14Proceeds in Court

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.