7
Commencement of proceedings
7 Commencement of proceedings
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Commonwealth legislation
This Act has been repealed and is no longer in force. It is retained for historical reference.
These rules set the procedural framework for civil business in the High Court: how cases start, writs must be endorsed and served, representation for infants and persons of unsound mind, solicitor conduct, discovery and inspection, third‑party practice, admiralty process and indigent (poor‑person) access. They fix time limits, prescribed forms and filing mechanics.
Mechanically, parties pay for non‑prescribed or prolix forms (Order 2 r 2); solicitors must promptly disclose authority or risk a stay (Order 7 r 1); courts have broad discretion to order discovery, assign counsel, approve compromises and sanction non‑compliance (Orders 14–20, 33). Poor‑person orders waive Court fees but are supervised and revocable (Order 26–43).
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Direct links to the current provisions in High Court Rules 1952.
7 Commencement of proceedings
8 Title of proceedings
Order 2 Writs of summons
1 Endorsement of claim
2 Costs of prolix writs
3 Form of writ
4 Leave to issue out of Commonwealth
5 Form of writ for service out of the Commonwealth
6 Admiralty action
7 Dating and testing of writs
Order 3 Endorsement of claim
1 Endorsement under Order 2, rule 1
2 Forms of endorsement
3 Endorsement to show representative capacity
4 Endorsement where the claim is liquidated
5 Ordinary account
6 Libel
Order 4 Endorsement of address
1 Where plaintiff sues by solicitor
2 Where plaintiff sues in person
3 Address for service
4 Where notice is served in lieu of writ
5 Matters not commenced by writ
Order 5 Issue of, and appearances to, writs of summons and originating processes
I Place of issue
1 Writs etc may be issued out of any Registry
2 Endorsement as to appearance on writs etc issued out of Principal Registry
II General
4 Preparing and printing writs
5 Signing etc by proper officer
6 Copy of writ etc to be left with proper officer
7 Filing and marking of copy of writ etc
III Admiralty actions
8 Admiralty, arrest warrant after affidavit
9 Special circumstances
IV Time for appearance
10 Time for appearance to be limited by writ
V Actions on relation
11 Actions by Attorney-General on relation
Order 6 Concurrent writs
1 Concurrent writs, how issued etc
2 Period during which concurrent writ in force
3 Concurrent writs for service within, and outside, the Commonwealth
4 Concurrent originating process
Order 7 Disclosure by solicitors and plaintiffs, and change of solicitor
1 Where name of solicitor endorsed on writ
2 Change of solicitor
3 Notice of appointment of solicitor
4 Notice of intention to act in person
5 Power to act through new solicitor
6 Removal of solicitor from the record at the instance of another party
7 Withdrawal of solicitor who has ceased to act for a party
8 Solicitor not to act for adverse parties
Order 8 Renewal of writs
1 Original writ in force for 12 months
2 Evidence of renewal
3 Lost writ
Order 9 Service of writs of summons
I Mode of service
1 Undertaking to accept service
2 When service required, how effected
3 Substituted service
II On particular defendants
4 Infant
5 Persons of unsound mind
III On corporations and agents
6 Service on corporations etc
7 Service on agent
IV In particular actions
8 Service in action for recovery of land
9 Admiralty actions in rem
10 Service of warrant of arrest
11 Service of writ or warrant, how effected
12 When cargo landed
13 Where no access to cargo
14 Proceeds in Court
V Generally
15 Endorsement after service
Order 10 Service outside the Commonwealth
1 In certain cases service of writ etc allowed outside Commonwealth
2 Agreement as to jurisdiction and mode of service
3 Application to be supported by evidence
4 Order to fix time for appearance
5 Notice of writ
6 Service of notice of writ
7 Service abroad by letter of request
8 Other originating processes
9 Service of Australian documents in Convention countries
10 Validity of other service
11 Air mail
12 British subjects residing outside the Commonwealth
13 Actions under Civil Aviation (Carriers’ Liability) Act 1959
14 Power of Court to cause persons to be informed
Order 11 Appearance
1 Appearance in Registry
2 Where defendant does not reside etc in district
3 Mode of entering appearance; memorandum and duplicate
4 Conditional appearance
5 Motion to set aside writ
6 Notice of entry to plaintiff
7 Entry by defendant entitled to enter at Principal Registry
8 Defendant’s address for service
9 Defendant in person
10 Address for service
11 Memorandum irregular, address fictitious
12 Form of memorandum of appearance
13 Officer to enter memorandum
14 Appearance at Principal Registry to be notified to District Registry
15 Defendants appearing by same solicitor
16 Solicitor not entering appearance
17 Bail bond in Admiralty actions
18 Time for filing bond
19 Commissioner in certain cases not to take bail
20 Commission recoverable on taxation
21 Time for appearance
22 Admiralty intervention
23 Recovery of land
24 Landlord appearing
25 Recovery of land, person not named defendant
26 Recovery of land, limiting defence
Order 12 Default of appearance
1 Default of appearance by infant or person of unsound mind; notice of application
2 Default of appearance generally
3 Liquidated demand endorsed
4 Liquidated demand; several defendants
5 Detention of goods
6 Detention of goods; several defendants
7 Detention of goods, damages and liquidated demand; final and interlocutory judgment
8 Recovery of land
9 Other claims
10 Plaintiff not proceeding — judgment for costs
11 Setting aside judgment
12 Action in District Registry; time for entering judgment
13 Default of appearance in cases not otherwise specially provided for
14 Default in Admiralty action
15 Default in Admiralty action
16 Default of appearance to originating summons
17 Judgment against one not to prejudice right against other defendant
Order 13 Summary relief
1 Special endorsement
2 Judgment on writ specially endorsed under O. III r. 4
3 Application by summons
4 Defendant may show cause
5 Examination of witnesses
6 Judgment for part of claim
7 Where one defendant has good defence, but other not
9 Summary disposal
10 Assessment of damages
11 Directions as to trial
12 Relief from forfeiture
13 Fresh application
Order 14 Summary judgment for specific performance
1 Judgment on writ for specific performance
2 Application by summons
3 Defendant may show cause
4 Examination of witnesses
5 Leave to defend
6 Directions as to trial
7 Summary disposal
Order 15 Application for an account
1 Order for account
2 Application, how made
3 Judgment without pleadings
4 Evidence
5 Action may be directed to proceed in usual course
Order 16 Parties
I Generally
1 Persons claiming jointly, severally or in the alternative may be plaintiffs
2 No other proceeding to be brought for same claim
3 Proceeding in name of wrong plaintiff
4 Misjoinder and non-joinder
5 Consent of plaintiff or next friend
6 Counterclaim — misjoinder
7 All persons may be joined as defendants
8 Defendant need not be interested in all the relief
9 Joinder of persons severally, or jointly and severally liable
10 Plaintiff in doubt as to person from whom redress is to be sought
11 Trustees, executors etc may sue and be sued in respect of estate
12 Numerous persons
13 Power to approve compromise
14 Application to add or strike out
15 Where defendant added
16 Actions under Act and Convention
17 Initial letters may be used
II Persons under disability
18 Proceedings by infants
19 Persons of unsound mind
20 Appearance by infant
21 Guardian ad litem
22 Other cases
23 Next friend or relator
24 Consent of persons under disability to procedure
25 Removal and appointment of next friend or guardian ad litem
III Proceedings by and against poor persons
26 Suing or defending as poor person
27 Disqualification
28 Case before counsel
29 Affidavit in support of application
30 No Court fees payable
31 Order to be filed
32 Memorandum of filing
33 Assignment of counsel or solicitor
34 Prohibition of fees
35 Revoking order
36 Settlement etc and discharge of solicitor
37 Alteration in means of poor person
38 Solicitor to sign notices etc
39 Failure to proceed
40 Costs — poor persons
41 Liability of poor person for costs
42 Costs where order obtained by fraud
43 Costs to solicitor from proceeds of action
IV Administration and execution of trusts
44 Appointment of person to represent next of kin or a class
45 Residuary legatee and next of kin
46 Person interested in proceeds of realty
47 Residuary devisee or next of kin
48 Cestuis que trust
49 Waste
50 Executor, administrator or trustee
51 Notice of judgment to be served on certain persons and its effect
52 Order for liberty to attend not necessary, but appearance to be entered
53 Memorandum of service to be entered in the Registry
54 Form of memorandum
55 Service of notice of judgment on infants etc
56 Court may appoint or dispense with legal personal representative
57 Administration — appearance at chambers in respect of creditor’s claims
Order 17 Third party procedure
1 Third party procedure
2 Form and issue of notice
3 Effect of notice
4 Appearance
5 Default by third party
6 Where judgment by default against defendant
7 Third party directions
9 At trial
10 Costs
11 Fourth and subsequent parties
12 Co-defendants
13 Counterclaim
Order 18 Change of parties by death etc
1 Proceeding not abated where cause of action continued
2 Order to carry on proceeding
3 Service of order to continue proceeding
4 Application to discharge order by person under no disability or having a guardian
5 By person under disability having no guardian
6 Death of sole plaintiff or defendant
7 Solicitor of plaintiff to give notice of abatement
8 Abated proceeding to be struck out
Order 19 Joinder of causes of action
1 All causes of action may be joined
2 Claims of trustees in bankruptcy etc
3 Husband and wife
4 Executor and administrator
5 Claims by joint plaintiffs
6 Remedy for misjoinder
7 Order for exclusion
Order 20 Pleading generally
1 Pleadings in High Court
2 Delivery of pleadings — costs of prolix pleadings
3 Set-off and counterclaim
4 Pleading to state material facts and not evidence
5 Particulars to be given where necessary
6 Further and better statement or particulars
7 Letter for particulars
8 Particulars before defence
9 Order for particulars when a stay
10 Printing etc of pleadings
11 Delivery of pleadings
12 Marking pleadings
13 “Not guilty by statute” abolished
14 Specific denial
15 Condition precedent
16 What must be specially pleaded
17 Departure
18 Denial to be specific
19 Joinder of issue
20 Evasive denial
21 Denial of contract
22 Effect of documents to be stated
23 Malice, knowledge, condition of mind etc
24 Rolled-up plea
25 Notice
26 Implied contract or relation
27 Presumptions of law
28 Actions for trespass
29 Striking out pleadings
30 Preliminary Act
Order 21 Statement of claim
1 Statement of claim
2 Allegation of jurisdiction
3 Claim beyond endorsement
4 Relief to be specifically stated
5 Relief founded on separate grounds
6 Stated or settled account
Order 22 Defence and counterclaim
1 Mere denial insufficient
2 Defences to actions on bills etc
3 Defences to actions under Order 13, r. 1 (1) (a) and (b)
4 Pleading to damage
5 Persons in representative capacity
6 Time for delivery of defence
7 Where leave to defend given under Order 13 or 14
8 Proper admissions not made
9 Allowable counterclaim
10 Title on counterclaim
11 Counterclaim against person not party
12 Appearance by added parties
13 Reply to counterclaim
14 Exclusion of counterclaim
15 Discontinuance
16 Judgment for balance
17 Plea in abatement
18 Plea of possession
Order 23 Payment into and out of court and tender
1 Payment into Court
2 Plaintiff may take out money
3 Money remaining in Court
4 Several defendants
5 Counterclaim
6 Non-disclosure of payment into Court
7 Payment into Court under certificate
8 Money paid into Court under order
9 Notice of payment in
10 Duty
11 Money recovered by or paid into account for infant or person of unsound mind
Order 24 Reply
1 Time for reply
2 Reply to counterclaim
3 Subsequent pleadings — time for pleading after reply
4 New assignment
Order 25 Matters arising pending the action
1 New grounds of defence arising
2 Further defence or reply
3 Confession of defence
Order 26 Demurrer and objections to pleadings
1 Demurrer
2 Demurrer to state whether the whole or part — frivolous demurrer may be set aside with costs
3 Delivery
4 Demurrer and pleading in one document
5 Leave to plead and demur together not necessary
6 Demurrer to claim founded on document
7 Demurrer not entered for argument to be held sufficient
8 Form of setting down for argument
9 When demurrer required to be heard before Full Court
10 Copy pleadings for Justices
11 Amendment pending demurrer
12 Costs
13 Effect of decision on demurrer going to whole action
14 Where demurrer allowed to part of a pleading, that part is to be deemed to be struck out
15 Demurrer overruled with leave to plead
16 Points of law may be raised by pleadings
17 Dismissal of action
18 Striking out pleading where no reasonable cause of action disclosed
19 Declaratory judgment
Order 27 Discontinuance
1 Discontinuance by a party
2 Withdrawal by consent
3 Entering judgment on discontinuance
Order 28 Default in pleading
1 Default of plaintiff in delivering statement of claim
2 Claim for debt or liquidated demand
3 Several defendants, default of one
4 Damages — detention of goods
5 Default of one or more defendants
6 Debt or damages and detention of goods or damages
7 Recovery of land
8 Claims joined with claim for recovery of land
9 Where a defence is delivered to part of claim only
10 Admiralty actions in rem
11 Defendant in default
12 One of several defendants default
13 Close of pleadings on default
14 Default of third party
15 Setting aside judgment by default
16 Effect of judgment by default
17 Counterclaims
Order 29 Amendment
1 Amendment of endorsement
2 When plaintiff may amend without leave
3 By defendant
4 Disallowance of amendment, application for, within 14 days
5 Pleading to amendment
6 Other cases
7 Failure to amend under order
8 How amendments made
9 Date of order and date of amendment to be marked
10 Delivery of amended document
11 Clerical mistakes and accidental omissions
12 General power to amend
13 Costs
Order 30 Caveats and releases in admiralty actions
1 Caveat against warrant to arrest
2 Caveat Warrant Book
3 Search for caveat before issue of arrest warrant in District Registry
4 Writ to be served on party entering caveat
5 Security to be given within 3 days
6 If security not given, action may proceed as on default
7 Judgment may be enforced by attachment and warrant
8 Release
9 Caveat against release
10 Payment into Court
11 Release of cargo arrested for freight only
12 In salvage actions
13 On giving security
14 On consent or discontinuance or dismissal of action
15 Release to be left with Marshal
16 Registrar may require Justice’s order
17 Liability for delaying release
18 Arrest notwithstanding caveat
19 Caveat Payment Book
20 Caveat against payment out of Court
21 Liability for delaying payment
22 Address of caveator
23 Withdrawal of caveats
24 Caveats may be overruled
25 Caveat in Admiralty actions in force for 6 months
Order 31 Summons for directions and consolidation
1 Summons for directions
2 Interlocutory proceedings
3 No affidavit to be used without leave
4 Parties to apply for directions
5 Subsequent applications
6 Costs of subsequent applications
7 Consolidation of proceedings
Order 32 Discovery and inspection
1 Discovery by interrogatories
2 Further interrogatories by leave
3 Copy to be filed
4 Interrogatories to corporation or body politic
5 Applications to set aside
6 Affidavit in answer, filing
7 Objections to interrogatories by answer
8 Order to answer or answer further
9 Application for discovery of documents
10 Affidavit of discovery
11 Affidavit of documents
12 Production of documents
13 Neglect to make discovery
14 Inspection of documents referred to in pleadings or affidavits
15 Time for inspection when notice given under rule 14; bank and trade books
16 Order for inspection
17 Verified copies
18 Power to order discovery of particular document or class of documents
19 Premature discovery
20 Non-compliance with order for discovery or inspection
21 Service on solicitor of order for discovery
22 Attachment of solicitor
23 Using answer to interrogatories at trial
24 Discovery against Marshal
25 Order to apply to infants
Order 33 Admissions and notices to produce
1 Notice of admission of facts
2 Notice to admit documents
3 Notice to admit facts
4 Judgment or order upon admissions of facts
5 Affidavit of signature to admissions
6 Service of notice to produce documents
7 Costs of notice where documents unnecessary
Order 34 Issues, inquiries and accounts
1 Issues may be prepared and settled
2 lnquiries and accounts, when directed
3 Special direction as to mode of taking account
4 Accounts to be verified by affidavit and items numbered
5 Mode of vouching accounts
6 Surcharge
7 lnquiry as to outstanding personal estate
8 Accounts and inquiries to be numbered
9 Just allowances
10 Registrar to report delay
11 Expediting proceedings in case of undue delay
Order 35 Questions of law and issues of fact without pleadings
I Special case
1 Special case by consent
2 Special case by order before trial
3 Special case to be prepared etc
4 Leave to set down where person under disability is a party
5 Form of entry for argument
6 Notice of entry
7 Agreement as to payment of money and costs
8 Special case heard by Full Court in first instance
II Issues of fact without pleadings
9 Trial of questions of fact agreed upon
10 Order for payment of sum of money
