3The Attorney-General’s Department of the Commonwealth maintains a copy

3 The Attorney-General’s Department of the Commonwealth maintains a copy of the Hague Convention, a list of all Hague Convention countries, details of declarations and objections made under the Hague Convention by each of those countries and the names and addresses of the Central and other authorities of each of those countries. A copy of the Hague Convention can be found at http://www.hcch.net. 7A.01 Definitions additional authority, for a Hague Convention country, means an authority that is: (a) for the time being designated by the country, under Article 18 of the Hague Convention, to be an authority (other than the Central Authority) for the country; and (b) competent to receive requests for service abroad emanating from Australia. applicant, for a request for service abroad or a request for service in this jurisdiction, means the person on whose behalf service is requested. Note The term applicant may have a different meaning in other provisions of these Central Authority, for a Hague Convention country, means an authority that is for the time being designated by that country, under Article 2 of the Hague Convention, to be the Central Authority for that country. certificate of service means a certificate of service that has been completed for the purposes of Article 6 of the Hague Convention. certifying authority, for a Hague Convention country, means the Central Authority for the country or some other authority that is for the time being designated by the country, under Article 6 of the Hague Convention, to complete certificates of service in the form annexed to the Hague Convention. civil proceedings means any judicial proceedings in relation to civil or commercial matters. Supreme Court Rules 1987 37 defendant, for a request for service abroad of an initiating process, means the person on whom the initiating process is requested to be Note The term defendant may have a different meaning in other provisions of these foreign judicial document means a judicial document that originates in a Hague Convention country and relates to civil proceedings in a court of that country. forwarding authority means: (a) for a request for service of a foreign judicial document in this jurisdiction – the authority or judicial officer of the Hague Convention country in which the document originates that forwards the request (being an authority or judicial officer that is competent under the law of that country to forward a request for service under Article 3 of the Hague Convention); or (b) for a request for service of a local judicial document in a Hague Convention country – a Registrar. initiating process means originating process. local judicial document means a judicial document that relates to civil proceedings in the Court. request for service abroad means a request for service in a Hague Convention country of a local judicial document mentioned in rule 7A.04(1). request for service in this jurisdiction means a request for service in this jurisdiction of a foreign judicial document mentioned in rule 7A.13(1). this jurisdiction means the Territory. 7A.02 Provisions of this Order to prevail The provisions of this Order prevail to the extent of any inconsistency between those provisions and any other provisions of these Rules. Supreme Court Rules 1987 38 7A.03 Application of Part (1) Subject to subrule (2), this Part applies to service in a Hague Convention country of a local judicial document. (2) This Part does not apply if service of the document is effected, without application of any compulsion, by an Australian diplomatic or consular agent mentioned in Article 8 of the Hague Convention. 7A.04 Application for request for service abroad (1) A person may apply to a Registrar, in the Registrar's capacity as a forwarding authority, for a request for service in a Hague Convention country of a local judicial document. (2) The application must be accompanied by 3 copies of each of the following documents: (a) a draft request for service abroad, which must be in accordance with Part 1 of Form 7A-A; (b) the document to be served; (c) a summary of the document to be served, which must be in accordance with Form 7A-B; (d) if, under Article 5 of the Hague Convention, the Central Authority or any additional authority of the country to which the request is addressed requires the document to be served to be written in, or translated into, the official language or one of the official languages of that country, a translation into that language of both the document to be served and the summary of the document to be served. (3) The application must contain a written undertaking to the Court, signed by the legal practitioner on the record for the applicant in the proceedings to which the local judicial document relates or, if there is no legal practitioner on the record for the applicant in the proceedings, by the applicant: (a) to be personally liable for all costs that are incurred: (i) by the employment of a person to serve the documents to be served, being a person who is qualified to do so under the law of the Hague Convention country in which the documents are to be served; or Supreme Court Rules 1987 39 (ii) by the use of any particular method of service that has been requested by the applicant for the service of the documents to be served; and (b) to