Court Procedures Rules

Schedule 2 Interest rates 1093

Part 2.1 Interest up to judgment 1093 2.1 Interest up to judgment after 30 June 2010—Supreme Court 1093 2.2 Interest up to judgment after 30 June 2010—Magistrates Court 1095 Part 2.2 Interest after judgment 1096 2.3 Interest on judgment after 30 June 2010—Supreme Court 1096 2.4 Interest on judgment after 30 June 2010—Magistrates Court 1097

Page contents 66 Court Procedures Rules 2006

Schedule 3 Costs amount—debts, liquidated demands, company windings-up, enforcement orders and certificates of registration 1099 Part 3.1 Claim for debt or liquidated demand 1099 Part 3.2 Default judgment 1099 Part 3.3 Company winding-up 1100 Part 3.4 Enforcement orders 1100 Part 3.5 Certificate of registration 1101 Schedule 4 Scale of costs 1102 Part 4.1 Scale of costs—general 1102 4.1 Costs—general care and conduct 1102 4.2 Costs—registrar’s discretion 1103 4.3 Costs—letters sent by email 1103 4.4 Costs—allowance on affidavits to include attendances 1103 4.5 Costs—affidavit made by 2 or more people etc 1103 4.6 Costs—documents to be served together 1104 4.7 Costs—agency correspondence 1104 4.8 Costs—attendance to instruct counsel 1104 4.9 Costs—parties with same solicitor 1105 4.10 Costs—counsel drawing and settling documents 1105 4.11 Costs—premature brief 1105 4.12 Costs—transitional 1106

Page contents 67 Division 4.2.2 Drawing Division 4.2.3 Engrossing Division 4.2.5 Perusal Division 4.2.6 Attendances Division 4.2.8 Witness expenses Schedule 5 Jurisdiction of registrar 1115 Part 5.1 Jurisdiction under rules in relation to applications in proceedings not exercisable by registrar of Supreme Court 1115 Part 5.2 Jurisdiction related to Corporations Act exercisable by registrar of Supreme Court 1125 Part 5.3 Jurisdiction related to ASIC Act exercisable by registrar of Supreme Court 1141 Part 5.4 Jurisdiction under rules in relation to applications in proceedings not exercisable by registrar of Magistrates Court 1142

Schedule 6 Corporations Rules 1147

Part 6.1 Corporations Rules—preliminary 1147 1.1 Name of rules 1147 1.2 1147 1.3 Application of sch 6 and provisions of these rules 1147 1.4 Terms used in Corporations Act 1148 1.5 Definitions—sch 6 1149 1.6 References to rules 1150 1.7 Substantial compliance with forms 1150

Page contents 68 Court Procedures Rules 2006 1.8 Court’s power to give directions 1150 1.9 Calculation of time 1150 1.10 Extending and shortening of time 1151 Part 6.2 Proceedings generally 1152 2.1 Title of documents in a proceeding 1152 2.2 Originating process and interlocutory process 1152 2.3 Setting of hearing 1153 2.4 Supporting affidavits 1153 2.4A Application for order setting aside statutory demand (Corporations Act, s 459G) 1154 2.5 Affidavits made by creditors 1154 2.6 Form of affidavits 1155 2.7 Service of originating process or interlocutory process and supporting affidavit 1155 2.8 Notice of certain applications to be given to ASIC 1156 2.9 Notice of appearance (Corporations Act, s 465C) 1157 2.10 Intervention in proceeding by ASIC (Corporations Act, s 1330) 1158 2.12 Proof of publication 1158 2.13 Leave to creditor, contributory or officer to be heard 1159 2.14 Inquiry in relation to corporation’s debts etc 1160 2.15 Meetings ordered by the court 1160 Part 6.3 Compromises and arrangements in relation to Part 5.1 bodies 1161 3.1 Application—pt 1.3 1161 3.2 Nomination of chairperson for meeting 1161 3.3 Order for meetings to identify proposed scheme 1162 3.4 Notice of hearing (Corporations Act, s 411 (4) and s 413 (1)) 1162 3.5 Copy of order approving compromise or arrangement to be lodged with ASIC 1163 Part 6.4 Receivers and other controllers of corporation property (Corporations Act, pt 5.2) 1164 4.1 Inquiry into conduct of controller (Corporations Act, s 423) 1164 Part 6.5 Winding-up proceedings (including oppression proceedings where winding-up is sought) 1165 5.1 Application—pt 6.5 1165

Page contents 69 5.2 Affidavit accompanying statutory demand (Corporations Act, s 459E (3)) 1165 5.3 Application for leave to apply for winding-up in insolvency (Corporations Act, s 459P (2)) 1165 5.4 Affidavit in support of application for winding-up (Corporations Act, s 459P, s 462, s 464) 1166 5.5 Consent of liquidator (Corporations Act, s 532 (9)) 1166 5.6 Notice of application for winding-up 1167 5.7 Applicant to make copies of documents available 1168 5.8 Discontinuance of application for winding-up 1168 5.9 Appearance before registrar 1168 5.10 Order substituting plaintiff in application for winding-up (Corporations Act, s 465B) 1168 5.11 Notice of winding-up order and appointment of liquidator 1169 Part 6.6 Provisional liquidators (Corporations Act, pt 5.4B) 1170 6.1 Appointment of provisional liquidator (Corporations Act, s 472) 1170 6.2 Notice of appointment of provisional liquidator 1170 Part 6.7 Liquidators 1172 7.1 Resignation of liquidator (Corporations Act, s 473 (1)) 1172 7.2 Filling vacancy in office of liquidator (Corporations Act, s 473 (7), s 502) 1172 7.3 Report to liquidator as to company’s affairs (Corporations Act, s 475) 1172 7.4 Liquidator to file certificate and copy of settled list of contributories (Corporations Act, s 478) 1173 7.5 Release of liquidator and deregistration of company (Corporations Act, s 480 (c) and (d)) 1173 7.6 Objection to release of liquidator 1176 7.7 Report on accounts of liquidator (Corporations Act, s 481) 1177 7.8 Application for payment of call (Corporations Act, s 483 (3) (b)) 1177 7.9 Distribution of surplus by liquidator with special leave of the court (Corporations Act, s 488 (2)) 1178 7.10 Powers delegated to liquidator by the court (Corporations Act, s 488) 1178 7.11 Inquiry into conduct of liquidator (Corporations Act, s 536 (1) and (2)) 1178 Part 6.8 Special managers (Corporations Act, pt 5.4B) 1180 8.1 Application for appointment of special manager (Corporations Act, s 484) 1180

Page contents 70 Court Procedures Rules 2006 8.2 Security given by special manager (Corporations Act, s 484) 1180 8.3 Special manager’s receipts and payments (Corporations Act, s 484) 1181 Part 6.9 Remuneration of office-holders 1182 9.1 Remuneration of receiver (Corporations Act, s 425 (1)) 1182 9.2 Determination by court of remuneration of administrator (Corporations Act, s 449E (1) (c) and (1A) (c)) 1184 9.2A Review of remuneration of administrator (Corporations Act, s 449E (2))1186 9.3 Remuneration of provisional liquidator (Corporations Act, s 473 (2)) 1188 9.4 Determination by court of liquidator’s remuneration (Corporations Act, s 473 (3) (b) (ii)) 1191 9.4A Review of remuneration of liquidator (Corporations Act, s 473 (5) and (6) and s 504 (1)) 1193 9.5 Remuneration of special manager (Corporations Act, s 484 (2)) 1196 Part 6.10 Winding-up generally 1199 10.1 Determination of value of debts or claims (Corporations Act, s 554A (2)) 1199 10.2 Disclaimer of contract (Corporations Act, s 568 (1A)) 1199 10.3 Winding-up Part 5.7 bodies (Corporations Act s 583, s 585) and registered schemes (Corporations Act, s 601ND) 1199 Part 6.11 Examinations and orders (Corporations Act, pt 5.9, div 1 and div 2) 1200 11.1 Meaning of examination summons in pt 6.11 1200 11.2 Application for examination or investigation under Corporations Act, s 411 (9) (b), s 423 or s 536 (3) 1200 11.3 Application for examination summons (Corporations Act, s 596A, s 596B) 1201 11.4 Service of examination summons 1202 11.5 Discharge of examination summons 1202 11.6 Filing of record of examination (Corporations Act, s 597 (13)) 1202 11.7 Authentication of transcript of examination (Corporations Act, s 597 (14)) 1203 11.8 Inspection of record or transcript of examination or investigation under Corporations Act, s 411, s 423 or s 536 1203 11.9 Entitlement to record or transcript of examination held in public 1203 11.10 Default in relation to examination 1204

Page contents 71 11.11 Service of application for order in relation to breaches etc by person concerned with corporation (Corporations Act, s 598) 1205 Part 6.11A Warrants (Corporations Act, s 486B and pt 5.4B, div 3, subdiv B) 1206 11A.1 Arrest of person (Corporations Act, s 486B) 1206 Part 6.12 Takeovers, acquisitions of shares and other matters (Corporations Act, chs 6, 6A, 6B, 6C, 6D and 7) and securities (Corporations Act, ch 7) 1207 12.1 Service on ASIC in relation to proceedings under Corporations Act, ch 6, 6A, 6B, 6C, 6D or 7 1207 12.1A Reference to court of question of law arising in proceeding before Takeovers Panel (Corporations Act, s 659A) 1207 12.1B Notification to court if proceeding started before end of takeover bid period (Corporations Act, s 659B) 1207 12.2 Application for summons for appearance of person (Corporations Act, s 1071D (4)) 1208 12.3 Application for orders relating to refusal to register transfer or transmission of securities (Corporations Act, s 1071F) 1208 Part 6.13 1209 Part 6.14 Powers of courts (Corporations Act, pt 9.5) 1210 14.1 Appeal from act, omission or decision of administrator, receiver or liquidator etc (Corporations Act, s 554A, s 1321) 1210 Part 6.15 Proceedings under ASIC Act 1212 15.1 Reference to court of question of law arising at hearing of ASIC (ASIC Act, s 61) 1212 15.2 1212 15.3 Application for inquiry (ASIC Act, s 70, s 201, s 219) 1212 Part 6.15A Proceedings under the Cross-Border Insolvency Act 1213 15A.1 Application—pt 6.15A and other rules 1213 15A.2 Terms used in Cross-Border Insolvency Act 1213 15A.3 Application for recognition 1215 15A.4 Application for provisional relief under Model Law, art 19 1216 15A.5 Liquidator’s consent to act 1216

Page contents 72 Court Procedures Rules 2006 15A.6 Notice of filing application for recognition 1217 15A.7 Notice of order for recognition, withdrawal etc 1217 15A.8 Relief after recognition 1218 15A.9 Application to modify or terminate order for recognition or other relief 1219 15A.10 Cooperation involving court to be under coordination agreement 1220 15A.11 Application for approval of coordination agreement 1222 15A.12 Appointment of independent intermediary 1223 15A.13 Starting proceeding after recognition of a foreign main proceeding 1224

Division 6.15A.5 General 15A.14 Proof of orders or documents of foreign courts 1224 15A.15 Service in accordance with service list 1225 Part 6.16 1226 Dictionary 1227 1 About the endnotes 1254 2 Abbreviation key 1254 3 Legislation history 1255 4 Amendment history 1264 5 Earlier republications 1395

Rule 1

1 Name of rules These rules are the Court Procedures Rules 2006.

3 Overview of rules The note to this rule provides a general overview of these rules. Note on general overview of rules Ch 1 deals with the application of these rules and dispensing with compliance. It also contains formal provisions. Ch 2 contains rules about civil proceedings generally, including the steps in a civil proceeding eg how to start a civil proceeding. Ch 3 contains rules about particular civil proceedings, eg adoption proceedings and administration and probate proceedings in the Supreme Court. Ch 4 contains rules about criminal proceedings, including the steps in a criminal proceeding eg arraignments. Ch 5 contains rules about appellate proceedings, including the steps in an appellate proceeding eg when appeal papers must be filed. Ch 6 contains general rules that apply to all proceedings, eg rules about service and documents. Ch 7 deals with the application of these rules to existing proceedings and contains other transitional provisions. Sch 1 sets out the code of conduct applying to expert witnesses. Sch 2 sets out the interest rates applying to judgments.

Preliminary Chapter 1 Rule 4 Schedule 3 Costs amount—debts and liquidated claims Sch 3 sets up the prescribed costs amount for claims for debts and liquidated demands and for default judgments. Sch 4 sets out the scale of costs. Sch 5 contains provisions about the jurisdiction of the registrar (see also pt 6.5). Sch 6 contains rules for proceedings under the corporations law. The dictionary defines certain terms used in these rules.

4 Application of rules (1) Unless a territory law otherwise provides, these rules apply to all proceedings in the Supreme Court and Magistrates Court. (2) Also, a provision of these rules mentioned in an item in the following table, column 2 does not apply to a proceeding in the Supreme Court until the provision mentioned in the item, column 3 is repealed or otherwise ceases to apply for the purpose of proceedings in that court. Table 4.1 Provisions with delayed application to Supreme Court item provision of these rules provision of other law 1 division 2.11.7 (Mediation and neutral evaluation) Civil Law (Wrongs) Act 2002, part 15.1 (Mediation and neutral evaluation)

Rule 5 (3) Subrule (2) (including table 4.1) and this subrule expire on the day the last of the provisions mentioned in the table, column 3 is repealed or otherwise ceases to apply for the purpose of proceedings in the

5 References to court, judicial officer etc (1) In a provision of these rules, a reference to the court is a reference to the Supreme Court, the Magistrates Court or both, whichever is appropriate in the context of the provision. (2) For the exercise of jurisdiction given to the registrar under a territory law, a reference to the court in these rules includes a reference to the Note Pt 6.5 deals with the jurisdiction of the registrar (see also sch 5). (3) In these rules, a reference to a judicial officer is a reference to— (a) in relation to the Supreme Court—any of the following: (i) a judge; (ii) as far as these rules provide for the exercise of the court’s jurisdiction by the registrar, the registrar; and (b) in relation to the Magistrates Court—any of the following: (i) a magistrate; (ii) as far as these rules provide for the exercise of the court’s jurisdiction by the registrar, the registrar. (4) In these rules, a reference to the registrar in relation to a court is a reference to the registrar or a deputy registrar of the court. (5) In a provision of these rules, a reference to the deputy registrar is a reference to a deputy registrar of the Supreme Court or a deputy registrar of the Magistrates Court, whichever is appropriate in the context of the provision.

Preliminary Chapter 1 Rule 6 (6) In a provision of these rules, a reference to the registry is a reference to the registry of the Supreme Court or Magistrates Court, whichever is appropriate in the context of the provision.

