ii) the material (other than material excepted by the Court as confidential) that was relied on by the applicant at the hearing when the order was made; (iii) a transcript or, if none is available, a note, of any oral allegation of fact that was made, and of any oral submission that was put, to the Court; and (iv) the originating motion, or, if none was filed, any draft originating motion produced to the Court. An application for a freezing order or an ancillary order may be served on a person who is out of Australia where such service is authorised by or under Part 1 of Order 7: see, in particular, Rule 7.02(d). 37A.08 Costs (1) The Court may make any order as to costs as it considers appropriate in relation to an order made under this Order. (2) Without limiting the generality of paragraph (1), an order as to costs includes an order as to the costs of any person affected by a freezing order or an ancillary order. 37A.09 Application to be heard by Judge An application under this Order shall be heard by a Judge. Order 37B—Search orders 37B.01 Definitions In this Order, unless the contrary intention appears— ***applicant*** means an applicant for a search order; ***described*** includes described generally, whether by reference to a class or otherwise; ***premises*** includes a vehicle or vessel of any kind; ***respondent*** means a person against whom a search order is sought or made; ***search order*** has the meaning given in Rule 37B.02(1); ***thing*** includes document. 37B.02 Search order (1) The Court may make an order (a ***search order***), in any proceeding or in anticipation of any proceeding in the Court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence which is, or may be, relevant to an issue in the proceeding or anticipated proceeding. (2) A search order may be in Form 37BA. (3) In making a search order, the Court shall have regard to the practice note concerning search orders. 37B.03 Requirements for grant of search order (1) The Court may make a search order if the Court is satisfied that— (a) an applicant seeking the order has a strong prima facie case on an accrued cause of action; (b) the potential or actual loss or damage to the applicant will be serious if the search order is not made; and (c) there is sufficient evidence in relation to the respondent that— (i) the respondent possesses important evidentiary material; and (ii) there is a real possibility that the respondent might destroy such material or cause it to be unavailable for use in evidence in a proceeding or an anticipated proceeding before the Court. (2) An application for a search order shall be supported by an affidavit or affidavits which, unless the Court otherwise orders, shall include the following information— (a) a description of the things or the categories of things, in relation to which the search order is sought; (b) the address or location of any premises in relation to which the search order is sought and whether they are private or business premises; (c) why the search order is sought, including whether there is a real possibility that the things to be searched for will be destroyed or otherwise made unavailable for use in evidence before the Court unless the search order is made; (d) the prejudice, loss or damage likely to be suffered by the applicant if the order is not made; (e) the name, address, firm and commercial litigation experience of an independent solicitor, who consents to being appointed to serve the search order, supervise its execution and do such other things as the Court considers appropriate; (f) if the premises to be searched are or include residential premises, whether or not the applicant believes that the only occupant of the premises is likely to be— (i) a female; (ii) a child under the age of 18 years; (iii) any other person (***vulnerable person***) that a reasonable person would consider to be in a position of vulnerability on the grounds of that person's age, mental incapacity, infirmity or English language ability; or (iv) any combination of subparagraphs (i) to (iii) and any one or more of such persons. (3) The applicant must give the usual undertakings as to damages and must undertake to pay the independent solicitor's reasonable costs and disbursements. (4) The applicant's solicitor and the independent solicitor must give such undertakings to the Court as the Court considers appropriate. 37B.04 Jurisdiction of Court not limited Nothing in this Order limits the inherent, implied or statutory jurisdiction of the Court to make a search order. 37B.05 Terms of search order (1) A search order may direct each person who is named or described in the order— (a) to permit, or arrange to permit, such other persons as are named or described in the order— (i) to enter premises specified in the order; and (ii) to take any steps that are in accordance with the terms of the order; (b) to provide, or arrange to provide, such other persons named or described in the order with any information, thing or service described in the order; (c) to allow such other persons named or described in the order to take and retain in their custody any thing described in the order; (d) not to disclose any information about the order, for such period as is specified in the order (not exceeding three days) after the date on which the order was served, except for the purposes of obtaining legal advice or legal representation; and (e) to do or refrain from doing any act as the Court considers appropriate. (2) Without limiting the generality of paragraph (1)(a)(ii), the steps that may be taken in relation to a thing specified in a search order include— (a) searching premises for, inspecting or removing the thing; and (b) making or obtaining a copy, photograph, film, sample, test or other record of any such thing or any information it may contain. (3) A search order— (a) must not authorise a search of a natural person; (b) must not be executed at the same time as the execution by the police or other proper authority of a search warrant; and (c) may contain such other provisions as the Court considers appropriate. 37B.06 Independent solicitors (1) If the Court makes a search order, the Court must appoint one or more solicitors, each of whom is independent of the applicant's solicitors (the ***independent solicitors***) and each of whom is prepared to give such undertakings as the Court requires, to supervise the execution of the search order and to do such other things in relation to the search order as the Court considers appropriate. (2) The Court may appoint an independent solicitor to supervise execution of the search order at any one or more premises, and a different independent solicitor or solicitors to supervise execution of the search order at other premises, with each independent solicitor having power to do such other things in relation to the order as the Court considers appropriate. 37B.07 Costs (1) The Court may make any order as to costs it considers appropriate in relation to an order made under this Order. (2) Without limiting the generality of paragraph (1), an order as to costs includes an order as to the costs of any person affected by a search order. 37B.08 Service of search order etc. (1) A search order— (a) shall be authenticated pursuant to Rule 60A.04; (b) when served, shall be served together with a copy of— (i) the summons or, if none was filed, any draft summons produced to the Court; (ii) the material (other than material excepted by the Court as confidential) that was relied on by the applicant at the hearing when the order was made; (iii) a transcript or, if none is available, a note, of any oral allegation of fact that was made and of any oral submission that was put, to the Court; and (iv) the originating motion or, if none was filed, any draft originating motion produced to the Court. (2) Service of the documents referred to in paragraph (1) upon any person who appears to the independent solicitor to be responsible and in charge of the premises or any of the premises at which the search order is to be executed, is taken to be service on the respondent. 37B.09 Application to be heard by Judge An application under this Order shall be heard by a Judge. Order 38—Injunctions 38.01 When Court may grant The Court may grant an injunction at any stage of a proceeding or, in the circumstances referred to in Rule 4.08, before the commencement of a proceeding. 38.02 Application before trial (1) In an urgent case, the Court may grant an injunction on application made without notice. (2) Where a plaintiff applies for an injunction against a defendant, service of notice of application on that defendant may be made at the time of service of originating process in the proceeding. 38.03 Costs and expenses of non-party (1) This Rule applies where an application for an injunction is made before the trial of a proceeding. (2) The Court may grant an injunction on condition that the party applying for the injunction give security for the costs and expenses of any person who might be affected. (3) The Court may make such order as it thinks fit for the payment, either in the first instance or finally, of the costs and expenses of any person not being a party who might be affected by the grant of an injunction. Order 39—Receivers 39.01 Application and definitions (1) This Order applies in relation to the appointment of a receiver by the Court. (2) In this Order— ***insurer*** means a body corporate authorised under the Insurance Act 1973 of the Commonwealth to carry on insurance business or an underwriting member of Lloyd's so authorised; ***Lloyd's*** means the society of that name incorporated by the Imperial Act known as Lloyd's Act 1871; ***receiver*** means a receiver or receiver and manager. 39.02 Appointment of receiver (1) The Court may appoint a receiver at any stage of a proceeding or, in the circumstances referred to in Rule 4.08, before the commencement of a proceeding. (2) In an urgent case, the Court may appoint a receiver on application made without notice. 39.03 Service of order The party obtaining the appointment of a receiver, or such other party as the Court may direct, shall serve a copy of the order on the receiver. 39.04 Consent of receiver Before a person is appointed receiver the person's written consent to the appointment shall, unless the Court otherwise orders, be filed. 39.05 Security by receiver Unless the Court otherwise orders— (a) a receiver shall give security approved by the Court that the receiver will account for what the receiver receives as receiver and deal with it as the Court directs; (b) the security shall be given by guarantee in Form 39A and filed; (c) the guarantee shall be given by a bank or an insurer. ***bank*** is defined in Rule 1.13(1). 39.06 Remuneration of receiver The Court may provide for the remuneration of a receiver. 39.07 Receiver's accounts (1) Unless the Court otherwise orders, a receiver shall submit accounts in accordance with this Rule. (2) A receiver shall submit accounts to such parties and at such intervals or on such dates as the Court may direct. (3) Any party to whom a receiver is required to submit accounts may, on giving reasonable notice to the receiver, inspect, either personally or by an agent, the documents or things on which the accounts are based. (4) Any party who objects to the accounts may serve notice in writing on the receiver specifying the items to which objection is taken and requiring the receiver within not less than 14 days to lodge the receiver's accounts with the Court, and upon such service the party shall file a copy of the notice. (5) The Court may examine the items to which objection is taken. (6) The Court— (a) shall by order declare what is the result of an examination under paragraph (5); and (b) may make an order for the costs and expenses of any party or the receiver. 