pay the amount of those costs to a Registrar within 28 days after receipt from a Registrar of a notice specifying the amount of those costs under rule 7A.06(3); and (c) to give such security for those costs as a Registrar may require. (4) The draft request for service abroad: (a) must be completed (except for signature) by the applicant; and (b) must state whether, if the time fixed for filing an appearance in the proceedings to which the local judicial document relates expires before service is effected, the applicant wants service to be attempted after the expiry of that time; and (c) must be addressed to the Central Authority, or to an additional authority, for the Hague Convention country in which the person is to be served; and (d) may state that the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority. (5) Any translation required under subrule (2)(d) must bear a certificate (in both English and the language used in the translation), signed by the translator, stating: (a) that the translation is an accurate translation of the documents to be served; and (b) the translator’s full name and address and his or her qualifications for making the translation. 7A.05 How application to be dealt with (1) If satisfied that the application and its accompanying documents comply with rule 7A.04, the Registrar: (a) must sign the request for service abroad; and (b) must forward 2 copies of the relevant documents: (i) if the applicant has asked for the request to be forwarded to a nominated additional authority for the Hague Convention country in which service of the Supreme Court Rules 1987 40 document is to be effected – to the nominated additional authority; or (ii) in any other case – to the Central Authority for the Hague Convention country in which service of the document is to be effected. (2) The relevant documents mentioned in subrule (1)(b) are the (a) the request for service abroad (duly signed); (b) the document to be served; (c) the summary of the document to be served; (d) if required under rule 7A.04(2)(d) – a translation into the relevant language of each of the documents mentioned in paragraphs (b) and (c). (3) If not satisfied that the application or any of its accompanying documents complies with rule 7A.04, the Registrar must inform the applicant of the respects in which the application or document fails to comply. 7A.06 Procedure on receipt of certificate of service (1) Subject to subrule (5), on receipt of a certificate of service in due form in relation to a local judicial document to which a request for service abroad relates, a Registrar: (a) must arrange for the original certificate to be filed in the proceedings to which the document relates; and (b) must send a copy of the certificate to: (i) the legal practitioner on the record for the applicant in the proceedings; or (ii) if there is no legal practitioner on the record for the applicant in the proceedings – the applicant. (2) For the purposes of subrule (1), a certificate of service is in due form if: (a) it is in accordance with Part 2 of Form 7A-A; and (b) it has been completed by a certifying authority for the Hague Convention country in which service was requested; and Supreme Court Rules 1987 41 (c) if the applicant requires a certificate of service that is completed by an additional authority to be countersigned by the Central Authority, it has been so countersigned. (3) On receipt of a statement of costs in due form in relation to the service of a local judicial document mentioned in subrule (1), a Registrar must send to the legal practitioner or applicant who gave the undertaking mentioned in rule 7A.04(3) a notice specifying the amount of those costs. (4) For the purposes of subrule (3), a statement of costs is in due form if: (a) it relates only to costs of a kind mentioned in rule 7A.04(3)(a); and (b) it has been completed by a certifying authority for the Hague Convention country in which service was requested. (5) Subrule (1) does not apply unless: (a) adequate security to cover the costs mentioned in subrule (3) has been given under rule 7A.04(3)(c); or (b) to the extent to which the security so given is inadequate to cover those costs, an amount equal to the amount by which those costs exceed the security so given has been paid to a 7A.07 Payment of costs (1) On receipt of a notice under rule 7A.06(3) in relation to the costs of service, the legal practitioner or applicant, as the case may be, must pay to a Registrar the amount specified in the notice as the amount of the costs. (2) If the legal practitioner or applicant fails to pay that amount within 28 days after receiving the notice: (a) except by leave of the Court, the applicant may not take any further step in the proceedings to which the local judicial document relates until the costs are paid to a Registrar; and (b) a Registrar may take such steps as are appropriate to enforce the undertaking for payment of the costs. 