11 Entry of judgment upon the finding
Order 36 Trial
I Place
1 Place of trial or hearing
2 Revoking or varying directions as to trial or hearing
II Mode of trial
3 Mode of trial
4 Party seeking trial by jury
5 Court may direct trial with jury at any time
6 Questions of fact may be tried differently, one before the other
7 Number of Justices
III Notice of and entry for trial
8 Notice of trial by plaintiff
9 Notice of trial by defendant — motion to dismiss for want of prosecution
10 Form of notice of trial
11 Length of notice
12 Entry of cause for trial
13 Avoidance of notice of trial
14 Notice of trial
15 Countermanding notice
16 Entry for trial by party served with notice
17 Entry by Registrar in list
18 Time for entry before commencement of sittings
19 Setting down of causes on further consideration
20 Withdrawal of trial after entering
21 Order of trial
IV Papers for Justice
22 Copies of pleadings etc to be delivered
V Proceedings at hearing or trial
23 Default of appearance by defendant at trial
24 Default of appearance by plaintiff
25 Default of appearance by both parties
26 Judgment by default may be set aside on terms
27 Adjournment of trial
28 Solicitor through whose default trial is delayed may be ordered to pay costs
29 Evidence in mitigation of damages in action for libel or slander
30 Disallowance of vexatious question in cross‑examination
31 Judgment to be entered at or after trial
32 No non-suit
33 Times of commencement and termination of trial
34 Entry of findings of fact on trial
35 Certificate for entry of judgment
VI Writ of inquiry and reference as to damages
36 Application of Rules
37 Writ of trial and inquiry abolished
38 Ascertainment of damages where a matter of calculation
39 Damages in respect of continuing cause of action
Order 37 Evidence
I Office copies
1 Obtaining office copies
2 Office copies admissible in evidence
II Examination of witnesses upon commission etc
3 Court or Justice may order depositions to be taken
4 Letters of request
5 Examination of witnesses abroad
6 Form of order for examination of witnesses abroad
7 Order for attendance of person to produce
8 Disobedience to order for attendance
9 Expenses of person ordered to attend
10 Examiner to have copy of writ and pleadings
11 Examination, how taken
12 Depositions to be taken down in writing, read over to and signed by witness, or if he refuses, by the examiner
13 Refusal of witness to attend or to be sworn
14 Objection by witness to questions
15 Depositions to be transmitted to Registry
16 Special report by examiner
17 Depositions not to be given in evidence without consent or by leave of Justice
18 Oaths
19 Attendance of witness under subpoena for examination or to produce
20 Evidence taken after trial
21 Practice as to taking evidence at any stage
22 Special directions as to taking evidence
23 Evidence in proceedings subsequent to trial
III Subpoena
24 Form of praecipe for a subpoena
25 Form of writ of subpoena
26 Subpoenas in District Registry
27 Subpoena for attendance of witness in Chambers
28 Subpoena for attendance before Registrar
29 Number of persons in a subpoena other than a subpoena duces tecum
30 Number of persons in subpoena duces tecum
31 Correction of errors in subpoena
32 Service of subpoena
33 Affidavit to prove service of subpoena
34 Within what time subpoena can be served
IV Shorthand notes
35 Shorthand notes
Order 38 Court experts
1 Interpretation
2 Application to appoint independent expert
3 The report of Court expert
4 Cross-examination
5 Nomination and instructions
6 Experiments
7 Further report
8 Remuneration
9 Several issues
10 Costs of proceedings
Order 39 Affidavits and depositions
1 Evidence on motions etc
2 Title of affidavits
3 Contents of affidavit
4 Exhibits
5 Certificate on exhibit
6 Use of figures
7 Before whom affidavits may be sworn
8 Affidavits etc how to be sworn and taken abroad
9 Form of affidavits
10 Description and abode of deponent to be stated
11 Affidavits made by two or more deponents
12 Filing before using
13 Affidavits to be filed in proper Registry
14 Scandalous matter
15 Alterations in affidavits
16 Affidavits by illiterate or blind persons
17 Affirmations
18 Use of defective affidavit
21 Special times for filing affidavits
22 Affidavits in support of ex parte applications
23 Copies of affidavits to be served
24 Alterations in accounts to be initialled
Order 40 Exhibits
1 List of exhibits
2 Office copy of list of exhibits
Order 41 New trials
1 New trial of cause heard without a jury
2 New trial of cause tried with a jury
3 Service of notice of motion
4 Application of rules relating to appeals
5 Hearing of application
6 Evidence of Judge’s direction
Order 42 Motion for judgment
1 Judgment on motion for judgment
2 Setting down motion for judgment where issues have been directed to be tried
3 Where some only of issues directed have been tried, any party may apply to set down action on motion for judgment
4 Motion to be set down within one year
5 Where judgment given etc on motion for judgment
Order 43 Entry of judgments
1 Mode of entry
2 Recital regarding service
3 Date of judgment pronounced in Court
4 Date of entry of other judgments
5 Time to be stated for doing any act ordered to be done
6 Judgment on production of affidavit or document
7 Judgment on production of order or certificate
8 Judgment on Registrar’s certificate
9 Judgment by consent when party appears by a solicitor
10 Consent of party in person
11 Entry of satisfaction
Order 43A Interest on judgments
Order 44 Drawing up judgments and orders
1 By whom judgments and orders to be drawn up
2 Documents to be filed before judgment or order signed
3 Documents to be left with Registrar on bespeaking judgment or order
4 Registrar may require party to submit draft
5 Time for bespeaking judgment or order
6 Where judgment or order not bespoken
7 Appointment for settling judgment or order
8 Notice of appointment to be served on opposite party
9 Service of notice of appointment
10 Proof of service
11 Appointment for passing judgment or order
12 Default in attending appointment with documents
13 Adjournment of appointments
14 Settling and passing judgment or order without appointment
15 Party to engross judgment or order
16 Judgments and orders to be filed; duplicates
17 Certificates for special allowance
18 When orders need not be drawn up
19 Date of order
20 Authentication
21 Entry of judgments and orders etc
22 Application to add to or vary
23 Consent orders
Order 1 Preliminary, interpretation and commencement of proceedings
I Preliminary and Interpretation
1 Name of rules [see Note 1]
These rules are the High Court Rules 1952.
2 Commencement
These rules shall come into operation on the first day of January, 1953, and shall apply to all proceedings and appeals commenced or instituted on or after that date.
3 Repeal and saving
(1) The Rules of Court in force immediately before the commencement of these rules regulating the practice and procedure in the High Court of Australia are repealed.
(2) The repeal effected by the last preceding subrule does not affect the validity of any proceedings taken under the Rules of Court so repealed, or a right, privilege, obligation or liability acquired, accrued or incurred under any of those Rules, or a legal proceeding or remedy in respect of such a right, privilege, obligation or liability.
4 Pending proceedings etc
A proceeding pending and a judgment, decree or order given or made before the commencement of these rules, being of a kind to which these rules apply, shall be treated as if pending, given or made under these rules, and may be proceeded with, enforced, varied, reversed or otherwise dealt with accordingly, subject to any special order or direction made or given by a Justice in a particular case.
5 Interpretation
In these rules, unless the contrary intention appears:
Act means:
(a) an Act of the Parliament of the United Kingdom which is in force in the Commonwealth or in a part of the Commonwealth;
(b) an Act of the Parliament of the Commonwealth;
(c) an Act of the Parliament of a State; and
(d) an Ordinance in force in a State or Territory.
action means a civil proceeding commenced by writ or in such other manner as is prescribed by Rules of Court, but does not include a criminal proceeding by the Crown.
address for service means an address which complies with the provisions of Order 4 of these rules.
administrator includes an officer or agent of the Commonwealth, or of a State or Territory, authorized under the law of the Commonwealth, or of a State or Territory, to administer the estate of a deceased person.
Admiralty action means a proceeding instituted in the Court in the exercise of the jurisdiction conferred on it by or under the Colonial Courts of Admiralty Act, 1890.
Attorney-General means the Attorney-General of the Commonwealth.
body politic includes the Crown in right of the Commonwealth or of a State, and also in right of a part of the Queen’s dominions other than the Commonwealth, including the Crown in right of the United Kingdom.
cause includes a suit and criminal proceedings.
Chief Justice includes a Justice upon whom the powers and duties of the Chief Justice devolve for the time being.
committee includes a person entrusted under the law of the Commonwealth, or of a State or Territory, with the care or management of the person or estate of a person of unsound mind.
Commonwealth means the Commonwealth of Australia, and includes a Territory.
the Court means the High Court of Australia.
defendant includes a person against whom relief is sought by originating process.
District Registrar means an officer of a State or Territory who performs on behalf of the Court at any office of the Registry in such State or Territory any function under section 30 of the High Court of Australia Act 1979.
District Registry means an office of the Registry located elsewhere than at the seat of the Court.
document includes book, map, plan, drawing and photograph.
existing means existing immediately before the commencement of these rules.
file means file in a Registry, and filed and filing have corresponding meanings.
formerly, when used in relation to the Courts or the law or practice in England, means immediately before the date of the commencement of the Supreme Court of Judicature Act, 1873, namely the first day of November, 1875, and, when used in relation to the High Court or the practice or procedure in the High Court, means immediately before the commencement of these rules, and former has a corresponding meaning.
issue of fact includes the assessment of damages in a cause or matter.
Judiciary Act means the Judiciary Act 1903-1979.
Justice or single Justice means a Justice of the Court, including the Chief Justice, and includes:
(a) a Justice sitting in Court or in Chambers;
(b) a Justice sitting in Court or elsewhere as in Chambers;
(c) a Justice sitting in a place otherwise than as a Court or as a member of a Court; and
(d) a Justice sitting with a jury or with an assessor or assessors;
and in the expressions Court or Justice and Court or a Justice means a Justice of the Court sitting in Chambers.
Law Officer means the Attorney-General or the Solicitor-General of the Commonwealth or of a State, as the case requires.
Marshal means the Marshal of the Court, and includes a Deputy Marshal and any other officer or person bound or entitled to discharge the duties and perform or execute the functions or office of the Marshal or a Deputy Marshal.
oath and affidavit include affirmation and statutory declaration, and swear includes affirm and declare.
officer includes Registrar.
order includes rule made by a Court or judge.
original proceeding means a proceeding in the Court which is not a proceeding in a pending cause or matter, and includes a cause and a summons in an interpleader proceeding.
originating process means writ of summons or other summons by which a cause or matter is commenced.
originating summons means a summons other than a summons in a pending cause or matter.
party and parties include as well as the plaintiff and defendant:
(a) a person not originally a party against whom a counterclaim is set up or who has been served with notice to appear under any of these rules; and
(b) a person served with notice of or attending a proceeding although not named on the record or in the process.
person includes corporation and body politic.
person of unsound mind includes a person in respect of whom there has been made, given or taken under the law of the Commonwealth or of a State or Territory an order, certificate or proceeding in consequence of which, under that law, that person, or property of that person, is, by reason of his mental infirmity, committed to the care, management or control of some other person.
plaintiff includes a person seeking relief against another person by a form of proceeding in a Court.
prescribed means prescribed by Rules or by an Act or law.
Principal Registrar means the Registrar.
Principal Registry means the office of the Registry located at the seat of the Court.
proceeding includes action, cause, matter and suit.
proper officer, when used in relation to an officer of the Court, means an officer ascertained as follows:
(a) where a duty or function to be discharged or performed under an Act or these rules is a duty or function which has, before the commencement of these rules, been discharged or performed by an officer, that officer shall, unless otherwise provided by these rules and subject to any direction given by the Chief Justice, continue to be the proper officer to discharge or perform that duty or function;
(b) where a new duty or function is, under an Act or these rules, to be discharged or performed, the proper officer to discharge or perform the same shall be the officer directed by these rules, or, if there is no such officer, then such other officer as is from time to time directed to discharge or perform the duty or function by the Chief Justice, or, subject to any other direction by the Chief Justice, by a Registrar pursuant to these rules;
(c) where a doubt arises as to the proper officer to discharge a duty or perform a function, the proper officer shall be such officer as is directed by the Chief Justice to perform the duty or perform the function.
receiver includes consignee or manager appointed by or under an order of the Court.
Registrar means the Registrar appointed under section 26 of the High Court of Australia Act 1979 and includes a Deputy Registrar so appointed.
Registry, a Registry and any Registry mean the Registry established under section 30 of the High Court of Australia Act 1979 and include each office of the Registry.
Rules, these rules or rules of Court means these rules, and includes:
(a) any forms, fees and costs referred to in these rules; and
(b) any other rules of Court, forms, fees and costs made or prescribed in amendment of, or in addition to, these rules.
seal and seal of the Court mean the seal of the Court referred to in section 32 of the High Court of Australia Act 1979 and include such other seal as is prescribed by these rules.
sealed means sealed with the seal of the Court referred to in section 32 of the High Court of Australia Act 1979 or such other seal as is prescribed by these rules.
State means a State of the Commonwealth.
sue means commence or take part in proceedings as plaintiff, petitioner or applicant.
suit includes an action or original proceeding between parties.
the Registry in which the proceeding is commenced and the Registry in which the matter is then pending and words to the like effect mean “the office of the Registry at which the proceeding was lodged or issued”.
trial includes hearing.
United Kingdom means the United Kingdom of Great Britain and Northern Ireland, or of Great Britain and Ireland, as the case requires.
writing includes printing and typewriting and other similar methods of producing words in a visible form and written has a corresponding meaning.
6 Reference to Acts etc
Where the provisions of an Act, or of these rules, referred to in these rules, have been amended, or repealed and re-enacted with or without modification, by a subsequent Act or Rules, reference in these rules to the provisions so amended or repealed shall, unless the contrary intention appears, be construed as reference to the provisions as amended or re-enacted.
II Commencement and title of proceedings
7 Commencement of proceedings
(1) Proceedings commenced by writ of summons shall be called actions.
(2) If there is not an applicable provision providing for the manner of commencement of particular proceedings, they may be commenced in a manner directed by a Justice.
8 Title of proceedings
(1) A proceeding in the Court shall be entitled “In the High Court of Australia”.
(2) There shall be added below the words “In the High Court of Australia” the location of the office of the Registry in which the proceeding was commenced.
Order 2 Writs of summons
1 Endorsement of claim
A writ of summons shall, before it is issued, be endorsed with a concise statement of the nature of the claim made and of the relief or remedy required in the action.
2 Costs of prolix writs
Any costs occasioned by the use of any forms of writs, and of endorsements thereon, other than, or more prolix than, the forms prescribed, shall be borne by the party using them unless the Court or a Justice otherwise directs.
3 Form of writ
The writ of summons for the commencement of an action shall, except where a different form is required by these rules, be in one of the forms numbered 1 and 2 in the First Schedule, with such variations as the circumstances require.
4 Leave to issue out of Commonwealth
A writ of summons or other originating process for service out of the Commonwealth, or of which notice is to be given out of the Commonwealth, shall not be issued without the leave of the Court or a Justice.