6 Dispensing with rules (1) The court may, by order, dispense with the application of a provision of these rules to a particular proceeding, before or after the provision applies and on any conditions it considers appropriate. 1 Rule 111 (5) (Conditional notice of intention to respond) provides that, not later than 14 days after the day a conditional notice of intention to respond becomes an unconditional notice of intention to respond, the defendant must file a defence. The court may order that the defendant must file the defence not later than 21 days instead.

2 Rule 6009 (Application in proceeding—filing and service of supporting material) requires the supporting material for an application in a proceeding to be filed and served with the application. The court may order that the applicant may file the supporting material at time other than when the application is 3 Rule 6350 (3) (Time—certain days excluded in working out) provides that any day in the period beginning on 25 December and ending on 1 January is excluded in working out when a thing must or may be, or is, done. In an urgent matter, the court may order that those days are not excluded when working out when a document is served. (2) If an application for an order under this rule in relation to a proceeding is made during the proceeding or after judgment is given in the proceeding, the application must be made in accordance with part 6.2 (Applications in proceedings). application), an application for a decision or order under this rule may be made orally, unless the court otherwise orders on its own initiative. (4) For the Supreme Court, if an application for an order under this rule in relation to a proceeding is made before the proceeding starts, the application must be made by originating application.

Rule 7 (5) An express reference in a provision of these rules to the court dispensing with the application (however expressed) of a provision of these rules (an affected provision) does not, by implication, limit the operation of this rule to the affected provision or to any other provision of these rules.

7 Dictionary The dictionary at the end of these rules is part of these rules. Note 1 The dictionary at the end of these rules defines certain terms used in these rules, and includes references (signpost definitions) to other terms defined elsewhere in these rules. For example, the signpost definition ‘earnings redirection order—see rule 2350.’ means that the term ‘earnings redirection order’ is defined in that rule. Note 2 A definition in the dictionary (including a signpost definition) applies to the entire rules unless the definition, or another provision of these rules, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

8 Notes A note included in these rules is explanatory and is not part of these Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Introductory provisions—ch 2 Part 2.1 Rule 20

20 Meaning of plaintiff and defendant (1) For a proceeding (other than an application in the proceeding or a proceeding on a counterclaim or third-party notice)— (a) a reference in these rules to the plaintiff is a reference to the party claiming relief; and (b) a reference in these rules to the defendant is a reference to the party against whom relief is sought or who otherwise responds to the originating process. Note 1 Third-party notice includes a fourth-party notice, a fifth-party notice etc (see r 322 (2) (c)). Note 2 Rule 6007 (Application in proceeding—contents) requires an application in a proceeding to identify the person making the application and each person against whom relief is sought. (2) For a proceeding on a counterclaim or third-party notice (the process)— (a) a reference in these rules to the plaintiff includes a reference to the party who files and serves the process; and (b) a reference in these rules to the defendant includes a reference to the person on whom the process is served.

Rule 22

22 Application—ch 2 (1) This chapter applies to every proceeding in the Supreme Court or Magistrates Court to which these rules apply. Note 1 Rule 4 (Application of rules) deals with the proceedings to which these rules apply. Note 2 This chapter has been disapplied (with exceptions) in relation to family and personal violence proceedings (see r 3802) and workers compensation proceedings (see r 3903). Note 3 The Magistrates Court includes the Childrens Court (see Magistrates Court Act 1930, s 287). (2) However, this chapter applies to a criminal proceeding, forensic proceeding or appellate proceeding only as far as a territory law provides that it applies. Note 1 Criminal proceeding and appellate proceeding are defined in the dictionary. Note 2 Forensic proceeding is defined in rule 4800. Note 3 Ch 4 deals with criminal and forensic proceedings and ch 5 deals with appellate proceedings. Note 4 A territory law includes these rules or a provision of these rules (see Legislation Act, s 98 and s 97 (1), def ACT law). (3) Also, this chapter does not apply to another proceeding as far as— (a) this chapter provides that it does not apply to the proceeding; or (b) chapter 3 (Particular civil proceedings) provides that this chapter does not apply to the proceeding or otherwise makes provision for the proceeding inconsistent with this chapter; or (c) another territory law (including another provision of these rules) provides that this chapter does not apply to the proceeding. Note Ch 6 has provisions applying to all proceedings (see r 6000 (Application—ch 6).

Rule 30

30 Who may start and carry on a proceeding (1) An individual may start and carry on a proceeding in the court— (b) by a solicitor acting for the individual. Note Rule 275 (1) (Person with legal disability—litigation guardian to start proceeding etc) provides that a person with a legal disability may start or defend, and carry on, a proceeding only by the person’s litigation (2) However, a relator may only start and carry on a proceeding by a solicitor acting for the relator. Note A relator is a person who starts and carries on a proceeding in the Attorney-General’s name. A person may bring a proceeding as relator with the Attorney-General’s permission (or fiat) where the proceeding involves the public interest and the person would otherwise not have standing to bring the proceeding. (3) A solicitor may act for a relator in a proceeding only if— (a) the relator has given the solicitor written authority to act in the (b) the authority is filed in the court. (4) A corporation may start and carry on a proceeding in the Supreme (a) by a solicitor acting for the corporation; or (b) with the court’s leave, by an officer or employee of the corporation authorised by the corporation to represent it.

Rule 30 (5) If an application for leave under subrule (4) is made during the proceeding or after judgment is given in the proceeding, the application must be made in accordance with part 6.2 (Applications in proceedings). (6) For the Supreme Court, if an application for leave under subrule (4) is made before the proceeding starts, the application must be made by (7) A corporation may start and carry on a proceeding in the Magistrates (a) by a solicitor acting for the corporation; or (b) by an officer or employee of the corporation authorised by the corporation to represent it. (8) An officer or employee mentioned in subrule (7) must file with the first document that is filed in the court for the corporation in the (a) an affidavit stating— (i) the position the person holds in the corporation; and (ii) that the person has been authorised by the corporation to represent the corporation in the proceeding; and (iii) that the authority has not been revoked; and (iv) that the person is aware that the person may be liable to pay some or all of the costs of the proceeding; and (b) a copy of an instrument authorising, or evidencing the authorisation of, the person to represent the corporation in the Note An instrument is defined in the Legislation Act, s 14 as any writing or other document. Writing and document are defined in the Legislation Act, dict, pt 1.

Rule 31

31 Kinds of originating processes (1) A proceeding may be started by an originating claim or originating application in accordance with these rules. (2) An application in a proceeding is not an originating process. Note An originating process means an originating claim or originating application (see dict). An application in a proceeding is defined in r 6006 to include an application to the court about the proceeding.

32 When civil proceeding starts (1) A proceeding started by an originating process starts on the day the originating process for the proceeding is filed. Note 1 Rule 6145 (5) (Filed documents initially rejected) provides that, if a document is rejected by the registrar, it is taken to have been filed on the day it was first filed. Note 2 Rule 301 deals with when a third-party proceeding starts. (2) However, if a proceeding is started by oral originating application under rule 37 (When oral originating application may be made in Supreme Court), the proceeding starts on the day the oral originating application is made. (3) For this rule, it does not matter— (a) that the originating process later ceases to be valid for service or is renewed under rule 74 (Originating process—duration and renewal); or (b) that the proceeding started by the originating process is later dismissed under rule 75 (When proceeding taken to be dismissed); or (c) that the proceeding started by the originating process is reinstated under rule 76 (Reinstating dismissed proceeding).

Rule 33

33 When originating claim must be used (1) A proceeding must be started by originating claim if a territory law requires the proceeding to be started by originating claim. (2) A proceeding must also be started by originating claim unless a territory law requires or allows the proceeding to be started by

34 When originating application must be used (1) A proceeding must be started by originating application if a territory law requires the proceeding to be started by originating application. Note 2 For cases in which an originating application is required under these rules, see the following provisions: • r 6 (4) (Dispensing with rules) • r 30 (6) (Who may start and carry on a proceeding) • r 211 (4) (Including parties—common issues of law or fact) • r 280 (10) (Litigation guardian—appointment and removal by court) • r 282 (2) (Person with legal disability—approval of settlement etc) • r 650 (2) (Discovery to identify potential defendant) • r 651 (2) (Discovery to identify right to claim relief) • r 706 (4) (Urgent orders before start of proceeding) • r 728 (1) (Div 2.9.4 order—procedure) • r 2600 (3) (Interpleader—application by stakeholder) • r 2746 (3) (Estate and trust accounts—order requiring examination and passing of accounts) • r 3005 (1) (Grant of representation—application) • r 3020 (1) (Reseal of foreign grant—application) • r 3069 (3) (Caveat—setting aside) • r 3080 (3) (Revocation of grant—urgent order before start of proceeding)

Rule 35 • r 3092 (1) (Division 3.1.9 proceeding—starting) • r 3114 (3) (Failure of executor to prove will—Administration and Probate Act) • r 3115 (3) (Failure by executor, administrator or trustee to comply with beneficiary’s request etc) • r 3303 (2) (Cross-vesting—application for transfer or removal of • r 3454 (1) (Foreign confiscation orders—proceedings for • r 3463 (1) (Interstate confiscation orders—proceedings for • r 3473 (1) (Foreign judgment—application for registration) • r 3252 (Commercial arbitration—application) • r 3504 (1) (Habeas corpus—application and service) • r 3556 (1) (Judicial review—application) • r 3608 (1) (Admission—application for admission). Note 3 See also r 3353 (Election application etc originating application). (2) A proceeding must also be started by originating application if— (b) the law does not state the kind of originating process to be used.

35 When originating application may be used (1) A proceeding may be started by originating application if— (a) the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or (b) there is no opposing party to the proceeding or it is not intended to serve anyone with the originating process; or (c) there is not enough time to prepare an originating claim because of the urgent nature of the relief sought; or

Rule 35 (d) a territory law allows the proceeding to be started by originating Note 2 Rule 2501 (Contempt—applications generally) allows a contempt application to be made by originating application. (2) Without limiting subrule (1), a proceeding may be started by originating application if— (a) the only or main issue in the proceeding is the interpretation of legislation and a substantial dispute of fact is unlikely; or (b) the only or main issue in the proceeding is the interpretation of a deed, will, contract or other document and a substantial dispute of fact is unlikely; or (c) the relief sought is a declaration of right and there is no opposing party to the proceeding; or (d) for a question or matter in relation to the estate of a deceased person or a trust, without administration of the estate or trust— (i) the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or (ii) there is no opposing party to the proceeding or it is not intended to serve anyone with the originating process. Examples for r (2) (d) 1 a question affecting the rights or interests of someone claiming to be a creditor, domestic partner or next of kin of the deceased person or beneficiary of the trust 2 finding out any class of creditors, next of kin or others 3 producing any particular accounts by the executors, administrators or trustees, and verifying the accounts (if necessary) 4 paying into court any amount held by the executors, administrators or trustees 5 directing the executors, administrators or trustees to do or not do something as executor, administrator or trustee

Rule 36 6 approving any sale, purchase, compromise or other transaction 7 deciding any question arising in the administration of the estate or trust (3) Also, a proceeding may be started by originating application if— (b) a particular kind of originating process (other than an originating claim or originating application) is required or allowed under a territory law.

36 When originating application taken to be used A proceeding is taken to be started by originating application if— (b) a particular kind of originating process (other than an originating claim or originating application) (the particular originating process) is required or allowed under a territory law; and (c) the proceeding is started by the particular originating process.

37 When oral originating application may be made in (2) The court may give leave for a proceeding to be started by oral originating application if satisfied that it is necessary to start the proceeding in this way. Example of necessity urgent relief is sought (3) An application for leave to start a proceeding or for an order under this rule must be made in accordance with part 6.2 (Applications in proceedings).

Rule 38 application), an application for a decision or order under this rule may be made orally, unless the court otherwise orders on its own initiative. (5) The plaintiff must file a written originating application in the same terms as the oral originating application. (6) The written originating application must be filed— (a) as soon as practicable after the oral originating application is made; or (b) if the court makes an order about when it must be filed—in

38 Proceeding incorrectly started by originating claim (1) This rule applies if the court considers that a proceeding started by originating claim should have been started by originating application or may more conveniently continue as if started by originating (a) order that the proceeding continue as if started by originating Note See r 1401 (Directions generally). (c) make any other order it considers appropriate. the court may order that the content of any pleadings filed in the proceeding be put before the court as affidavits

Rule 39 (3) If the court makes an order under subrule (2) (a)— (a) the originating claim is taken to be an originating application; and (b) the proceeding is taken to be a proceeding started by originating

39 Proceeding incorrectly started by originating application (1) This rule applies if the court considers that a proceeding started by originating application should have been started by originating claim or may more conveniently continue as if started by originating claim. (2) The court may do all or any of the following: (a) order that the proceeding continue as if started by originating claim; (c) order that any affidavits filed in the proceeding be treated as pleadings, alone or supplemented by particulars; (d) order that the plaintiff file and serve a statement of claim; (e) make any other order it considers appropriate. (3) If the court makes an order under subrule (2) (a)— (a) the originating application is taken to be an originating claim; and (b) the proceeding is taken to be a proceeding started by originating

Rule 40

40 Setting aside originating process etc (1) The court may— (a) declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or (b) declare that an originating process has not been properly served; or (c) set aside an order for service of an originating process; or (d) set aside an order extending the period for service of an originating process; or (e) set aside an originating process; or (f) set aside service of an originating process; or (g) stay a proceeding; or (h) amend or set aside leave under rule 6503 (Service of originating process with leave); or (i) make an order protecting or releasing— (i) property seized, or threatened with seizure, in a (ii) property subject to an order restraining its disposal or in relation to which an order restraining its disposal is sought; or (j) make an order declining to exercise jurisdiction in a proceeding; or

Rule 50 (k) make any other order it considers appropriate. Note 2 Rule 6015 (Application in proceeding—application under r 40) provides that an application for an order under this rule must be filed within the time mentioned in r 102 (Notice of intention to respond or defence— filing and service) for filing a notice of intention to respond or, if no notice of intention to respond is filed, a defence. Note 3 The registrar may reject an originating process that is filed (see r 6140 (2) However, the court must not— (a) set aside a proceeding only because the proceeding was started by the incorrect originating process; or (b) set aside an originating process only because the incorrect originating process was used.

50 Originating claim—content etc (1) An originating claim must state briefly and specifically the nature of the claim made and relief sought. Note See approved form 2.1 (Originating claim) AF2006-246. (2) A statement of claim must be filed with the originating claim. • approved form 2.2 (Statement of claim—debt or liquidated demand) AF2007-60 • approved form 2.3 (Statement of claim—motor vehicle death or personal injury) AF2014-160 • approved form 2.4 (Statement of claim—employment death or personal injury) AF2014-26 • approved form 2.6 (Statement of claim—general) AF2006-447.