7A.08 Evidence of service A certificate of service in relation to a local judicial document (being a certificate in due form within the meaning of rule 7A.06(2)) that Part 3 Default judgment following service abroad of initiating process Supreme Court Rules 1987 42 certifies that service of the document was effected on a specified date is, in the absence of any evidence to the contrary, sufficient proof that: (a) service of the document was effected by the method specified in the certificate on that date; and (b) if that method of service was requested by the applicant, that method is compatible with the law in force in the Hague Convention country in which service was effected. Part 3 Default judgment following service abroad of initiating process 7A.09 Application of Part This Part applies to civil proceedings for which an initiating process has been forwarded, following a request for service abroad, to the Central Authority (or to an additional authority) for a Hague 7A.10 Restriction on power to enter default judgment if certificate of service filed (a) a certificate of service of initiating process has been filed in the proceedings, being a certificate in due form (within the meaning of rule 7A.06(2)) that states that service has been duly effected; and (b) the defendant has not appeared or filed a notice of address for (2) In circumstances to which this rule applies, default judgment may not be given against the defendant unless the Court is satisfied (a) the initiating process was served on the defendant: (i) by a method of service prescribed by the internal law of the Hague Convention country for the service of documents in domestic proceedings on persons who are within its territory; or (ii) if the applicant requested a particular method of service (being a method under which the document was actually delivered to the defendant or to his or her residence) and that method is compatible with the law in force in the Part 3 Default judgment following service abroad of initiating process Supreme Court Rules 1987 43 country – by that method; or (iii) if the applicant did not request a particular method of service – in circumstances where the defendant accepted the document voluntarily; and (b) the initiating process was served in sufficient time to enable the defendant to file an appearance in the proceedings. (3) In subrule (2)(b): sufficient time means: (a) 42 days from the date specified in the certificate of service in relation to the initiating process as the date on which service of the process was effected; or (b) such lesser time as the Court considers, in the circumstances, to be a sufficient time to enable the defendant to file an appearance in the proceedings. 7A.11 Restriction on power to enter default judgment if certificate of service not filed (a) a certificate of service of initiating process has not been filed in the proceedings; or (b) a certificate of service of initiating process has been filed in the proceedings (being a certificate in due form within the meaning of rule 7A.06(2)) that states that service has not been effected; and the defendant has not appeared or filed a notice of address for (2) If this rule applies, default judgment may not be given against the defendant unless the Court is satisfied that: (a) the initiating process was forwarded to the Central Authority, or to an additional authority, for the Hague Convention country in which service of the initiating process was requested; and (b) a period that is adequate in the circumstances (being a period of not less than 6 months) has elapsed since the date on which the initiating process was so forwarded; and Supreme Court Rules 1987 44 (c) every reasonable effort has been made: (i) to obtain a certificate of service from the relevant certifying authority; or (ii) to effect service of the initiating process; 7A.12 Setting aside judgment in default of appearance (1) This rule applies if default judgment has been entered against the defendant in proceedings to which this Part applies. (2) If this rule applies, the Court may set aside the judgment on the application of the defendant if it is satisfied that the defendant: (a) without any fault on the defendant’s part, did not have knowledge of the initiating process in sufficient time to defend the proceedings; and (b) has a prima facie defence to the proceedings on the merits. (3) An application to have a judgment set aside under this rule may be filed: (a) at any time within 12 months after the date on which the judgment was given; or (b) after the expiry of that 12 month period, within such time after the defendant acquires knowledge of the judgment as the Court considers reasonable in the circumstances. (4) Nothing in this rule affects any other power of the Court to set aside or vary a judgment. 7A.13 Application of Part (1) This Part applies to service in this jurisdiction of a foreign judicial document in relation to which a due form of request for service has been forwarded to the Court: (a) by the Attorney-General’s Department of the Commonwealth, whether in the first instance or following a referral under rule 7A.14; or (b) by a forwarding authority. Supreme Court Rules 1987 45 (2) Subject to subrule (3), a request for service in this jurisdiction is in due form if it is in accordance with Part 1 of Form 7A-A and is accompanied by the following documents: (a) the document to be served; (b) a summary of the document to be served, which must be in accordance with Form 7A-B; (c) a copy of the request and of each of the documents mentioned in paragraphs (a) and (b); (d) if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the (3) Any translation required under subrule (2)(d) must bear a certificate (in English) signed by the translator stating: (a) that the translation is an accurate translation of the document; and (b) the translator’s full name and address and his or her qualifications for making the translation. 