5 Form of writ for service out of the Commonwealth
(1) A writ of summons to be served out of the Commonwealth, or of which notice is to be given out of the Commonwealth, shall be in one of the forms numbered 3 and 4 in the First Schedule, with such variations as the circumstances require.
(2) The notice shall be in the form numbered 5 in the First Schedule, with such variations as the circumstances require.
6 Admiralty action
The writ of summons in an Admiralty action in rem shall be in the form numbered 10 in the First Schedule, with such variations as the circumstances require.
7 Dating and testing of writs
A writ of summons and (unless by these rules or by any law it is otherwise provided) every other writ or originating process shall bear date on the day on which it is issued and shall be tested in the name of the Chief Justice.
Order 3 Endorsement of claim
1 Endorsement under Order 2, rule 1
In the endorsement required by Order 2, rule 1, it is not essential to set forth the precise ground of complaint or the precise remedy or relief to which the plaintiff considers himself entitled.
2 Forms of endorsement
The endorsement of claim shall be in such concise form as the nature of the case requires.
3 Endorsement to show representative capacity
If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the endorsement shall show in what capacity the plaintiff or defendant sues or is sued.
4 Endorsement where the claim is liquidated
(1) In an action in which the plaintiff’s claim is for a debt or liquidated demand only, the endorsement, besides stating the nature of the claim, shall state the amount claimed for debt or in respect of that demand and for costs respectively, and shall further state that, upon payment of that amount within the time allowed for appearance, further proceedings will be stayed.
(2) The statement shall be as in the form numbered 2 in the First Schedule.
(3) The plaintiff shall be at liberty to state for costs a sum of Twelve dollars sixty cents. If judgment is entered in the action in default of appearance in pursuance of Order 12, rule 3, the amount of costs included in the judgment shall be the said sum of Twelve dollars sixty cents together with Eight dollars forty cents for costs of judgment in addition to mileage.
(4) Unless the writ is endorsed with the amounts mentioned in
subrule (3), the defendant notwithstanding that he has paid such costs may have the costs taxed, and if more than one-sixth is disallowed the plaintiff’s solicitor shall pay the costs of taxation.
5 Ordinary account
Where the plaintiff, in the first instance, desires to have an account taken, the writ of summons shall be endorsed with a claim that an account be taken.
6 Libel
In an action for libel, the endorsement on the writ shall state sufficient particulars to identify the publications in respect of which the action is brought.
Order 4 Endorsement of address
1 Where plaintiff sues by solicitor
(1) The solicitor of a plaintiff suing by a solicitor shall endorse upon the writ of summons the address of the plaintiff and also his own name and place of business or the name of his firm and its place of business.
(2) Where the place of business so endorsed is not more than three miles from the office of the Registry in which the proceeding is commenced, it shall be the address for service of the plaintiff.
(3) Where that place of business is more than three miles from the office of that Registry, the solicitor shall also endorse upon the writ the address of a proper place, which is not more than three miles from that office, to be the address for service of the plaintiff.
(4) Where the solicitor is acting as agent of another solicitor, he shall add to his own name and place of business, or firm name and its place of business, the name and place of business of the principal solicitor, or the name of the firm of the principal solicitor and its place of business.
2 Where plaintiff sues in person
(1) A plaintiff suing in person shall endorse upon the writ of summons his place of residence and his occupation.
(2) Where his place of residence is not more than three miles from the office of the Registry in which the proceeding is commenced, it shall be his address for service.
(3) Where that place of residence is more than three miles from the office of that Registry, he shall also endorse upon the writ the address of a proper place, which is not more than three miles from that office, to be his address for service.
3 Address for service
Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the plaintiff at his address for service.
4 Where notice is served in lieu of writ
Where notice of a writ of summons or other originating process is to be served on a defendant in pursuance of Order 10, the endorsement required by the preceding rules of this Order shall be made both on the writ, or other originating process, and on the notice.
5 Matters not commenced by writ
Where proceedings are commenced otherwise than by writ of summons, the preceding rules of this Order apply to the process by which the proceedings are originated as if it were a writ of summons.
Order 5 Issue of, and appearances to, writs of summons and originating processes
I Place of issue
1 Writs etc may be issued out of any Registry
A writ of summons or other originating process may be issued out of any Registry.
2 Endorsement as to appearance on writs etc issued out of Principal Registry
Where a writ of summons or other originating process is issued out of the Principal Registry, and that writ or other process, or notice of that writ or other process, is to be served upon or given to a person, a statement in accordance with the “Memorandum to be subscribed on writs, &c., issued from the Principal Registry” set forth in form numbered 1 in the First Schedule shall appear upon the face of the writ of summons or other process.
II General
4 Preparing and printing writs
A writ of summons or other originating process shall be prepared by the plaintiff or his solicitor and shall be written, printed or typewritten on paper of the same kind as these rules direct in the case of documents required to be printed.
5 Signing etc by proper officer
A writ of summons or other originating process shall be signed, sealed and numbered by the proper officer and shall thereupon be deemed to be issued.
6 Copy of writ etc to be left with proper officer
(1) The plaintiff or his solicitor shall, on presenting a writ of summons or other originating process for signing, sealing and numbering, leave with the officer a copy (written, printed or typewritten on paper of the kind specified in rule 4 of this Order) of the writ or other originating process and of all endorsements thereon.
(2) The copy shall be signed by or for the solicitor leaving it, or by the plaintiff himself if he sues in person.
7 Filing and marking of copy of writ etc
(1) The officer receiving a copy of a writ or other originating process under the last preceding rule shall, on payment of the prescribed fee, file the copy.
(2) An entry of the filing of the copy shall be made in a book to be called the Cause Book, or in a book to be called the Court Book, as the case may be, which are to be kept in the Registries in the manner and form in which those books were respectively kept immediately before the commencement of these rules.
(3) The action or other proceeding shall be distinguished:
(a) by the date of the year and a number in the same manner in which matters were distinguished in those books immediately before the commencement of these rules; and
(b) by the name of the Registry out of which the writ of summons or other originating process, as the case may be, is issued.
III Admiralty actions
8 Admiralty, arrest warrant after affidavit
(1) In an Admiralty action in rem, a warrant for the arrest of property shall be in the form numbered 11 or the form numbered 12 in the First Schedule, with such variations as the circumstances require, and may be issued at the instance of either the plaintiff or the defendant at any time after the writ of summons has issued.
(2) Except by leave of the Court or a Justice, a warrant of arrest shall not be issued until an affidavit by the party or his agent has been filed and the provisions of subrules (3), (4) and (5) of this rule complied with.
(3) The affidavit shall state:
(a) the name and description of the party at whose instance the warrant is to be issued;
(b) the nature of the claim or counterclaim;
(c) the name and nature of the property to be arrested;
(d) that the claim or counterclaim has not been satisfied;
(e) that the aid of the Court is required to enforce it;
(f) in an action of wages or of possession, the national character of the vessel proceeded against and, if against a foreign vessel, that notice (a copy of which shall be exhibited to the affidavit) of the commencement of the action has been given to a consular officer of the State to which the vessel belongs, if there be one within the Commonwealth; and
(g) in an action of distribution of salvage, the amount of salvage money awarded or agreed to be accepted and the name, address and description of the party holding the salvage money.
(4) In an action of bottomry, the bottomry bond, and, if it is in a foreign language, a notarial translation of the bond, shall be produced for the inspection and perusal of the Registrar and a copy of the bond, or of the translation of the bond, certified to be correct, shall be exhibited to the affidavit.
(5) The solicitor who applies for the issue of the warrant shall lodge an undertaking to pay the fees and expenses of the Marshal.
9 Special circumstances
The Court or a Justice may, if it or he thinks fit:
(a) allow a warrant of arrest to issue although the affidavit referred to in the last preceding rule does not contain all the required particulars;
(b) in an action of wages against a foreign ship, waive the service of the notice; and
(c) in an action of bottomry, waive the production of the bond.
IV Time for appearance
10 Time for appearance to be limited by writ
Where a writ of summons or other originating process is to be served within the Commonwealth, the time to be limited in the writ or other process for the appearance of a defendant shall be:
(a) where the place of service is in the State or Territory in which the Registry from which it is issued is situated — fourteen days;
(b) where the place of service (not being in Papua, New Guinea or Norfolk Island) is in a State or Territory other than the State or Territory in which the Registry from which it is issued is situated — twenty-one days;
(c) where the place of service is in Papua, New Guinea or Norfolk Island — twenty-eight days; and
(d) in any other case — three months.
V Actions on relation
11 Actions by Attorney-General on relation
(1) Where a proceeding is commenced in the name of the Attorney‑General of the Commonwealth or of a State on the relation of a private person, the writ of summons or other originating process, when presented for issue, shall have upon it a fiat under the hand of the Attorney-General concerned directing or approving its issue.
(2) A copy of the fiat shall be endorsed upon each copy of the writ of summons or other process to be served.
Order 6 Concurrent writs
1 Concurrent writs, how issued etc
(1) The plaintiff in an action may, at the time of, or at any time during twelve months after, the issue of an original writ of summons, issue one or more concurrent writ or writs.
(2) A concurrent writ shall bear teste of the same day as the original writ, and shall be marked with a seal, impressed upon the writ by the proper officer, bearing the word Concurrent and the date of issue of the concurrent writ.
2 Period during which concurrent writ in force
A concurrent writ shall be in force only for the period during which the original writ in the action is in force.
3 Concurrent writs for service within, and outside, the Commonwealth
(1) A writ for service within the Commonwealth may be issued and marked as a concurrent writ with a writ for service outside the Commonwealth or a writ of which notice in lieu of service is to be given.
(2) A writ for service outside the Commonwealth, or a writ of which notice in lieu of service is to be given, may be issued and marked as a concurrent writ with a writ for service within the Commonwealth.
4 Concurrent originating process
Where a proceeding is required or permitted to be commenced otherwise than by writ of summons, the preceding rules of this Order apply, mutatis mutandis, to the issue of a concurrent originating process in that proceeding.
Order 7 Disclosure by solicitors and plaintiffs, and change of solicitor
1 Where name of solicitor endorsed on writ
(1) A solicitor whose name is endorsed on a writ of summons or other originating process shall, on demand in writing made by or on behalf of a defendant who has been served with or has appeared to the writ or process, forthwith declare in writing whether the writ or other process has been issued by him or with his authority or privity.
(2) Where the solicitor fails so to declare within three days after service of the demand, a Justice may order him, within a specified time, so to declare and also to declare the profession or occupation and place of abode of the plaintiff.
(3) Where the solicitor declares that the writ or other originating process was not issued by him or with his authority or privity, proceedings upon the writ or other process shall be stayed and further proceedings shall not be taken upon the writ or other process without leave of the Court or a Justice.
2 Change of solicitor
(1) Subject to the provisions of Order 16, rule 36, subrule (2), a party suing or defending by a solicitor may change his solicitor in a proceeding without an order for that purpose.
(2) Subject to rules 6 and 7 of this Order, the former solicitor shall be considered the solicitor of the party until the final conclusion of the proceeding before the Court, whether on appeal or otherwise, unless and until:
(a) notice of a change of solicitor is filed in the Registry in which the proceeding is then pending; and
(b) a copy of the notice, endorsed with a memorandum stating that the notice has been duly filed and the name of the Registry in which it has been filed, is served on each other party to the proceeding, other than a party in default as to entry of appearance.
(3) A notice under the last preceding subrule shall be signed by the new solicitor and shall state his place of business.
(4) Where that place of business is not more than three miles from the office of the Registry in which the proceeding is pending, it shall be the address for service of the party.
(5) Where that place of business is more than three miles from the office of that Registry, the notice shall also state the address of a proper place, which is not more than three miles from that office, to be the address for service of the party.
(6) Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the party at his address for service.
3 Notice of appointment of solicitor
(1) Where a party, after having sued or defended in person, appoints a solicitor to act on his behalf in a proceeding, he may give notice of that appointment.
(2) The provisions of the last preceding rule relating to a notice of change of solicitor and to service apply, with the necessary modifications, in the case of notice of appointment of a solicitor.
4 Notice of intention to act in person
(1) Where a party, after having sued or defended by a solicitor, intends to act in person, he may give notice stating his intention to act in person and giving an address for service.
(2) The provisions of rule 2 of this Order relating to a notice of change of solicitor apply, with the necessary modifications, to a notice of intention to act in person.
5 Power to act through new solicitor
A party giving notice under rule 2 or rule 3 of this Order may perform the duties prescribed by those rules in person or through his new solicitor.
6 Removal of solicitor from the record at the instance of another party
(1) Where a solicitor who has acted for a party in a proceeding:
(a) has died;
(b) has become bankrupt;
(c) cannot be found;
(d) has failed to take out a practising certificate, where one is required, or to register as a practitioner, in the High Court; or
(e) has ceased to have the right to practise in the High Court;
and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of this Order, another party to the proceeding may, on notice to be served on the first-named party personally, or by pre-paid post letter addressed to his last-known place of address, unless the Court or a Justice otherwise directs, apply to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the first-named party in the proceeding, and the Court or Justice may make an order accordingly.
(2) Where an order is made under the last preceding subrule, the party on whose application the order was made shall:
(a) serve on each other party to the proceeding (other than a party in default as to entry of appearance) a copy of the order;
(b) procure the order to be filed in the Registry in which the proceeding is then pending; and
(c) leave at that Registry a certificate signed by the applicant or his solicitor that the order has been duly served.
(3) Where the party on whose application the order was made has complied with the last preceding subrule, the party against whom the order was made shall either appoint another solicitor or give notice of intention to act in person in accordance with the provisions of this Order, and, in default of his so doing, documents in respect of which personal service is not required may be served on the party so in default by being filed in the Registry.
(4) An order made under this rule does not affect the rights or liabilities of a solicitor and the party for whom he acted as between themselves.
7 Withdrawal of solicitor who has ceased to act for a party
(1) Where a solicitor who has acted for a party in a proceeding has ceased so to act and the party has not given notice of change of solicitor or notice of intention to act in person in accordance with the provisions of this Order, the solicitor may, on notice to be served on the party personally or by pre-paid post letter addressed to his last-known place of address, unless the Court or a Justice otherwise directs, apply to the Court or a Justice for an order declaring that the solicitor has ceased to be the solicitor acting for the party in the proceeding, and the Court or Justice may make an order accordingly.
(2) Where an order is made under the last preceding subrule, the solicitor on whose application the order was made shall:
(a) serve on each party to the proceeding (other than a party in default as to entry of appearance) a copy of the order;
(b) procure the order to be filed in the Registry in which the proceeding is then pending; and
(c) leave at that Registry a certificate signed by him that the order has been duly served;
and, in default of his so doing, and subject to rules 2, 4 and 6 of this Order, he shall be considered the solicitor of the party for whom he has acted to the final conclusion of the proceeding before the Court, whether on appeal or otherwise.
(3) Where:
(a) an order made under this rule has been filed in the appropriate Registry; and
(b) the party to whom the order relates has not appointed another solicitor or given notice of intention to act in person in accordance with the provisions of this Order;
a document in respect of which personal service is not required may be served on that party by being filed in that Registry.
(4) An order made under this rule does not affect the rights or liabilities of a solicitor and a party as between themselves.
8 Solicitor not to act for adverse parties
A solicitor shall not act in a proceeding for plaintiff and defendant or for any two or more defendants having adverse interests in a matter.
Order 8 Renewal of writs
1 Original writ in force for 12 months
(1) Subject to the next succeeding subrule, an original writ of summons shall not be in force for more than twelve months from the day of the date of the writ, including the day of that date.
(2) Where a defendant named in an original writ has not been served with the writ, the plaintiff may, before the expiration of twelve months from the day of the date of the writ, apply to the Court or a Justice for leave to renew the writ and the Court or Justice, if satisfied that reasonable efforts have been made to serve the defendant, or for other good reason, may order that the original or concurrent writ be renewed for six months from the date of the renewal inclusive, and so from time to time during the currency of the renewed writ.