Rule 50 Note 2 Rule 52 sets out requirements for the statement of claim for a motor vehicle death or personal injury claim and r 53 sets out requirements for a statement of claim for an employment death or personal injury claim. Note 3 A statement of claim is a pleading (see dict, def pleading) and therefore (3) An originating claim filed in the Magistrates Court, or the accompanying statement of claim, must show that the court has jurisdiction to decide the claim. (4) An originating claim must state— (a) whether the plaintiff is represented by a solicitor; and (b) if the plaintiff is represented by a solicitor—the name of the (c) the plaintiff’s address for service; and (d) if the plaintiff is suing in a representative capacity—the representative capacity in which the plaintiff is suing; and (e) if a defendant is being sued in a representative capacity—the representative capacity in which the defendant is being sued. (5) An originating claim must state specifically any claim for— (a) exemplary damages or aggravated damages; and (b) interest up to the day of judgment. (6) An originating claim need not specifically claim costs unless the claim is for a debt or liquidated demand. (7) If the relief sought requires the court’s decision or direction on any question, the originating claim must state the question.

Rule 51

51 Originating claim—additional matters for claims for debt and liquidated demands (1) This rule applies to an originating claim that includes a claim for a debt or liquidated demand. (2) A claim for interest up to the day of judgment— (a) must state the period or periods for which interest is claimed; and (b) may state the rate or rates at which interest is claimed. (3) If a rate is not claimed under subrule (2) (b), the rate is taken to be the rate of interest applying, from time to time, under schedule 2, part 2.1 (Interest up to judgment). (4) The costs amount applying under schedule 3, part 3.1 (Claim for debt or liquidated demand) must be specifically claimed for costs.

52 Originating claim—statement of claim for motor vehicle death and personal injury claims (1) This rule applies in relation to an originating claim that includes a claim for damages for death or personal injury caused by, or arising out of, the negligent use of a motor vehicle (the accident). (2) The statement of claim for the originating claim must include, and is sufficient if it includes, the following: (a) the time, date, place and circumstances of the accident (including, if possible, the registration details of all motor vehicles involved); (b) precise particulars of the negligence claimed;

Rule 53 (c) for a claim for personal injury—details of the nature and extent of the injuries and disabilities resulting from the accident, as far as is known, that is enough (if possible) to enable the defendant to nominate the kind of expert required to examine the plaintiff; (d) the name of each health professional who has treated the plaintiff for the injuries and disabilities, and for any condition exacerbated by the injury or disability; (e) the nature of any claim for past or future economic loss, as far as is known, including (if relevant) the name and address of each employer of the plaintiff during a reasonable period before and since the accident. Note 1 See approved form 2.3 (Statement of claim—motor vehicle death or personal injury) AF2014-160. Note 2 A statement of claim is a pleading (see dict, def pleading) and therefore

53 Originating claim—statement of claim for employment death and personal injury claims (1) This rule applies in relation to an originating claim that includes a claim for damages for death or personal injury caused by, or arising out of, negligence or breach of statutory duty by an employer (the incident). (2) The statement of claim for the originating claim must include, and is sufficient if it includes, the following: (a) if the cause of action is based on negligence—the time, date, place and circumstances of the negligence claimed, including the acts or omissions making up the negligence; (b) if the cause of action is based on negligence and the negligence claimed was that of someone (other than the defendant) for whose negligence the defendant is vicariously liable— particulars of the person, and particulars of the claim for vicarious liability;

Rule 53 (c) if the cause of action is based on breach of statutory duty—the name and provision of the statute and a precise statement of the acts or omissions making up the breach claimed; (d) for a claim for personal injury—details of the nature and extent of the injuries and disabilities resulting from the incident, as far as is known, that is enough (if possible) to enable the defendant to nominate the kind of expert required to examine the plaintiff; (e) the name of each health professional who has treated the plaintiff for the injuries and disabilities, and for any condition exacerbated by the injury or disability; (f) the nature of any claim for past or future economic loss, as far as is known, including (if relevant) the name and address of each employer of the plaintiff during a reasonable period before and since the incident; (g) the jurisdiction that the plaintiff claims is the Territory or State of connection for the Workers Compensation Act 1951, section 182D (Applicable substantive law for damages claims). Note 1 See approved form 2.4 (Statement of claim—employment death or personal injury) AF2014-26. Note 2 A statement of claim is a pleading (see dict, def pleading) and therefore

Rule 54

54 Originating claim—filing and service (1) An originating claim and accompanying statement of claim must be filed in the court and a sealed copy then served on each defendant. (2) The originating claim and accompanying statement of claim must be served personally on each defendant, unless otherwise provided by Note See r 6405 (How document is personally served). A number of rules provide that particular kinds of non-personal service are taken to be personal service eg r 6412 (Service of originating process by post— Magistrates Court) and r 6431 (Service on corporations—generally). Also, service may be made in another way eg by substituted service (see r 6460 (Substituted service)).

55 Originating claim—abandonment of excess in Magistrates Court (1) This rule applies if a person has a cause of action against another person for more than $250 000. (2) The person may start a proceeding for the cause of action in the Magistrates Court if the person— (a) abandons the excess and limits the claim to $250 000; and (b) states in the claim that the excess is abandoned. (3) Judgment in a proceeding under this rule— (a) is in full discharge of all demands in relation to the cause of action; and (b) must record the abandonment.

Originating applications Division 2.2.3 Rule 60

60 Originating application—content etc (1) Subject to division 2.4.6 (Representation—trustees and personal representatives), an originating application must name as defendants everyone directly affected by the relief sought in the application. Note See approved form 2.7 (Originating application) AF2006-252. (2) Subrule (1) does not apply if— (a) a territory law allows the hearing of the originating application without it being served on anyone; or (b) the relief sought in the application is a declaration of right. (3) The originating application must state specifically the orders or other relief sought in the proceeding. (4) The originating application must list the affidavits to be relied on by the plaintiff (the supporting affidavits). (5) The court may order the plaintiff to an originating application to file supporting affidavits for the application. (6) An originating application filed in the Magistrates Court, or the supporting affidavits, must show that the court has jurisdiction to decide the application. (7) An originating application must state— (a) whether the plaintiff is represented by a solicitor; and (b) if the plaintiff is represented by a solicitor—the name of the (c) the plaintiff’s address for service; and

Rule 60 (d) if the plaintiff is suing in a representative capacity—the representative capacity in which the plaintiff is suing; and (e) if the defendant is being sued in a representative capacity—the representative capacity in which the defendant is being sued. (8) If an originating application is made under a statute, the application must state the name and provision of the statute under which the application is made. (9) The originating application, and any copies of the application for service, must state a return date for the application unless a territory law requires that a return date not be set for the application. Note 1 Return date for an application is defined in the dictionary. Note 2 Some provisions of these rules require that a return date not be set for an application under the rule unless the court otherwise orders. See the following provisions: • r 3005 (6) (Grant of representation—application) • r 3020 (4) (Reseal of foreign grant—application) • r 3454 (4) (Foreign confiscation orders—proceedings for • r 3463 (4) (Interstate confiscation orders—proceedings for • r 3473 (4) (Foreign judgment—application for registration).

Originating applications Division 2.2.3 Rule 61

61 Originating application—filing and service (1) An originating application must be filed in the court and a sealed copy then served on each defendant and anyone else the court directs. (2) For an originating application for a question in relation to the estate of a deceased person or a trust, without administration of the estate or trust— (a) if the application is by a personal representative of the estate or a trustee of the trust—the application must be served on everyone directly affected by the relief sought in the application; or Note See also div 2.4.6 (Representation—trustees and personal representatives). (b) if the proceeding the subject of the application is started by someone other than a personal representative of the estate or a trustee of the trust—the application must be served on the personal representatives or trustees. (3) The originating application must be served personally on each defendant or each person mentioned in subrule (2), unless otherwise provided by these rules. Note See r 6405 (How document is personally served). A number of rules provide that particular kinds of non-personal service are taken to be personal service eg r 6412 (Service of originating process by post— Magistrates Court) and r 6431 (Service on corporations—generally). Also, service may be made in another way eg by substituted service (see r 6460 (Substituted service)). (4) For an originating application for which there are no defendants, the court may order that the application be served on anyone the court directs. an originating application in which the relief sought is a declaration of right

Rule 62 (5) The court may give a direction under subrule (1) or (4) on application or its own initiative. direction.

62 When originating application must be served (1) An originating application must be served at least 5 days before the return date for the application. (2) However, subrule (1) does not apply if— (a) a territory law allows the originating application to be heard and decided without being served; or (b) the plaintiff proposes in the originating application that it be decided without a hearing; or (c) another time is provided for under these rules; or (d) the court otherwise orders. (3) If the court makes an order under subrule (2) (d), a sealed copy of the order must be served with the application.

63 What happens if originating application not served in time (a) an originating application is served on a defendant; but (b) it is not served at least 5 days before the return date for the

Rule 64 (2) The court may only hear and decide the application on the return date if the court considers it just to hear and decide the application on that date and— (a) the court is satisfied that the defendant will suffer no significant prejudice if it hears and decides the application on the return date; or (b) the defendant agrees to the court hearing and deciding the application on the return date. (3) The court may make an order on the return date if the plaintiff gives an undertaking acceptable to the court. (4) On application by a person affected by the order, the court may set aside the order. Note Pt 6.2 (Applications in proceedings) applies to an application to set aside

64 Originating application—filing and service of supporting affidavits (1) The supporting affidavits for an originating application must be filed in the court and a stamped copy then served with the application. (2) However, the court may give leave for an affidavit not served as required by subrule (1) to be relied on at the hearing.

70 Originating process to be sealed The registrar must seal an originating process and any filed copies of Note The registrar may reject an originating process that is filed (see r 6140

Rule 71

71 Numbering etc of proceedings (1) When an originating process is sealed, the registrar must give a distinguishing number or other unique identifier to the proceeding started by the process. (2) The registrar must ensure that the originating process and each copy sealed under rule 70 is endorsed with— (b) the date when— (i) the process was filed in the court; or (ii) if the proceeding was started by an oral originating application—the application was made. Note See r 37 (When oral originating application may be made in Supreme Court).

72 Originating process—solicitor’s statement about filing (a) it appears from an originating process that the plaintiff is represented by a solicitor; and (b) a defendant to the proceeding asks the solicitor in writing whether the process was filed by the solicitor. (2) The solicitor must tell the defendant in writing whether the process was filed in the court by the solicitor. (3) If the solicitor tells the defendant that the solicitor did not file the process, the defendant may apply to the court to stay the proceeding. Note Pt 6.2 (Applications in proceedings) applies to an application to stay the (4) On the defendant’s application, the court may stay the proceeding.

Rule 73

73 Defendant taken to be served by filing notice of intention to respond or defence (1) This rule applies to a defendant in a proceeding if the defendant has not been served with the originating process for the proceeding, but files a notice of intention to respond (other than a conditional notice of intention to respond) or a defence. (2) The defendant is taken to have been served with the originating process on the day the defendant files the notice of intention to

74 Originating process—duration and renewal (1) An originating process is valid for service for 1 year starting on the day it is filed in the court. (2) The plaintiff may apply to the court to renew the originating process if the process has not been served on the defendant. Note Pt 6.2 (Applications in proceedings) applies to an application to renew (3) If the court is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the originating process, the court may renew the process for a further period, of not longer than 6 months at a time, starting on the day after the day the process would otherwise end. (4) The originating process may be renewed whether or not it is valid for (5) Before an originating process renewed under this rule is served, it must be stamped and show the period for which the process is renewed. (6) Despite subrule (1), for any time limit (including a limitation period), an originating process that is renewed is taken to have started on the day the process was filed in the court.

Rule 75 (7) Failing to serve an originating process within the time limited by these rules does not prevent the plaintiff from starting a fresh proceeding by filing another originating process.

75 When proceeding taken to be dismissed (1) A proceeding is taken to be dismissed in relation to a defendant if— (a) at the end of 1 year after the day the originating process is issued, an affidavit of service of the process on the defendant has not been filed in the court; or (b) at the end of 1 year after the day the originating process is served on the defendant— (i) a notice of intention to respond or defence has not been filed in the court by the defendant; and (ii) judgment has not been entered in relation to the defendant; and (iii) the proceeding has not otherwise been disposed of in relation to the defendant. (2) Also, a proceeding is taken to be dismissed in relation to a party if the party does not take a step in the proceeding before the end of 1 year after the day the last step was taken in the proceeding. (3) For subrule (2), the filing in the court of a notice of intention to proceed in relation to a proceeding is taken to be a step in the Note See approved form 2.84 (Notice of intention to proceed) AF2008-3.

Rule 76 (4) A proceeding is taken to be dismissed under subrule (1) or (2) on the day after the day the relevant 1-year period mentioned in the subrule There is 1 plaintiff and 1 defendant to a proceeding. The defendant takes a step in the proceeding on 1 July 2006. If the plaintiff fails to take the next step on or before 1 July 2007, the proceeding is taken to be dismissed on 2 July 2007. (5) If a proceeding is taken to be dismissed in relation to a defendant under subrule (1) or (2), the plaintiff must pay the costs of the (6) Unless the court otherwise orders, subrule (5) does not apply if the proceeding is reinstated under rule 76.

76 Reinstating dismissed proceeding (1) A person whose proceeding has been dismissed under rule 75 may apply to the court to reinstate the proceeding. Note Pt 6.2 (Applications in proceedings) applies to an application to reinstate (2) The court may reinstate the proceeding if it is in the interests of justice to reinstate the proceeding. (3) A proceeding that has been dismissed under rule 75 (2) is reinstated if, before the end of 1 year after the day the proceeding is dismissed, a party to the proceeding files a document in the proceeding. (4) The party filing the document must serve a copy of the document on each other active party to the proceeding not later than 3 days after the day the document is filed. Note Active party—see the dictionary. (5) For any time limit (including a limitation period), a proceeding that is reinstated is taken to have started on the day the originating process for the proceeding was filed in the court and is taken never to have been dismissed.

Rule 100 Part 2.3 Notice of intention to respond and defence Division 2.3.1 Notice of intention to respond and defence—general 100 No step without notice of intention to respond or defence (1) Except with the court’s leave, a defendant to an originating claim may take a step in a proceeding only if the defendant has filed in the (a) a notice of intention to respond; or (b) if the defendant chooses not to file a notice of intention to respond—a defence. Note 2 A defendant who proposes to challenge the court’s jurisdiction or to assert an irregularity must file a conditional notice of intention to respond (see r 111). Note 3 A defendant who intends to take no active part in a proceeding must file a notice of intention to respond (see r 106). Note 4 See • approved form 2.8 (Notice of intention to respond) AF2021-23 • approved form 2.9 (Defence and counterclaim) AF2015-28.