7A.14 Certain documents to be referred back to Attorney-General’s Department of Commonwealth If, after receiving a request for service in this jurisdiction, a Registrar is of the opinion: (a) that the request does not comply with rule 7A.13; or (b) that the document to which the request relates is not a foreign judicial document; or (c) that compliance with the request may infringe Australia’s sovereignty or security; the Registrar must refer the request to the Attorney-General’s Department of the Commonwealth together with a statement of his or her opinion. Note for rule 7A.14 The Attorney-General’s Department of the Commonwealth will deal with misdirected and non-compliant requests, make arrangements for the service of extrajudicial documents and assess and decide questions concerning Australia’s sovereignty and security. Supreme Court Rules 1987 46 7A.15 Service (1) Subject to rule 7A.14, on receipt of a request for service in this jurisdiction, the Court must arrange for the service of the relevant documents in accordance with the request. (2) The relevant documents mentioned in subrule (1) are the following: (a) the document to be served; (b) a summary of the document to be served; (c) a copy of the request for service in this jurisdiction; (d) if either of the documents mentioned in paragraphs (a) and (b) is not in the English language, an English translation of the (3) Service of the relevant documents may be effected by any of the following methods of service: (a) by a method of service prescribed by the law in force in this jurisdiction: (i) for the service of a document of a kind corresponding to the document to be served; or (ii) if there is no such corresponding kind of document – for the service of initiating process in proceedings in the (b) if the applicant has requested a particular method of service and that method is compatible with the law in force in this jurisdiction – by that method; (c) if the applicant has not requested a particular method of service and the person requested to be served accepts the document voluntarily – by delivery of the document to the person requested to be served. 7A.16 Affidavit as to service (1) If service of a document has been effected pursuant to a request for service in this jurisdiction, the person by whom service has been effected must file with the Court an affidavit specifying: (a) the time, day of the week and date on which the document was served; and (b) the place where the document was served; and Supreme Court Rules 1987 47 (c) the method of service; and (d) the person on whom the document was served; and (e) the way in which that person was identified. (2) If attempts to serve a document pursuant to a request for service in this jurisdiction have failed, the person by whom service has been attempted must file with the Court an affidavit specifying: (a) details of the attempts made to serve the document; and (b) the reasons that have prevented service. (3) When an affidavit as to service of a document has been filed in accordance with this rule, a Registrar: (a) must complete a certificate of service, sealed with the seal of the Court, on the reverse side of, or attached to, the request for service in this jurisdiction; and (b) must forward the certificate of service, together with a statement as to the costs incurred in relation to the service or attempted service of the document, directly to the forwarding authority from which the request was received. (4) A certificate of service must be: (a) in accordance with Part 2 of Form 7A-A; or (b) if a form or certificate that substantially corresponds to Part 2 of Form 7A-A accompanies the request for service – in that accompanying form. 8.01 Application This Order applies to a proceeding commenced by writ or 8.02 Appearance before taking step Except as provided by rule 8.08 or 8.09 or by leave of the Court, a defendant shall not take a step in a proceeding unless he has first filed an appearance. Supreme Court Rules 1987 48 8.03 Who to file appearance (1) Except as provided in rule 15.02, a defendant may file an appearance by a solicitor or in person. (2) A corporation may file an appearance by a person duly authorized by it to so act. 8.04 Time for appearance Unless the Court otherwise orders, the time stated in the writ or originating motion for the defendant to file an appearance shall be: (a) where the originating process to be served in the Territory: (i) is filed in the Darwin Registry and the place of service is within 200 Kilometres from Darwin – not less than 7 days after service; (ii) is filed in the Alice Springs Registry and the place of service is within 200 Kilometres from Alice Springs – not less than 7 days after service; or (iii) is filed in the Darwin or Alice Springs Registry and place of service is not within 200 Kilometres from the filing Registry – not less than 14 days after service; (b) where the originating process is to be served elsewhere within the Commonwealth – not less than 21 days after service; (c) where the originating process is to be served in New Zealand or in Papua New Guinea – not less than 28 days after service; and (d) in any other case – not less than 42 days after service. 