Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025
Div 341—Contempt in face or hearing of Court
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Division 34.1—Contempt in face or hearing of Court
34.01 Arrest for contempt
34.02 Charge, defence and determination
34.03 Interim custody
Division 34.2—Application for contempt
34.04 Application alleging contempt
34.05 Statement of charge
34.06 Service
34.07 Arrest
34.08 Charge and defence
34.09 Determination of contempt application
Division 34.3—General
34.10 Warrant for imprisonment
34.11 Discharge before end of prison term
Schedule 1—Powers delegated to Registrars
Schedule 2—Costs
Part 1—Application of this Schedule
1 Application of this Schedule
Part 2—Proceedings other than migration proceedings
Part 3—Migration proceedings
Division 1—Migration proceedings that have concluded
Division 2—Migration proceedings that have been discontinued
Schedule 3—Repeals
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
Chapter 1—Introductory provisions
Part 1—Preliminary
Division 1.1—General
1.01 Name
These Rules are the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025.
1.02 Commencement
(1) Each provision of these Rules specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information
Column 1 Column 2 Column 3
Provisions Commencement Date/Details
The whole of these Rules 1 September 2025. 1 September 2025
Note: This table relates only to the provisions of these Rules as originally made. It will not be amended to deal with any later amendments of these Rules.
(2) Any information in column 3 of the table is not part of these Rules. Information may be inserted in this column, or information in it may be edited, in any published version of these Rules.
1.03 Authority
These Rules are made under Chapter 4 of the Federal Circuit and Family Court of Australia Act 2021.
1.04 Schedule 3
Each instrument that is specified in Schedule 3 to these Rules is amended or repealed as set out in the applicable items in that Schedule, and any other item in that Schedule has effect according to its terms.
Division Div 34 - Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2025 - 1—Contempt in face or hearing of Court | Zoe
1.05 Overarching purpose
(1) The overarching purpose of these Rules, as provided in section 190 of the Act, is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Note 1: The parties to a proceeding must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose (see section 191 of the Act). In doing so, the parties should avoid undue delay, expense and technicality. They should consider options for dispute resolution as early as possible.
Note 2: These Rules must be interpreted and applied, and any power conferred or duty imposed by them must be exercised or carried out, in the way that best promotes the overarching purpose (see subsection 190(3) of the Act).
Note 3: The Court may dispense with compliance with these Rules or make orders inconsistent with these Rules (see rules 1.10 and 1.11).
(2) If appropriate, the Court will help to implement dispute resolution.
1.06 Application
(1) It is intended that the practice and procedure of the Court in general federal law proceedings be governed principally by these Rules.
(2) However, if in a particular case these Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules and may modify or dispense with those Rules, as necessary.
Note: These Rules have effect subject to any provision made by an Act, or by rules or regulations under an Act, with respect to the practice and procedure in particular matters (see subsection 217(2) of the Act).
(3) These Rules apply as follows:
(a) Chapter 1 applies to all general federal law proceedings and contains introductory provisions;
(b) Chapter 2 applies to general federal law proceedings generally;
(c) Chapter 3 applies to special classes of general federal law proceedings;
(d) Chapter 4 applies to all general federal law proceedings and contains rules regarding costs, enforcement and contempt.
Note: For rules relating to bankruptcy proceedings, see the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021.
(4) These Rules do not apply to family law or child support proceedings.
Note 1: For rules relating to family law or child support proceedings, see the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, as applied by the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021.
Note 2: For information about child support proceedings in the Court, see the Court’s website at http://www.fcfcoa.gov.au.
Division 1.2—General powers of the Court
1.07 Court to have regard to nature and complexity of proceeding
(1) In making any order in a proceeding, the Court may have regard to the nature and complexity of the proceeding.
(2) The Court may deal with a proceeding in a manner that is proportionate to the nature and complexity of that proceeding.
1.08 Court may make any order it considers appropriate in the interests of justice
The Court may make any order that the Court considers appropriate in the interests of justice.
Note: See section 140 of the Act.
1.09 Orders may be subject to conditions
The Court may make an order subject to any conditions the Court considers appropriate.
1.10 Court may dispense with Rules
The Court may dispense with compliance with any of these Rules at any time.
1.11 Orders inconsistent with Rules
The Court may make an order that is inconsistent with these Rules and in that event the order will prevail.
1.12 Orders other than in open court
The Court may make orders other than in open court.
Note: For the power of a Judge sitting in Chambers to exercise the jurisdiction of the Court, see subsection 136(3) of the Act.
1.13 Application for orders about procedures
A person who wants to start a proceeding or take a step in a proceeding may apply to the Court for an order about the procedure to be followed if the procedure is not prescribed by the Act, these Rules or by or under any other Act.
1.14 Fixing of time by Court
If these Rules do not fix a time for doing an act or thing in relation to a proceeding, the Court may fix the time within which the act or thing is to be done.
1.15 Extension or shortening of time fixed
(1) The Court may extend or shorten a time fixed by these Rules or by a judgment or order of the Court.
(2) The Court may extend the time even if the time fixed has passed.
1.16 Exercise of Court’s power
Unless otherwise stated in the Act or these Rules, the Court may, at any stage of a proceeding, exercise a power mentioned in these Rules in the proceeding:
(a) on its own initiative; or
(b) on the application of a party.
1.17 Other orders the Court may make
If a party makes an application, the Court may:
(a) grant the order sought; or
(b) refuse to grant the order sought; or
(c) make a different order.
1.18 Orders may include consequences of non‑compliance
The Court may specify in an order the consequences of not complying with the order.
1.19 Practice directions
(1) The Chief Judge may issue practice directions setting out procedural arrangements applicable to the conduct of proceedings in the Court.
(2) The Court may depart from a practice direction if it considers it appropriate to do so having regard to the circumstances of the proceeding, other proceedings awaiting hearing and available resources.
Act means the Federal Circuit and Family Court of Australia Act 2021.
address for service, for a party, means the address for service given by the party in accordance with rule 10.20.
AD(JR) Act means the Administrative Decisions (Judicial Review) Act 1977.
ancillary order has the meaning given by rule 7.03.
another court, in Division 7.2, means:
(a) a court in Australia other than the Court; or
(b) a court outside Australia.
applicant means:
(a) unless a contrary intention appears—a party, other than a cross‑claimant, claiming relief; or
(b) for Division 7.2—a person who applies for a freezing order or ancillary order; or
(c) for Division 7.3—a person who applies for a search order.
approved form means a form approved by the Chief Judge under subrule 2.06(1).
ART means the Administrative Review Tribunal.
ART Act means the Administrative Review Tribunal Act 2024.
ART Registrar means any of the following:
(a) the Principal Registrar (within the meaning of the ART Act);
(b) a person who has been appointed as a registrar under section 237 of the ART Act;
(c) a person to whom functions or powers have been delegated under subsection 280(1) of the ART Act.
Attorney‑General means the Commonwealth Attorney‑General, unless the context otherwise provides.
authenticate, in relation to an order of the Court, means to sign and seal the order.
authenticity of a document means:
(a) if the document is an original—it was created, and signed or executed, as it purports to have been; or
(b) if the document is a copy—it is a true copy.
business day, in a place, means any day other than:
(a) a Saturday or Sunday; or
(b) a day that is a public holiday in the place; or
(c) any other day on which the registry in the place is closed.
business name means a name, style, title or designation under which a person carries on a business, other than a name consisting only of the name of that person and the name of any other person in association with whom the person carries on business.
Civil Dispute Resolution Act means the Civil Dispute Resolution Act 2011.
claim includes a cross‑claim and counterclaim, unless a contrary intention appears.
Commissioner, in Part 30, means:
(a) for a proceeding under the Designs Act—the person holding the office of Registrar under that Act; or
(b) for a proceeding under the Trade Marks Act—the person holding the office of Registrar under that Act.
communication device includes a mobile telephone, audio link, video link and any other electronic communication equipment.
conduct money means a sum of money or its equivalent, sufficient to meet the reasonable expenses of a person attending Court for the purposes of complying with a subpoena or order.
control, if referring to a document, means possession, custody or power.
Copyright Act means the Copyright Act 1968.
corporation means any artificial person other than an organisation.
costs, unless the context otherwise provides, means costs as between party and party.
costs as between party and party means only the costs that have been fairly and reasonably incurred by the party in the conduct of the litigation.
Court means the Federal Circuit and Family Court of Australia (Division 2).
Court file: comprises all documents relating to a particular proceeding if:
(a) the document:
(i) has been accepted for filing in respect of the proceeding, in accordance with rule 2.15; or
(ii) is a redacted copy replaced on the Court file in accordance with rule 2.19; and
(b) the document has not been the subject of an order, under rule 2.18 or 2.19, that the document be removed from the Court file.
decision, in Part 30, includes a direction or determination made by the Commissioner.
described, in Division 7.3, includes described generally, whether by reference to a class or otherwise.
description means:
(a) for a person who is an individual—the person’s name, residential or business address and occupation; or
(b) for a person that is not an individual:
(i) the person’s name; and
(ii) the address of one of the following:
(A) the person’s registered office;
(B) the person’s principal office;
(C) the person’s principal place of business.
Designs Act means the Designs Act 2003.
direction means an order of the Court.
discontinuance, in relation to a proceeding, includes withdrawal of all or part of an application or response.
discovery means an obligation to disclose.
enter, in relation to an order, means to take out or authenticate the order.
expert means a person who has specialised knowledge based on the person’s training, study or experience.
expert report means a written report that contains the opinion of any expert on any question in issue in the proceeding based wholly or substantially on that expert’s specialised knowledge, including any report in which an expert comments on the report of any other expert.
Fair Work Act means the Fair Work Act 2009.
Fair Work Commission has the meaning given by section 12 of the Fair Work Act.
family law or child support proceeding has the meaning given by subsection 7(1) of the Act.
Federal Court Rules means the Federal Court Rules 2011.
Federal Safety Commissioner Act means the Federal Safety Commissioner Act 2022.
file means file and serve.
freezing order has the meaning given by rule 7.02.
general federal law proceeding means a proceeding in the Court other than a family law or child support proceeding.
genuine steps statement has the meaning given by section 5 of the Civil Dispute Resolution Act.
hearing means any hearing before a Judge or any officer of the Court, whether final or interlocutory, including a first court date, directions hearing or callover.
Human Rights Act means the Australian Human Rights Commission Act 1986.
Human Rights Commission means the Australian Human Rights Commission.
intellectual property proceeding means:
(a) a proceeding in the Court arising in relation to infringement of:
(i) a copyright subsisting under the Copyright Act; or
(ii) the monopoly in a design registered under the Designs Act; or
(iii) a trade mark registered under the Trade Marks Act; or
(iv) a PBR under the PBR Act; or
(b) an application, appeal or other proceeding in the Court under the Copyright Act, the Designs Act, the PBR Act or the Trade Marks Act, whether or not joined with another claim or cause of action, unless the proceeding is one to which Part 26 applies.
interested person means:
(a) for a person who needs a litigation guardian and is a minor—the person’s parent or guardian; or
(b) for any other person who needs a litigation guardian—the person’s guardian; or
(c) in any other case—a person who is or may be affected by an order of the Court.
interlocutory application means an application in a proceeding already started.
issuing officer, for a subpoena, means an officer empowered to issue a subpoena for the Court.
issuing party, for a subpoena, means the party at whose request the subpoena is issued.
lawyer means a legal practitioner who is entitled to practise in the Court.
legal assistance means any of the following:
(a) advice in relation to a proceeding;
(b) representation at a hearing or a dispute resolution process;
(c) drafting or settling documents to be used in a proceeding;
(d) representation generally in the conduct of a proceeding.
Litigants’ Fund means the Federal Court of Australia Litigants’ Fund established under Division 2.5 of the Federal Court Rules.
litigation guardian means a person appointed by the Court under rule 9.28 to manage and conduct a proceeding for another person (also known as a guardian ad litem) (see Division 9.4).
mediation includes conciliation and any similar structured dispute resolution process.
mediator means a person to whom a matter is referred under a mediation order.
Migration Act means the Migration Act 1958.
migration proceeding means a proceeding to which Part 25 applies.
minor means a person under the age of 18 years.
National Consumer Credit Protection Act means the National Consumer Credit Protection Act 2009.
National Credit Code has the same meaning as in the National Consumer Credit Protection Act.
organisation has the meaning given by section 6 of the Registered Organisations Act.
originating application means an application starting a proceeding, including a cross‑claim in a proceeding against a person who was not previously a party to the proceeding.
partnership name means a name under which 2 or more persons carry on business in partnership in Australia.
party means an applicant, respondent or other person included as a party to a proceeding.
PBR has the same meaning as in the PBR Act.
PBR Act means the Plant Breeder’s Rights Act 1994.
person who needs a litigation guardian means a person who needs, or is taken to need, a litigation guardian under rule 9.25.
pleading means:
(a) a statement of claim; or
(b) an alternative accompanying document referred to in rule 8.04; or
(c) a statement of cross‑claim; or
(d) a defence; or
(e) a concise statement in response; or
(f) a reply; or
(g) a concise statement in reply; or
(h) any pleading after a reply;
but does not include:
(i) an originating application; or
(j) an interlocutory application; or
(k) a response in an approved form; or
(l) a notice of any kind; or
(m) an affidavit.
premises, in Division 7.3, includes a vehicle or vessel of any kind.
principal proceeding means a proceeding in which:
(a) a respondent wants to make a cross‑claim; or
(b) a cross‑claim has been made as part of the response under rule 8.15.
pro bono lawyer means a lawyer who has agreed to accept a referral under rule 4.06 to provide pro bono legal assistance.
proper address, for a person to be served, means:
(a) the person’s address for service; or
(b) if the person has no address for service—the person’s usual or last‑known business or residential address.
proper place, for a proceeding, means:
(a) the place where the proceeding is started; or
(b) if the proceeding is transferred to another place—the other place, from the date of transfer.
proper registry, for a proceeding, means the registry at the proper place for the proceeding.
prospective applicant means a person who:
(a) reasonably believes that the person may have a right to obtain relief against another person; and
(b) is not currently a party to a proceeding in the Court.
question, in Division 22.1, includes a question or issue in a proceeding, whether of fact or law, or partly of fact and partly of law, and whether raised in a document, by agreement of the parties or otherwise.
recording device means a device that is capable of being used to record images or sound, including a camera, tape recorder, video recorder, mobile telephone or digital audio recorder.
Registered Organisations Act means the Fair Work (Registered Organisations) Act 2009.
Registrar means the Chief Executive Officer or a Registrar of the Court.
registry means a registry of the Court.
respondent means:
(a) a party, other than a cross‑respondent, against whom relief is claimed; or
(b) for Division 7.2—a person against whom a freezing order or an ancillary order is sought or made; or
(c) for Division 7.3—a person against whom a search order is sought or made.
search order has the meaning given by rule 7.09.
sign includes to sign electronically.
small claims application means:
(a) for Part 29—an application for an order covered by subsection 199(2) of the National Consumer Credit Protection Act that is dealt with under that Part; or
(b) for Division 31.4—an application in relation to a claim covered by section 548 of the Fair Work Act.
small claims proceeding, means:
(a) for Part 29—a proceeding in relation to a small claims application under that Part; or
(b) for Division 31.4—a proceeding in relation to a claim covered by section 548 of the Fair Work Act.
taxing officer means a Registrar.
Trade Marks Act means the Trade Marks Act 1995.
trial includes any hearing other than an interlocutory hearing.
vexatious proceeding has the meaning given by subsection 7(1) of the Act.
vexatious proceedings order has the meaning given by subsection 7(1) of the Act.
without notice means without serving or advising another party or other person of an application to be made to the Court.
1.21 References to Forms
In these Rules, a reference to a form is a reference to the form approved under rule 2.06.
Note: Forms approved under rule 2.06 are available on the Court’s website at http://www.fcfcoa.gov.au.
1.22 Calculating time
(1) The time for doing an act or thing fixed by these Rules or by an order of the Court is to be calculated in accordance with this rule.
(2) If the time fixed is to be calculated by reference to a particular day or event, and the time fixed is one day or more, the particular day or the day of the particular event is not to be counted.
(3) If the time fixed includes a day that is not a business day in the place where the act or thing is to be done, and the time fixed is 5 days or less, the day is not to be counted.
Example: The Court orders that a document is to be filed within 3 days from Wednesday. Under subrule (3), the document must be served on or before the following Monday (since the registry is closed on Saturday and Sunday).
(4) An act or thing may be done on the next business day in a place if:
(a) the last day for doing the act or thing is not a business day in the place where the act or thing is to be done; and
(b) the act or thing may only be done on a day that is a business day in the place.
(5) If the time fixed includes a day in the period starting on 24 December in a year and ending on 14 January in the next year, the day is not to be counted.
Part 2—Registry and documents
Division 2.1—Registry
2.01 Use of seal of Court
The seal of the Court must be attached to:
(a) Rules of Court; and
(b) any other document the Court directs or the law requires.
Note 1: The seal must be attached to all writs, commissions and process issued from the Court (see subsection 180(1) of the Act). It may also be used to enter an order (see rule 24.08).
Note 2: The design of the seal is determined by the Minister and the seal is kept in custody as directed by the Chief Judge (see section 178 of the Act).
2.02 Seal or stamp of Court
(1) Each registry must keep in its custody a stamp designed, as nearly as practicable, to be the same as the design of the seal of the Court.
(2) The seal or stamp of the Court must be attached to:
(a) all documents filed in the Court; and
(b) orders entered.
Note: Documents marked with the stamp are as valid and effectual as if sealed with the seal of the Court (see subsection 179(2) of the Act).
2.03 Methods of attaching the seal or stamp
The seal or stamp of the Court may be attached to a document:
(a) by hand; or
(b) by electronic means.
2.04 Transfer of proceeding to another place
(1) A party may apply at the proper place for an order that the proceeding be transferred to another place.
Note 1: For proper place, see rule 1.20.
Note 2: See section 184 of the Act.
(2) In considering an application to transfer a proceeding, the Court must have regard to:
(a) the convenience of the parties; and
(b) the limiting of expense and the cost of the proceeding; and
(c) whether the matter has been listed for trial; and
(d) any other relevant matter.
Division 2.2—Documents
2.05 Formal requirements for documents
(1) A document to be filed in a proceeding must accord with any approved form and the Court’s requirements.
Note 1: For approved form, see rule 1.20.
Note 2: The Court’s requirements for preparing and lodging documents are set out in practice directions issued by the Chief Judge.
(2) A document (other than a form) to be filed must:
(a) be typed in at least 12‑point font size; and
(b) have line spacing of 1.5 lines; and
(c) have clear margins on all sides; and
(d) have each page consecutively numbered; and
(e) have a cover sheet in the approved form.
(3) Paper documents must be legible and without crossing out.
(4) Electronic documents must be lodged in an electronic format approved by a Registrar for the registry.
(5) Strict compliance with subrules (2) to (4) is not required if:
(a) the document:
(i) is readable; and
(ii) can be easily scanned and photocopied; or
(b) strict compliance would be impracticable because of the nature of the document or the manner of filing.
(6) This rule does not apply to a document annexed to an affidavit.
Note 1: For formal requirements for affidavits, see Division 17.3.
Note 2: The Court may give directions limiting the length of documents to be filed (see section 182 of the Act).
2.06 Forms
(1) The Chief Judge of the Court may approve a form for a provision of these Rules.
(2) A requirement in these Rules that a document be in accordance with an approved form is complied with if the document:
(a) is substantially in accordance with the approved form and any practice directions issued by the Chief Judge; or
(b) has only those variations that the nature of the case requires.
(3) A document prepared in the form prescribed for a similar purpose for the Federal Court may be taken to substantially comply with the appropriate form for a proceeding.
Note: The Court may dispense with compliance with the Rules and may make orders inconsistent with the Rules (see rules 1.10 and 1.11).
2.07 Title of documents
(1) A document to be filed in a proceeding must include a title and details sufficient to identify the proceeding.
(2) Unless otherwise provided in these Rules, a document to be filed in a proceeding must be headed:
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
At [Registry].
2.08 Document must have distinctive number
A party filing a document in connection with a particular proceeding must include on the document the distinctive number of the proceeding.
Note: When an originating application is filed, a Registrar will assign a distinctive number to the document and will endorse the document with that number.
2.09 Document to be signed
Unless the nature of the document is such that signature is inappropriate, a document (other than an affidavit, annexure or exhibit) that a party must file must be signed by:
(a) the party’s lawyer; or
(b) if the party does not have a lawyer—the party.
Note: Sign is defined in rule 1.20 to include electronic signing. For lawyer, see rule 1.20.
2.10 Details included in document
A document filed in a proceeding must contain the following information on the front page:
(a) the name and role of the party on whose behalf the document is filed;
(b) the name of the person or lawyer responsible for preparing the document;
(c) if the party is represented by a lawyer—the telephone number and email address of the lawyer;
(d) if the party is not represented by a lawyer—the telephone number and email address, if any, of the party;
(e) the address for service of the party.
2.11 Documents not in English
(1) If a document that must be filed with the Court is not in English, the person filing the document must also file:
(a) a translation of the document in English; and
(b) an affidavit, by the person who made the translation, verifying the translation and setting out the person’s qualifications to make the translation.
(2) This rule does not apply to a document contained in a Court Book filed by a respondent in a migration proceeding where the document was not originally accompanied by a translation.
Division 2.3—Lodging and filing documents
2.12 How documents may be lodged with the Court for filing
(1) A document for filing must be lodged with the Court using the Court’s approved electronic lodgement system.
(2) If it is not reasonably practicable to lodge a document using the Court’s approved electronic lodgement system, a document may be lodged, in descending order of preference, by:
(a) being emailed to a registry with a written request for the action required in relation to the document; or
(b) being presented to a registry when the registry is open for business; or
(c) being posted to a registry with a written request for the action required in relation to the document; or
(d) being faxed to a registry in accordance with rule 2.14.
(3) A document in an existing proceeding that is to be lodged with the Court in accordance with paragraph (1)(a), (c) or (d) must be sent to the proper registry.
(4) If a document in an existing proceeding is lodged with a registry other than the proper registry, the document must be accompanied by a letter:
(a) identifying the proper place for the proceeding; and
(b) requesting that the document be sent to the proper registry.
Note 1: For proper registry, see rule 1.20.
Note 2: The Court’s requirements in relation to preparing and lodging documents are set out in practice directions issued by the Chief Judge.
Note 3: Details of the opening times for each registry are on the Court’s website at http://www.fcfcoa.gov.au.
2.13 Providing a document electronically
(1) A document provided electronically to a registry for filing:
(a) must be:
(i) lodged using the Court’s approved electronic lodgement system and in accordance with any practice directions; or
(ii) sent to the proper registry by email at an email address approved by a Registrar for the registry; or
(iii) provided as otherwise authorised by a Registrar; and
(b) must be in an electronic format approved by a Registrar for the registry; and
(c) if required to be in an approved form—so far as is practicable, must comply with subrules 2.05(2) to (4) and rules 2.06 and 2.07; and
(d) must be capable of being printed in the form in which it was created without any loss of content.
Note: Approved email addresses and approved electronic formats are listed on the Court website at http://www.fcfcoa.gov.au.
(2) An affidavit must be sent as an image.
2.14 Faxing a document
(1) A document faxed to a registry for filing must:
(a) be sent to the proper registry at an approved fax number for the registry; and
(b) be accompanied by a cover sheet containing the information set out in the relevant practice direction.
(2) A document faxed to a registry must not be more than 20 pages.
(3) The sender of a document to a registry by fax must:
(a) keep the original document and the transmission report evidencing successful transmission; and
(b) produce the original document or the transmission report as directed by the Court.
2.15 When is a document filed
(1) A document is filed when:
(a) the document has been lodged with the Court in accordance with rule 2.12; and
(b) the filing fee, if any, has been paid (or an exemption or deferral applies); and
(c) the document has been accepted for filing in a registry by having the seal of the Court affixed to it.
Note 1: The Federal Court and Federal Circuit and Family Court Regulations 2022 provides that a document must not be filed in a registry of the Court unless the fee payable for the filing has been paid. The Regulations also provide for an exemption or deferral of a fee, or payment of the fee on invoice, in certain circumstances.
Note 2: A document that is accepted for filing is added to the Court file. See the definition of Court file in rule 1.20.
Note 3: Documents marked with the stamp are as valid and effectual as if sealed with the seal of the Court (see subsection 179(2) of the Act).
(2) A document, if accepted by a Registrar under subrule (1), is taken to have been filed:
(a) if the whole document is received by 4.30 pm on a day the registry is open for business—on that day; or
(b) in any other case—on the next day the registry is open for business.
Note: Because of the Court’s computer security firewall, there may be a delay between the time a document is sent electronically and the time the document is filed.
(3) A document in an existing proceeding is taken to have been filed on the day when it was received by a registry that is not the proper registry if the document:
(a) is presented to a registry other than the proper registry; and
(b) is sent by the registry to the proper registry; and
(c) is accepted for filing in accordance with paragraph (1)(c).
2.16 Refusal to accept document for filing
A Registrar may refuse to accept a document for filing (including a document that would, if accepted, become an originating application) if:
(a) the Registrar is satisfied that the document, on its face or by reference to any other documents filed or lodged for filing with the document, is an abuse of process or is frivolous, scandalous or vexatious; or
(b) the document is lodged in connection with a pending proceeding, the registry is not the proper registry and subrule 2.12(4) has not been complied with; or
(c) the document is lodged electronically and the person lodging the document has not complied with the Court’s lodging procedures.
2.17 When documents will not be accepted in a registry
A document will not be accepted for filing if:
(a) the document is not substantially complete; or
(b) the document does not substantially comply with these Rules; or
(c) the document is not properly signed; or
(d) a Registrar has refused to accept the document; or
(e) the Court has given a direction that the document not be accepted; or
(f) the Court has given a direction that the document not be accepted without the Court’s leave, and leave has not been obtained.
Note: If a document is lodged with the Court in accordance with paragraph 2.12(2)(a), (c) or (d) and the registry does not accept it, a Registrar will notify the sender of the document accordingly.
2.18 Documents accepted for filing—removal from Court file and storage
(1) A document which has been accepted for filing will be removed from a Court file if:
(a) the Court has ordered that the document be removed from the Court file:
(ii) on the application of a party under rule 6.01 or subrule 13.15(2); or
(b) for an affidavit—the Court has ordered that the affidavit be removed from the Court file:
(ii) on the application of a party under subrule 17.12(2); or
(c) the Court is satisfied that the document:
(i) is otherwise an abuse of process of the Court; or
(ii) should not, under rule 2.17, have been accepted for filing.
(2) A party may apply to the Court for an order under subparagraph (1)(c)(i) or (ii) that a document be removed from the Court file.
(3) A document removed from a Court file under this rule must be stored:
(a) if an order mentioned in this rule specifies a way to store the document—in the way specified in the order; or
(b) otherwise—as directed by a Registrar.
2.19 Documents on a Court file—removal, redaction and storage
(1) A document on a Court file will be removed from the Court file and replaced with a redacted copy if:
(a) the Court has ordered that the document be removed and replaced:
(ii) on the application of a party under rule 6.01 or subrule 13.15(2); or
(b) for an affidavit—the Court has ordered that the affidavit be removed and replaced with a redacted copy:
(ii) on the application of a party under subrule 17.12(2); or
(c) the Court is satisfied that:
(i) any part of the document is otherwise an abuse of process of the Court; and
(ii) it is reasonably practicable for that part of the document to be redacted.