Rule 101 (2) Subject to rule 106 (Defendant may submit to judgment by notice of intention to respond), if a defendant to an originating claim files an unconditional notice of intention to respond in the court, the defendant must also file a defence. Note 1 Rule 111 (Conditional notice of intention to respond) provides that, if a defendant files a conditional notice of intention to respond, the defendant must apply for an order under r 40 (Setting aside originating process etc). If the defendant fails to apply, or the defendant applies but the application is refused, the conditional notice of intention to respond becomes an unconditional notice of intention to respond, and the defendant must file a defence. Note 2 See div 2.11.3 (Default by defendant) for the possible consequences of not filing a notice of intention to respond or defence. Note 3 See also r 279 (Person with legal disability—effect of no notice of intention to respond or defence). (3) Except with the court’s leave, a defendant to an originating application may take a step in a proceeding only if the defendant has filed in the court a notice of intention to respond.

101 Notice of intention to respond or defence—details to be (1) A notice of intention to respond filed by the defendant must state— (d) if any particulars of the defendant stated in the originating process are incorrect—the correct particulars. Note 1 See approved form 2.8 (Notice of intention to respond) AF2021-23. Note 2 Address for service is defined in the dictionary.

Rule 102 (2) If the defendant to an originating claim chooses not to file a notice of intention to respond, but files a defence, the defence must state— (d) if any particulars of the defendant stated in the originating process are incorrect—the correct particulars. Note See approved form 2.9 (Defence and counterclaim) AF2015-28. (3) If the defendant includes corrected particulars of the defendant’s name in the notice of intention to respond or defence, the court may amend the originating process accordingly.

102 Notice of intention to respond or defence—filing and (1) In a proceeding started by an originating claim, a defendant must file any notice of intention to respond, defence, or notice of intention to respond and defence, not later than the later of the following: (a) 28 days after the day the claim is served on the defendant; (b) if the defendant makes an unsuccessful application under rule 40 (Setting aside originating process etc) to have the claim set aside—7 days after the day the application is refused. (2) However, if, before the defendant files a defence, an application for summary judgment under rule 1146 (Summary judgment—for plaintiff) is served on the defendant, but the court does not on the application dispose of all the claims for relief against the defendant, the court may set a time within which the defendant must file a Note Pt 6.2 (Applications in proceedings) applies to an application to set a

Rule 103 (3) In a proceeding started by an originating application, a defendant must file a notice of intention to respond not later than the later of the (a) on or before the return date for the application; (b) if the defendant makes an unsuccessful application under rule 40 to have the originating application set aside—7 days after the day the application is refused. (4) The registrar must seal the notice of intention to respond or defence and any filed copies of the notice or defence. Note The registrar may reject a notice of intention to respond or defence that and r 6141 (Rejecting documents—inconvenient address for service). (5) The defendant must serve a sealed copy of the notice of intention to respond or defence on the plaintiff at the plaintiff’s address for service on the day it is filed in the court.

103 Notice of intention to respond or defence—late filing or (1) A defendant may file and serve a notice of intention to respond or defence at any time before judgment, even if the notice or defence is served or filed after the time limited by rule 102. Note For a defendant to an originating claim, see div 2.11.3 (Default by defendant) for the possible consequences of not filing within the time limited for filing.

Rule 104 (2) If a defendant to an originating claim files and serves a notice of intention to respond after the time limited by rule 102, the defendant is not entitled to any extra time for filing and serving a defence or for any other purpose, unless the court otherwise orders.

104 Ground of defence arising after defence filed etc (1) This rule applies if a ground of defence to an originating claim arises (a) a defendant files a defence; or (b) the time limited by rule 102 (1) (Notice of intention to respond or defence—filing and service) for a defendant to file a defence (2) The defendant may file a further defence not later than 7 days after the day the ground of defence arises or at a later time with the court’s (3) The registrar must seal the further defence and any filed copies of the further defence. Note The registrar may reject a further defence that is filed (see r 6140 (Rejecting documents—noncompliance with rules etc). (4) The defendant must serve a sealed copy of the further defence on the plaintiff at the plaintiff’s address for service on the day it is filed in

Rule 105

105 Defence—reliance on defence not disclosed A defendant in a proceeding started by originating claim may rely at the hearing of the proceeding on a ground of defence not stated in a defence or further defence filed and served by the defendant only if— (a) the plaintiff agrees; or (b) the court gives leave.

106 Defendant may submit to judgment by notice of intention to respond (1) This rule applies if a defendant in a proceeding intends to— (a) submit to the orders of the court; but (b) take no active part in the proceeding. (2) The defendant must— (a) file a notice of intention to respond; and (b) include in the notice a statement to the effect that the defendant submits to all orders sought and to judgment in relation to all claims made. (3) However, the defendant may add to the statement words to the effect that the defendant does not submit in relation to costs. Example of addition except as to costs

Rule 106 (4) Except with the court’s leave, a defendant who has filed a notice of intention to respond that includes the statement mentioned in subrule (2) (b) may not file a defence or affidavit or take any other step in the proceeding. (5) The court may order that a plaintiff pay a defendant’s costs as a submitting party if the defendant— (a) files a notice of intention to respond that includes the statement mentioned in subrule (2) (b); and (b) takes no active part in the proceeding. (6) If— (a) a defendant files a notice of intention to respond; and (b) the defendant is entitled to include in the notice the statement mentioned in subrule (2) (b), but does not include the statement; and (c) the defendant takes no active part in the proceeding; the court may order that a plaintiff pay the defendant’s costs, but, unless it otherwise orders, the amount awarded for the costs must not be more than the amount that could have been awarded if the statement had been included in the notice. (7) The court may make an order under subrule (5) or (6) on application by the defendant or on its own initiative. under r (5) or r (6). (8) If a plaintiff has been ordered to pay costs under subrule (5) or (6), the costs must be included in any costs payable to the plaintiff by any other defendant or opponent of the plaintiff in the proceeding.

Rule 107

107 Notice of intention to respond or defence—several defendants with same solicitor (1) This rule applies if 2 or more defendants in the same proceeding are represented by the same solicitor at the same time. (2) The names of all the defendants may be included in a single notice of intention to respond or defence.

108 Notice of intention to respond or defence—person sued under partnership name (1) This rule applies if a proceeding is started against a person under a partnership name. Note See also div 2.4.10 (Partnerships). (2) Any notice of intention to respond or defence must not be filed in the partnership name. (3) The person may file a notice of intention to respond or defence only in the person’s own name. (4) If the person files a notice of intention to respond or defence in the person’s own name— (a) the proceeding continues in the partnership name; and (b) the person must also file a statement of the names and home addresses of all the people who were carrying on business under the partnership name when the cause of action arose (a partnership statement). (5) The court may order that a notice of intention to respond or defence filed by the person be struck out if the person fails to comply with subrule (4) (b).

Rule 109 (6) Subrules (4) (b) and (5) do not apply if a partnership statement has been filed in the proceeding by another defendant who is a partner in the partnership.

109 Notice of intention to respond or defence—person incorrectly served as partner (1) If a proceeding is started against a person under a partnership name, the person may file a conditional notice of intention to respond (a) the person files the notice because the person was served as a partner; and (b) the person denies being a partner at the relevant time or being liable as a partner. (2) On application, the court may, by order— (a) set aside service of the originating process on the person on the ground that the person is not a partner or is not liable as a partner; or (b) set aside a conditional notice of intention to respond on the ground that the person is a partner or is liable as a partner. (3) The court may give directions about how to decide the liability of the person or the liability of the partners. (4) This rule does not limit rule 111 (Conditional notice of intention to respond).

Rule 110

110 Notice of intention to respond or defence—person sued under business name (1) This rule applies if a proceeding is started against a person in a business name that is not the person’s own name, whether or not the business name is registered under the Business Names Registration Act 2011 (Cwlth). Note See also div 2.4.11 (Business names). (2) Any notice of intention to respond or defence must not be filed in the business name. (3) The person may file a notice of intention to respond or defence only in the person’s own name. (4) If the person files a notice of intention to respond or defence in the person’s own name— (a) the proceeding continues in the business name until the amendments mentioned in rule 292 (3) (Business names— amendment about parties) are made; and Note Rule 292 (3) provides that the plaintiff must make the amendments necessary for the proceeding to be continued against a named defendant and not in the business name. (b) the person must also file a statement of the names and home addresses of all the people who were carrying on business under the business name when the cause of action arose (a business name statement). (5) The court may order that a notice of intention to respond or defence filed by the person be struck out if the person fails to comply with subrule (4) (b). (6) Subrules (4) (b) and (5) do not apply if a business name statement has been filed in the proceeding by another defendant who is carrying on business under the business name.

Rule 111

111 Conditional notice of intention to respond (1) If a defendant proposes to challenge the court’s jurisdiction or to assert an irregularity, the defendant must file a conditional notice of Note See also r 109 (Notice of intention to respond or defence—person incorrectly served as partner). (2) If a defendant files an unconditional notice of intention to respond or defence, the defendant is taken to have submitted to the court’s jurisdiction, and waived any irregularity in the proceeding or defect in service of the originating process. (3) If a defendant files a conditional notice of intention to respond, the defendant must apply for an order under rule 40 (Setting aside originating process etc) not later than 28 days after the day the notice is filed. (4) If the defendant does not apply for an order under rule 40 before the end of the 28-day period, or the defendant applies but the application is refused, the conditional notice of intention to respond becomes an unconditional notice of intention to respond. (5) If the conditional notice of intention to respond becomes an unconditional notice of intention to respond and the proceeding was started by originating claim, the defendant must file a defence not later than 14 days after the day the conditional notice becomes an unconditional notice.

Notice of intention to respond and defence—proceedings in Supreme Division 2.3.2 Rule 150 Division 2.3.2 Notice of intention to respond and defence—proceedings in Supreme 150 Application—div 2.3.2 This division applies only in relation to a proceeding in the Supreme Court for the possession of land.

151 Proceeding for possession of land—leave to file defence etc (1) If a person who is in possession of the land, or part of it, (either directly or by a tenant) is not named in the originating process for the proceeding, the person may apply to the Supreme Court for leave to file a notice of intention to respond or defence. (2) The application must be supported by an affidavit— (a) showing the person is in possession of the land or part of it; and (b) stating how the person is in possession. (3) The court may give leave for the person to file the notice or defence. Note Rule 6902 (Leave may be given on conditions) provides that, if the court (4) If the person is in possession of only part of the land, the leave may be limited to that part of the land.

152 Proceeding for possession of land—filing defence etc (1) If the court gives a person leave under rule 151 to file a notice of intention to respond or defence, the person must file the notice or defence— (a) not later than 7 days after the day the leave is given; or

Division 2.3.2 Notice of intention to respond and defence—proceedings in Supreme Rule 153 (b) if the court makes an order about when it must be filed—in • approved form 2.8 (Notice of intention to respond) AF2021-23. • approved form 2.9 (Defence and counterclaim) AF2015-28. (2) If the person files the notice or defence as lessor of the land, the person must include in the notice or defence a statement that the person is responding to the claim as lessor. (3) On the filing by a person of a notice of intention to respond or defence under this rule, the person is taken, for all purposes, to be a defendant

153 Proceeding for possession of land—service of defence etc (1) If a person files a notice of intention to respond or defence under rule 152, the person must serve the following (the relevant documents) on every other active party to the proceeding: (a) a sealed copy of the notice or defence; (b) a stamped copy of the affidavit mentioned in rule 151 (2) (Proceeding for possession of land—leave to file defence etc). (2) The person must serve the relevant documents— (a) not later than 7 days after the day the notice or defence is filed; or (b) if the court makes an order about when they must be served—in

Including causes of action Division 2.4.1 Rule 200 Division 2.4.1 Including causes of action

200 Including causes of action (1) A plaintiff may, whether seeking relief in the same or different capacities, include in the same proceeding as many causes of action as the plaintiff has against a defendant. (2) However, for the Magistrates Court, causes of action may be included in the same proceeding only if the total amount claimed in the proceeding is not more than the maximum amount for which the court has jurisdiction. (3) Also, a claim by a trustee in bankruptcy must not be included with a claim by the trustee in any other capacity except with the court’s (4) This rule is subject to rule 202 (Including causes of action inconveniently etc).

201 Joint and separate claims Claims by plaintiffs jointly may be included with claims by them or any of them separately against the same defendant.

202 Including causes of action inconveniently etc (1) This rule applies if the court considers that including a cause of action in a proceeding— (a) may unfairly prejudice another party; or (b) may delay the conduct of the proceeding; or (c) is otherwise inconvenient.

Rule 210 (a) order separate trials; or (b) make any other order (including about costs) it considers Examples for par (b) 1 an order for costs in favour of a party for attending a part of a trial in which the party has no interest 2 an order relieving a party from attending a part of a trial in which the party has no interest 3 an order staying the proceeding against a defendant until the trial between the plaintiff and another defendant is decided, on condition that the defendant is bound by the findings of fact in the trial against the other defendant (3) The court may make an order under this rule on application by a defendant to the proceeding or on its own initiative.

210 Necessary parties Each person whose presence as a party is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in a proceeding must be included as a party to the proceeding.

211 Including parties—common issues of law or fact (1) Two or more people may be included as plaintiffs or defendants in a (a) if— (i) separate proceedings by or against each of them may give rise to a common issue of law or fact; and

Rule 212 (ii) any of the rights to relief claimed in the proceeding (whether joint, several or alternative) are in relation to, or arise out of, the same transaction or event or series of transactions or events; or (b) if the court orders that they be included. (2) A person included as a plaintiff under subrule (1) must not start a proceeding against the defendant in relation to the same cause of action unless the court gives leave. (3) If an application for an order under subrule (1) (b) or leave under subrule (2) is made during the proceeding, the application must be made in accordance with part 6.2 (Applications in proceedings). (4) For the Supreme Court, if an application for an order under subrule (1) (b) or leave under subrule (2) is made before the proceeding starts, the application must be made by originating

212 Including parties—defendants may be sued jointly, severally, or in alternative (1) If a plaintiff claims a right to relief against a person in a proceeding (whether jointly, severally or in the alternative), the person may be included as a defendant in the proceeding. (2) The court may enter judgment against any defendant found to be liable in accordance with the defendant’s proportionate liability. (3) This rule is subject to the Civil Law (Wrongs) Act 2002, chapter 7A (Proportionate liability).