8.05 Mode of filing appearance (1) An appearance shall be filed by filing a notice of appearance in the Registry in which the originating process is filed and, on the same or the next working day, serving on the plaintiff a copy of the notice sealed in accordance with subrule (3). (2) A notice of appearance shall be in Form 8A. (3) On the filing of a notice of appearance the Proper officer shall seal with the seal of the Court a sufficient number of copies for service. (4) A sealed copy of the notice of appearance shall be taken to have been duly served on the plaintiff if on the day the notice is filed, or Supreme Court Rules 1987 49 on the next working day, the defendant takes an appropriate step in accordance with rule 6.06(1) to serve the copy on the plaintiff. 8.06 Content of notice of appearance (1) A notice of appearance shall state: (a) where the defendant appears in person – the address of the defendant and, if that address is out of the Territory, an address of the defendant in the Territory for service; or (b) where the defendant appears by a solicitor – the address of the defendant and the name or firm and the business address in the Territory of the solicitor and also, if the solicitor is an agent of another, the name or firm and the business address of the principal. (2) Where a solicitor shown in a notice of appearance is a firm or body corporate, the notice shall also show the member of the firm or body corporate having responsibility for the conduct of the matter. (3) Where the address of a defendant shown in a notice of appearance is not genuine, the Court may set aside the appearance and allow the plaintiff to continue the proceeding as if the appearance had not been filed. 8.07 Late appearance (1) A defendant may file an appearance at any time, but after judgment an appearance shall not be filed without the leave of the Court. (2) Where a defendant files an appearance after the time for appearance stated in the writ or originating motion, the time he has within which to serve a defence or for any other purpose, unless the Court otherwise orders, shall be calculated from the last day for appearance according to the writ or originating motion. 8.08 Conditional appearance (1) A defendant may file a conditional appearance. (2) A notice of conditional appearance shall be in Form 8B. (3) A conditional appearance shall have effect for all purposes as an unconditional appearance unless, on application by the defendant, the Court otherwise orders. (4) An application under subrule (3) shall be made by summons within 14 days after the day the conditional appearance is filed. Supreme Court Rules 1987 50 8.09 Setting aside writ or originating motion Notwithstanding rule 8.08, the Court may exercise its jurisdiction to: (a) set aside a writ or originating motion or its service; (b) make an order under rule 46.08; or (c) stay a proceeding, on application made by the defendant before filing an appearance, whether conditional or not. 9.01 Joinder of claims A plaintiff may join any number of claims against a defendant whether the plaintiff makes the claims in the same or in different capacities and whether the claims are made against the defendant in the same or in different capacities. 9.02 Permissive joinder of parties (1) Two or more persons may be joined as plaintiffs or defendants in a proceeding: (a) where: (i) if separate proceedings were brought by or against each of them, a common question of law or fact would arise in all the proceedings; and (ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or (b) subject to subrule (2), where the Court, before or after the joinder, gives leave to do so. (2) The Court shall not give leave under subrule (1)(b) unless it is satisfied that the joinder: (a) will not embarrass or delay the trial of the proceeding; (b) will not prejudice a party; or (c) is not otherwise inconvenient. Supreme Court Rules 1987 51 9.03 Joinder of necessary parties (1) Except by order of the Court or as provided by or under an Act, where the plaintiff claims relief to which any other person is entitled jointly with him, all persons so entitled shall be parties to the proceeding, and a person who does not consent to being joined as a plaintiff shall be made a defendant. (2) Where the plaintiff claims relief against a defendant who is liable jointly with another person and also liable severally, that other person need not be made a defendant to the proceeding. (3) Where persons are liable jointly, but not severally, under a contract and the plaintiff in respect of that contract claims against some but not all of those persons, the Court may stay the proceeding until the other persons so liable are added as defendants. (4) The Court may make an order under subrule (1) before or after the non-joinder. 9.04 Joinder inconvenient Notwithstanding rules 9.01 and 9.02, where a joinder of claims or parties may embarrass or delay the trial of the proceeding or cause prejudice to a party or is otherwise inconvenient, the Court may order that: (a) there be separate trials; (b) a claim be excluded; (c) a party be compensated by an award of costs or otherwise for being required to attend, or be relieved from attending, any part of a trial in which he has no interest; or (d) a person made a party cease to be a party on condition that the person be bound by the determination of the questions in the proceeding or without any such condition. 