39.08 Default by receiver (1) Where a receiver fails to submit any account, provide access to any books or papers or do any other thing which as receiver the receiver ought to do, or fails to attend for the examination of any account of the receivers, the receiver and any party to the proceeding in which the receiver was appointed may be required to attend before the Court to show cause for the failure, and the Court may give such directions as it thinks fit, including, if necessary, directions for the discharge of the receiver and the appointment of another and the payment of costs. (2) Without limiting paragraph (1), where a receiver fails to submit any account or fails to attend for the examination of any account of the receiver's or fails to pay into court on the date fixed by the Court any amount required to be so paid, the Court may disallow any remuneration claimed by the receiver and, where the receiver has failed to pay any such amount into court, may charge the receiver with interest at the rate currently payable in respect of judgment debts in the Court on that amount while in the receiver's possession as receiver. 39.09 Directions to receivers (1) A receiver may apply to the Court for directions by summons stating the matters on which directions are required. (2) Unless the Court otherwise orders, the receiver shall serve a copy of the summons and of any affidavit in support on any person who may be affected. Order 40—Evidence generally 40.01 Definition In this Order, unless the context or subject matter otherwise requires, ***a proceeding commenced by writ*** includes— (a) a proceeding in respect to which an order has been made under Rule 4.07(1); (b) a trial or inquiry under Order 50; (c) an assessment of damages or value under Order 51. 40.02 Evidence of witness Except where otherwise provided by an Act or these Rules, and subject to any agreement between the parties, evidence shall be given— (a) on an interlocutory or other application in any proceeding, by affidavit; (b) at the trial of a proceeding commenced by writ, orally; (c) at the trial of a proceeding commenced by originating motion, by affidavit. 40.03 Contrary direction as to evidence (1) Notwithstanding Rule 40.02, the Court may order that evidence be given— (a) orally on the hearing of an interlocutory or other application in any proceeding or at the trial of a proceeding commenced by originating motion; (b) by affidavit at the trial of a proceeding commenced by writ. (2) Where the Court makes an order under paragraph (1)(a), it may direct that the party on whose application the order is made give such notice as it thinks fit to the other parties of the oral evidence the party proposes to adduce. (3) Where the Court makes an order under paragraph (1)(b), it may order that the deponent shall attend at the trial to be examined or that the deponent's attendance be dispensed with. 40.04 Examination on affidavit (1) Where an affidavit is filed in any proceeding, the Court may— (a) order that the deponent be examined before the Court; and (b) order that the deponent attend for that purpose at such time and place as it directs. (2) Unless the Court otherwise orders, a party to a proceeding commenced by originating motion on whose behalf an affidavit is filed in the proceeding shall cause the deponent to attend at the trial of the proceeding to be examined if notice that such attendance is required is served on the party by any other party a reasonable time before the commencement of the trial. (3) Where a deponent in respect of whom an order is made under paragraph (1) or a notice is served under paragraph (2) does not attend for examination the Court may order that the affidavit be not received into evidence. 40.05 Evidence of particular facts (1) The Court may order that evidence of any particular fact shall be given at the trial or at any other stage of a proceeding in such manner as it directs. (2) Without limiting paragraph (1), the Court may order that evidence of any particular fact be given— (a) by statement on oath of information and belief; (b) by the production of documents or entries in books; (c) by the production of copies of documents or entries in books. 40.06 Revocation or variation of order The Court may, at or before the trial of any proceeding, revoke or vary any order made under Rules 40.03 to 40.05. 40.07 Deposition as evidence (1) No deposition taken in a proceeding shall be admissible as evidence at the trial of the proceeding unless— (a) the deposition was taken pursuant to an order made under Rule 41.01(1); (b) either— (i) the person against whom the evidence is offered consents; or (ii) the deponent is dead or is unfit by reason of the deponent's bodily or mental condition to attend the trial and testify as a witness; or (iii) is out of Victoria and it is not reasonably practicable to secure the deponent's attendance; or (iv) the deponent cannot with reasonable diligence be found; and (c) the party who applies to have the deposition received into evidence has given reasonable notice of the application to the other party. (2) A deposition purporting to be signed by the person before whom it was taken shall be receivable in evidence without proof of the signature of that person. (3) Unless the Court otherwise orders— (a) evidence of facts within paragraph (1)(b) may be given by affidavit; and (b) the affidavit may be made from belief as to those facts, if the grounds for the belief are given. 40.08 Proof of Court documents (1) A document purporting to be sealed with the seal of the Court shall be admissible in evidence without further proof. (2) An office copy of a document filed in or issued out of the Court shall be admissible in evidence in any proceeding between all parties to the same extent as the original would be admissible. (3) A document purporting to be sealed with the seal of the Court and to be a copy of a document filed in or issued out of the Court shall be admissible as an office copy of the latter document without further proof. 40.09 Evidence of consent The consent of a person to act in a particular capacity, whether as trustee, receiver or otherwise, or to be added as a plaintiff shall be sufficiently evidenced by a written consent signed by that person, dated and verified by the indorsed certificate of a solicitor. 40.10 Defamation A defendant in a proceeding for libel or slander who has not by the defendant's defence alleged the truth of the statement complained of shall not, except by leave of the Court at the trial, give evidence in chief at the trial with respect to— (a) mitigation of damages; (b) the circumstances of publication; or (c) the character of the plaintiff— unless the defendant gives particulars of the evidence to the plaintiff by notice served not less than seven days before the trial. 40.11 Subsequent use of evidence at trial The Court may order that any evidence that has been taken at the trial of a proceeding may be used at any subsequent stage of that proceeding. 40.12 Attendance and production (1) The Court may in any proceeding make an order for— (a) the attendance of any person for the purpose of being examined; (b) the attendance of any person and production by the person of any document or thing specified or described in the order; or (c) the production by any corporation of any document or thing specified or described in the order. (2) An order under paragraph (1) may be made for attendance before or production to the Court or any officer of the Court, examiner, special referee, arbitrator or other person authorised to take evidence. (3) An order under paragraph (1) shall not operate to require the person against whom the order is made to produce any document which the person could properly object to produce on the ground of privilege. 40.13 View The Court may inspect or, on a trial with a jury, may authorise the jury to inspect any place, process or thing. Order 41—Evidence by deposition 41.01 Order for witness examination (1) The Court may, for the purpose of any proceeding, make an order for the examination of any person before a Judge, an associate judge, a judicial registrar or a Registrar or such other person as the Court appoints as examiner at any place whether within or out of Victoria. (2) An order under paragraph (1) shall be in Form 41A or 41B as the case requires. 41.02 Documents for examiner The party obtaining an order for examination under Rule 41.01(1) shall furnish the examiner with copies of such of the documents in the proceeding as are necessary to inform the examiner of the question in the proceeding to which the examination is to relate. 41.03 Appointment for examination (1) The examiner shall appoint a place and time for the examination. (2) The time appointed shall be as soon as practicable after the making of the order. (3) The examiner shall give notice of an appointment under this Rule to the party obtaining the order not less than seven days before the time of the appointment, and that party shall forthwith serve notice of the appointment on each other party. 41.04 Conduct of examination (1) The examiner shall permit each party, that party's counsel and that party's solicitor to attend the examination. (2) Unless the Court otherwise orders, the person examined shall be examined, cross-examined and re-examined in like manner as at trial. (3) The examiner may put any question to the person examined as to the meaning of any answer made by that person or as to any matter arising in the course of the examination. (4) The examiner may adjourn the examination from time to time and from place to place. 41.05 Examination of additional persons (1) Where the examiner is a Judge, an associate judge or a judicial registrar, the examiner may, on the application of a party to the proceeding, take the examination of any person not named or described in the order for examination. (2) Where the examiner is not a Judge, an associate judge or a judicial registrar, the examiner may, with the consent in writing of each party to the proceeding, take the examination of any person not named or described in the order for examination and, if the examiner does so, the examiner shall annex to the deposition of that person the consent of each of the parties. 41.06 Objection Where a person being examined before an examiner, not being a Judge, an associate judge or a judicial registrar, objects to answer any question put to that person or to produce any document or thing, or objection is taken to any such question or production, the following provisions apply— (a) where the objection is taken to a question— (i) unless the question is objected to on the ground of privilege, the person being examined shall answer the question; (ii) the question, the ground for the objection and the answer, if any, shall be set out in the deposition; (b) where the objection is taken to the production of a document or thing, the ground for the objection shall be set out in the deposition and, where the objection is to the production of a document, unless production is objected to on the ground of privilege, the document or a copy shall be attached to the deposition; (c) the validity of the objection shall be decided by the Court; (d) if the Court disallows the objection, the Court may order that the costs occasioned by the objection be paid by the person being examined or the party taking the objection or by both of them as the case requires. 