Part 46Warrant of possession

Part 46 Warrant of possession 46.01 Application for warrant ................................................................. 128 46.02 Goods need not be removed ....................................................... 128 46.03 Enforcement where order includes payment of money................ 128 47.01 Application for examination summons ......................................... 128 47.02 Filing and issue of examination summons ................................... 129 47.03 Service of summons and declaration ........................................... 129 47.04 Judgment debtor to complete declaration .................................... 129 47.05 Examination of judgment debtor .................................................. 130 47.06 Orders registrar may make .......................................................... 130 47.07 Failure to attend for examination ................................................. 130 47.08 Copy of order ............................................................................... 131 47.09 Application for arrest warrant ....................................................... 131 47.10 Duration of arrest warrant ............................................................ 131 48.01 Definitions .................................................................................... 132 48.02 Attachment of earnings order ...................................................... 133 48.03 Attachment of earnings order in place of other order................... 133 48.04 Application for attachment of earnings order ............................... 133 48.05 Order in absence of judgment debtor .......................................... 134 48.06 Form and content of order ........................................................... 135 48.07 When order comes into force....................................................... 135 48.08 Service of order ........................................................................... 136 48.09 Notice by person who is not employer ......................................... 136 48.10 Payments by employer ................................................................ 136 48.11 Notice to judgment debtor of payments ....................................... 137 48.12 Multiple attachment of earnings orders........................................ 137 48.13 Failure of employer to comply with order ..................................... 138 48.14 Determination of earnings............................................................ 138 48.15 Discharge, suspension or variation of order ................................ 138 48.16 Cessation of order ....................................................................... 139 49.01 Interpretation ............................................................................... 139 49.02 When attachment of debts order may be made ........................... 140 49.03 Application for order .................................................................... 140 49.04 Service of summons and affidavit ................................................ 140 49.05 Dispute of liability by garnishee ................................................... 141 49.06 Claim by another person.............................................................. 141 49.07 Attachment of debts order ........................................................... 141 49.08 Service of order ........................................................................... 141 49.09 Time for payment by garnishee ................................................... 142 Local Court (Civil Jurisdiction) Rules 1998 xiv 49.10 Failure to comply ......................................................................... 142 49.11 Discharge of garnishee ................................................................ 142 50.01 Application for instalment order ................................................... 142 50.02 Registrar may make or refuse to make order .............................. 143 50.03 Notice of objection ....................................................................... 143 50.04 Judgment debtor to produce documents ..................................... 144 50.05 Consent to instalment order......................................................... 144 50.06 Instalment agreement .................................................................. 144 51.01 Definitions .................................................................................... 144 51.02 Application for charging order ...................................................... 145 51.03 Charging summons ..................................................................... 145 51.04 Evidence in supporting affidavit ................................................... 145 51.05 Service of summons .................................................................... 146 51.06 Effect of service of summons....................................................... 146 51.07 Charging order............................................................................. 146 51.08 Effect and enforcement of charge................................................ 147 51.09 Variation or discharge of order .................................................... 147 52.01 Application for appointment of receiver ....................................... 147 52.02 Determination of application ........................................................ 147 53.01 Application for sequestration order .............................................. 148 53.02 Service of summons .................................................................... 148 53.03 Sequestration order against officer .............................................. 148 53.04 Discharge of order ....................................................................... 149 53A.01 Application for victim's certificate ................................................. 149 53A.02 Certificate for victims of identity crime ......................................... 149 54.01 Repeal ......................................................................................... 150 Local Court (Civil Jurisdiction) Rules 1998 xv ____________________ As in force at 12 July 2017 ____________________ LOCAL COURT (CIVIL JURISDICTION) RULES 1998 Rules under the Local Court Act 2015 Division 1 Citation and Commencement 1.01 Citation These Rules may be cited as the Local Court (Civil Jurisdiction) Rules 1998. 1.02 Commencement These Rules come into operation on the commencement of the Local Court Amendment Act 1997. Division 2 Application of Rules 1.03 Application to civil proceedings These Rules apply in relation to all civil proceedings. 1.09 Definitions In these Rules, unless the contrary intention appears: corporation means a corporation within the meaning of the Corporations Act 2001. counterclaim means a claim in proceedings by a defendant against a plaintiff and includes a set-off. Court venue means a place approved under section 24 of the Act. Local Court (Civil Jurisdiction) Rules 1998 2 discovery means discovery and inspection of documents or discovery by written interrogatories. document exchange means a document exchange facility approved for the time being by the Chief Justice on the recommendation of the Law Society Northern Territory. firm means an unincorporated body of persons (whether consisting of individuals or of corporations or partly of individuals and partly of corporations) associated together to conduct business. judgment includes a decision, determination and order, whether final or otherwise. law practice, see section 4 of the Legal Profession Act 2006. legal practitioner means: (a) an Australian legal practitioner as defined in section 6(a) of the Legal Profession Act 2006; (b) the Secretary within the meaning of section 8 of the Law Officers Act 1978; (c) the Secretary of the Attorney-General's Department of the Commonwealth; (d) the Commonwealth Director of Public Prosecutions; or (e) an AGS lawyer within the meaning of section 55I of the Judiciary Act 1903 of the Commonwealth. officer, in relation to a corporation, includes a director, secretary, receiver, receiver and manager, official manager, administrator, liquidator and trustee administering a compromise or arrangement made between the corporation and another person. order includes a decision, determination, direction and judgment, whether final or otherwise. originating process means the process by which proceedings are commenced, and includes a third party notice and, where a counterclaim is made against a person not previously a party to the proceedings in which the counterclaim is made, the counterclaim. party, in relation to proceedings, means the plaintiff, defendant, applicant, respondent or another party to the proceedings. pleading includes a statement of claim and particulars of a pleading. Local Court (Civil Jurisdiction) Rules 1998 3 possession means possession, custody or power. practice direction means a practice direction issued under section 49 of the Act. proper venue, for proceedings, see rule 5.01. question means a question, issue or matter for determination by the Court, of fact or law or of fact and law, raised at any stage of proceedings by the pleadings or otherwise by: (a) the Court; (b) a party; or (c) a person, not a party, who has a sufficient interest in the registry means a registry of the Court under section 25 of the Act. teleconferencing means the use of telephone or closed circuit television. 1.11 Exercise of power (1) The Court may exercise a power under these Rules of its own motion or on application. (2) In exercising a power under these Rules, the Court: (a) must endeavour to ensure that all questions in proceedings are effectively, completely, promptly and economically determined; and (b) may impose any conditions it considers appropriate. 1.12 Procedure wanting or in doubt (1) Where the manner or form of the procedure: (a) for commencing or taking a step in proceedings; or (b) by which the jurisdiction, power or authority of the Court is to be exercised, Local Court (Civil Jurisdiction) Rules 1998 4 is not prescribed by these Rules or by or under an Act, the Court may adopt and apply with the necessary changes the relevant procedures, rules and forms observed and used in the Supreme (2) An act done in accordance with an order made or direction given in pursuance of subrule (1) is regular and sufficient. (3) An application for directions relating to the commencement of proceedings is not to name a person as defendant. 1.13 Act by corporation Where the Court makes an order that a corporation is to do an act, it may order that the act be done by the appropriate officer of the corporation. 1.14 Power to act by legal practitioner, &c. Unless the contrary intention appears, anything in proceedings that is required or permitted by these Rules, an Act or another law to be done by a party may be done: (a) by the party's legal practitioner; or (b) with the leave of the Court, by some other person. 1.15 Appearance by party Subject to rule 32.02, a party may appear in Court: (b) by a legal practitioner; (c) by an articled clerk or graduate clerk unless the Court orders otherwise; or (d) with the leave of the Court: (i) in the case of a corporation – by an officer or employee of the corporation; (ii) in the case of a firm – by a partner or employee of the firm; (iii) in enforcement proceedings – by a commercial agent; or (iv) by some other person. Local Court (Civil Jurisdiction) Rules 1998 5 2.01 Effect of non-compliance (1) A failure to comply with these Rules is an irregularity and does not nullify proceedings or a step taken, document used or order made in the proceedings. (2) Subject to rules 2.02 and 2.03, where there is a failure to comply with these Rules, the Court may: (a) set aside the proceedings, either wholly or in part; (b) set aside a step taken, document used or order made in the (c) exercise its powers under these Rules to allow amendments and make orders dealing with the proceedings generally. 2.02 Proceedings commenced by wrong process The Court must not strike out or wholly set aside proceedings on the ground that the proceedings were commenced by the wrong process. 2.03 Application to set aside Where a party applies to the Court to set aside proceedings or a step taken, document used or order made in proceedings on the ground of a failure to comply with these Rules, the Court may do so only if the party applies: (a) within a reasonable time after the party becomes aware of the failure; and (b) before the party takes a further step in the proceedings (other than filing a notice of defence) after becoming aware of the failure. 