10AService of documents under the corporations jurisdiction

10A Service of documents under the corporations jurisdiction Despite the other provisions of this Order, a document required under Order 71 of the Federal Court Rules, as applied by Order 41 of these Rules, to be served on a person may be served according to rule 2 of Order 7 of the Federal Court Rules. 11 Additional requirements for service by post (1) A person serving a document by post must include with the document: (a) a form of acknowledgment of service in accordance with Form 19; and (b) an envelope that: (i) is addressed to the person on whose behalf the document is being served at the address for service of that person; and (ii) if the document is to be sent to an address in Australia — bears the correct postage for the return by post of the acknowledgment of service in the envelope. (2) If the document is to be served by post outside Australia, the document must be posted by air mail. 12 When is a service by post effected? Subject to rule 16, a document served on a person by post is taken to have been served on the person: (a) if it was posted to an address in Australia — on the day on which the document would be delivered in the ordinary course of post; or (b) if it was posted to an address outside Australia — on the twenty-eighth day after the day of posting. 13 Court’s discretion relating to service Nothing in this Order affects the power of a court exercising jurisdiction under the Act or another Act: (a) to authorise service of a document in a manner that is not provided for in Division 1 or 2; or (b) to find that a document has been served; or (c) to find that a document has been served on a particular date. Division 3 Proof of service 14 Acknowledgment of service (1) A person on whom a document is served may acknowledge service of the document by an acknowledgment of service. (2) An acknowledgment of service: (a) must be in accordance with Form 19; and (b) may be signed by the person on whom the document was served or by his or her lawyer. (3) If a lawyer signs an acknowledgment of service on behalf of a party to proceedings, the filing of the acknowledgment is taken to constitute proof of service of a document to which it refers on the date on which service of the document is acknowledged. 15 Affidavit of service (1) Unless the court otherwise orders, any evidence of service to be given (except an acknowledgment of service) must be given by affidavit. (2) An affidavit of service must be: (a) for an application for dissolution of marriage that is served by the applicant by post — in accordance with Form 20; and (b) for an application for dissolution of marriage that is served by another person — in accordance with Form 21; and (c) in any other case — in accordance with Form 22. (3) If the deponent to an affidavit of service can: (a) identify the signature of a person on an acknowledgment of service of a document; or (b) give other evidence relating to the identity of a person on whom a document is served; the identification or other evidence may be included in the affidavit of service. 16 Evidence of service of documents (1) Evidence of signature may be in accordance with Form 23. (2) An acknowledgment of service of a document that is signed by the person on whom the document was served is evidence that the document was served in accordance with the acknowledgment. (3) If the server of a document can identify the person served, service of the document may be proved by evidence to that effect given by the server. (4) If the server of a document can identify a photograph of the person served, and another person who knows the person served identifies the photograph as a photograph of the person served, service of the document may be proved by evidence to that effect by the server and the other person. (5) If a person other than the server of a document: (a) was present when the document was served; and (ii) saw the document handed to the person served, or put down and left in the presence of the person served; and (iii) can identify the person served; service of the document may be proved by evidence to that effect given by the other person. (6) Nothing in this rule precludes the giving of any other evidence to prove the service of a document. Division 4 Discretion as to service 17 Court may dispense with service of documents (1) On application made ex parte in accordance with Form 8, the court may dispense with service of a document. (2) In considering an application, the court may have regard to: (a) whether the applicant has taken reasonable steps to serve the document on the respondent; and (b) whether the applicant has taken reasonable steps to provide the respondent with a copy of the document; and (c) whether the respondent could become aware of the existence and nature of the document by means of advertising or another form of communication that is reasonably available to the applicant; and (d) the likely cost to the applicant of serving the document, the means of the applicant and the nature of the proceedings; and (e) any other relevant matter. (3) If an order relating to service of a document under subrule (1): (a) is unconditional; or (b) is made subject to a condition that is complied with; the document is taken to have been served. 