41.07 Taking of depositions (1) The deposition of a person examined before an examiner shall be— (a) taken down by the examiner; (b) taken down by a shorthand writer or some other person in the presence of the examiner; or (c) recorded by mechanical means in accordance with Part VI of the **Evidence (Miscellaneous Provisions) Act 1958** in the presence of the examiner. (2) Subject to paragraph (3) and Rule 41.06(a), the deposition need not set out every question and answer if it contains 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. 41.08 Authentication and filing (1) Except where the deposition is taken down by a shorthand writer or is recorded by mechanical means the examiner shall, if any party so requests, ask the person examined to sign that person's deposition. (2) The examiner shall authenticate and sign the deposition. (3) The examiner shall indorse on the deposition a statement signed by the examiner of the time occupied in taking the examination and the fees received by the examiner in respect of the examination. (4) The examiner shall send the deposition to the Registrar and the Registrar shall file it in the proceeding. (5) The examiner shall, unless the Court otherwise orders, send any exhibits to the Registrar and the Registrar shall deal with them as the Court directs. (6) Paragraphs (3), (4) and (5) do not apply where the examiner is a Judge or an associate judge. 41.08.1 Confidentiality of deposition Unless the Court gives leave, a deposition taken or recorded under this Order shall not be disclosed to any person not a party before it has been admitted into evidence. 41.09 Report of examiner (1) The examiner may make to the Court a report upon the examination before the examiner or with regard to the absence of any person from the examination. (2) The Court may direct such proceedings to be taken, or make such order, on the report as it thinks fit. 41.10 Default of witness (1) Where a person has been required by subpoena to attend before an examiner not being a Judge, an associate judge or a judicial registrar and the person fails or refuses to attend or the person 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 shall, at the request of any party, give to that party a certificate, signed by the examiner, of the failure or refusal. (2) Upon the filing of the certificate the Court may order that person— (a) to attend before the examiner, or to be sworn, or to answer the question or to produce the document or thing as the case may be; and (b) to pay any costs occasioned by the person's failure or refusal. (3) An application for an order under paragraph (2) may be made without notice to the person against whom the order is sought, unless the Court otherwise orders. 41.11 Witness allowance A person required to attend before an examiner shall be entitled to payment for expenses and loss of time as upon attendance at trial. 41.12 Perpetuation of testimony (1) Witnesses shall not be examined to perpetuate testimony unless a proceeding has been commenced for that purpose. (2) Any person who would, in the circumstances alleged by the person to exist, become entitled, upon the happening of any future event, to any property, the right or claim to which cannot be brought to trial by the person 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) No proceeding to perpetuate the testimony of witnesses shall be set down for trial. Order 41A—Application to use audio visual or audio link 41A.01 Application of Order This Order applies to an application for a direction under section 42E(1) of the **Evidence (Miscellaneous Provisions) Act 1958**. 41A.02 Form of application Notice of an application shall be in Form 41AA. 41A.03 Filing The applicant shall file the notice at least 14 days before the person the subject of the application is due to appear before or give evidence or make a submission to the Court. 41A.04 Service As soon as practicable after the filing of the notice the applicant shall serve a copy on every other party. 41A.05 Duty of applicant If, whether before or after a direction has been given, an applicant no longer requires the person the subject of the application to appear before or give evidence or make a submission to the Court by audio visual link or audio link, the applicant shall notify the Registrar forthwith. 41A.06 Payment of costs Unless the Court otherwise orders, the appropriate amount (if any) prescribed by the regulations (if any) under section 42H(1) of the **Evidence (Miscellaneous Provisions) Act 1958** shall be paid in the first instance by the applicant. Order 41B (Heading and rules 41B.01–41B.04) inserted by S.R. No. 77/2023 rule 4. Order 41B—Application for leave in relation to confidential communication Rule 41B.01 inserted by S.R. No. 77/2023 rule 4. 41B.01 Form of notice of application for leave For the purposes of section 32CA(1) of the **Evidence (Miscellaneous Provisions) Act 1958**, notice of an application for leave under section 32C(1) of that Act shall be in Form 41BA. Rule 41B.02 inserted by S.R. No. 77/2023 rule 4. 41B.02 Service (1) In addition to the persons on whom notice is required to be served under section 32CA(1) of the **Evidence (Miscellaneous Provisions) Act 1958**, a person who makes an application for leave under section 32C(1) of that Act shall serve notice on the protected person (within the meaning of section 32B(1) of that Act). (2) The applicant shall serve notice under paragraph (1) not less than 14 days before the evidence is proposed to be compelled to be produced, produced or adduced. Rule 41B.03 inserted by S.R. No. 77/2023 rule 4. 41B.03 Declaration by proposed recipient of subpoena If the Court makes an order under section 32CF(1) of the **Evidence (Miscellaneous Provisions) Act 1958** and the proposed recipient of the subpoena physically produces the document, the proposed recipient of the subpoena must complete the declaration attached to the order in Form 41BB. Rule 41B.04 inserted by S.R. No. 77/2023 rule 4. 41B.04 Disposal of documents produced by proposed recipient of subpoena (1) This Rule applies if, in compliance with an order under section 32CF(1) of the **Evidence (Miscellaneous Provisions) Act 1958**, the proposed recipient of the subpoena produces the document. (2) If the Court does not grant leave to compel the production of the document under section 32C(1)(a) of the **Evidence (Miscellaneous Provisions) Act 1958**, the Registrar may cause to be destroyed after the expiry of three days from the determination of the application for leave all— (a) the electronic copies of documents produced in compliance with the order; or (b) the documents physically produced in response to the order and which were declared by the proposed recipient of the subpoena to be copies. (3) Subject to paragraph (4), if the Court does grant leave to compel the production of the document under section 32C(1)(a) of the **Evidence (Miscellaneous Provisions) Act 1958**, the Registrar may cause to be destroyed after the expiry of four months from the conclusion of the proceeding all— (a) the electronic copies of documents produced in compliance with the order; or (b) the documents physically produced in response to the order and which were declared by the proposed recipient of the subpoena to be copies. (4) The Registrar may cause to be destroyed the electronic copies and documents referred to in paragraph (3) which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal. Order 42—Subpoenas 42.01 Definitions In this Order and in Order 42A, unless the contrary intention appears— ***addressee*** means the person who is the subject of the order expressed in a subpoena; ***conduct money*** means a sum of money or its equivalent, such as pre-paid travel, sufficient to meet the reasonable expenses of the addressee of attending court as required by the subpoena and returning after so attending; ***issuing party*** means the party at whose request a subpoena is issued; ***subpoena*** means an order in writing requiring the addressee— (a) to attend to give evidence; (b) to produce the subpoena or a copy of it and a document or thing; or (c) to do both of those things; ***subpoena to attend to give evidence*** means a subpoena requiring the addressee to attend to give evidence; ***subpoena to produce*** means a subpoena requiring the addressee to produce the subpoena or a copy of it and a document or thing. 42.02 Issuing of subpoena (1) The Court may, in any proceeding, by subpoena order the addressee— (a) to attend to give evidence as directed by the subpoena; (b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or (c) to do both of those things. (2) The Registrar shall not issue a subpoena— (a) if the Court has made an order, or there is a Rule of the Court, having the effect of requiring that the proposed subpoena— (i) not be issued; or (ii) not be issued without the leave of the Court and that leave has not been given; or (b) requiring the production of a document or thing in the custody of the Court or another court. (3) The Registrar shall seal with the seal of the Court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service. (4) A subpoena is taken to have been issued on its being sealed or otherwise authenticated in accordance with paragraph (3). 42.03 Form of subpoena (1) A subpoena shall be in accordance with— (a) Form 42A, for a subpoena to attend to give evidence; (b) Form 42B, for a subpoena to produce; or (c) Form 42C, for a subpoena both to attend to give evidence and to produce. (2) A subpoena shall not be addressed to more than one person. (3) Unless the Court otherwise orders, a subpoena shall identify the addressee by name or by description of office or position. Rule 42.03(4) substituted by S.R. No. 81/2023 rule 6. (4) A subpoena to produce shall— (a) identify the document or thing to be produced; (b) for a document, specify— (i) the date and time for production; and (ii) that the document is to be produced by lodging an electronic copy in eCase; and (c) for a thing, specify the date, time and place for production. A document, a copy of a document or a thing in place of a document may be physically produced if leave is granted by the Registrar or the Court. See Rule 42.06(3B) and (3C). (5) A subpoena to attend to give evidence shall specify the date, time and place for attendance. (6) The date specified in a subpoena shall be the date of trial or any other date as ordered by the Court. (7) The place specified for production may be the Court or the address of any person authorised to take evidence in the proceeding as ordered by the Court. (8) The last date for service of a subpoena— (a) is the date falling 5 days before the earliest date on which an addressee is required to comply with the subpoena or an earlier or later date fixed by the Court; and (b) shall be specified in the subpoena. (9) If the addressee is a corporation, the corporation shall comply with the subpoena by its appropriate or proper officer. 42.04 Setting aside or other relief (1) The Court may, of its own motion or on the application of a party or of any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. (2) An application under paragraph (1) shall be made on notice to the issuing party. (3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest. 42.05 Service (1) A subpoena shall be served personally on the addressee. (2) The issuing party shall serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee, but it shall not be necessary that the copy served be sealed or be served personally. 