9.05 Effect of misjoinder or non-joinder of party A proceeding shall not be defeated by reason of the misjoinder or non-joinder of a party or person and the Court may determine all questions in the proceedings so far as they affect the rights and interests of the parties. Supreme Court Rules 1987 52 9.06 Additional, removal, substitution of party At any stage of a proceeding the Court may order that: (a) a person who is not a proper or necessary party, whether or not he was one 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 or whose presence before the Court is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated on; or (ii) a person between whom and a party to the proceeding there may exist a question arising out of, or relating to or connected with, a claim in the proceeding which it is just and convenient to determine as between that person and that party as well as between the parties to the (c) a person to whom paragraph (b) applies be substituted for one to whom paragraph (a) applies. 9.07 Procedure for addition of party (1) A person shall not be added as a plaintiff without his consent signified in writing or in such other manner as the Court orders. (2) An application by a person for an order adding him as a party shall, unless the Court otherwise orders, be supported by an affidavit showing his interest in the questions in the proceeding or the question to be determined as between him and a party to the (3) Without limiting rule 9.06(b), where a person not a party to a proceeding for the recovery of land is in possession by himself or by a tenant of the whole or a part of the land, the Court may order that he be added as a defendant. 9.08 Defendant deceased at commencement of proceeding (1) Where a cause of action survives against the estate of a deceased person, a person wishing to obtain a judgment in respect of that cause of action may, if no grant of representation has been made, bring a proceeding against the estate of the deceased. (2) Without limiting subrule (1), a proceeding brought against "the estate of A.B. deceased" shall be taken to have been brought against "A.B's" estate in accordance with that subrule. Supreme Court Rules 1987 53 (3) A proceeding commenced naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and no grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the estate of the deceased in accordance with subrule (1). (4) A proceeding naming as defendant a person who was dead when the proceeding commenced shall, if the cause of action survives and a grant of representation had been made at the time the proceeding commenced, be taken to have been commenced against the personal representative of the deceased as representing the estate of the deceased. (5) In a proceeding within subrule (1) or (3), the Court may appoint a person to represent the estate of the deceased for the purpose of the proceeding or, if a grant of representation has been made since the commencement of the proceeding, order that the personal representative of the deceased be made a party to the proceeding, and order that the proceeding be carried on against the person so appointed or against the personal representative, as if he had been substituted for the estate. (6) In a proceeding within subrule (4), the Court may order that the personal representative of the deceased be made a party and that the proceeding be carried on against the personal representative as representing the estate of the deceased. (7) An application for an order under subrule (5) or (6) shall be made during the period of validity for service of the writ or other originating process, unless the Court otherwise orders. (8) Before making an order under subrule (5), the Court may require notice to be given to an insurer of the deceased who has an interest in the proceeding and to a person having an interest in the estate. (9) Where no grant of representation has been made, a judgment or order given or made in the proceeding shall bind the estate of the deceased to the same extent as it would have been bound if a grant had been made and a personal representative of the deceased had been a party to the proceeding. (10) In this rule grant of representation means a grant of probate or administration in the Territory or the resealing of a foreign grant in the Territory. 9.09 Change of party on death, bankruptcy (1) Where a party to a proceeding dies but the cause of action survives, or where a party becomes bankrupt, the proceeding shall not abate by reason of the death or bankruptcy but may be carried Supreme Court Rules 1987 54 on in accordance with subrule (2). (2) Where at any stage of a proceeding the interest or liability of a party is assigned or transmitted to or devolves on another person, the Court may order that the other person be added as a party to the proceeding or made a party in substitution for the original party and that the proceeding be carried on as so constituted. (3) Unless the Court otherwise directs, the person on whose application an order is made under subrule (2) shall serve the order on every party to the proceeding and on every person who ceases to be a party or becomes a party as plaintiff by virtue of the order and, in the case of a person who becomes a defendant, shall serve that person personally with the order and with the writ or other originating process sealed in accordance with rule 5.11. (4) A person on whom originating process is served in accordance with subrule (3) shall file an appearance in the proceeding within such time as the Court directs. (5) Where an order is made without notice to a person on whom it is served, an application by the person to set aside or vary the order shall be made within 14 days after service. 