(3) Where an order is made under the last preceding subrule, the writ shall be renewed by being marked with a seal bearing the word Renewed and the date of the day, month and year of the renewal.
(4) A writ so renewed shall remain in force, and be available to prevent the operation of a law whereby the time for the commencement of the action is limited, and for all other purposes, from the date of issue of the original writ of summons.
(5) A seal for the purpose of marking writs in accordance with this rule shall be provided and kept for that purpose at each Registry and shall be impressed upon the writ by the proper officer upon delivery to him by the plaintiff or his solicitor of a memorandum in the form numbered 13 in the First Schedule, with such variations as the circumstances require.
2 Evidence of renewal
The production of a writ of summons purporting to be marked with the seal of the Court showing the writ to have been renewed in accordance with this Order is sufficient evidence of its having been so renewed and of the commencement of the action as of the first date of the renewed writ for all purposes.
3 Lost writ
Where a writ or other originating process, of which the production is necessary, has been lost, the Court or a Justice, upon being satisfied of the loss and of the correctness of a copy of the writ or other process, may order that the copy shall be sealed in lieu of the original writ or other originating process.
Order 9 Service of writs of summons
I Mode of service
1 Undertaking to accept service
Service of a writ or other originating process upon a party is not required when the solicitor of the party to be served undertakes in writing to accept service and an appearance is entered.
2 When service required, how effected
(1) Where personal service is required, the writ or other originating process shall, whenever it is practicable, be served by delivering a copy of the writ or other process, and of the endorsement thereon, and at the same time producing the original.
(2) Where it appears to the Court or a Justice that the plaintiff is, from any cause, unable to effect prompt personal service, the Court or Justice may make such order for substituted or other service, or for the substitution for service of notice by advertisement or otherwise, as is just.
3 Substituted service
An application to the Court or a Justice for an order for substituted or other service, or for the substitution of notice for service, shall be supported by an affidavit setting forth the grounds upon which the application is made.
II On particular defendants
4 Infant
(1) Where an infant is a defendant, service on his father or guardian, or if none, then upon the person with whom the infant resides or under whose care he is, shall, unless the Court or a Justice otherwise orders, be deemed good service on the infant.
(2) The Court or Justice may order that service made, or to be made, on the infant shall be deemed good service.
5 Persons of unsound mind
Where a person of unsound mind is a defendant in a proceeding, service on him shall be effected in such a manner as a Justice directs upon application made supported by affidavit.
III On corporations and agents
6 Service on corporations etc
Subject to a contrary statutory provision, a writ of summons or other originating process, or notice of a writ or other process, to be served on a corporation aggregate, may be served on the mayor, president or other head officer, or on the town clerk, clerk, treasurer, secretary, manager or other principal officer of that corporation within the Commonwealth.
7 Service on agent
(1) Where a contract has been entered into within the Commonwealth by or through an agent residing or carrying on business within the Commonwealth on behalf of a principal residing or carrying on business outside the Commonwealth, a writ of summons in an action relating to or arising out of that contract may, by leave of the Court or a Justice given before the determination of the agent’s authority or of his business relations with the principal, be served on the agent, in lieu of or in addition to service upon his principal.
(2) Notice of the order giving leave to serve an agent, and a copy of that order and of the writ of summons, shall forthwith be sent by pre-paid registered post letter to the defendant or defendants at his or their address outside the Commonwealth.
IV In particular actions
8 Service in action for recovery of land
Service of a writ of summons in an action to recover land may, in case of vacant possession, when service cannot otherwise be effected, be made by posting a copy of the writ upon the door of the dwelling-house or other conspicuous part of the property.
9 Admiralty actions in rem
In an Admiralty action in rem, service of a writ or warrant is not required where the solicitor of the defendant agrees in writing to accept service and to put in bail, or to pay money into Court in lieu of bail.
10 Service of warrant of arrest
(1) In an Admiralty action in rem, the warrant of arrest shall be served by the Marshal or his deputy.
(2) The party issuing the warrant shall, within seven days from its service, file the warrant, endorsed with a certificate of service, in the Registry out of which it was issued.
11 Service of writ or warrant, how effected
In an Admiralty action in rem, service of a writ of summons or warrant against a ship, freight or cargo on board shall be effected by nailing or affixing the original writ or warrant for a short time on the mainmast, or on the single mast, of the vessel or on some other conspicuous part of the vessel, and, on taking off the process, leaving a true copy of it nailed or fixed in its place.
12 When cargo landed
Where cargo has been landed or transhipped, service of the writ of summons or warrant to arrest the cargo and freight shall be effected by placing the writ or warrant for a short time on the cargo, and, on taking off the process, by leaving a true copy upon it.
13 Where no access to cargo
Where cargo is in the custody of a person who will not permit access to it, service of the writ or warrant may be made upon the custodian.
14 Proceeds in Court
In an Admiralty action in rem, the service of a writ of summons or warrant upon proceeds in Court shall be effected by showing the original writ to the Registrar and leaving with him a copy of it, which service shall be a sufficient arrest of the proceeds.
V Generally
15 Endorsement after service
(1) The person serving a writ of summons or other originating process shall, within three days after service, endorse on the writ or other originating process the day of the month and week, and the time of the day, of the service of the writ or other process, and, if he does not do so, the plaintiff, in case of non-appearance, may not proceed as upon default without the leave of the Court or a Justice.
(2) An affidavit of service of the writ or other originating process shall state the day on which the endorsement referred to in the last preceding subrule was made.
(3) This rule applies to substituted as well as to other service.
Order 10 Service outside the Commonwealth
1 In certain cases service of writ etc allowed outside Commonwealth
(1) Leave to serve a writ of summons, or notice of a writ of summons, outside the Commonwealth may be given by the Court or a Justice where:
(a) the whole subject-matter of the action is land situated within the Commonwealth (with or without rents or profits), or the perpetuation of testimony relating to land within the Commonwealth;
(b) an act, deed, will, contract, obligation or liability affecting land or hereditaments situated within the Commonwealth is sought to be construed, rectified, set aside or enforced in the action;
(c) relief is sought against a person domiciled or ordinarily resident within a State or Territory;
(d) the action is for the execution, as to property situated within the Commonwealth, of the trusts of a written instrument, of which the person to be served is a trustee, which ought to be executed according to the law of the Commonwealth or of a State or Territory;
(e) the action is one brought to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or other relief for or in respect of the breach of a contract:
(i) made within the Commonwealth;
(ii) made by or through an agent trading or residing within the Commonwealth on behalf of a principal trading or residing outside the Commonwealth; or
(iii) which is governed by the law of the Commonwealth or of a State or Territory;
(f) the action is brought in respect of a breach committed within the Commonwealth of a contract wherever made, even though that breach was preceded or accompanied by a breach outside the Commonwealth which rendered impossible the performance of the part of the contract which ought to have been performed within the Commonwealth;
(g) the action is founded on a tort committed within the Commonwealth;
(h) an injunction is sought as to anything to be done within the Commonwealth, or a nuisance within the Commonwealth is sought to be prevented or removed, whether damages are or are not also sought in respect of that thing or nuisance;
(i) a person outside the Commonwealth is a necessary or proper party to an action properly brought against some other person duly served within the Commonwealth;
(j) the action is by a mortgagee or mortgagor in relation to a mortgage of personal property situated within the Commonwealth and seeks relief of the nature or kind following, that is to say, sale, foreclosure, delivery of possession by the mortgagor, redemption, re-conveyance, delivery of possession by the mortgagee, but does not seek (unless and except so far as permissible under paragraph (e) of this subrule) a personal judgment or order for payment of moneys due under the mortgage; or
(k) the action is brought by virtue of the Civil Aviation (Carriers’ Liability) Act 1959.
(2) In paragraph (j) of the last preceding subrule:
(a) mortgage means a mortgage, charge or lien of any description;
(b) mortgagee means a party for the time being entitled to or interested in a mortgage;
(c) mortgagor means a party for the time being entitled to or interested in property subject to a mortgage;
(d) personal property situated within the Commonwealth means personal property which, on the death of an owner thereof intestate, would form subject-matter for the grant of letters of administration to his estate under the law of a State or Territory.
2 Agreement as to jurisdiction and mode of service
(1) Where the parties to a contract upon which an action which is within the jurisdiction of the Court is brought have agreed:
(a) that the Court shall have jurisdiction to entertain an action in respect of that contract;
(b) that service of a writ of summons in that action may be effected at a place within or outside the Commonwealth on a party, or on a person on behalf of a party, or in a manner specified or indicated in the contract;
service of the writ of summons at the place (if any), on the party or on the person (if any) and in the manner (if any) specified or indicated in the contract shall be deemed to be good and effective service wherever the parties are resident.
(2) Where no place, mode or person is so specified or indicated, service outside the Commonwealth of the writ may be ordered.
3 Application to be supported by evidence
(1) An application for leave to serve a writ of summons, or notice of a writ of summons, on a defendant outside the Commonwealth shall be supported by affidavit or other evidence stating:
(a) that, in the belief of the deponent, the plaintiff has a good cause of action;
(b) the place or country where that defendant is or probably may be found; and
(c) the grounds upon which the application is made.
(2) Leave to serve the writ or notice outside the Commonwealth shall not be granted unless it is made sufficiently to appear to the Court or Justice that the cause is a proper one for service outside the Commonwealth under this Order.
4 Order to fix time for appearance
(1) An order giving leave to effect service or give notice outside the Commonwealth shall limit a time after the service or notice within which the defendant in respect of whom the leave is given is to enter an appearance.
(2) The time referred to in the last preceding subrule shall depend on the place or country where or within which the writ is to be served or the notice given, and on whether the airmail is available to the defendant.
5 Notice of writ
Where the defendant is not within the Commonwealth, service of notice of a writ is deemed to be effective service of the writ.
6 Service of notice of writ
Where leave is given under rule 1 of this Order to serve notice of a writ of summons outside the Commonwealth, the notice shall, subject to rules 7 and 9 of this Order and to any direction given by the Court or a Justice as to the manner in which the notice shall be served or brought under the notice of the defendant, be served in the manner in which a writ of summons is served.
7 Service abroad by letter of request
(1) Where leave is given to serve a writ of summons, or a notice of a writ of summons, in a country to which this rule, by order of the Chief Justice from time to time, is applied, the procedure prescribed by the succeeding subrules of this rule may be adopted.
(2) The document to be served shall be sealed with the seal of the Court used for sealing documents which are to be served outside the Commonwealth and shall be transmitted to the Attorney‑General by the Chief Justice together with:
(a) a copy of the document translated into the language of the country in which service is to be effected; and
(b) a request in the form numbered 6 in the First Schedule, with such variations as the circumstances require, for the further transmission of the document and the copy to the government of the country in which leave to serve the document has been given.
(3) The party bespeaking a copy of a document for service under this rule shall, at the time of bespeaking the copy, file a praecipe in the form numbered 8 in the First Schedule.
(4) An official certificate, or declaration upon oath or otherwise, transmitted through the diplomatic channel by the government or a court of a country to which this rule applies, to the High Court, if it certifies or declares the document:
(a) to have been personally served; or
(b) to have been duly served upon the defendant in accordance with the law of that country, or words to that effect;
is sufficient proof of that service, and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these rules in that behalf.
(5) Where an official certificate or declaration, transmitted to the Court in manner provided in the last preceding subrule, certifies or declares that efforts to serve a document have been without effect, the Court or a Justice may, upon the ex parte application of the plaintiff, order in the form numbered 42 in the First Schedule, with such variations as the circumstances require, that the plaintiff may bespeak a request for substituted service of the document.
(6) A request for substituted service of a document under this rule may be bespoken by the plaintiff, at the Registry out of which the document has been issued, upon filing a praecipe in the form numbered 8 in the First Schedule, and the document and a copy of the document and of the order shall be sealed and transmitted to the Attorney-General in the manner described in subrule (2) of this rule together with a request in the form numbered 9 in the First Schedule, with such variations as the circumstances require.
8 Other originating processes
(1) Service outside the Commonwealth may be allowed by the Court or a Justice of an originating process, other than a writ of summons, or of a summons, order or notice in interlocutory proceedings, in a case in which it is, in the opinion of the Court or Justice, proper to make such an order.
(2) Rules 3, 4, 5, 6 and 7 of this Order apply, mutatis mutandis, to service allowed pursuant to this rule.
9 Service of Australian documents in Convention countries
(1) Where service is authorized by or under these rules of a writ of summons or other originating process, or of a summons, order, notice or other document, in a foreign country with which a Convention in that behalf has been made and extended to the Commonwealth, the procedure specified in the succeeding subrules of this rule shall, subject to any special provisions contained in the Convention, be adopted.
(2) The party bespeaking the service shall file in the Registry out of which the writ of summons or other originating process is to be issued, or in which the matter is pending, a request in the form numbered 8 in the First Schedule, with such variations as the circumstances require.
(3) The request shall state the medium through which it is desired the service shall be effected, that is, whether:
(a) directly through the British or Australian Consul; or
(b) through a foreign judicial authority.
(4) Subject to the next succeeding subrule, the request shall be accompanied by:
(a) the original document;
(b) a translation of that document in the language of the country in which service is to be effected certified by or on behalf of the person making the request;
(c) a copy of the document and the translation for every person to be served; and
(d) such further copies as the Convention requires.
(5) Where the service is required to be made on a British subject directly through the British or Australian Consul, the translation and copies of the translation need not accompany the request unless the Convention expressly requires that they should do so.
(6) The document to be served shall be sealed with the Office seal and shall be forwarded by the Registrar of the Registry referred to in subrule (2) of this rule to the Attorney-General for transmission to the foreign country.
(7) An official certificate, transmitted through the diplomatic channel by the foreign judicial authority, or by a British or Australian consular authority, to the Court, establishing the fact and the date of the service of the document, is sufficient proof of that service and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these rules in that behalf.
(8) Where a writ of summons or other originating process, or notice of a writ or other process, is served pursuant to this rule and an official certificate of service is produced, an endorsement of service under Order 9, rule 15, is not required.
10 Validity of other service
The last preceding rule does not apply to, or render invalid or insufficient, a mode of service in a foreign country, with which a Convention has been made, which is otherwise valid or sufficient according to the procedure of the Court and which is not expressly excluded by the Convention made with that foreign country and extended to the Commonwealth.
11 Air mail
The Court or a Justice may for the purpose of effecting service give leave to transmit any document by air mail.
12 British subjects residing outside the Commonwealth
Where the party to be served outside the Commonwealth is a British subject, the Court or a Justice, upon being satisfied by affidavit:
(a) that the subject-matter of the proceeding is such that, under the provisions of this Order, the originating process was such as could properly be served outside the Commonwealth;
(b) that it was personally served upon the party, or that reasonable efforts were made to effect personal service of it upon the party and that it came to his knowledge; and
(c) that he wilfully neglects to appear in the proceeding, or that he is living out of the jurisdiction of the Court in order to defeat and delay the plaintiff;
may direct, from time to time, that the plaintiff may proceed in such manner, and subject to such conditions, as the Court or a Justice thinks fit.
13 Actions under Civil Aviation (Carriers’ Liability) Act 1959
(1) The provisions of this rule apply in any case where, for the purpose of an action brought by virtue of the Civil Aviation (Carriers’ Liability) Act 1959, leave is given to serve notice of a writ of summons upon a defendant (other than the Commonwealth), being:
(a) a Party to the Convention as defined by section 10 of that Act; or
(b) a High Contracting Party to the Convention as defined by section 20 of that Act.
(2) The notice shall specify the time for entering an appearance as limited in pursuance of rule 4 of this Order.
(3) The notice shall be sealed with the Office Seal and shall be transmitted to the Attorney-General, together with:
(a) a copy of the notice translated into the language of the country of the defendant; and
(b) a request, in the form numbered 7 in the First Schedule, with such variations as the circumstances require, for the further transmission of the notice and the copy to the government of that country.