42.06 Compliance with subpoena (1) An addressee need not comply with the requirements of a subpoena to attend to give evidence (a subpoena in Form 42A) or a subpoena both to attend to give evidence and to produce (a subpoena in Form 42C) unless conduct money has been provided or tendered to the addressee a reasonable time before the day on which attendance is required. (2) An addressee need not comply with the requirements of a subpoena unless it is served on or before the day specified in the subpoena as the last day for service of the subpoena. (3) Despite Rule 42.05(1), an addressee shall comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, by the last day for service of the subpoena, actual knowledge of the subpoena and of its requirements. Rule 42.06(3A) inserted by S.R. No. 81/2023 rule 7(1). (3A) Subject to paragraphs (3B) and (3C), the addressee shall comply with a subpoena to produce for a document by electronically lodging a copy of the subpoena and a copy of the document in eCase before or at the date and time specified for production. Rule 42.06(3B) inserted by S.R. No. 81/2023 rule 7(1). (3B) Despite paragraph (3A), the Registrar or the Court may grant leave to the addressee to physically produce the subpoena or a copy of it and— (a) the document; (b) a copy of the document; or (c) a thing in place of the document. Rule 42.06(3C) inserted by S.R. No. 81/2023 rule 7(1). (3C) If leave is granted under paragraph (3B), the addressee shall produce the subpoena and the document or thing in accordance with paragraph (4), subject to the terms of the leave that has been granted, instead of in accordance with paragraph (3A). Rule 42.06(4) amended by S.R. No. 81/2023 rule 7(2). (4) The addressee shall comply with a subpoena to produce a thing, or if leave is granted under paragraph (3B), a document or thing— (a) by attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the Court or to the person authorised to take evidence in the proceeding as permitted by the Court; or (b) by delivering or sending the subpoena or a copy of it and the document or thing to the Registrar at the address specified for the purpose in the subpoena, so that they are received not less than two clear business days before the day specified in the subpoena for attendance and production. Rule 42.06(5) amended by S.R. No. 81/2023 rule 7(3). (5) In the case of a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and of the document or thing in any of the ways permitted by or under paragraphs (3A), (3B), (3C) and (4) does not discharge the addressee from the obligation to attend to give evidence. Rule 42.06(5A) inserted by S.R. No. 81/2023 rule 7(4). (5A) A copy of a subpoena and a copy of a document to be lodged in eCase must be in an electronic format specified in the practice note concerning eCase. Rule 42.06 (6)(7) revoked by S.R. No. 81/2023 rule 7(5). Rule 42.07 (Heading) amended by S.R. No. 81/2023 rule 8. 42.07 Production by delivering or sending (1) This Rule applies if an addressee produces a document or thing in accordance with Rule 42.06(4)(b). (2) The Registrar shall, if requested by the addressee, give a receipt for the document or thing to the addressee. (3) If the addressee produces more than one document or thing, the addressee shall, if requested by the Registrar, provide a list of the documents or things produced. 42.08 Removal, return, inspection, copying and disposal of documents and things The Court may give directions in relation to the removal from and return to the Court, and the inspection, copying and disposal, of any document or thing that has been produced to the Court in response to a subpoena. Rule 42.08A inserted by S.R. No. 81/2023 rule 9. 42.08A Inspection of, and dealing with, documents produced in eCase (1) This Rule applies if an addressee produces a copy of a document in accordance with Rule 42.06(3A). (2) Subject to this Rule, no person may inspect the document unless the Court has granted leave and the inspection is in accordance with that leave. (3) Unless the Court otherwise orders, the Registrar may permit the parties to inspect any document produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this Rule. (4) If the addressee objects to a document being inspected by any party to the proceeding, the addressee shall, at the time of production, give notice in eCase of the objection and of the grounds of the objection. (5) If a party or a person having a sufficient interest objects to a document being inspected by a party to the proceeding, the objector may— (6) On receiving notice of an objection under paragraph (5)(b), the Registrar shall enter the objection in eCase. (7) If an objection has been made under paragraph (4) or (5), the Registrar— (a) shall not permit any, or any further, inspection of the document the subject of the objection; and (b) shall refer the objection to the Court for hearing and determination. (8) The Registrar shall notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party shall notify the addressee, the objector and each other party accordingly. Rule 42.09 (Heading) amended by S.R. No. 81/2023 rule 10(1). 42.09 Inspection of, and dealing with, documents and things produced by delivering or sending (1) This Rule applies if an addressee produces a document or thing in accordance with Rule 42.06(4)(b). (2) On the request in writing of a party, the Registrar shall inform the party whether production in response to a subpoena has occurred and, if so, include a description, in general terms, of the document and thing produced. (3) Subject to this Rule, no person may inspect a document or thing produced unless the Court has granted leave and the inspection is in accordance with that leave. (4) Unless the Court otherwise orders, the Registrar may permit the parties to inspect at the office of the Registrar any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this Rule. Rule 42.09(5) substituted by S.R. No. 81/2023 rule 10(2). (5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee shall, at the time of production— Rule 42.09(6) substituted by S.R. No. 81/2023 rule 10(2). (6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may— Rule 42.09(6A) inserted by S.R. No. 81/2023 rule 10(2). (6A) On receiving a notice of an objection under paragraph (5)(b) or (6)(b), the Registrar shall enter the objection in eCase. (7) On receiving a notice of an objection under this Rule, the Registrar— (a) shall not permit any, or any further, inspection of the document or thing the subject of the objection; and (b) shall refer the objection to the Court for hearing and determination. (8) The Registrar shall notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party shall notify the addressee, the objector and each other party accordingly. (9) The Registrar shall not permit any document or thing produced to be removed from the office of the Registrar except on application in writing signed by the solicitor for a party. (10) A solicitor who signs an application under paragraph (9) and removes a document or thing from the office of the Registrar, undertakes to the Court by force of this Rule that— (a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and (b) the document or thing will be returned to the office of the Registrar in the same condition, order and packaging in which it was removed, as and when directed by the Registrar. (11) The Registrar may, in the Registrar's discretion, grant an application under paragraph (9) subject to conditions or refuse to grant the application. 42.10 Disposal of documents and things produced Rule 42.10(1) amended by S.R. No. 81/2023 rule 11(1). (1) Unless the Court otherwise orders, the Registrar may, in the Registrar's discretion, return to the addressee any document or thing physically produced to the Registrar in response to the subpoena. (2) Unless the Court otherwise orders, the Registrar shall not return any document or thing under paragraph (1) unless the Registrar has given to the issuing party at least 14 days' notice of the intention to do so and that period has expired. Rule 42.10(3) amended by S.R. No. 81/2023 rule 11(2). (3) The addressee of a subpoena which is in accordance with Form 42B or Form 42C must complete the declaration by the addressee provided for in the subpoena if the documents are physically produced under Rule 42.06(3B). Rule 42.10(4) amended by S.R. No. 81/2023 rule 11(3). (4) The completed declaration must be included in the subpoena or copy of the subpoena which accompanies the documents physically produced under the subpoena. Rule 42.10(5) substituted by S.R. No. 81/2023 rule 11(4). (5) Subject to paragraph (6), after the expiry of four months from the conclusion of the proceeding, the Registrar may cause to be destroyed all— (a) the electronic copies of documents produced in the proceeding in compliance with a subpoena; or (b) the documents physically produced in the proceeding in response to a subpoena and which were declared by the addressee to be copies. Rule 42.10(6) substituted by S.R. No. 81/2023 rule 11(4). (6) The Registrar may cause to be destroyed the electronic copies and documents referred to in paragraph (5) which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal. 42.11 Costs and expenses of compliance (1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. (2) If an order is made under paragraph (1), the Court shall fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs. (3) An amount fixed under this Rule is separate from and in addition to— (a) any conduct money paid to the addressee; (b) any witness expenses payable to the addressee. 42.12 Failure to comply with subpoena—contempt of court (1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly. (2) Despite Rule 42.05(1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last day for service of the subpoena, actual knowledge of the subpoena and of its requirements. (3) Paragraphs (1) and (2) are without prejudice to any power of the Court under any Rules of the Court (including any Rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. 42.13 Documents and things in the custody of a court (1) A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Registrar in writing accordingly, identifying the document or thing. Rule 42.13(2) substituted by S.R. No. 81/2023 rule 12(1). (2) If the document or thing is in the custody of the Court, the Registrar shall produce the document or thing— (a) as the Court directs; or (b) if the Court does not give a direction— (i) by lodging an electronic copy of the document in eCase; or (ii) in Court or to any person authorised to take evidence in the proceeding, as required by the party. (3) If the document or thing is in the custody of another court, the Registrar shall, unless the Court has otherwise ordered— (a) request the other court to send the document or thing to the Registrar; and Rule 42.13 (3)(b) substituted by S.R. No. 81/2023 rule 12(2). (b) after receiving it, produce the document or thing— (i) as the Court directs; or (ii) if the Court does not give a direction— (A) by lodging an electronic copy of the document in eCase; or (B) in Court or to any person authorised to take evidence in the proceeding, as required by the party. Order 42A—Subpoena for production to Registrar 42A.01 Application Rule 42A.01(1) amended by S.R. No. 81/2023 rule 13. (1) This Order applies where a party who has a solicitor in the proceeding seeks to require a person not a party to produce any document or thing for evidence before— (a) the hearing of an interlocutory or other application in the proceeding; or (b) the trial of the proceeding. (2) Order 42 applies so far as is practicable to a subpoena to produce under this Order. Rule 42A.02 amended by S.R. No. 81/2023 rule 14. 