2.04 Dispensing with compliance The Court may dispense with compliance with a requirement of these Rules either before or after the time for compliance arises. Local Court (Civil Jurisdiction) Rules 1998 6 3.01 Calculating time (1) Unless the Court orders otherwise, a time fixed by these Rules or by an order or document in proceedings is to be calculated in accordance with this rule. (2) Where a time of one day or longer is to begin on or be calculated from a day or event, the day or the day on which the event occurs is to be excluded. (3) Where a time of one day or longer is to end on or be calculated to a day or event, the day or the day on which the event occurs is to be included. (4) Where a time of 5 days or less includes a day on which an office of the Court is closed, that day is to be excluded. (5) Where the last day for doing an act at an office of the Court is a day on which the office is closed, the act may be done on the next day the office is open. 3.02 Time for service (1) In calculating a time for service fixed by these Rules or fixed, extended or reduced by an order, a document that is served after 4.00 p.m. or on a day on which the office of the Court is closed is to be taken as having been served on the next day the office is open. (2) Where a document is delivered into the facility of a document exchange in accordance with rule 6.07(1)(d), the day of service is to be taken as the next day on which the document exchange is open for business. 3.03 Extending or reducing time (1) The Court may extend or reduce a time fixed by these Rules or fixed, extended or reduced by an order. (2) Subject to rule 7.06, the Court may extend a time under subrule (1) before or after the time expires whether or not an application for the extension is made before the time expires. 3.04 Fixing time Where a time is not fixed by these Rules or by an order, the Court may fix a time. Local Court (Civil Jurisdiction) Rules 1998 7 3.05 Content and form (1) A document (including a form) to be used in the Court is to be prepared in accordance with subrules (2), (3) and (4) but strict compliance with those subrules is not required and substantial compliance, or the compliance that the circumstances require, is sufficient. (2) A document is to: (a) be of durable paper 297 millimetres by 210 millimetres in the size known as International Paper Size A4 and be capable of receiving writing in ink; and (b) have a left-hand margin of at least 25 millimetres; and (c) be printed or typed and the text is to be clear, sharp, legible and permanent; and (d) be headed "In the Local Court at" followed immediately by the Court venue in which the proceedings have been or are to be commenced and state the identifying number assigned by the Court to the proceedings; and (e) state the title of the proceedings and give a short description of the document; and (f) state the name, address and telephone, facsimile and reference numbers of the law practice that prepared the form or, where the party acts without a law practice, the name, address and telephone and facsimile numbers of the party. (3) A document is not to have a backing sheet. (4) Dates (other than months), amounts and other numbers are to be expressed in figures and not in words. (5) The Court may require a document in proceedings to be prepared in a manner it considers appropriate. 3.06 Registrar may return document (1) A registrar may return a document if the registrar considers that: (a) the form or contents of the document show that, if the document were to be accepted, the proceedings would be an abuse of the process of the Court; or Local Court (Civil Jurisdiction) Rules 1998 8 (b) the document is irregular or is not prepared in accordance with these Rules. (2) A document returned under subrule (1) is to be taken as filed but is to be corrected in accordance with the registrar's directions. (3) A Judge or judicial registrar may direct a registrar to accept a document for filing. 3.07 Prescribed forms (1) In these Rules, a reference to a form by number is a reference to the form so numbered in Schedule 1. (2) If a document required by or under an Act or by these Rules is not prescribed in these Rules or in a practice direction, a registrar may accept a document in the form adapted from the most relevant form in Schedule 1 or the practice directions. (3) An inaccuracy in the completion of a form or the use of a wrong form does not invalidate proceedings, but the Court may make amendments to the form or give directions in respect of the form that the Court considers appropriate. 3.08 General power of amendment (1) To: (a) determine the real question in issue between the parties to a (b) correct a defect or error in proceedings; or (c) avoid a multiplicity of proceedings; the Court may at any stage order that: (d) a document (including a statement of claim) be amended; or (e) a party have leave to amend a document. (2) An amendment under this rule may be made without the leave of the Court if all the parties to proceedings consent to the amendment. 3.09 How document is filed A document is filed by lodging it in the registry at the Court venue where the proceedings are commenced or to which the proceedings are transferred. Local Court (Civil Jurisdiction) Rules 1998 9 3.10 Filing documents by electronic transmission (1) A person may, in writing, request the Chief Judge to authorise him or her to file documents by electronic transmission and the Chief Judge may authorise the person in accordance with Form 3A. (2) The Chief Judge may give a general authorisation by practice direction relating to the filing of documents by electronic transmission. (3) A document filed by electronic transmission is to comply with these Rules. (4) The filing date of a document filed under this rule is the date on which it is received by the Court. (5) The Court must store a document filed by electronic transmission in a computer database or other device so that a hard copy of the document can be reproduced. (6) A person who files a document by electronic transmission must keep a hard copy of the document and must provide the Court with a hard copy if requested by a registrar to do so. 5.01 Proper venue (1) Proceedings are to be commenced in a proper venue of the Court. (2) A proper venue for the proceedings, is the Court venue that is nearest to: (a) the defendant's residence immediately before the proceedings are commenced; or (b) the defendant's residence at the time the claim arose; or (c) the defendant's place of business immediately before the proceedings are commenced; or (d) the defendant's place of business at the time the claim arose; or (e) the defendant's place of employment immediately before the proceeding is commenced; or Local Court (Civil Jurisdiction) Rules 1998 10 (f) the defendant's place of employment at the time the claim arose; or (g) the place where the claim arose. (3) Despite proceedings being commenced in a Court venue that is not a proper venue, the Court may hear and determine the proceedings at the venue at which the proceedings were commenced or at another venue the Court considers appropriate. (4) Proceedings are not void or in any other way affected by reason only that the proceedings were heard and determined at a venue other than a proper venue. (5) In subrule (2), defendant, in relation to proceedings where there are 2 or more defendants, means any one of the defendants. 5.02 Objection to venue (1) Subject to subrule (2), where: (a) a defendant objects that the Court venue from which process is issued is not a proper venue for the proceedings; and (b) the Court is satisfied, having regard to the convenience of the parties, that the proceedings should be transferred; the Court may adjourn the proceedings to another Court venue. (2) The defendant must give notice of the objection to the plaintiff with the notice of defence unless the Court orders otherwise. 5.03 Transfer of proceedings The Court may order the transfer of proceedings to another Court venue. 5.04 Transfer from Supreme Court (1) Where the Supreme Court orders that proceedings be transferred from the Supreme Court to the Local Court, the court file relating to the proceedings is to be transferred. (2) The Local Court must give all parties a notice of transfer in accordance with Form 5A specifying: (a) the date on which the Supreme Court made the order for transfer of the proceedings; and (b) that it has received the file. Division 2 Commencement of proceedings and making application Local Court (Civil Jurisdiction) Rules 1998 11 (3) If the plaintiff has not filed a statement of claim or particulars of a claim in the Supreme Court, the plaintiff must: (a) file in the Local Court a concise statement of the particulars of the plaintiff's claim not later than 14 days after the date of the notice of transfer; and (b) serve a copy of the statement of particulars on each other party not later than 7 days after it is filed. (4) If a registrar considers it is appropriate, the registrar must fix a date, time and place for a conciliation conference and notify the parties in the notice of transfer. (5) Where these Rules prescribe a time for doing an act by reference to the date of filing a notice of defence, the time for doing the act in proceedings transferred under this rule is to be determined by reference to the date on which the order for transfer was made. Division 2 Commencement of proceedings and making application 5.05 Names of parties (1) A person who commences proceedings by filing a statement of claim is the party called the plaintiff and the person against whom the proceedings are commenced is the party called the defendant. (2) A person who commences proceedings by filing an originating application or other application is the party called the applicant and the person against whom the application brought is the party called the respondent. 5.06 How proceedings commenced Except where provided otherwise by or under an Act or these Rules, proceedings are commenced by filing a statement of claim under Division 1 of Part 7 or an originating application under Division 2 of Part 7. 5.07 Interlocutory or other application Unless the Court orders otherwise, an interlocutory or other application in proceedings is to be made under Part 25. Local Court (Civil Jurisdiction) Rules 1998 12 5.08 Urgent case In an urgent case, the Court may: (a) on the application of a person who intends to commence proceedings; and (b) on the person's undertaking to commence the proceedings within the time the Court directs: make any order the Court might make if the applicant had commenced the proceedings and the application were made in the 5.09 Form and content (1) A pleading is to: (a) be expressed in plain English and in non-technical language unless required by the nature of the claim; (b) be divided into paragraphs numbered consecutively and each allegation, so far as practicable, is to be contained in a separate paragraph; (c) contain, in a summary form, a statement of all the material facts on which the party relies but not the evidence by which those facts are to be proved; (d) where a claim or defence of a party arises by or under an Act – identify the specific provision relied on; and (e) state specifically the amount of compensation sought (if any) or the relief or remedy sought. (2) In a pleading, a party may: (a) raise a point of law; and (b) plead a conclusion of law if the material facts supporting the conclusion are pleaded. Local Court (Civil Jurisdiction) Rules 1998 13 5.10 Matter to be pleaded In a pleading subsequent to a statement of claim, a party must plead specifically a fact or matter that: (a) the party alleges makes a claim or defence of the opposite party not maintainable; (b) if not pleaded specifically, might take the opposite party by surprise; or (c) raises a question of fact that does not arise out of a preceding pleading. 5.11 Subsequent pleading A party may plead a fact or matter that has arisen at any time, whether before or after the commencement of the proceedings. 5.12 Inconsistent pleading A party may make inconsistent allegations of fact if the pleading makes it clear that the allegations are pleaded in the alternative. 5.13 Particulars of pleading (1) A pleading is to contain the necessary particulars of a fact or matter pleaded. (2) Without limiting subrule (1), particulars are to be given if they are necessary to enable the opposite party to plead, define the questions for hearing or avoid surprise at the hearing. 5.14 Denial and pleading different facts (1) An allegation of fact in a pleading is to be taken as admitted unless, in the pleading of the opposite party, it is: (a) denied specifically or by necessary implication; or (b) stated to be not admitted. (2) A party who specifically denies an allegation of fact must state what facts he or she relies on as the basis of the denial. (3) A party who intends to prove facts that are different from those pleaded by the opposite party must: (a) specifically deny the facts pleaded or state that the facts pleaded are not admitted; and Local Court (Civil Jurisdiction) Rules 1998 14 (b) plead the facts he or she intends to prove. 