(2) A party may apply to the Court for an order under paragraph (1)(c) that a document be removed from the Court file and replaced with a redacted copy.
(3) If a part or parts of a document are struck out or removed under this rule:
(a) the corresponding part or parts of the redacted copy of the document must be unable to be read in any way; and
(b) the redacted copy must be marked with:
(i) the date on which the order was made; and
(ii) each date on which redaction was performed.
(4) A document removed from a Court file under this rule must be stored:
(a) if an order mentioned in this rule specifies a way to store the document—in the way specified in the order; or
(b) otherwise—as directed by a Registrar.
Division 2.4—Custody and inspection of documents
2.20 Custody of documents
(1) A registry has custody of:
(a) each document filed in the registry in a proceeding; and
(b) the records of the registry.
(2) A person may remove a document from a registry if:
(a) it is necessary to transfer the document to another registry and a Registrar has given written permission; or
(b) the Court has otherwise permitted or directed the removal.
(3) If the Court permits or directs a person to remove a document from the registry, the person must comply with any conditions on the removal imposed by the Court.
2.21 Inspection of documents
(1) A party may inspect any document in a proceeding other than:
(a) a document for which a claim of privilege has been made:
(i) but not decided by the Court; or
(ii) that the Court has decided is privileged; or
(b) a document that the Court has ordered be confidential.
(2) A person who is not a party may inspect the following documents in a proceeding in the proper registry:
(a) an originating application;
(b) a response or reply;
(c) a notice of address for service;
(d) a pleading or particulars of a pleading or similar document;
(e) a statement of agreed facts or an agreed statement of facts;
(f) an interlocutory application;
(g) a judgment or an order of the Court;
(h) a notice of appeal or cross‑appeal;
(i) a notice of discontinuance;
(j) a notice of withdrawal as lawyer;
(k) reasons for judgment;
(l) a transcript of a hearing heard in open court;
(m) any other document as directed by the Court.
(3) However, a person who is not a party is not entitled to inspect a document that the Court has ordered:
(a) be confidential; or
(b) is forbidden to, or restricted from publication to, the person or a class of persons of which the person is a member.
Note: For the power of the Court to make a suppression order or non‑publication order, see sections 230 and 233 of the Act.
(4) A person may apply to the Court for leave to inspect a document that the person is not otherwise entitled to inspect.
(5) A person may be given a copy of a document, except a copy of the transcript in the proceeding, if the person:
(a) is entitled to inspect the document; and
(b) has paid the prescribed fee.
Note 1: For the prescribed fee, see the Federal Court and Federal Circuit and Family Court Regulations 2022.
Note 2: If there is no order that a transcript is confidential, a person may, on payment of the applicable charge, obtain a copy of the transcript of a proceeding from the Court’s transcript provider.
(6) Subrule (2) does not apply to a migration proceeding, except with leave of the Court.
Division 2.5—Administration of money paid into Court and money paid out
2.22 Dealing with money paid into Court
(1) Money paid into Court in a proceeding must:
(a) if the Court has made an order under subrule (2)—be paid, credited or applied in accordance with the order; or
(b) if paragraph (a) does not apply—be paid into the Litigants’ Fund.
Note: The Chief Executive Officer of the Federal Court has established an account entitled “Federal Court of Australia Official Exempt SPM Litigants’ Fund” under Division 2.5 of the Federal Court Rules. The Litigants’ Fund comprises the money standing, from time to time, to the credit of that account.
(2) The Court may make an order:
(a) that money paid, or to be paid, into Court be paid, credited or applied in a manner other than by payment into the Litigants’ Fund; and
(b) in relation to the disbursement of any interest earned on the money.
Note: As soon as practicable after money has been paid into Court in a proceeding, the relevant Registrar will give a notice to each party stating that the money has been received and giving details of how the money has been paid, credited or applied.
2.23 Payment out of Litigants’ Fund
(1) Money paid into Court under rule 2.22 may be paid out or applied only in accordance with an order of the Court.
(2) However, the Registrar may pay out of the Litigants’ Fund money that has been paid in as security for costs.
Note 1: An order under this rule will state:
(a) the details of the payment to be made; and
(b) any other action to be taken by a Registrar in relation to the money.
Note 2: As soon as practicable after money is paid out of the Litigants’ Fund, the relevant Registrar will give a notice to each party.
Part 3—Registrars
Division 3.1—Powers of Registrars
3.01 Delegation of powers to Registrars
For subsection 254(1) of the Act, a power of the Court mentioned in an item of the table in Schedule 1 to these Rules is delegated to a Registrar (an approved Registrar) who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power.
Note 1: Subsection 254(1) of the Act enables the Chief Judge to make Rules of Court delegating powers to a delegate or prescribed class of delegate. A Registrar is a delegate (see paragraph (b) of the definition of delegate in subsection 7(1) of the Act).
Note 2: For Registrar, see rule 1.20.
Note 3: If a power of the Court is delegated to a Registrar under this rule:
(a) the Registrar has, in exercising the power, the same protection and immunity as a Judge has in performing the functions of a Judge (see section 257 of the Act); and
(b) a party, legal practitioner or witness appearing before a Registrar on the hearing of any application or matter, or on the conducting of any conference or enquiry, has the same protection and immunity as if appearing in a proceeding in the Court (see subsection 254(4) of the Act).
3.02 Authority to administer oaths and affirmations
A Registrar may administer an oath or affirmation in a proceeding.
3.03 Orders other than in open court
A Registrar may make an order other than in open court.
3.04 Application for orders in relation to Registrars
A person may apply to the Court without notice for an order that a Registrar do any act or thing that the Registrar is required or entitled to do but has refused to do.
Division 3.2—Reviewing a Registrar’s exercise of power
3.05 Application for review of a Registrar’s exercise of power
(1) A party may apply to the Court under subsection 256(1) of the Act for review of the exercise of a power of the Court by a Registrar.
(2) The application must be in the approved form.
3.06 Time for application for review
(1) The application for review of the exercise of a power by a Registrar must be made within 21 days after the day on which the power is exercised.
(2) The applicant must serve a sealed copy of the application on each other party to the proceeding within 7 days after the application is filed.
(3) The application must be listed for a hearing as soon as possible and, unless it is impracticable to do so, within 28 days after the date of filing.
Note 1: Documents marked with the stamp of the Court are as valid and effectual as if sealed with the seal of the Court (see subsection 179(2) of the Act).
Note 2: A person may apply for an extension of time within which to make an application for review (see rule 1.15).
3.07 No stay of power under review
The application for review of an exercise of power by a Registrar does not operate as a stay of the exercise of power.
3.08 Procedure for review
(1) The Court must hear an application for review of an exercise of power by a Registrar as a hearing de novo.
(2) In the review, the Court:
(a) must receive as evidence any affidavit or exhibit tendered before the Registrar; and
(b) may with leave receive further evidence; and
(c) may receive as evidence:
(i) any transcript of the proceeding before the Registrar; or
(ii) if there is no transcript—an affidavit about the evidence that was adduced at the first hearing, sworn or affirmed by a person who was present at the first hearing.
Part 4—Lawyers
Division 4.1—Legal representation
4.01 Proceeding by lawyer or in person
(1) A person may be represented in the Court by a lawyer or may be unrepresented.
(2) A corporation must be represented in the Court by a lawyer.
Note 1: For corporation and lawyer, see rule 1.20.
Note 2: A notice of address for service for a corporation must be filed by a lawyer (see rule 10.21).
Note 3: The Court may dispense with compliance with the Rules (see rule 1.10).
4.02 Appointment of a lawyer—during a proceeding
If a party is unrepresented when a proceeding starts and later appoints a lawyer to represent the party in the proceeding, the lawyer must file a notice of address for service in the approved form.
4.03 Change of lawyer—during a proceeding
(1) At any stage in a proceeding, a party may appoint another lawyer in place of the lawyer then acting for the party.
(2) As soon as practicable, the newly appointed lawyer must file and serve on each other party and the party’s former lawyer a notice of address for service in the approved form.
(3) The party’s former lawyer remains the lawyer on the record until the newly appointed lawyer has complied with subrule (2).
Note: Rule 10.20 contains requirements about the address for service.
4.04 Removal of lawyer and no new lawyer appointed
(1) If a party appoints a lawyer and later decides to act in person, the party must, as soon as practicable, file and serve on the lawyer and each other party a notice of acting in person.
Note: Rule 10.20 contains requirements about the address for service.
(2) The party’s former lawyer remains the lawyer on the record until the party has complied with subrule (1).
(3) If a party does not file the documents required by subrule (1), the former lawyer may file a notice of withdrawal in accordance with rule 4.05.
(4) Notice under this rule must contain details of an address for service, as set out in the approved form.
4.05 Withdrawal as lawyer
(1) A lawyer for a party may withdraw from the record in a proceeding by filing:
(a) a notice of withdrawal in the approved form; and
(b) a notice of intention to withdraw served in accordance with subrule (2).
(2) A lawyer may file a notice of withdrawal without leave of the Court only if, at least 7 days before filing the notice, the lawyer has served a notice of intention to withdraw on the party for whom the lawyer is acting.
(3) A notice of intention to withdraw must be in the approved form.
(4) A lawyer may serve a notice of intention to withdraw on a party by:
(a) emailing the notice to the email address of the party last known to the lawyer; or
(b) posting the notice to the residential or business address of the party last known to the lawyer.
(5) A party whose lawyer has filed a notice under paragraph (1)(a) must file a notice of address for service within 5 days after the lawyer’s notice is filed.
(6) If a party’s lawyer withdraws, the party’s last‑known residential or business address or last‑known email address is the address for service until:
(a) the party appoints another lawyer; or
(b) the party files a notice of address for service.
Note: If a party’s address for service changes for any reason during a proceeding, the party must file a notice of address for service (see rule 10.28).
Division 4.2—Court referral for legal assistance
4.06 Referral for legal assistance
(1) The Court may refer a party to a lawyer for legal assistance by issuing a referral certificate.
(2) In making a referral under subrule (1), the Court may take the following matters into account:
(a) the party’s means;
(b) the party’s capacity to otherwise obtain legal assistance;
(c) the nature and complexity of the proceeding;
(d) any other matters the Court considers appropriate.
(3) The referral certificate may state the kind of legal assistance for which the party has been referred.
(4) A Registrar will attempt to arrange for legal assistance to be provided in accordance with the referral certificate to a pro bono lawyer.
4.07 A party has no right to apply for a referral
A party is not entitled to apply to the Court for a referral under rule 4.06.
4.08 Acceptance of referral and provision of legal assistance
If a lawyer accepts a referral under rule 4.06, the lawyer must provide legal assistance in accordance with the referral certificate.
4.09 Ceasing to provide legal assistance
If a pro bono lawyer no longer wishes to provide legal assistance, the lawyer must withdraw in accordance with rule 4.05.
4.10 Disbursements
A pro bono lawyer may ask the assisted party to pay any disbursements reasonably incurred, or reasonably to be incurred, by the pro bono lawyer on behalf of the assisted party in relation to the legal assistance.
Part 5—Court supervision of proceedings
Division 5.1—First court date and directions
5.01 Parties to attend Court on first court date
A party, or the party’s lawyer, must attend the Court on the court date fixed in the originating application.
Note 1: For originating application, see rule 1.20.
Note 2: When a proceeding is started, a Registrar will fix a first court date and a place for hearing and will endorse those details on the originating application.
Note 3: It is the Court’s practice that, unless otherwise notified to the parties, a first court date is not fixed in a migration proceeding.
5.02 Parties to file notice of address for service before first court date
A respondent who has been served with an originating application must file a notice of address for service in the approved form before the court date fixed in the originating application.
Note: For requirements about the address for service, see rule 10.20.
5.03 Making directions
(1) At any hearing, the Court may make directions for the management, conduct and hearing of a proceeding.
Note: For direction, see rule 1.20.
(2) A party, or the party’s lawyer, must attend each hearing for the proceeding.
Note: Hearing is defined in rule 1.20 to include a first court date, directions hearing and callover.
(3) Without limiting subrule (1), the Court may make a direction mentioned in the following table.
Item
A direction in relation to …
1
Dispute resolution, including mediation
2
The manner and sufficiency of service
3
Amendments to applications, responses and pleadings
4
The defining of the issues
5
The filing and service of affidavits
6
Cross‑claims
7
The joinder of parties
8
The admissibility of affidavits and use of affidavits
9
Discovery and inspection of documents
10
Inspection of real or personal property
11
Admissions of fact or of documents
12
The giving of particulars
13
The giving of evidence at hearing (including taking evidence by video link or telephone or other means)
14
Expert evidence and court experts
15
The transfer of the proceeding
16
The place, time and manner of hearing
17
The providing and limiting of written submissions
18
The receipt of submissions by video link or telephone or other means
19
Case management
20
Costs
21
Any other matter that the Court considers appropriate
5.04 Application for directions—cross‑claims
(1) If a response makes a cross‑claim, the parties to the cross‑claim, or the parties’ lawyers, must attend the Court on the first court date.
(2) A party may apply to the Court for directions for the management, conduct and hearing of the cross‑claim.
5.05 Interlocutory orders
A party who wants to obtain an interlocutory order must make an application in accordance with rule 14.01.
Note: Part 14 deals with interlocutory applications.
5.06 Hearing and determination of matter at directions hearing
A party may apply to the Court at a directions hearing:
(a) to hear and determine the proceeding at the directions hearing; or
(b) to dispose of an originating application or a cross‑claim at the directions hearing.
Division 5.2—Orders on default
5.07 Self‑executing orders
A party may apply to the Court for an order that, unless another party does an act or thing within a certain time:
(a) the proceeding be dismissed; or
(b) the applicant’s statement of claim, or alternative accompanying document referred to in rule 8.04, be struck out; or
(c) a pleading of the respondent be struck out; or
(d) the party have judgment against the other party.
5.08 When an applicant is in default
For the purposes of rule 5.10, an applicant is in default if the applicant does not:
(a) do an act required to be done, or do an act in the time required, by these Rules; or
(b) comply with an order of the Court in the proceeding; or
(c) attend a hearing in the proceeding; or
(d) prosecute the proceeding with due diligence.
5.09 When a respondent is in default
For the purposes of rule 5.11, a respondent is in default if the respondent:
(a) has not satisfied the applicant’s claim; and
(b) does not:
(i) do an act required to be done, or do an act in the time required, by these Rules; or
(ii) comply with an order of the Court in the proceeding; or
(iii) attend a hearing in the proceeding; or
(iv) defend the proceeding with due diligence.
5.10 Orders on default—applicant
If an applicant is in default, the Court may:
(a) stay or dismiss the proceeding for the whole or any part of the relief claimed by the applicant:
(i) immediately; or
(ii) on conditions specified in the order; or
(b) order that a step in the proceeding be taken within a specified time; or
(c) if the applicant does not take a step in the time mentioned in paragraph (b)—stay or dismiss the proceeding for the whole or any part of the relief claimed by the applicant.
5.11 Orders on default—respondent
If a respondent is in default, the Court may:
(a) order that a step in the proceeding be taken within a specified time; or
(b) if the claim against the respondent is for a debt or liquidated damages—give judgment against the respondent for:
(i) the debt or liquidated damages; and
(ii) if appropriate, interest and costs in a sum fixed by the Court or to be taxed; or
(c) if the proceeding was started by an originating application supported by a statement of claim or an alternative accompanying document referred to in rule 8.04, or if the Court has ordered that the proceeding continue on pleadings—give judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled; or
(d) give judgment against the respondent for damages to be assessed, or any other order; or
(e) direct that an order mentioned in paragraph (b), (c) or (d) is to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order.
Note 1: The Court may make any order that the Court considers appropriate in the interests of justice (see rule 1.08).
Note 2: An order or judgment under this Division may be set aside or varied.
5.12 Court’s powers in relation to contempt not affected
This Division does not limit the power of the Court to punish for contempt or impose sanctions for failure to comply with an order.
Part 6—Court supervision of parties and other persons
Division 6.1—Vexatious proceedings
6.01 Scandalous, vexatious or oppressive matter
If a document filed in a proceeding contains matter that is scandalous, vexatious or oppressive, a party may apply to the Court for an order that:
(a) the document be removed from the Court file; or
(b) the matter be struck out of the document.
6.02 Certificate of vexatious proceedings order
(1) A person who wants the Chief Executive Officer to issue a certificate under section 240 of the Act must make the request in writing and include in the request:
(a) the applicant’s name and address; and
(b) the person’s interest in making the request.
Note: Section 240 of the Act allows a person to ask the Chief Executive Officer of the Court for a certificate stating whether a person named in the request is or has been the subject of a vexatious proceedings order.
(2) The request must be lodged in the registry in which the vexatious proceedings order was made.
(3) The certificate must state:
(a) the name of the person subject to the vexatious proceedings order; and
(b) the name of the person who applied for the vexatious proceedings order (unless publication or disclosure of the person’s name is restricted); and
(c) the date on which the vexatious proceedings order was made; and
(d) the orders made by the Court.
6.03 Application for leave to institute proceedings
An application under subsection 242(2) of the Act for leave to institute a proceeding that is subject to a vexatious proceedings order must be made without notice to any other person.
Note 1: A person who is subject to a vexatious proceedings order may apply to the Court for leave to institute a proceeding (see subsection 242(2) of the Act).
Note 2: For the contents of the affidavit that must be filed with the application, see subsection 242(3) of the Act.
Division 6.2—Use of communication and recording devices in Court
6.04 Use of communication device or recording device in place where hearing taking place
(1) A person must comply with any directions made by the Court at the hearing of any proceeding in the Court relating to the use of a communication device or recording device.
(2) A person must not use a recording device for the purpose of recording or making a transcript of the evidence or submissions in a hearing in the Court.
(3) A person must not use a communication device or a recording device that might:
(a) disturb a hearing in the Court; or
(b) cause any concern to a witness or other participant in the hearing; or
(c) allow a person who is not present in the Court to receive information about the proceeding or the hearing to which the person is not entitled.
Note 1: The Court may have regard to any relevant matter, including the following:
(a) why the person needs to use the device in the hearing;
(b) if an order has been given excluding one or more witnesses from the Court—whether there is a risk that the device could be used to brief a witness out of court;
(c) whether the use of the device would disturb the hearing or distract or cause concern to a witness or other participant in the hearing.
Note 2: The Court may dispense with compliance with the Rules (see rule 1.10).
6.05 Contempt
Rule 6.04 does not limit the powers of the Court to punish for contempt.
Chapter 2—Proceedings generally
Part 7—Orders before start of a proceeding
Division 7.1—General
7.01 Application for order before start of proceeding
(1) If a matter is urgent, a person who intends to start a proceeding (a prospective applicant) may apply to the Court, with or without notice, as if the prospective applicant had started the proceeding and the application had been made in the proceeding.
(2) To the extent relevant, the applicable Federal Court Rules will apply in relation to the following matters:
(a) injunctions and preservation of property;
(b) approval of an agreement with a person who needs a litigation guardian;
(c) preliminary discovery;
(d) appointment of receivers.
(3) A prospective applicant seeking an order under this rule must give an undertaking to the Court to start a proceeding in relation to the subject matter of the application within 14 days after the application has been determined.
Division 7.2—Freezing orders
Note: This Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee.
7.02 Freezing order
(1) The Court may make an order (a freezing order) for the purpose of preventing the frustration or inhibition of the Court’s process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied.
(2) A freezing order may be made without notice to a respondent.
(3) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, those assets.
7.03 Ancillary order
(1) The Court may make an order (an ancillary order) ancillary to a freezing order or prospective freezing order as the Court considers appropriate.
(2) Without limiting subrule (1), an ancillary order may be made for either or both of the following purposes:
(a) eliciting information relating to assets relevant to the freezing order or prospective freezing order;
(b) determining whether the freezing order should be made.
7.04 Order may be against person not a party to proceeding
The Court may make a freezing order or an ancillary order against a person even if the person is not a party in a proceeding in which substantive relief is sought against the respondent.
7.05 Order against judgment debtor or prospective judgment debtor or third party
(1) This rule applies if:
(a) judgment has been given in favour of an applicant:
(i) by the Court; or
(ii) for a judgment to which subrule (2) applies—by another court; or
(b) an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in:
(i) the Court; or
(ii) for a cause of action to which subrule (3) applies—another court.
(2) This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the Court.
(3) This subrule applies to a cause of action if:
(a) there is a sufficient prospect that the other court will give judgment in favour of the applicant; and
(b) there is a sufficient prospect that the judgment will be registered in or enforced by the Court.
(4) The Court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur:
(a) the judgment debtor, prospective judgment debtor or another person absconds;
(b) the assets of the judgment debtor, prospective judgment debtor or another person are:
(i) removed from Australia or from a place inside or outside Australia; or
(ii) disposed of, dealt with or diminished in value.
(5) The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the Court is satisfied, having regard to all the circumstances, that:
(a) there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because:
(i) the third party holds or is using, or has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or
(ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or
(b) a process in the Court is or may ultimately be available to the applicant as a result of a judgment or prospective judgment, and under that process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment.
(6) Nothing in this rule affects the power of the Court to make a freezing order or ancillary order if the Court considers it is in the interests of justice to do so.
7.06 Jurisdiction
Nothing in this Division diminishes the statutory or implied jurisdiction of the Court to make a freezing order or ancillary order.
7.07 Service outside Australia of application for freezing order or ancillary order
An application for a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia) if any of the assets to which the order relates are within the jurisdiction of the Court.
Note: For service outside Australia, see subrule 1.06(2) and the Federal Court Rules, Division 10.4.
7.08 Costs
(1) The Court may make any order as to costs it considers appropriate in relation to an order made under this Division.
(2) Without limiting subrule (1), an order as to costs includes an order as to the costs of any person affected by a freezing order or ancillary order.
Division 7.3—Search orders
Note: This Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee.
7.09 Search order
(1) The Court may make an order (a search order) in a proceeding or in anticipation of a proceeding in the Court to secure or preserve evidence that is, or may be, relevant to an issue in the proceeding or anticipated proceeding.
(2) The search order may require a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence.
(3) The Court may make a search order without notice to the respondent.
7.10 Requirements for grant of search order
The Court may make a search order if the Court is satisfied that:
(a) an applicant seeking the order has a strong prima facie case on an accrued cause of action; and
(b) the potential or actual loss or damage to the applicant will be serious if the search order is not made; and
(c) there is sufficient evidence in relation to a respondent that:
(i) the respondent possesses important evidentiary material; and
(ii) there is a real possibility that the respondent might destroy that material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the Court.
7.11 Jurisdiction
Nothing in this Division diminishes the statutory or implied jurisdiction of the Court to make a search order.
7.12 Terms of search order
(1) A search order may direct each person who is named or described in the order:
(a) to permit, or arrange to permit, other persons named or described in the order:
(i) to enter premises specified in the order; and
(ii) to take any steps that are in accordance with the terms of the order; and
(b) to provide, or arrange to provide, other persons named or described in the order with any information, thing or service described in the order; and
(c) to allow other persons named or described in the order to take and retain in their custody any thing described in the order; and
(d) not to disclose any information about the order, for up to 3 days after the date the order was served, except for the purposes of obtaining legal advice or legal representation; and
(e) to do or refrain from doing any act, as the Court considers appropriate.
(2) Without limiting subparagraph (1)(a)(ii), the steps that may be taken in relation to a thing specified in a search order include:
(a) searching for, inspecting or removing the thing; and
(b) making or obtaining a record of the thing or any information it may contain.
(3) A search order may contain other provisions the Court considers appropriate.
(4) In subrule (2):
record includes a copy, photograph, film or sample.
7.13 Independent lawyers
(1) If the Court makes a search order, the Court must appoint one or more lawyers, each of whom is independent of the applicant’s lawyer, (the independent lawyers):
(a) to supervise the execution of the order; and
(b) to do any other act or thing in relation to the order that the Court considers appropriate.
(2) The Court may appoint an independent lawyer to supervise execution of the order at any one or more premises.
(3) The Court may appoint a different independent lawyer or lawyers to supervise execution of the order at other premises.
(4) The Court may order that each independent lawyer have power to do any other act or thing in relation to the order that the Court considers appropriate.
7.14 Costs
(1) The Court may make any order for costs that it considers appropriate in relation to an order made under this Division.
(2) Without limiting subrule (1), an order for costs includes an order for the costs of any person affected by a search order.
Part 8—Starting a proceeding
Division 8.1—Originating applications
8.01 Starting a proceeding—originating application
(1) A person who wants to start a proceeding must file an originating application in the approved form.
(2) An originating application must include:
(a) the applicant’s name and address; and
(b) the applicant’s address for service.
(3) If an originating application states that the applicant is represented by a lawyer:
(a) the lawyer must, if requested in writing by a respondent, declare in writing whether the lawyer filed the originating application; and
(b) if the lawyer declares in writing that the lawyer did not file the originating application, the respondent may apply to the Court to stay the proceeding.
8.02 Applicant’s genuine steps statement
(1) If Part 2 of the Civil Dispute Resolution Act applies to a proceeding, the applicant in the proceeding must, when filing the originating application, file the applicant’s genuine steps statement in the approved form.
(2) The applicant’s genuine steps statement must comply with section 6 of the Civil Dispute Resolution Act.
(3) The applicant’s genuine steps statement must be no more than 2 pages.
Note 1: For Civil Dispute Resolution Act, see rule 1.20.
Note 2: A party who wants to start a proceeding must have regard to the Civil Dispute Resolution Act before starting the proceeding to determine whether the Civil Dispute Resolution Act applies to the proceeding.
Note 3: A lawyer must comply with section 9 of the Civil Dispute Resolution Act if that Act applies to the proceeding.
8.03 Application to state relief claimed
(1) An originating application must state:
(a) the relief claimed; and
(b) if the relief is claimed under a provision of an Act—the Act and the provision under which the relief is claimed.
(2) An originating application claiming relief of the kind mentioned in column 2 of the following table must state the details mentioned in column 3 of the table.
Item
Relief sought
Details
1
Interlocutory relief
The interlocutory order sought
2
An injunction
The order sought
3
A declaration
The declaration sought
4
Damages
To the extent possible, the amount of damages claimed
5
Exemplary damages
The claim for exemplary damages
(3) The originating application need not include a claim for costs.
8.04 Accompanying document for originating application
(1) An originating application must be accompanied by:
(a) unless paragraph (b) or (c) applies:
(i) an affidavit; or
(ii) a statement of claim or points of claim; or
(b) if a practice direction issued by the Chief Judge requires the originating application to be accompanied by an alternative accompanying document—the alternative accompanying document; or
(c) if a practice direction issued by the Chief Judge permits the originating application to be accompanied by an alternative accompanying document—the alternative accompanying document, an affidavit or a statement of claim or points of claim.
Note 1: A practice direction issued by the Chief Judge may require or permit an alternative accompanying document to accompany an originating application by:
(a) expressly requiring or permitting the alternative accompanying document to accompany the originating application; or
(b) referring to another document that requires or permits the alternative accompanying document to accompany the originating application.
Note 2: When an originating application and accompanying document are filed, a Registrar will fix a first court date and a place for hearing and will endorse those details on the application.
Note 3: If the Court has made an order shortening the time for service of the application, a Registrar will endorse details of the order on the application.