42A.02 Issuing subpoena A subpoena issued under this Order shall require the addressee to produce to the Registrar on or before a day specified by the Registrar in the subpoena the document or thing identified in the subpoena. Rule 42A.03 substituted by S.R. No. 29/2019 rule 7, amended by S.R. No. 81/2023 rule 15 (ILA s. 39B(2)). 42A.03 Form of subpoena (1) A subpoena under this Order shall be in Form 42AA. Rule 42A.03(2) inserted by S.R. No. 81/2023 rule 15. (2) A subpoena under this Order shall— (a) identify the document or thing to be produced; (b) for a document, specify— (i) the date and time for production; and (ii) that the document is to be produced by lodging an electronic copy in eCase; and (c) for a thing, specify the date, time and place for production. A document, a copy of a document or a thing in place of a document may be physically produced if leave is granted by the Registrar or the Court. See Rule 42A.05(2) and (3). 42A.04 Affidavit of service (1) A subpoena under this Order shall be served personally on the addressee. (2) The issuing party shall serve a copy of a subpoena to produce under this Order on each other party as soon as practicable after the subpoena has been served on the addressee, but it shall not be necessary that the copy served be sealed or be served personally. (3) A party who serves a copy of a subpoena under this Order shall forthwith file an affidavit of service. Rule 42A.05 substituted by S.R. No. 81/2023 rule 16. 42A.05 Compliance with subpoena (1) Subject to paragraphs (2) and (3), the addressee shall comply with a subpoena for a document under this Order by electronically lodging a copy of the document in eCase on or before the day specified in the subpoena. (2) Despite paragraph (1), the Registrar or the Court may grant leave to the addressee to physically produce— (a) the document; (b) a copy of the document; or (c) a thing in place of the document. (3) If the Registrar or the Court has granted leave for physical production, the addressee shall produce the document or thing in accordance with paragraph (4), subject to the terms of leave that has been granted, instead of in accordance with paragraph (1). (4) The addressee shall comply with a subpoena under this Order for a thing, or if leave is granted under paragraph (3), a document or thing— (a) by producing the document or thing to the Registrar by delivering or sending it; and (b) if sent, the document or thing shall be sent so that the Registrar receives it on or before the day specified in the subpoena. (5) A copy of a document to be lodged in eCase must be in an electronic format specified in the practice note concerning eCase. Rule 42A.06 substituted by S.R. No. 81/2023 rule 17. 42A.06 Receipt for document or thing If a document or thing is physically produced in response to a subpoena under this Order the Registrar shall, if requested to do so, give a receipt to the person producing the document or thing. Rule 42A.07 substituted by S.R. No. 81/2023 rule 18. 42A.07 Objection by addressee (1) If the addressee has any objection to producing a document or thing identified in the subpoena or to its being inspected or copied by any one or more of the parties to the proceeding, the addressee shall give notice of the objection and of the grounds of the objection before the day specified in the subpoena. (2) Notice under paragraph (1) for any objection to producing a document or thing shall be given— (a) if the document or thing is being produced under Rule 42A.05(1), (2) or (3), in eCase; or (b) if the thing is being produced under Rule 42A.05(4) without a grant of leave under Rule 42A.05(2), in writing to the Registrar. (3) Notice under paragraph (1) for any objection to inspection shall be given— (a) in eCase; or (b) if the document or thing is to be physically produced, in writing to the Registrar. Rule 42A.07A inserted by S.R. No. 81/2023 rule 18. 42A.07A Objection by person having sufficient interest If a person having a sufficient interest, other than a party, has any objection to the production of a document or thing identified in the subpoena or to its being inspected or copied by any one or more of the parties to the proceeding, that person shall notify the Registrar in writing of the objection and of the grounds of the objection before the day specified in the subpoena. Rule 42A.08 substituted by S.R. No. 81/2023 rule 19. 42A.08 Objection by party to inspection by other party (1) Subject to paragraph (3), if a party has any objection to the inspection or copying by another party of a document or thing identified in the subpoena, the party having the objection shall give notice of that objection and of the grounds of that objection before the day specified in the subpoena— (a) if the document or thing is being produced under Rule 42A.05(1), (2) or (3), in eCase; or (b) if the thing is being produced under Rule 42A.05(4) without a grant of leave under Rule 42A.05(2), in writing to the Registrar. (2) If a party other than the plaintiff seeks by subpoena the production of any hospital or medical file or record concerning the plaintiff or the plaintiff's condition, the plaintiff may, before taking objection under paragraph (1), inspect and take copies of the file or record produced. (3) After inspecting the file or record under paragraph (2), the plaintiff may give notice under paragraph (1) of any objection the plaintiff has to inspection or copying by any other party, provided that the plaintiff— (a) makes that inspection or takes those copies; and (b) gives notice of that objection and of the grounds of that objection within 14 days after the day specified in the subpoena for production of the file or record. 42A.09 Procedure after objection Rule 42A.09(1) substituted by S.R. No. 81/2023 rule 20. (1) If notice of an objection is given under Rule 42A.07, 42A.07A or 42A.08, the Registrar shall refer the objection to the Court for hearing and determination. (2) The Registrar shall notify the issuing party in writing of the objection and the grounds of that objection and the time and place at which the objection will be heard and that party shall notify the addressee and all other parties accordingly. Rule 42A.10 substituted by S.R. No. 81/2023 rule 21. 42A.10 Inspection of document or thing produced (1) This Rule applies— (a) if no objection is notified under Rule 42A.07, 42A.07A or 42A.08 or to the extent that any such objection is disallowed; and (b) subject to any order of the Court. (2) Subject to paragraph (3), each party may inspect and take copies of a document or thing produced in response to a subpoena under this Order. (3) Inspection and taking of copies of a physical document or a thing is to be by appointment with the Registrar. Rule 42A.11 (Heading) amended by S.R. No. 81/2023 rule 22(1). 42A.11 Removal of document or thing Rule 42A.11(1) amended by S.R. No. 81/2023 rule 22(2). (1) The Registrar shall not permit any document or thing physically produced in response to a subpoena under this Order to be removed from the office of the Registrar except upon application in writing signed by the solicitor for a party. Rule 42A.11(2) amended by S.R. No. 81/2023 rule 22(3). (2) A solicitor who signs an application under paragraph (1) and removes a document or thing from the office of the Registrar, undertakes to the Court by force of this Rule that— Rule 42A.11 (2)(a) amended by S.R. No. 81/2023 rule 22(3). (a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the proceeding; and Rule 42A.11 (2)(b) amended by S.R. No. 81/2023 rule 22(3). (b) the document or thing will be returned to the office of the Registrar in the same condition, order and packaging in which it was removed, as and when directed by the Registrar. (3) The Registrar may, in the Registrar's discretion, decline to accede to any application under paragraph (1). Rule 42A.12 (Heading) amended by S.R. No. 81/2023 rule 23(1). 42A.12 Return or disposal of document or thing (1) Subject to any order of the Court, the Registrar— Rule 42A.12 (1)(a) amended by S.R. No. 81/2023 rule 23(2)(a). (a) may in the Registrar's discretion return to the addressee any document or thing physically produced to the Registrar in response to the subpoena; Rule 42A.12 (1)(b) amended by S.R. No. 81/2023 rule 23(2)(b). (b) shall, upon returning the document or thing, inform the addressee that the subpoena to produce remains in force until the trial or other determination of the proceeding; and Rule 42A.12 (1)(c) amended by S.R. No. 81/2023 rule 23 (2)(b)(c). (c) may specify a date by which the document or thing is to be produced again to the Registrar in response to the subpoena. Rule 42A.12(2) amended by S.R. No. 81/2023 rule 23(3). (2) Subject to paragraph (3), the Registrar shall not return any document or thing under paragraph (1) until after the Registrar has given to the issuing party 14 days' notice in writing of the Registrar's intention to do so. Rule 42A.12(3) amended by S.R. No. 81/2023 rule 23(3). (3) In an urgent case and at the request of— (a) the addressee; or (b) in the case of any hospital or medical file or record concerning the plaintiff or the plaintiff's condition, the plaintiff— the Registrar may return a document or thing under paragraph (1) without first giving notice under paragraph (2), but in such a case, after returning the document or thing, the Registrar shall give notice to the issuing party that the document or thing has been returned. Rule 42A.12 (3A) amended by S.R. No. 81/2023 rule 23(4). (3A) The addressee of a subpoena must complete the declaration by the addressee provided for in the subpoena if the documents are physically produced under Rule 42A.05(2). Rule 42A.12 (3B) amended by S.R. No. 81/2023 rule 23(5). (3B) The completed declaration must be included in the subpoena or copy of the subpoena which accompanies the documents physically produced under the subpoena. Rule 42A.12(4) substituted by S.R. No. 81/2023 rule 23(6). (4) Subject to paragraph (5), after the expiry of four months from the conclusion of the proceeding, the Registrar may cause to be destroyed all— (a) the electronic copies of documents produced in compliance with a subpoena; or (b) the documents physically produced in response to a subpoena and which were declared by the addressee to be copies. Rule 42A.12(5) substituted by S.R. No. 81/2023 rule 23(6). (5) The Registrar may cause to be destroyed the electronic copies and documents referred to in paragraph (4) which have become exhibits in the proceeding when they are no longer required in connection with the proceeding, including on any appeal. Rule 42A.13 (Heading) amended by S.R. No. 81/2023 rule 24(1). Rule 42A.13 amended by S.R. No. 81/2023 rule 24(2). 42A.13 Production of document or thing at trial Subject to Rule 42A.12, the Registrar shall, unless otherwise ordered, produce or hand to the Associate to the trial Judge for production at the trial of the proceeding each document or thing physically produced to the Registrar in response to a subpoena under this Order. 