5.15 Amendments and orders as to form, filing and service (1) Such amendments are to be made to the pleadings as are necessary for determining the real questions at issue between the (2) At any stage of proceedings, the Court may: (a) allow a party to amend his or her pleadings in a manner and on terms the Court considers appropriate; (b) order that the pleadings be in a particular form; or (c) make orders in respect of the filing and service of pleadings. 5.16 Failure to plead matter or particulars A failure to comply with rule 5.10 or 5.13 does not invalidate a statement of claim. 5.17 Filing pleadings A party who serves a pleading on another party must promptly file a copy of the pleading. 5.18 Discontinuance or withdrawal (1) At any time before the date fixed for the hearing of proceedings, a party may, without the leave of the Court: (a) discontinue a statement of claim, counterclaim or claim by third party notice; or (b) withdraw a notice of defence. (2) A notice of discontinuance or withdrawal in accordance with Form 5B is to be filed and served on each other party. (3) Discontinuance or withdrawal is not effective until the notice is filed under subrule (2). (4) A party who discontinues or withdraws must pay the costs of the other party incurred before the discontinuance or withdrawal unless the Court orders otherwise. Local Court (Civil Jurisdiction) Rules 1998 15 (5) Where a party is liable to pay the costs of another party because of discontinuance or withdrawal and the party, before paying the costs, commences further proceedings for the same or substantially the same cause of action, the Court may stay the proceedings until the costs are paid. 6.01 Documents to be served All documents filed by a party in proceedings are to be served on the other parties. 6.02 When personal service necessary A document to be served in proceedings need not be served personally unless personal service is required by these Rules or by order of the Court. 6.03 How personal service effected (1) Personal service of a document is effected: (a) by leaving a copy of the document with the person to be served; or (b) if the person does not accept the copy – by putting the copy down in the person's presence and telling the person the nature of the document. (2) To effect personal service, it is not necessary to show the original document. 6.04 Personal service on particular party Personal service of a document is effected by serving the document in accordance with rule 6.03: (a) in the case of a company within the meaning of the Corporations Act 2001 or a registered body within the meaning of that Act – on the mayor, chairperson, president, town clerk, manager, treasurer, secretary or similar officer of the corporation; (b) in the case of a statutory corporation – on the Commissioner, chairperson, president, manager, chief executive officer or other officer of the statutory corporation; Local Court (Civil Jurisdiction) Rules 1998 16 (c) in the case of the Territory or the Crown in right of the Territory – on the Solicitor for the Northern Territory; (d) in the case of the Commonwealth or the Crown in right of the Commonwealth – on the Australian Government Solicitor; (e) in the case of an infant: (i) on a parent or guardian of the infant; or (ii) if there is no such person – on the person with whom the infant resides or in whose care the infant is; or (f) in the case of a person under a disability as defined in rule 15.01(b): (i) on the person who, under Part 15, is the litigation guardian in the proceedings to which the person with a disability is a party; or (ii) if there is no litigation guardian – on the person with whom the person under a disability resides or in whose care the person is. 6.05 Personal service on firm or company Personal service is effected on: (a) individuals suing or being sued in the name of a firm, the business name of which is registered under the Business Names Act 2007 – by: (i) leaving a document, addressed to the firm, at the firm's business address with someone who appears to be at least 16 years old and appears to be employed by the firm; or (ii) sending a document by registered post addressed to the firm at the firm's business address; or (b) individuals suing or being sued in the name of a firm, the business name of which is not registered under the Business Names Act 2007 – by serving a document in accordance with rule 6.03 on a person who appears to be a partner in the firm or to have the control or management of the business; or (c) a company within the meaning of the Corporations Act 2001 – by serving a document in accordance with section 109X of that Act; or Local Court (Civil Jurisdiction) Rules 1998 17 (d) a registered body within the meaning of the Corporations Act 2001 – by serving a document in accordance with section 601CX of that Act. 6.06 Address for service (1) The address for service of a plaintiff is: (a) if the plaintiff sues in person – an address within 50 kilometres of the registry at which the originating process is filed, as stated in the originating process; or (b) if the plaintiff sues by a law practice – the business address in Australia of the law practice. (2) The address for service of a defendant is: (a) if the defendant defends in person – an address within 50 kilometres of the registry at which the notice of defence or notice of admission is filed, as stated in the notice of defence or notice of admission; or (b) if the defendant defends by a law practice – the business address in Australia of the law practice. (3) If the business address of the law practice mentioned in subrule (1)(b) or (2)(b) is more than 50 kilometres from the appropriate registry, the law practice must instead provide the address of a law practice within 50 kilometres of the registry. (4) A party, a party's law practice, or an agent of a law practice, may include in the address for service a number for facsimile transmission, or an email address, by which service of documents may be effected. 6.07 How ordinary service effected (1) If personal service of a document is not required, the document may be served: (a) by leaving it at the address for service of the person to be served; (b) by sending it by prepaid post to the person to be served at the person's address for service; (c) where provision is made by or under an Act for service of a document on a corporation – by serving it in accordance with the provision; Local Court (Civil Jurisdiction) Rules 1998 18 (d) where the law practice for a party has the facility for the reception of documents in a document exchange – by delivering it into the facility; or (e) where a party or a party's legal practitioner has the facility for the reception of documents by facsimile transmission or email – by transmitting the document to the facility. (2) For the purpose of subrule (1), if at the time service is to be effected the person to be served has not stated an address for service in accordance with rule 6.06, the address for service is: (a) in the case of an individual – the person's usual or last known place of residence or business; (b) in the case of individuals suing or being sued in the name of a firm – the principal or last known place of business of the firm; or (c) in the case of a corporation – the registered office or principal place of business of the corporation. 6.08 Identity of person served For the purposes of proof of service, evidence of a statement by a person: (a) relating to the person's identity; or (b) that the person holds a particular office, is evidence of that fact. 6.09 Acceptance of service by legal practitioner Where, in proceedings: (a) a document is to be served on a person; and (b) a legal practitioner makes a note on a copy of the document that the legal practitioner accepts service of the document on behalf of the person to be served, unless the legal practitioner is shown not to have had authority to accept service, the document is to be taken as having been served on the person on the day on which the legal practitioner made the note or on such other day as is proved. Local Court (Civil Jurisdiction) Rules 1998 19 6.10 Substituted service (1) Where it is impracticable to serve a document in a manner required by these Rules, the Court may order that, instead of service, steps specified by the Court be taken to bring the document to the notice of the person to be served. (2) Where the Court makes an order under subrule (1), it may order that the document is to be taken as served when a specific event happens or a specific time expires. (3) The Court may make an order under subrule (1) despite the person to be served being out of the Territory when the proceedings are commenced or the order is made. (4) An application for an order under subrule (1) is to be supported by an affidavit stating: (a) that attempts at service have been unsuccessful, or the reason personal service is impracticable; (b) the manner of service proposed; and (c) how the proposed manner of service will bring the document to the notice of the person to be served. (5) In deciding whether it is impracticable to serve a document, the Court must consider: (a) whether the applicant has taken reasonable steps to discover the whereabouts of the person to be served and to serve the person with the document; (b) the means of the applicant, the likely cost to the applicant and the nature of the document to be served; (c) whether by advertising or some other method the existence of the document is likely to come to the knowledge of the person to be served; and (d) any other relevant matters. 6.11 Confirmation of informal service Where a document has not been served in a manner required by or under these Rules or a law in force in the Territory but steps have been taken to bring, or which may tend to bring, the document to the notice of the person to be served, the Court may order that the document be taken as served on the person on a date specified in Local Court (Civil Jurisdiction) Rules 1998 20 6.12 Service on agent (1) Where a contract is entered into in the Territory: (a) by or through an agent residing or carrying on business in the Territory; and (b) on behalf of a principal residing or carrying on business out of the Territory, the Court may give leave, before the determination of the agent's authority or the agent's business relations with the principal, for originating process relating to or arising out of the contract to be served on the agent. (2) Where an order giving leave is made under subrule (1): (a) the order is to specify the time within which the defendant must file a notice of defence; and (b) the plaintiff must, without delay, send a copy of the order and the originating process by prepaid post to the defendant at the defendant's usual or last known place of residence or business out of the Territory. 6.13 Service under agreement Where, before or after the commencement of proceedings, the parties agree that documents may be served on a party or on a person on behalf of a party in a manner or at a place specified in the agreement, service in accordance with the agreement is proper 6.14 Recovery of vacant land (1) In a proceeding for the recovery of land, the Court may: (a) if it is satisfied that no person appears to be in possession of the land and that service of originating process cannot be otherwise effected on a defendant without undue delay or expense – order that service on the defendant may be effected by affixing a copy of the originating process to a conspicuous part of the land; or (b) if it is satisfied that no person appears to be in possession of the land and that service of originating process could not otherwise have been effected on a defendant without undue delay or expense – order that service already effected by affixing a copy of the originating process to a conspicuous part of the land is to be taken as sufficient service on the Local Court (Civil Jurisdiction) Rules 1998 21 (2) This rule has effect despite the defendant being out of the Territory when a copy of the originating process is affixed to the land. 6.15 No service Christmas Day or Good Friday A person is not entitled to serve a document on Christmas Day or Good Friday. 6.16 Affidavit or declaration of service (1) In the case of personal service of a document, an affidavit or declaration of its service is to have attached or clearly describe the document served and state: (a) by whom the document was served; (b) the time, day of the week and date when the document was served; (c) the place of service; and (d) the manner of identifying the person served. (2) In the case of ordinary service of a document, an affidavit or declaration of its service is to state, with relevant dates, the facts constituting service. (3) A document purporting to be an affidavit or declaration of service is to be taken as evidence of proper service of the document unless the contrary is proved. 