(2) Subrule (1) does not apply to:
(a) an application filed in accordance with rule 29.02; or
(b) an application filed in the Fair Work Division in accordance with rule 31.03, 31.04, 31.05, 31.06, 31.07, 31.09 or 31.11.
(3) An affidavit referred to in subrule (1) must state the material facts on which the applicant relies that are necessary to give the respondent fair notice of the case to be made against the respondent at trial.
Note 1: For the content of a statement of claim, see Division 13.1.
Note 2: For the content of an alternative accompanying document, see rule 13.14.
(4) This rule has effect subject to any other rule of the Court.
Note 1: For some special classes of proceeding, requirements for the documents that must accompany an originating application are found in Chapter 3.
Note 2: This rule does not apply to the initiating process in proceedings under the Admiralty Act 1988 (see the Admiralty Rules 1988).
8.05 Service of originating documents
(1) The applicant must serve a copy of the following personally on each respondent named in the originating application:
(a) the originating application;
(b) each other document required to accompany the application by rule 8.04 or any other rule of the Court.
Note: Division 10.1 deals with personal service. For service outside Australia, see subrule 1.06(2) of these Rules and Division 10.4 of the Federal Court Rules.
(2) The applicant must serve the documents described in subrule (1) as soon as practicable and at least 5 days before the first court date.
Note 1: The Court may extend or shorten the time for service (see rule 1.15).
Note 2: Documents should generally be served as soon as practicable after filing (which may be immediately).
(3) A document must be served within 12 months after filing.
Note: The Court may dispense with compliance with the Rules and may make orders inconsistent with the Rules (see rules 1.10 and 1.11).
8.06 Changing first court date
(1) If an originating application has not been served, the applicant may ask a Registrar to change the first court date fixed in the originating application.
(2) The applicant may apply to change the first court date by lodging an amended originating application electronically with the Court for filing, in accordance with rule 2.12.
(3) If:
(a) the applicant applies to change the first court date otherwise than by lodging an amended originating application electronically with the Court for filing; and
(b) a Registrar changes the first court date;
the applicant must change the court date endorsed on the copy of the application that is to be served.
Division 8.2—Notice of constitutional matter
8.07 Notice of constitutional matter
(1) A party to a proceeding who becomes aware that the proceeding involves a matter arising under the Constitution or involving its interpretation, within the meaning of section 78B of the Judiciary Act 1903, must file a notice of a constitutional matter in the proper registry.
(2) The notice may be in the form prescribed for the purpose under the Federal Court Rules and must state:
(a) the nature of the matter; and
(b) the facts showing that section 78B of the Judiciary Act 1903 applies.
8.08 Service of notice
(1) The party filing the notice must:
(a) serve a copy of the notice on:
(i) the Attorneys‑General of the Commonwealth and each of the States and Territories; and
(ii) each other party; and
(b) as soon as practicable after serving the notice, file an affidavit of service; and
(c) give a copy of each document filed in the proceeding relevant to the constitutional matter (whether filed before or after the notice) to any Attorney‑General who has intervened, as soon as practicable after notice of the intervention is given to the party.
(2) The notice must be served:
(a) if the matter arises in any originating application—within 7 days after the day the application is filed; or
(b) if the matter arises in any pleading—within 7 days after the pleading is filed; or
(c) if the matter arises before the date fixed for a hearing of a proceeding and paragraph (a) or (b) does not apply—at least 14 days before the date fixed for the hearing; or
(d) in any other case—within the time that the Court directs.
Note 1: For the Court’s powers when a constitutional matter arises, see subsections 78B(2) and (5) of the Judiciary Act 1903.
Note 2: Section 78B of the Judiciary Act 1903 provides that once a court becomes aware that a proceeding involves a matter referred to in that section, the court must not proceed to determine the proceeding until it is satisfied that notice of the proceeding has been given to the Attorneys‑General of the Commonwealth and of the States and Territories.
Division 8.3—Amendment of originating application
8.09 Amendment generally
An applicant may apply to the Court for leave to amend an originating application for any reason, including:
(a) to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the proceeding; or
(b) to avoid the multiplicity of proceedings; or
(c) to correct a mistake in the name of a party to the proceeding; or
(d) to correct the identity of a party to the proceeding; or
(e) to change the capacity in which the party is suing in the proceeding, whether the changed capacity is one that the party had when the proceeding started or has acquired since that time; or
(f) to substitute a person for a party to the proceeding; or
(g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:
(i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or
(ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.
Note 1: For the Court’s power to make rules about amending a document, see subsection 219(2) of the Act.
Note 2: For paragraph (b) and the avoidance of multiplicity of proceedings, see section 139 of the Act.
Note 3: Rule 9.05 deals with joinder of parties by Court order.
8.10 Amendment after limitation period
(1) An applicant may apply to the Court for leave to amend an originating application in accordance with paragraph 8.09(c), (d) or (e) or subparagraph 8.09(g)(i) even if the application is made after the end of any relevant limitation period applying at the date the proceeding was started.
(2) However, an applicant must not apply to amend an originating application in accordance with subparagraph 8.09(g)(ii) after the time within which any statute that limits the time within which a proceeding may be started has expired.
8.11 Date on which amendment to substitute a party takes effect
If an originating application is amended with the effect that another person is substituted as a party to the proceeding, the proceeding is taken to have started for that person on the day the application is amended.
8.12 Procedure for amending an originating application
An applicant given leave to amend an originating application must file an amended application:
(a) with the amendment clearly marked; and
(b) endorsed with:
(i) the date of the order giving leave to amend; and
8.13 Time for amending an originating application under Court order
An order that an applicant be permitted to amend an originating application ceases to have effect unless the applicant amends the application in accordance with the order within:
(b) if no period is specified in the order—14 days after the date on which the order permitting the amendment was made.
Note: If the Court permits an applicant to amend an originating application, the Court may also make orders about the procedure for amending the application and serving the application.
8.14 Service of amended originating application
If an originating application is amended after it has been served, the applicant who made the amendment must, as soon as practicable after the amendment is made, serve a copy of the amended application on the parties on whom the originating application was served.
Note: The Court may dispense with service of the amended application.
Division 8.4—Responding to originating application
8.15 Response to originating application
(1) A respondent to an originating application who seeks to do any of the following in response to the application must file a response in the approved form:
(a) indicate consent to an order sought by the applicant;
(b) ask the Court to dismiss or set aside the application;
(c) make a cross‑claim.
(2) A response must include the following:
(a) the respondent’s name and address;
(b) the respondent’s address for service.
(3) A response making a cross‑claim must state:
(a) the relief claimed and the basis on which the relief is claimed; and
(b) if the relief is claimed under a provision of an Act—the Act and the provision under which the relief is claimed.
(4) If a statement of claim or points of claim are filed with the originating application, a respondent who wishes to defend the proceeding:
(a) must file a defence or points of defence with the response; and
(b) may make a cross‑claim.
(5) Subject to subrule (6), if an affidavit is filed with the originating application, a respondent:
(a) must file an affidavit with the response, stating the facts relied on; and
(b) may make a cross‑claim.
(6) An affidavit is not required if:
(a) the respondent is indicating consent to the orders sought by the applicant; or
(b) the proceeding is a migration proceeding.
(7) A response must be filed within 28 days after service of the originating application to which it relates.
Note 1: File is defined in rule 1.20 as meaning file and serve.
Note 2: A response to an application under Part 25 (migration proceedings) must comply with the additional requirements of rule 25.05.
Note 3: A respondent who starts a cross‑claim is the cross‑claimant. The party or person against whom the cross‑claim is brought is the cross‑respondent.
8.16 Respondent’s genuine steps statement
(1) If an applicant has filed a genuine steps statement, the respondent must file the respondent’s genuine steps statement in the approved form within 28 days after the applicant’s originating application is served.
(2) The respondent’s genuine steps statement must comply with section 7 of the Civil Dispute Resolution Act.
(3) The respondent’s genuine steps statement must be no more than 2 pages.
Note 1: For Civil Dispute Resolution Act, see rule 1.20.
Note 2: Rule 8.02 requires an applicant in a proceeding to which the Civil Dispute Resolution Act applies to file the applicant’s genuine dispute resolution statement at the same time as the originating application is filed.
Division 8.5—Making a cross‑claim
8.17 Cross‑claim by respondent when filing a response
(1) A respondent may make a cross‑claim in a proceeding:
(a) against an applicant—for any relief to which the respondent would be entitled against the applicant in a separate proceeding; or
(b) against any other respondent or person—for any relief that is related to the subject of the proceeding.
(2) To make a cross‑claim, the respondent must file a response in accordance with rule 8.15.
Note 1: Rule 8.15 requires a respondent who wants to make a cross‑claim to file a response within 28 days after the originating application is served.
Note 2: A respondent who starts a cross‑claim is the cross‑claimant. The party or person against whom the cross‑claim is brought is the cross‑respondent.
8.18 Cross‑claim by respondent after filing a response
(1) A respondent who wants to make a cross‑claim after filing a response that does not make a cross‑claim must apply to the Court for leave to file an amended response.
(2) An application under subrule (1) must be accompanied by an affidavit stating:
(a) briefly but specifically, the nature of the cross‑claim and its relationship to the subject matter of the proceeding; and
(b) why the cross‑claim was not made in accordance with rule 8.15.
8.19 Statement of cross‑claim or affidavit to accompany response
(1) If a statement of claim or points of claim or an alternative accompanying document referred to in rule 8.04 is filed with the originating application, a cross‑claimant must file a statement of cross‑claim or points of cross‑claim with the response.
Note: Division 13.1 provides for the content of a statement of claim.
(2) If an affidavit is filed with the originating application, a cross‑claimant must file an affidavit with the response, stating the material facts on which the cross‑claimant relies that are necessary to give the cross‑respondent fair notice of the case to be made against the cross‑respondent at trial.
(3) If an order has been made in the principal proceeding that the principal proceeding continue on pleadings, a cross‑claimant must file a statement of cross‑claim with the response.
Note 1: In some cases in Chapter 3, the rules prescribe the documents that must accompany an originating application.
Note 2: A cross‑claimant’s statement of cross‑claim must comply with rule 13.02.
8.20 Relief sought in cross‑claim
(1) A cross‑claim claiming relief of the kind mentioned in column 2 of the following table must state the details mentioned in column 3 of the table.
Item
Relief sought
Details
1
Interlocutory relief
The interlocutory order sought
2
An injunction
The order sought
3
A declaration
The declaration sought
4
Damages
To the extent possible, the amount of damages claimed
5
Exemplary damages
The claim for exemplary damages
(2) A cross‑claim need not include a claim for costs.
8.21 Service on cross‑respondent
(1) A cross‑claimant must, as soon as reasonably practicable, serve on each cross‑respondent:
(a) a copy of the response making the cross‑claim; and
(b) any documents accompanying the response; and
(c) if a person is made a party to the proceeding by the making of the cross‑claim—the originating application and any pleadings or documents already filed in the proceeding.
(2) If a cross‑respondent has not filed a notice of address for service, the documents referred to in subrule (1) must be served personally.
8.22 Cross‑respondent’s reply to cross‑claim
(1) A cross‑respondent may file a reply to the response making a cross‑claim in accordance with the approved form.
(2) A reply must be filed within 14 days after the cross‑respondent is served with the response and cross‑claim to which the reply relates.
8.23 Conduct of proceeding after cross‑claim is filed
(1) To the extent practicable and not inconsistent with this Part:
(a) the parties must conduct a cross‑claim in the same way as the principal proceeding; and
(b) these Rules apply to the cross‑claim in the same way as they apply to the principal proceeding; and
(c) the trial or a hearing, or any other step, in relation to the cross‑claim is to be carried out at the same time as the trial or hearing, or any other step, in relation to the originating application.
(2) To give effect to this rule:
(a) a cross‑claimant is to be treated as an applicant; and
(b) a cross‑respondent is to be treated as a respondent.
8.24 Separate proceeding in relation to cross‑claim
A cross‑claim may proceed even if:
(a) an order has been entered in the principal proceeding or any other cross‑claim in the proceeding; or
(b) the principal proceeding or any other cross‑claim has been stayed, dismissed or discontinued.
8.25 Cross‑claim for contribution or indemnity
If a cross‑claimant makes a cross‑claim for contribution or indemnity and an order for contribution is made, the order must not be enforced until any order for the applicant against that cross‑claimant has been satisfied.
8.26 Hearings in relation to cross‑claims
A party to a cross‑claim may apply to the Court for an order:
(a) that any claim, question or issue arising in the cross‑claim be tried in accordance with an order of the Court; or
(b) permitting a cross‑respondent to defend the claim made in the principal proceeding or any other cross‑claim in the proceeding, either alone or with another party; or
(c) permitting a cross‑respondent to appear at the hearing of the principal proceeding or any other cross‑claim in the proceeding, and to participate in the hearing as the Court considers appropriate; or
(d) determining the extent to which the cross‑claimant, and a cross‑respondent, are to be bound as between each other by an order or a decision made in relation to the principal proceeding or any other cross‑claim in the proceeding; or
(e) for the hearing and determination of the principal proceeding and the cross‑claim; or
(f) dismissing the cross‑claim.
8.27 Co‑cross‑respondents
If a cross‑claimant claims relief against 2 or more cross‑respondents, and is allowed to require a cross‑respondent to give discovery under Part 16, the cross‑respondent must serve the cross‑respondent’s list of documents and affidavit on the cross‑claimant and on each other cross‑respondent who has filed a defence.
Division 8.6—Amending a response, including a cross‑claim
8.28 Amendment generally
(1) A respondent may apply to the Court for leave to amend a response for any reason, including:
(a) to correct a defect or error that would otherwise prevent the Court from determining the real questions raised by the response; or
(b) to avoid the multiplicity of proceedings; or
(c) to correct a mistake in the name of a party to the proceeding; or
(d) to correct the identity of a party to the proceeding; or
(e) to change the capacity in which the party is acting in the proceeding, whether the changed capacity is one that the party had when the proceeding was started or has acquired since that time; or
(f) to substitute a person for a party to the proceeding; or
(g) to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises:
(i) out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the applicant; or
(ii) in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding.
Note: For paragraph (1)(b) and the avoidance of multiplicity of proceedings, see section 139 of the Act.
(2) A respondent may apply to the Court for leave to amend a response in accordance with paragraph (1)(c), (d) or (e) or subparagraph (1)(g)(i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started.
(3) However, a respondent must not apply to amend a response in accordance with subparagraph (1)(g)(ii) after the time within which any statute that limits the time within which a proceeding may be started has expired.
Note 1: For cross‑claim, see rule 1.20.
Note 2: For the Court’s power to make rules amending a document, see subsection 219(2) of the Act.
Note 3: Rule 9.05 deals with joinder of parties by Court order.
(4) A respondent in a migration proceeding does not require leave of the Court to amend a response. However, when amending a response in a migration proceeding, the respondent must otherwise comply with rules 8.29 and 8.31.
8.29 Procedure for amending a response
A respondent given leave to amend a response must file an amended response:
(a) with the amendments clearly marked; and
(b) endorsed with:
(i) the date of the order giving leave to amend; and
8.30 Time for amending response under Court order
An order that a respondent be permitted to amend a response ceases to have effect unless the respondent amends the response in accordance with the order within:
(b) if no period is specified in the order—14 days after the date on which the order permitting the amendment was made.
Note: If the Court permits a respondent to amend a response, the Court may also make orders about the procedure for serving the response.
8.31 Service by respondent of amended response
If a response is amended after it has been served, the respondent who made the amendment must, as soon as practicable after the amendment is made, serve a copy of the amended response on the parties on whom the response was served.
Note: The Court may dispense with service of the amended document.
Part 9—Parties and proceedings
Division 9.1—Parties, interveners and causes of action
9.01 Multiple causes of action
An applicant may claim relief in the same proceeding in relation to as many causes of action as the applicant has against a respondent, whether or not the applicant is claiming the relief in the same capacity.
9.02 Joinder in proceedings involving common questions etc
(1) Two or more persons may be joined (as applicants or respondents) in any proceeding:
(a) if separate proceedings by or against each of them would give rise to a common question of fact or of mixed fact and law; or
(b) if all rights to relief claimed in the originating application are in respect of, or arise out of, the same transaction or series of transactions; or
(c) by leave of the Court.
(2) Leave under paragraph (1)(c) may be granted before or after the originating application is filed.
(3) If 2 or more persons are joined under subrule (1), the Court may at any stage of the proceedings order that proceedings by or against any party or parties be conducted separately.
9.03 Joinder of applicants with joint entitlement
If an applicant claims relief to which any other person is entitled jointly with the applicant:
(a) each person so entitled must be joined as a party to the proceeding; and
(b) any person so entitled who does not consent to being joined as an applicant must be made a respondent to the proceeding.
Note: For actions in relation to joint contracts, where one of the contractors is bankrupt, see section 62 of the Bankruptcy Act 1966.
9.04 Joinder of persons with common liability
(1) If relief is claimed against a respondent who is both jointly and severally liable with another person, the other person need not be made a respondent to the proceeding.
(2) If 2 or more persons may be jointly, but not severally, liable and relief is claimed against some, but not all, of the persons, a respondent may apply to the Court for an order that the proceeding be stayed until each person who is jointly liable is made a respondent to the proceeding.
9.05 Joinder of parties by Court order
(1) A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person:
(a) ought to have been joined as a party to the proceeding; or
(b) is a person:
(i) whose cooperation might be required to enforce a judgment; or
(ii) whose joinder is necessary to ensure that each issue in dispute in the proceeding can be heard and finally determined; or
(iii) who should be joined as a party to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings.
(2) A person must not be added as an applicant without the person’s consent.
(3) If a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made.
(4) An application under subrule (1) need not be served on any person who was not served with a copy of the originating application.
Note: The Court may make an order for any of the following:
(a) service of the order and any other document in the proceeding;
(b) amendment of a document in the proceeding;
(c) the filing of a notice of address for service by a party.
9.06 Application for separate trials—inconvenient joinder of causes of action or parties
A party may apply to the Court for an order that separate trials be held on the ground that a joinder of parties, or causes of action, in a proceeding may:
(a) complicate or delay the hearing of the proceeding; or
(b) cause any other inconvenience.
9.07 Errors in joinder of parties
A proceeding will not be defeated only because:
(a) a party has been improperly or unnecessarily joined as a party; or
(b) a person who should have been joined as a proper or necessary party has not been joined.
9.08 Removal of parties by Court order
A party may apply to the Court for an order that a party that has been improperly or unnecessarily joined as a party, or has ceased to be a proper or necessary party, cease to be a party.
Note: The Court may make an order for the future conduct of the proceeding.
9.09 Death, bankruptcy or transmission of interest
(1) If a party dies, or becomes bankrupt, during a proceeding but a cause of action in the proceeding survives, the proceeding is not dismissed only because of the party’s death or bankruptcy.
(2) If the interest or liability of a party passes to another person during a proceeding, by assignment, transmission, devolution or by any other means, the party or the person may apply to the Court for an order to join the person as a party or to remove the party.
(3) If a person is joined as a party under this rule, the start date of the proceeding for the person is the date on which the order is made.
Note: The Court may make an order for the future conduct of the proceeding.
9.10 No joinder or substitution after death of party
A person may apply to the Court for an order that, unless an order for substitution is made within a specified time, the proceeding be dismissed to the extent that it relates to relief on a cause of action if:
(a) a party dies during a proceeding and the cause of action survives the party’s death; and
(b) no order is made substituting another party for the deceased party within 3 months after the death.
Note: The Court may make orders for service of the order on any person who has an interest in continuing the proceeding.
9.11 Substitution of party
If a party (the new party) is substituted for another party (the old party):
(a) any thing done, or action taken, in the proceeding before the substitution has the same effect in relation to the new party as it had in relation to the old party; and
(b) the new party must file a notice of address for service.
9.12 Interveners
(1) A person may apply to the Court for leave to intervene in a proceeding with such rights, privileges and liabilities (including liabilities for costs) as the Court may determine.
(2) The Court may have regard to:
(a) whether the intervener’s contribution will be useful and different from the parties’ contribution to the proceeding; and
(b) whether the intervention might unreasonably interfere with the parties’ ability to conduct the proceeding as they wish; and
(c) any other matter that the Court considers relevant.
Note: The Court may give leave subject to conditions (see rule 1.09).
Division 9.2—Partnerships
9.13 Proceeding by or against partners in partnership name
(1) Two or more persons claiming as partners may start a proceeding in the partnership name.
(2) A proceeding may be brought in the partnership name against 2 or more persons who it is claimed are liable as partners.
(3) The partnership name must be the name of the partnership when the cause of action arose.
(4) The proceeding must continue in the partnership name and not in the names of the individual partners.
Note 1: For partnership name, see rule 1.20.
Note 2: For service of an originating application against partners in the partnership name, see rule 10.05.
Note 3: An address for service must be entered if a proceeding is brought against a partnership name (see rule 10.22).
9.14 Disclosure of partners’ names
(1) A party may, by written notice, require a partnership that is a party to a proceeding to disclose the description of each person who was a partner in the partnership at the time when the cause of action is claimed to have arisen.
(2) If the partnership does not give the required information to the party as soon as practicable after being requested to do so, the party may apply to the Court:
(a) for an order requiring the partnership to give the information to the party; and
(b) if the partnership is an applicant or a cross‑claimant in the proceeding—for an order that the proceeding be stayed until the information is given.
Note 1: For description, see rule 1.20.
Note 2: See Part 10 in relation to service.
9.15 Proceeding between members of partnerships
(1) If one or more partnerships carry on business in Australia, this Division applies to:
(a) a proceeding between a partnership and one or more of its members; and
(b) a proceeding between partnerships having one or more common members.
(2) However, no order may be executed in a proceeding to which subrule (1) applies without the leave of the Court.
Note: For enforcement proceedings involving partnerships, see Division 33.2.
9.16 Denial by person served as partner
(1) If a proceeding is brought against a person (the respondent) as a partner, the respondent may deny being a partner:
(a) at the date specified in the originating application as the date that the cause of action arose; or
(b) when the proceeding was started.
(2) If the respondent makes a denial under subrule (1), the respondent must, when filing the respondent’s notice of address for service, file an affidavit stating the facts on which the denial is based.
(3) The respondent may also make the denial at a later stage of the proceeding.
9.17 Response to be in partnership name
(1) Despite rule 9.16, if a proceeding has been brought against a partnership, a partner must not file a response in the partner’s name.
(2) However, the partner may file a response in the partnership name.
(3) If, under subrule (2), 2 or more partners file a response and the responses raise different grounds of defence, the applicant is only entitled to an order against the partnership if none of the grounds of defence is a proper defence to the applicant’s claim.
9.18 Entry of order
An order for or against a partnership must be entered in the partnership name and not in the name of an individual partner.
Note: For execution of judgment against a partnership, see rule 33.12. For execution of judgment against an individual partner, see rule 33.13.
Division 9.3—Business name proceedings
9.19 Proceeding against a person who carries on a business under a business name
A proceeding must be started against a person in the person’s name or under Division 9.2 if:
(a) the proceeding is started against the person in relation to anything done, omitted to be done or otherwise related to a business carried on in Australia by that person under a business name; and
(b) the business name is registered in a register in a State or Territory in which the business is carried on and discloses the name and residential address of the person.
Note 1: For business name and description, see rule 1.20.
Note 2: In a proceeding against a person in the person’s business name, the person must file a notice of address for service in the person’s name (see rule 10.24).
9.20 Proceeding against a business name
(1) A proceeding may be started against a business name if:
(a) the proceeding relates to anything done, omitted to be done or otherwise related to a business carried on by a person under that business name; and
(b) the person’s name is not registered in any register mentioned in paragraph 9.19(b).
(2) If a proceeding is brought under subrule (1), the business name is sufficient designation of the person in any process.
(3) Any judgment or order made in the proceeding may be enforced against the person.
9.21 Proceeding under this Division or Division 9.2
A party to a proceeding may proceed under this Division or Division 9.2 if:
(a) a proceeding is brought against a person in the person’s business name; and
(b) the person files a notice of address for service under rule 10.23; and
(c) a statement filed with the notice of address for service sets out the name of at least one other person with whom the person carried on business under the business name:
(i) at the date specified in the originating application as the date that the cause of action arose; or
(ii) when the proceeding was started.
Note: Rule 10.23 provides that if an originating application is brought against a business name, the person served must file an address for service in the person’s name.
9.22 Amendment of parties
(1) As soon as practicable after filing an originating application against a person in the person’s business name, the applicant must:
(a) take all reasonable steps to find out the person’s description; and
(b) apply to the Court for leave to amend the application, and any other document filed in the proceeding, to enable the proceeding to continue against the person in the person’s name.
Note 1: For description, see rule 1.20.
Note 2: Amendments to originating applications are dealt with in Division 8.3, amendments to responses are dealt with in Division 8.6 and amendments to pleadings are dealt with in Division 13.5.
(2) The applicant may take a step in the proceeding (other than those mentioned in paragraph (1)(a) and arranging for service of a copy of the application under paragraph (1)(b)) only if the amendments required under paragraph (1)(b) are made or the Court gives leave.
Note: For service on a person who needs a litigation guardian, see rule 10.07.
(3) Nothing in this rule prevents a party from amending a document under rule 13.24 or 13.26.
9.23 Variation of order
(1) Despite rule 33.15, a person may apply to the Court for the variation of an order made against a person in the person’s business name so that the order is made against the person in the person’s name.
(2) An application for a variation of an order under subrule (1) must be served personally on the person against whom the order was made.
(3) An order that is varied under subrule (1) may be enforced personally against the person against whom the order was made.
Note: Rule 33.15 deals with enforcement against a business name.
9.24 Order for discovery—proceeding brought against a person in the person’s business name
(1) An applicant may apply to the Court for an order under subrule (2) if the applicant:
(a) starts a proceeding against a person (the respondent) in the respondent’s business name; and
(b) satisfies the Court that another person:
(i) knows or is likely to know the respondent’s description; or
(ii) has, or is likely to have, or has had, or is likely to have had, control of a document that would help ascertain the respondent’s description.
(2) If the Court is satisfied of the matters mentioned in paragraph (1)(b), the Court may order the other person:
(a) to attend before the Court to be examined orally about the respondent’s description; and
(b) to produce to the Court at that examination any document or thing in the person’s control relating to the respondent’s description; and
(c) to give discovery to the applicant of all documents that are or have been in the other person’s control relating to the respondent’s description.
Note: For description, see rule 1.20.
(3) The applicant must provide the person with sufficient conduct money to permit the person to travel to the Court.
Note: For conduct money, see rule 1.20.
Division 9.4—Litigation guardians
9.25 Person who needs a litigation guardian
(1) For the purposes of these Rules, a person needs a litigation guardian in relation to a proceeding if the person:
(a) does not understand the nature and possible consequences of the proceeding; or
(b) is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding; or
(c) is the subject of an administration, guardianship or similar order made under a Commonwealth, State or Territory law.
(2) A minor in a proceeding is taken to need a litigation guardian in relation to the proceeding.
Note: The Court may dispense with compliance with the Rules and may make orders inconsistent with the Rules (see rules 1.10 and 1.11).
9.26 Proceeding by or against person who needs a litigation guardian
A person who needs a litigation guardian may start or respond to a proceeding only by the person’s litigation guardian.
Note: For litigation guardian, see rule 1.20.
9.27 Persons who may be a litigation guardian
(1) A person may consent to being appointed a litigation guardian unless the person is:
(a) a person who needs a litigation guardian; or
(b) a person who has a different interest in the proceeding to the person who needs a litigation guardian; or
(c) a corporation or organisation.
