24December to 9 January next following shall be excluded, unless

24 December to 9 January next following shall be excluded, unless the Court otherwise orders. (2) Where the Court makes an order under subrule (1), the party on whose application the order was made shall serve a copy of the order: (a) in the case of an order with respect to the time for appearance to originating process – with the originating process; and (b) in any other case – on every other party forthwith. 3.05 Proceedings after a year Where a year or longer has elapsed since a party has taken a step in a proceeding, a party desiring the proceeding to continue shall give to every other party not less than one month's notice in writing of his desire. 3.06 Vacations (1) In this rule vacation means a period declared by the Chief Justice to be a vacation of the Court. (2) A hearing or trial shall not be held in vacation unless the Chief Justice otherwise directs. (3) Nothing in this rule prevents: (a) the Court or a Judge from sitting during vacation to dispose of urgent business; or Supreme Court Rules 1987 17 (b) the Chief Justice from appointing a Judge from time to time to be available to deal with urgent business arising during vacation. Part 3 Court office 3.07 Registry (1) The Registry is to be open on every day of the year except Saturdays, Sundays, and public holidays under the Public Holidays Act 1981. (2) The hours of the Registry are to be from 9.00 am until 4.00 pm unless the Chief Justice directs otherwise. (3) A Judge, an Associate Judge or the Registrar may open the Registry at any time on the request of a person if it is necessary to do so to avoid injustice. 4.01 How proceeding commenced Except where otherwise provided by or under an Act or this Chapter, a proceeding shall be commenced by writ or by originating motion. 4.02 Interlocutory application An interlocutory or other application in a proceeding made on notice to a person shall be by summons. 4.03 Names of parties (1) Subject to this rule, a person who commences a proceeding shall be called a plaintiff and a person against whom a proceeding is commenced shall be called a defendant. (2) A person who commences a proceeding under rule 32.03, 32.05, 37.02 or 75.06(3) shall be called an applicant and the person against whom the proceeding is commenced shall be called a respondent. 4.04 When writ required Except as provided by rules 4.05 and 4.06, a proceeding shall be Supreme Court Rules 1987 18 4.05 When originating motion required A proceeding shall be commenced by originating motion: (a) where there is no defendant to the proceeding; (b) where by or under an Act an application is authorized to be made to the Court; or (c) where required by this Chapter. 4.06 Optional commencement by originating motion A proceeding may be commenced by originating motion where: (a) it is unlikely that there will be a substantial dispute of fact; and (b) for that reason it is appropriate that there be no pleadings or discovery. 4.07 Continuance as writ of proceeding by originating motion Where a proceeding in which there is a defendant is commenced by originating motion but ought by or under an Act or this Chapter to have been commenced by writ, or might in the opinion of the Court more conveniently continue as if commenced by writ: (a) the Court may order that the proceeding continue as if it had been commenced by writ and may, in particular, order that any affidavit already filed in the proceeding shall stand as pleadings, with or without liberty to a party to add to those pleadings or to apply for particulars of the pleadings or that pleadings be served between the parties, and that the parties have discovery of each other; and (b) by virtue of that order, the proceeding shall be taken to have been duly commenced for all purposes on the day the originating motion was filed. 4.08 Urgent case In an urgent case the Court may, on the application of a person who intends to commence a proceeding and on his undertaking to commence the proceeding within such time as the Court directs, make an order which it might make if the applicant had commenced the proceeding and the application were made in the proceeding. Supreme Court Rules 1987 19 Order 5 Content, filing and duration of originating process 5.01 Definitions originating process means a writ, originating motion or other process by which a proceeding is commenced. writ does not include a writ of habeas corpus. 5.02 Form of originating process (1) A writ shall be in Form 5A. (2) An originating motion shall be in Form 5B, 5C, 5D, or 5E, whichever is appropriate. 5.03 Appearance (1) A writ and, unless there is no defendant, an originating motion shall be endorsed with a statement to the effect that, if the defendant does not file an appearance within the time stated in the originating process, the plaintiff may obtain judgment against the defendant without further notice. (2) Except as provided in subrule (3), the time for appearance to be stated in the originating process shall be as provided by rule 8.04. (3) An originating motion under Order 53 which names a defendant shall state that the defendant may file an appearance on or before the day specified in the originating motion for application to an 5.04 Endorsement of claim on writ (1) A writ shall contain an endorsement of claim. (2) The endorsement of claim shall be: (a) a statement of claim; or (b) a statement sufficient to give, with reasonable particularity, notice of the nature of the claim and the cause of the claim and of the relief or remedy sought in the proceeding. (3) An endorsement of claim on a writ shall constitute a statement of claim if, but only if, it is headed "Statement of Claim". Supreme Court Rules 1987 20 5.05 Endorsement of claim on motion An originating motion shall specify the relief or remedy sought and the Act, if any, under which the claim is made and, where it includes a question to be answered, the question shall be stated. 