7.01 Filing statement of claim (1) A plaintiff commences proceedings by filing a statement of claim, together with a list of documents as specified in rule 16.02, in the registry at a proper venue for the proceedings. (2) When the office of the Court is closed, a statement of claim is to be taken to have been filed if: (a) the plaintiff produces the statement of claim to a Judge or registrar; Local Court (Civil Jurisdiction) Rules 1998 22 (b) the plaintiff gives to the magistrate or Registrar: (i) an undertaking that the statement of claim will be filed in the office on the day the office is next open; and (ii) any other undertaking the magistrate or Registrar requires; and (c) the magistrate or Registrar initials the statement of claim. 7.02 Form and content (1) A statement of claim is to be: (a) subject to paragraph (b), in accordance with Form 7A; or (b) in accordance with Form 7B if the claim arises from a motor vehicle collision. (2) A statement of claim is to: (a) state the full name of the plaintiff and an address for service of documents on the plaintiff; and (b) if the plaintiff sues in a representative capacity – state the capacity in which the plaintiff sues; and (c) state the name and address of the defendant; and (d) if the plaintiff sues by a law practice: (e) contain: (i) a concise statement of the nature of the plaintiff's claim; and (ii) particulars of the claim; and (iii) a statement of the relief or remedy sought; and Local Court (Civil Jurisdiction) Rules 1998 23 (iv) in the case of a claim for a liquidated amount – a precise statement of the amount and the basis on which it is calculated; and (v) in the case of a claim for an unliquidated amount – the basis on which it is estimated; and (f) if the claim arises from a motor vehicle collision – have attached to it at least one itemised quotation of the damages or loss assessor's report. (3) A statement of claim may, in addition to stating a business address for a law practice, also state the postal address of the law practice. (4) Where a plaintiff claims damages for bodily injury, in addition to the matters specified in subrule (2), the statement of claim is to contain: (a) particulars, with dates and amounts, of all earnings lost in consequence of the injury; (b) particulars of loss of earning capacity (if any) resulting from the injury; (c) the date of the plaintiff's birth; and (d) the name and address of each of the plaintiff's employers during the period commencing on the day 12 months before the party sustained the injury, the time of commencement and duration of each employment and the total net amount after deduction of income tax that was earned in each employment. 7.03 Costs to be specified (1) If the plaintiff claims a debt or liquidated demand only, the statement of claim is to contain the following statement: If you pay the amount of $ and costs of $ to the plaintiff or the plaintiff's legal practitioner without filing and serving a notice of defence you may avoid further costs. (2) The amount of costs specified in the statement is to be the amount of costs applicable under Part 38 to the amount claimed plus the fee for the filing and service of the statement of claim. 7.04 Claim not to be divided (1) A plaintiff must not divide a claim or cause of action to make 2 or more statements of claim. Local Court (Civil Jurisdiction) Rules 1998 24 (2) A plaintiff who has a claim that exceeds the jurisdiction of the Court: (a) may abandon the excess by including a statement to that effect in the particulars of the claim; and (b) on proof of the claim the plaintiff is entitled to judgment for the claim less the amount abandoned. 7.05 Service A plaintiff must serve a statement of claim with a notice of defence in accordance with Form 8A, and a copy of the list of documents as specified in rule 16.02, personally on each defendant unless the 7.06 Time for service (1) A statement of claim is valid for service for 6 months after the date on which it is filed. (2) If a statement of claim has not been served on a defendant, the Court may order that the validity be extended for a period of not more than 6 months from the day of the order. (3) An application for an extension under subrule (2) is to be made on or before the day on which a statement of claim ceases to be valid and no order for an extension is to be made after a statement of claim ceases to be valid. (4) Subject to subrules (2) and (3), the Court may make further orders extending the validity of a statement of claim. 7.07 Commencing proceedings by originating application (1) If a person commences proceedings in respect of which: (a) it is inappropriate to file a statement of claim; and (b) no commencement procedure is otherwise prescribed by these Rules or by or under an Act, the person must commence the proceedings by filing an originating application in accordance with this Division, together with a list of documents as specified in rule 16.02. (2) An originating application is to be filed in the registry at a proper venue for the proceedings. Local Court (Civil Jurisdiction) Rules 1998 25 (3) When the office of the Court is closed, an originating application is to be taken to have been filed if: (a) the applicant produces the originating application to a Judge or registrar; (b) the applicant gives to the Judge or registrar: (i) an undertaking that the originating application will be filed in the office on the day the office is next open; and (ii) any other undertaking the Judge or registrar requires; and (c) the Judge or registrar initials the originating application. 7.08 Form of originating application between parties (1) Subject to rules 7.15 and 7.16, an originating application by which an applicant commences proceedings against a respondent is to be in accordance with Form 7C and is to: (a) state the full name of the applicant and an address for service of documents on the applicant; and (b) if the applicant acts in a representative capacity – state the capacity in which the applicant acts; and (c) state the name and address of the respondent; and (d) if the applicant is represented by a law practice: (e) contain a brief statement of the order or relief applied for; and (f) if the application arises by or under an Act – identify the specific provision relied on; and (g) set out sufficient particulars to support the application; and (h) be accompanied by a supporting affidavit if required. Local Court (Civil Jurisdiction) Rules 1998 26 (2) An originating application between parties may, in addition to stating a business address for a law practice, also state the postal address of the law practice. 7.09 Service of originating application between parties Unless the Court orders otherwise, the applicant must serve personally on each respondent: (a) an originating application between parties; and (ab) a copy of a list of documents as specified in rule 16.02; and (b) the supporting affidavit (if any); and (c) a notice of intention to appear, in accordance with Form 7D. 7.10 Time for service of originating application between parties (1) An originating application between parties is valid for service for 12 months after the date on which it is filed. (2) If an originating application between parties has not been served on the respondent, the Court may order that the validity be extended for a period of not more than 12 months from the day of the order. (3) An application for an extension under subrule (2) is to be made on or before the day on which an originating application between parties ceases to be valid and no order for an extension is to be made after it ceases to be valid. (4) Subject to subrules (2) and (3), the Court may make further orders extending the validity of an originating application between parties. 7.11 Filing and form of notice of intention to appear (1) A respondent served with an originating application between parties must, not later than 28 days after being served, file and serve on the applicant a notice of intention to appear. (2) A notice of intention to appear is to be in accordance with Form 7D and is to: (a) state the full name of the respondent and an address for service of documents on the respondent; and (b) if the respondent acts in a representative capacity – state the capacity in which the respondent acts; and Local Court (Civil Jurisdiction) Rules 1998 27 (c) if the respondent is represented by a law practice: (d) contain a statement of the respondent's intention to appear before the Court in the proceedings. (3) A notice of intention to appear may, in addition to stating a business address for a law practice, also state the postal address of the law practice. (4) If a respondent who is served with an originating application between parties does not comply with subrule (1), the applicant may apply for an order for default judgment under Part 11. 7.12 Conciliation conference (1) When a notice of intention to appear is filed, a Registrar must fix a date, time and place for a conciliation conference and must give all parties notice of the conference in accordance with Form 32A. (2) At a conciliation conference in respect of an originating application between parties: (a) the parties must attend in accordance with rule 32.02; (b) the Court may conduct the conciliation conference as it thinks fit; and (c) the Court may make the orders it considers appropriate. 7.13 Originating application if no respondent (1) An originating application by which an applicant commences proceedings to which there is no other party is to be in accordance with Form 7E and is to: (a) state the full name of the applicant and an address for service of documents on the applicant; and Local Court (Civil Jurisdiction) Rules 1998 28 (b) if the applicant is represented by a law practice: (c) contain a brief statement of the order or relief applied for; and (d) if the application arises by or under an Act – identify the specific provision relied on; and (e) set out sufficient particulars to support the application; and (f) be accompanied by a supporting affidavit if required. (2) An originating application may, in addition to stating a business address for a law practice, also state the postal address of the law practice. (3) An applicant must file 2 copies of an originating application and a registrar must fix a date, time and place for a hearing and mark 7.14 Hearing of originating application in proceedings with no respondent (1) The Court may conduct the hearing in respect of an originating application referred to in rule 7.13 as the Court thinks fit and may make the orders it considers appropriate. (2) At the hearing, the Court may order that a copy of the originating application and any other document relevant to the application be served on a person who appears to the Court to have a sufficient interest in the determination of the application. 7.15 Originating application between parties when early hearing required (1) This rule applies if an Act, subordinate legislation or practice direction requires the Court, on the filing of an originating application between parties, to fix a date for the hearing of the Local Court (Civil Jurisdiction) Rules 1998 29 (2) The originating application: (a) must be in accordance with Form 7F; and (b) must contain all the information referred to in rule 7.08(1)(a) to (g); and (c) may contain the information referred to in rule 7.08(2); and (d) may be accompanied by a supporting affidavit if required. (3) A registrar must fix a date, time and place for the hearing and mark (4) Unless the Court orders otherwise, as soon as practicable after filing the originating application and not later than 2 days before the date fixed for the hearing, the applicant must serve personally on each respondent the following documents: (a) the originating application; (b) any supporting affidavit; (c) a notice of intention to appear, in accordance with Form 7D. (5) As soon as practicable after being served with the originating application and before the hearing, each respondent: (a) must file and serve on the applicant a notice of intention to appear, in accordance with Form 7D, that must contain the information referred to in rule 7.11(2) and may contain the information referred to in rule 7.11(3); and (b) may file and serve on the applicant an affidavit in response to the facts, matters and circumstances specified in the originating application and any supporting affidavit. 