(2) However, the following corporations or organisations may be a litigation guardian:
(a) the NSW Trustee and Guardian;
(b) the State Trustees of Victoria;
(c) the Public Trustee of Queensland;
(d) the Public Trustee of Western Australia;
(e) the Public Trustee of South Australia;
(f) the Public Trustee of Tasmania;
(g) the Public Trustee and Guardian for the Australian Capital Territory;
(h) the Public Trustee for the Northern Territory;
(i) a trustee company that, under a law of a State or Territory, is authorised to act as a trustee, executor or administrator.
9.28 Appointment of litigation guardian by the Court
(1) A party or an interested person may apply to the Court for an order appointing a person as a litigation guardian.
Note: Interested person is defined in rule 1.20.
(2) A copy of the application must be served on the person who needs a litigation guardian.
(3) The application must be accompanied by an affidavit stating:
(a) that the person for whom the appointment is to be made is a person who needs a litigation guardian and giving details of the basis for the appointment; and
(b) that the proposed litigation guardian:
(i) has consented, in writing, to the appointment; and
(ii) is a person who, under rule 9.27, may be appointed as a litigation guardian.
Note: For service on a person who needs a litigation guardian, see rule 10.07.
9.29 Manager of the affairs of a party
(1) In this rule:
manager of the affairs of a party includes a person who, by or under a Commonwealth, State or Territory law:
(a) has been appointed the administrator, guardian or similar of a person who needs a litigation guardian; or
(b) is authorised to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.
(2) A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the authority extends.
(3) The Attorney‑General may appoint in writing a person to be a manager of the affairs of a party for the purposes of this rule, either generally or for a particular person.
(4) A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person.
9.30 Consent to be filed
A litigation guardian must not take a step in the proceeding unless the following documents have been filed:
(a) the litigation guardian’s consent;
(b) a certificate, including a statement that the litigation guardian has no interest in the proceeding that is adverse to the interest of the person who needs a litigation guardian, signed by:
(i) if the litigation guardian is a lawyer—the litigation guardian; and
(ii) if the litigation guardian is not a lawyer—the litigation guardian’s lawyer.
9.31 Removal of litigation guardian by the Court
(1) The following persons may apply to the Court for an order that the litigation guardian be removed:
(a) a party to the proceeding;
(b) the litigation guardian;
(c) the person being represented if that person no longer needs a litigation guardian;
(d) an interested person in relation to a person who needs a litigation guardian.
Note: Interested person, in relation to a person who needs a litigation guardian, is defined in rule 1.20.
(2) A person referred to in paragraph (1)(a), (b) or (d) may apply to the Court for an order that the proceeding be stayed until a replacement litigation guardian has been appointed.
9.32 Conduct of proceeding
(1) Anything in a proceeding that is required or authorised by these Rules to be done by a person who needs a litigation guardian may be done only by the person’s litigation guardian.
Note: A litigation guardian who is defending a proceeding in that capacity may bring a cross‑claim as part of the response under rule 8.15.
(2) If a litigation guardian (the first guardian) has been appointed for a person who needs a litigation guardian, no other litigation guardian may be appointed for the person unless the first guardian dies or is removed.
(3) A litigation guardian who is not a lawyer must be represented by a lawyer.
9.33 No deemed admissions
Rule 13.08 does not apply to a person who needs a litigation guardian.
Note: Rule 13.08 deals with deemed admissions.
9.34 Discovery and interrogatories
Part 16 applies to a person who needs a litigation guardian and the person’s litigation guardian.
Note: Part 16 deals with discovery, inspection of documents and interrogatories.
9.35 Payment into Court
A litigation guardian must not:
(a) pay money into Court in a proceeding; or
(b) other than on condition that the settlement is subject to the Court’s approval—agree to the compromise or settlement of any matter in dispute in the proceeding.
9.36 Compromise or settlement of matter in proceeding
(1) If a litigation guardian agrees to the compromise or settlement of any matter in dispute in a proceeding, the litigation guardian must apply to the Court for approval of the agreement.
(2) If the Court approves the agreement, the agreement is binding on the person by or for whom it was made as if:
(a) the person did not need a litigation guardian; and
(b) the litigation guardian had made the agreement as the person’s agent.
(3) As a condition of approval, the Court may require that any money or other property payable for the benefit of a person who needs a litigation guardian be dealt with by way of a settlement, or in any other way that the Court considers appropriate.
Note: The Court may give approval subject to conditions (see rule 1.09).
(4) If the Court does not approve the agreement, the agreement is not binding on the person who needs a litigation guardian.
9.37 Application by litigation guardian for approval of agreement
(1) An application by a litigation guardian for approval of an agreement must be made by filing an interlocutory application.
(2) The interlocutory application must be accompanied by:
(a) an affidavit stating the material facts on which the application relies; and
(b) the agreement that is sought to be approved; and
(c) an opinion of an independent lawyer that the agreement is in the best interests of the person who needs a litigation guardian.
9.38 Costs and expenses of litigation guardian
The Court may make orders for the payment of the costs and expenses of a litigation guardian (including the costs of an application for the appointment of the litigation guardian):
(a) by a party; or
(b) from the income or assets of the person for whom the litigation guardian is appointed.
Part 10—Service
Division 10.1—Personal service
Note 1: For documents that must be served personally, see rules 8.05, 8.21, 9.23, 10.08, 18.10, 27.12, 33.07 and 34.06.
Note 2: For service outside Australia, see subrule 1.06(2) and the Federal Court Rules, Division 10.4.
10.01 Service on individual
A document that is to be served personally on an individual must be served by leaving the document with the individual.
10.02 Service on corporation
A document that is to be served personally on a corporation, or on the liquidator or administrator of a corporation, must be served in accordance with subsection 109X(1) of the Corporations Act 2001.
Note: Subsection 109X(1) of the Corporations Act 2001 is as follows:
“(1) For the purposes of any law, a document may be served on a company by:
(a) leaving it at, or posting it to, the company’s registered office; or
(b) delivering a copy of the document personally to a director of the company who resides in Australia or in an external Territory; or
(c) if a liquidator of the company has been appointed—leaving it at, or posting it to, the address of the liquidator’s office in the most recent notice of that address lodged with ASIC; or
(d) if an administrator of the company has been appointed—leaving it at, or posting it to, the address of the administrator in the most recent notice of that address lodged with ASIC; or
(e) if a restructuring practitioner for the company has been appointed—leaving it at, or posting it to, the address of the restructuring practitioner in the most recent notice of that address lodged with ASIC.”.
10.03 Service on unincorporated association
A document that is to be served personally on an unincorporated association must be served at the principal place of business, or principal office, of the association by leaving the document with a person who:
(a) is apparently an adult; and
(b) appears to be engaged in the service of the association.
10.04 Service on organisation
A document that is to be served personally on an organisation must be served:
(a) at the office of the organisation shown in the records of the organisation lodged with the Fair Work Commission in accordance with section 268 of the Registered Organisations Act; and
(b) by leaving the document with a person who:
(ii) appears to be engaged in the service of the organisation.
Note: For organisation and Registered Organisations Act, see rule 1.20.
10.05 Service on partnership
(1) A document that is to be served personally on a partnership must be served:
(a) on one or more of the partners; or
(b) at a place where the partnership business is carried on—by leaving a copy of the document with a person who:
(ii) appears to be engaged in the service of the partnership; or
(c) if there is a registered office of the partnership—at that office.
(2) A document served on a partner is taken to be served on each partner of the partnership, including any partner who was not in Australia at the time the proceeding was started.
(3) If the applicant is aware that a partnership has been dissolved before the proceeding was started, a document must be served on any person:
(a) against whom a claim is made in the proceeding; and
(b) who the applicant is aware was a partner in the partnership at the time that the cause of action arose.
10.06 Service in a proceeding brought against a person in the person’s business name
A document that is to be served personally in a proceeding brought against a person in the person’s business name must be served at a place where the business is carried on by leaving the document with:
(a) the person; or
(b) another person who:
(ii) appears to be engaged in the service of the business.
10.07 Service on a person who needs a litigation guardian
(1) If a person has a litigation guardian, a document that must be served personally on the person must be served on the litigation guardian.
(2) If the person needs a litigation guardian only because of minority and does not have a litigation guardian, the document must be served:
(a) if the minor is at least 16 and does not otherwise need a litigation guardian:
(i) on the minor; and
(ii) on the minor’s parent or guardian; or
(b) if the minor has no parent or guardian:
(i) on a person with whom the minor lives; or
(ii) on a person who is responsible for the care of the minor.
(3) If the person needs a litigation guardian for a reason other than minority and does not have a litigation guardian, the document must be served:
(a) on the person’s guardian; or
(b) if the person has no guardian:
(i) on a person with whom the person lives; or
(ii) on a person who is responsible for the care of the person.
(4) For the purposes of subparagraphs (2)(b)(ii) and (3)(b)(ii), a person in direct charge of a hospital or nursing home is taken to have the care of a person who is a patient in the hospital or nursing home.
(5) If the person who needs a litigation guardian cannot be served in any of the ways referred to in subrule (2) or (3), a party may apply to the Court for an order that the document be served in some other way or on some other person.
(6) The application may be made before or after the document has been given to some other person.
10.08 Personal service on a person who needs a litigation guardian
(1) In addition to rule 10.07, the following documents must be served personally on a person who needs a litigation guardian:
(a) if the person is a respondent to the originating application, and an order has been made requiring the person to do or not do an act or thing—the application or order;
(b) a subpoena requiring the person to attend before the Court.
(2) However, subrule (1) does not apply to an order:
(a) for discovery; or
(b) to answer interrogatories; or
(c) to produce documents for inspection.
Note: For litigation guardian and person who needs a litigation guardian, see rule 1.20.
10.09 Deemed service of originating application
Unless an application has been made under rule 12.01, if a respondent files a notice of address for service or a response, or appears before the Court in response to an originating application, the originating application is taken to have been served personally on the respondent:
(a) on the date on which the first of those events occurred; or
(b) if personal service on the respondent is proved on an earlier date—on the earlier date.
10.10 Refusal to accept document served personally
(1) If a person refuses to accept a document that is required to be served personally, the document is taken to have been served personally if the person serving the document:
(a) puts it down in the individual’s presence; and
(b) tells the individual what the document is.
(2) It is not necessary to show the original of the document to the person being served.
Division 10.2—Service other than by personal service
10.11 Identity of person served
For the purpose of proving service, a statement by a person:
(a) of the person’s identity; or
(b) that the person holds a particular office or position;
is evidence of the person’s identity or that the person holds the office or position.
10.12 Acceptance of service by lawyer
(1) A lawyer may accept service of an originating application for a respondent if:
(a) the lawyer has authority to accept service of an originating application for the respondent; and
(b) the lawyer endorses a note on a copy of the document that the lawyer accepts service of the document for the respondent.
(2) A document that is endorsed by a lawyer under paragraph (1)(b) is taken to have been served personally:
(a) on the date that the endorsement is made; or
(b) if personal service on the respondent is proved on an earlier date—on the earlier date.
10.13 Deemed service
A party may apply to the Court, without notice, for an order that a document is taken to have been served on a person on a date referred to in the order if:
(a) it is not practicable to serve a document on the person in a way required by these Rules; and
(b) the party provides evidence that the document has been brought to the attention of the person to be served.
10.14 Substituted service
If it is not practicable to serve a document on a person in a way required by these Rules, a party may apply to the Court without notice for an order:
(a) substituting another method of service; or
(b) specifying that, instead of being served, certain steps be taken to bring the document to the attention of the person; or
(c) specifying that the document is taken to have been served:
(i) on the happening of a specified event; or
(ii) at the end of a specified time; or
(d) dispensing with service.
10.15 Service by Court
An order, notice or other document in a proceeding that is to be given to, or served on, a person by the Court or an officer of the Court may be given or served in any way permitted under rule 10.18.
10.16 Service of interlocutory injunction
If the Court grants an interlocutory injunction, a party may serve a copy of the Court’s order by sending a copy of it electronically or by fax to each person on whom the order is to be served.
10.17 Service under agreement
(1) If a respondent in a proceeding has agreed that an originating application or other document in the proceeding may be served on the respondent, or on another person for the respondent, in a way or at a place referred to in the agreement, the document may be served in accordance with the agreement.
(2) If an applicant in a proceeding has agreed that a document in the proceeding may be served on the applicant, or on another person for the applicant, in a way or at a place referred to in the agreement, the document may be served in accordance with the agreement.
Division 10.3—Ordinary service
10.18 Ordinary service
A document that is not required to be served personally may be served in any of the following ways:
(a) by serving the document personally, in accordance with Division 10.1;
(b) by sending the document by email:
(i) to the email address notified in the party’s notice of address for service; or
(ii) if the party has not provided an email address—to the party’s usual or last‑known email address;
(c) at a party’s lawyer’s email address if:
(i) the party is represented by a lawyer; and
(ii) the lawyer has filed a notice of address for service that conforms with rule 10.20;
(d) by sending the document by pre‑paid post addressed to the person at the person’s proper address;
(e) if the person has filed a notice authorising service by fax—by sending the document to the fax number.
Note: Proper address, for a person to be served, is defined in rule 1.20.
10.19 Time of service
A document that is served on a person under rule 10.18 is taken to be served on the person:
(a) if the document was sent electronically—on the next business day after the document was sent; or
(b) if the document was sent by pre‑paid post—on the seventh business day after the document was sent; or
(c) if the document was sent by fax—on the next business day after the document was sent.
Division 10.4—Address for service
10.20 Address for service
(1) A party to a proceeding must give an address for service.
(2) A party may give an address for service:
(a) by filing a relevant document that includes an address for service; or
(b) by filing a notice of address for service in the approved form.
(3) The address for service must contain the following information:
(a) the address of a place in Australia at which, during ordinary business hours, a document may be left for the party and to which a document may be posted to the party;
(b) a current email address for the party;
(c) a telephone number at which the party may be contacted during normal business hours.
(4) If a party is represented by a lawyer who has general authority to act for that party, the address for service for the party must be the lawyer’s address.
(5) If the party is represented by a lawyer, the party agrees for the party’s lawyer to receive documents at the lawyer’s email address.
(6) If the party is not represented by a lawyer, the party agrees to receive documents at the party’s email address.
Note: The parties may agree on how service is to be effected. For example, the parties may agree that service is to be by email.
10.21 Address for service—corporations
A notice of address for service for a corporation must be filed by a lawyer.
Note 1: Division 4.1 deals with lawyers.
Note 2: A corporation must not proceed in the Court other than by a lawyer (see subrule 4.01(2)).
Note 3: The Court may dispense with compliance with the Rules (see rule 1.10).
10.22 Address for service—partnership
(1) If an originating application claims that 2 or more persons are liable as partners, a person who is served with the originating application must file a notice of address for service in the person’s name.
(2) However, the proceeding continues in the partnership name.
Note: For the filing of a response in a proceeding against a partnership, see rule 9.17.
10.23 Address for service—proceeding against person in person’s business name
(1) If an originating application is brought against a business name, the person served must file an address for service in the person’s name.
(2) A notice of address for service must be accompanied by a statement setting out the name and residential address of any person with whom, at the start of the proceeding or at the date specified in the originating application (if any) when the cause of action arose, the person carried on business under the business name.
10.24 Receivers
A person who is appointed as a receiver must file a notice of address for service within 7 days after the appointment.
10.25 When must notice of address for service be filed
A person who is required to file a notice of address for service in a proceeding must do so before the court date fixed in the originating application and before filing any other document in the proceeding.
10.26 How to file notice of address for service
A person who is required to file a notice of address for service must do so in the approved form.
10.27 Service of notice of address for service
As soon as practicable after a person files a notice of address for service, the person must serve a sealed copy of the notice on each other party to the proceeding.
Note 1: The seal of the Court will be affixed to the notice of address for service (see paragraph 2.02(2)(a)).
Note 2: A document marked with the Court stamp is as valid and effectual as if sealed with the Court seal (see subsection 179(2) of the Act).
10.28 Change of address for service
(1) If a party’s address for service changes during a proceeding, the party must:
(a) file a notice of address for service; and
(b) serve the notice on each other party.
(2) The party must file the notice referred to in subrule (1) within 7 days after the change.
Division 10.5—Evidence of service
10.29 Affidavit of service
(1) Evidence of service must be given by affidavit.
(2) The party providing evidence of service may use the approved form.
Part 11—Submitting notices
11.01 Submitting notice
(1) A party who has been served with an originating application or a notice of appeal who does not want to contest the relief sought may file a submitting notice in the approved form.
(2) A submitting notice must:
(a) state that the party submits to any order that the Court may make; and
(b) state whether the party wants to be heard on the question of costs; and
(c) include an address for service.
(3) A submitting notice must be filed before the first court date.
(4) A party who has filed a submitting notice may apply to the Court for leave to withdraw the notice.
(5) An application under subrule (4) must be accompanied by an affidavit stating:
(a) why the party wants to withdraw the submitting notice; and
(b) the party’s intentions in relation to the further conduct of the proceeding.
Part 12—Jurisdiction—setting aside originating application
12.01 Setting aside originating application etc
(1) A respondent may apply to the Court for an order:
(a) setting aside an originating application; or
(b) setting aside the service of an originating application on the respondent; or
(c) declaring that an originating application has not been served on the respondent.
(2) If a respondent seeks an order under paragraph (1)(b) or (c), the application must be accompanied by an affidavit stating:
(a) the date on which the originating application was served or purported to be served on the respondent; and
(b) details of the service.
(3) A respondent applying for an order under subrule (1) must file a response and affidavit at the same time that the respondent files a notice of address for service.
Part 13—Pleadings
Note: The intent of the pleading rules is that a party should include all material facts in its pleadings as initially filed so that there is no unfairness to another party by any lack of particularity. If the party has not done so, the Court may at trial refuse to allow the party to present a case that is outside the terms of their pleading.
Division 13.1—General
13.01 Application of Division 13.1
(1) This Division applies if a proceeding is started by an originating application supported by a statement of claim.
(2) Subject to rule 13.14, this Division does not apply in relation to a pleading that is an alternative accompanying document referred to in rule 8.04.
13.02 Pleading to include name of person who prepared it
A pleading must:
(a) state the name of the person who prepared the pleading; and
(b) include a statement by the person that the person prepared the pleading; and
(c) for a pleading prepared by a lawyer, other than a pleading referred to in paragraph (d)—include a certificate signed by the lawyer that any factual and legal material available to the lawyer provides a proper basis for:
(i) each allegation in the pleading; and
(ii) each denial in the pleading; and
(iii) each non‑admission in the pleading; and
(d) for an alternative accompanying document referred to in rule 8.04 that is prepared by a lawyer—include a certificate signed by the lawyer that any factual and legal material available to the lawyer provides a proper basis for the matters set out in the pleading.
13.03 Content of pleadings—general
(1) A pleading must be as brief as the nature of the case permits.
Note: The overarching purpose of these Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible (see section 190 of the Act and rule 1.05).
(2) A pleading must:
(a) be divided into consecutively numbered paragraphs, each, as far as practicable, dealing with a separate matter; and
(b) identify the issues that the party wants the Court to resolve; and
(c) state the material facts on which a party relies that are necessary to give the opposing party fair notice of the case to be made against that party at trial, but not the evidence by which the material facts are to be proved; and
(d) state the provisions of any statute relied on; and
(e) state the specific relief sought or claimed.
(3) A pleading must not:
(a) contain any scandalous material; or
(b) contain any frivolous or vexatious material; or
(c) be evasive or ambiguous; or
(d) be likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) fail to disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) otherwise be an abuse of the process of the Court.
(4) A pleading may raise a point of law.
(5) A party is not entitled to seek any additional relief to the relief that is claimed in the originating application.
(6) A party may plead a fact or matter that has occurred or arisen since the proceeding started.
13.04 Pleading of facts
(1) A party must plead a fact if:
(a) it is necessary to plead it to meet an express denial of the fact pleaded by another party; or
(b) failure to plead the fact may take another party by surprise.
(2) However, a party need not plead a fact if the burden of proving the fact does not lie on that party.
13.05 References to documents or spoken words
(1) A pleading that refers to a document or spoken words need only state the effect of the document or words without including the terms of the document or the words themselves.
(2) However, if the words are material to the pleading, the pleading must include the words.
13.06 Conditions precedent
(1) A party need not state in a pleading that a condition precedent to the party’s right of action has been satisfied.
(2) However, a party who wants to deny that a condition precedent has been satisfied must expressly plead the denial.
13.07 Inconsistent allegations or claims
A party must not plead inconsistent allegations of fact or inconsistent grounds or claims except as alternatives.
13.08 Admissions, denials and deemed admissions
(1) A party pleading to an allegation of fact in another party’s pleading must specifically admit or deny every allegation of fact in the pleading.
(2) Allegations that are not specifically denied are taken to be admitted.
(3) However, a party may state that the party does not know and therefore cannot admit a particular fact.
(4) If a party makes a statement mentioned in subrule (3), the particular fact is taken to be denied.
Note: This rule requires a party to address each material fact pleaded in an opposing party’s pleading. A general denial or an evasive answer will not be sufficient.
13.09 Matters that must be expressly pleaded
In a pleading subsequent to a statement of claim, a party must expressly plead a matter of fact or point of law that:
(a) raises an issue not arising out of the earlier pleading; or
(b) if not expressly pleaded, might take another party by surprise if later pleaded; or
(c) the party alleges makes another party’s claim or defence not maintainable.
13.10 Defence of tender before start of proceeding
A respondent cannot plead the defence of tender before the start of the proceeding unless the respondent has made an offer to pay the money, in accordance with Part 19.
13.11 Defence claiming set‑off
A respondent who relies on a claim to an amount of money as a defence to the whole or part of an applicant’s claim may include the claim in the respondent’s defence by way of set‑off against the applicant’s claim, whether or not the respondent also cross‑claims for the money.
13.12 Joinder of issue
(1) If no reply to a response is filed, a joinder of issue is implied in relation to any allegation of fact in the defence and each allegation of fact is taken to be denied.
(2) If, in a reply, a party admits, or expressly pleads to an allegation of fact, a joinder of issue operates as a denial of any other allegation of fact in the pleading.
Note: A joinder of issue means that the fact alleged in the pleading is taken to be denied. Joinder of issue only relates to any pleading subsequent to a defence.
13.13 Close of pleadings
(1) As between an applicant and a respondent, the pleadings close at the end of the latest of the times fixed by these Rules for filing a response or reply, or other pleading between those parties.
(2) The pleadings close under subrule (1) even if a request or order for particulars has not been complied with.
13.14 Alternative accompanying documents
(1) The following provisions apply to an alternative accompanying document referred to in rule 8.04:
(a) paragraphs 13.02(a), (b) and (d);
(b) subrule 13.03(2).
(2) The content of such an alternative accompanying document must also comply with any practice directions issued by the Chief Judge.
Division 13.2—Striking out pleadings
13.15 Application to strike out pleadings
(1) A party may apply to the Court for an order that all or part of a pleading be struck out on the ground that the pleading:
(a) contains scandalous material; or
(b) contains frivolous or vexatious material; or
(c) is evasive or ambiguous; or
(d) is likely to cause prejudice, embarrassment or delay in the proceeding; or
(e) does not disclose a reasonable cause of action or defence or other case appropriate to the nature of the pleading; or
(f) is otherwise an abuse of the process of the Court.
(2) A party may apply for an order that the pleading be removed from the Court file if the pleading contains material of a kind mentioned in paragraph (1)(a), (b) or (c) or is otherwise an abuse of the process of the Court.
Division 13.3—Progress of pleadings
13.16 Application of Division 13.3
This Division applies if a proceeding is started by an originating application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings.
13.17 Reply
If a respondent files a defence or a response containing a cross‑claim and the applicant wants to plead a matter of fact or point of law of the kind mentioned in rule 13.09, the applicant must file a reply in the approved form within 14 days after being served with the defence or response.
Note: For the timeframe and other requirements when filing a response (which may include a defence), see rule 8.15.
Division 13.4—Particulars
13.18 Application of Division 13.4
This Division does not apply in relation to a pleading that is an alternative accompanying document referred to in rule 8.04.
13.19 General
(1) A party must state in a pleading, or in a document filed with the pleading, the necessary particulars of each claim, defence or other matter pleaded by the party.
Note: See rule 13.23.
(2) Nothing in rules 13.20 to 13.23 is intended to limit subrule (1).
Note 1: The object of particulars is to limit the generality of the pleadings and:
(a) inform an opposing party of the nature of the case the party has to meet; and
(b) prevent an opposing party being taken by surprise at the trial; and
(c) enable the opposing party to collect whatever evidence is necessary and available.
Note 2: The function of particulars is not to fill a gap in a pleading by providing the material facts that the pleading must contain.
Note 3: A party does not plead to the opposite party’s particulars.
Note 4: If particulars are necessary, they should be contained in the pleading but may be separately stated if sought by the opposite party or ordered by the Court.
13.20 Fraud, misrepresentation etc
A party who pleads fraud, misrepresentation, unconscionable conduct, breach of trust, wilful default or undue influence must state in the pleading particulars of the facts on which the party relies.
13.21 Conditions of mind
(1) A party who pleads a condition of mind must state in the pleading particulars of the facts on which the party relies.
(2) If a party pleads that another party ought to have known something, the party must give particulars of the facts and circumstances from which the other party ought to have acquired the knowledge.
(3) In this rule:
condition of mind, for a party, means:
(a) knowledge; or
(b) any disorder or disability of the party’s mind; or
(c) any fraudulent intention of the party.
13.22 Damages and exemplary damages
(1) A party who claims damages that includes money that the party has paid, or is liable to pay, must state in a pleading the amount of the money paid or liable to be paid.
(2) If the party claims exemplary damages, the pleading must also state particulars of the facts on which the claim is based.
13.23 Application for order for particulars
(1) If a pleading does not give a party fair notice of the case to be made against that party at trial and, as a result, the party may be prejudiced in the conduct of the party’s case, the party may apply to the Court for an order that the party who filed the pleading serve on the party:
(a) particulars of the claim, defence or other matter stated in the pleading; or
(b) a statement of the nature of the case relied on; or
(c) if there is a claim for damages—particulars of the damages claimed.
(2) An application under subrule (1) may be made only if:
(a) the particulars in the pleading are inadequate; and
(b) the party seeking the order could not conduct the party’s case without further particulars.
(3) A respondent who applies to the Court for an order under subrule (1) before filing a response must satisfy the Court that an order is necessary or desirable to enable the respondent to plead.
Division 13.5—Amendment of pleadings
13.24 Amendment without needing the leave of the Court
(1) A party may amend a pleading once, at any time before the pleadings close, without the leave of the Court.
(2) However, a party may not amend a pleading if the pleading has previously been amended in accordance with the leave of the Court.
(3) A party may further amend a pleading at any time before the pleadings close if each other party consents to the amendment.
(4) An amendment may be made to plead a fact or matter that has occurred or arisen since the proceeding started.
Note 1: The object of this rule is to ensure that all necessary amendments may be made to enable the real questions between the parties to be decided and to avoid multiplicity of proceedings.
Note 2: For when the pleadings close, see rule 13.13.
13.25 Disallowance of amendment of pleading
(1) If a party amends a pleading under rule 13.24(1), another party may apply to the Court for an order disallowing the amendment.