42A.14 Subpoena for trial not affected The issuing of a subpoena under this Order shall not preclude the issuing of a subpoena otherwise than under this Order. Order 43—Affidavits Rule 43.00 inserted by S.R. No. 158/2021 rule 6. 43.00 Definitions for this Order ***bundle exhibit*** means an exhibit containing one or more documents referred to in an affidavit, ordered in the sequence that those documents are referred to; ***confidential bundle exhibit*** means an exhibit containing one or more documents that the party filing the affidavit claims are confidential. 43.01 Form of affidavit (1) An affidavit shall be made in the first person. (2) Unless the Court otherwise orders, an affidavit shall state the place of residence of the deponent and the deponent's occupation or, if the deponent has none, the deponent's description, and that the deponent is a party to the proceeding or employed by a party, if such be the case. (3) Notwithstanding paragraph (2), where a deponent makes an affidavit in a professional or other occupational capacity, the affidavit may, instead of stating the deponent's place of residence, state the address of the deponent's place of business, the position the deponent holds and the name of the deponent's firm or employer, if any. (4) An affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. Rule 43.01(5) amended by S.R. No. 158/2021 rule 9(1). (5) Every affidavit shall be signed by the deponent, except as provided by Rule 43.02(1), and the jurat shall be completed and signed by the person before whom it is sworn or affirmed. Rule 43.01(6) amended by S.R. No. 158/2021 rule 9(1). (6) Each page of an affidavit shall be signed by the person before whom it is sworn or affirmed. Rule 43.01(7) amended by S.R. No. 158/2021 rule 9(1). (7) The person before whom an affidavit is sworn or affirmed shall legibly write, type or stamp below the person's signature in the jurat the person's name and address and a statement of the capacity in which the person has authority to take the affidavit. (8) The first page of an affidavit shall be headed immediately beneath the title of the proceeding with the name of the deponent and the date of swearing. (9) An affidavit shall on the outside identify the party on whose behalf it is filed and state the name of the deponent and the date of swearing. 43.02 Affidavit by illiterate or blind person Rule 43.02(1) amended by S.R. No. 158/2021 rule 9(2). (1) Where it appears to the person before whom an affidavit is sworn or affirmed that the deponent is illiterate or blind, the person shall certify in or below the jurat that— (a) the affidavit was read in the person's presence to the deponent; (b) the deponent seemed to the person perfectly to understand it; and Rule 43.02 (1)(c) amended by S.R. No. 158/2021 rule 9(2). (c) the deponent made the deponent's signature or mark in the presence of the person before whom the affidavit is sworn or affirmed. (2) Where an affidavit is made by an illiterate or blind deponent and a certificate in accordance with paragraph (1) does not appear on the affidavit, it may not be used in evidence unless the Court is satisfied that the affidavit was read to the deponent and that the deponent seemed perfectly to understand it. Rule 43.02.1 inserted by S.R. No. 130/2023 rule 4. 43.02.1 Affidavit where interpreter required (1) Where an affidavit is made which requires an interpreter, an accredited interpreter shall include in the jurat of the affidavit, or shall swear or affirm in a separate affidavit, the matters set out in paragraph (2). (2) The accredited interpreter must verify that— (a) before sight translating the affidavit, the interpreter— (i) had read the Code of Conduct in Form 44AA and agreed to be bound by it; and (ii) had been given an adequate opportunity to prepare to sight translate the affidavit; and (b) the interpreter sight translated the entire affidavit to the deponent and the deponent then— (i) informed the person before whom the affidavit is sworn or affirmed through the interpreter that the deponent had understood the interpreter and agreed with the entire contents of the affidavit; and (ii) swore or affirmed the affidavit in the presence of the interpreter. ***accredited interpreter*** has the same meaning as it has in Rule 44A.01; ***sight translate*** has the same meaning as it has in Rule 44A.01. See also the requirements in Rule 44A.06. 43.03 Content of affidavit (1) Except where otherwise provided by or under these Rules, an affidavit shall be confined to facts which the deponent is able to state of the deponent's own knowledge. (2) On an interlocutory application an affidavit may contain a statement of fact based on information and belief if the grounds are set out. Rule 43.03(3) inserted by S.R. No. 158/2021 rule 7. (3) An affidavit that has a bundle exhibit or a confidential bundle exhibit annexed to it shall— (a) have the pages sequentially numbered from the first page of the affidavit to the last page of the bundle exhibit or the confidential bundle exhibit (as applicable, and if both, whichever is the latter); and (b) identify, in the body of the affidavit, any reference to a document contained in a bundle exhibit or a confidential bundle exhibit by reference to the page numbers applied to it in accordance with paragraph (a). Rule 43.04 amended by S.R. No. 158/2021 rule 9(3). 43.04 Affidavit by two or more deponents Where an affidavit is made by two or more deponents, the names of the persons making the affidavit shall be inserted in the jurat, except that, if the affidavit is sworn or affirmed by both or all the deponents at one time before the same person, it shall be sufficient to state that it was sworn or affirmed by "each of the abovenamed" deponents. 43.05 Alterations (1) Notwithstanding any interlineation, erasure or other alteration in that jurat or body, an affidavit— (a) may be filed, unless the Court otherwise orders; but Rule 43.05 (1)(b) amended by S.R. No. 158/2021 rule 9(4). (b) may not be used without the leave of the Court unless the person before whom it is sworn or affirmed has initialled the alteration. (2) Paragraph (1) shall apply to an account verified by affidavit as if the account were part of the affidavit. Rule 43.06 substituted by S.R. No. 158/2021 rule 8. 43.06 Exhibits (1) * * * * * Chapter I of the Rules of the Supreme Court includes a paragraph (1) that is inapplicable to these Rules. (2) Subject to paragraph (3), where one or more documents are referred to in an affidavit, they shall be annexed to the affidavit as a bundle exhibit. (3) Where one or more documents are referred to in an affidavit and the party filing the affidavit claims that the documents are confidential, they shall be annexed to the affidavit as a confidential bundle exhibit. (4) A bundle exhibit to an affidavit shall be identified by a certificate annexed to it— (a) bearing the same heading as the affidavit; and (b) signed by the deponent and the person before whom the affidavit is sworn or affirmed. (5) The certificate shall— (a) be in Form 43A; and (b) contain in the bottom right hand corner of the page in bold type and in a font size not less than 20 points the distinguishing mark of the exhibit and the words "Bundle of documents referred to in the affidavit of" or "Bundle of confidential documents referred to in the affidavit of" (as applicable) followed by— (i) the name of the deponent; and (ii) the date that the affidavit was made. Rule 43.07 amended by S.R. No. 158/2021 rule 9(5). 43.07 Time for swearing Unless the Court otherwise orders, an affidavit may be used in a proceeding notwithstanding that it was sworn or affirmed before the commencement of the proceeding. 43.08 Irregularity Notwithstanding any irregularity of form an affidavit may, with the leave of the Court, be used in evidence. 43.09 Filing (1) Unless the Court otherwise orders, an affidavit— (a) which has not been filed; or (b) which has not been served or filed in compliance with an order in respect of its service or filing— shall not be used by the party by or on whose behalf it was made. (2) An affidavit may be filed with the Registrar or with the proper officer in court. (3) If a copy of an affidavit is sought to be filed electronically, the image of the affidavit made available for electronic retrieval must contain the particulars required by Rule 43.01(5) or, if applicable, Rule 43.02(1). Order 44—Expert evidence 44.01 Definitions ***expert*** means a person who has specialised knowledge based on the person's training, study or experience; ***opinion*** includes more than one opinion; ***the code*** means the expert witness code of conduct in Form 44A. 44.02 Application (1) This Order applies to a proceeding however commenced. (2) This Order does not apply to the evidence of a party who would, if called as a witness at the trial, be qualified to give evidence as an expert in respect of any question in the proceeding. (3) With respect to the opinion of a medical practitioner, in a proceeding for medical negligence in which the plaintiff claims damages for or in respect of bodily injury this Order applies to an opinion on the liability of any party but does not otherwise apply to a medical report to which Order 33 applies. 44.03 Report of expert (1) Unless otherwise ordered, a party who intends at trial to adduce the evidence of a person as an expert shall— (a) as soon as practicable after the engagement of the expert and before the expert makes a report under this Rule, provide the expert with a copy of the code; and (b) not later than 30 days before the day fixed for trial, serve on each other party a report by the expert in accordance with clause 3 of the code and deliver a copy for the use of the Court. (2) * * * * * (3) If the expert provides to a party a supplementary report, including a report indicating that the expert has changed the expert's opinion on a material matter expressed in an earlier report— (a) that party shall forthwith serve the supplementary report on all other parties; and (b) in default of such service, the party and any other party having a like interest shall not use the earlier report or the supplementary report at trial without the leave of the Court. (4) Any report provided by the expert pursuant to this Rule— (a) shall be signed by the expert; and (b) shall be accompanied by clear copies of any photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter to which the report refers. 44.04 Other party's report as evidence Unless otherwise ordered, a party may put in evidence a report served on that party by another party under this Order. 44.05 No evidence unless disclosed in report Except with the leave of the Court or by consent of the parties affected, a party shall not, except in cross-examination, adduce any evidence from a person as an expert at the trial of a proceeding unless the substance of the evidence is contained within a report or reports which the party has served under this Order. 