213 Including parties—joint entitlement (1) If a plaintiff seeks relief to which someone else is entitled jointly with the plaintiff, everyone entitled to the relief must be parties to the

Rule 214 (2) A person entitled to seek relief who does not agree to be a plaintiff must be included as a defendant. (3) This rule does not require a person to be included if another law provides that the person need not be included or must not be included. The Bankruptcy Act 1966 (Cwlth), s 62 (Actions on joint contracts) provides that if a bankrupt is a contractor in relation to a contract jointly with someone else or other people, the person or people may sue or be sued in relation to the contract without joining the bankrupt.

214 Including parties—joint or several liability (1) If a plaintiff seeks relief against a defendant who is liable jointly and severally with someone else, the other person need not be made a defendant to the proceeding. (2) If people are liable jointly, but not severally, and a plaintiff seeks relief in a proceeding against some but not all of them, the court may stay the proceeding until the others are included as defendants. Note Pt 6.2 (Applications in proceedings) applies to an application for a stay.

215 Including parties—plaintiff in doubt about defendant etc Two or more people may be included as defendants in a proceeding if— (a) there is doubt about— (i) the person from whom the plaintiff is entitled to relief; or (ii) the respective amounts for which each may be liable; or (b) they have all caused damage or loss to the plaintiff, whether or not there is a factual connection between the claims apart from the involvement of the plaintiff.

Rule 216

216 Including defendants—identical interest in relief unnecessary (1) It is not necessary for every defendant to be interested in all the relief sought or in every cause of action included in a proceeding. (2) However, the court may make any order it considers appropriate to stop the defendant being prejudiced or put to expense by being required to attend any proceeding in which the defendant has no interest.

217 Including parties inconveniently etc (1) If the court considers that including a party to a proceeding may unfairly prejudice another party, may delay the conduct of the proceeding or is otherwise inconvenient, it may— (a) order separate trials; or (b) make any other order (including about costs) it considers Examples for par (b) 1 an order for costs in favour of a party for attending a part of a trial in which the party has no interest 2 an order relieving a party from attending a part of a trial in which the party has no interest 3 an order staying the proceeding against a defendant until the trial between the plaintiff and another defendant is decided, on condition that the defendant is bound by the findings of fact in the trial against the other defendant (2) The court may make an order under this rule on application by a party to the proceeding (other than a plaintiff) or on its own initiative.

Rule 218

218 Including parties—parties incorrectly included or not Despite rule 213 (Including parties—joint entitlement), the court may decide a proceeding even if a person is incorrectly included or not included as a party and may deal with the proceeding as it affects the rights of the parties before it.

219 Counterclaim or set-off when co-plaintiff wrongly (a) a person has been incorrectly or unnecessarily included as a co- plaintiff in a proceeding; and (b) the defendant has set up a counterclaim or set–off. (2) The defendant may get the benefit of the counterclaim or set-off by proving the claim or set-off against the parties other than the co-plaintiff. (3) The defendant’s entitlement under subrule (2) is not affected by— (a) the inclusion of the co-plaintiff; or (b) any proceeding resulting from the inclusion.

220 Court may include party if appropriate or necessary (1) The court may order that a person be included as a party to a proceeding if— (a) the person ought to have been included as a party; or (b) including the person as a party is necessary to enable the court to adjudicate effectively and completely on all issues in dispute (2) The court may make an order under this rule— (a) at any stage of the proceeding; and

Rule 221 (b) on application by the person or a party to the proceeding or on its own initiative; and (c) whether the person to be included should be a plaintiff or

221 Plaintiffs may be included or substituted (1) This rule applies if a proceeding has been started in the name of the wrong person as plaintiff or there is doubt whether the proceeding has been started in the name of the right person as plaintiff. (2) The court may order that someone else, or other people, be included or substituted as plaintiff if satisfied— (a) that starting the proceeding in the wrong name was a genuine mistake; and (b) that it is necessary to enable the court to adjudicate effectively and completely on all issues in dispute in the proceeding.

222 Inclusion or substitution as plaintiff requires agreement A person may be included or substituted as a plaintiff in a proceeding only if the person agrees to be included or substituted.

Rule 223

223 Including parties—procedure (1) An application by a person to be included as a party to a proceeding must be supported by an affidavit showing the person’s interest in— (a) the issues in dispute in the proceeding; or (b) an issue in dispute to be decided between the person and a party (2) An application to include a person as a defendant must be served on all active parties to the proceeding and on the person. Note 1 Pt 6.2 (Applications in proceedings) applies to an application mentioned in this rule. Note 2 Active party is defined in the dictionary.

224 Including parties—inclusion to recover costs (1) A party must not include someone else as a party to a proceeding for the purpose of applying for costs against the person. (2) This rule does not apply if— (a) the person would otherwise be an appropriate or necessary party to the proceeding; or (b) the party includes the person by way of a third-party notice in relation to a claim for costs against the party.

230 Removing parties (1) The court may order that a person be removed as a party to a proceeding if the person— (a) has been inappropriately or unnecessarily included as a party; or (b) has stopped being an appropriate or necessary party.

Changing parties Division 2.4.3 Rule 231 (2) The court may make an order under this rule— (a) at any stage of the proceeding; and (b) on application by a party to the proceeding or on its own initiative; and (c) whether the person to be removed is a plaintiff or defendant.

231 Party becomes bankrupt, dies or becomes person with mental disability (a) a party to a proceeding becomes bankrupt, or dies, during the proceeding, but a cause of action in the proceeding survives; or (b) a party to a proceeding becomes a person with a mental disability during the proceeding. Note Person with a mental disability is defined in the dictionary. (2) The proceeding is not suspended and does not end. (3) However, a person must not take a further step in the proceeding for or against the party unless— (a) the court gives the person leave to continue the proceeding; and (b) the person complies with the conditions (if any) of the leave. and an order or directions under this rule. (4) The court may make any order it considers appropriate about including, removing, substituting or rearranging parties.

Rule 231 (5) However, if someone is made a party in place of a party who has become bankrupt or died, but the person is already a party on the other side of the proceeding, the court must order the person to cease to be a party on the other side. (6) The court may make an order under this rule— (a) on application by a party to the proceeding or anyone to whom an interest or liability in the proceeding has passed; or (7) An application for an order under this rule must be served on everyone who could be affected by the order. (8) Before making an order under this rule because a party has died, the court may require notice to be given to— (a) an insurer of the deceased party who has an interest in the (b) anyone else who has an interest in the deceased party’s estate. (9) An insurer or other person given notice is entitled to be heard on the hearing of the application. (10) A sealed copy of an order made under this rule must be served on all parties, including a party (other than any applicant for the order) who has been included, removed or substituted. (11) The court may give directions about the service of the order. (12) If— (a) a party who has died does not have a personal representative and the court orders that a person be substituted as a party for the (b) a grant of probate or administration is later made; the person must give the personal representative a copy of all documents in the person’s possession relating to the proceeding.

Changing parties Division 2.4.3 Rule 232

232 Amending or setting aside order for new party made on death etc of party (1) If a person is made a party under rule 231 (4), the person may apply to have the order making the person a party amended or set aside. (2) The application must be made not later than 14 days after— (a) if the person is a person with a legal disability who does not have a litigation guardian—the day a litigation guardian is appointed; or (b) in any other case—the day a sealed copy of the order is served on the person. Note 1 Person with a mental disability is defined in the dictionary. Note 2 Div 2.4.9 deals with the appointment of a litigation guardian. (3) On application under this rule, the court may amend or set aside the (4) If the person made a party under rule 231 (4) is a person with a legal disability who does not have a litigation guardian, the order under the subrule does not apply to the person during the period an application can be made to the court under this rule.

233 Failure to proceed after death of party (1) This rule applies to a proceeding if— (a) a party to the proceeding dies during the proceeding, but a cause of action in the proceeding survives the party’s death; and (b) an order to substitute a person for the deceased party has not been made at the end of 3 months after the day of the death.

Division 2.4.4 Included or changed parties—future conduct of proceedings Rule 240 (2) If the deceased party is a plaintiff, the court may order that the proceeding in relation to the cause of action be dismissed in relation to the plaintiff, and the defendant have judgment on any counterclaim against the plaintiff, if an application to substitute a person for the deceased party is not made within a stated time. (3) If the deceased party is a defendant, the court may order that judgment be entered for the plaintiff against the defendant, and any counterclaim by the defendant be dismissed, if an application to substitute a person for the deceased party is not made within a stated (4) An application for an order under this rule may be made by anyone to whom the deceased party’s interest or liability in relation to the cause of action has passed (whether or not a party to the proceeding). Division 2.4.4 Included or changed parties—future conduct of proceedings

240 Application—div 2.4.4 This division applies if the court makes an order under division 2.4.2 (Including and substituting parties) or division 2.4.3 (Changing parties) in a proceeding.

241 Included or substituted defendant—filing and service of amended originating process If the court orders that a person be included or substituted as a defendant in the proceeding— (a) the plaintiff must— (i) file an amended originating process in the court; and

Included or changed parties—future conduct of proceedings Division 2.4.4 Rule 242 (ii) serve the person with a sealed copy of the amended originating process in accordance with these rules as if the person were an original defendant to be served with the originating process; and Note An originating process must be served personally, unless otherwise provided by these rules (see r 54 (2) and r 61 (3)). See pt 6.8 (Service) about other ways an originating process may be served. (b) the person must file a notice of intention to respond or defence as required by the order.

242 Included or substituted parties—date proceeding taken to start (1) This rule applies if the court orders that a person be included or substituted as a party in the proceeding. (2) The date the proceeding starts in relation to the person is taken to be— (a) the date when the order is made; or (b) if another date is stated in the order—that date. (3) However, an earlier date must not be stated in the order if the inclusion or substitution of the person on that date would bring the start of the proceeding within a limitation period applying to the

243 Included or substituted parties—effect of action previously taken in proceeding (1) Unless the court otherwise orders— (a) if the court orders that a person be included as a party in the proceeding—the proceeding continues as if the person were an original party to the proceeding; and

Division 2.4.4 Included or changed parties—future conduct of proceedings Rule 244 (b) if the court orders that a person be substituted for a party or former party in the proceeding—everything previously done in the proceeding has the same effect in relation to the new party as it had in relation to the previous party. (2) If the previous party was a defendant, subrule (1) (b) does not apply to the following: (a) the filing of a notice of intention to respond or defence by the previous party; (b) an admission made by the previous party; (c) an order for costs in favour of, or against, the previous party.

244 Included or changed parties—other orders about future conduct of proceeding The court may also make any order it considers appropriate for the future conduct of the proceeding, including, for example, an order about— (a) serving the order, and other documents; and (b) amending documents; and (c) filing a notice of intention to respond or defence by a person included or substituted as a defendant.

Representation in proceedings for personal injuries Division 2.4.4A Rule 245 Division 2.4.4A Representation in proceedings for personal injuries

245 Separate representation of defendant for insurer’s period on risk (1) A defendant in a proceeding in relation to a personal injury claim may be separately represented in the proceeding for each insurer on risk in relation to the claim. (2) These rules apply to the defendant as if, for each separate representation, the defendant were a separate party. (3) A notice of intention to respond or, if a notice is not filed, a defence, filed in relation to the separate representation must state the risk to which the notice or defence relates. Division 2.4.5 Proceedings under Civil Law (Wrongs) Act 2002, pt 3.1

250 One proceeding for benefit of members of deceased person’s family (1) Not more than 1 proceeding under the Civil Law (Wrongs) Act 2002, part 3.1 (Wrongful act or omission causing death) may be started against a person in relation to a death. (2) The proceeding must be started by the deceased person’s personal representative for the benefit of the members of the person’s family (the beneficiaries) who suffered damage or loss because of the death. (3) However, if the proceeding has not been started by the personal representative at the end of 6 months after the day of the death, any 1 or more of the beneficiaries may start the proceeding.

Division 2.4.5 Proceedings under Civil Law (Wrongs) Act 2002, pt 3.1 Rule 251 (4) The proceeding mentioned in subrule (3) must be for the benefit of the same people and subject to the same provisions and procedures (with any necessary changes) as if it were started by the deceased person’s personal representative for the benefit of the beneficiaries.

251 Orders in proceedings for compensation to relatives in death claims (a) a proceeding under the Civil Law (Wrongs) Act 2002, part 3.1 (Wrongful act or omission causing death) is started in the court; and (b) the court is satisfied that a person whose name is not included in the names of the people for whose benefit the proceeding is stated to have been started is a person whose name should have been included; the court may order that the proceeding continue as if the name of the person had been included. (2) The court may make an order under subrule (1)— (a) on application by the person; or (3) In a proceeding under the Civil Law (Wrongs) Act 2002, part 3.1, the court may order that any 1 or more of the people for whose benefit the proceeding has been started must be separately represented by a legal practitioner. (4) If the court makes an order under this rule, it may, at the same time or later, make the orders about procedure in the proceeding that it

Representation—trustees and personal representatives Division 2.4.6 Rule 255 (5) The powers of the court under this rule are additional to any other powers of the court. Division 2.4.6 Representation—trustees and personal representatives

255 Application—div 2.4.6 This division does not apply to a proceeding to which division 2.4.5 (Proceedings under Civil Law (Wrongs) Act 2002, pt 3.1) applies.

256 Representation—by trustees and personal (1) A proceeding in relation to a trust, or a deceased person’s estate, may be started or continued by or against the trustees, or personal representatives, without including anyone with a beneficial interest in or claim against the trust or estate (a beneficiary). (2) Subrule (1) has effect despite rule 213 (Including parties—joint entitlement). (3) In a proceeding mentioned in subrule (1)— (a) the trustees or personal representatives are taken to represent every beneficiary; and (b) an order made in the proceeding is binding on every beneficiary. (4) However, the court may order that an order does not bind a beneficiary if satisfied that the trustee or personal representative did not in fact represent the beneficiary. (5) Also, the court may, at any stage in the proceeding, order that a beneficiary be made a party to the proceeding in addition to or instead of an existing party.

Division 2.4.6 Representation—trustees and personal representatives Rule 257 (6) This rule applies to trustees and personal representatives in a proceeding to enforce a security by foreclosure or otherwise.

257 Representation—trustees and personal representatives must be parties (1) In a proceeding in relation to a deceased person’s estate, all personal representatives must be parties. (2) In a proceeding in relation to a trust, all trustees must be parties. (3) In a proceeding started by trustees or personal representatives, a trustee or personal representative who does not agree to being included as a plaintiff must be made a defendant.

258 Representation—beneficiaries and claimants (1) In a proceeding in relation to a deceased person’s estate, everyone having a beneficial interest in or claim against the estate need not be parties, but the plaintiff may make parties of any of them the plaintiff (2) In a proceeding in relation to a trust, everyone having a beneficial interest under the trust need not be parties, but the plaintiff may make parties of any of them the plaintiff considers appropriate. (3) This rule has effect despite rule 213 (Including parties—joint entitlement).