7.16 Application for personal violence restraining order For section 12 of the Personal Violence Restraining Orders Act 2016, an application for a personal violence restraining order must be in accordance with Form 7G. Local Court (Civil Jurisdiction) Rules 1998 30 8.01 Filing and service A defendant who intends to defend a claim must, not later than 28 days after being served with the statement of claim, file a notice of defence, together with a list of documents as specified in rule 16.02, and serve a copy on the plaintiff at the plaintiff's address for service. 8.02 Form and content (1) A notice of defence is to: (a) be in accordance with Form 8A; and (b) state the full name of the defendant and an address for service of documents on the defendant; and (c) if the defendant defends in a representative capacity – state the capacity in which the defendant defends; and (d) if the defendant acts by a law practice: (e) contain a statement of the defendant's intention to defend the claim; and (f) state the defence or defences relied on, including statutory defences; and (g) state particulars of each defence, including a summary of the material facts on which the defendant relies. (2) A notice of defence may, in addition to stating a business address for a law practice, also state the postal address of the law practice. (3) A notice of defence is not to be in the form of general denials and non-admissions. Local Court (Civil Jurisdiction) Rules 1998 31 8.03 Specific defences (1) If the defendant intends to rely on: (a) the defence of illegality or fraud – the defendant must give particulars of the illegality or fraud; (b) the defence of minority – the defendant must state the date and place of the defendant's birth; (c) the defence of limitation by statute – the defendant must state the date on which the defendant claims the limitation period commenced; (d) the defence of discharge under a law relating to bankruptcy or insolvency – the defendant must state the date of the order sequestrating the defendant's estate and the court by which the order was made and, if necessary, the date of the certificate of an order for the bankrupt's or insolvent's discharge; or (e) the defence of tender – the defendant must state the date of the tender and, where the amount tendered is less than the amount claimed, specify the item or items in the plaintiff's particulars of demand in respect of which tender was made. (2) The defence of tender is not available unless the defendant pays the amount alleged to have been tendered into the Court not later than 5 days before the date fixed for the hearing of the 8.04 Money claim as defence Where a defendant has a claim against a plaintiff for the recovery of a debt or damages, the defendant may: (a) rely on that claim as a defence to the whole or part of a claim by the plaintiff for the recovery of a debt or damages; and (b) include that claim in the defence and set-off against the plaintiff's claim, whether or not the defendant also counterclaims for the debt or the damages. 8.05 Conditional defence (1) Where a defendant claims that the Court does not have jurisdiction to hear the proceedings, the defendant may apply to have the proceedings stayed or the statement of claim set aside. Local Court (Civil Jurisdiction) Rules 1998 32 (2) An application under subrule (1) is made by filing a conditional notice of defence in accordance with Form 8B. (3) A conditional notice of defence has effect as an unconditional notice of defence unless the Court orders otherwise. Part 9 Counterclaim 9.01 Defendant may counterclaim (1) A defendant who has a claim against a plaintiff may counterclaim in the proceedings. (2) Subject to this Part, these Rules apply to a counterclaim as if the plaintiff were the defendant and the defendant were the plaintiff. 9.02 Form of counterclaim (1) A defendant who counterclaims must do so in the notice of defence (2) A counterclaim is to contain: (a) a concise statement of the nature of the defendant's claim; (b) particulars of the defendant's claim; and (c) a statement of the amount, relief or remedy sought. 9.03 Hearing of counterclaim A counterclaim is to be heard at the hearing of the proceedings 9.04 Counterclaim after judgment for plaintiff, &c. A defendant may continue a counterclaim despite: (a) judgment being given for the plaintiff in the proceedings; or (b) the stay, discontinuance or dismissal of the plaintiff's claim. 10.01 Notice requiring particulars (1) A defendant may serve a notice on a plaintiff stating that the defendant requires further and better particulars of the plaintiff's claim. Local Court (Civil Jurisdiction) Rules 1998 33 (2) A plaintiff may serve a notice on a defendant that the plaintiff requires further and better particulars of the defendant's defence. (3) A notice requiring further and better particulars is to specify the facts or matters alleged about which particulars are sought. 10.02 Time for serving and filing notice A notice requiring further and better particulars is to be served and filed not later than 14 days before the date fixed for the conciliation conference under rule 32.01(1) unless the Court orders otherwise. 10.03 Particulars to be served and filed A party must serve and file the further and better particulars not later than 7 days after receiving the notice requiring them. 10.04 Failure to give particulars (1) If a party fails to comply with a notice requiring further and better particulars, the party who served the notice may apply for an order: (a) if the party in default is a plaintiff or other party claiming relief – striking out the claim; or (b) if the party in default is a defendant or other party against whom relief is claimed – permitting the party applying for the order to proceed as if a notice of defence had not been filed. (2) A party must file and serve an application under subrule (1) not later than 28 days before the date fixed for the hearing of the 10.05 Particulars in counterclaim This Part applies with the necessary changes to a counterclaim as if the plaintiff in the proceedings were a defendant. 11.01 When party may apply for order A party may apply for an order for default judgment in accordance with Form 11A: (a) where a defendant fails to file a notice of defence within 28 days after being served with the statement of claim; Local Court (Civil Jurisdiction) Rules 1998 34 (aa) where a respondent fails, within 28 days of being served with an originating application between parties, to file a notice of intention to appear; (b) where the Court makes an order under rule 10.04(1)(b), 16.08(1)(c), 17.07(2) or 32.10(e) permitting the plaintiff or other party to proceed as if a notice of defence had not been filed; or (c) not later than 28 days after the Court orders a notice of defence be struck out under rule 28.02. 11.02 Affidavit or declaration required An application under rule 11.01 is to be filed together with: (a) in the case where a claim is for a debt or liquidated amount – an affidavit or declaration of service of the statement of claim if not previously filed; or (aa) in the case of an originating application between parties: (i) an affidavit or declaration of service if not previously filed; and (ii) an affidavit verifying the particulars set out in the originating application; or (b) in any other case: (i) an affidavit or declaration of service of the statement of claim if not previously filed; and (ii) an affidavit stating the extent to which the claim is unsatisfied, made not more than 7 days before the application is filed; and (iii) an affidavit verifying the claim and the nature and extent of the injury, loss or damage suffered by the plaintiff, made not more than 21 days before the application is filed. 11.03 Registrar may make order or refer to Judge (1) If a registrar is satisfied that an order for default judgment should be made, the registrar may: (a) make the order and, where applicable, an order for the assessment of damages or value of goods; and Local Court (Civil Jurisdiction) Rules 1998 35 (b) enter judgment to the extent of the order made. (2) If a registrar is not satisfied that an order for default judgment should be made, the registrar may: (a) direct that a further affidavit or declaration be filed; (b) give directions relating to the application; (c) refer the matter to a Judge; or (d) refuse to make the order. (3) Where a registrar refers an application to a Judge, the Judge may: (a) make the order sought; (b) order that: (i) judgment as to liability only be entered; and (ii) damages or the value of goods be assessed; (c) direct that a further affidavit or declaration be filed; (d) give directions relating to the application; or (e) refuse to make the order. (4) Where a Judge directs that a further affidavit or declaration be filed, a registrar may make an order for default judgment on the filing of that document. 11.04 Party may apply for re-hearing A party against whom an order for default judgment is made may apply in accordance with Part 36 for the order to be set aside and the proceedings to be re-heard. 12.01 Joinder of claims (1) Subject to rule 12.04, a plaintiff may join any number of claims against a defendant whether: (a) the plaintiff makes the claims in the same or different capacities; or Local Court (Civil Jurisdiction) Rules 1998 36 (b) the claims are made against the defendant in the same or different capacities. (2) The Court may order that claims joined in one statement of claim are to be heard separately if the Court considers separate hearings to be appropriate and convenient. (3) Where claims are joined in one statement of claim, the total amount claimed is not to exceed the jurisdiction of the Court. 12.02 Joinder of parties (1) Subject to rule 12.04, a party may join 2 or more persons as plaintiffs or defendants in proceedings where, if separate proceedings were brought by or against each of them, a common question of law or fact would arise in all the proceedings. (2) A party may join persons as plaintiffs or defendants whether or not: (a) all rights to relief are in respect of or arise out of the same transaction or series of transactions; or (b) each person is entitled to damages and the damages will need to be assessed individually. 12.03 Plaintiff suing for 2 or more persons (1) Two or more persons may commence proceedings by a representative where: (a) they have a right to the same or substantially the same relief against the same person; and (b) if separate proceedings were brought by each of them against that person in respect of that right, a common question of law or fact would arise in all the proceedings. (2) Representative proceedings may be brought whether or not: (a) all rights to relief are in respect of or arise out of the same transaction or series of transactions; or (b) each person is entitled to damages and the damages will need to be assessed individually. 12.04 Orders where joinder prejudicial, &c. Despite rules 12.01 and 12.02, where a joinder of claims or parties may: (a) embarrass or delay the hearing of proceedings; Local Court (Civil Jurisdiction) Rules 1998 37 (b) cause prejudice to a party; or (c) be otherwise inconvenient; the Court may order that: (d) there be separate hearings; or (e) a claim be excluded; or (f) a party be compensated by an award of costs or otherwise for being required to attend a part of a hearing in which the party has no interest; or (g) a party be relieved from attending a part of a hearing in which the party has no interest; or (h) a person joined as a party cease to be a party, with or without the condition that the person is to be bound by the determination of the questions in the proceedings. 12.05 Removal, addition or substitution of party At any stage of proceedings, the Court may order that: (a) a person who is not a proper or necessary party (whether or not the person was a party originally) cease to be a party; (b) any of the following persons be added as a party: (i) a person who ought to have been joined as a party; (ii) a person whose presence before the Court is necessary to ensure that all questions in the proceedings are properly and completely determined; (iii) a person in respect of whom there may exist a question arising out of, relating to or connected with a claim in the proceedings and it is just and convenient to determine the question between that person and a party as well as between the parties to the proceedings; or (c) a person to whom paragraph (b) refers be substituted for a person to whom paragraph (a) refers. 