44.06 Conference between experts (1) The Court may direct expert witnesses— (a) to confer; and (b) to provide the Court with a joint report specifying matters agreed and matters not agreed and the reasons for their not agreeing. (2) The Court may specify the matters on which the experts are to confer. (3) An expert witness may apply to the Court for further directions. (4) The Court may direct the legal representatives of a party— (a) to attend the conference; (b) not to attend the conference; (c) to attend or not to attend at the option of the party whom they represent. (5) Subject to paragraph (1)(b), except as the parties affected agree in writing, no evidence shall be admitted of anything said or done by any person at the conference. (6) An agreement reached during the conference shall not bind a party except in so far as the party agrees in writing. Part 2—Civil Procedure Act 2010 44.07 Exemption from requirement that party seek direction of Court to adduce expert evidence (1) Subject to paragraph (2), the requirements of section 65G of the **Civil Procedure Act 2010** to seek direction from the Court to adduce expert evidence do not apply to a party to a civil proceeding in— (a) the Common Law Division; (b) any List of the Common Law Division specified in Rule 34A.04; (c) the Commercial Division; or (d) any List of the Commercial Division specified in Rule 34A.06. (2) Paragraph (1) does not apply if— (a) the Court orders that a party must seek directions in accordance with section 65G of the Act; or (b) a practice note requires a party to seek directions in respect of proceedings to which that practice note applies. Order 44A (rules 44A.01–44A.07) inserted by S.R. No. 130/2023 rule 5. Order 44A—Interpreters Rule 44A.01 inserted by S.R. No. 130/2023 rule 5. 44A.01 Definitions ***accredited interpreter***, in relation to an other language, means an interpreter who is accredited, registered or recognised as an interpreter for the language by the recognised agency; ***Code of Conduct*** means the court interpreters' Code of Conduct in Form 44AA; ***interpret*** means the process by which spoken or signed language is conveyed from one language to another orally; ***other language*** means a spoken or signed language other than English; ***recognised agency*** means the National Accreditation Authority for Translators and Interpreters (NAATI); ***sight translate*** means the process by which an interpreter or a translator presents a spoken interpretation of a written text; ***translate*** means the process by which written language is conveyed from one language (the ***source language***) to another (the ***target language***) in written form. Rule 44A.02 inserted by S.R. No. 130/2023 rule 5. 44A.02 When interpreters may be engaged (1) If the Court is satisfied that a witness cannot understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put to the witness, the witness may give— (a) oral evidence in the other language that is interpreted into English by an interpreter in accordance with this Order; or (b) evidence by an affidavit or a statement in English that has been sight translated to the witness by an interpreter in accordance with Rule 44A.06. Section 30 of the **Evidence Act 2008** provides that a witness may give evidence about a fact through an interpreter unless the witness can understand and speak the English language sufficiently to enable the witness to understand, and to make an adequate reply to, questions that may be put about the fact. (2) The party calling a witness requiring an interpreter is responsible for engaging an interpreter who meets the standards and requirements under this Order. (3) * * * * * Rule 44A.02(3) of Chapter I of the Rules of the Supreme Court relates to the application of Order 44A of those Rules in criminal proceedings. (4) If the Court is satisfied that a party cannot understand and speak the English language sufficiently to enable the party to understand and participate in the proceeding, the Court shall permit the party to use an interpreter who meets the standards and requirements under this Order. Rule 44A.03 inserted by S.R. No. 130/2023 rule 5. 44A.03 Who may act as an interpreter (1) A person shall not act as an interpreter in a proceeding unless the person— (a) is currently an accredited interpreter for the spoken or signed language other than English concerned or otherwise satisfies the Court that the person is qualified to act as an interpreter; (b) has read and agrees to comply with the Code of Conduct; and (c) takes an oath or affirms to interpret accurately to the best of the person's ability. (2) A person shall not act as an interpreter if the person— (a) is or may become a party to, or a witness in, the proceeding; (b) is related to, or has a close personal relationship with, a party or a member of the party's family, or with a witness or potential witness; (c) has or may have a financial or other interest of any other kind in the outcome of the proceeding, other than an entitlement to a reasonable fee for the services provided by the interpreter in the course of the person's engagement or appointment; or (d) is or may be unable to fulfil the person's duty of accuracy or impartiality under the Code of Conduct for any reason including, but not limited to, personal or religious beliefs or cultural or other circumstances. (3) A person acting as an interpreter shall— (a) cease to act as an interpreter if the person becomes aware during a hearing of a matter referred to in paragraph (2); and (b) immediately disclose the matter to the Court. (4) Despite paragraphs (1) to (3), if it is in the interests of justice, the Court may give permission to a person to act as an interpreter despite not complying with the requirements of those paragraphs if, to the extent practicable— (a) the Court is satisfied that the person is able to interpret and, if necessary, sight translate accurately to the level the Court considers satisfactory in all the circumstances from the other language into English and from English into the other language; (b) the person takes an oath or affirms to interpret accurately to the best of the person's ability; (c) the Court is satisfied that the person understands and accepts that, in acting as an interpreter, the person— (i) is not the agent, assistant or advocate of the witness or the party for which the person is to act as an interpreter; and (ii) owes a paramount duty to the Court to be impartial and accurate to the best of the person's ability; (d) the Court directs that the evidence and interpretation be sound recorded for spoken languages and video recorded for signed languages; and (e) the person is over the age of 18 years. Rule 44A.04 inserted by S.R. No. 130/2023 rule 5. 44A.04 Functions of interpreters (1) Unless the Court otherwise orders, an interpreter shall— (a) interpret questions and all other spoken communications in the conduct of the proceeding for the party from English into the other language and from the other language into English; and (b) subject to paragraph (2), sight translate, whether before or during the course of the witness' evidence, documents shown to the witness. (2) An interpreter may refuse to sight translate if— (a) the interpreter considers that the interpreter is not competent to do so; or (b) the task is too onerous or difficult by reason of the length or complexity of the text. (3) Unless the Court otherwise orders, an interpreter may not assist a party or the party's legal practitioner in the conduct of the proceeding (including a hearing) except by— (a) interpreting questions and other spoken or signed communications in connection with the proceeding from English into the other language and from the other language into English; or (b) sight translating documents in connection with the proceeding from English into the other language and from the other language into English. Rule 44A.05 inserted by S.R. No. 130/2023 rule 5. 44A.05 Code of Conduct (1) An interpreter shall comply with the Code of Conduct. (2) Unless the Court otherwise orders, as soon as practicable after an interpreter is engaged or appointed for a proceeding, a copy of the Code of Conduct is to be provided to the interpreter— (a) if an interpreter is engaged by a party, by the party; or (b) as the Court otherwise directs. (3) Unless the Court otherwise orders, a witness may not give evidence using an interpreter unless the Court is satisfied that the interpreter has read the Code of Conduct and agrees to be bound by it. (4) Unless the Court otherwise orders, a party to the proceeding may not use an interpreter in the circumstances described in Rule 44A.02(4) unless the Court is satisfied that the interpreter has read the Code of Conduct and agrees to be bound by it. Rule 44A.06 inserted by S.R. No. 130/2023 rule 5. 44A.06 Translated evidence (1) Unless the Court otherwise orders, a party seeking to rely on a translated affidavit who requires an interpreter is not entitled to rely on the affidavit unless it complies with Rule 43.02.1. (2) Unless the Court otherwise orders, a party seeking to rely on a translated statement of a witness who requires an interpreter is not entitled to rely on the statement unless an accredited interpreter has verified that— (a) before sight translating the statement to the witness, the interpreter— (i) had read the Code of Conduct and agrees to be bound by it; and (ii) had been given an adequate opportunity to prepare to sight translate the statement; and (b) the interpreter sight translated the entire statement to the witness and the witness then— (i) informed the person before whom the statement is made through the interpreter that the witness had understood the interpreter and agrees with the entire contents of the statement; and (ii) where applicable, signed the statement in the presence of the interpreter. Rule 44A.07 inserted by S.R. No. 130/2023 rule 5. 44A.07 Court may give directions concerning interpreters Without limiting any other power of the Court, the Court may, at any time, give directions concerning all or any of the following matters, having regard to the nature of the proceeding (including the type of allegations made and the characteristics of the parties and witnesses)— (a) any particular attributes required or not required for an interpreter, including, but not limited to, gender, age or ethnic, cultural or social background so as to accommodate any cultural or other reasonable concerns of a party or the witness; (b) the number of interpreters required in any proceeding and whether relay interpreting (being interpreting from the source language to the target language via one or more intermediate languages) should be used; (c) establishing the expertise of an interpreter; (d) the steps to be taken to obtain an interpreter who is an accredited interpreter for the other language concerned or is otherwise qualified to act as an interpreter; (e) the steps to be taken before permission under Rule 44A.03(4) is given; (f) what information concerning the proceeding may be provided to a person in advance of any hearing to assist that person to prepare to act as an interpreter at that hearing, including, but not limited to, pleadings, affidavits, lists of witnesses and other documents; (g) when, in what circumstances and under what (if any) conditions the information referred to in paragraph (f) may be provided; (h) whether an interpreter is to interpret the witness' evidence consecutively, simultaneously or in some other way; (i) other resources, such as dictionaries or other reference works that an interpreter may require to consult in the course of acting as an interpreter; (j) the length of time for which an interpreter should interpret during a hearing without a break; (k) security for an interpreter including, where necessary, arrangements to preserve the anonymity of the interpreter; (l) practical matters concerning an interpreter, such as seating for and the location of the interpreter; (m) the disqualification, removal or withdrawal of an interpreter, including on the application of the interpreter or any party to the proceeding or on the Court's own motion; (n) the payment of interpreters; (o) any other direction the Court considers appropriate. Order 45—Originating motion 45.01 Definitions ***proceeding*** means proceeding commenced by originating motion. 