(2) If a party purports to amend a pleading under rule 13.24(3) without obtaining the consent of another party, any other party may apply to the Court for an order disallowing the amendment.
(3) A party applying for an order under subrule (1) or (2) must apply by interlocutory application within 14 days after the date on which the amended pleading was served on the party.
Note: The Court will disallow the amendment if the Court is satisfied that it would not have given leave on the date on which the amendment was made.
13.26 Application for leave to amend
(1) Unless rule 13.24 applies, a party must apply for the leave of the Court to amend a pleading.
(2) A party may apply under subrule (1) for leave to amend a pleading to add or substitute a new claim for relief, or a new foundation in law for a claim for relief that arises out of the same facts or substantially the same facts as those already pleaded to support an existing claim for relief by the party, even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started.
(3) A party must not apply under subrule (1) for leave to amend a pleading to add or substitute a new claim for relief, or a new foundation in law for a claim for relief, that arises, in whole or in part, out of facts or matters that have occurred or arisen since the start of the proceeding if the application would be made after the end of any relevant period of limitation applying at the date the proceeding was started.
13.27 Date on which amendment takes effect
An amendment of a pleading that is made under rule 13.24 takes effect on the date the amendment is made.
13.28 Consequential amendment of defence
(1) The respondent may amend the defence if:
(a) an applicant amends the statement of claim; and
(b) the respondent has filed a defence before being served with a copy of the amended statement of claim.
(2) The amended defence must identify the statement of claim to which it relates.
(3) The right to amend the defence under subrule (1) is in addition to the right to amend a pleading under rule 13.24.
(4) The respondent must file an amended defence within 28 days after the respondent is served with a copy of the amended statement of claim.
13.29 Consequential amendment of reply
(1) The applicant may amend the reply if:
(a) a respondent amends the defence; and
(b) the applicant has filed a reply before being served with a copy of the amended defence.
(2) The amended reply must identify the defence to which it relates.
(3) The right to amend the reply under subrule (1) is in addition to the right to amend a pleading under rule 13.24.
(4) The applicant must file an amended reply within 14 days after the applicant is served with a copy of the amended defence.
13.30 Implied joinder of issue after amendment
(1) If a party does not amend a defence or reply when entitled to do so under rule 13.28 or 13.29, the party’s existing defence or reply operates as a pleading in answer to the other party’s amended pleading.
(2) Rule 13.12 does not apply to the pleadings but, if no further pleading between the parties is filed, there is taken to be, at the close of pleadings, an implied joinder of issue in relation to the second pleading.
13.31 Time for amending pleading under Court order
An order that a party be permitted to amend a pleading ceases to have effect unless the party amends the pleading in accordance with the order within:
(b) if no period is specified in the order—14 days after the date of the order.
Note: If the Court permits a party to amend a pleading, the Court may also make orders about the procedure for amending the pleading and serving the amended pleading.
13.32 Procedure for making amendment to pleading
A party entitled to amend a pleading without the leave of the Court, or a party who has been given leave to amend a pleading, must file an amended pleading:
(a) with the amendments clearly marked; and
(b) if the pleading is amended by order—endorsed with:
(i) the date of the order; and
13.33 Service of amendment
If a pleading is amended after it has been served, the party who made the amendment must, as soon as reasonably practicable, serve a copy of the revised pleading on the parties on whom the previous pleading was served.
Part 14—Interlocutory applications
14.01 Interlocutory application
(1) Unless the context otherwise requires, a party who wants to apply for an order in a proceeding that has already started must file an interlocutory application in the approved form.
(2) The interlocutory application must:
(a) state, briefly but specifically, each order that is sought; and
(b) if appropriate, be accompanied by an affidavit.
(3) The party filing the interlocutory application must serve the application and any accompanying affidavit on any other party at least 3 days before the date fixed for the hearing.
(4) However, a party may make an oral application for an interlocutory order at a hearing.
Note 1: For interlocutory application, see rule 1.20.
Note 2: File is defined in rule 1.20 as meaning file and serve.
Note 3: On the filing of an interlocutory application, a Registrar will fix a date and place for hearing and will endorse those details on the interlocutory application for service.
14.02 Reliance on correspondence or undisputed documents
(1) An interlocutory application need not be accompanied by an affidavit if a party (the first party) wants to rely on correspondence or other documents, and their authenticity is not in dispute.
(2) However:
(a) the first party must provide a list of the correspondence or other documents to each other party; and
(b) each other party must notify the first party of any further documents that should be added to the list; and
(c) the first party must file the documents mentioned in paragraphs (a) and (b); and
(d) if the documents mentioned in paragraphs (a) and (b) number more than 6 documents, the documents must be indexed and paginated.
14.03 Service on others
A party may apply to the Court for an order that the interlocutory application be served:
(a) on a party who has not filed a notice of address for service; and
(b) on a person who is not a party.
14.04 Hearing and determination of interlocutory application—absence of party
The Court may hear and determine an interlocutory application in the absence of a party if:
(a) service of the interlocutory application on that party is not required; or
(b) service has been effected but the party does not appear; or
(c) the Court has dispensed with service.
Note: If the party making the interlocutory application is absent, the Court may dismiss the application (see rule 22.04).
Part 15—Security for costs
15.01 Application for an order for security for costs
(1) A respondent may apply to the Court for an order:
(a) that an applicant give security for costs and for the manner, time and terms for the giving of the security; and
(b) that the applicant’s proceeding be stayed until security is given; and
(c) that if the applicant does not comply with the order to provide security within the time specified in the order, the proceeding be stayed or dismissed.
(2) An application under subrule (1) must be accompanied by an affidavit stating the facts on which the order for security for costs is sought.
(3) The respondent’s affidavit should state the following:
(a) whether there is reason to believe that the applicant will be unable to pay the respondent’s costs if so ordered;
(b) whether the applicant is ordinarily resident outside Australia;
(c) whether the applicant is suing for someone else’s benefit;
(d) whether the applicant is impecunious;
(e) any other relevant matter.
(4) In this rule:
applicant includes a cross‑claimant.
respondent includes a cross‑respondent.
Note: For the power of the Court to order an applicant in a proceeding to give security for the payment of costs and for other matters relating to security for costs, see section 215 of the Act.
Part 16—Discovery, inspection of documents and interrogatories
Division 16.1—General
16.01 Declaration to allow discovery
The Court may make a declaration under subsection 176(2) of the Act to allow discovery.
Note 1: Discovery is not allowed in relation to a proceeding to which these Rules apply unless the Court declares that it is appropriate in the interests of the administration of justice (see subsections 176(2) and (3) of the Act).
Note 2: The overarching purpose of case management in the Court is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The parties and their lawyers must cooperate with the Court, and among themselves, to assist in achieving the overarching purpose (see sections 6, 190 and 191 of the Act).
16.02 Provision of documents without Court order
A party may provide documents for the purpose of a proceeding at the request of another party without a Court order for discovery.
Note: For party, see rule 1.20.
16.03 Withholding documents on public interest grounds
This Part does not affect any rule of law under which a document may be withheld on the ground that its disclosure would injure the public interest.
16.04 Privilege
An order made under this Part does not require the person against whom the order is made to produce any document that is privileged.
16.05 Undertakings or orders applying to documents
(1) If a document is read or referred to in open court in a way that discloses its contents, any express order or implied undertaking not to use the document except in relation to a particular proceeding no longer applies.
(2) However, a party, or a person to whom the document belongs, may apply to the Court for an order that the order or undertaking continue to apply to the document.
Division 16.2—Discovery
Note: A party should have regard to any practice direction for discovery.
16.06 Application for discovery
(1) A party may apply to the Court for an order that another party to the proceeding give discovery.
(2) The application must state the proposed scope of the discovery.
(3) An application may not be made until 14 days after the date by which all respondents must have filed a response.
Note 1: A response must be filed within 28 days after service of the originating application to which it relates (see subrule 8.15(7)).
Note 2: The Court may dispense with compliance with the Rules (see rule 1.10).
Note 3: For the rules in relation to preliminary discovery, see paragraph 7.01(2)(c) and the Federal Court Rules.
(4) The Court may order that discovery be given electronically.
(5) If a party who must give discovery wants an order for the cost of discovery, the party must file an affidavit, stating:
(a) the orders sought; and
(b) the party’s calculation of the cost of making discovery; and
(c) why the orders should be made.
16.07 Order for discovery
(1) The Court may make an order for discovery:
(a) generally; or
(b) in relation to particular classes of documents; or
(c) in relation to particular issues; or
(d) by a specified date.
(2) If the Court orders a party to give discovery, the party must give discovery of documents:
(a) that are directly relevant to the issues raised by the pleadings or in the affidavits; and
(b) of which, after a reasonable search, the party is aware; and
(c) that are, or have been, in the party’s control.
(3) In this rule, a reference to an affidavit is a reference to:
(a) an affidavit accompanying an originating application; and
(b) an affidavit in response to the affidavit accompanying the originating application.
16.08 Claim of privilege
(1) If a party claims that a document is privileged from production, the Court may inspect the document to determine whether the claim is valid.
(2) A party may not claim that a document is privileged from production on the ground that:
(a) it relates solely to, and does not tend to undermine, the party’s own case; and
(b) it does not relate to or tend to support another party’s case.
16.09 Giving discovery
(1) A party gives discovery by serving on all parties to the proceeding a list of documents and accompanying affidavit, in accordance with rule 16.10.
(2) The list must specify any category of documents for which a search was not made and state why a search was not made.
Note: In its order, the Court will specify the time for compliance.
16.10 List of documents
(1) A list of documents must describe:
(a) each category of documents in the party’s control sufficiently to identify the category but not necessarily the particular document; and
(b) each document that has been, but is no longer in the party’s control, a statement of when the document was last in the party’s control and what became of it; and
(c) each document in the party’s control for which privilege from production is claimed and the grounds of the privilege.
(2) A person with knowledge of the relevant facts must file an affidavit verifying the list of documents.
16.11 Order for discovery for particular documents
(1) If a party (the first party) claims that a document or category of documents may be or may have been in another party’s control (the second party), the first party may apply to the Court for an order that the second party file an affidavit stating:
(a) whether the document or any document of that category is or has been in the second party’s control; and
(b) if the document or category of documents has been but is no longer in the second party’s control—when it was last in the second party’s control and what became of it.
(2) In seeking an order under subrule (1), the first party must identify the document or category of documents as precisely as possible.
Division 16.3—Production for inspection
16.12 Notice to produce document in pleading or affidavit
(1) A party (the first party) may serve on another party (the second party) a notice to produce for the inspection of any document mentioned in a pleading, affidavit or list of documents filed by the second party.
(2) Within 4 days after being served with the notice to produce, the second party must serve the first party with a notice:
(a) stating:
(i) a time, within 7 days after service of the notice, when the document may be inspected; and
(ii) a place where the document may be inspected; or
(b) stating:
(i) that the document is not in the second party’s control; and
(ii) to the best of the second party’s knowledge—where the document is and in whose control it is; or
(c) claiming that the document is privileged and stating the grounds of the privilege.
(3) If the second party does not comply with paragraph (2)(a) or (b) or claims that the document is privileged, the first party may apply to the Court for an order for production for inspection of the document.
16.13 Order for production from party
(1) A party (the first party) may apply to the Court for an order that another party (the second party) produce for inspection any document that is included in the second party’s list of documents and that is in that party’s control.
(2) The Court may order that the document be produced for inspection electronically.
(3) The first party may inspect a document produced under an order:
(a) at the time and place specified in the order; or
(b) at a time and place agreed by the parties.
16.14 Copying of documents produced for inspection
A party to whom a document is produced for inspection under this Division may, at the party’s expense, copy the document subject to any reasonable conditions imposed by the person producing the document.
16.15 Production to Court
(1) The Court may order a party to produce to the Court a document in the party’s control relating to an issue in the proceeding.
(2) The Court may inspect a document to decide the validity of an objection to production, including a claim that the document is privileged from production.
Division 16.4—Interrogatories
16.16 Declaration to allow interrogatories
(1) The Court may make a declaration under subsection 176(2) of the Act to allow interrogatories.
Note: Interrogatories are not allowed in relation to a proceeding unless the Court declares that it is appropriate in the interests of the administration of justice (see subsections 176(2) and (3) of the Act).
(2) If the Court makes a declaration to allow interrogatories, the Court may make appropriate orders in relation to the administration of interrogatories, having regard to any relevant Federal Court Rules and any relevant practice directions.
Note: The overarching purpose of case management in the Court is to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. The parties and their lawyers must cooperate with the Court, and among themselves, to assist in achieving the overarching purpose (see sections 6, 190 and 191 of the Act).
Part 17—Evidence
Division 17.1—General
17.01 Decisions without oral hearing
The Court may make a decision in a proceeding without an oral hearing if the parties to the proceeding consent to the making of the decision without an oral hearing.
17.02 Transcript receivable in evidence
A transcript of a proceeding prepared at the direction of the Court may be received in evidence as a true record of the proceeding except to the extent that it is shown not to be a true record.
Division 17.2—Admissions
17.03 Notice to admit facts or documents
A party (the first party) may serve on another party (the second party) a notice in the approved form (the notice to admit), requiring the second party, for the purpose of the proceeding only, to admit the truth of any fact and the authenticity of any document specified in the notice to admit.
Note: For authenticity of a document, see rule 1.20.
17.04 Notice disputing facts or documents
Within 14 days after the notice to admit has been served, the second party may serve a notice on the first party, disputing the truth of any fact or the authenticity of any document specified in the notice to admit.
17.05 Disputing party to pay costs if document is proved etc
If a party serves a notice under rule 17.04 and the truth of any fact or the authenticity of any document disputed in the notice is proved, the disputing party must pay the costs of proving the truth of the fact or the authenticity of the document.
17.06 Facts or documents taken to be admitted if not disputed
If the second party does not serve a notice in accordance with rule 17.04, the second party will be taken to have admitted the truth of each fact or the authenticity of each document specified in the notice to admit.
17.07 Deemed admission
A party (the first party) will be taken to have admitted the authenticity of any document specified in another party’s list of documents for which inspection has been permitted unless:
(a) the authenticity has been denied in the first party’s pleadings or affidavits; or
(b) the first party has given the other party notice within 14 days after inspection was permitted that the authenticity of the document is denied.
17.08 Withdrawal of admission
A party may apply to the Court for leave to withdraw an admission made under this Part.
Division 17.3—Affidavits
17.09 When affidavit may be sworn or affirmed
An affidavit may be sworn or affirmed before or after the proceeding starts.
Note 1: Sections 21 and 23 of the Evidence Act 1995 allow a witness in a proceeding to choose whether to take an oath or affirmation.
Note 2: Section 195 of the Act provides the persons before whom an affidavit may be sworn or affirmed. See also section 186 of the Evidence Act 1995.
17.10 Form of affidavit
(1) An affidavit must:
(a) comply with the approved form; and
(b) be made in the first person.
Note: An affidavit must also comply with rule 2.05.
(2) The first visible page (being the first page, the cover page or the front cover page) must state:
(a) the deponent’s description; and
(b) the date on which the affidavit was sworn or affirmed.
Note 1: For other details that must be included on the front page of an affidavit, see rule 2.10.
Note 2: For description, see rule 1.20.
(3) An affidavit must be divided into numbered paragraphs and, to the extent practicable, each paragraph must deal with a separate subject.
(4) Each page, including any annexure, must be clearly and consecutively numbered starting with page ‘1’.
(5) Each page of the affidavit (but not any annexure) must be signed by the deponent (other than a deponent who is physically incapable of signing) and by the person before whom it is sworn or affirmed.
17.11 Documents annexed or exhibited to an affidavit
(1) A document that accompanies an affidavit must be annexed to the affidavit unless the document is:
(a) an original; or
(b) of such dimensions that it cannot be annexed.
(2) If paragraph (1)(a) or (b) applies, the document must be exhibited.
(3) Each annexure and exhibit must be identified on its first page:
(a) by a certificate with the same title as the affidavit; and
(b) by the deponent’s initials followed by a number (starting with ‘1’ for the first annexure or exhibit).
(4) The annexures and exhibits must be numbered sequentially.
Example: For an affidavit with 10 annexures totalling 100 pages, the first page of the first annexure is page 1 and the last page of the last annexure is page 100. An annexure would be identified in the affidavit in the following way: “Annexed and marked with the letter G (pages 7281) is a copy of the agreement for sale”.
(5) No subsequent annexure or exhibit in any later affidavit sworn or affirmed by the same deponent may duplicate the number of a previous annexure or exhibit.
(6) Each exhibit to an affidavit must be signed on the first page of the exhibit by the person before whom the affidavit is sworn or affirmed.
17.12 Content of affidavit
(1) An affidavit must not:
(a) contain any scandalous material; or
(b) contain any frivolous or vexatious material; or
(c) be evasive or ambiguous; or
(d) otherwise be an abuse of the process of the Court.
(2) If an affidavit contains any of the material mentioned in subrule (1), a party may apply to the Court for an order that the affidavit, or a part of the affidavit, be removed from the Court file.
17.13 Affidavit of person who is illiterate or vision impaired or has a disability
(1) If the deponent is unable to read, or is physically incapable of signing the affidavit, the person before whom the affidavit is sworn or affirmed must certify in or below the jurat that:
(a) the affidavit was read to the deponent; and
(b) the deponent seemed to understand the affidavit; and
(c) in the case of a person physically incapable of signing—the deponent indicated that the contents were true.
Note: A jurat is a clause placed at the end of an affidavit stating the time, place and person before whom the affidavit is made.
(2) However, subrule (1) does not apply if the deponent:
(a) has read the affidavit using technology for the vision impaired, such as a computer with a screen reader, text to speech software or a Braille display; and
(b) includes in the affidavit a statement that the deponent:
(i) is vision impaired; and
(ii) has read the affidavit; and
(iii) specifies the means by which it was read.
(3) If the deponent does not have an adequate command of English:
(a) a translation of the affidavit and oath or affirmation must be read or given in writing to the person in a language that the person understands; and
(b) the translator must certify in or below the jurat that this has been done.
Note: A jurat is a clause placed at the end of an affidavit stating the time, place and person before whom the affidavit is made.
(4) If an affidavit is made by a deponent who is unable to read it or is physically incapable of signing it and the affidavit does not include a certificate in accordance with subrule (1) or (3) or a statement in accordance with subrule (2), the affidavit may be used only if the party seeking to use the affidavit satisfies the Court that:
(a) the affidavit was read or, if appropriate, a translation was read or given in writing, to the person; and
(b) the person seemed to understand the affidavit; and
(c) in the case of a person physically incapable of signing—the person indicated that the contents were true.
17.14 Service of exhibits and annexures
Copies of any documents exhibited or annexed to an affidavit must be served with the affidavit.
17.15 Irregularity in form
An affidavit may be accepted for filing despite an irregularity in form.
17.16 Use of affidavit without cross‑examination of maker
(1) A party may give notice requiring a person making an affidavit to attend for cross‑examination.
(2) The notice under subrule (1) must be given to the party filing the affidavit or proposing to use it.
(3) The Court may:
(a) dispense with the attendance for cross‑examination of a person making an affidavit; or
(b) direct that an affidavit be used without the person making the affidavit being cross‑examined on the affidavit.
Division 17.4—Expert evidence
17.17 Appointment of Court expert
(1) The Court may:
(a) appoint an expert as a Court expert to inquire into and report on a question arising in the proceeding; and
(b) give directions about an experiment or test for the purposes of the inquiry or report; and
(c) give further directions, including to extend or supplement the inquiry or report.
(2) If possible, the Court expert should be a person agreed on between the parties.
Note 1: For expert, see rule 1.20.
Note 2: For an expert’s duty to the Court and for the form of expert evidence, an expert witness should be guided by the practice direction for expert witnesses.
Note 3: The Court may give instructions relating to the inquiry and report.
Note 4: The Court may make an order on its own initiative (see rule 1.16).
17.18 Court expert’s remuneration and expenses
The parties are jointly liable to pay the reasonable remuneration and expenses of the Court expert for preparing a report.
Note: The Court may dispense with compliance with the Rules or make orders inconsistent with the Rules (see rules 1.10 and 1.11).
17.19 Court expert’s report
(1) The Court expert must give the report to a Registrar together with the number of copies the Registrar directs.
(2) The Registrar will send a copy of the report to each party.
(3) The Court may:
(a) allow the examination of the Court expert; and
(b) give other directions as to the use of the report.
(4) A party wishing to cross‑examine the Court expert:
(a) must arrange for the attendance of the Court expert; and
(b) may issue a subpoena requiring the Court expert’s attendance; and
(c) must pay the reasonable expenses of the Court expert’s attendance.
17.20 Further expert evidence
If a Court expert has made a report on a question, a party may adduce evidence of another expert on the question with the leave of the Court.
17.21 Provision of guidelines to an expert
If a party intends to retain an expert to give an expert report or to give expert evidence, the party must first give the expert any practice direction dealing with guidelines for expert witnesses in proceedings in the Court (the Practice Direction).
Note: Practice directions may be obtained from the registry or downloaded from the Court’s website at http://www.fcfcoa.gov.au.
17.22 Contents of an expert report
(1) An expert report, including a Court expert’s report, must:
(a) be signed by the expert who prepared the report; and
(b) contain an acknowledgement at the beginning of the report that the expert has read, understood and complied with the Practice Direction; and
(c) contain particulars of the training, study or experience by which the expert has acquired specialised knowledge; and
(d) identify the questions that the expert was asked to address; and
(e) set out separately each of the factual findings or assumptions on which the expert’s opinion is based; and
(f) set out separately from the factual findings or assumptions each of the expert’s opinions; and
(g) set out the reasons for each of the expert’s opinions; and
(h) contain an acknowledgement that the expert’s opinions are based wholly or substantially on the specialised knowledge mentioned in paragraph (c); and
(i) comply with the Practice Direction.
(2) Any subsequent expert report of the same expert on the same question need not contain the information in paragraphs (1)(b) and (c).
17.23 Application for expert report
A party may apply to the Court for an order that another party provide copies of that other party’s expert report.
17.24 Expert evidence for 2 or more parties
(1) This rule applies if 2 or more parties to a proceeding call expert witnesses to give opinion evidence about the same, or a similar, question.
(2) The Court may give any direction that it thinks fit in relation to:
(a) the preparation by the expert witnesses (in conference or otherwise) of a joint statement of how their opinions on the question agree and differ; or
(b) the giving by an expert witness of an oral or written statement of:
(i) the expert witness’s opinion on the question; or
(ii) the expert witness’s opinion on the opinion of another expert on the question; or
(iii) whether in the light of factual evidence led at trial, the expert witness adheres to, or wishes to modify, any opinion earlier given; or
(c) the order in which the expert witnesses are to be sworn or affirmed, are to give evidence, are to be cross‑examined or are to be re‑examined; or
(d) the position of witnesses in the courtroom (not necessarily in the witness box).
Example: The Court may direct that the expert witnesses be sworn one immediately after another, and that they give evidence after all or certain factual evidence has been led, or after each party’s case is closed (subject only to hearing the evidence of expert witnesses) in relation to the question.
Note 1: For the Court’s power to make directions about expert reports and expert evidence, see also rule 5.03 (item 14).
Note 2: The Court may dispense with compliance with the Rules and may make orders inconsistent with the Rules (see rules 1.10 and 1.11).
Part 18—Subpoenas
Division 18.1—Leave to issue subpoena
18.01 Limit on number of subpoenas
Unless the Court directs otherwise, a party must not request the issue of more than 5 subpoenas in a proceeding.
18.02 Leave to issue subpoena
A party may apply to the Court for leave to issue a subpoena without notice to any other party.
Note 2: The Court may give leave to issue a subpoena:
(a) generally or in relation to a particular subpoena or subpoenas; and
(b) subject to conditions.
Note 3: A Registrar will, in accordance with the leave given and at the request of a party, issue:
(a) a subpoena to attend to give evidence; or
(b) a subpoena to produce the subpoena or a copy of it and a document or thing; or
(c) a subpoena to do both of those things.
Division 18.2—Subpoenas to give evidence and to produce documents
Note: This Division contains rules that have been harmonised in accordance with the advice of the Council of Chief Justices’ Rules Harmonisation Committee.
18.03 Definitions for Division 18.2
(1) To the extent that a subpoena requires the addressee to attend to give evidence, it is called a subpoena to attend to give evidence.
(2) To the extent that a subpoena requires the addressee to produce the subpoena or a copy of it and a document or thing, it is called a subpoena to produce.
18.04 Issuing of subpoena
(1) In any proceeding, the Court may, by subpoena, order the addressee:
(a) to attend to give evidence as directed by the subpoena; or
(b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or
(c) to do both of those things.
(2) An issuing officer must not issue a subpoena:
(a) if the Court has made an order, or there is a rule of the Court, having the effect of requiring that the proposed subpoena:
(i) not be issued; or
(ii) be issued only with the leave of the Court and that leave has not been given; or
(b) requiring the production of a document or thing in the custody of the Court or another court.
Note: For documents and things in the custody of another court, see rule 18.19.
(3) The issuing officer must seal with the seal of the Court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service.
Note: Documents marked with the stamp of the Court are as valid and effectual as if sealed with the seal of the Court (see subsection 179(2) of the Act).
(4) A subpoena is taken to have been issued when it is sealed or otherwise authenticated in accordance with subrule (3).
18.05 Form of subpoena
(1) A subpoena must be in the approved form.
(2) A subpoena must not be addressed to more than one person.
(3) A subpoena must identify the addressee by name or by description of office or position.
(4) A subpoena to produce must:
(a) identify the document or thing to be produced; and
(b) specify the date, time and place for production.
(5) A subpoena to attend to give evidence must specify the date, time and place for attendance.
(6) The date specified in a subpoena must be the date of trial or any other date permitted by the Court.
(7) The place specified for production may be the Court or the address of any person authorised to take evidence in the proceeding as permitted by the Court.
18.06 Time limit for service of subpoena
The last date for service of a subpoena:
(a) is:
(i) the date 5 clear business days before the earliest date the addressee is required to produce a document or otherwise comply with the subpoena; or
(ii) an earlier or later date fixed by the Court; and
(b) must be specified in the subpoena.
18.07 Subpoena addressed to a corporation
If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer.
18.08 Change of date for attendance or production
(1) The issuing party may give notice to the addressee of a date or time later than the date or time specified in a subpoena as the date or time for attendance or for production or for both.
(2) If notice is given under subrule (1), the subpoena has effect as if the date or time notified were the date or time specified in the subpoena.
18.09 Setting aside subpoena
(1) On the application of a party or any person with a sufficient interest, the Court may set aside a subpoena, in whole or in part.
(2) An application under subrule (1) must be made on notice to the issuing party.
(3) The Court may order that the applicant give notice of the application to:
(a) any other party; or
(b) any other person who has a sufficient interest.
18.10 Service
(1) A subpoena must be served:
(a) personally on the addressee; and
(b) within 3 months after it is issued.
(2) The issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee.
18.11 Compliance with subpoena
(1) An addressee need not comply with the requirements of a subpoena to attend to give evidence if conduct money has not been given to the addressee a reasonable time before the date on which attendance is required.
(2) An addressee need not comply with the requirements of a subpoena if it is not served on or before the date specified in the subpoena as the last date for service of the subpoena.
(3) Despite subrule 18.10(1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on the addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.