12.06 Procedure for addition of party (1) A person must consent in writing, or in the manner the Court orders, to his or her joinder as a plaintiff. Local Court (Civil Jurisdiction) Rules 1998 38 (2) Unless the Court orders otherwise, a person who applies for an order that he or she be joined as a party must support the application with an affidavit stating: (a) the person's interest in the questions in the proceedings; or (b) the question to be determined between the person and a party to the proceedings. (3) Without limiting rule 12.05(b), where a person who is not a party to proceedings for the recovery of land is in possession personally or by a tenant of the whole or a part of the land, the Court may order that he or she be joined as a defendant. 12.07 Consolidation or hearing together Where 2 or more proceedings are before the Court and: (a) a common question of law or fact arises in both or all of them; (b) the rights to relief claimed in the proceedings are in respect of or arise out of the same transaction or series of transactions; or (c) for any other reason it is desirable to make an order under this rule, the Court may order that: (d) the proceedings be consolidated; (e) the proceedings be heard at the same time or one immediately after the other; or (f) any of the proceedings be stayed until after the determination of any other of them. 13.01 When defendant may join third party Where a defendant claims against a person not already a party to the proceedings (in this Part called a third party): (a) a contribution or indemnity; (b) a relief or remedy relating to or connected with the original subject matter of the proceedings and substantially the same as some relief or remedy claimed by the plaintiff; or Local Court (Civil Jurisdiction) Rules 1998 39 (c) that a question relating to or connected with the original subject matter of the proceedings should be determined not only between the plaintiff and the defendant but also between either or both of them and the third party, the defendant may join the third party as a party to the proceedings. 13.02 Third party notice (1) A defendant joining a third party must make a claim against the third party by filing and serving a third party notice in accordance with Form 13A. (2) A third party notice is to: (a) contain a statement of claim; (b) have attached a copy of all pleadings in existence at the time the notice is served; and (c) be served personally on the third party not later than 28 days after the day on which the defendant serves a notice of defence on the plaintiff under Part 8, unless the Court orders (3) A third party becomes a party to proceedings when served with a third party notice. 13.03 Claim by defendant against another defendant (1) A defendant who has a claim against another defendant of a kind referred to in rule 13.01 may make the claim by filing and serving a notice, containing a statement of claim, in accordance with Form 13B. (2) A defendant who claims against another defendant contribution under section 12 of the Law Reform (Miscellaneous Provisions) Act 1956 must file and serve a notice in accordance with Form 13C. (3) A notice referred to in subrule (1) or (2) is to be served personally on the other defendant not later than 28 days after the day on which the claiming defendant is served under Part 8 with a copy of the other defendant's notice of defence, unless the Court orders (4) A notice filed under this rule need not have a copy of all pleadings attached. Local Court (Civil Jurisdiction) Rules 1998 40 (5) This Part applies with the necessary changes to a claim made under this rule as if the defendant had filed and served a third party notice and the defendant joined is a third party under rule 13.01. 13.04 Subsequent parties With the leave of the Court, a third or subsequent party may make a claim against another person (whether that person is a party to the proceedings or not) by filing and serving the appropriate notice under this Part. 13.05 Plaintiff may join third party (1) Where a defendant serves a third party notice on a person, the plaintiff may join the person as a defendant. (2) If a plaintiff joins a third party as a defendant, the plaintiff must file and serve on the third party and the defendant a notice that the third party is joined. (3) A third party becomes a defendant to the proceedings on being served with the notice under subrule (2). 13.06 Defence of third party Unless the Court orders otherwise, not later than 28 days after being served with a third party notice, the third party must file and serve on the other parties a notice of defence to the statement of claim in the third party notice. 13.07 Separate disposal or stay of third party proceedings Where a third party notice is filed and served, the Court may at any time before the plaintiff's claim is determined: (a) order that the defendant's claim against the third party or part of that claim, or the facts on which the defendant's claim against the third party or part of that claim is based, be dealt with separately; or (b) stay proceedings on the defendant's claim against the third 13.08 Hearing Unless the Court orders otherwise, a third party: (a) may attend and take part at the hearing of proceedings, including cross-examining the plaintiff's witnesses; and Local Court (Civil Jurisdiction) Rules 1998 41 (b) is bound by the result of the hearing. 13.09 Directions Where a third party files a notice of defence the Court may, either before or after judgment is entered or given for the plaintiff against the defendant, give the directions necessary to ensure that all questions in the proceedings are effectually and completely determined. 13.10 Counterclaim This Part applies with the necessary changes in relation to a counterclaim as if the defendant were the plaintiff and the plaintiff were the defendant. 14.01 Definitions applicant includes a bailiff and a stakeholder. bailiff means the person to whom a warrant of execution is directed. claimant means a person making a claim in respect of property in dispute. execution creditor means the person for whom a bailiff is executing a warrant. property means a debt or other personal property. property in dispute means property in respect of which there are competing claims. stakeholder means an applicant referred in rule 14.03(1). warrant means a warrant of execution under Chapter 2. Local Court (Civil Jurisdiction) Rules 1998 42 14.02 Purpose of Part The purpose of this Part is to enable: (a) a person who is being sued, or expects to be sued, in respect of property in dispute in which the person has no interest; or (b) a bailiff who has taken or intends to take property in dispute in execution of a warrant, to apply to the Court for a determination of the claimants' rights in relation to that property. Division 2 Stakeholder's interpleader 14.03 Stakeholder's application for interpleader order (1) Where a person (not being a bailiff): (a) is under a liability in respect of property; (b) is being sued, or expects to be sued, in a court in respect of the property by 2 or more persons with competing claims in relation to the property; and (c) claims no interest in the property except for charges or costs, the person may apply for an interpleader order under this Part. (2) Where there are proceedingsg pending in which the stakeholder is being sued in respect of the property in dispute, the application for an interpleader order is to be made in the proceedings. (3) The stakeholder must serve the application for an interpleader order personally on each claimant. 14.04 Notice of claim to bailiff (1) Where a bailiff has taken or intends to take property in execution of a warrant, a person making a claim in respect of the property or the proceeds of sale of the property may give the bailiff written notice of the claim. (2) A notice of claim under subrule (1) is to: (a) be given as soon as practicable after the claimant becomes aware that the bailiff has taken or intends to take the property; Local Court (Civil Jurisdiction) Rules 1998 43 (b) state the name and address for service of the claimant; (c) identify each item of property that is, or the proceeds of sale that are, claimed; and (d) state the grounds of the claim. 14.05 Bailiff's application to stay or restrain proceedings (1) Where a claimant who is entitled to give notice under rule 14.04 does not do so within the time referred to in rule 14.04(2)(a), the bailiff may apply for an order to: (a) restrain the claimant from commencing proceedings in a court; or (b) stay or restrain the continuance of proceedings in a court by the claimant, against the bailiff in respect of anything done by the bailiff in execution of the warrant after the time when the person might reasonably have given notice. (2) An application under this rule is to be: (a) made in the proceedings in which the warrant was issued; and (b) served personally on the claimant. 14.06 Notice to execution creditor (1) Not later than 7 days after receiving a notice of claim under rule 14.04, the bailiff must serve on the execution creditor: (a) a copy of the notice; and (b) a notice in accordance with Form 14A. (2) Not later than 7 days after being served with the notices under subrule (1), the execution creditor may serve on the bailiff a written notice stating that the execution creditor: (a) admits the claim; (b) disputes the claim; or (c) admits part and disputes part of the claim as specified in the Local Court (Civil Jurisdiction) Rules 1998 44 14.07 Consequences of admission of claim (1) Where an execution creditor admits a claim to property in dispute: (a) the execution creditor is not liable for any fees in respect of that property claimed by the bailiff under the warrant after the notice admitting the claim is served; (b) the bailiff must: (i) withdraw from possession of that property; or (ii) if the property has been sold – pay the proceeds of the sale into the Court and notify the execution creditor and the claimant in writing of the payment into the Court; and (c) the bailiff may apply for an order to: (i) restrain the claimant from commencing proceedings in a court; or (ii) stay or restrain the continuance of proceedings in a court by the claimant; against the bailiff in respect of anything done by the bailiff in execution of the warrant. (2) As soon as practicable after receipt of the proceeds of sale under subrule (1)(b)(ii), a registrar must pay out the proceeds to the claimant. 14.08 Bailiff's application for interpleader order (1) If an execution creditor: (a) does not serve a notice admitting the whole of a claim within the time specified in rule 14.06(2)(a); or (b) serves a notice under rule 14.06(2)(b) or (c) disputing the claim or part of the claim, the bailiff may, if the claimant does not withdraw the claim, apply to the Court for an interpleader order. (2) An application under subrule (1) is to be: (a) made in the proceedings in which the warrant was issued; and (b) served on the execution creditor and each claimant. Local Court (Civil Jurisdiction) Rules 1998 45 14.09 Interpleader orders On application for an interpleader order, the Court may: (a) where proceedings in which the applicant is being sued in respect of any of the property in dispute is pending in the Court: (i) order that a claimant be added as a defendant in the proceedings in addition to or in substitution for the applicant; or (ii) order that the proceedings be stayed or dismissed; (b) order that a question between the claimants be stated and heard and direct which of the claimants is to be plaintiff and which defendant; (c) where proceedings in which the applicant is sued in respect of any of the property in dispute is pending in another court – restrain the continuance of the proceedings; (d) order the applicant to transfer or dispose of any of the property in dispute or pay the proceeds from its sale into the Court or elsewhere; (e) where a claimant claims to be entitled by way of security for debt to any of the property in dispute – make orders for the sale of any of the property and for the application of the proceeds of sale; (f) summarily determine a question of fact or law arising on the application; or (g) make the orders or give the judgment it considers appropriate. 14.10 Neutrality of applicant (1) Where a stakeholder applies for an interpleader order, the Court may dismiss the application or give judgment against the stakeholder if it is not satisfied that the stakeholder: (a) claims no interest in the property in dispute except for charges or costs; and (b) is not colluding with a claimant. Local Court (Civil Jurisdiction) Rules 1998 46 (2) Where a bailiff applies for an interpleader order, the Court may dismiss the application if it is not satisfied that the bailiff: (a) claims no interest in the property in dispute except for charges or costs; and (b) is not colluding with a claimant. (3) Nothing in this rule affects the power of the Court generally to dismiss an application or give judgment against the stakeholder. 