259 Representation—proceeding about administration of deceased person’s estate or trust property (1) If 2 or more people are or may be interested in or affected by a proceeding in relation to either or both of the following matters, the court may appoint 1 or more of them to represent all or some of them: (a) the administration of a deceased person’s estate;

Representation—trustees and personal representatives Division 2.4.6 Rule 260 (b) property subject to a trust. appointment. (2) The court must not appoint a person under subrule (1) unless satisfied— (a) that the interested or affected people (or some of them) cannot, or cannot readily, be identified; or (b) that the interested or affected people (or some of them), although identified, cannot be found; or (c) that, although all of the interested or affected people have been identified and found, it is appropriate for a representative to be appointed to represent all or some of them. (3) If the court makes an order under subrule (1) appointing 2 or more people, it may give the conduct of the proceeding, or any part of the proceeding, to the person it considers appropriate. (4) For this rule, people may be taken to have an interest or liability even if— (a) in relation to 1 or more of them—the interest or liability is a contingent or future interest or liability; or (b) 1 or more of them is an unborn child. (5) This rule does not limit the operation of rule 261 (Representation— interests of deceased person’s estate).

260 Representation—orders bind represented people in estate or trust proceeding (1) This rule applies if a person (the appointed person) has been appointed under rule 259 (1) to represent another person or other people in a proceeding.

Division 2.4.6 Representation—trustees and personal representatives Rule 261 (2) An order made in the proceeding is binding on everyone represented by the appointed person as if the represented person were a party to

261 Representation—interests of deceased person’s estate (1) This rule applies to a proceeding if the court is satisfied— (a) that a deceased person’s estate has an interest in or is affected by the proceeding, but is not represented in the proceeding; or (b) that the personal representative of the deceased person has an interest in the proceeding adverse to the interests of the deceased person’s estate. (a) order that the proceeding continue in the absence of the personal representative; or (b) by order, appoint a personal representative for the deceased person’s estate for the proceeding. (3) The court may make an order under this rule on the application of a person interested in the deceased person’s estate or on its own (4) The court must not appoint a person under subrule (2) (b) unless the person agrees to the appointment. (5) If the court orders that the proceeding continue in the absence of a personal representative for the deceased person’s estate, any order made under this rule, and any order subsequently made in the proceeding, is binding on the estate as if a personal representative were a party to the proceeding.

Representation—numerous concurrent interests Division 2.4.7 Rule 265 (6) Before making an order under this rule on application, the court may order that notice of the application be given to anyone with an interest in the estate it considers appropriate. Division 2.4.7 Representation—numerous concurrent interests

265 Application—div 2.4.7 This division does not apply to a proceeding to which either of the following divisions applies: (a) division 2.4.5 (Proceedings under Civil Law (Wrongs) Act 2002, pt 3.1); (b) division 2.4.6 (Representation—trustees and personal representatives).

266 Representation—numerous concurrent interests (1) If numerous people have the same interest or liability in a proceeding, the proceeding may be started and, unless the court otherwise orders, continued by or against any 1 or more of them as representing all of them. (2) At any stage in the proceeding, the plaintiff may apply to the court for an order appointing any 1 or more of numerous defendants, or other people whom the defendants represent in the proceeding, to represent all defendants in the proceeding. (3) If the court appoints a person under subrule (2) who is not a defendant in the proceeding, it must include the person as a defendant in the proceeding under rule 220 (Court may include party if appropriate or necessary).

Rule 267 (4) If the court appoints 2 or more people under subrule (2), it may give the conduct of the proceeding, or any part of the proceeding, to the person it considers appropriate.

267 Orders in div 2.4.7 proceeding bind represented people (1) An order made in a proceeding against or in favour of a party who represents others under this division— (a) is binding on everyone represented by the party in the proceeding; but (b) is not enforceable against or by a person who is not a party to the proceeding without the court’s leave. (2) An application for leave under subrule (1) (b) must be served on the person against whom the enforcement of the order is sought as if the application were an originating process. (3) This rule does not prevent a person against whom an order is sought to be enforced from disputing liability because of circumstances peculiar to the person.

270 Consolidation etc of proceedings (1) This rule applies if, in relation to 2 or more proceedings, it appears to the court that— (a) a common issue of law or fact arises; or (b) the relief sought in each of the proceedings is in relation to, or arises out of, the same transaction or event or series of transactions or events; or

Multiple proceedings Division 2.4.8 Rule 270 (c) a decision in a proceeding will decide or affect the other proceeding or proceedings; or (d) it is otherwise desirable to make an order under this rule. (2) The court may order that— (a) the proceedings be consolidated; or (b) the proceedings be heard together or in a particular sequence; or (c) any of the proceedings be stayed until any other of the proceedings have been decided. Note Consolidation results in the proceedings becoming a single proceeding and, for example, only 1 judgment is given in the consolidated to any of the proceedings or on its own initiative. (4) If the court orders that proceedings be consolidated or heard together or in a particular sequence, it may give the directions it considers appropriate for the conduct of the proceeding or proceedings. (5) Before or during the hearing of a consolidated hearing or of hearings ordered to be heard together or in a particular sequence, the court may order that the proceedings be separated or heard in another sequence.

Rule 275

275 Person with legal disability—litigation guardian to start proceeding etc (1) Unless a territory law otherwise provides, a person with a legal disability may start or defend, and carry on, a proceeding only by the person’s litigation guardian. Example—territory law otherwise providing The Court Procedures Act 2004, s 74E provides that in a proceeding in a court in relation to a child or young person, the child or young person may be represented by a lawyer or litigation guardian, or both. Note 1 Person with a legal disability is defined in the dictionary. (2) However, a child may start, and carry on, a proceeding in the Magistrates Court to recover wages, salary or any other amount owing to the child in relation to the child’s employment, or a contract for services for the doing of work by the child, as if the child were an adult. (3) Anything in a proceeding (including a related enforcement proceeding) required or allowed by these rules to be done by a party may be done only by the party’s litigation guardian if the party is a person under a legal disability. (4) However, part 2.8 (Disclosure) applies to a party who is a person under a legal disability as if the person were not a person under a legal disability. (5) An act required to comply with an order under part 2.8 may be performed by— (a) if the party can perform it—the party; or (b) in any other case—the party’s litigation guardian.

People with a legal disability Division 2.4.9 Rule 276 (6) A party’s litigation guardian who is not a legal practitioner may act only by a solicitor.

276 Who may be litigation guardian (1) A person may be a litigation guardian of a person with a legal disability for a proceeding if the person— (a) is not a person with a legal disability; and (b) has no interest in the proceeding adverse to the interests of the person with a legal disability; and (c) has agreed to be the person’s litigation guardian. (2) If a person is authorised under a territory law to conduct a proceeding in the name of or for (however described) a person with a legal disability, the authorised person is entitled to be litigation guardian of the person with a legal disability in any proceeding to which the authorised person’s authority extends, unless the court otherwise 1 The Guardianship and Management of Property Act 1991, s 7 (3) provides that a person’s guardian may be given the power by the ACAT to bring or continue a proceeding for or in the name of the person. 2 That Act, s 8 provides that the ACAT may appoint a manager to manage a person’s property. The powers that may be given to a person’s manager are the powers that the person would have if the person were legally competent to exercise powers in relation to the person’s property.

277 Litigation guardian—liability for costs (1) A litigation guardian for a plaintiff is liable for any costs for which the plaintiff would have been liable if the plaintiff were not a person with a legal disability.

Rule 278 (2) An order for costs against the plaintiff or the litigation guardian may be enforced against the litigation guardian. (3) A litigation guardian for a defendant is not liable for any costs in a proceeding unless the costs are incurred because of the litigation guardian’s negligence or misconduct.

278 Becoming a litigation guardian (1) Unless a territory law otherwise provides, a person may become the litigation guardian of a person with a legal disability without the need for any formal instrument of appointment or any order of a court. (2) Unless a person is appointed as a litigation guardian by the court, a person becomes the litigation guardian of a person with a legal disability for a proceeding by filing in the court— (a) an affidavit by the solicitor for the person with a legal disability, or someone else with knowledge of the facts, stating that the (i) has agreed to be the litigation guardian; and (ii) is an appropriate person to be the litigation guardian; and (iii) does not have an interest in the proceeding adverse to the interest of the person with a legal disability; and (b) the person’s written consent to be the litigation guardian of the person with a legal disability; and

People with a legal disability Division 2.4.9 Rule 279 (c) if the person with a legal disability is a plaintiff in the proceeding—an undertaking by the person that the person will be liable for any costs that the person with a legal disability might otherwise be required to pay in the proceeding. • approved form 2.10 (Affidavit for person to act as litigation guardian) AF2006-255 • approved form 2.11 (Consent and undertaking by person to act as litigation guardian) AF2006-256.

279 Person with legal disability—effect of no notice of intention to respond or defence (1) If a defendant who is a person with a legal disability does not file a notice of intention to respond or defence within the time limited by these rules, the plaintiff may not continue the proceeding unless someone is made litigation guardian of the defendant. (2) This rule has effect despite division 2.11.3 (Default by defendant).

280 Litigation guardian—appointment and removal by court (1) A person may not replace someone else as litigation guardian of a person with a legal disability except by an order of the court. (2) If a party to a proceeding is or becomes a person with a legal disability and the party does not have a litigation guardian, the court may, by order, appoint a litigation guardian. (3) If a party to a proceeding is or becomes a person with a legal disability and the party has a litigation guardian, the court may, by order, remove the party’s litigation guardian and appoint another litigation (4) In a proceeding in relation to a person with a legal disability who is not a party, the court may, by order, appoint a litigation guardian of the person and include the person as a party to the proceeding.

Rule 281 (5) If the court removes a party’s litigation guardian, it may also, by order, stay the proceeding until the appointment of a new litigation (6) An application for an order under this rule must be served on the person with a legal disability and, if the application proposes removal of a litigation guardian, on the litigation guardian. (7) In a proceeding on an application for the appointment of a litigation guardian, evidence in support of the application must include evidence— (a) that the party for whom a litigation guardian is to be appointed is a person with a legal disability; and (b) that the proposed litigation guardian agrees to being appointed and does not have an interest in the proceeding adverse to the interests of the person with a legal disability. (8) The court may make an order under this rule on application by a party to the proceeding or anyone else or on its own initiative. (9) If an application for an order under this rule is made during the proceeding or after judgment is given in the proceeding, the application must be made in accordance with part 6.2 (Applications in proceedings). (10) For the Supreme Court, if an application for an order under this rule is made before the proceeding starts, the application must be made by

281 Litigation guardian—accounts Division 2.9.5 (Receivers) applies in relation to a litigation guardian’s accounts, with any necessary changes, in the same way as it applies to a receiver’s accounts.

Partnerships Division 2.4.10 Rule 282

282 Person with legal disability—approval of settlement etc (1) In a proceeding (or proposed proceeding) in which there is a claim for an amount (including an amount of damages) by or on behalf of a person with a legal disability, a settlement or compromise may only be entered into, and an amount paid into court may only be accepted, with the court’s approval. (2) The application for the court’s approval must be made by originating application, unless the application is made in a proceeding that has already been started. Note 2 Pt 6.2 (Applications in proceedings) applies to an application for the court’s approval in a proceeding that has already been started. (3) If the court approves a settlement, compromise or acceptance of an amount paid into court, the court may enter judgment for the amount of the settlement, compromise or payment into court. (4) This rule applies whether the person is suing alone or with another

285 Meaning of partnership proceeding—div 2.4.10 partnership proceeding means a proceeding started by or against a partnership in the partnership name, and includes a proceeding between a partnership and 1 or more of its partners. Note See also r 108 (Notice of intention to respond or defence—person sued under partnership name) and r 109 (Notice of intention to respond or defence—person incorrectly served as partner).

Rule 286

286 Proceeding in partnership name (1) Two or more partners may start a proceeding in the partnership name. (2) A proceeding against people claimed to be partners may be started against the claimed partnership in the partnership name. (3) The partnership name used in a partnership proceeding must be the name of the partnership when the cause of action arose. (4) For an incorporated limited partnership, the name of the partnership when the cause of action arose is the name in which the partnership was registered under the Partnership Act 1963, section 59 (Registration of incorporated limited partnership) when the cause of action arose. (5) Unless the court otherwise orders, a partnership proceeding must continue in the partnership name and not in the name of the individual partners.

287 Disclosure of partners’ names (1) At any stage of a partnership proceeding, a party may by notice served on the partnership require the partnership to give the party the names and home addresses of all of the people who were partners in the partnership when the cause of action arose. Note Rule 6433 deals with service of an originating process on a partnership. (2) The notice must state a date for compliance with the notice that is at least 2 days after the day the notice is served on the partnership. (3) If the partnership does not give the party the information required by the notice, the court may make any order it considers appropriate, including an order— (a) staying the proceeding until the information is given; and

Business names Division 2.4.11 Rule 290 (b) striking out a pleading or affidavit.

290 Proceeding in registered business name A proceeding may be started against a name registered under the Business Names Registration Act 2011 (Cwlth).

291 Proceeding in business name if unregistered etc (1) This rule applies to a business name under which business is being carried on by a person in contravention of the Business Names Registration Act 2011 (Cwlth) because— (a) the name is not registered under that Act; or (b) the name is registered under that Act, but is not registered in relation to the person; or (c) the name is registered under that Act in relation to the person but the person has not complied with that Act, section 12 (Notification of changes in particulars relating to registered business names etc) in relation to the name. (2) If a proceeding is started against the person under the business name, the following provisions apply: (a) the proceeding is not invalid only because of the contravention; (b) the business name is a sufficient designation of the person in any process in or in relation to the proceeding until the plaintiff makes the amendments mentioned in rule 292 (3). Note See r 110 (Notice of intention to respond or defence—person sued under business name).

Rule 292

292 Business names—amendment about parties (1) This rule applies to a business name under which business is being carried on by a person in contravention of the Business Names Registration Act 2011 (Cwlth) because— (a) the name is not registered under that Act; or (b) the name is registered under that Act, but is not registered in relation to the person. (2) If a proceeding is started against the person under the business name, the plaintiff must take all reasonable steps to find out the person’s name. (3) The plaintiff must also make the amendments necessary for the proceeding to be continued against a named defendant and not in the business name. (4) Until the amendments are made, the plaintiff may only take a step in the proceeding with the court’s leave. (5) Subrule (4) does not apply to— (a) the filing or service of an originating process; or (b) the filing or service of an application under rule 650 (Discovery to identify potential defendant) or rule 651 (Discovery to identify right to claim relief); or (c) the filing or service of an application for an order under rule 706 (Urgent orders before start of proceeding); or (d) a step taken to comply with this rule; or (e) the filing or service of an application for leave under subrule (4).