5.06 Endorsement as to capacity Where a party sues or is sued in a representative capacity, the originating process shall be endorsed with a statement showing that capacity. 5.07 Address of parties (1) An originating process shall be endorsed with: (a) the address of the plaintiff and, where the plaintiff sues in person and that address is outside the Territory, also an address within the Territory, or an email address, for service in accordance with rule 6.05; (b) the address of all defendants; and (c) where the plaintiff sues by a solicitor, the name or firm and the business address within the Territory of the solicitor and also, if the solicitor is the agent of another, the name or firm and the business address of the principal. (2) Where a solicitor shown in an endorsement under subrule (1) is a firm or body corporate, the endorsement shall also show the member of the firm or body corporate having responsibility for the conduct of the matter. (3) Where an originating process is endorsed with the name of a solicitor: (a) the solicitor shall, on request in writing by a defendant, declare in writing whether the originating process was filed by the solicitor; and (b) if the solicitor declares in writing that the originating process was not filed by him, the Court may stay the proceeding. 5.08 Place of trial (1) A writ shall be endorsed with a statement of the place of trial desired. (2) If the writ is not endorsed with a statement as to the place or trial, the plaintiff shall be taken to desire trial in Darwin. Supreme Court Rules 1987 21 (3) The plaintiff may endorse an originating motion with a statement of the place of trial desired and, if the originating motion is not so endorsed, the plaintiff shall be taken to desire trial in Darwin. 5.09 Stay on payment of costs (1) Where in a proceeding commenced by writ the plaintiff claims a debt only, the writ shall be endorsed with a statement of the amount of the debt and the amount claimed for costs and a statement that the proceeding will come to an end if, within the time limited for filing an appearance, the defendant pays the amounts so claimed to the plaintiff, if the plaintiff sues in person, or his solicitor if the plaintiff sues by a solicitor. (2) Where a writ is endorsed in accordance with subrule (1) and the defendant pays the amounts claimed within the time limited for filing an appearance, then, except as provided by subrule (3), the proceeding shall come to an end. (3) The defendant may, notwithstanding the payment, have the costs taxed and, if more than 20% is disallowed, the plaintiff's solicitor shall pay the costs of taxation. 5.10 Petition A petition shall include at the end the name of the person intended to be served, if any, or, if no person is intended to be served, a statement to that effect. 5.11 Filing of originating process (1) A proceeding shall be commenced by filing the originating process in the Registry. (2) The originating process filed shall be signed by the solicitor for the plaintiff or by the plaintiff where the plaintiff sues in person. (3) On an originating process being filed or at a later time, the Proper Officer, on the request of the plaintiff, shall seal a sufficient number of copies of the originating process for service and proof of service. (4) In a proceeding commenced by originating motion, where the relief or remedy sought includes the construction of an instrument other than an Act, a copy of the instrument or, where it exceeds 25 pages, of the relevant parts, shall be lodged with the Proper Officer at the time the originating motion is filed. (5) If the Registry is closed and the plaintiff produces an originating process to the Court and undertakes that the originating process will be lodged in the Registry on the day it is next open, the Court Supreme Court Rules 1987 22 may initial the originating process and such number of copies as are required for services or proof of service and, on being so initialled, the originating process shall be taken to have been filed. 5.12 Duration and renewal of originating process (1) A writ or an originating motion shall be valid for service for one year after the day it is filed. (2) Where a writ or originating motion has not been served on a defendant, the Court may from time to time, by order, extend the period of validity for such period, being not more than 12 months from the date of the order, as it thinks fit. (3) An order may be made under subrule (2) before or after expiry of the writ or originating motion. (4) The plaintiff may apply under subrule (2) without notice to the defendant but, if the Court considers that the defendant ought to be heard, the Court shall adjourn the further hearing and direct the plaintiff to give notice to the defendant by summons or otherwise. (5) Where an order is made under subrule (2), the Proper Officer shall stamp any sealed copy of the originating process for service with the date of the order and the extended date of validity. 