(4) The addressee must comply with a subpoena to produce by:
(a) attending at the date, time and place specified for production and producing the subpoena or a copy of it and the document or thing to the Court or to the person authorised to take evidence in the proceeding as permitted by the Court; or
(b) delivering or sending the subpoena or a copy of it and the document or thing to a Registrar at the address specified for the purpose in the subpoena, or, if more than one address is specified, at any of those addresses, so that they are received at least 1 clear business day before the date specified in the subpoena for attendance and production.
(5) For a subpoena that is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and of the document or thing in any of the ways permitted by subrule (4) does not discharge the addressee from the obligation to attend to give evidence.
(6) Unless a subpoena specifically requires the production of the original document, the addressee may produce a copy of any document required to be produced by the subpoena.
(7) The copy of a document may be:
(a) a photocopy; or
(b) in an electronic form that the issuing officer has indicated will be acceptable.
(8) If the addressee produces a document in accordance with subrule (4), the addressee must declare whether the document is an original by completing the declaration within the subpoena, or the copy of the subpoena, that accompanies the document produced.
(9) If the issuing party wishes to tender a document produced under subrule (7), the issuing party must, at that party’s expense:
(a) make an electronic image of any photocopy of the document; and
(b) lodge the electronic image with a Registrar within the time specified by a Registrar.
Note: For conduct money, see rule 1.20.
18.12 Production otherwise than on attendance
(1) This rule applies if an addressee produces a document or thing in accordance with paragraph 18.11(4)(b).
(2) If requested by the addressee, a Registrar must give the addressee a receipt for the document or thing.
(3) If the addressee produces more than one document or thing and the Registrar so requests, the addressee must provide a list of the documents or things produced.
(4) If the issuing party consents, the addressee may produce a copy, instead of the original, of any document required to be produced.
(5) At the time of production, the addressee may tell a Registrar in writing that any document or copy of a document produced need not be returned and may be destroyed.
18.13 Removal, return, inspection, copying and disposal of documents and things
The Court may give directions about the removal from and return to the Court, and the inspection, copying and disposal, of any document or thing that has been produced to the Court in response to a subpoena.
18.14 Production of documents and access by parties
(1) A person who inspects or copies a document under these Rules or an order must:
(a) use the documents only for the purpose of the proceeding; and
(b) not disclose the contents of the document or give a copy of it to any other person without the Court’s permission.
(2) However:
(a) a lawyer may disclose the contents or give a copy of the document to the lawyer’s client; and
(b) a client may disclose the contents or give a copy of the document to the client’s lawyer; and
(c) subrule (1) ceases to apply to a document that is read or referred to in open court in a way that discloses its content.
Note: The Court may dispense with compliance with the Rules or make orders inconsistent with the Rules (see rules 1.10 and 1.11).
18.15 Inspection of, and dealing with, documents and things produced otherwise than on attendance
(1) This rule applies if an addressee produces a document or thing in accordance with rule 18.11.
(2) On the request in writing of a party, a Registrar must tell the party whether production in response to a subpoena has occurred and, if so, describe, in general terms, the documents and things produced.
(3) Subject to this rule, a person may inspect a document or thing produced only if:
(a) the Court has granted leave; and
(b) the inspection is in accordance with the leave.
(4) A Registrar may permit the parties to inspect at the registry any document or thing produced unless the addressee, a party or any person who has a sufficient interest objects to the inspection under this rule.
(5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify a Registrar in writing of the objection and of the grounds of the objection.
(6) If a party or person who has a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify a Registrar in writing of the objection and of the grounds of the objection.
(7) On receiving notice of an objection under this rule, a Registrar:
(a) must not permit any, or any further, inspection of the document or thing the subject of the objection; and
(b) must refer the objection to the Court for hearing and determination.
(8) A Registrar must notify the issuing party of:
(a) the objection; and
(b) the date, time and place at which the objection will be heard.
(9) After being notified under subrule (8), the issuing party must notify the addressee, the objector and each other party of the date, time and place at which the objection will be heard.
(10) A Registrar may permit any document or thing produced to be removed from the registry only on application in writing signed by the lawyer for a party.
(11) A lawyer who signs an application under subrule (10) and removes a document or thing from the registry is taken to undertake to the Court that:
(a) the document or thing will be kept in the personal custody of the lawyer or a barrister briefed by the lawyer in the proceeding; and
(b) the document or thing will be returned to the registry in the same condition, order and packaging in which it was removed, as and when directed by a Registrar.
(12) A Registrar may:
(a) grant an application under subrule (10) subject to conditions; or
(b) refuse to grant the application.
18.16 Return of documents and things produced
(1) A Registrar may return to the addressee any document or thing produced in response to the subpoena.
(2) A Registrar may return any document or thing under subrule (1) only if a Registrar has given the issuing party at least 14 days’ notice of the intention to do so and that period has expired.
(3) A Registrar may, on the expiry of 4 months from the conclusion of the proceeding, cause to be destroyed all the documents produced in the proceeding in compliance with a subpoena that:
(a) the addressee did not declare, in accordance with subrule 18.11(8), to be original documents; and
(b) are no longer required in connection with the proceeding, including on any appeal.
18.17 Costs and expenses of compliance
(1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena.
(2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court’s usual procedure in relation to costs.
(3) An amount fixed under this rule is separate from and in addition to:
(a) any conduct money paid to the addressee; and
(b) any witness expenses payable to the addressee.
18.18 Failure to comply with subpoena—contempt of court
(1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly.
(2) Despite subrule 18.10(1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements.
(3) Subrules (1) and (2) are without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena.
18.19 Documents and things in custody of another court
(1) A party who seeks production of a document or thing in the custody of another court must give to a Registrar a written notice setting out:
(a) the name and address of the court that has custody of the document or thing; and
(b) a description of the document or thing to be produced; and
(c) the date the document or thing is to be produced; and
(d) the reason for seeking production.
(2) On receiving a notice under subrule (1), a Registrar may ask the other court, in writing, to send the document or thing to the filing registry by a specified date.
(3) A party may apply to the Court for leave to inspect and copy a document produced to the Court by the other court.
Part 19—Offers to settle
19.01 Offer to compromise
(1) A party (the offeror) may make an offer to compromise by serving a notice on another party (the offeree).
(2) The notice must not be filed in the Court.
19.02 Notice to be signed
The notice must be signed by the offeror or the offeror’s lawyer.
19.03 Offer to compromise—content
(1) The notice must state whether:
(a) the offer is inclusive of costs; or
(b) costs are in addition to the offer.
(2) If the offer is of a sum of money, the notice may separately specify the amount that represents:
(a) the offer in relation to the claim; and
(b) interest (if any).
19.04 Offer to be paid within 28 days
Unless the notice provides otherwise, an offer to pay a sum of money is taken to be an offer that the sum will be paid within 28 days after the offer is accepted.
19.05 Timing of offer
(1) An offer may be made at any time before judgment is given.
(2) A party may make more than one offer.
(3) An offer may be limited in time for which it is open to be accepted, but the time must not be less than 14 days after the offer is made.
(4) Unless the notice provides otherwise, an offer is taken to have been made without prejudice.
19.06 No communication to Court of offer
(1) A pleading or affidavit must not contain a statement that an offer has been made.
(2) No communication about the existence or terms of an offer is to be made to the Court until:
(a) the offer is accepted; or
(b) judgment is given; or
(c) an application is made under rule 19.07, 19.09 or 19.10.
(3) However, subrule (2) applies only if the offer is made without prejudice.
19.07 Withdrawal of offer
An offer may be withdrawn within 14 days after it is made only if:
(a) the Court, on an application by the offeror, gives leave; or
(b) the offer is superseded by an offer in more favourable terms to the offeree.
19.08 Acceptance of offer
(1) An offer is open to be accepted within the time stated in the notice, which must not be less than 14 days after the offer has been made.
(2) If no time for acceptance is stated in the notice, an offeree may accept the offer at any time before judgment is given.
(3) An offeree may accept the offer by serving a notice of acceptance on the offeror, at any time while the offer is open.
19.09 Withdrawal of acceptance
(1) An offeree who has accepted an offer for a sum of money may withdraw the acceptance if:
(a) the sum of money is not paid within 28 days after acceptance of the offer or within the time provided by the offer; and
(b) the Court, on the application of the party who accepted the offer, gives leave.
(2) An offeree seeking the leave of the Court under paragraph (1)(b) may also seek orders:
(a) to restore the parties as nearly as may be to each party’s position in the proceeding at the time of acceptance; and
(b) as to the further conduct of the proceeding.
19.10 Failure to comply with offer
If, after acceptance of an offer by an offeree, an offeror does not comply with the offer’s terms, the offeree may apply to the Court for an order:
(a) giving effect to the accepted offer; or
(b) staying or dismissing the proceeding if the applicant is in default; or
(c) striking out the respondent’s defence if the respondent is in default; or
(d) directing that a cross‑claim, not the subject of the offer, proceed.
19.11 Multiple respondents
(1) Rule 19.10 does not apply if:
(a) 2 or more respondents are alleged to be jointly, or jointly and severally, liable to the applicant for a debt or damages; and
(b) rights of contribution or indemnity appear to exist between the respondents.
(2) However, rule 19.10 applies if:
(a) for an offer made by the applicant—the offer:
(i) is made to all respondents; and
(ii) is an offer to compromise the claim against all of them; or
(b) for an offer made to the applicant:
(i) the offer is to compromise the claim against all respondents; and
(ii) if the offer is made by 2 or more respondents—those respondents offer to be jointly, or jointly and severally, liable to the applicant for the whole amount of the offer.
19.12 Costs
(1) A party who applies for costs in relation to an offer to compromise must have regard to the relevant Federal Court Rules and any relevant practice direction.
(2) In making an order for costs in relation to an offer to compromise, the Court may have regard to the relevant Federal Court Rules.
Note 1: Part 25 of the Federal Court Rules deals with offers to settle, including costs consequences for the failure to accept an offer of compromise that bests the result that the recipient of the offer achieves.
Note 2: The Court may order that costs be paid on an indemnity basis (see paragraph 192(4)(e) of the Act).
19.13 Application
This Part does not apply to migration proceedings.
Part 20—Transfer of proceedings
20.01 Transfer to Federal Court
(1) Unless the Court otherwise orders, an application under paragraph 153(2)(a) of the Act to transfer a proceeding from the Court to the Federal Court must:
(a) be made on or before the first court date for the proceeding; and
(b) be included in an application or a response in accordance with the approved form; and
(c) be supported by an affidavit.
Note: Subsection 153(1) of the Act provides that the Court may, by order, transfer a proceeding that is pending in the Court and is not a family law or child support proceeding to the Federal Court. Subsection 153(2) of the Act provides that the Court may transfer the proceeding on the application of a party to the proceeding or on its own initiative.
(2) In addition to the factors to which the Court must have regard under subsection 153(3) of the Act in deciding whether to transfer a proceeding to the Federal Court, the Court must take the following factors into account:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding were not transferred;
(c) whether the proceeding will be heard earlier in the Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.
(3) Before the Court makes an order under subsection 153(1) of the Act transferring a proceeding from the Court to the Federal Court:
(a) the Court must consult the Chief Judge of the Court in relation to the proposed transfer; and
(b) the Chief Judge of the Court must consult the Chief Justice of the Federal Court, or a delegate of the Chief Justice of the Federal Court, in relation to the proposed transfer.
(4) A failure to comply with this rule in relation to a proposed transfer of a proceeding under subsection 153(1) of the Act does not affect the validity of an order made under that subsection transferring the proceeding.
Part 21—Dispute resolution
Division 21.1—General
21.01 Dispute resolution processes
Parties must consider dispute resolution processes, including mediation, as early as is reasonably practicable.
Note 1: For dispute resolution processes, see subsection 7(1) of the Act.
Note 2: Parties may be advised to use dispute resolution processes. For the duty of the Court to advise people to use dispute resolution processes, see section 158 of the Act. For the duty of lawyers to advise parties to use dispute resolution processes, see section 159 of the Act. For the duty of designated officers of the Court to advise parties to use dispute resolution processes, see section 160 of the Act.
Note 3: See also sections 161, 169 and 170 of the Act, which contain provisions dealing with the Court’s power to refer a matter for conciliation, mediation or arbitration.
21.02 Orders that may be sought
A party may apply to the Court for an order that:
(a) the proceeding, part of the proceeding or any matter arising out of the proceeding be referred to a mediator or, with the parties’ consent, an arbitrator; and
(b) the proceeding be adjourned or stayed; and
(c) the mediator or arbitrator report to the Court on progress in the mediation or arbitration.
Note: The Court may refer a proceeding to conciliation, mediation or arbitration on its own initiative (see sections 161, 169 and 170 of the Act). The Court may only refer a proceeding to arbitration with the parties’ consent (see subsection 170(3) of the Act).
21.03 Mediation and arbitration
If the Court orders that a proceeding, part of a proceeding or matter arising in a proceeding be referred to a mediator or arbitrator, the mediation or arbitration must be carried out in accordance with this Part.
Note: The Court may make further orders including an order for the time within which the mediation must start and finish.
21.04 Attendance in person
(1) The parties must attend a mediation in person.
(2) Each party must also be represented by a lawyer in person at a mediation.
Note: The Court may dispense with compliance with the Rules or make orders inconsistent with these Rules (see rules 1.10 and 1.11).
21.05 Court may end mediation or arbitration
The Court may:
(a) end a mediation or an arbitration at any time; or
(b) terminate the appointment of a mediator or arbitrator.
21.06 Application by interlocutory application
An application by a party under section 162 of the Act must be made by interlocutory application.
Note: Section 162 deals with a party’s right to apply to the Court to determine a question of law.
21.07 Parties may refer proceeding to conciliation, mediation, arbitration or other dispute resolution process
(1) Nothing in this Division prevents the parties to a proceeding referring the proceeding to:
(a) a conciliator for conciliation; or
(b) a mediator for mediation; or
(c) an arbitrator, in accordance with an arbitration agreement, for arbitration; or
(d) a person to conduct another dispute resolution process.
(2) However, if the parties refer the proceeding under subrule (1), within 14 days after the referral, the applicant must apply to the Court for directions as to the future management and conduct of the proceeding.
21.08 Agreement reached by dispute resolution process
If the parties to a proceeding resolve the issues between them following a dispute resolution process, the parties may:
(a) discontinue the proceeding in accordance with rule 23.02; or
(b) seek consent orders in accordance with rule 23.07.
Division 21.2—Mediation
21.09 Nomination of mediator
If an order referring a proceeding to mediation does not nominate a mediator, a Registrar will, as soon as practicable after an order for a mediation is made:
(a) nominate a Registrar or some other person as the mediator; and
(b) give the parties written notice of:
(i) the mediator’s name and address; and
(ii) the time, date and place of mediation; and
(iii) any further documents that any of the parties must give the mediator for the mediation.
Note: In fixing the time and date for the mediation, the Registrar will:
(a) consult with the parties; and
(b) have regard to any order of the Court fixing the time within which the mediation must be started or completed, or both.
21.10 Court may appoint a new mediator
If the Court terminates the appointment of a mediator under rule 21.05, the Court may:
(a) appoint a new mediator; and
(b) give directions on how the mediation should continue.
21.11 Conduct of mediation
A mediation must be conducted in accordance with any orders made by the Court.
21.12 Report if only part of proceeding to be mediated
If only part of a proceeding is the subject of a mediation order, on the conclusion of the mediation, the mediator may report to the Court in terms agreed between the parties.
21.13 Mediator may end mediation
If the mediator considers that a mediation should not continue, the mediator must:
(a) end the mediation; and
(b) report to the Court on the outcome.
Division 21.3—Referral of matter to officer of the Court
21.14 Court may refer matter
(1) The Court may refer to a Registrar any claim or application relating to any matter before the Court for:
(a) investigation; and
(b) report; and
(c) recommendation.
(2) In a claim or application referred to a Registrar, the investigation may include:
(a) assessing damages; or
(b) taking accounts.
(3) A Registrar to whom a claim or application is referred for investigation may:
(a) take evidence on oath or affirmation; and
(b) summon witnesses for the purpose of giving evidence or producing documents.
(4) If the Court refers a claim or application to a Registrar under subrule (1), the Registrar and the parties must have regard to any relevant Federal Court Rules and any relevant practice directions.
Part 22—Hearings
Division 22.1—Separate decision on question
22.01 Application for separate question to be heard
(1) At any time in a proceeding, a party may apply to the Court for an order that a question arising in the proceeding be heard separately from any other questions.
Note 1: For question, see rule 1.20.
Note 2: For the Court’s power to make orders on its own initiative, see rule 1.16.
Note 3: The Court will give any directions that are necessary for the hearing of the separate question.
(2) The application must set out the question or questions to be decided.
22.02 Disposal of proceeding after hearing separate questions
If a decision on a question substantially disposes of the proceeding, a party may apply to the Court for:
(a) judgment; or
(b) an order dismissing the whole or any part of the proceeding.
Division 22.2—Consolidation
22.03 Consolidation of proceedings before trial
If several proceedings are pending in the Court and the proceedings:
(a) involve some common question of law or fact; or
(b) are the subject of claims arising out of the same transaction or series of transactions;
any party to any of the proceedings may apply to the Court for an order that the proceedings be:
(c) consolidated; or
(d) heard together; or
(e) heard one immediately after the other; or
(f) stayed until after the determination of any of the other proceedings.
Division 22.3—Absence of party
22.04 Absence of party at hearing
(1) If a party is absent from a hearing, the Court may:
(a) if the absent party is the applicant:
(i) dismiss the application; or
(ii) adjourn the application; or
(iii) order that the hearing proceed only if specified steps are taken; or
(iv) proceed with the hearing generally or in relation to any claim for relief in the proceeding; or
(b) if the absent party is the respondent:
(i) order that the hearing proceed generally or in relation to a particular aspect of the application; or
(ii) adjourn the hearing; or
(iii) order that the hearing proceed only if specified steps are taken; or
(c) if the absent party has made an interlocutory application or a cross‑claim—dismiss the application or cross‑claim.
(2) If a hearing proceeds in a party’s absence and at the hearing an order is made, the party who was absent may apply to the Court for an order:
(a) setting aside or varying the order; and
(b) for the further conduct of the proceeding.
Note: For other circumstances in which an order may be varied or set aside, see rule 24.04.
22.05 No appearance by any party
If no party appears at a hearing, the Court may:
(a) adjourn the proceeding to a specific date or generally; or
(b) order that the proceeding be dismissed.
Division 22.4—Trial
22.06 Trial limitations
A party may apply to the Court at or before the trial for an order:
(a) limiting the time for examining, cross‑examining or re‑examining a witness; or
(b) limiting the number of witnesses (including expert witnesses) that a party may call; or
(c) limiting the time that may be taken in making any oral submissions; or
(d) limiting the time that may be taken by a party in presenting the party’s case; or
(e) limiting the time that may be taken by the hearing; or
(f) limiting the number of documents that a party may tender in evidence; or
(g) requiring that all or any part of any submissions be in writing; or
(h) limiting the length of any written submissions.
Note: For other directions, see rule 5.03.
22.07 Death before judgment
If a party dies after the hearing of the proceeding has concluded, the Court may still proceed to give judgment, and an order be made for the entry of the judgment.
22.08 Evidence in other proceedings
A party may apply to the Court to read evidence taken in another proceeding.
Note: Evidence includes an affidavit filed in another proceeding.
22.09 Plans, photographs and models
If a party intends to tender any plan, photograph or model in a proceeding, the party must give the other parties, at least 7 days before the start of the trial or hearing, an opportunity to inspect it and to agree to its admission without proof.
22.10 Consent
(1) A document is evidence of consent if it purports:
(a) to contain the written consent of a person to act:
(i) as litigation guardian of a person who needs a litigation guardian; or
(ii) as trustee; or
(iii) as receiver; or
(iv) in any other office on appointment of the Court; and
(b) to be executed in accordance with subrule (2).
(2) A document is sufficiently executed for subrule (1):
(a) if the consenting person is not a corporation—the document is signed by the consenting person and the signature is verified by another person; or
(b) if the consenting person is a corporation—the document is executed in accordance with section 127 of the Corporations Act 2001.
Note: For litigation guardian see rule 1.20.
22.11 Notice to produce
(1) A party may serve on another party a notice, requiring the party served to produce any document or thing in the party’s control:
(a) at any trial or hearing in the proceeding; or
(b) at any hearing before a Registrar or other person having authority to take evidence in the proceeding.
(2) If the document or thing required to be produced under subrule (1) is not produced, the party serving the notice may lead secondary evidence of the contents or nature of the document or thing.
(3) If a notice under subrule (1) specifies a date for production and is served at least 5 days before that date, the party served with the notice must produce the document or thing in accordance with the notice, without the need for a subpoena for production.
Note: A party who fails to comply with a notice under subrule (1) may be liable to pay any costs incurred because of the failure.
22.12 Parties in lawful custody
If a party or a witness is in lawful custody, the Court may make an order:
(a) that the party or the witness be produced; and
(b) for the continuing custody of the party or the witness.
22.13 Attendance and production
(1) At any hearing of a proceeding, including the trial of the proceeding, a party may apply to the Court for an order that an identified person attend before the Court, a Registrar or other person authorised to take evidence:
(a) for examination; or
(b) for production by that person of any document or thing specified in the order.
(2) An order may be made under subrule (1) even if the person whose attendance is required by the order has also been required to attend by subpoena.
Part 23—Finalising a proceeding
Division 23.1—Withdrawal and discontinuance
23.01 Withdrawal of defence etc
(1) At any time, a party may withdraw a plea raised in the party’s pleading by filing a notice of withdrawal of a plea.
(2) However, a party must not withdraw an admission or any other plea that benefits another party, in a defence or subsequent pleading unless:
(a) the other party consents; or
(b) the Court gives leave.
(3) The notice of withdrawal must:
(a) state the extent of the withdrawal; and
(b) if the withdrawal is by consent—be signed by each consenting party.
23.02 Discontinuance
(1) A party may discontinue a proceeding in whole or in part by filing a notice of discontinuance in the approved form.
(2) The party may file the notice of discontinuance:
(a) without the Court’s leave or the other party’s consent:
(i) at any time before the first court date, as fixed in the originating application; or
(ii) in the case of a migration proceeding in which no first court date is fixed, at any time before directions are given under rule 25.10; or
(iii) if the proceeding is continuing on pleadings—at any time before the pleadings have closed; or
(b) with the opposing party’s consent—before judgment has been entered in the proceeding; or
(c) with the leave of the Court—at any time.
Note 1: For when pleadings close, see rule 13.13.
Note 2: The Court may give leave subject to conditions including costs (see rule 1.09).
(3) The notice of discontinuance must:
(a) state the extent of the discontinuance; and
(b) if the discontinuance is by consent—be signed by each consenting party.
(4) However, the Court’s leave to file a notice of discontinuance is required if:
(a) the proceeding is a creditor’s petition; or
(b) a party is represented by a litigation guardian.
(5) A notice of discontinuance filed by one party does not affect any other party to the proceeding.
23.03 Service of notice
A party who files a notice under rule 23.01 or 23.02 must serve a copy of the notice on each other party to the proceeding as soon as reasonably practicable.
23.04 Effect of discontinuance
Discontinuance under this Division cannot be pleaded as a defence to a proceeding in relation to the same, or substantially the same, cause of action.
Note: The Court may permit a party to discontinue on terms inconsistent with this rule (see rule 1.11).
23.05 Costs
(1) If a party discontinues an application, or part of an application, another party to the proceeding may apply for costs.
(2) A party applying for costs must make the application within 28 days after being served with the notice of discontinuance.
(3) This rule does not apply to migration proceedings.
Note: For costs of discontinuance in a migration proceeding, see rule 25.14.
23.06 Stay of proceeding until costs paid
An opposing party may apply to the Court for an order to stay a subsequent proceeding until the costs are paid if:
(a) a party (the first party) discontinues a proceeding, whether in relation to the whole, or a part, of a claim; and
(b) the Court makes an order under rule 23.05 that the first party must pay the costs of an opposing party to the proceeding; and
(c) before paying those costs, the first party starts another proceeding against the opposing party on the basis of the same, or substantially the same, cause of action as the cause of action on which the discontinued proceeding was based.
Division 23.2—Consent orders
23.07 Consent orders
(1) The Court may make an order in the terms of the parties’ consent as communicated to the Court.
(2) The order must state that it is made by consent.
(3) The order has the same force and validity as an order made after a hearing by the Court.
(4) At any time before making the order, the Court may require a party to provide additional information.
(5) If a Registrar has power to make the order, the Registrar may make an order in terms of the parties’ consent, unless the Registrar considers that the matter should be brought before a Judge.
Division 23.3—Summary orders
23.08 Summary judgment
(1) The Court may order that judgment be given against a party if the Court is satisfied that:
(a) the applicant has no reasonable prospect of successfully prosecuting the proceeding or part of the proceeding; or
(b) the proceeding is frivolous or vexatious; or
(c) no reasonable cause of action is disclosed; or
(d) the proceeding is an abuse of the process of the Court; or
(e) the respondent has no reasonable prospect of successfully defending the proceeding or part of the proceeding.
(2) If an order is made under subrule (1) dismissing part of the proceeding, the proceeding may be continued for that part of the proceeding not dismissed.
(3) If an order is made under subrule (1) giving judgment for the applicant against the respondent for the whole or part of the applicant’s claim, a respondent who has a cross‑claim against the applicant or some other party may:
(a) continue to prosecute the cross‑claim against the applicant or other party; and
(b) apply to the Court for an order staying execution on or enforcement of the judgment until the respondent’s cross‑claim is determined.
Note: See also section 143 of the Act in relation to summary judgment.
23.09 Dismissal for want of prosecution
(1) If a party has not taken a step in a proceeding for 6 months, the Court may dismiss all or part of the proceeding.
(2) The Court must not make an order under subrule (1) if:
(a) there is a future listing for the proceeding or part of the proceeding; or
(b) an interlocutory application relating to the proceeding has not been determined; or
(c) the Court has not given the parties to the proceeding notice under subrule (3).
(3) At least 14 days before making an order under subrule (1), the Court must give each party to the proceeding written notice of the date and time when it will consider whether to make the order.
(4) Notice under subrule (3) must be sent:
(a) to each party’s address for service; and
(b) if a party has no address for service—to the party’s last‑known email address or last‑known postal address.
23.10 Stay of subsequent proceeding until costs paid
An opposing party may apply to the Court for an order that a subsequent proceeding be stayed until the costs are paid if:
(a) the Court dismisses an application under subrule 23.08(1); and
(b) the Court orders a party (the first party) to pay the costs of another party; and
(c) before the costs are paid, the first party starts another application on the same or substantially the same grounds.
Part 24—Orders
Division 24.1—Judgments and orders
24.01 Date of effect of judgment or order
A judgment or an order takes effect on the day the judgment is given or the order is made.
Note: The Court may dispense with compliance with the Rules or make orders inconsistent with these Rules (see rules 1.10 and 1.11).
24.02 Time for compliance with orders
If an order requires a person to do an act or thing or to pay money, the person must do so:
(a) in the time specified in the order; or
(b) if no time is specified—within 14 days after the order is served on the person.
24.03 Varying or setting aside a judgment or order before it has been entered
The Court may vary or set aside a judgment or order before it has been entered.