Business names Division 2.4.11 Rule 292 (6) An amendment for this rule must be made in accordance with rule 509 (Amendment—procedure) and served in accordance with rule 511 (Amendment—service of amended document). (7) This rule applies in addition to part 2.7 (Amendment).

Rule 300 Part 2.5 Third-party and similar

300 Purpose—pt 2.5 The purpose of this part is to provide for a third-party procedure in proceedings started by originating claim.

301 When a third-party proceeding starts A third-party proceeding starts on the day the third-party notice for the proceeding is filed in the court. Note Rule 6145 (5) (Filed documents initially rejected) provides that, if a document is rejected by the registrar, it is taken to have been filed on the day it was first filed.

302 Third-party proceeding—when available A defendant may file a third-party notice if the defendant wants to— (a) claim a contribution or indemnity against a person who is not already a party to the proceeding; or (b) claim relief against a person who is not already a party to the proceeding that— (i) relates to or is connected with the original subject matter of the proceeding; and (ii) is substantially the same as some relief claimed by the

Rule 303 (c) require an issue relating to or connected with the original subject matter of the proceeding to be decided not only as between the plaintiff and defendant but also between either of them and a person not already a party to the proceeding.

303 Third-party notice—content etc (1) A third-party notice must state briefly and specifically the nature of the claim made and relief sought. Note See approved form 2.12 (Third-party notice) AF2006-257. (2) A statement of claim must be filed with the third-party notice. • approved form 2.2 (Statement of claim—debt or liquidated demand) AF2007-60 • approved form 2.3 (Statement of claim—motor vehicle death or personal injury) AF2014-160 • approved form 2.4 (Statement of claim—employment death or personal injury) AF2014-26 • approved form 2.6 (Statement of claim—general) AF2006-447. Note 2 See r 305 (Third-party notice—statement of claim for certain personal injuries claims). Note 3 A statement of claim is a pleading (see dict, def pleading) and therefore (3) A third-party notice filed in the Magistrates Court, or the accompanying statement of claim, must show that the court has jurisdiction to decide the claim. (4) A third-party notice must state—

Rule 304 (d) if the defendant is suing in a representative capacity—the representative capacity in which the defendant is suing; and (e) if a third party is being sued in a representative capacity—the representative capacity in which the third party is being sued. (5) A third-party notice must state specifically any claim for— (a) exemplary damages or aggravated damages; and (b) interest up to the day of judgment. (6) A third-party notice need not specifically claim costs unless the claim is for a debt or liquidated demand. (7) If the relief sought requires the court’s decision or direction on any question, the third-party notice must state the question.

304 Third-party notice—additional matters for claims for debt and liquidated demands (1) This rule applies to a third-party notice that includes a claim for a debt or liquidated demand. (2) A claim for interest up to the day of judgment— (a) must state the period or periods for which interest is claimed; and (b) may state the rate or rates at which interest is claimed. (3) If a rate is not claimed under subrule (2) (b), the rate is taken to be the rate of interest applying, from time to time, under schedule 2, part 2.1 (Interest up to judgment).

Rule 305 (4) The costs amount applying under schedule 3, part 3.1 (Claim for debt or liquidated demand) must be specifically claimed for costs.

305 Third-party notice—statement of claim for certain personal injury claims The following rules apply, with any necessary changes, to a statement of claim for a third-party notice in the same way as they apply to a statement of claim for an originating claim: (a) rule 52 (Originating claim—statement of claim for motor vehicle death and personal injury claims); (b) rule 53 (Originating claim—statement of claim for employment death and personal injury claims).

306 Third-party notice—filing (1) Unless the court gives leave, a third-party notice— (a) must not be filed by a defendant until the defendant has filed a defence; and (b) must be filed not later than 28 days after the end of whichever of the following periods ends last: (i) the time limited for filing the defence of the defendant who is filing the third-party notice (the prescribed period); (ii) if the plaintiff agrees to an extension of the prescribed period—the agreed period. (2) The defendant must serve a stamped copy of an application for leave under subrule (1) to file a third-party notice on— (a) the plaintiff; and

Rule 307 (b) each other active party who has filed a notice of intention to (3) If the court gives leave under subrule (1) to the defendant to file a third-party notice, it may give directions about filing and serving the

307 Third-party notice—sealing The registrar must seal a third-party notice and any filed copies of the third-party notice. Note The registrar may reject an originating process that is filed (see r 6140

308 Third-party notice—service (1) A defendant to a proceeding who files a third-party notice must serve a sealed copy of the notice and accompanying statement of claim on the third party as if— (a) the notice were an originating claim in a proceeding; and (b) the defendant were a plaintiff and the third party were a defendant in the proceeding. Note Rule 54 (Originating claim—filing and service) deals with service of an originating claim. (2) The defendant must serve the following documents with the third-party notice: (a) a sealed copy of any order giving leave to file the notice; (b) a sealed copy of any directions about filing and serving the notice; (c) a copy of a sealed copy of any other relevant order made in relation to the proceeding;

Rule 309 (d) a copy of a sealed copy of the originating claim and accompanying statement of claim; (e) a copy of a stamped copy of all other pleadings filed in the (f) a copy of a stamped copy of all applications in the proceeding not finally disposed of; (g) a copy of all affidavits filed in the proceeding, other than affidavits that are not relevant to the issues arising on the third-party notice; (h) a copy of all other documents that have been served by the plaintiff on the defendant, or by the defendant on the plaintiff, and are intended to be relied on; (i) a copy of all amendments of any document mentioned in paragraphs (d) to (h) or details of the amendments.

309 Third-party notice—effect of service on third party On being served with a third-party notice, the third party becomes a party to the proceeding with the same rights in relation to the third party’s defence to a claim made against the third party in the notice as the third party would have if sued in the ordinary way by the

310 Third-party notice—setting aside Rule 40 (Setting aside originating process etc) applies, with necessary changes, to a proceeding started by a third-party notice as if the proceeding were a proceeding started by an originating process.

Rule 311

311 Third-party notice—notice of intention to respond and (1) Part 2.3 (Notice of intention to respond and defence) applies, with necessary changes, to a proceeding started by a third-party notice as if— (a) the proceeding were a proceeding started by an originating (b) the third-party notice were the originating claim in the (c) the defendant were a plaintiff and the third party were a defendant in the proceeding. (2) The third party may, in the defence to the third-party notice, deny a plaintiff’s claims against a defendant and claim a matter showing a plaintiff’s claim against a defendant is not maintainable.

312 Service of pleadings after filing of third-party notice A party who files a pleading after the filing of a third-party notice must serve the pleading on all other active parties.

313 Counterclaim by third party (1) A third party who has a claim against the defendant who included the third party may counterclaim against the defendant. (2) The third party may include the plaintiff or someone else as a defendant to the counterclaim if the person could be included as a defendant if the third party brought a separate proceeding. (3) Rule 462 (Counterclaim—against additional party) applies, with necessary changes, to a counterclaim by a third party.

Rule 314

314 Third-party notice—default by third party (a) a default judgment is entered for the plaintiff against the defendant who included a third party; and (b) the third party is in default in relation to the third-party notice. Note Div 2.11.3 (Default by defendant) applies to a third-party notice (see r 1116 (Application—div 2.11.3) and r 1117 (When is a defendant in default—generally). (2) The third party— (a) is taken to admit a claim stated in the third-party notice or its statement of claim; and (b) is bound by the default judgment between the plaintiff and defendant as far as it is relevant to a claim or issue stated in the third-party notice or statement of claim. (3) The defendant— (a) at any time after satisfaction of the default judgment, or, with the court’s leave, before satisfaction, may obtain a judgment against the third party for a contribution or indemnity claimed in the notice; and (b) with the court’s leave, may obtain a judgment against the third party for other relief or remedy claimed in the notice. an order (including an order setting aside, amending or a judgment) under (4) The court may amend or set aside the judgment against the third party.

Rule 315

315 Third parties—disclosure (1) A third party to a proceeding may serve on the defendant who included the third party a notice requiring the defendant to disclose discoverable documents for the proceeding only if the third party files a notice of intention to respond or defence. (2) A third party to a proceeding may serve on a plaintiff a notice requiring the plaintiff to disclose discoverable documents for the proceeding only if the third party denies the plaintiff’s allegations against the defendant or alleges another matter showing the plaintiff’s claim against the defendant is not maintainable. (3) However, disclosure may be ordered by the court. disclosure order.

316 Third-party notice—hearing (1) A third party may appear at, and take part in, the hearing of the proceeding as the court directs. direction or order under this rule. (2) At the hearing, the issues between the defendant who included the third party and the third party must be heard with the issues between the plaintiff and the defendant. (3) However, the court may, at any time, order that the issues between the defendant who included the third party and the third party be heard separately from the issues between the plaintiff and the defendant if it considers that hearing them together would— (a) unfairly prejudice a party; or (b) embarrass or delay the hearing of the proceeding; or (c) be otherwise inconvenient.

Rule 317 (4) The court may order the separate hearing— (a) on application by a party before the party files and serves a third- party notice; or (5) The court may give the orders it considers appropriate about the conduct of the separate hearing.

317 Third party—extent bound by judgment between plaintiff and defendant In a proceeding, the court may make an order about the extent to which a third party is bound by a judgment between a plaintiff and a

318 Third-party notice—judgment between defendant and third party (1) In a proceeding, the court may enter judgment in favour of— (a) a defendant who included a third party against the third party; or (b) the third party against the defendant. (a) judgment is entered in favour of the plaintiff against a defendant; and (b) judgment is entered in favour of the defendant against a third party; the defendant must not enforce the judgment against the third party unless the judgment against the defendant is satisfied, or the court

Rule 319

319 Notice claiming contribution or indemnity against another party (1) A party to a proceeding, other than a plaintiff, may file a notice claiming a contribution or indemnity (a notice claiming contribution or indemnity) if the party wants to— (a) claim against another party to the proceeding a contribution or indemnity; or (b) claim against another party to the proceeding relief— (i) relating to or connected with the original subject matter of (ii) substantially the same as some relief claimed by the (c) require an issue relating to or connected with the original subject matter of the proceeding to be decided not only as between the plaintiff and defendant but also between either of them and another party to the proceeding. (2) A notice claiming contribution or indemnity must state briefly and specifically the nature of the claim made and relief sought. Note See approved form 2.13 (Notice claiming contribution or indemnity) AF2009-283. (3) A notice claiming contribution or indemnity filed in the Magistrates Court must show that the court has jurisdiction to decide the claim. (4) A notice claiming contribution or indemnity must state specifically any claim for interest up to the day of judgment. (5) A notice claiming contribution or indemnity need not specifically claim costs.

Rule 320 (6) Rule 316 (Third-party notice—hearing), rule 317 (Third party— extent bound by judgment between plaintiff and defendant) and rule 318 (Third-party notice—judgment between defendant and third party) apply, with necessary changes, to a notice claiming contribution or indemnity as if— (a) the notice were a third-party notice; and (b) the party who filed the notice were the defendant; and (c) the party against whom the claim in the notice is made were a third party.

320 Notice claiming contribution or indemnity—filing and service etc (1) Unless the court gives leave, a notice claiming contribution or indemnity— (a) must not be filed by a party until the party has filed a defence; and (b) must be filed not later than 28 days after the end of whichever of the following periods ends last: (i) the time limited for filing the defence of the party who is filing the notice claiming contribution or indemnity (the prescribed period); (ii) if the plaintiff and the defendant, if the defendant is not the party filing the notice, agree to an extension of the prescribed period—the agreed period.

Rule 321 (2) An application for leave under subrule (1) to file a notice claiming contribution or indemnity must be served on— (a) the party against whom the claim is made; and (b) each other active party. (3) If the court gives leave under subrule (1) to the party to file a notice claiming contribution or indemnity, it may give directions about filing and serving the notice. (4) A party who files a notice claiming contribution or indemnity must serve stamped copies of the notice on the party against whom the claim is made and each other active party. (5) A party served with a notice claiming contribution or indemnity need not file a notice of intention to respond or defence to the notice if the party has filed a notice of intention to respond or defence in the

321 Contribution under Civil Law (Wrongs) Act, s 21 If the only relief claimed by a party is a contribution under the Civil Law (Wrongs) Act 2002, section 21 (Right of contribution) against another party, the party may file and serve a notice claiming contribution or indemnity without further pleading.

322 Third-party notice—fourth and subsequent parties (1) If a third party has filed a notice of intention to respond or defence, this part applies, with necessary changes, as if the third party were a (2) If a person included as a party (the fourth party) by a third party by notice (the fourth-party notice) files a notice of intention to respond or defence— (a) this part as applied by this rule has effect in relation to the fourth party and any other further person included (as fifth-party and so on successively); and

Rule 322 (b) a reference in these rules to a third party includes a reference to the fourth party and any other further person included (as fifth- party and so on successively); and (c) a reference in these rules to a third-party notice includes a reference to the fourth-party notice and the notice including any other further person (a fifth-party notice and so on successively).

Rule 400

400 Application—pt 2.6 (1) This part applies to— (a) a proceeding started by originating claim or third-party notice; and (b) a counterclaim made in a proceeding started by originating claim or third-party notice. Note 2 Third-party notice includes a fourth-party notice, fifth-party notice etc (see r 322 (2) (c)). (2) However, despite rule 39 (3) (Proceeding incorrectly started by originating application), this part applies to a proceeding started by an originating application only if the court orders the plaintiff to file and serve a statement of claim.

405 Pleadings—formal requirements (1) Each pleading must be in writing. (2) If a pleading alleges or otherwise deals with several matters— (a) the pleading must be divided into paragraphs; and (b) each matter must, as far as convenient, be put in a separate paragraph; and (c) the paragraphs must be numbered consecutively.

Rule 406 (3) If a plaintiff seeks relief in relation to 2 or more distinct claims based on different grounds, they must be stated, as far as possible, separately. (4) If a defendant relies on 2 or more distinct grounds of defence, set-off or counterclaim based on different facts, they must be stated, as far as possible, separately. (5) If a pleading is settled by counsel, it must state— (a) that it was settled by counsel; and (b) counsel’s name. Note Div 6.3.1 (General provisions about documents for filing) contains provisions about formal requirements for documents (including pleadings) to be filed, see esp r 6103 (1) (Documents—layout etc) and r 6106 ((Documents—signing).

406 Pleadings—statements in (1) Each pleading must— (a) be as brief as the nature of the case allows; and (b) contain a statement in a summary form of the material facts on which the party relies but not the evidence by which the facts are to be proved; and (c) state specifically any matter that if not stated specifically may take another party by surprise; and (d) subject to rule 419 (Pleadings—other relief), state specifically any relief the party claims; and (e) if a claim or defence under a statute is relied on—identify the specific provision of the statute. (2) A party may raise a point of law in a pleading if the party also pleads the material facts in support of the point.