6.001 Application to companies Notwithstanding anything in this Order, a document served on a company within the meaning of the Corporations Act 2001 shall be effectively served for the purposes of these Rules if it is served as provided by section 109X of the Corporations Act 2001. 6.01 When personal service necessary A document required or permitted to be served in a proceeding may be served personally but, unless personal service is required by this Chapter or by order, need not be served personally. 6.02 Personal service of originating process (1) Except where otherwise provided by or under an Act or this Chapter, originating process shall be served personally on each (2) Where a defendant to an originating process files an unconditional appearance, the originating process shall be taken to have been Supreme Court Rules 1987 23 served on the defendant personally on the day on which the appearance is filed or on such earlier day as is proved. 6.03 How personal service effected (1) Personal service of a document is effected by leaving a copy of the document with the person to be served or, if he does not accept the copy, by putting the copy down in his presence and telling him the nature of the document. (2) In the case of originating process, the copy for service shall be sealed in accordance with rule 5.11(3). (3) To effect personal service it shall not be necessary to show the original document. 6.04 Service on particular defendants Personal service of a document may be effected by serving the document in accordance with rule 6.03: (a) in the case of a corporation – on the mayor, chairman, president or other officer of the corporation, or on the town clerk, clerk, treasurer, manager, secretary or other similar officer of the corporation; (b) in the case of an infant – on a parent or guardian of the infant, and, if there is none, on the person with whom the infant resides or in whose care he is; (c) in the case of a person under a disability as defined in rule 15.01: (i) on the person who, in accordance with rule 15.03(2), would be entitled to be litigation guardian in a proceeding to which the person under a disability was (ii) if there is no such person – on the person with whom the person under a disability resides or in whose care he is; (d) in the case of the Commonwealth of Australia or the Crown in right of the Commonwealth – on the Attorney-General for the Commonwealth; or (e) in the case of the Territory or the Crown in right of the Territory – on the Attorney-General or on the Solicitor for the Northern Territory. Supreme Court Rules 1987 24 6.05 Address for service (1) The address for service of a plaintiff is: (a) where the plaintiff sues by a solicitor: (i) the business address of the solicitor endorsed on the originating process, being an address in the Northern Territory; or (ii) the email address of the solicitor endorsed on the originating process; or (b) where the plaintiff sues in person: (i) an address within 30 km of the Registry in which the originating process is issued endorsed on the originating process; or (ii) the email address of the plaintiff endorsed on the originating process. (2) The address for service of a defendant is: (a) where the defendant appears by a solicitor: (i) the business address of the solicitor stated in the notice of appearance, being an address in the Northern Territory; or (ii) the email address of the solicitor stated in the notice of appearance; or (b) where the defendant appears in person: (i) an address within 30 km of the Registry in which the originating process is issued stated in the notice of appearance; or (ii) the email address of the defendant stated in the notice of 6.06 How ordinary service effected (1) Where personal service of a document is not required, the document may be served: (a) by leaving it at the proper address of the person to be served; or Supreme Court Rules 1987 25 (b) by sending it by prepaid post to the person to be served at his proper address; or (c) where provision is made by or under an Act for service of a document on a corporation (other than a company within the meaning of the Corporations Act 2001), by serving it in accordance with that provision; or (ca) if the person to be served sues by a solicitor or appears by a solicitor and the solicitor has endorsed or stated an email address under rule 6.05 – by sending the document to the solicitor's email address; or (cb) if the person to be served sues in person or appears in person and has endorsed or stated an email address under rule 6.05 – by sending the document to the email address; or (d) where the solicitor for a party has facilities for the reception of documents in a document exchange – by delivering it into those facilities. (2) For the purpose of subrule (1), the proper address of a person is the address for service of that person in the proceeding but if, at the time service is to be effected, the person has no address for service, the proper address is: (a) in the case of an individual – the person's usual or last known place of residence or of 