18 Failure to comply with conditions Even if an applicant has not complied with a condition of an order made under rule 17, the court may order that the document is taken to have been served on a date specified in the order. Order 19 Answers to specific questions 1 Specific questions A party to proceedings who has filed an application or a response may serve on another party a request for answers to specific questions: (a) in proceedings commenced by application in accordance with Form 3 — after the end of the directions hearing (including any adjournments) and any conciliation conference ordered at the directions hearing; or (b) otherwise — with the leave of the court or a Registrar. 2 Number of requests Unless the court, or a Registrar, otherwise orders, a party to proceedings may request another party to answer specific questions once only in respect of an application. 3 Answer to specific question (1) Subject to rule 5, and to all proper objections, a party who is asked a specific question under this Order must: (a) answer the specific question; or (b) if the party objects to answering the specific question — state why the party objects; or (c) if the party cannot answer the specific question — state why the party cannot answer; within 21 days after the specific question is served on the party, or within a further time allowed by the court, or a Registrar, or the party who asked the specific question. (2) A party who answers a specific question must verify the answer by affidavit. 4 Service of specific question and answer (1) If a party asks a specific question under rule 1, then as soon as practicable after doing so, the party must serve a copy of the specific question on each other party to the proceedings who has an address for service. (2) If a party answers a specific question under rule 2 or 3, then, as soon as practicable after doing so, the party must serve copies of the answer and the affidavit verifying it on each other party to the proceedings who has an address for service. 5 Answers not required before discovery If: (a) a party has served another party (“the second party”) with a request for discovery; or (b) an order has been made for the second party to give discovery; then, unless the court, or a Registrar, otherwise orders, the second party is not required to answer a specific question served on that party before the time specified in the request or order for discovery has expired. 6 Order directing party to answer specific question (1) If a party who is asked a specific question under this Order fails to answer the specific question, the party who asked the specific question may apply to the court, or a Registrar, for an order directing the other party to answer the specific question. (2) If: (a) a party applies under subrule (1); and (b) the specific question is relevant to an issue in the proceedings; the court, or the Registrar, may: (c) order the other party to answer: (i) the specific question; or (ii) the specific question with any changes that the court, or the Registrar, may direct; and (d) order the other party to answer the specific question within a specified time; and (e) make any order the court, or the Registrar, thinks fit in relation to: (i) the other party’s right to continue the proceedings; or (ii) continuation of the proceedings generally; and (f) make any order as to costs that the court, or the Registrar, thinks fit. 7 Use of specific question or answer etc If a party uses in proceedings: (a) a part of an answer or reason; or (b) one of a number of answers or reasons given by another party; filed in those proceedings, the court, or a Registrar, may look at the whole of the answer or reason, or all the answers or reasons given by the second-mentioned party, as the case requires, and may direct the first-mentioned party to use: (c) the whole of the answer or reason; or (d) one or more other answers or reasons in addition to the answer or reason that the first-mentioned party uses; as the case requires. Order 20 Discovery and inspection 1 Mutual and informal discovery (1) The parties to proceedings may agree to mutual and informal discovery and inspection of documents that relate to any matter in question in the proceedings. (2) Discovery and inspection pursuant to this rule may be had upon such terms as the parties agree. 2 Request to make discovery (1) Subject to subrule (2), at any time after a date is fixed for the hearing of the proceedings, a party may serve on another party a request to make discovery, on oath, of documents that: (a) are, or have been, in the possession, custody or control of the other party; and (b) relate to all, or any, of the matters in question in the proceedings. (2) In proceedings commenced by an application in accordance with Form 3, a party may only serve a request to make discovery: (a) in financial matters — after the conciliation conference and no later than 42 days before the pre-trial conference; or (b) in proceedings relating to children — after the issue of the trial notice and no later than 42 days before the pre-trial conference; or (c) if the court, or a Registrar, grants leave to do so. (3) The court, or a Registrar, must not grant leave under paragraph (2) (c) unless there are special circumstances by reason of which the order granting leave should be made. (4) A request under this rule must be in accordance with Form 24. 