(4) The party bespeaking a copy of a document for service under this rule shall, at the time of bespeaking the copy, file a praecipe in the form numbered 8 in the First Schedule.
(5) An official certificate transmitted by the Attorney-General to the Court certifying that the notice was delivered on a specified date to the government of the country of the defendant, shall be deemed to be sufficient proof of service and shall be filed of record as, and be equivalent to, an affidavit of service within the requirements of these rules in that behalf.
(6) After entry of appearance by the defendant or, if no appearance is entered, after the expiry of the time limited for appearance, the action may proceed to judgment in all aspects as if the defendant had, for the purposes of the action, waived all privilege and submitted to the jurisdiction of the Court.
(7) Where it is desired to serve or deliver a summons, order, notice or other document in the proceedings on the defendant outside the Commonwealth, the provisions of this rule apply, with such variations as the circumstances require.
14 Power of Court to cause persons to be informed
These rules do not in any way prejudice or affect the practice or power of the Court under which, when lands, funds, choses in action, rights or property within the Commonwealth are sought to be dealt with or affected, the Court may, without affecting to exercise jurisdiction over a person outside the Commonwealth, cause that person to be informed of the proceedings with a view to that person having an opportunity of opposing, claiming or otherwise intervening.
Order 11 Appearance
1 Appearance in Registry
Except in cases otherwise provided for by these rules of the High Court of Australia Act 1979 or the Judiciary Act, a defendant shall enter his appearance in the Registry out of which the writ or other originating process was issued.
2 Where defendant does not reside etc in district
Where a defendant does not reside or carry on business in the State or Territory in which the Registry out of which the process was issued is situated, he may appear either in that Registry or in the Principal Registry.
3 Mode of entering appearance; memorandum and duplicate
(1) A defendant shall enter his appearance to a writ of summons or other originating process, to which an entry of an appearance is required, by delivering to the proper officer:
(a) a memorandum of appearance in writing dated on the day of its delivery containing the name of the defendant’s solicitor or stating that the defendant defends in person; and
(b) a duplicate of the memorandum of appearance.
(2) The officer shall:
(a) seal the memorandum of appearance and the duplicate memorandum of appearance with a seal bearing the words “Appearance entered” and showing the date on which the seal is affixed; and
(b) return the duplicate memorandum of appearance to the person entering the appearance.
(3) The duplicate memorandum of appearance so sealed shall be a certificate that the appearance was entered on the day indicated by the seal.
4 Conditional appearance
Where a defendant desires to object:
(a) to the jurisdiction;
(b) to the writ or other originating process; or
(c) to the service of the writ or other process or of a notice of the writ or other process;
he may, before the time limited for appearance has expired, obtain leave from a Justice on an ex parte application to enter a conditional appearance.
5 Motion to set aside writ
A defendant, before appearing, may, without entering, or obtaining an order to enter, a conditional appearance, take out a summons or serve notice of motion:
(a) to set aside the writ or other originating process;
(b) to set aside the service upon him of the writ or other originating process or of notice of the writ or other originating process; or
(c) to discharge the order authorizing that service.
6 Notice of entry to plaintiff
(1) A defendant shall, on the day on which he enters an appearance, give notice of his appearance, in the form numbered 16 or the form numbered 19 in the First Schedule, to the plaintiff’s solicitor or, if the plaintiff sues in person, to the plaintiff himself.
(2) The notice may be given either by notice in writing served at the address for service, or by pre-paid letter directed to that address and posted on the day of entering appearance in due course of post, and shall, in either case, be accompanied by a sealed duplicate memorandum of appearance.
7 Entry by defendant entitled to enter at Principal Registry
(1) Where a defendant is entitled to enter an appearance either at a District Registry or at the Principal Registry and he has entered it at the Principal Registry, the plaintiff shall, upon receipt of the notice and sealed duplicate memorandum of appearance referred to in the last preceding rule, forthwith give notice in writing to the defendant’s solicitor or, if the defendant appears in person, to the defendant himself, of a proper place, which is not more than three miles from the Principal Registry, to be his address for service, where notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the plaintiff.
(2) Notice under this rule may be given by serving it at the address for service of the defendant or by pre-paid letter directed to that address.
(3) A copy of the notice shall be filed by the plaintiff in the Principal Registry.
8 Defendant’s address for service
(1) The solicitor of a defendant appearing by a solicitor shall state in the memorandum of appearance his name and place of business or the name of his firm and its place of business.
(2) Where the place of business so stated is not more than three miles from the office of the Registry in which the appearance is entered, it shall be the address for service of the defendant.
(3) Where that place of business is more than three miles from the office of that Registry, the solicitor shall also state in the memorandum of appearance the address of a proper place, which is not more than three miles from that office, to be the address for service of the defendant.
(4) Where the solicitor is acting as agent of another solicitor, he shall add to his own name and place of business, or firm name and its place of business, the name and place of business of the principal solicitor, or the name of the firm of the principal solicitor and its place of business.
9 Defendant in person
(1) A defendant appearing in person shall state in the memorandum of appearance his place of residence.
(2) Where his place of residence is not more than three miles from the office of the Registry in which he enters his appearance, it shall be his address for service.
(3) Where that place of residence is more than three miles from the office of that Registry, he shall also state in the memorandum of appearance the address of a proper place, which is not more than three miles from that office, to be his address for service.
10 Address for service
Notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for the defendant at his address for service.
11 Memorandum irregular, address fictitious
(1) Where a memorandum of appearance does not contain a proper address for service, it shall not be received.
(2) Where a memorandum of appearance contains an address for service which is illusory or fictitious, the appearance may be set aside by the Court or a Justice on the application of the plaintiff, and the plaintiff may be permitted to proceed by filing proceedings in the Registry in which the matter is then pending without further service.
12 Form of memorandum of appearance
A memorandum of appearance shall be in such of the forms numbered 14, 15, 18, 20, 21 and 22 in the First Schedule as is applicable, with such variations as the circumstances require.
13 Officer to enter memorandum
Upon receipt of a memorandum of appearance, the proper officer shall forthwith enter the appearance in the Cause Book or Court Book, as the case may be.
14 Appearance at Principal Registry to be notified to District Registry
Where a defendant is entitled to enter an appearance either at a District Registry or at the Principal Registry and he enters it at the Principal Registry, the Principal Registrar shall on the same day notify the Registrar of the District Registry by telegraph that the appearance has been entered.
15 Defendants appearing by same solicitor
Where two or more defendants appear by the same solicitor and at the same time, the names of the defendants so appearing shall be inserted in one memorandum of appearance.
16 Solicitor not entering appearance
Where a solicitor fails to enter an appearance or to put in bail or to pay money into Court in lieu of bail in an Admiralty action in rem in pursuance of his written undertaking so to do on behalf of a party, he is liable to attachment.
17 Bail bond in Admiralty actions
In an Admiralty action in rem, bail may be taken before:
(a) the Principal Registrar;
(c) a Commissioner to administer oaths for the purposes of the High Court or the Supreme Court of a State or Territory; or
(d) a Justice of the Peace or Notary Public;
and in every case the sureties shall justify.
18 Time for filing bond
(1) Except by consent, a bail bond shall not be filed until after the expiration of twenty-four hours from the time when a notice, containing the names and addresses of the sureties and of the Registrar, Commissioner, Justice of the Peace or Notary Public before whom the bail was taken, has been served upon the adverse solicitor.
(2) A copy of the notice, verified by affidavit, shall be filed with the bail bond.
19 Commissioner in certain cases not to take bail
A Commissioner, Justice of the Peace or Notary Public shall not take bail on behalf of a person for whom he, or a person in partnership with him, is acting as solicitor or agent.
20 Commission recoverable on taxation
(1) A commission or fee paid to a person becoming surety to a bail bond, or otherwise giving security, may be recovered on taxation.
(2) The amount of the commission or fee shall not, in the aggregate, exceed one per centum on the amount in which bail is given.
21 Time for appearance
(1) A defendant may appear at any time before judgment.
(2) Where a defendant appears after the time limited by the writ or other originating process for appearance, he shall on the same day give notice of his appearance to the plaintiff’s solicitor or, if the plaintiff sues in person, to the plaintiff himself.
(3) Unless the Court or a Justice otherwise orders, the defendant shall not be entitled to any further time for delivering his defence, or for any other purpose, than if he had appeared according to the tenor of the writ or other originating process.
22 Admiralty intervention
In an Admiralty action in rem, a person not named in the writ may intervene and appear on filing an affidavit showing that he is interested in the res under arrest or in the fund in Court.
23 Recovery of land
A person not named as a defendant in a writ of summons for the recovery of land may, by leave of the Court or a Justice, appear and defend on filing an affidavit showing that he is in possession of the land either by himself or by his tenant.
24 Landlord appearing
A person appearing to defend an action for the recovery of land as landlord, in respect of property of which he is in possession only by his tenant, shall state in his appearance that he appears as landlord.
25 Recovery of land, person not named defendant
(1) Where a person not named as defendant in a writ of summons for the recovery of land has obtained leave of the Court or a Justice to appear and defend, he shall enter an appearance, in accordance with the preceding rules of this Order, entitled in the action against the party named in the writ as defendant, and shall forthwith give notice of that appearance to the plaintiff’s solicitor, or, if the plaintiff sues in person, to the plaintiff himself.
(2) In subsequent proceedings, that person shall be named as a party defendant to the action.
26 Recovery of land, limiting defence
(1) A person appearing to a writ of summons for the recovery of land is at liberty to limit his defence to a part only of the property mentioned in the writ.
(2) Where a person so limits his defence, he shall describe that part of the property to which he limits his defence in his memorandum of appearance or in a notice which shall be:
(a) entitled in the action;
(b) in the form numbered 17 in the First Schedule, with such variations as the circumstances require;
(c) signed by him or his solicitor; and
(d) served on the plaintiff within three days after appearance.
(3) An appearance, where the defence is not limited in accordance with this rule, shall be deemed an appearance to defend for the whole.
Order 12 Default of appearance
1 Default of appearance by infant or person of unsound mind; notice of application
(1) Where an appearance has not been entered to a writ of summons or other originating process for a defendant who is an infant or a person of unsound mind, the plaintiff shall, before further proceeding against the defendant, apply to the Court or a Justice for an order that some proper person be assigned guardian of the defendant, by whom he may appear and defend.
(2) The order shall not be made unless it appears on the hearing of the application:
(a) that the writ of summons or other originating process was duly served; and
(b) that, after the expiration of the time allowed for appearance and at least seven clear days before the day in the notice named for hearing the application:
(i) notice of the application was served upon or left at the place of residence of the person with whom or under whose care the defendant was at the time of serving the writ of summons or other originating process; and
(ii) where the defendant is an infant not residing with or under the care of his father or guardian, and the Court or Justice at the time of hearing the application does not dispense with such service, notice of the application was served upon or left at the place of residence of the father or guardian, if any, of the infant.
(3) Where a guardian has been appointed, he has the same time for appearance after the service of the order on him as if it were a writ of summons.
2 Default of appearance generally
Where a defendant fails to appear to a writ of summons or other originating process and the plaintiff is desirous of proceeding upon default of appearance under any of the succeeding rules of this Order or under Order 15, rule 1, the plaintiff shall, before taking proceedings upon default, file an affidavit of service, or of notice in lieu of service, as the case may be.
3 Liquidated demand endorsed
Where the writ of summons is endorsed for a debt or liquidated demand only, and the defendant fails, or all the defendants, if more than one, fail, to appear to the writ, the plaintiff may enter final judgment for a sum not exceeding the sum claimed by the writ, together with interest, if so claimed, to the date of the judgment, and costs.
4 Liquidated demand; several defendants
Where the writ of summons is endorsed for a debt or liquidated demand only, and there are several defendants, of whom one or more appears or appear to the writ, and another or others of them fails or fail to appear, the plaintiff may enter final judgment, as provided by the last preceding rule, against a defendant who has not appeared, and may issue execution upon that judgment without prejudice to his right to proceed with the action against a defendant who has appeared.
5 Detention of goods
(1) Where the writ is endorsed with a claim for pecuniary damages only, or for detention of goods, with or without a claim for pecuniary damages, and the defendant fails, or all the defendants, if more than one, fail, to appear to the writ, the plaintiff may enter interlocutory judgment.
(2) The value of the goods and the damages, or either of them, as the case may be, in respect of the causes of action disclosed by the endorsement on the writ of summons, shall be assessed by the Registrar unless the Court or a Justice otherwise directs.
(3) The Court or a Justice may order a statement of claim or particulars to be filed before an assessment of damages and may order that, instead of assessment by a Registrar, the value and amount of damages, or either of them, shall be assessed in a way which the Court or Justice directs.
6 Detention of goods; several defendants
(1) Where the writ is endorsed as in the last preceding rule mentioned, and there are several defendants of whom one or more appears or appear to the writ and another or others of them fails or fail to appear, the plaintiff may enter interlocutory judgment against a defendant so failing to appear.
(2) The value of the goods and the damages, or either of them, as the case may be, may be assessed, as against a defendant suffering judgment by default, at the time of the trial of the action or issue in the action against another defendant, unless the Court or a Justice otherwise directs.
(3) The Court or a Justice may order that, instead of an assessment by a Registrar or proceeding to trial, the value and amount of damages, or either of them, shall be assessed in a way which the Court or a Justice directs.
7 Detention of goods, damages and liquidated demand; final and interlocutory judgment
Where the writ is endorsed with a claim for pecuniary damages, or for detention of goods, with or without a claim for pecuniary damages, and is further endorsed for a debt or liquidated demand, and a defendant fails to appear to the writ, the plaintiff may enter:
(a) final judgment for the debt or liquidated demand, together with interest, if so claimed, to the date of judgment, and costs, against a defendant so failing to appear; and
(b) interlocutory judgment for the value of the goods and the damages, or either of them, as the case may be;
and proceed according to such of the preceding rules of this Order as are applicable.
8 Recovery of land
Where, in an action for the recovery of land:
(a) an appearance is not entered within the time limited by the writ for appearance; or
(b) an appearance is entered but the defence is limited to part only of the property;
the plaintiff may enter a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part to which the defence does not apply, as the case may be.
9 Other claims
Where the plaintiff has endorsed upon a writ for the recovery of land any other claim, he may enter judgment as in the last preceding rule mentioned for the land and may proceed as in the other rules of this Order mentioned as to that other claim so endorsed.
10 Plaintiff not proceeding — judgment for costs
(1) Where, in a case to which rules 3 to 8 (inclusive) of this Order do not apply, the defendant fails, or all the defendants, if more than one, fail, to appear, and the plaintiff informs the Court that by reason of payment, satisfaction, abatement of nuisance, or for any other reason he does not desire to proceed, he may, by leave of the Court or a Justice, enter judgment for costs.
(2) Leave under the last preceding subrule shall be obtained on summons in Chambers and the summons shall be filed and served in the manner in which the service of the writ or other originating process was effected or in such other manner as the Court or a Justice directs.
11 Setting aside judgment
Where judgment is entered pursuant to a preceding rule of this Order, the Court or a Justice may set aside or vary that judgment upon just terms.
12 Action in District Registry; time for entering judgment
Where a defendant fails to appear to a writ of summons or other originating process issued out of a District Registry, and the defendant had the option of entering an appearance either in the District Registry or in the Principal Registry, the plaintiff shall not enter judgment for want of appearance until after such time as a letter posted in Melbourne on the day after the day on which the time for appearance expired ought, in due course of post, to have reached him.