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; and (c) in the case of a corporation: (i) where the corporation is a company within the meaning of the Corporations Act 2001 – the registered office of the company situated as indicated in section 109X of the Corporations Act 2001; and (ii) where the corporation is not a company – the registered or principal office of the corporation. (3) Where no person can be found at the address for service of a plaintiff who sues or a defendant who has appeared in person, a document in the proceeding may be served on that plaintiff or defendant by filing it. Supreme Court Rules 1987 26 (3.1) A party who serves a document by filing in accordance with subrule (3) shall endorse on a backsheet or on the back of the last (4) The day of service of a document, where it is delivered into the facilities of a document exchange in accordance with subrule (1)(d), shall be taken to be: (a) the day following the day on which it was so delivered; or (b) where it was delivered on a Friday, the following Monday. (5) In this rule document exchange means a document exchange for the time being approved by the Chief Justice on the recommendation of the Law Society Northern Territory. 6.07 Identity of person served For the purposes of proof of service, evidence of a statement by a person of his identity or that he holds some office is evidence of his identity or that he holds that office. 6.08 Acceptance of service by solicitor Where in a proceeding a document is required or permitted to be served on a person and a solicitor makes on a copy of the document a note that the solicitor accepts service of the document on behalf of the person to be served, the document shall, unless the solicitor is shown not to have had authority to accept service, be taken to have been duly served on that person on the day on which the solicitor made the note or on such other day as is proved. 6.09 Substituted service (1) Where for any reason it is impracticable to serve a document in the manner required by this Chapter, the Court may order that, instead of service, such steps be taken as it specifies for the purpose of bringing the document to the notice of the person to be served. that the document be taken to have been served on the happening of a specified event or on the expiry of a specified time. (3) The Court may make an order under subrule (1) notwithstanding that the person to be served is out of the Territory or was out of the Territory when the proceeding commenced. Supreme Court Rules 1987 27 6.10 Confirmation of informal service Where for any reason a document has not been served in the manner required by or under a law in force in the Territory or by these Rules but steps have been taken for the purpose of bringing, or which may have a tendency to bring, the document to the notice of the person to be served, the Court may, by order, direct that the document be taken to have been served on the person on a date specified in the order. 6.11 Service by filing (1) Where the service of a document on a party to a proceeding is required or permitted but personal service is not required, and that party is in default of appearance or has no address for service in the proceeding, the filing of the document shall, unless the Court otherwise orders, have effect as service of the document on that (2) A party who serves a document by filing in accordance with subrule (1) shall endorse on a backsheet or on the back of the last 6.12 Service on agent (1) Where a contract has been entered into in the Territory by or through an agent residing or carrying on business in the Territory on behalf of a principal residing or carrying on business out of the Territory, originating process in a proceeding relating to or arising out of the contract may, by leave of the Court given before the determination of the agent's authority or of his business relations with the principal, be served on the agent. (2) Where an order giving leave is made under subrule (1): (a) the order shall limit a time within which the defendant shall file an appearance; and (b) a copy of the order and of the originating process shall without delay be sent by pre-paid post to the defendant at his proper address out of the Territory. 6.13 Service under agreement Where the parties to a proceeding have, before or after the commencement of the proceeding, agreed that originating process or any other document in the proceeding may be served on a party or on a person on behalf of a party in a manner or at a place (whether in or out of the Territory) specified in the agreement, service in accordance with the agreement is sufficient service. Supreme Court Rules 1987 28 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, authorize service on the defendant to 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 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 shall be taken to be good service on the defendant. (2) This rule has effect notwithstanding that the defendant is out of the Territory at the time of affixing the copy of the originating process. 6.15 Service of notice by the Court Where under this Chapter or under an order of the Court a notice or other document is to be given to or served on a person by the Court, the notice or document shall, unless this Chapter otherwise provides or the Court otherwise orders, be sufficiently given or served in a manner in which a document not requiring to be served personally may be served under this Order. 