3 Time for, and form of, discovery (1) A party to proceedings on whom a request under rule 2 has been served shall make discovery of documents by filing an affidavit of documents, and serving a copy of the affidavit on the party who made the request, within 21 days after service of that request or within such further time as the court or the requesting party allows. (2) An affidavit of documents shall be in accordance with Form 25. 4 Order to make discovery (1) The court, or a Registrar, may order a party to proceedings to make discovery, either generally or in relation to particular documents. (2) Before ordering a party to make discovery, the court, or a Registrar, must take into consideration the matters specified in rule 2. (3) An order to make discovery may be made subject to conditions relating to service, or conditions generally, as the court, or a Registrar, thinks fit. (4) A party who is ordered to make discovery must do so by filing an affidavit of documents in accordance with Form 25. 4A Electronic exchange The court may make an order directing the exchange of documents by electronic means. 5 Production of documents to the court (1) The court may order a party to proceedings to produce to it a document in the possession, custody or control of that party, relating to a matter in question in the proceedings. (2) Where, on the hearing of an application for the production by a party of a document for inspection by the party making the application or to the court: (a) privilege from production or inspection is claimed; or (b) objection is made to production or inspection on any other ground; the court may inspect the document for the purpose of determining whether the claim or objection is valid. 6 Notice to produce (1) A party to proceedings may, by notice in writing served on another party, require the other party to produce, at the hearing of the proceedings, a document specified in the notice, being a document, that is in the possession, custody or control of that other party. (2) The party served shall, unless the court otherwise orders, produce the document in accordance with the notice. (3) A notice to produce a document shall be in accordance with Form 26. 7 Application for production by other persons (1) Not less than 14 days before a hearing in proceedings, a party to those proceedings who has an address for service in the proceedings may apply to the court for an order directing a person who is not a party to produce for inspection a book, document or thing in the possession, custody or control of that person, relating to any matter in question in the proceedings and which that person could be required to produce at the hearing. (2) An application under this rule shall be served on each other party to the proceedings who has an address for service and on the person against whom the order is sought. (3) The court may make an order under subrule (1) only if, at the time the court proposes to make the order: (a) the applicant for the order is entitled, without leave, to serve a request to make discovery under rule 2; or (b) there are special circumstances. 8 Production by other persons Where, on the hearing of an application under rule 7, the court is satisfied that there is in the possession, custody or control of the respondent a book, document or thing of a kind referred to in subrule 7 (1) and that it is just that the applicant or another party to the proceedings in relation to which the application is made should inspect such book, document or thing, the court may, subject to such conditions and restrictions as it thinks it proper to impose, order that the respondent produce such book, document or thing to the Registrar of the filing registry at a time and place specified in the order. 9 Order for particular discovery Where at any stage of proceedings it appears to the court from evidence or from the nature or circumstances of the case or from any document filed in the proceedings that there are grounds for belief that some document or class of document relating to any matter in question in the proceedings may be or may have been in the possession, custody or control of a party, the court may order that party: (a) to file an affidavit stating whether that document or any document of that class is or has been in the possession, custody or control of that party and, if it has been but is not then in the possession, custody or control of that party, when that party parted with it and what has become of it; and (b) to serve the affidavit on any other party. 10 Inspection of documents produced by order A document produced pursuant to an order under this Order may be inspected at the time and place specified in the order or, if it is to be produced to a Registrar, at such other time and place as a Registrar of the filing registry may later appoint in which case such inspection shall be in the presence of the Registrar or of another officer of the court appointed by the Registrar. 