13 Default of appearance in cases not otherwise specially provided for
Where, in cases not by the rules of this Order otherwise specially provided for, the party served with the writ or other originating process does not appear within the time limited for appearance, upon the filing by the plaintiff of:
(a) a proper affidavit of service; and
(b) where the writ is not specially endorsed under Order 13, rule 1 or accompanied by or endorsed with a statement of claim under Order 21, rule 1 — a statement of claim;
the proceeding may continue as if that party had appeared, subject, as to actions where an account is claimed, to the provisions of Order 15.
14 Default in Admiralty action
Where, in an Admiralty action in rem, the defendant does not appear within the time limited for appearance, upon the filing by the plaintiff of:
(a) a proper affidavit of service;
(b) where the writ is not specially endorsed under Order 13, rule 1, or accompanied by or endorsed with a statement of claim under Order 21, rule 1, a statement of claim; and
(c) a certificate of non-appearance;
the action may, on the expiration of twenty-one days from the service of the writ, be set down for judgment by default.
15 Default in Admiralty action
Where an Admiralty action in rem, upon default of appearance, comes before a Justice, he may, if satisfied that the plaintiff’s claim is well founded:
(a) pronounce for the claim with or without a reference to a Registrar, or to a Registrar assisted by merchants;
(b) order the property to be appraised and sold, with or without previous notice, and the proceeds to be paid into court; or
(c) make such order as he thinks just.
16 Default of appearance to originating summons
(1) Where a defendant or respondent to an originating summons to which an appearance is required to be entered fails to appear within the time limited, the plaintiff may apply to the Court or a Justice for an appointment for the hearing of the summons.
(2) Upon a certificate that an appearance has not been entered, the Court or Justice shall appoint a time for the hearing of the summons upon such conditions (if any) as it or he thinks fit.
17 Judgment against one not to prejudice right against other defendant
Where a plaintiff enters judgment under the provisions of this Order against a defendant who fails to appear, that entry of judgment does not, nor does the issue of execution on the judgment, prejudice his right to proceed against another defendant.
Order 13 Summary relief
1 Special endorsement
(1) This Order applies to actions:
(a) in which the plaintiff seeks to recover a debt or liquidated demand in money payable by the defendant, with or without interest, arising:
(i) upon a contract, express or implied (as, for instance, on a bill of exchange, promissory note or cheque, or other simple contract debt);
(ii) on a bond or contract under seal for payment of a liquidated amount of money;
(iii) on a statute, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt other than a penalty;
(iv) on a guarantee, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand; or
(v) on a trust;
(b) in which a landlord seeks to recover possession of land, with or without a claim for rent or mesne profits, against a tenant whose term has expired or has been duly determined by notice to quit, or has become liable to forfeiture for non-payment of rent, or against persons claiming under such a tenant;
(c) in which the plaintiff seeks to recover possession of a specific chattel with or without a claim for hire thereof or for damages for its detention;
(d) in which the plaintiff claims possession of property forming a security for the payment of money; and
(e) for damages, other than actions for libel, slander, malicious prosecution, false imprisonment or breach of promise of marriage, or in which fraud is alleged by the plaintiff.
(2) In an action to which this Order applies, the writ may, at the option of the plaintiff, be specially endorsed with his claim as in the forms numbered 2 and 4 in the First Schedule, with such variations as the circumstances require.
2 Judgment on writ specially endorsed under O. III r. 4
(1) Where the defendant has appeared to a writ of summons in an action to which this Order applies, the plaintiff may, on affidavit made by himself or by another person who can swear positively to the facts, verifying the cause of action and the amount claimed (if a liquidated sum is claimed) and stating that in his belief there is no defence to the action except as to the amount of damages claimed, if any, apply to a Justice for leave to enter judgment for such remedy or relief as upon the statement of claim the plaintiff may be entitled to.
(2) The Justice may thereupon, unless the defendant satisfies him that he has a good defence to the action on the merits, or discloses such facts as may be deemed sufficient to entitle him to defend the action generally, make an order empowering the plaintiff to enter such judgment as is just, having regard to the nature of the remedy or relief claimed.
(3) On the hearing of an application under this rule, the Justice may, if he thinks fit, amend the endorsement on the writ in any manner, whether the writ be sufficiently endorsed or not.
(4) Where, on the hearing of an application under this rule, it appears that a claim which should not have been specially endorsed under this Order has been included in the endorsement on the writ, the Justice may, if he thinks fit, forthwith amend the endorsement by striking out that claim, or may deal with the claim specially endorsed as if no other claim had been included in the endorsement, and allow the action to proceed with respect to the residue of the claim.
(5) Where the plaintiff’s claim is for the delivery up of a specific chattel (with or without a claim for its hire or for damages for its detention), a Justice may make an order for the delivery up of the chattel without giving the defendant an option of retaining it upon paying its assessed value.
3 Application by summons
(1) An application by the plaintiff for leave to enter final judgment under the last preceding rule shall be made by summons returnable not less than three clear days after service.
(2) Copies of the affidavits and exhibits to be used upon the hearing of the summons shall be served with the summons.
4 Defendant may show cause
(1) The defendant may shew cause against the application by affidavit or, except in actions for the recovery of land or for the delivery up of a specific chattel, by offering to bring into Court the sum endorsed on the writ.
(2) The affidavit shall state whether the defence alleged goes to the whole or to part only, and (if so) to what part, of the plaintiff’s claim.
5 Examination of witnesses
The Justice may, if he thinks fit, order the plaintiff or the defendant, or, in the case of a corporation which is a party, an officer of that corporation, to attend and be examined upon oath, or to produce any leases, deeds, books, papers, or other documents, or copies thereof or extracts therefrom.
6 Judgment for part of claim
(1) Where it appears that the defence set up by the defendant applies only to a part of the plaintiff’s claim, or that a part of his claim is admitted, the plaintiff is entitled to judgment forthwith for such part of his claim as the defence does not apply to or as is admitted, subject to such terms, if any, as to suspending execution, or the payment of the amount levied, or any part thereof, into Court by the Marshal or Deputy Marshal, the taxation of costs, or otherwise, as the Justice thinks fit.
(2) The defendant may defend as to the residue of the plaintiff’s claim.
7 Where one defendant has good defence, but other not
Where it appears to the Justice that a defendant has a good defence to, or ought to be permitted to defend, the action and that another defendant has not a good defence and ought not to be permitted to defend, the former defendant may be permitted to defend, and the plaintiff shall be entitled to final judgment against the latter defendant and may issue execution upon that judgment without prejudice to his right to proceed with his action against the former defendant.
Leave to defend may be given unconditionally or subject to such terms as to giving security, time, mode of trial or otherwise as the Justice thinks fit.
9 Summary disposal
Upon the hearing of the application, with the consent of all parties, the Justice may dispose of the whole action in a summary manner.
10 Assessment of damages
(1) Where, in a claim for unliquidated damages, the plaintiff has entered interlocutory judgment, the Registrar shall, subject to the next succeeding subrule, assess the value of the goods claimed or the damages to be awarded.
(2) The Court or a Justice may order that, instead of assessment by a Registrar, the value and amount of damages, or either of them, shall be ascertained in a way which the Court or Justice directs.
11 Directions as to trial
(1) Where leave, whether conditional or unconditional, is given to defend, the Justice may:
(a) give such directions as to the further conduct of the action as might be given on a summons for directions under Order 31;
(b) direct that the affidavit filed by the defendant under this Order shall serve in lieu of defence;
(c) order the action to be set down for trial forthwith; and
(d) define the issues that are to be tried.
(2) Where the plaintiff has obtained leave to enter final judgment subject to a suspension of execution pending the trial of a counterclaim, this rule applies to the counterclaim as if it were an action.
12 Relief from forfeiture
A tenant has the same right to relief, after a judgment under this Order for recovery of land on the ground of forfeiture for non‑payment of rent, as if the judgment had been given after trial.
13 Fresh application
Where an application has been dismissed on the ground of formal defects in the proceedings or in the evidence, a fresh application may be made on amended proceedings.
Order 14 Summary judgment for specific performance
1 Judgment on writ for specific performance
(1) Where the defendant has appeared to a writ of summons endorsed with a claim for specific performance of a contract in writing for sale or purchase of property, the plaintiff may, on affidavit made by himself or by another person who can swear positively to the facts, verifying the cause of action and stating that in his belief there is no defence to the action, apply to a Justice for an order for specific performance of the contract and for such consequential accounts, inquiries and directions as to payment of purchase money, interest, damages and costs, or otherwise, as the case requires.
(2) The Justice may thereupon, unless the defendant, by affidavit or by his own viva voce evidence, or otherwise, satisfies him that he has a good defence to the action on the merits or discloses such facts as are deemed sufficient to entitle him to defend, make such order as is just.
2 Application by summons
(1) An application by the plaintiff under the last preceding rule shall be made by summons returnable not less than three clear days after service.
(2) Copies of the affidavits and exhibits to be used upon the hearing of the summons shall be served with the summons.
3 Defendant may show cause
The defendant may shew cause against the application by affidavit.
4 Examination of witnesses
The Justice may, if he thinks fit, order the plaintiff or the defendant or, in the case of a corporation which is a party, an officer of that corporation, to attend and be examined upon oath, or to produce any leases, deeds, books, papers or other documents, or copies thereof or extracts therefrom.
5 Leave to defend
Leave to defend may be given unconditionally or subject to such terms as to giving security, time, mode of trial, or otherwise, as the Justice thinks fit.
6 Directions as to trial
Where leave, whether conditional or unconditional, is given to defend, the Justice may:
(a) give directions limiting the time within which pleadings are to be delivered and as to any interlocutory matter; and
(b) order the action to be set down for trial forthwith or at such date as he thinks proper.
7 Summary disposal
Upon the hearing of the application, with the consent of all parties, the Justice may dispose of the whole action in a summary manner.
Order 15 Application for an account
1 Order for account
(a) a writ of summons has been endorsed for an account under Order 3, rule 5, or the endorsement on a writ of summons involves taking an account; and
(b) the defendant fails to appear, or does not, after appearance, by affidavit or otherwise, satisfy the Court or a Justice that there is some preliminary question to be tried;
an order for the proper accounts, with all necessary inquiries and directions, shall forthwith be made.
2 Application, how made
(1) An application for an order under the last preceding rule may be made at any time after the time for appearance has expired.
(2) Where the defendant has failed to appear, the application may be made ex parte.
(3) Where the defendant has appeared, the application shall be made by summons supported by an affidavit stating concisely the grounds of the claim to an account.
3 Judgment without pleadings
(1) In an action in which an account has been taken under the preceding rules of this Order, the plaintiff may, at any time after the account has been taken, apply to the Court by motion for judgment in a summary way.
(2) The Court shall thereupon proceed to hear and determine the action and give such judgment as is just.
4 Evidence
Unless the Court otherwise directs, the motion shall be heard upon affidavit and the Court may give such directions as it thinks just for the trial of any question arising on the motion.
5 Action may be directed to proceed in usual course
On an application for summary judgment under the two last preceding rules, the Court may refuse to give judgment on the motion and may direct the action to proceed in the usual manner.
Order 16 Parties
I Generally
1 Persons claiming jointly, severally or in the alternative may be plaintiffs
(a) a right to relief in respect of, or arising out of, the same transaction or series of transactions is alleged to exist in more than one person, whether jointly, severally or in the alternative; and
(b) if those persons brought separate proceedings a common question of law or fact would arise;
those persons may be joined in one proceeding as plaintiffs.
(2) Where, upon the application of a defendant, it appears that the joinder may embarrass or delay the trial or hearing, the Court or a Justice may order separate trials or hearings, or make such other order as is expedient, and judgment may be given for such one or more of the plaintiffs as are found to be entitled to relief, for such relief as he or they may be entitled to, without any amendment.
(3) The defendant, though unsuccessful, is entitled to his costs occasioned by so joining a person who is not found entitled to relief, unless the Court or a Justice, in disposing of the costs, otherwise directs.
2 No other proceeding to be brought for same claim
Another proceeding shall not be brought against the defendant by a person so joined as plaintiff in respect of the same cause of action unless by leave of the Court or a Justice.
3 Proceeding in name of wrong plaintiff
Where a proceeding has been commenced in the name of the wrong person as plaintiff, or it is doubtful whether it has been commenced in the name of the right plaintiff, the Court or a Justice, if satisfied that:
(a) it has been so commenced through a bona fide mistake; and
(b) it is necessary for the determination of the real matter in dispute so to do;
may order another person or persons to be substituted or added as plaintiff or plaintiffs upon such terms as are just.
4 Misjoinder and non-joinder
(1) A proceeding shall not be defeated by reason of misjoinder or non‑joinder of parties, and the Court or a Justice may deal with the matter in controversy so far as regards the rights and interests of the parties actually before it or him.
(2) The Court or a Justice may:
(a) at any stage of the proceedings;
(b) either upon or without the application of a party; and
(c) on such terms as appear to the Court or a Justice to be just;
order that the names of parties improperly joined, whether as plaintiffs or as defendants, be struck out and that the names of parties, whether plaintiffs or defendants, who ought to have been joined, or whose presence before the Court or Justice may be necessary in order to enable the Court or Justice effectually and completely to adjudicate upon and settle all the questions arising, be added.
(3) A party whose name is so added as defendant shall be served with the amended writ of summons or other originating process, or notice of the amended writ or other process in lieu of service, as the case may be, in accordance with this Order, or in such manner as is prescribed by a special order, and the proceedings as against that party shall be deemed to have begun only on the service of the writ or other originating process or notice.
5 Consent of plaintiff or next friend
A person shall not be added as a plaintiff suing without a next friend, or as the next friend of a plaintiff under a disability, without his own consent in writing.
6 Counterclaim — misjoinder
Where a person has been improperly or unnecessarily joined as a co-plaintiff, the defendant may rely upon a counterclaim or set-off against the plaintiffs properly joined and shall not be deemed thereby to have waived any objection to the misjoinder.
7 All persons may be joined as defendants
Where a right to relief is alleged to exist against more than one person, whether jointly, severally or in the alternative, those persons may be joined as defendants and judgment may be given against such one or more of them as are found to be liable, according to their respective liabilities, without any amendment.
8 Defendant need not be interested in all the relief
(1) It is not necessary that every defendant be interested as to all the relief prayed for, or as to every cause of action included in a proceeding against him.
(2) The Court or a Justice may make such order as appears just to prevent a defendant from being embarrassed, or put to expense, by being required to attend proceedings in which he has no interest.
9 Joinder of persons severally, or jointly and severally liable
The plaintiff may, at his option, join as parties in the same proceeding all or any of the persons severally or jointly and severally, liable on any one contract, including parties to bills of exchange and promissory notes.
10 Plaintiff in doubt as to person from whom redress is to be sought
Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may, in accordance with these rules or as the Court or a Justice may direct, join two or more persons as defendants, to the intent that the question as to which, if any, of the defendants is liable, and to what extent, and as to what relief the plaintiff is entitled to, may be determined in the proceedings as between all parties.
11 Trustees, executors etc may sue and be sued in respect of estate
(1) Trustees, executors and administrators may sue and be sued in respect of the property or estate which they hold as such, without joining any of the persons beneficially interested in the trust property or estate, and shall be considered as representing those persons.
(2) The Court or a Justice may, at any stage of the proceedings, order any of the persons beneficially interested to be made parties, either in addition to, or in lieu of, the previously existing parties.
(3) This rule extends and applies to trustees, executors, and administrators suing or sued in proceedings to enforce a security by foreclosure or otherwise.
12 Numerous persons
Where there are seven or more persons having the same interest, one or more of those persons may sue or be sued, or may be authorized by the Court or a Justice to defend on behalf of, or for the benefit of, all persons so interested.
13 Power to approve compromise
(a) a compromise is proposed in proceedings concerning:
(i) the estate of a deceased person;
(ii) property subject to a trust; or
(iii) the construction of a written instrument;
(b) some of the persons who are interested in, or who may be affected by, the compromise are not parties to the proceedings (including unborn or unascertained persons); and
(c) there is some other person in the same interest before the Court who assents to the compromise, or on whose behalf the Court sanctions a compromise, or the absent persons are represented by a person appointed under rule 44 of this Order who so assents;
the Court or Justice, if satisfied that the compromise will be for the benefit of the absent persons and that it is expedient to exercise this power, may approve the compromise and order that it shall be binding on the absent persons.