24.04 Varying or setting aside a judgment or order after it has been entered
The Court may vary or set aside a judgment or order after it has been entered if:
(a) it was made in the absence of a party; or
(b) it was obtained by fraud; or
(c) it is interlocutory; or
(d) it is an injunction; or
(e) it does not reflect the intention of the Court; or
(f) the party in whose favour it was made consents; or
(g) there is a clerical mistake in a judgment or order; or
(h) there is an error arising in a judgment or order from an accidental slip or omission.
24.05 Interest on judgment
The prescribed rate at which interest is payable under paragraph 212(3)(a) of the Act is:
(a) for the period from 1 January to 30 June in any year—the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before the period commenced; and
(b) for the period 1 July to 31 December in any year—the rate that is 6% above the cash rate last published by the Reserve Bank of Australia before the period commenced.
Note 1: Subsection 212(3) of the Act provides that interest is payable on a judgment debt:
(a) at such rates as are fixed by the Rules of Court; or
(b) if the Court, in a particular case, thinks that justice so requires—at such lower rate as the Court determines.
Note 2: Subsection 211(3) of the Act provides for the making of orders that include pre‑judgment interest. In making such an order, the Court will have regard to the rate specified in paragraph 2.2 of the Federal Court’s Interest on Judgments Practice Note.
24.06 Orders dealing with failure to fulfil undertakings
(1) A party may apply to the Court for an order requiring a person to do, or refrain from doing, an act or thing, including paying a sum of money, if:
(a) the person (whether a party or not) has given the Court an undertaking to do, or refrain from doing, the act or thing; and
(b) the person has failed to fulfil the undertaking.
(2) This rule does not affect the powers of the Court to punish a person for contempt for a breach of the undertaking.
Note: Unless the Court otherwise orders, an undertaking to the Court has the same force and effect as an order of the Court.
Division 24.2—Entry of judgments and orders
24.07 When entry is required
(1) Subject to subrule (2), an order must be entered.
(2) An order need not be entered if the order merely:
(a) extends or abridges time; or
(b) grants leave or makes a direction:
(i) to amend a document (other than an order); or
(ii) to file a document; or
(iii) for an act to be done by an officer of the Court (within the meaning of section 259 of the Act); or
(c) gives directions about the conduct of a proceeding.
24.08 Entry of an order
(1) An order may be entered under an arrangement under section 246 of the Act.
(2) An order may be entered under the seal of the Court signed by:
(a) a Judge; or
(b) a Registrar; or
(c) an officer of the Court acting with the authority of the Chief Executive Officer.
(3) For the purposes of subrule (2), an order may be signed electronically.
(4) An order may be entered, in accordance with subrule (1) or (2):
(a) in the registry; or
(b) in Court; or
(c) in Chambers.
Chapter 3—Special classes of proceedings
Part 25—Proceedings under the Migration Act
Division 25.1—Preliminary
25.01 Definitions for Part 25
An expression used in this Part that is defined in the Migration Act has the same meaning in this Part as it has in that Act.
Note 1: For Migration Act, see rule 1.20.
Note 2: For lawyer and migration decision, see section 5 of the Migration Act.
25.02 Application of Part 25
(1) This Part applies to a proceeding for review of a migration decision made in the exercise of the Court’s jurisdiction under section 476 of the Migration Act.
(2) This Part applies to a matter, or part of a matter, remitted to the Court by the High Court under section 44 of the Judiciary Act 1903 and in accordance with section 476B of the Migration Act.
(3) Subrule (2) is subject to any order of the High Court in the matter.
Division 25.2—Matters started in the Court
25.03 Application of Division 25.2
This Division applies to a matter started in the Court.
25.04 Application for judicial review of migration decision
(1) A person who wants to apply for the review of a migration decision must file an originating application in the approved form.
Note 1: The Court has original jurisdiction only in relation to migration decisions of the kind identified in section 476 of the Migration Act. The Court may extend the time for making an application to review a migration decision (see subsection 477(2) of the Migration Act).
Note 2: See Division 8.4 in relation to a response to an application, read together with rule 25.05.
(2) If the grounds of the application include an allegation of jurisdictional error, the application must identify the basis of the alleged error.
(3) If the grounds of the application include an allegation of fraud or bad faith, the application must include details of the alleged fraud or bad faith.
(4) The application must be supported by an affidavit including:
(a) a copy of the decision that is sought to be reviewed and any statement of reasons for the decision; and
(b) each document or other evidence the applicant seeks to rely on; and
(c) if an extension of time within which to make the application is sought—the evidence explaining the delay and showing why it is necessary in the interests of the administration of justice for the Court to grant an extension.
Note: The application must be made within 35 days of the migration decision (see section 477 of the Migration Act).
(5) The originating application or amended application must include the name of the person who prepared it, irrespective of whether that person:
(a) is a lawyer; or
(b) was retained for the limited purpose of preparing the document; or
(c) has an ongoing role in the proceeding.
(6) A lawyer may file an originating application under this Part only if the application includes, or is accompanied by, a certificate signed by the lawyer.
Note: See section 486I of the Migration Act.
25.05 Response to application for judicial review of migration decision
(1) In addition to the requirements in rule 8.15, to the extent they apply to this Part, a respondent to an application under this Part must state in the response:
(a) whether the respondent asks the Court to make an order under rule 23.08; and
(b) whether the applicant is in immigration detention and, if so, the place of detention; and
(c) whether the respondent believes the matter requires expedition and, if so, why; and
(d) if the respondent is aware that the applicant requires an interpreter—the language of the interpreter that is required; and
(e) if the respondent is aware of any related judicial review proceedings—details of those proceedings; and
(f) if the respondent is aware that the applicant has already brought judicial review proceedings in respect of the same decision—details of those proceedings; and
(g) any failure of the application to comply with subrules 25.04(2) and (3); and
(h) if the respondent objects to the competency of the application—briefly but specifically state the grounds of that objection.
Note: See rule 8.15 in relation to the response to an application.
(2) If the respondent gives notice under paragraph (1)(h), the applicant carries the burden of establishing the competency of the application.
(3) If a respondent has not included an objection to the competency of the application in their response to an application under paragraph (1)(h), and the application is dismissed by the Court as not competent, the respondent is not entitled to any costs of the proceeding.
(4) Despite subrule 8.15(7), a response to an application under this Part must be filed within 6 weeks after the application to which it relates is served.
(5) A response may be filed under this Part only if the response includes, or is accompanied by, a certificate signed by the lawyer for the respondent that any factual and legal material available to the lawyer provides a proper basis for the response.
Division 25.3—Matters remitted by the High Court
25.06 Application of Division 25.3
This Division applies to a matter, or part of a matter, remitted to the Court by the High Court, subject to any direction of the High Court in the matter.
25.07 Filing of order of remittal
(1) The applicant must file a sealed copy of the order of remittal from the High Court in the registry named in the order of remittal.
Note: Documents marked with the stamp of the Court are as valid and effectual as if sealed with the seal of the Court (see subsection 179(2) of the Act).
(2) If a registry is not specified in the order, the Chief Executive Officer may direct the order to be filed in a particular registry.
25.08 Service of notice and order
(1) A Registrar must affix a notice to the High Court order and allocate a serial number to the order as if the order were an originating application filed in the registry.
(2) The notice must:
(a) include the first court date in the matter and the place for the hearing; and
(b) include a note to the effect that before taking any step in the proceeding, a party, other than the applicant, must enter an appearance in the registry unless the party has already entered an appearance in the High Court; and
(c) be in the form approved by the Chief Executive Officer.
(3) A Registrar must affix the seal of the Court to a sufficient number of copies of the notice for service in accordance with subrule (4).
(4) A Registrar must cause sealed copies of the notice, together with copies of the High Court order, to be served on each party to the proceeding in the High Court and on any other person who the Court directs should be so served.
(5) Service may be effected by delivery to a party’s address for service for the proceeding in the High Court.
Note: Documents marked with the stamp of the Court are as valid and effectual as if sealed with the seal of the Court (see subsection 179(2) of the Act).
Division 25.4—General
25.09 Stay of proceeding
The Court may, at any time, grant, discharge or vary a stay of the proceeding to which an application for judicial review of a migration decision relates.
25.10 Directions and orders
(1) At any time after an application under this Part is filed, the Court may give orders or directions for the conduct of the proceeding in relation to the following:
(a) the matters in subrule 5.03(3);
(b) a stay or interlocutory order;
(c) an extension of time for the application;
(d) an amendment of the application;
(e) the provision of particulars, or further and better particulars, of a ground in an application or response;
(f) the filing of further affidavits by the applicant;
(g) the filing by a respondent or other person of a relevant document or other evidence;
(h) the filing of affidavits by a respondent.
(2) The Court may:
(a) give orders or directions under subrule (1) in Chambers without a hearing; or
(b) require the parties to an application to attend a hearing.
25.11 Varying or setting aside judgment or order
A party to an application under this Part who seeks to have a judgment or order varied or set aside under rule 24.04 must file an application to vary or set aside within 21 days after the judgment or order was entered.
Note: The Court may extend or shorten a time fixed by these Rules or by a judgment or order of the Court (see rule 1.15).
25.12 Judgment delivered orally
If a Judge hearing an application under this Part delivers the reasons for judgment ex tempore, the written reasons for judgment will be published if:
(a) the Judge considers it appropriate; or
(b) a party so requests; or
(c) the Court is notified that an appeal has been filed.
25.13 Writs
A writ issued by the Court under this Part must be served and complied with in accordance with the High Court Rules 2004.
25.14 Costs
(1) When the Court determines that a party is entitled to costs in a proceeding to which this Part applies, the party may seek costs and disbursements up to, and including, the amounts specified by Division 1 of Part 3 of Schedule 2, together with the amount of any filing or Court fees paid in relation to the proceeding.
(2) The Court may order costs in excess of those specified in Division 1 of Part 3 of Schedule 2 if, in the Court’s opinion, there is sufficient reason and it is in the interests of justice to do so.
(3) The Court may by order specify the maximum costs that may be recovered as between party and party.
(4) If:
(a) the applicant files a notice of discontinuance in a proceeding in which a respondent has sought costs in the response; and
(b) the applicant does not file with the notice an application as to costs;
the Court may, without hearing the parties, make an order in Chambers in accordance with Division 2 of Part 3 of Schedule 2 for the respondent’s costs.
(5) This rule does not limit a party’s right to apply, under Part 32, for an order as to costs of the application.
Note 1: The Court may dispense with compliance with these Rules or make orders inconsistent with these Rules (see rules 1.10 and 1.11).
Note 2: Disbursements include counsel’s fees.
Note 3: For discontinuance, see Division 23.1 of these Rules.
Note 4: For the exercise of jurisdiction in Chambers, see section 136 of the Act.
25.15 Advocacy certificate
The Court may certify that it was reasonable to employ an advocate, or more than one advocate, to appear for a party to a migration proceeding.
25.16 Death of an applicant
(1) The Court may dismiss a proceeding under this Part if satisfied that:
(a) the applicant has died; and
(b) no interest or liability in the proceeding survives the applicant’s death.
(2) An order under subrule (1) may be made in Chambers without a hearing.
Part 26—Judicial review under the AD(JR) Act
Note: See Part 25 in relation to jurisdiction under section 476 of the Migration Act.
26.01 Application of Part 26
This Part applies to a proceeding under the AD(JR) Act.
26.02 Application for order of review
(1) A person who wants to apply for an order of review under subsection 11(1) of the AD(JR) Act must file an originating application in the approved form.
(2) If the grounds of the application include an allegation of fraud or bad faith, the originating application must include details of the alleged fraud or bad faith.
26.03 Application for extension of time
(1) A person who wants to apply for an extension of time within which to lodge an application for an order of review under paragraph 11(1)(c) of the AD(JR) Act must apply for an extension of time.
(2) An application for an extension of time must be accompanied by:
(a) an affidavit stating:
(i) briefly but specifically, the facts on which the application relies; and
(ii) why the application was not filed within time; and
(b) a draft application that complies with rule 26.02.
26.04 Application for stay of proceeding
A person who wants to apply for an order under section 15A of the AD(JR) Act for the suspension of a decision or a stay of the proceeding under the decision:
(a) must file an interlocutory application; and
(b) may, in an urgent case, make the application without notice.
Note 2: A Registrar will fix a date and place for hearing and will endorse those details on the interlocutory application.
26.05 Documents to be filed
(1) At the time of filing an originating application or as soon as practicable after filing, an applicant must file the following documents if they are in the applicant’s possession:
(a) a statement of the terms of the decision that is the subject of the application;
(b) a statement regarding the decision:
(i) given to the applicant under section 13 of the AD(JR) Act or section 269 or 270 of the ART Act; or
(ii) given by or on behalf of the person who made the decision, purporting to set out findings of facts, or a reference to the evidence or other material on which those findings were based or the reasons for making the decision.
(2) Within 5 days after filing, a copy of each document must be served on each other party.
26.06 Service
A party to an application may apply to the Court for an order that:
(a) the application be served on the Attorney‑General; or
(b) the application be served on a specified person or class of persons in a specified manner.
26.07 Notice of objection to competency
(1) A respondent who objects to the competency of an application must file a notice of objection to competency within 14 days after being served with the application.
(2) The notice of objection must, briefly but specifically, state the grounds of the objection.
(3) The applicant carries the burden of establishing the competency of an application.
(4) A respondent may apply to the Court for the question of competency to be heard and determined before the application is heard.
(5) If a respondent has not filed a notice under subrule (1), and the Court dismisses the application as not competent, the respondent is not entitled to any costs of the application.
(6) If the Court decides that an application is not competent, the application is dismissed.
Part 27—Administrative Review Tribunal appeals
27.01 Application of Part 27
This Part applies to an appeal from the ART transferred to the Court from the Federal Court.
Note 1: This Part does not apply to migration proceedings.
Note 2: See Part 25 in relation to jurisdiction under section 476 of the Migration Act.
27.02 Application for leave to raise other questions of law or rely on other grounds
On the hearing of the appeal, the applicant may apply to the Court for leave to raise a question of law that was not stated in the notice of appeal.
27.03 Application for stay of ART decision
A person who wants to apply for an order under subsection 178(2) of the ART Act (as it applies because of subsection 179(4) of that Act) for a stay of a decision of the ART:
(a) must file an interlocutory application; and
(b) may, in an urgent case, make the application without notice.
Note 2: A Registrar will fix a date and place for hearing and will endorse those details on the interlocutory application.
27.04 No statement of reasons for decision
If the ART did not give a statement of reasons for its decision and the applicant has a right to request a statement of reasons for the decision under section 112 of the ART Act, the applicant must:
(a) make a request in accordance with section 112 of the ART Act for the ART to give the applicant a statement of reasons for the decision; and
(b) send a copy of the statement of reasons to the registry within 10 days after receiving it.
27.05 Notice of cross‑appeal
(1) The rules of this Part apply to a cross‑appeal as if it were an appeal.
(2) A respondent who wants to appeal from a decision, or a part of a decision, from which the applicant has appealed, must file a notice of cross‑appeal in the approved form.
Note: The notice of cross‑appeal must be filed within the period worked out in accordance with section 174 of the ART Act.
(3) The notice of cross‑appeal must state the following:
(a) the part of the decision the respondent cross‑appeals from or contends should be varied;
(b) the precise question or questions of law to be raised on the cross‑appeal;
(c) any findings of fact that the Court is asked to make;
(d) the relief sought instead of the decision appealed from, or the variation of the decision that is sought;
(e) briefly but specifically, the grounds relied on in support of the relief or variation sought.
Note: The Court can only make findings of fact in limited circumstances (see section 177 of the ART Act, as it applies because of subsection 179(4) of that Act).
(4) The notice of cross‑appeal must be filed within 21 days after the respondent was served with the notice of appeal.
(5) The respondent must serve a copy of the notice of cross‑appeal on:
(a) each other party to the proceeding; and
(b) any other party to the cross‑appeal; and
(c) an ART Registrar.
27.06 Notice of contention
(1) If a respondent does not want to cross‑appeal from a decision of the ART but contends that the decision should be affirmed on grounds other than those relied on by the ART, the respondent must file a notice of contention.
(2) The notice of contention must:
(a) be filed within 21 days after the notice of appeal is served; and
(b) be in the approved form.
27.07 Directions hearing
(1) The Court must give directions for the conduct of the proceeding.
(2) Without limiting subrule (1), the Court may make any of the following directions:
(a) for determining what documents and matters were before the ART;
(b) for the giving of further evidence under paragraph 177(3)(b) of the ART Act (as it applies because of subsection 179(4) of that Act);
(c) for the joining or removing of a party to the appeal;
(d) giving summary judgment;
(e) making an interlocutory order before, or after, the determination of an appeal to the Court;
(f) making an order by consent disposing of an appeal, including an order for costs;
(g) dismissing an appeal for want of prosecution;
(h) making an order that an appeal to the Court be dismissed for:
(i) failure to comply with a direction of the Court; or
(ii) failure of the appellant to attend a hearing relating to the appeal;
(i) for the conduct of the appeal, including the following:
(i) contents of the appeal papers;
(ii) the use of written submissions;
(iii) limiting the time for oral argument;
(j) for the conduct of the appeal without an oral hearing, subject to the condition that the parties be entitled to present written submissions;
(k) for the staying of a decision of the ART;
(l) for the place, time and manner of hearing;
(m) to determine any other matter for the purpose of preparing the appeal for hearing.
27.08 Preparation of appeal papers
(1) The appeal papers must be prepared to the satisfaction of a Registrar.
(2) The title page of the appeal papers must state:
(a) the title of the proceeding; and
(b) the jurisdictional area of the ART from which the appeal is brought; and
(c) the names of the members constituting the ART; and
(d) the lawyer and address for service for each party; and
(e) if a party is not represented by a lawyer—the address for service of the party.
(3) After the title page, there must be an index of the documents comprising the appeal papers that states the date and page number of each document.
(4) The appeal papers must be paginated.
(5) The appeal papers must include all documents necessary to enable the questions of law raised by the appeal to be determined.
(6) A copy of the appeal papers must be filed with a certificate by each party or each party’s lawyer stating that the papers have been examined and are correct.
(7) The applicant must file the number of copies required by the Registrar.
27.09 Further evidence on appeal
(1) A party may apply for the Court to receive further evidence on appeal.
(2) The application must be:
(a) filed at least 21 days before the hearing of the appeal; and
(b) be accompanied by an affidavit.
(3) The affidavit referred to in paragraph (2)(b) must state the following:
(a) the facts relating to the grounds of the application;
(b) any evidence necessary to establish the grounds of the application;
(c) the evidence that the applicant wants the Court to receive;
(d) why the evidence was not adduced in the ART.
(4) The applicant must file 2 copies of the application and the affidavit.
(5) Any other party to the appeal who wants to adduce evidence on the application must file an affidavit at least 14 days before the hearing of the appeal.
Note: The Court may receive further evidence on an appeal for the purpose of making findings of fact under section 177 of the ART Act (as it applies because of subsection 179(4) of that Act).
27.10 Notice of objection to competency of appeal
(1) A respondent who objects to the competency of an appeal must file a notice of objection to competency within 14 days after being served with a notice of appeal.
(2) The notice of objection to competency must, briefly but specifically, state the grounds of the objection.
(3) The applicant carries the burden of establishing the competency of an appeal.
(4) A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the appeal.
(5) If a respondent has not filed a notice under subrule (1), and the Court dismisses the appeal as not competent, the respondent is not entitled to any costs of the appeal.
(6) If the Court decides that an appeal is not competent, the appeal is dismissed.
27.11 Discontinuance of appeal
(1) An applicant may discontinue an appeal by filing a notice of discontinuance of the appeal in the approved form:
(a) without the Court’s leave—at any time before the hearing of the appeal; or
(b) with the Court’s leave:
(i) at the hearing; or
(ii) after the hearing and before a judgment is given or an order made.
(2) A notice of discontinuance has the effect of an order of the Court dismissing the applicant’s appeal.
(3) A notice of discontinuance filed by one applicant does not affect any other applicant in the appeal.
(4) Unless the parties otherwise agree, an applicant who files a notice under subrule (1) must pay the costs of each party to the appeal.
27.12 Application to dismiss appeal
(1) A respondent to an appeal may apply to the Court for an order that the appeal be dismissed for the failure by the applicant for the appeal to do any of the following:
(a) comply with a direction of the Court;
(b) comply with these rules;
(c) attend a hearing relating to the appeal;
(d) prosecute the appeal.
(2) An application under subrule (1) must be served on the applicant:
(a) at the applicant’s address for service; or
(b) personally.
Note: The Court may make orders subject to conditions (see rule 1.09). The Court may fix a time for the doing of an act and, in default, order the appeal be dismissed.
27.13 Absence of party
(1) If a party is absent when an appeal is called on for hearing, the opposing party may apply to the Court for an order that:
(a) if the absent party is the applicant to the appeal:
(i) the appeal be dismissed; or
(ii) the hearing be adjourned; or
(b) if the absent party is the respondent to the appeal:
(i) the hearing proceed generally or in relation to a particular claim for relief in the appeal; or
(ii) the hearing be adjourned.
(2) If an appeal is dismissed because the applicant to the appeal was absent, the applicant may apply to the Court for an order:
(a) to set aside the dismissal; and
(b) for the further conduct of the appeal.
Note: The Court may make an order on its own initiative (see rule 1.16).
Part 28—Human rights proceedings: proceedings alleging unlawful discrimination
28.01 Application of Part 28
This Part applies to a proceeding alleging unlawful discrimination under Division 2 of Part IIB of the Human Rights Act.
Note: If the President of the Human Rights Commission terminates a complaint alleging unlawful discrimination, an affected person may apply to the Court for an order in relation to the complaint (see section 46PO of the Human Rights Act).
28.02 Interpretation
An expression used in this Part and in the Human Rights Act has the same meaning in this Part as it has in the Human Rights Act.
Note 1: For Human Rights Act and Human Rights Commission, see rule 1.20.
Note 2: Affected person, complaint and unlawful discrimination are defined in subsection 3(1) of the Human Rights Act. Special‑purpose Commissioner is defined in section 46PV of the Human Rights Act.
28.03 Starting a proceeding—originating application and claim
(1) A person who wants to start a proceeding under the Human Rights Act must file an originating application in the approved form.
(2) The application must be accompanied by:
(a) a copy of the original complaint to the Human Rights Commission; and
(b) a notice of termination of the complaint given by the President of the Human Rights Commission; and
(c) if an extension of time within which to make the application is sought—an affidavit explaining the delay and showing why the Court should grant an extension.
Note: The application must be made within 60 days after the President of the Human Rights Commission issues a notice terminating the complaint (see subsection 46PO(2) of the Human Rights Act).
(3) The originating application must include any other claim that the person has, in addition to the claim of unlawful discrimination.
28.04 Copy of originating application to be given to Human Rights Commission
At least 5 days before the first court date, the applicant must give the Human Rights Commission:
(a) a sealed copy of the originating application; and
(b) a copy of the accompanying documents.
Note: Documents marked with the stamp of the Court are as valid and effectual as if sealed with the seal of the Court (see subsection 179(2) of the Act).
28.05 Form of response to application
A response to an application alleging unlawful discrimination must be in the approved form.
28.06 Appearance by special‑purpose Commissioner
If the Court gives leave to a special‑purpose Commissioner to assist the Court in a proceeding, the special‑purpose Commissioner must:
(a) file a notice of address for service; and
(b) serve a sealed copy of the notice on each party to the proceeding.
Note 1: The function of the special‑purpose Commissioner may only be exercised in the Court with the Court’s leave (see subsection 46PV(2) of the Human Rights Act).
Note 2: Documents marked with the stamp of the Court are as valid and effectual as if sealed with the seal of the Court (see subsection 179(2) of the Act).
Part 29—Small claims applications under the National Consumer Credit Protection Act
29.01 Small claims proceeding—National Consumer Credit Protection Act
An applicant may request that an application for an order covered by subsection 199(2) of the National Consumer Credit Protection Act be dealt with under this Part.
Note: The Court is not bound by any rules of evidence and procedure when dealing with a small claims application and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities (see subsection 199(5) of the National Consumer Credit Protection Act).
29.02 Starting a National Consumer Credit Protection Act small claims proceeding
A person who wants to make a small claims application must file an originating application in the approved form.
Note 1: Part 8 sets out general rules about starting proceedings.
Note 2: A party to a small claims application may be represented by a lawyer only with the leave of the Court. If the Court gives a party leave to be represented by a lawyer, the leave may be given subject to conditions the Court considers appropriate. A party is not taken to be represented by a lawyer if the lawyer is an employee or officer of the party (see subsections 199(7) to (9) of the National Consumer Credit Protection Act).
29.03 Representation for corporations—National Consumer Credit Protection Act small claims proceeding
Despite subrule 4.01(2), an officer or employee of a corporation may represent the corporation in a small claims proceeding under this Part if the officer or employee is authorised by the corporation to represent the corporation in the proceeding.
Part 30—Intellectual property
Division 30.1—General
30.01 Application of Part 30
This Part applies to intellectual property proceedings in the Court.
Note: For intellectual property proceeding, see rule 1.20.
30.02 Appearance by Commissioner
(1) The Commissioner may file a notice of address for service, and be heard, in any intellectual property proceeding.
(2) However, the Commissioner is not a party to a proceeding other than an appeal:
(a) from a decision of the Commissioner; and
(b) in which there is no party in opposition to the party bringing the appeal.
30.03 Starting an appeal—filing and service of notice of appeal
(1) A party who wants to appeal from a decision of the Commissioner must file a notice of appeal within 21 days after the date of the decision.
(2) A notice of appeal must state the following:
(a) the Commissioner from whom the appeal is brought and the date of the decision;
(b) whether the appeal is from the whole or a part of the decision (including, if from a part only, the details of the part);
(c) the order or orders sought;
(d) the grounds relied on in support of each order sought;
(e) the particulars of each ground relied on.
Note: A Registrar will fix a first court date and a place for hearing and will endorse those details on the notice of appeal. The first court date will be at least 28 days after filing.
(3) The applicant must serve the notice of appeal on the Commissioner and each other party to the appeal within 5 days after the notice of appeal is filed.
30.04 Application for extension of time to file notice of appeal
(1) A person who wants to apply for an extension of time within which to file a notice of appeal mentioned in rule 30.03 must file an application for an extension of time in the approved form.
(2) The application may be made during or after the period mentioned in rule 30.03.
(a) an affidavit stating the following:
(i) briefly but specifically, the facts on which the application relies;
(ii) why the notice of appeal was not filed within time;
(iii) the nature of the appeal;
(iv) the questions involved; and
(b) a draft notice of appeal that complies with rule 30.03.
(4) At least 14 days before the first court date, the applicant must serve a copy of the application and the accompanying documents on:
(a) the Commissioner; and
(b) each interested person.
30.05 Grounds of appeal or particulars not stated in notice of appeal
A party is not entitled to tender any evidence or make any submissions in support of:
(a) a ground of appeal not stated in the notice of appeal; or
(b) a ground of appeal of which particulars have not been given in the notice of appeal.
30.06 Notice of cross‑appeal
(1) A respondent who wants to appeal from a decision, or part of a decision, of the Commissioner from which the applicant has appealed must file a notice of cross‑appeal.
(2) The notice of cross‑appeal must state the following:
(a) whether the cross‑appeal is from the whole or a part of the decision (including, if the cross‑appeal is from a part only, details of the part);
(b) the order or orders sought;
(c) the grounds relied on in support of each order sought;
(d) the particulars of each ground relied on.