10A Request for inspection (1) Without limiting the generality of rule 1, where an application or affidavit filed by a party to proceedings refers to a document, any other party to those proceedings may, by notice served on the first-mentioned party, request that party to produce the document for inspection. (2) Where notice of a request under subrule (1) to produce a document is served on a party to proceedings, that party shall, not later than 4 days after the date of service of that notice, serve on the party making the request a notice: (a) specifying the time and place at which the document may be inspected; (b) claiming that the document is privileged from production and sufficiently stating the grounds of the privilege; or (c) stating that the document is not in the possession, custody or power of that first-mentioned party and stating to the best of that party’s knowledge, information and belief where the document is and in whose possession, custody or power it is. (3) The time specified for the purposes of paragraph (2) (a) in a notice under subrule (2) shall not be later than 7 days after the date of service of that notice. (4) A party to proceedings who serves on another party to those proceedings a notice under subrule (2) specifying a time and place at which a document may be inspected, shall, unless the court otherwise orders, produce that document for inspection by that other party at the time and place so specified. 11 Copies of documents inspected A party who inspects a document pursuant to this Order may make a copy of, or extract from, the document unless the court otherwise orders. 12 Failure to make discovery or give inspection Where a party to proceedings fails to comply with an order requirement or agreement under this Order the court may make such order as to discovery, production, inspection, the continuance of the proceedings or as to the right of the party in default to continue the proceedings, as the court thinks fit. 13 Documents not discovered or produced A party to proceedings is not entitled, except by leave of the court, to put a document or a copy of a document in evidence, or to furnish or cause to be furnished evidence of the contents of a document: (a) where: (i) the party has filed an affidavit of documents; (ii) the document, being a document relating to a matter in question in the proceedings, was, at the time the party swore the affidavit, in the possession, custody or control of the party or the document was not at the time, but had been, in the possession, custody or control of the party; and (iii) the document was not referred to in that affidavit of documents or in any other affidavit of documents filed by that party in pursuance of an order of the court; or (b) where the party has been served with a notice to produce under rule 6 and fails to produce the document in accordance with the notice. 14 Certified copies of documents and entries in books (1) The parties to proceedings may agree, or the court may order, that a party furnish to the court or to a party a copy of an entry in a book used for the purposes of trade or business, verified by the affidavit of a person who has compared the copy with the original as a copy of the entry of which it purports to be a copy. (2) It shall be sufficient compliance with an order under rule 8 that a document be produced if there is produced in lieu of the document a copy of the document verified as a true copy by the affidavit of a person who has compared the copy with the original. (3) A copy furnished under subrule (1) or (2) shall not be treated as a true copy of the entry unless particulars of any erasures, alterations or interlineations are clearly shown on the copy. (4) Where a document is recorded or stored on tapes, discs or by any other mechanical or electronic means, or otherwise, and is capable of being reproduced into a material form, readily understood, whether directly or through the use of any device or thing, a reproduction of the document in that material form verified as an accurate reproduction by the affidavit of a person who can swear to such accuracy, shall for the purposes of subrules (1) and (2) be deemed to be a verified copy. (5) Notwithstanding anything contained in subrule (1) or (2), the court may order the production of the original document. 15 When order not to be made An order pursuant to this Order shall not be made unless the court is satisfied that the order is necessary either for disposing fairly of the proceedings or for saving costs. 16 Where production no longer required Where a person is required under this Order to produce a document, the party who gave the notice or obtained the order for the production of the document may, by notice in writing to that person, inform that person that production of the document is no longer required and the first‑mentioned person shall then be excused from such production. 17 Costs and expenses of production Where in proceedings a person being: (a) a respondent to an application under rule 7; or (b) a person required by an order made under rule 8 to produce a document; reasonably incurs costs or expenses on the hearing of the application or in connection with the production of the document, as the case may be, the person may apply to the court for an order as to the assessment and payment of such costs and expenses and the court may make such an order or give such directions as it thinks fit. 18 Tender of reasonable expenses An order made under rule 8 may require the party who obtains the order to tender reasonable expenses to the person who is the subject of the order. 19 Return after production Where a document is produced pursuant to an order made under rule 8, the Registrar shall, unless the court otherwise orders, as soon as practicable after the document has been inspected, return the document to the person who produced it.