Rule 407

407 Pleadings—matters to be specifically pleaded (1) Without limiting rule 406, the following matters must be specifically pleaded: (a) an accident the cause of which is unknown and undiscoverable; (b) breach of contract or trust; (c) breach of statutory duty; Note See r 432 (Pleadings—negligence and breach of statutory duty). (d) damages of every kind claimed, including, for example, special and exemplary damages; Note See also r 417 (Pleadings—kind of damages etc). (e) duress; (f) estoppel; (g) extinction of right or title; (h) fraud or illegality; (i) interest (including the rate of interest and method of calculation) claimed; (j) malice or ill will; (k) misrepresentation; (l) motive, intention or other condition of mind, including knowledge or notice; (m) negligence or contributory negligence; Note See r 432 (Pleadings—negligence and breach of statutory duty). (n) payment; (o) performance or part performance; (p) release;

Rule 408 (q) statute of limitations; (r) a statute requiring that contracts be in, or evidenced by, writing (for example, statute of frauds); (s) undue influence; (t) voluntary assumption of risk; (u) waiver; (v) want of capacity, including disorder or disability of mind; (w) that a testator did not know and approve of the contents of a will; (x) that a will was not properly made; (y) wilful default; (z) anything else required by a practice note to be specifically pleaded. (2) Also, any fact from which any of the matters mentioned in subrule (1) is claimed to be an inference must be specifically pleaded. (3) In a defence or pleading after a defence, a party must specifically plead any matter that— (a) the party alleges makes a claim or defence of the opposite party not maintainable; or (b) shows a transaction is void or voidable; or (c) raises an issue of fact not arising out of a previous pleading.

408 Pleadings—money claims short form (1) This rule applies if the plaintiff claims an amount payable by the defendant to the plaintiff for any of the following: (a) goods sold and delivered by the plaintiff to the defendant; (b) goods bargained and sold by the plaintiff to the defendant;

Rule 408 (c) work done or materials provided by the plaintiff for the defendant at the defendant’s request; (d) money lent by the plaintiff to the defendant; (e) money paid by the plaintiff for the defendant at the defendant’s request; (f) money had and received by the defendant for the plaintiff’s use; (g) interest on money owing by the defendant to the plaintiff; (h) interest for forbearance by the plaintiff at the defendant’s request on money owing by the defendant to the plaintiff; (i) money found to be owing by the defendant to the plaintiff on accounts stated between them. (2) The plaintiff may plead the facts using the form of words set out in the relevant paragraph of subrule (1). (3) The defendant may file a notice requiring the plaintiff to plead the facts on which the plaintiff relies in accordance with the provisions of this part other than this rule (the facts in full). (4) The defendant must file any notice under subrule (3) within the time limited by these rules for the defendant to file a defence. Note Rule 102 provides that, in a proceeding started by an originating claim, a defendant must file a defence not later than the later of the following: (a) 28 days after the day the claim is served on the defendant; (b) if the defendant makes an unsuccessful application under r 40 to have the claim set aside—7 days after the day the application is refused. However, if, before the defendant files a defence, an application for summary judgment under r 1146 is served on the defendant, but the court does not on the application dispose of all the claims for relief against the defendant, the court may set a time within which the defendant must file a defence.

Rule 409 (5) If the defendant files a notice under subrule (3), the defendant must serve a stamped copy of the notice on the plaintiff at the plaintiff’s address for service on the day it is filed. (6) If the defendant files a notice under subrule (3)— (a) the plaintiff must, not later than 28 days after the day the notice is served on the plaintiff— (i) file an amended statement of claim pleading the facts in full; and (ii) include in the amended statement of claim a note to the effect that the statement has been amended in response to the notice; and (b) if the defendant has not already filed a defence—the time for filing the defence is extended until 14 days after the day a stamped copy of the plaintiff’s amended statement of claim is served on the defendant. (7) The plaintiff is not prevented from amending the statement of claim under rule 505 (Amendment—of pleadings before close of pleadings) only because the plaintiff has amended the statement of claim under

409 Pleadings—certain facts need not be pleaded (1) A party need not plead a fact if— (a) the law presumes the fact in the party’s favour; or (b) the burden of proving the fact does not lie with the party. (2) This rule does not apply if it is necessary to plead the fact— (a) to comply with rule 406 (Pleadings—statements in); or (b) to meet a specific denial of the fact pleaded by another party.

Rule 410

410 Pleadings—technical objections A technical objection must not be raised to any pleading on the ground of want of form.

411 Pleadings—references to spoken words and documents (1) This rule applies if spoken words or a document is referred to in a pleading. (2) The effect of the spoken words or document must be stated as far as material. (3) The precise terms of the spoken words or document need not be stated, except as far as the terms are themselves material.

412 Pleadings—conditions precedent (1) An allegation of the performance or happening of a condition precedent necessary for a party’s case is implied in the party’s pleadings. (2) A party who denies the performance or happening of a condition precedent must specifically plead the denial. Examples of conditions precedent 1 a thing has been done 2 an event has happened 3 a state of affairs exists, or has existed at some time or times 4 the party is ready and willing, or was at all relevant times ready and willing, to perform an obligation

413 Pleadings—matters arising after start of proceeding (1) A party to a proceeding may plead a matter that arose after the proceeding started. (2) A party to a proceeding may plead facts giving rise to a cause of action that arose after the proceeding started only— (a) if it is not unjust to any other party; and

Rule 414 (b) with the court’s leave. Note 1 See r 502 (3) (Amendment—of documents) about including a cause of action arising after a proceeding is started. Note 2 See also r 104 (Ground of defence arising after defence filed etc), r 467 (Counterclaim—defence arising after answer) and r 481 (3) (Pleadings— after reply). Note 3 Pt 6.2 (Applications in proceedings) applies to an application for leave.

414 Pleadings—inconsistent allegations etc (1) A party may make inconsistent allegations or claims in a pleading only if they are pleaded as alternatives. (2) However, a party must not make an allegation or new claim that is inconsistent with an allegation or claim made in another pleading of the party without amending the pleading. Note Pt 2.7 (Amendment) deals with amendment of pleadings.

415 Pleadings—notice pleaded as a fact (a) notice to someone of something is to be stated in a pleading; and (b) the form or the precise terms of the notice, or the circumstances from which the notice is to be inferred, are not material. (2) The pleading may state the notice as a fact.

416 Pleadings—implied contracts or relations (1) This rule applies if a contract or any relation between people is to be implied from letters or conversations or from a number of circumstances. (2) The pleading may state the contract or relation as a fact. (3) The pleading may refer to the letters, conversations or circumstances as briefly as possible without setting out all or part of them.

Rule 417

417 Pleadings—kind of damages etc (1) If damages are claimed in a pleading, the pleading must state— (a) each kind of damages claimed; and (b) for any damages that are not general damages—the amount of the damages claimed that is known to the party. (2) Without limiting rule 407 (1) (d) (Pleadings—matters to be specifically pleaded), a party claiming general damages must include the following particulars in the party’s pleading: (a) the nature of the loss or damage suffered; (b) the exact circumstances in which the loss or damage was suffered. (3) If practicable, the party must also plead each kind of general damages and state the nature of the damages claimed for each kind.

418 Pleadings—amount of unliquidated damages (1) A pleading must not claim an amount for unliquidated damages. (2) However, a pleading in a proceeding in the Magistrates Court may claim an amount for unliquidated damages if— (a) the claim is for the recovery of 1 or more of the following if it is or they were a consequence of damage alleged to have happened because of the defendant’s negligence: (i) the cost of repairing a motor vehicle; (ii) a motor vehicle’s value, less any salvage value; (iii) the cost of towing a motor vehicle; or

Pleadings—general Division 2.6.3 Rule 419 (b) the claim is for the recovery of 1 or both of the following if it is or they were a consequence of damage alleged to have happened because of the defendant’s negligence in driving, riding or controlling a motor vehicle: (i) the cost of repairing property; (ii) property’s value, less any salvage value. property does not include a motor vehicle.

419 Pleadings—other relief The court may grant relief other than that stated in the pleadings whether or not other relief is expressly claimed in the pleadings.

425 Pleadings—striking out (1) The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading— (a) discloses no reasonable cause of action or defence appropriate to the nature of the pleading; or (b) may tend to prejudice, embarrass or delay the fair trial of the (c) is frivolous, scandalous, unnecessary or vexatious; or (d) is otherwise an abuse of the process of the court. Note 1 The registrar may also reject a document that is filed if it does not comply with these rules (see r 6140 (Rejecting documents—noncompliance with rules etc) or if it is an abuse of the court’s process or is frivolous or vexatious (see r 6142 (Rejecting documents—abuse of process etc)).

Rule 426 Note 3 Rule 6901 (Orders may be made on conditions) provides that the court (2) The court may receive evidence on the hearing of an application for (3) If the court makes an order under this rule, it may also make any other order it considers appropriate, including, for example— (a) if the court makes an order under subrule (1) (a)—an order staying or dismissing the proceeding or entering judgment; and (b) an order about the future conduct of the proceeding.

426 Pleadings—trial without (1) This rule applies if, in a proceeding, the court considers that— (a) the issues between the parties can be defined without pleadings or further pleadings; or (b) for any other reason the proceeding may properly be tried without pleadings or further pleadings. (2) The court may order that the proceeding be tried without pleadings or further pleadings. (3) If the court makes an order under subrule (2), it may order the parties to prepare a statement of facts and issues involved in the proceeding or, if the parties do not agree on a statement, may settle a statement itself.

Particulars Division 2.6.4 Rule 430

430 Pleadings—all necessary particulars must be included (1) A party must include in a pleading particulars necessary to— (a) define the issues for, and prevent surprise at, the trial; and (b) enable the opposite party to identify the case that the pleading requires the opposite party to meet; and (c) support a matter specifically pleaded under rule 407 (Pleadings—matters to be specifically pleaded). (2) This rule does not require a party to include in a pleading particulars of any claim for interest up to judgment other than those required by rule 51 (2) (Originating claim—additional matters for claims for debt and liquidated demands) or rule 304 (2) (Third-party notice— additional matters for claims for debt and liquidated demands).

431 Pleadings—use of ‘Scott schedule’ (1) This rule applies to a proceeding involving a building, technical or other matter in which a number of items of a claim are in dispute in relation to liability, amount or both. (2) The party making the claim— (a) may prepare and file a ‘Scott schedule’; and (b) if the court orders—must prepare and file a ‘Scott schedule’. Note 1 See approved form 2.14 (Scott schedule) AF2006-259.

Rule 432 (3) A party on whom a Scott schedule is served must complete and file the schedule. Note A ‘Scott schedule’ is a document that contains a summary of the parties’ claims and defences. The summary is set out in columns so that it is easy to see the issues on which the parties agree and those on which they do not agree.

432 Pleadings—negligence and breach of statutory duty (1) If a party pleads negligence (whether contributory or otherwise) or breach of statutory duty, the particulars must state the facts and circumstances of the negligent act or omission or breach of statutory duty. (2) Also, if the party alleges 2 or more negligent acts or omissions or breaches of statutory duty, the particulars must, as far as practicable, state separately the facts and circumstances of each negligent act or omission or breach of statutory duty.

433 Pleadings—how particulars must be given (1) The particulars to be given by a pleading must be stated in the pleading or, if that is inconvenient, in a separate document mentioned in, and filed and served with, the pleading. (2) Further particulars may be given by correspondence. (3) A party giving further particulars must file a copy of the particulars.

434 Pleadings—application for better particulars (1) A party may apply to the court for an order for better particulars of the opposite party’s pleading.

Answering pleadings Division 2.6.5 Rule 435 (2) The court may make any order under this rule it considers appropriate, including, for example, an order about the future conduct of the (3) Unless the court otherwise orders, the making of an application under this rule does not extend the time for pleading. (4) Particulars required under an order under this rule must repeat the relevant part of the order so the particulars are self-explanatory.

435 Pleadings—failure to comply with better particulars order If a party does not comply with an order made under rule 434 (Pleadings—application for better particulars), the court may make the order, including give the judgment, it considers appropriate. Note to div 2.6.5 For rules about when a defence must be filed etc, see r 102 (Notice of intention to respond and defence—filing and service). For an answer to a counterclaim, see r 466 (Counterclaim—answer to).

440 Pleadings—answering (1) In response to a pleading, a party may plead a denial, non-admission or admission. (2) A plea of non-admission operates as a denial.

Rule 441

441 Pleadings—denials and non-admissions (1) It is not enough for a party to deny generally the grounds alleged in a pleading. (2) Instead, a party must deal specifically with each allegation of fact. (3) However, a pleading in response to a pleading that alleges damage or damages is taken not to admit the allegation unless it specifically admits the allegation. (4) A party in a pleading must not deny an allegation of fact in the previous pleading of an opposite party in an evasive way. (5) Instead, a party must answer the point of substance. A plaintiff alleges that a defendant received an amount of money. It is not enough for the defendant to deny that the defendant received that amount. Instead, the defendant must deny that the defendant received that amount or any part of it, or set out how much the defendant received. (6) If an allegation is made with various circumstances, it is not enough to deny it along with the circumstances.

442 Pleadings—defence to debt and liquidated demand (1) In a defence to a claim for debt or a liquidated demand, it is not enough for the defendant simply to deny the debt. (2) Instead, the defendant must deny the matters of fact from which the defendant’s liability is alleged to arise that are disputed.

443 Pleadings—defence to personal injury claims (1) This rule applies to a defence to an originating claim that includes a claim for damages for personal injury. (2) The defendant must, in the defence, specifically admit or deny every material allegation of fact in the originating claim and statement of claim, including any allegation by way of particulars.

Answering pleadings Division 2.6.5 Rule 444 (3) The allegation is taken to be admitted if the defendant does not comply with subrule (2) in relation to it. (4) A statement in the defence that the defendant does not know and therefore cannot admit a fact alleged in the originating claim or statement is taken to be a denial. (5) If the defendant wishes to prove a version of facts different from that alleged in the originating claim or statement of claim, the defendant must plead that version in the defence. (6) The defendant must plead every ground of defence to be relied on, together with the facts necessary to establish each ground.

444 Pleadings—defence to proceeding on bill of exchange etc (1) This rule applies to a proceeding on a bill of exchange, cheque or promissory note. (2) The defendant must deny some matter of fact in a defence in denial. the drawing, making, endorsing, accepting, presenting, or notice of dishonour of the bill, cheque or note

445 Pleadings—denial of representative capacity or partnership constitution (1) This rule applies if a party wants to deny— (a) another party’s right to claim as a representative (including a personal representative or trustee) of someone else; or (b) the alleged constitution of a partnership. (2) The party must deny it specifically.

Rule 446