45.02 Evidence by affidavit (1) Except where otherwise provided by any Act or these Rules, and subject to paragraph (2), evidence at the trial of a proceeding shall be given by affidavit. (2) By agreement of the parties, evidence at the trial of the proceeding may be given orally, unless the Court otherwise orders. 45.03 Judgment where no appearance (1) Where a defendant fails to file an appearance within the time limited, the Court may— (a) on application made by the plaintiff without notice to the defendant; and (b) on proof of service of the originating motion and of the failure— give judgment against that defendant for the relief or remedy sought in the originating motion. (2) For the purpose of these Rules, the hearing of the application is the trial of the proceeding. (3) Except for the purpose of proof of service of the originating motion and of the failure of the defendant to appear, the plaintiff shall not, unless the Court otherwise orders, use in evidence on the application any affidavit made by the plaintiff or on the plaintiff's behalf and not served on the defendant with the originating motion. 45.04 Proceedings after appearance (1) Where a defendant has filed an appearance, no judgment shall be given for the relief or remedy sought except on application by the plaintiff in accordance with this Rule. (2) Except as provided in paragraph (3), application shall be made to the Court by summons in Form 45A served on the defendant. (3) In a proceeding commenced by originating motion under Order 53, the plaintiff may apply for judgment on the day specified in the originating motion for application to the Court. (4) On an application under paragraph (2) or (3), the Court may, as appropriate— (a) hear and determine the application; (b) give the judgment; (c) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise. (5) Nothing in this Rule applies to a proceeding in a specialist list where a practice note applies in respect of proceedings in that list. 45.05 Special procedure (1) In this Rule ***plaintiff*** includes a person who proposes to commence a proceeding by originating motion. (2) The Court may by order— (a) dispense with the requirements of Rules 5.03(1) and 8.02; and (b) authorise the plaintiff to commence a proceeding by originating motion in Form 5C. (3) Without limiting paragraph (2), an order may be made— (a) in an urgent case; (b) to save time and expense for the parties; or (c) where the defendant consents. (4) An order may be made on application by the plaintiff before or after the proceeding is commenced and, except where the originating motion has been served on the defendant, application may be made without notice to the defendant. (5) An application made before the proceeding is commenced shall not constitute a proceeding for the purpose of any requirement of these Rules with respect to originating process. (6) Where an order has been made under paragraph (2), judgment shall not be given for the plaintiff for the relief or remedy sought in the originating motion or otherwise except on application on notice to the defendant in Form 45A. (7) At the time the order is made or later, the Court may give directions with respect to the application for judgment. Order 46—Applications 46.01 Application This Order applies to an interlocutory or other application in a proceeding. 46.02 Application by summons (1) An application made on notice to any person shall be by summons, unless— (a) the Court otherwise orders; or (b) in the case of an interlocutory application in a proceeding in a specialist list, a practice note applying in respect of proceedings in that list otherwise provides. (2) An application by summons is made when the summons is filed in accordance with Rule 46.04. (3) An application not by summons is made when it comes on for hearing. (4) Despite paragraph (3)— (a) an application not by summons referred to in paragraph (1)(a) is made at the time specified in the order; (b) an application not by summons referred to in paragraph (1)(b) is made in accordance with the practice note that applies. 46.03 Notice of application On the hearing of an application the Court may order that the person making the application give notice of it to any person having a sufficient interest. 46.04 Form and filing of summons (1) A summons shall be in Form 46A. (2) A summons shall be filed— Rule 46.04 (2)(a) amended by S.R. No. 90/2022 rule 7. (a) where application is made to a Judge, an associate judge or a judicial registrar, with the Registrar; (b) where application is made for costs to be taxed, with the Costs Court in accordance with the Rules of the Supreme Court. (3) Upon the filing of a summons, or at any later time on the request of the applicant, a sufficient number of copies of the summons for service and proof of service shall be sealed with the seal of the Court. (4) The copies shall be sealed— (a) where the summons is filed with the Registrar, by the Registrar; (b) where the summons is filed with an associate to an associate judge, by the associate. 46.05 Service (1) The applicant shall serve a sealed copy of a summons and, except where these Rules otherwise provide, a copy of any affidavit in support on every person to whom notice of the application is to be given. (2) Service under paragraph (1) shall be made within a reasonable time before the day for hearing named in the summons, and in no case later than 2.00 p.m. on the previous day or, where the Registrar's office was closed on the day before the day for hearing, not later than 2.00 p.m. on the day the office was last open. (3) A plaintiff may serve any summons on a defendant personally before appearance. 46.05.1 Day for hearing (1) A summons which has not been served may, at the request of the party who filed it, be amended on or before the day for hearing named in the summons to name another day. (2) The summons may be amended— (a) if the summons is to be heard by the Court constituted by a Judge, the Registrar or a Judge's Associate; (b) if the summons is to be heard by the Court constituted by an associate judge, by an associate to the associate judge; (c) if the summons is to be heard by the Court constituted by a judicial registrar, by an associate to the judicial registrar. (3) A summons shall not be amended under this Rule more than once. (4) This Rule does not limit the power of the Court under Rule 36.01. 46.06 Adjournment (1) The Court may adjourn the hearing of an application on such terms as it thinks fit. (2) The Associate to the Judge or, where an application is to be heard by an associate judge or a judicial registrar, the associate to the associate judge or judicial registrar— (a) may by consent adjourn the hearing of an application to a particular date or for a particular time or generally and reserve the costs of the adjournment; and (b) shall record the adjournment and any reservation of the costs by indorsement on the court file. (3) If the hearing of an application is adjourned under paragraph (2), the Court may thereafter, whether the costs of the adjournment were reserved or not, make an order in relation to the costs of or occasioned by the adjournment as it thinks fit. (4) Rule 63A.22 shall apply to costs reserved under paragraph (2) as if the costs were reserved by order of the Court. 46.07 Absence of party to summons (1) Where any person to whom a summons is addressed fails to attend, the Court may hear the application if satisfied that the summons was duly served. (2) Where on an application by summons the applicant fails to attend, the Court may dismiss the application or make such other order as it thinks fit. 46.08 Setting aside The Court may set aside or vary an order which affects a person where the application for the order— (a) was made on notice to that person, but the person did not attend the hearing of the application; or (b) was not made on notice to that person. Order 47—Place and mode of trial 47.01 Place of trial Unless the Court otherwise orders, the place of trial of a proceeding shall be determined in accordance with Rule 5.08. 47.02 Mode of trial (1) A proceeding commenced by writ and founded on contract (including contract implied by law) or on tort (including a proceeding for damages for breach of statutory duty) shall be tried with a jury if— (a) the plaintiff in the writ or the defendant by notice in writing to the plaintiff and to the Registrar within 10 days after the last appearance signifies that the plaintiff or the defendant (as the case requires) desires to have the proceeding so tried; and (b) the proper jury fees are paid. (1.1) Paragraph (1) does not apply to a proceeding under the **Accident Compensation Act 1985**, other than a common law proceeding as defined in section 129N of that Act. (2) Any proceeding to which paragraph (1) does not apply shall be tried without a jury, unless the Court otherwise orders. (3) Notwithstanding any signification under paragraph (1), the Court may direct trial without a jury if in its opinion the proceeding should not in all the circumstances be tried before a jury. (4) Trial with a jury shall be with a jury of six. 47.03 Payment of jury fees The proper amount for jury fees shall be paid by the party requesting a jury or otherwise as directed by the Court. 47.04 Separate trial of question The Court may order that— (a) any question in a proceeding be tried before, at or after the trial of the proceeding, and may state the question or give directions as to the manner in which it shall be stated; (b) different questions be tried at different times or places or by different modes of trial. 47.05 Judgment after determination of preliminary question If the determination of any question in a proceeding and tried separately from the proceeding substantially disposes of the proceeding or renders the trial of the proceeding unnecessary, the Court may dismiss the proceeding or make such other order or give such judgment as it thinks fit. 47.06 Directions (1) A Judge, an associate judge or a judicial registrar may at any stage of a proceeding by direction limit— (a) the time to be taken in examining, cross‑examining or re-examining a witness; (b) the number of witnesses (including expert witnesses) that a party may call; (c) the time to be taken in making any oral submissions; (d) the time to be taken by a party in presenting the party's case; (e) the time to be taken by a trial. (2) A Judge, an associate judge or a judicial registrar may vary or revoke a direction under paragraph (1). (3) The discretion of a Judge, an associate judge or a judicial registrar to give a direction under paragraph (1) shall be exercised having regard to the following matters in addition to any other relevant matter— (a) the time or number limited shall be reasonable; (b) the direction shall not prejudice the right of each party to a fair trial, and in particular, to a reasonable opportunity to adduce evidence and cross-examine witnesses; (c) whether the case is complex or simple; (d) the number of witnesses a party intends or seeks to call; (e) the volume and character of the evidence a party intends or seeks to adduce; (f) the interests of other litigants in the Court; (g) the time expected to be taken for the trial; (h) the importance of the proceeding as a whole or of any question in the proceeding. Order 48 **Notes** 1 There is no Order 48.