6.16 Affidavit of service (1) In the case of personal service of a document, an affidavit of its service shall state by whom it was served, the hour of the day, day of the week and date on which it was served, the place of service and the manner of identification of the person served. (2) In any other case of service of a document, an affidavit of its service shall state, with relevant dates, the facts constituting Supreme Court Rules 1987 29 Order 7 Service outside Australia 7.01 Originating process that may be served outside Australia (1) Subject to rule 7.02, an originating process may be served on a person in a foreign country in a proceeding if: (a) the whole subject matter of the proceeding is land (with or without rents or profits) situated in the Territory or the perpetuation of testimony relating to land situated in the Territory; or (b) an act, deed, will, contract, obligation or liability affecting land situated in the Territory is sought to be construed, rectified, set aside or enforced in the proceeding; or (c) relief is sought against a person domiciled or ordinarily resident in the Territory; or (d) the proceeding is for the administration of the estate of a person who died domiciled in the Territory or a relief or remedy which might be obtained in such a proceeding; or (e) the proceeding is for the execution, as to property situated in the Territory, of the trusts of a written instrument of which the person to be served is a trustee and which ought to be executed according to the law of the Territory; or (f) the proceeding is brought to enforce, rescind, dissolve, rectify, annul or otherwise affect a contract, or to recover damages or other relief in respect of the breach of a contract, and the contract: (i) was made in the Territory; or (ii) was made by or through an agent carrying on business or residing in the Territory on behalf of a principal carrying on business or residing out of the Territory; or (iii) is governed by the law of the Territory; or (g) the proceeding is brought in respect of a breach committed in the Territory of a contract, wherever made, even though the breach was preceded or accompanied by a breach out of the Territory that rendered impossible the performance of that part of the contract which ought to have been performed in the Territory; or Supreme Court Rules 1987 30 (h) the proceeding is founded on a contract the parties to which have agreed that the Court will have jurisdiction to entertain a proceeding in respect of the contract; or (i) the proceeding is founded on a tort committed in the Territory; or (j) the proceeding is brought in respect of damage suffered wholly or partly in the Territory and caused by a tortious act or omission, wherever occurring; or (k) an injunction is sought ordering the defendant to do or refrain from doing anything in the Territory, whether or not damages are also claimed in respect of a failure to do, or the doing of, the thing; or (l) the proceeding is properly brought against a person duly served in or out of the Territory and another person in a foreign country is a necessary or proper party to the (m) the proceeding: (i) is brought by a mortgagee of property (other than land) situated in the Territory; and (ii) seeks the sale of the property, foreclosure of the mortgage or delivery by the mortgagor of possession of the property; and (iii) unless permitted by another paragraph of this subrule, does not seek a personal judgment or order for the payment of moneys due under the mortgage; or (n) the proceeding: (i) is brought by a mortgagor of property (other than land) situated in the Territory; and (ii) seeks redemption of the mortgage, reconveyance of the property or delivery by the mortgagee of possession of the property; and (iii) unless permitted by another paragraph of this subrule, does not seek a personal judgment or order for the payment of moneys due under the mortgage; or (o) the proceeding is brought under the Civil Aviation (Carriers' Liability) Act 1959 (Cth). Supreme Court Rules 1987 31 (2) In this rule: mortgage includes a charge or lien. mortgagee means a person entitled to, or with an interest in, a mortgage. mortgagor means a person entitled to, or with an interest in, property subject to a mortgage. 7.02 Application for leave to serve originating process outside Australia (1) Service of an originating process on a person in a foreign country is effective for the purpose of a proceeding only if: (a) the Court has given leave under subrule (2) before the originating process is served; or (b) the Court confirms the service under subrule (5); or (c) the person served waives any objection to the service by filing an appearance in the proceeding. (2) The Court may give leave to a person to serve an originating process on a person in a foreign country under a Convention, the Hague Convention, or the law of the foreign country, on the terms and conditions it considers appropriate, if the Court is satisfied: (a) the Court has jurisdiction in the proceeding; and (b) the proceeding is of a kind mentioned in rule 7.01; and (c) the person seeking leave has a prima facie case for the relief claimed by the person in the proceeding. Notes for subrule (2)