(2) The absent persons shall be bound by the order unless it has been obtained by fraud or non-disclosure of material facts.
14 Application to add or strike out
An application to add, strike out or substitute a plaintiff or defendant may be made to the Court or a Justice at any time before the trial or hearing by motion or summons, or at the trial or hearing in a summary manner.
15 Where defendant added
(1) Where a defendant is added or substituted, the writ of summons or other originating process shall be amended accordingly.
(2) The plaintiff shall, unless otherwise ordered by the Court or a Justice:
(a) file a copy of the writ or other originating process as amended; and
(b) serve the new defendant and all other parties with the amended writ or other originating process, or notice in lieu of service of the amended writ or other process, in the same manner as original defendants are served.
(3) The proceedings shall be continued as if the new defendant had originally been made a defendant.
16 Actions under Act and Convention
In an action under the Carriage by Air Act 1935 and the Convention set out in the Schedule to that Act, a High Contracting Party to the Convention who, for the purposes of that action, and by virtue of that Act, is deemed to have submitted to the jurisdiction of the Court, may, subject to and in accordance with these rules, be made a defendant.
17 Initial letters may be used
(1) Subject to the next succeeding subrule, where, in any proceedings, a person (including a party to the proceedings) is referred to in a writ, pleading or other document, the first name or other name or names (other than the surname) of that person may be designated in that writ, pleading or other document by an initial letter or letters or other contraction.
(2) Where the name of a person is so designated, it shall be averred in the writ, pleading or other document that that name is unknown to the party using the initial letter or letters or other contraction.
II Persons under disability
18 Proceedings by infants
(1) An infant may sue as plaintiff by his next friend.
(2) An infant may defend in a proceeding by his guardian appointed for that purpose.
19 Persons of unsound mind
(1) A person of unsound mind may sue as plaintiff in a proceeding by the committee, if any, of his person or estate, as the case may be, or, where there is no such committee, by his next friend.
(2) A person of unsound mind may defend by his committee, if any, or, where there is no such committee, by his guardian appointed for that purpose.
20 Appearance by infant
(1) An infant shall not enter an appearance except by his guardian ad litem.
(2) An order for the appointment of the guardian is not necessary, but the solicitor applying to enter the appearance shall make and file an affidavit in the form numbered 23 in the First Schedule, with such variations as the circumstances require.
21 Guardian ad litem
(1) Where the appointment of a special guardian is not provided for, an infant served with a petition, notice of motion or summons shall appear on the hearing thereof by a guardian ad litem.
(2) An order for the appointment of the guardian ad litem is not necessary, but the solicitor by whom he appears shall previously make and file an affidavit as in the last preceding rule.
22 Other cases
Where proceedings are directed to be continued by or against an infant, or an infant may attend proceedings, he shall appear as in the last preceding rule.
23 Next friend or relator
Before the name of a person is used as next friend of an infant or other party, or as relator, that person shall sign a written authority to the solicitor for that purpose, and the authority shall be filed in the Principal Registry or, where the proceeding is pending in a District Registry, in that District Registry.
24 Consent of persons under disability to procedure
In proceedings to which an infant or person of unsound mind, or person under any other disability, is a party, a consent as to the mode of taking evidence or as to any other procedure shall, if given with the approval of the Court or a Justice by the next friend, guardian, committee or other person acting on behalf of the person under disability, have the same force and effect as if that party were under no disability and had given that consent.
25 Removal and appointment of next friend or guardian ad litem
(1) The Court or a Justice may, for sufficient cause shewn, remove a next friend or guardian ad litem.
(2) Where, for any reason, there is not a next friend or guardian ad litem of an infant, the Court or a Justice may appoint a fit person, with his own consent, to be next friend or guardian ad litem of the infant.
III Proceedings by and against poor persons
26 Suing or defending as poor person
The Court or a Justice may allow a person to sue or defend in, or be a party to, a proceeding in the Court as a poor person on proof:
(a) that, excluding his wearing apparel, tools of trade and the subject-matter of the proceeding, he is not worth a sum exceeding Two hundred dollars or, in special circumstances, a sum not exceeding Four hundred dollars;
(b) that his usual income from all sources does not exceed Eighteen dollars a week; and
(c) that he has reasonable grounds for suing, defending or becoming a party.
27 Disqualification
Except under special circumstances, a person may not sue, defend or become a party as a poor person if he has directly or indirectly paid or agreed to pay a sum of money, or has given or agreed to give a security, to a legal practitioner or to another person for the conduct of the proceedings in the Court.
28 Case before counsel
Where a person desires to sue, defend or become a party in proceedings as a poor person, he shall lay a case before counsel for his opinion as to whether or not he has reasonable grounds for suing, defending or becoming a party, as the case may be.
29 Affidavit in support of application
A person may not sue, defend or become a party as a poor person unless he or his solicitor produces to the Court or Justice to whom the application is made the case laid before counsel for his opinion and his opinion on the case with an affidavit (referring to the case as an exhibit) of the party or his solicitor which:
(a) states that the case contains a full and true statement of all the material facts to the best of his knowledge and belief;
(b) denies that the applicant has directly or indirectly paid or agreed to pay a sum of money, or has given or agreed to give a security, to a legal practitioner or to another person for the conduct of the proceedings in the Court or states fully the special circumstances relied upon in excuse; and
(c) gives full information and particulars as to the assets and liabilities of the applicant, his income from all sources, the persons dependent upon him and the nature and extent of the dependency of each of them respectively.
30 No Court fees payable
A person allowed to sue, defend or become a party as a poor person is not liable to pay Court fees.
31 Order to be filed
Upon obtaining the order allowing him to sue, defend or become a party as a poor person, the applicant or his solicitor shall, before taking any other step in the proceeding, file the order in the Principal Registry or, where the proceeding has been or is intended to be commenced in a District Registry, in that District Registry.
32 Memorandum of filing
(1) On the filing of the order, a memorandum of the filing bearing the seal of the Registry where the order is filed shall be issued to the applicant or his solicitor.
(2) In subsequent proceedings the production of the memorandum is sufficient evidence that the order has been duly filed.
33 Assignment of counsel or solicitor
(1) Where a person is allowed to sue, defend or become a party as a poor person, the Court or a Justice may, if necessary, assign counsel or a solicitor, or both, to assist him.
(2) Counsel or solicitor so assigned may not refuse or discontinue his assistance unless he satisfies the Court or a Justice that he has some good reason for so refusing or discontinuing or unless, in the case of counsel, he satisfies the solicitor that other counsel can be briefed in the proceedings without prejudice to the conduct of the proceedings.
(3) Except as provided in this Order, a fee is not payable by a poor person to his assigned counsel or solicitor.
34 Prohibition of fees
(1) Where a person intends to apply to be allowed to sue, defend or become a party as a poor person, a person who, with knowledge of that intention, takes or agrees to take or seeks to obtain from him a payment, fee, profit or reward for the conduct of the proceedings in the Court, is guilty of contempt of Court.
(2) While a person sues, defends or is a party as a poor person, a person who, except as provided by this Order, takes or agrees to take or seeks to obtain from him a payment, fee, profit or reward for the conduct of the proceedings in the Court is guilty of contempt of Court.
(3) If a poor person makes or gives or agrees to make or give a payment, fee, profit or reward for the conduct of the proceedings in the Court otherwise than as provided by this Order, an order shall forthwith be made revoking the order allowing him to sue, defend or be a party as a poor person, as the case may be, and he may not afterwards again in the same matter sue, defend or be a party as a poor person unless otherwise ordered.
35 Revoking order
(1) The Court or a Justice may at any time, and whether or not an application is made by another party or person for that purpose, revoke the order allowing a person to sue or defend or be a party as a poor person.
(2) Upon the revocation, the poor person is not entitled to the benefit of this Order in a proceeding to which the order relates unless otherwise ordered.
36 Settlement etc and discharge of solicitor
(1) A poor person, a solicitor conducting the proceedings for him or counsel briefed on his behalf shall not, whether before or after the commencement of the proceedings, enter into a settlement or compromise of the proceedings, or discontinue them, without the leave of the Court or a Justice.
(2) A poor person shall not discharge a solicitor or counsel acting for him without the leave of the Court or a Justice.
37 Alteration in means of poor person
(1) Where a poor person becomes possessed of or entitled to assets or income beyond those stated in the affadavit made by him or his solicitor in pursuance of rule 29 of this Order, he shall forthwith and from time to time report the matter to the solicitor conducting the proceedings for him.
(2) When the matter comes to the knowledge of the solicitor, whether by means of the report or otherwise, he shall forthwith make and file an affidavit embodying that information.
38 Solicitor to sign notices etc
(1) Except for the discharge of his solicitor, a poor person, or a person acting on his behalf, shall not:
(a) serve a notice of motion;
(b) make an application;
(c) issue a summons; or
(d) present a petition;
unless it is signed by his solicitor.
(2) The solicitor assigned to a poor person shall take care that, without good cause:
(a) a notice is not served;
(b) an application is not made;
(c) a summons is not issued; or
(d) a petition is not presented.
39 Failure to proceed
(1) Notwithstanding that an order has not been made revoking the order allowing a poor person to sue, defend or be a party as a poor person, where he omits to proceed, he may be called upon by notice of motion or summons to shew cause to the Court or a Justice why he should not pay costs and why further proceedings should not be stayed until the costs have been paid.
(2) On the hearing of the notice of motion or summons, the Court or a Justice may make such order as seems just.
40 Costs — poor persons
(1) A poor person is not entitled to receive costs from another party unless the Court or a Justice orders that he is so entitled.
(2) The Court or a Justice may order the out-of-pocket expenses of a poor person to be paid by another party and, where such an order is made, it shall be deemed to include all out-of-pocket expenses properly incurred in the course of the proceedings but not office expenses or fees of counsel.
(3) Where it appears to the Court or a Justice that another party has acted unreasonably in bringing, defending or intervening in the proceedings or in his conduct of them, or that the special circumstances of the case require it, the Court or a Justice may order that other party to pay the costs of a poor person, including profit costs or a proportion, or sum of money in respect, of profit costs, in addition to out-of-pocket expenses properly incurred in the course of the proceedings.
(4) Where it appears to the Court or a Justice that proceedings are of such length or difficulty as to throw an unusual burden on the solicitor acting for a poor person, the Court or a Justice may order the other party to pay, in addition to out-of-pocket expenses properly incurred in the course of the proceedings, such sum as the Court or a Justice thinks fit in respect of that unusual burden.
(5) Where an order to pay costs is made under either of the two last preceding subrules of this rule, the order shall not be enforced without leave of the Court or a Justice, and the Court or a Justice may refuse leave if satisfied by the party ordered to pay the costs that he has not the means (including insurance or other indemnity) to pay them.
(6) Out-of-pocket expenses and other costs ordered to be paid to a poor person shall, unless the order fixes their amount or the Court or a Justice otherwise directs, be taxed as in other cases.
41 Liability of poor person for costs
Unless the Court or a Justice otherwise orders, a poor person is not liable to pay costs to another party.
42 Costs where order obtained by fraud
(1) Where it appears to the Court or a Justice that the order allowing a person to sue or defend or be a party as a poor person was obtained by fraud or misrepresentation, the Court or Justice may order that person to pay the costs of another party.
(2) Where such an order is made, the costs shall be taxed as if the party ordered to pay them were not a person in whose favour an order allowing him to sue, defend or be a party as a poor person had been made.
43 Costs to solicitor from proceeds of action
(1) Subject to the next succeeding subrule, the Court or a Justice may order to be paid to the solicitor for a poor person out of money recovered by that poor person, or may charge in favour of the solicitor upon real or personal property recovered by the poor person, such sum in respect of costs (including a fee to counsel which is reasonable in the circumstances) as would have been allowed to the solicitor on taxation between himself and his client if he had been retained by his client in the ordinary manner, less such amount as may be recovered by way of costs from another party, or such other sum in respect of costs as to the Court or a Justice seems fit.
(2) The total amount so to be paid out for profit costs, or so charged upon property for profit costs, shall not in either case exceed one fourth of the amount or value recovered and remaining after the deduction from that amount or value of all proper disbursements made by the solicitor.
(3) In this rule, money recovered and property recovered include respectively money recovered and property recovered by virtue of a settlement or compromise.
IV Administration and execution of trusts
44 Appointment of person to represent next of kin or a class
(a) the right of the next of kin, or a class, depends upon the construction which the Court or a Justice may put upon an instrument; and
(b) it is not known, or is difficult to ascertain, who is or are that next of kin or class; and
(c) the Court or a Justice considers that, in order to save expense or for some other reason, it is convenient to have the questions of construction determined before that next of kin or class have been ascertained by means of inquiry or otherwise;
the Court or Justice may appoint a person to represent the next of kin or class, and the judgment of the Court or Justice in the presence of that person is binding upon the next of kin or class so represented.
(2) In any other case where next of kin, or a class, is interested in proceedings, the Court or Justice may (if it appears expedient by reason of the nature and extent of the interest of, and the difficulty of ascertaining, those persons, or any of them, or in order to save expense) appoint a person to represent all or any of the next of kin or class, and the judgment or order of the Court or Justice in the presence of the person so appointed is binding upon the persons so represented.
45 Residuary legatee and next of kin
Where a residuary legatee or next of kin is entitled to a judgment or order for the administration of the personal estate of a deceased person, he may have the judgment or order without serving the remaining residuary legatees or next of kin.
46 Person interested in proceeds of realty
(a) a legatee is interested in a legacy charged upon real estate; or
(b) a person is interested in the proceeds of real estate directed to be sold;
and that legatee or that person is entitled to a judgment or order for the administration of the estate of a deceased person, the legatee or person may have the judgment or order without serving any other legatee or person interested in the proceeds of the estate.
47 Residuary devisee or next of kin
Where a residuary devisee or next of kin is entitled to a judgment or order for the administration of the estate of a deceased person, he may have that judgment or order without serving a co-residuary devisee or other next of kin.
48 Cestuis que trust
Where one of several cestuis que trust under a deed or instrument is entitled to a judgment or order for the execution of the trusts of the deed or instrument, he may have that judgment or order without serving any other cestui que trust.
49 Waste
In proceedings for the prevention of waste or otherwise for the protection of property, one person may sue on behalf of himself and other persons having the same interest.
50 Executor, administrator or trustee
Where an executor, administrator or trustee is entitled to a judgment or order against any one legatee, next of kin or cestui que trust for the administration of the estate or the execution of the trusts, he may have that judgment or order.
51 Notice of judgment to be served on certain persons and its effect
(1) Where, in a proceeding for the administration of the estate of a deceased person or the execution of the trusts of a deed or instrument, or for the partition or sale of hereditaments, a judgment or order has been pronounced or made:
(a) under Order 15 or Order 34; or
(b) affecting the right or interests of persons not parties to the action;
the Court or a Justice may direct that persons interested in the estate or under the trust or in the hereditaments shall be served with notice of the judgment or order.
(2) After service with notice of the judgment or order, those persons shall be bound by the proceedings in the same manner as if they had originally been made parties, and they may attend the proceedings under the judgment or order.
(3) A person so served may, within twenty-eight days after the service, apply to the Court or Justice to set aside or vary the judgment or order.
52 Order for liberty to attend not necessary, but appearance to be entered
A person served with notice of a judgment or order need not obtain an order for liberty to attend the proceedings under that judgment or order, but may attend the proceedings upon entering an appearance in the same manner, and subject to the same provisions, as a defendant entering an appearance.