14.11 Order in several proceedings (1) If an applicant applies for an interpleader order and several of the proceedings are pending in the Court in respect of any of the property in dispute, the Court may make the order it considers necessary in relation to each proceeding. (2) An order made under subrule (1) is to identify the proceedings to which it relates and is to be placed on the Court file of each of the proceedings identified in the order. (3) A registrar must forward a copy of the order to all parties to the proceedings to which the order relates. 14.12 Hearing of interpleader question On the hearing of an application for an interpleader order, the Court may finally determine all questions arising out of the application. 14.13 Default by claimant (1) Where a claimant: (a) has been given notice of the hearing of an application for an interpleader order and fails to attend the hearing; or (b) fails to comply with an order made at the hearing of the application, the Court may order that the claimant and all persons claiming under the claimant be barred from prosecuting the claimant's claim against the applicant and all persons claiming under the applicant. (2) An order under subrule (1) does not affect the rights of the claimants between themselves. Local Court (Civil Jurisdiction) Rules 1998 47 14.14 Bailiff's costs when decision against claimant Where a bailiff applies for an interpleader order and the claim to the property in dispute is decided against the claimant, the costs of the bailiff in respect of the application are to be retained by the bailiff out of the proceeds of sale on execution of the warrant unless: (a) the execution creditor requests the Court to order that the costs be paid by the claimant, and the Court so orders; or (b) the Court orders otherwise. 15.01 Definition In this Part, person under a disability means: (a) an infant; or (b) a person who is incapable because of age, injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to proceedings. 15.02 Litigation guardian (1) Except where provided otherwise by or under an Act, a person under a disability may only commence or defend proceedings by his or her litigation guardian. (2) A statement of claim or notice of defence filed by a litigation guardian is to state that the proceedings are commenced or defended by the litigation guardian on behalf of the person under a disability. (3) Except where these Rules provide otherwise, anything that is required or permitted by these Rules to be done by a party who is a person under a disability is required or permitted to be done by the party's litigation guardian. (4) Where a party has a litigation guardian in proceedings, no other person may act as the litigation guardian of that party unless the Local Court (Civil Jurisdiction) Rules 1998 48 15.03 Person who may be litigation guardian (1) A person may be the litigation guardian of a person under a disability if he or she: (a) is not a person under a disability; and (b) has no interest in the proceedings adverse to that of the person under a disability. (2) Where a person is authorised by a law in force in the Territory to conduct legal proceedings in the name of or on behalf of a person under a disability, he or she is entitled to be the litigation guardian of a person under a disability in proceedings to which his or her authority extends, unless the Court orders otherwise. 15.04 Consent of litigation guardian (1) Except where a litigation guardian is appointed by the Court, the name of a person may not be used in proceedings as the litigation guardian of a person under a disability unless there is first filed the written consent of the person to be the litigation guardian. (2) A consent filed under subrule (1) is to contain: (a) a statement detailing the reason why the proposed party is a person under a disability; and (b) a declaration that the proposed litigation guardian has no interest in the proceedings adverse to that of the person under a disability. 15.05 Appointment, &c., of litigation guardian by Court (1) If a party to proceedings becomes a person under a disability after the proceedings are commenced, the Court must appoint a litigation guardian of that party. (2) Before appointing a litigation guardian under subrule (1), the Court may review the conduct of the proceedings and make the orders it considers necessary to ensure that justice is done between the (3) Where a party who is a person under a disability fails to file a notice of defence when required to do so by an order of the Court or these Rules, the Court may order the appointment of a litigation guardian to defend the proceedings. Local Court (Civil Jurisdiction) Rules 1998 49 (4) Where the interests of a party who is a person under a disability require it, the Court may appoint or remove a litigation guardian or substitute another person as litigation guardian of the party. 15.06 Pleading admissions by person under disability A person under a disability is not be taken as admitting the truth of an allegation of fact made in the pleadings of another party unless the person under a disability states in his or her pleadings that the allegation is admitted. 15.07 Litigation guardian liable for costs A litigation guardian is liable for costs in the same manner and to the same extent as if he or she were the plaintiff or the defendant in the proceedings. 15.08 Court to approve compromise, &c. (1) Where a claim is made in proceedings by, on behalf of or against a person under a disability, no compromise, payment of money or acceptance of an offer of compromise under Part 20, whenever entered into or made, is, so far as it relates to the claim, valid without the approval of the Court. (2) Subject to subrule (3), an application for approval referred to in subrule (1) is to be filed not later than 28 days after the compromise, payment or acceptance is entered into, made or given. (3) If an application for approval is made at the hearing of proceedings, the Court may dispense with the requirement of subrule (2). (4) At the hearing of an application for approval, evidence is to be given of: (a) the date of the compromise, payment or acceptance; (b) the date of birth of the person under a disability; and (c) the signature of the litigation guardian. (5) The compromise, payment or acceptance is to be taken to have been entered into, made or given at the time of approval by the Local Court (Civil Jurisdiction) Rules 1998 50 15.09 Order approving compromise, &c. (1) An order under rule 15.08 approving a compromise by which money is to be paid by or to a person under a disability is to be in accordance with Form 15A or 15B, whichever is appropriate. (2) An order approving a compromise or payment of money is to state the dates referred to in rules 15.08(4)(a) and (b). 15.10 Money to be paid to Public Trustee (1) Unless the Court orders otherwise, all money or damages received by or awarded to a person under a disability by a judgment of the Court or by compromise or settlement is to be paid to the Public Trustee not later than 14 days after judgment is given or the order giving approval is made. (2) The Court may order the Public Trustee to pay money held on behalf of a person under a disability to a person specified in the 15.11 Counterclaim or claim by third party This Part applies with the necessary changes to: (a) a counterclaim against a person under a disability who is joined as a defendant to the counterclaim; and (b) a claim by a third party notice by or on behalf of or against a person under a disability. 15.12 Legal practitioner's lien Nothing in this Part affects the lien of a legal practitioner for costs. 16.01 Party to give discovery (1) At the time of filing their respective statement of claim, originating application or notice of defence, each party must give discovery of documents by: (a) making and filing a list of the documents: (i) that are or have been in the party's possession; and (ii) that relate to a matter in question between the parties in the proceedings; and Local Court (Civil Jurisdiction) Rules 1998 51 (b) serving a copy of the list on each other party. (2) A party to whom discovery of documents is to be given may serve on a party who must give discovery a notice in accordance with Form 16A requiring that party to make an affidavit verifying his or her list of documents. (3) A party on whom a notice is served under subrule (2) must, not later than 14 days after service of the notice: (a) make and file an affidavit in compliance with the notice; and (b) serve a copy of the affidavit on the party who served the 16.02 List of documents (1) A list of documents is to be in accordance with Form 16B and is to: (a) identify the documents that are or have been in the possession of the party making the list; (b) enumerate the documents in convenient order and: (i) describe each document sufficiently to enable it to be identified; or (ii) in the case of a group of documents of the same nature – describe the group sufficiently to enable it to be identified; (c) distinguish those documents that are in the possession of the party making the list from those that have been but are no longer in the party's possession and, where a document has been but is no longer in the party's possession, state when the document was last in the party's possession and his or her belief as to what has become of it; and (d) if the party making the list claims that a document in the party's possession is privileged from production – state sufficiently the grounds of the privilege. (2) It is not necessary to identify, enumerate or describe correspondence between the legal practitioners for the parties. (3) A document is not privileged from production on the sole ground that it: (a) relates exclusively to the party making the list of documents and does not tend to impeach that party's case; and Local Court (Civil Jurisdiction) Rules 1998 52 (b) does not tend to support the other party's case. 16.03 Continuing discovery (1) Subject to an order of the Court, a party must continue to give discovery of documents in accordance with this Part until the commencement of the hearing of the proceedings. (2) Discovery is to be given: (a) not later than 14 days after a document comes into a party's possession; or (b) where a document comes into a party's possession less than 28 days before a conciliation conference or prehearing conference – as soon as practicable after the document comes into the party's possession. 16.04 Request for inspection (1) A party may, either orally or in accordance with Form 16C, request another party to produce for inspection a document in the other party's possession referred to: (a) in the other party's list of documents; or (b) in a statement of claim, notice of defence, affidavit or other document provided by the other party. (2) A party who requests inspection of a document before the conciliation conference referred to in rule 32.01(1) must do so in sufficient time to enable inspection to occur before the conciliation conference. 16.05 Production (1) Subject to subrule (2), a party requested to produce a document must, not later than 7 days after the request, produce the document for inspection at a place within 15 kilometres of the registry in which the statement of claim was filed, unless the parties agree otherwise or the Court orders otherwise. (2) A party requested to produce a document is not required to do so if: (a) the party: (i) claims that the document is privileged from production; and Local Court (Civil Jurisdiction) Rules 1998 53 (ii) makes and serves on the other party an affidavit in which the party makes that claim and states sufficiently the grounds of the privilege; or (b) the document is not in the party's possession and he or she makes and serves on the other party an affidavit in which he or she states that fact and states to the best of his or her knowledge, information and belief: (i) where the document is and in whose possession it is; and (ii) if the document has been but is no longer in the party's possession – when the document was last in the party's possession, and his or her belief as to what has become of it. 16.06 Copies of documents (1) A party to whom documents are produced for inspection may take copies of the documents. (2) For the purpose of subrule (1), taking a copy of a document includes photocopying the document. (3) If the party to whom a document is produced states that he or she wishes to have it photocopied, the party producing the document must, at his or her option: (a) allow the other party to photocopy the document at a place agreed by the parties; or (b) supply the other party with a photocopy of the document. (4) Unless the Court orders otherwise, the cost of a photocopy of a document supplied to a party in accordance with subrule (3) is to: (a) be borne by that party in the first instance and is ultimately to be a cost in the proceedings; and (b) be ascertained in accordance with Part 38 or as agreed by the Local Court (Civil Jurisdiction) Rules 1998 54 16.07 Audio and visual devices, &c. (1) Where a party is entitled to inspect a document that consists of a device such as a video tape, audio tape, disc, film or other means of recording, the Court may give directions for the screening or playing of the device and for the making by or supply to the party of: (a) a transcript of the recording in so far as it can be transcribed; or (b) a copy of the recording. (2) Where a party is entitled to inspect a document that consists of information that has been processed by or is stored in a computer, the Court may give directions for making the information available. 