(3) The notice of cross‑appeal must be filed within 21 days after the respondent was served with the notice of appeal.
(4) The respondent must, within 5 days after filing the cross‑appeal, serve the notice of cross‑appeal on:
(a) the Commissioner; and
(b) the applicant; and
(c) any other party to the cross‑appeal.
30.07 Notice of contention
If a respondent does not want to cross‑appeal from the Commissioner’s decision, but contends that the Commissioner’s decision should be affirmed on grounds other than those relied on by the Commissioner, the respondent must, within 21 days after the notice of appeal is served, file a notice of contention in the approved form.
30.08 Provision of documents by Commissioner
Within 14 days after being served with a notice of appeal, the Commissioner must:
(a) lodge the documents (or certified copies of the documents) necessary for the hearing that are in the Commissioner’s possession, and a list of the documents; and
(b) give each party to the appeal notice in writing of the documents filed.
30.09 Evidence
Material before the Commissioner for the purpose of the decision appealed from is, with the leave of the Court, admissible in evidence on the hearing of the appeal.
Division 30.2—Particular requirements
30.10 Infringement of copyright—particulars
(1) A person who wants relief for an infringement of copyright under the Copyright Act must file an originating application.
(2) The originating application must include particulars of the infringement that:
(a) specify the manner in which the copyright is alleged to be infringed; and
30.11 Infringement of registered designs—particulars
(1) A person who wants relief for infringement of a registered design under the Designs Act must file an originating application.
(2) The originating application must include particulars of the infringement that:
(a) specify the manner in which the design is alleged to be infringed; and
30.12 Application for compulsory licence—Designs Act
(1) A person who applies under section 90 of the Designs Act for an order requiring the grant of a licence must file an originating application.
(2) The originating application must state the material facts on which the applicant intends to rely, to satisfy the Court in relation to the matters mentioned in subsection 90(3) of that Act.
30.13 Revocation of registration or rectification of Register—Designs Act
(1) A person who wants an order under:
(a) section 93 of the Designs Act, to revoke the registration of a design; or
(b) section 120 of the Designs Act, for the rectification of the Register;
must file an originating application.
(2) The originating application must include particulars of the grounds for revocation or rectification on which the party making the application relies.
(3) A party is not entitled to tender any evidence, or make any submissions in support, of a ground for revocation or rectification not stated in the application.
30.14 Infringement of PBR—particulars
(1) In a proceeding for infringement of a PBR under the PBR Act, particulars of the infringement must:
(a) specify the manner in which the PBR is alleged to be infringed; and
(2) A respondent in a proceeding mentioned in subrule (1) who relies, in a counterclaim, on a ground mentioned in subsection 54A(1) of the PBR Act must give particulars of the facts the respondent intends to rely on for the ground.
30.15 Infringement of registered trade marks—particulars
In a proceeding for infringement of a registered trade mark under the Trade Marks Act, particulars of the infringement must:
(a) specify the manner in which the trade mark is alleged to be infringed; and
30.16 Dispute of validity of registration of trade mark—particulars of invalidity
(1) A party who disputes the validity of the registration of a registered trade mark under the Trade Marks Act must include, in the pleading or other document in which the party disputes the validity of registration, particulars of the grounds of invalidity on which the party relies.
(2) A party is not entitled to tender any evidence of, or make any submissions in support of, a ground for revocation or rectification not stated in the application.
Part 31—Fair Work Division
Division 31.1—General
31.01 Expressions used in Part 31
Unless a contrary intention appears:
(a) an expression used in Division 31.2 or 31.4 of these Rules and in the Fair Work Act has the same meaning in that Division as it has in the Fair Work Act; and
(b) an expression used in Division 31.3 of these Rules and in the Registered Organisations Act has the same meaning in that Division as it has in the Registered Organisations Act; and
(c) an expression used in Division 31.5 of these Rules and in the Federal Safety Commissioner Act has the same meaning in that Division as it has in the Federal Safety Commissioner Act.
31.02 Application of Part 31
This Part applies to a proceeding in the Court to which the Fair Work Act, the Registered Organisations Act or the Federal Safety Commissioner Act applies.
Division 31.2—Contraventions of the Fair Work Act
31.03 Application in relation to dismissal from employment in contravention of a general protection (Fair Work Act, subsection 539(2), table item 11)
(1) A person who wants to apply for an order in relation to an allegation that an employee was dismissed in contravention of a general protection mentioned in Part 3‑1 of the Fair Work Act must file an originating application in the approved form.
(2) The application must include any other claim for relief that the applicant wants to make in addition to the claim mentioned in subrule (1).
Note: Rule 31.05 provides for an application for an order in relation to a contravention of subsection 351(1) of the Fair Work Act (alleged discrimination).
(b) unless the application includes an application for an interim injunction—a certificate issued by the Fair Work Commission under the Fair Work Act that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Note: Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.
(4) Paragraph (3)(b) does not apply to an application brought by a Fair Work Inspector.
Note 1: Part 8 of these Rules sets out general rules about starting a proceeding.
Note 2: An originating application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim (see rule 8.04).
31.04 Application in relation to alleged unlawful termination of employment (Fair Work Act, subsection 539(2), table item 35)
(1) A person who wants to apply for an order in relation to an alleged unlawful termination of an employee’s employment must file an originating application in the approved form.
(2) The application must include any other claim for relief that the applicant wants to make in addition to the claim mentioned in subrule (1).
(b) unless the application includes an application for an interim injunction—a certificate issued by the Fair Work Commission under the Fair Work Act that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Note 1: Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.
Note 3: An originating application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim (see rule 8.04).
(4) Paragraph (3)(b) does not apply to an application brought by a Fair Work Inspector.
31.05 Application in relation to alleged discrimination (Fair Work Act, subsection 539(2), table item 11)
(1) A person who wants to apply for an order in relation to an alleged contravention of subsection 351(1) of the Fair Work Act must file an originating application in the approved form.
(2) The application must include any other claim for relief that the applicant wants to make in addition to the claim mentioned in subrule (1).
(3) An application in relation to alleged discrimination involving dismissal must be accompanied by a certificate issued by the Fair Work Commission under the Fair Work Act that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Note 1: An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person’s race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin (see subsection 351(1) of the Fair Work Act). For adverse action, see section 342 of the Fair Work Act.
Note 2: Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.
(4) Subrule (3) does not apply to an application brought by a Fair Work Inspector.
31.06 Application in relation to alleged sexual harassment (Fair Work Act, subsection 539(2), table item 27A)
(1) A person who wants to apply for an order in relation to an alleged contravention of subsection 527D(1) of the Fair Work Act must file an originating application in the approved form.
(2) The application must include any other claim for relief that the applicant wants to make in addition to the claim mentioned in subrule (1).
(b) unless the application includes an application for an interim injunction—a certificate issued by the Fair Work Commission under the Fair Work Act that the Fair Work Commission is satisfied that all reasonable attempts to resolve the dispute have been, or are likely to be, unsuccessful.
Note 1: Subsection 527T(3) of the Fair Work Act sets out the specified periods in which a sexual harassment application can be made to the Court.
Note 2: Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.
(4) Paragraph (3)(b) does not apply to a sexual harassment application brought by a Fair Work Inspector.
31.07 Application in relation to other alleged contraventions of the Fair Work Act general protections
(1) A person who wants to apply for an order in relation to an alleged contravention, or an alleged proposed contravention, of a general protection mentioned in Part 3‑1 of the Fair Work Act (other than a contravention mentioned in rule 31.03 or rule 31.05) must file an originating application in the approved form.
Note 1: Sections 545 and 546 of the Fair Work Act set out the orders the Court may make.
Note 3: An application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim (see rule 8.04).
31.08 Application in relation to other alleged contraventions of the Fair Work Act
A person who wants to apply for an order in relation to an alleged contravention of the Fair Work Act (other than a contravention mentioned in rule 31.03, 31.04, 31.05, 31.06 or 31.07) must file an originating application in the approved form.
Note: Part 8 of these Rules sets out general rules about starting a proceeding.
Division 31.3—Contraventions of the Registered Organisations Act
31.09 Application in relation to taking a reprisal (Registered Organisations Act, section 337BB)
(1) A person who wants to apply for an order in relation to an allegation that a person took or threatened to take, or is taking or threatening to take, a reprisal against another person must file an originating application in the approved form.
Note 1: Section 337BB of the Registered Organisations Act sets out the orders the Court may make.
Note 3: An originating application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim (see rule 8.04).
Division 31.4—Small claims applications under the Fair Work Act
31.10 Small claims procedure
(1) A person who wants to apply for compensation may request that the application be dealt with under this Division if:
(a) the compensation is not more than $100,000; and
(b) the compensation is for an entitlement mentioned in subsection 548(1A) of the Fair Work Act.
Note 1: Subsection 548(1A) applies to certain amounts that an employer is required to pay to an employee, or an outworker entity is required to pay to an outworker.
Note 2: A party to a small claims application may be represented by a lawyer only with the leave of the Court. If the Court gives a party leave to be represented by a lawyer, the leave may be given subject to conditions designed to ensure that no other party is unfairly disadvantaged. A party is taken not to be represented by a lawyer if the lawyer is an employee or officer of the party (see subsections 548(5) to (7) of the Fair Work Act).
(2) An applicant may request that an application made under subsection 548(1B) of the Fair Work Act be dealt with under this Division.
Note 1: Subsection 548(1B) applies to proceedings in connection with a dispute relating to conversion of casual employment to full‑time or part‑time employment.
Note 2: The Court is not bound by any rules of evidence and procedure when dealing with a small claims application and may act:
(a) in an informal manner; and
(b) without regard to legal forms and technicalities (see subsection 548(3) of the Fair Work Act).
31.11 Starting a Fair Work Act small claims proceeding
(1) A person who wants to make a small claims application must file an originating application in the approved form.
Note 1: Sections 545, 545A and 548 of the Fair Work Act set out the orders the Court may make.
Note 3: An originating application filed under this rule need not be accompanied by an affidavit, statement of claim or points of claim (see rule 8.04).
Note 4: A party to a small claims application may be represented by a lawyer only with the leave of the Court. If the Court gives a party leave to be represented by a lawyer, the leave may be given subject to conditions the Court considers appropriate. A party is not taken to be represented by a lawyer if the lawyer is an employee or officer of the party (see subsections 548(5) to (7) of the Fair Work Act).
31.12 Representation for corporations—Fair Work Act small claims proceeding
Despite subrule 4.01(2), an officer or employee of a corporation may represent the corporation in a small claims proceeding under this Division if the officer or employee is authorised by the corporation to represent the corporation in the proceeding.
Division 31.5—Proceedings under the Federal Safety Commissioner Act
31.13 Application for order under section 81 of the Federal Safety Commissioner Act
A person who wants to apply for an order under section 81 of the Federal Safety Commissioner Act in relation to an alleged contravention of that Act must file an originating application in the approved form.
Note 1: Section 81 of the Federal Safety Commissioner Act sets out the orders the Court may make for contravention of a civil remedy provision.
Chapter 4—Costs, enforcement and contempt
Part 32—Costs
Division 32.1—General
32.01 Order for costs
(1) A party or person may apply for an order for costs:
(a) at any stage during a proceeding; or
(b) by interlocutory application within 28 days after a final order is made; or
(c) within any further time allowed by the Court.
(2) In making an order for costs, the Court may set a time for payment of the costs, which may be before the proceeding is concluded.
32.02 Determining costs
In making an order for costs, the Court may:
(a) award costs as between party and party; or
(b) award costs other than as between party and party; or
(c) award costs in a lump sum; or
(d) refer the costs for taxation under Part 40 of the Federal Court Rules.
Note 1: For costs as between party and party see rule 1.20.
Note 2: The Court may dispense with compliance with these Rules or make orders inconsistent with these Rules (see rules 1.10 and 1.11).
Note 3: The Court may order that costs be paid on an indemnity basis (see paragraph 192(4)(e) of the Act).
32.03 Costs reserved
If the Court reserves the question of costs, and no further order is made, costs follow the event.
32.04 Costs if a proceeding is transferred
(1) This rule applies if a proceeding is transferred to the Court from the Federal Court.
(2) If the Federal Court has not made an order for costs, the Court may make an order for costs including costs before the transfer.
(3) Unless the Federal Court otherwise orders, costs before the transfer must be in accordance with this Part.
32.05 Order for costs against lawyer
(1) The Court may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:
(a) to be incurred by a party or another person; or
(b) to be thrown away;
because of undue delay, negligence, improper conduct or other misconduct or default.
(2) A lawyer may be in default if a hearing cannot proceed conveniently because the lawyer has unreasonably failed:
(a) to attend, or arrange for a proper representative to attend, the hearing; or
(b) to file, lodge or deliver a document as required; or
(c) to prepare any proper evidence or information; or
(d) to comply with these Rules or an order of the Court; or
(e) to do any other act necessary for the hearing to proceed.
(3) An order for costs against a lawyer may be made:
(a) on the initiative of the Court; or
(b) on application by a party to the proceeding; or
(c) on application by another person who has incurred the costs or costs thrown away.
(4) The order may provide:
(a) that the costs, or part of the costs, as between the lawyer and party be disallowed; or
(b) that the lawyer pay the costs, or part of the costs, incurred by the other person; or
(c) that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.
(5) Before making an order for costs, the Court:
(a) must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and
(b) may order that notice of the order, or of any proceeding against the lawyer, be given to a party for whom the lawyer may be acting or any other person.
Note 1: For lawyer, see rule 1.20.
Note 2: For the duty of a party’s lawyer to assist the party to conduct a proceeding in accordance with the overarching purpose of the Act (which includes facilitating the just resolution of disputes as quickly, inexpensively and efficiently as possible), see subsection 191(2) of the Act.
Note 3: For the power of the Court to order a lawyer to pay costs if the lawyer does not comply with the duty under subsection 191(2) of the Act, see subsection 191(4) of the Act.
Division 32.2—Calculation of costs
32.06 Application of Division 32.2
This Division applies to costs payable, or to be taxed, under an Act, these Rules or an order of the Court, in a proceeding.
32.07 Costs and disbursements
Where the Court determines that a party is entitled to costs in a proceeding to which these Rules apply (other than a proceeding to which the Bankruptcy Act 1966 applies), that party may seek:
(a) costs calculated in accordance with Schedule 2; and
(b) disbursements properly incurred.
Note 1: The Court may dispense with compliance with these Rules or make orders inconsistent with these Rules (see rules 1.10 and 1.11).
Note 2: For costs in a proceeding to which the Bankruptcy Act 1966 applies, see Part 13 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021.
Note 3: For costs in a migration proceeding, see rule 25.14 of and Part 3 of Schedule 2 to these Rules.
32.08 Interest on outstanding costs
Interest is payable on outstanding costs at the rate referred to in rule 24.05.
32.09 Taxation of costs
In taxing a statement of costs, a taxing officer must apply the scale of costs set out in Schedule 3 to the Federal Court Rules.
Note: For taxing officer, see rule 1.20.
32.10 Expenses for attendance by witness
An amount paid, or to be paid, for attendance by a witness at a hearing is a disbursement properly incurred for a proceeding if:
(a) the attendance is reasonably required; and
(b) the amount is reasonable or is authorised, or approved, by the Court.
32.11 Expenses for preparation of report by expert
An amount paid, or to be paid, to an expert for preparation of a report for a party is a disbursement properly incurred for a proceeding if:
(a) the report is reasonably required; and
(b) the amount is reasonable or is authorised, or approved, by the Court.
32.12 Solicitor as advocate
(1) If a solicitor appeared for a party at a hearing alone or as instructed by another solicitor who is a member of the same firm, the amount to which the party is entitled for the hearing is limited to:
(a) 150% of the daily hearing fee for one solicitor; and
(b) a fee for preparation.
(2) The party is not entitled to an amount for the preparation of a brief on hearing.
32.13 Advocacy certificate
The Court may certify that it was reasonable to employ an advocate, or more than one advocate, to appear for a party to a proceeding.
32.14 Counsel as advocate
If the employment of an advocate is certified as reasonable, the amount payable for counsel to appear is the daily hearing fee and advocacy loading in accordance with Part 2 of Schedule 2.
Division 32.3—Determination of maximum costs
32.15 Maximum costs in a proceeding
(1) The Court may by order specify the maximum costs that may be recovered as between party and party in a proceeding.
(2) An order made under subrule (1) will not include an amount that a party is ordered to pay because the party:
(a) has failed to comply with, or has sought an extension of time for complying with, an order or any of these Rules; or
(b) has sought leave to amend a document; or
(c) has sought an extension of time for complying with an order or with any of these Rules; or
(d) has not conducted the proceeding in a manner to facilitate a just resolution as quickly, inexpensively and efficiently as possible, and another party has been caused to incur costs as a result.
(3) The Court may vary the maximum costs specified if, in the Court’s opinion, there is sufficient reason and it is in the interests of justice to do so.
Part 33—Enforcement
Division 33.1—General
33.01 Application without notice for directions
A party or an interested person may, without notice, apply to the Court for directions about the enforcement or execution of an order.
33.02 Condition precedent not fulfilled
(1) If an order is made in favour of a party subject to the fulfilment of a condition, the party cannot enforce the order until the condition is fulfilled.
Note: The Court may make an order subject to conditions (see rule 1.09).
(2) However, the party may apply to the Court for an order to revoke the condition or to vary the order.
33.03 Application for stay of judgment or order
A party bound by a judgment or order may apply to the Court for an order that the judgment or order be stayed.
Note: The party may rely on events occurring after the judgment or order takes effect.
33.04 Failure to comply with Court order
(1) A person who is ordered by the Court to do, or not to do, an act or thing, must comply with the order.
(2) A person who undertakes to the Court to do, or not to do, an act or thing, must comply with that undertaking.
Note: If a person does not comply with an order of the Court, a Registrar may bring the person’s failure, neglect or disobedience to the attention of the Court. The Court may act on its own initiative (see rule 1.16).
33.05 Failure to attend Court in response to subpoena or order
(1) This rule applies if:
(a) the Court has issued a subpoena or made an order that a person attend Court:
(i) to give evidence; or
(ii) to produce any document or thing; or
(iii) to answer a charge of contempt; or
(iv) for any other reason; and
(b) the person fails to attend.
(2) A party may apply to the Court for the issue of a warrant, in the approved form:
(a) for the person’s arrest and detention in custody until the person is brought before the Court; and
(b) for the production of the person before the Court.
(3) The warrant may be issued to one of the following persons:
(4) This rule does not limit the power of the Court to punish for contempt.
(5) This rule does not apply to an order or direction of the Court requiring a party to comply with these Rules.
33.06 Endorsement on order
If an order requires a person to do, or not to do, an act or thing, whether within a certain time or not, and the consequences of failing to comply with the order may be committal, sequestration or punishment for contempt, the order must carry an endorsement that the person to be served with the order will be liable to imprisonment, sequestration of property or punishment for contempt if:
(a) for an order that requires the person to do an act or thing—the person neglects or refuses to do the act or thing within the time specified in the order; or
(b) for an order that requires the person not to do an act or thing—the person disobeys the order.
33.07 Service of order
(1) An order mentioned in rule 33.06 must be served personally on the person who is bound to do, or not to do, the act or thing:
(a) within the time mentioned in the order; or
(b) if no time is mentioned—within a time that would allow the person to comply with the order.
(2) However, if the person:
(a) was present when the judgment was pronounced or the order was made; or
(b) was notified of the terms of the order orally, by telephone or electronically;
the person is taken to have been served with the order at the time the person heard or was notified of the order.
33.08 Application where person does not comply with order
(1) If a person does not comply with an order that the person is bound to comply with, a party may apply to the Court for the following orders:
(a) the committal of the person;
(b) the sequestration of the person’s property.
(2) If the person in default is a corporation or an organisation, a party may apply to the Court for an order:
(a) for the committal of an officer of the corporation or organisation; or
(b) for the sequestration of the property of the corporation or organisation.
(3) However, no application may be made for an order under paragraph (2)(a) unless the officer:
(a) has been served with the order in accordance with subrule 33.07(1), and the order carries the endorsement in rule 33.06; or
(b) was present when the order was made or was notified of the order in accordance with subrule 33.07(2).
(4) This rule applies if the Court has made:
(a) an injunction; or
(b) an order in the nature of an injunction; or
(c) an order in the nature of mandamus or prohibition.
Note: Contempt is dealt with in Part 34.
33.09 Substituted performance
(1) If a person (the first person) is required, but neglects or refuses, to do an act, a party may apply to the Court for an order:
(a) that the act be done by another person, appointed by the Court; and
(b) that the first person pay the costs and expenses incurred by the making of the order.
(2) Subrule (1) does not limit:
(a) the power of the Court to punish for contempt; or
(b) any other mode of enforcement of the judgment or order available to the party.
Note: Contempt is dealt with in Part 34.
33.10 Execution generally
(1) A party may apply to the Court to make an order, to issue any writ, or to take any other step that can be taken in the Supreme Court of the State or Territory in which the judgment or order has been made as if the judgment or order was a judgment or order of that Supreme Court.
(2) An order made under subrule (1) authorises the Sheriff, when executing the orders of the Court, to act in the same manner as a similar officer of the Supreme Court of the State or Territory in which the order is being executed is entitled to act.
(3) A party who wants to enforce an order in more than one State or Territory may adopt the procedures and forms of process of the Supreme Court of the State or Territory in which the judgment or order has been made.
Note: It is not necessary to adopt different modes of procedure and forms of process in each State or Territory.
33.11 Stay of execution
A party may apply to the Court for a stay of execution of a judgment or order.
Division 33.2—Enforcement against partnership
33.12 Execution of order against partnership
(1) An order against a partnership may be executed:
(a) against any property of the partnership in Australia, whether or not any partner is resident outside Australia; or
(b) against any partner in the partnership who has filed a notice of address for service in the proceeding; or
(c) against any person who has admitted to being, or has been found to be, a partner in the partnership; or
(d) against any partner in the partnership who has been individually served with a copy of the originating application.
(2) However, subrule (1) does not apply to make a person mentioned in that subrule individually liable, unless the person:
(a) has been personally served with the originating application; and
(b) has filed a notice of address for service in the proceeding.
33.13 Execution against individual partner
(1) If an order is made against a partnership, and the party in whose favour the order is made wants to execute the order against a partner who is not individually liable under subrule 33.12(2), the party must apply to the Court for an order against the partner.
(2) If, on the hearing of the application, the partner admits liability, judgment may be entered and an order made against the partner.
(3) If, on the hearing of the application, the partner denies liability, the applicant may apply to the Court for an order:
(a) for the further conduct of the proceeding; and
(b) that the proceeding continue in the partner’s name and not in the partnership name.
33.14 Application to proceeding between co‑partners
(1) This rule applies to:
(a) a proceeding between a partnership carrying on business in Australia and one or more of its members; and
(b) a proceeding between partnerships carrying on business in Australia that have one or more members in common.
(2) An order may not be executed in a proceeding to which subrule (1) applies without the leave of the Court.
(3) A party seeking leave under subrule (2) may apply to the Court:
(a) for directions; or
(b) for an order for the taking and holding of accounts and inquiries.
Division 33.3—Enforcement against business name
33.15 Execution of order—proceeding against person in person’s business name
(1) Any order in a proceeding against a person in the person’s business name may be enforced by execution only against any property of the business carried on under the business name.
(2) However, if the business is a partnership and the order is against the partnership in the partnership name, the order may be enforced by execution in accordance with rule 33.12.
(3) For enforcing an order under subrule (1), the property of the business is all the property, and rights and interests in property, of the person, that were originally brought into, or acquired for, the business.
Part 34—Contempt
Division 34.1—Contempt in face or hearing of Court
34.01 Arrest for contempt
(1) If it appears to the Court that a person is guilty of contempt, committed in the face of or in the hearing of the Court, the Court may:
(a) order that the person be brought before the Court; or
(b) issue a warrant in the approved form:
(i) for the person’s arrest and detention in custody until the person is brought before the Court; and
(ii) for the production of the person before the Court.
(2) The warrant may be issued to one of the following persons:
Note: Contempt in the court room interferes with the administration of justice. Examples of actions that may be contempt include the following:
(a) assaulting or threatening a Judge or another person;
(b) insulting the Court;
(c) disrupting Court proceedings;
(d) disrespect or other misbehaviour in Court.
34.02 Charge, defence and determination
If a person charged with contempt is brought before the Court, the Court will:
(a) tell the person of the contempt with which the person is charged; and
(b) require the person to plead to the charge; and
(c) after a hearing—determine whether the person is guilty of contempt; and
(d) make an order for the person’s discharge or punishment.
34.03 Interim custody
(1) The Court may order that, until the charge is determined, the person charged:
(a) be kept in custody as specified in the order; or
(b) be released.
(2) The order may require the person charged to give a specified amount of security for the person’s appearance in person to answer the charge.
Note: The procedure in this Division can only be used if the alleged contempt has been committed in the face of the Court. This procedure will only be applied if it is necessary to deal with the conduct complained of quickly.
Division 34.2—Application for contempt
34.04 Application alleging contempt
(1) If a party alleges that a person has committed a contempt in connection with a proceeding in the Court, an application for punishment for the alleged contempt must be made by the party by interlocutory application in the proceeding.
(2) If it is alleged that a person has committed a contempt, but not in connection with a proceeding in the Court, the proceeding for punishment of the alleged contempt must be started by filing an originating application as a substantive proceeding.
34.05 Statement of charge
An application alleging contempt must:
(a) be in the approved form; and
(b) state the contempt alleged with sufficient particularity to allow the person charged to answer the charge; and
(c) be accompanied by the affidavits on which the person making the charge intends to rely to prove the charge.
Note: The Court may act on its own initiative (see rule 1.16).
34.06 Service
The person charged must be served personally with:
(a) the application; and
(b) the statement of charge; and
(c) the affidavits on which the party making the charge intends to rely.
34.07 Arrest
(1) If the Court is satisfied that a person who is the subject of an application for punishment of a contempt is likely to abscond or otherwise withdraw from the jurisdiction of the Court, the Court may:
(a) order that the person charged give security for the person’s appearance to answer the charge; or
(b) issue a warrant in the approved form:
(i) for the person’s arrest and detention in custody until the person is brought before the Court; and
(ii) for the production of the person before the Court.
(2) If the person charged does not comply with an order to give security, the Court may issue a warrant for the arrest of the person and for the person’s detention in custody until the person is brought before the Court to answer the charge.
(3) A warrant referred to in this rule may be issued to one of the following persons:
34.08 Charge and defence
If a person charged with contempt under this Division is brought before the Court, the Court will:
(a) tell the person of the allegation; and
(b) ask the person to state whether the person admits or denies the allegation; and
(c) hear any evidence in support of the allegation.
34.09 Determination of contempt application
(1) After hearing evidence in support of the allegation, the Court may:
(a) if the Court decides there is no prima facie case—dismiss the application; or
(b) if the Court decides there is a prima facie case:
(i) invite the person to state the person’s defence to the allegation; and
(ii) after hearing any defence, determine the charge.
(2) If the Court finds the charge proved, the Court may make an order for the punishment of the person.
Division 34.3—General
34.10 Warrant for imprisonment
A warrant for the imprisonment of a person charged under this Part may be issued by the Judge presiding in the Court directing the arrest or detention.
34.11 Discharge before end of prison term
If a person charged is committed to prison for a term, the person may apply to the Court for an order for the person’s discharge before the end of the term.