53 Memorandum of service to be entered in the Registry
A memorandum of the service upon a person of notice of a judgment or order under rule 51 of this Order shall, upon due proof by affidavit of that service, be entered in the Registry in which the proceeding is pending.
54 Form of memorandum
Notice of a judgment or order served pursuant to rule 51 of this Order shall be entitled in the proceeding, and shall be endorsed with a memorandum in the form numbered 36 in the First Schedule.
55 Service of notice of judgment on infants etc
Service of a judgment or order, or of notice of a judgment or order, shall be effected on an infant or a person of unsound mind in the same manner as in the case of a writ of summons.
56 Court may appoint or dispense with legal personal representative
(1) Where in a proceeding it appears to the Court or a Justice that a deceased person who was interested has no legal personal representative, the Court or Justice may (on such notice to such persons, if any, as the Court or Justice thinks fit, either specially or generally by public advertisement) proceed in the absence of a person representing the estate of the deceased person, or may appoint some person to represent his estate for the purposes of the proceeding.
(2) An order made under this rule, and an order consequent on that order, shall bind the estate of the deceased person in the same manner in every respect as if a duly constituted legal personal representative of the deceased had been a party to the proceeding.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
High Court Rules 1952
Statutory Rules 1952 No. 23 as amended
made under the
Judiciary Act 1903
This compilation was prepared on 17 September 2001
taking into account amendments up to SR 2001 No. 243
This document has been split into two volumes
Volume 1 contains Order 1-Order 44
Volume 2 contains Order 45-Order 73, the Schedules and the Notes
Each volume has its own table of contents
Prepared by the Office of Legislative Drafting,
Attorney-General’s Department, Canberra
Contents
Page
Order 1 Preliminary, interpretation and commencement of proceedings
I Preliminary and Interpretation
1 Name of rules [see Note 1]
2 Commencement
3 Repeal and saving
4 Pending proceedings etc
5 Interpretation
6 Reference to Acts etc
II Commencement and title of proceedings
7 Commencement of proceedings
8 Title of proceedings
Order 2 Writs of summons
1 Endorsement of claim
2 Costs of prolix writs
3 Form of writ
4 Leave to issue out of Commonwealth
5 Form of writ for service out of the Commonwealth
6 Admiralty action
7 Dating and testing of writs
Order 3 Endorsement of claim
1 Endorsement under Order 2, rule 1
2 Forms of endorsement
3 Endorsement to show representative capacity
4 Endorsement where the claim is liquidated
5 Ordinary account
6 Libel
Order 4 Endorsement of address
1 Where plaintiff sues by solicitor
2 Where plaintiff sues in person
3 Address for service
4 Where notice is served in lieu of writ
5 Matters not commenced by writ
Order 5 Issue of, and appearances to, writs of summons and originating processes
I Place of issue
1 Writs etc may be issued out of any Registry
2 Endorsement as to appearance on writs etc issued out of Principal Registry
II General
4 Preparing and printing writs
5 Signing etc by proper officer
6 Copy of writ etc to be left with proper officer
7 Filing and marking of copy of writ etc
III Admiralty actions
8 Admiralty, arrest warrant after affidavit
9 Special circumstances
IV Time for appearance
10 Time for appearance to be limited by writ
V Actions on relation
11 Actions by Attorney-General on relation
Order 6 Concurrent writs
1 Concurrent writs, how issued etc
2 Period during which concurrent writ in force
3 Concurrent writs for service within, and outside, the Commonwealth
4 Concurrent originating process
Order 7 Disclosure by solicitors and plaintiffs, and change of solicitor
1 Where name of solicitor endorsed on writ
2 Change of solicitor
3 Notice of appointment of solicitor
4 Notice of intention to act in person
5 Power to act through new solicitor
6 Removal of solicitor from the record at the instance of another party
7 Withdrawal of solicitor who has ceased to act for a party
8 Solicitor not to act for adverse parties
Order 8 Renewal of writs
1 Original writ in force for 12 months
2 Evidence of renewal
3 Lost writ
Order 9 Service of writs of summons
I Mode of service
1 Undertaking to accept service
2 When service required, how effected
3 Substituted service
II On particular defendants
4 Infant
5 Persons of unsound mind
III On corporations and agents
6 Service on corporations etc
7 Service on agent
IV In particular actions
8 Service in action for recovery of land
9 Admiralty actions in rem
10 Service of warrant of arrest
11 Service of writ or warrant, how effected
12 When cargo landed
13 Where no access to cargo
14 Proceeds in Court
V Generally
15 Endorsement after service
Order 10 Service outside the Commonwealth
1 In certain cases service of writ etc allowed outside Commonwealth
2 Agreement as to jurisdiction and mode of service
3 Application to be supported by evidence
4 Order to fix time for appearance
5 Notice of writ
6 Service of notice of writ
7 Service abroad by letter of request
8 Other originating processes
9 Service of Australian documents in Convention countries
10 Validity of other service
11 Air mail
12 British subjects residing outside the Commonwealth
13 Actions under Civil Aviation (Carriers’ Liability) Act 1959
14 Power of Court to cause persons to be informed
Order 11 Appearance
1 Appearance in Registry
2 Where defendant does not reside etc in district
3 Mode of entering appearance; memorandum and duplicate
4 Conditional appearance
5 Motion to set aside writ
6 Notice of entry to plaintiff
7 Entry by defendant entitled to enter at Principal Registry
8 Defendant’s address for service
9 Defendant in person
10 Address for service
11 Memorandum irregular, address fictitious
12 Form of memorandum of appearance
13 Officer to enter memorandum
14 Appearance at Principal Registry to be notified to District Registry
15 Defendants appearing by same solicitor
16 Solicitor not entering appearance
17 Bail bond in Admiralty actions
18 Time for filing bond
19 Commissioner in certain cases not to take bail
20 Commission recoverable on taxation
21 Time for appearance
22 Admiralty intervention
23 Recovery of land
24 Landlord appearing
25 Recovery of land, person not named defendant
26 Recovery of land, limiting defence
Order 12 Default of appearance
1 Default of appearance by infant or person of unsound mind; notice of application
2 Default of appearance generally
3 Liquidated demand endorsed
4 Liquidated demand; several defendants
5 Detention of goods
6 Detention of goods; several defendants
7 Detention of goods, damages and liquidated demand; final and interlocutory judgment
8 Recovery of land
9 Other claims
10 Plaintiff not proceeding — judgment for costs
11 Setting aside judgment
12 Action in District Registry; time for entering judgment
13 Default of appearance in cases not otherwise specially provided for
14 Default in Admiralty action
15 Default in Admiralty action
16 Default of appearance to originating summons
17 Judgment against one not to prejudice right against other defendant
Order 13 Summary relief
1 Special endorsement
2 Judgment on writ specially endorsed under O. III r. 4
3 Application by summons
4 Defendant may show cause
5 Examination of witnesses
6 Judgment for part of claim
7 Where one defendant has good defence, but other not
8 Leave to defend
9 Summary disposal
10 Assessment of damages
11 Directions as to trial
12 Relief from forfeiture
13 Fresh application
Order 14 Summary judgment for specific performance
1 Judgment on writ for specific performance
2 Application by summons
3 Defendant may show cause
4 Examination of witnesses
5 Leave to defend
6 Directions as to trial
7 Summary disposal
Order 15 Application for an account
1 Order for account
2 Application, how made
3 Judgment without pleadings
4 Evidence
5 Action may be directed to proceed in usual course
Order 16 Parties
I Generally
1 Persons claiming jointly, severally or in the alternative may be plaintiffs
2 No other proceeding to be brought for same claim
3 Proceeding in name of wrong plaintiff
4 Misjoinder and non-joinder
5 Consent of plaintiff or next friend
6 Counterclaim — misjoinder
7 All persons may be joined as defendants
8 Defendant need not be interested in all the relief
9 Joinder of persons severally, or jointly and severally liable
10 Plaintiff in doubt as to person from whom redress is to be sought
11 Trustees, executors etc may sue and be sued in respect of estate
12 Numerous persons
13 Power to approve compromise
14 Application to add or strike out
15 Where defendant added
16 Actions under Act and Convention
17 Initial letters may be used
II Persons under disability
18 Proceedings by infants
19 Persons of unsound mind
20 Appearance by infant
21 Guardian ad litem
22 Other cases
23 Next friend or relator
24 Consent of persons under disability to procedure
25 Removal and appointment of next friend or guardian ad litem
III Proceedings by and against poor persons
26 Suing or defending as poor person
27 Disqualification
28 Case before counsel
29 Affidavit in support of application
30 No Court fees payable
31 Order to be filed
32 Memorandum of filing
33 Assignment of counsel or solicitor
34 Prohibition of fees
35 Revoking order
36 Settlement etc and discharge of solicitor
37 Alteration in means of poor person
38 Solicitor to sign notices etc
39 Failure to proceed
40 Costs — poor persons
41 Liability of poor person for costs
42 Costs where order obtained by fraud
43 Costs to solicitor from proceeds of action
IV Administration and execution of trusts
44 Appointment of person to represent next of kin or a class
45 Residuary legatee and next of kin
46 Person interested in proceeds of realty
47 Residuary devisee or next of kin
48 Cestuis que trust
49 Waste
50 Executor, administrator or trustee
51 Notice of judgment to be served on certain persons and its effect
52 Order for liberty to attend not necessary, but appearance to be entered
53 Memorandum of service to be entered in the Registry
54 Form of memorandum
55 Service of notice of judgment on infants etc
56 Court may appoint or dispense with legal personal representative
57 Administration — appearance at chambers in respect of creditor’s claims
Order 17 Third party procedure
1 Third party procedure
2 Form and issue of notice
3 Effect of notice
4 Appearance
5 Default by third party
6 Where judgment by default against defendant
7 Third party directions
8 Leave to defend
9 At trial
10 Costs
11 Fourth and subsequent parties
12 Co-defendants
13 Counterclaim
Order 18 Change of parties by death etc
1 Proceeding not abated where cause of action continued
2 Order to carry on proceeding
3 Service of order to continue proceeding
4 Application to discharge order by person under no disability or having a guardian
5 By person under disability having no guardian
6 Death of sole plaintiff or defendant
7 Solicitor of plaintiff to give notice of abatement
8 Abated proceeding to be struck out
Order 19 Joinder of causes of action
1 All causes of action may be joined
2 Claims of trustees in bankruptcy etc
3 Husband and wife
4 Executor and administrator
5 Claims by joint plaintiffs
6 Remedy for misjoinder
7 Order for exclusion
Order 20 Pleading generally
1 Pleadings in High Court
2 Delivery of pleadings — costs of prolix pleadings
3 Set-off and counterclaim
4 Pleading to state material facts and not evidence
5 Particulars to be given where necessary
6 Further and better statement or particulars
7 Letter for particulars
8 Particulars before defence
9 Order for particulars when a stay
10 Printing etc of pleadings
11 Delivery of pleadings
12 Marking pleadings
13 “Not guilty by statute” abolished
14 Specific denial
15 Condition precedent
16 What must be specially pleaded
17 Departure
18 Denial to be specific
19 Joinder of issue
20 Evasive denial
21 Denial of contract
22 Effect of documents to be stated
23 Malice, knowledge, condition of mind etc
24 Rolled-up plea
25 Notice
26 Implied contract or relation
27 Presumptions of law
28 Actions for trespass
29 Striking out pleadings
30 Preliminary Act
Order 21 Statement of claim
1 Statement of claim
2 Allegation of jurisdiction
3 Claim beyond endorsement
4 Relief to be specifically stated
5 Relief founded on separate grounds
6 Stated or settled account
Order 22 Defence and counterclaim
1 Mere denial insufficient
2 Defences to actions on bills etc
3 Defences to actions under Order 13, r. 1 (1) (a) and (b)
4 Pleading to damage
5 Persons in representative capacity
6 Time for delivery of defence
7 Where leave to defend given under Order 13 or 14
8 Proper admissions not made
9 Allowable counterclaim
10 Title on counterclaim
11 Counterclaim against person not party
12 Appearance by added parties
13 Reply to counterclaim
14 Exclusion of counterclaim
15 Discontinuance
16 Judgment for balance
17 Plea in abatement
18 Plea of possession
Order 23 Payment into and out of court and tender
1 Payment into Court
2 Plaintiff may take out money
3 Money remaining in Court
4 Several defendants
5 Counterclaim
6 Non-disclosure of payment into Court
7 Payment into Court under certificate
8 Money paid into Court under order
9 Notice of payment in
10 Duty
11 Money recovered by or paid into account for infant or person of unsound mind
Order 24 Reply
1 Time for reply
2 Reply to counterclaim
3 Subsequent pleadings — time for pleading after reply
4 New assignment
Order 25 Matters arising pending the action
1 New grounds of defence arising
2 Further defence or reply
3 Confession of defence
Order 26 Demurrer and objections to pleadings
1 Demurrer
2 Demurrer to state whether the whole or part — frivolous demurrer may be set aside with costs
3 Delivery
4 Demurrer and pleading in one document
5 Leave to plead and demur together not necessary
6 Demurrer to claim founded on document
7 Demurrer not entered for argument to be held sufficient
8 Form of setting down for argument
9 When demurrer required to be heard before Full Court
10 Copy pleadings for Justices
11 Amendment pending demurrer
12 Costs
13 Effect of decision on demurrer going to whole action
14 Where demurrer allowed to part of a pleading, that part is to be deemed to be struck out
15 Demurrer overruled with leave to plead
16 Points of law may be raised by pleadings
17 Dismissal of action
18 Striking out pleading where no reasonable cause of action disclosed
19 Declaratory judgment
Order 27 Discontinuance
1 Discontinuance by a party
2 Withdrawal by consent
3 Entering judgment on discontinuance
Order 28 Default in pleading
1 Default of plaintiff in delivering statement of claim
2 Claim for debt or liquidated demand
3 Several defendants, default of one
4 Damages — detention of goods
5 Default of one or more defendants
6 Debt or damages and detention of goods or damages
7 Recovery of land
8 Claims joined with claim for recovery of land
9 Where a defence is delivered to part of claim only
10 Admiralty actions in rem
11 Defendant in default
12 One of several defendants default
13 Close of pleadings on default
14 Default of third party
15 Setting aside judgment by default
16 Effect of judgment by default
17 Counterclaims
Order 29 Amendment
1 Amendment of endorsement
2 When plaintiff may amend without leave
3 By defendant
4 Disallowance of amendment, application for, within 14 days
5 Pleading to amendment
6 Other cases
7 Failure to amend under order
8 How amendments made
9 Date of order and date of amendment to be marked
10 Delivery of amended document
11 Clerical mistakes and accidental omissions
12 General power to amend
13 Costs
Order 30 Caveats and releases in admiralty actions
1 Caveat against warrant to arrest
2 Caveat Warrant Book
3 Search for caveat before issue of arrest warrant in District Registry
4 Writ to be served on party entering caveat
5 Security to be given within 3 days
6 If security not given, action may proceed as on default
7 Judgment may be enforced by attachment and warrant
8 Release
9 Caveat against release
10 Payment into Court
11 Release of cargo arrested for freight only
12 In salvage actions
13 On giving security
14 On consent or discontinuance or dismissal of action
15 Release to be left with Marshal
16 Registrar may require Justice’s order
17 Liability for delaying release
18 Arrest notwithstanding caveat
19 Caveat Payment Book
20 Caveat against payment out of Court
21 Liability for delaying payment
22 Address of caveator
23 Withdrawal of caveats
24 Caveats may be overruled
25 Caveat in Admiralty actions in force for 6 months
Order 31 Summons for directions and consolidation
1 Summons for directions
2 Interlocutory proceedings
3 No affidavit to be used without leave
4 Parties to apply for directions
5 Subsequent applications
6 Costs of subsequent applications
7 Consolidation of proceedings
Order 32 Discovery and inspection
1 Discovery by interrogatories
2 Further interrogatories
This is an opening excerpt, not the complete document.