16.08 Failure to give discovery or allow inspection (1) Where a party fails to give discovery or to allow inspection of documents in accordance with this Part, the Court may: (a) order the party to give discovery or allow inspection; (b) if the party is a plaintiff or other party claiming relief – strike out the claim; or (c) if the party is a defendant or other party against whom relief is claimed – make an order permitting the party claiming the relief to proceed as if a notice of defence had not been filed. (2) Where a party applies for an order under subrule (1) and the other party claims that the document is privileged from production or objects to production on another ground, the Court may inspect the document to decide the validity of the claim or objection. (3) An application for an order under this rule is to be filed and served not later than 28 days before the date fixed for the hearing of the 17.01 When interrogatories allowed (1) A party may serve on another party interrogatories relating to a matter in question between them in the proceedings: (a) with the consent in writing of the party to be interrogated; or (b) with the leave of the Court. Local Court (Civil Jurisdiction) Rules 1998 55 (2) An application for leave to serve interrogatories is to be made not later than 28 days after the day on which the notice of defence is filed, unless the Court orders otherwise. (3) An interrogating party may serve further interrogatories with the leave of the Court. (4) A party who serves interrogatories must file a copy of them without delay. 17.02 Statement where multiple parties interrogated If interrogatories are to be answered by 2 or more parties, the interrogating party must state in the document containing the interrogatories which of the interrogatories each party is required to answer. 17.03 Form, serving and filing of answers A party on whom interrogatories are served must, not later than 28 days after service: (a) answer the interrogatories in an affidavit that consolidates each question with the relevant answer; (b) serve the affidavit on the party who served the interrogatories; and (c) file a copy of the affidavit. 17.04 Answers to interrogatories (1) Subject to rule 17.05, a party who is interrogated must answer each interrogatory in accordance with this rule. (2) A party must make all reasonable enquiries to enable him or her to provide a proper answer to each interrogatory. (3) A party must answer: (a) specifically, by answering the substance of the interrogatory without evasion; and (b) from his or her own knowledge of the fact or matter that is enquired after or, if the party has no such knowledge, subject to subrule (7), from a belief as to the fact or matter, irrespective of the source of the information from which the belief is formed. Local Court (Civil Jurisdiction) Rules 1998 56 (4) Where a party has no personal knowledge of the fact or matter enquired after, for the purpose of enabling himself or herself to form a belief as to the fact or matter, the party must make all reasonable enquiries to determine: (a) whether a person has knowledge of the fact or matter that was acquired by the person in the capacity of the party's employee or agent; and (b) if so – what that knowledge is. (5) A party must make the enquiries referred to in subrule (4) despite the fact that at the time the party is required to answer the interrogatory a person having the relevant knowledge has ceased to be an employee or agent. (6) A party who has no knowledge of the fact or matter enquired after is taken not to have a belief as to the fact or matter if: (a) he or she has no information relating to the fact or matter on which to form a belief; or (b) where the party has such information – he or she has no belief that the information is true. (7) A party is not required to answer from his or her belief where the belief is formed on information that the party could not, on the ground of privilege, be compelled to disclose. (8) If the party interrogated is a corporation, this rule applies with the necessary changes as if: (a) the person who answers the interrogatories on behalf of the corporation were the party; and (b) the reference in subrule (4)(a) to an employee or agent of the party were a reference to an employee or agent of the corporation. 17.05 Objections (1) A party may object to answering an interrogatory on any of the following grounds: (a) the interrogatory does not relate to a question in issue between the parties; (b) the interrogatory is unclear, vague or too wide; (c) the interrogatory is oppressive; Local Court (Civil Jurisdiction) Rules 1998 57 (d) the interrogatory requires the party to express an opinion that the party is not qualified to give; (e) privilege, stating sufficiently the grounds of privilege; (f) any other ground on which objection may be taken. (2) Without limiting subrule (1)(a), an interrogatory that does not relate to a question in issue between the parties includes an interrogatory the sole purpose of which is to: (a) impeach the credit of the party being interrogated; (b) enable the interrogating party to ascertain whether he or she has a claim or defence other than the claim or defence raised in the proceedings; or (c) enable the interrogating party to ascertain the evidence by which the party being interrogated intends to prove his or her case, including the identity of witnesses. (3) A party is not entitled to object to answering an interrogatory on the ground that he or she cannot answer without going to a place that is not the party's usual place of residence or business if the interrogating party undertakes to pay the party's reasonable cost of going there, unless the Court orders otherwise. (4) Where a party objects to answering an interrogatory, the party must state the grounds for making the objection and the facts, where applicable, on which the objection is based. 17.06 Who to answer (1) Interrogatories are to be answered: (a) if the person on whom the interrogatories are served is: (i) a natural person – by the person; or (ii) a corporation – by an officer of the corporation or a person authorised by the corporation to answer; or (b) by the person the Court directs to do so. (2) The answers of a person directed under subrule (1)(b) to answer interrogatories are as effective and binding as if made by the party on whom the interrogatories were served. Local Court (Civil Jurisdiction) Rules 1998 58 17.07 Failure to answer (1) If a plaintiff or other party claiming relief fails to answer interrogatories, the Court may strike out the claim. (2) If a defendant or other party against whom relief is claimed fails to answer interrogatories, the Court may make an order permitting the party claiming relief to proceed as if a notice of defence had not been filed. (3) An application for an order under this rule is to be filed and served not later than 28 days before the date fixed for hearing of the 17.08 Answers as evidence (1) On an application in proceedings or at the hearing of proceedings, a party may tender as evidence: (a) one or more answers to interrogatories without tendering the other answers; or (b) part of an answer to an interrogatory without tendering the whole of the answer. (2) On the tender of an answer to an interrogatory under subrule (1), the Court may look at the whole of the answers and, if another answer or a part of an answer is so connected with the matter tendered that the matter tendered ought not to be used without the other answer or part, the Court may reject the tender unless the other answer or part is also tendered. Part 18 Preliminary discovery and discovery from non-party 18.01 Definitions applicant means an applicant for an order under this Part. description includes the name, place of residence, place of business, occupation and sex of the person against whom the applicant desires to bring proceedings and whether the person is an individual or a corporation. Local Court (Civil Jurisdiction) Rules 1998 59 18.02 Privilege An order made under this Part does not operate to require the person against whom the order is made to produce a document that on the ground of privilege the person could not be required to produce: (a) in the case of an order under rule 18.03 or 18.05 – if the applicant had commenced proceedings against the person; (b) in the case of an order under rule 18.04 or 18.06 – if the applicant had made the person a party to the proceedings; or (c) in the case of an order made under rule 18.07 – if the person had been served with a summons for production of the document at the hearing of the proceedings. 18.03 Ascertaining description of prospective defendant If: (a) an applicant, having made reasonable enquiries, is unable to ascertain the description of a person sufficiently to enable the applicant to commence a proceeding against the person (in this rule called the person concerned); and (b) it appears that a person: (i) has or is likely to have knowledge of facts; or (ii) has or is likely to have, or has had or is likely to have had, in his or her possession a document or thing, tending to assist in the ascertainment of the description of the person concerned, the Court may order that the person must: (c) produce to the Court a document or thing in the person's possession that relates to the description of the person concerned; (d) attend before the Court to be orally examined in relation to the description of the person concerned or a document or thing produced to the Court under paragraph (c); or (e) give discovery to the applicant of all documents relating to the description of the person concerned that are, or have been, in the person's possession. Local Court (Civil Jurisdiction) Rules 1998 60 18.04 Party may ascertain description of non-party Rule 18.03 applies with the necessary changes where: (a) the applicant is a party to proceedings and wishes to make a claim against a person who is not a party to proceedings; and (b) the claim is one that the applicant could properly have made had the person been a party. 18.05 Discovery from prospective defendant (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from a person whose description the applicant has ascertained; (b) after making all reasonable enquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence proceedings to obtain the relief; and (c) there is reasonable cause to believe that the person has or is likely to have, or has had or is likely to have had, in the person's possession a document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist the applicant to make the decision, the Court may order that the person must give discovery of the document to the applicant. 18.06 Discovery from non-party relating to relief Rule 18.05 applies with the necessary changes where: (a) the applicant is a party to proceedings; (b) there is reasonable cause to believe that the applicant has or may have the right to obtain relief from a person who is not a party to the proceedings; and (c) the applicant could properly have claimed relief from the person had the person been a party. 18.07 Discovery from non-party relating to question (a) the applicant is a party to proceedings; and Local Court (Civil Jurisdiction) Rules 1998 61 (b) it appears that a person who is not a party to the proceedings has or is likely to have, or has had or is likely to have had, a document in his or her possession that relates to a question in the proceedings, the Court may order that the person must give discovery of the document to the applicant. 18.08 Procedure (1) An application under rule 18.03, 18.04, 18.05, 18.06 or 18.07 is to be made under Part 25 by an application: (a) served personally on the person against whom the order is sought; and (b) served on each party to the proceedings (where applicable). (2) An application under subrule (1) is to be supported by an affidavit: (a) stating the facts on which the application is made; and (b) describing the documents or a class of documents in respect of which the order is sought. (3) A copy of the supporting affidavit is to be served on each person on whom the application is served. 18.09 Inspection of documents