9.10 Failure to proceed after death of party (1) Where a party dies and a cause of action in the proceeding survives but no order is made under rule 9.09(2) substituting a personal representative of the deceased party as party, the Court may, on application by a party or by a person to whom liability on the cause of action survives on the death, order that, unless an order for substitution is made within a specified time, the proceeding be dismissed so far as concerns relief on the cause of action for or against the person to whom the cause of action or the liability or the cause of action survives on the death. (2) On making an order under subrule (1), the Court may, whether or not a grant of representation within the meaning of rule 9.08(10) has been made, direct that, if the proceeding is dismissed by virtue of the order, costs of the proceeding be awarded: (a) where the plaintiff dies – to the defendant against the personal representative of the deceased out of the estate of the (b) where the defendant dies – to the personal representative of the deceased against the plaintiff. (3) Where the plaintiff dies, the Court shall not make an order under subrule (1) unless due notice of the application for it has been given Supreme Court Rules 1987 55 to the personal representative, if any, of the deceased and to all other persons having an interest in the estate of the deceased who, in the opinion of the Court, should be notified. (4) Where a defendant serves a counterclaim, this rule, with the necessary changes, applies as if the plaintiff were the defendant and the defendant were the plaintiff. 9.11 Amendment of proceedings after change of party (1) Where an order is made under rule 9.06 or 9.08, the writ or other originating process filed in the Court shall be amended accordingly within the time specified in the order or, where no time is specified, within 14 days after the making of the order, and a reference to the order, the date of the order and the date on which the amendment is made shall be endorsed on the originating process. (2) The filing of a copy of the originating process amended and endorsed as required by subrule (1) is a sufficient compliance with that subrule. (3) Where an order is made under rule 9.06 or 9.08 adding or substituting a person as defendant: (a) the proceeding against the new defendant commences on the amendment of the filed originating process in accordance with subrule (1) or (2); (b) the plaintiff shall serve the amended originating process on that defendant within such time as the Court directs and, unless the Court otherwise orders, it shall be served personally; and (c) unless the Court otherwise orders: (i) where the new defendant is an added defendant – the proceeding shall be continued as if the new defendant were an original defendant; and (ii) where the new defendant is a substituted defendant – all things done in the course of the proceeding before it was commenced against the new defendant shall have effect in relation to the new defendant as they had in relation to the old defendant, except that the filing of an appearance by the old defendant shall not dispense with the filing of an appearance by the new. Supreme Court Rules 1987 56 9.12 Consolidation or trial together (1) Where 2 or more proceedings are pending in 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 the proceedings to be consolidated, or to be tried at the same time or one immediately after the other, or may order any of them to be stayed until after the determination of any other of them. (2) An order for the trial together of 2 or more proceedings or for the trial of one immediately after the other, shall be subject to the discretion of the trial Judge. 9.13 Conduct of proceeding The Court may give the conduct of the whole or a part of a proceeding to such person as it thinks fit. 10.01 Application of order This Order applies only to a proceeding commenced by writ and to a proceeding in respect of which an order has been made under rule 4.07(a). 10.02 When counterclaim allowed (1) A defendant who has a claim against the plaintiff may counterclaim (2) Rule 9.01 applies to a counterclaim as if the plaintiff were the defendant and the defendant were the plaintiff. (3) A defendant who counterclaims shall plead his defence and the counterclaim in one document called a defence and counterclaim. 10.03 Counterclaim against plaintiff and another person A defendant may join with the plaintiff as defendant to the counterclaim another, whether a party to the proceeding or not, Supreme Court Rules 1987 57 who, if the defendant were to bring a separate proceeding, could be properly joined with the plaintiff as a party in accordance with rule 9.02. 10.04 Procedure after counterclaim against another person (1) Where a defendant joins a person as a defendant to the counterclaim under rule 10.03, the defence and counterclaim shall contain a second title of the proceeding showing who is the plaintiff to the counterclaim and who are the defendants to it. (2) The defendant shall serve on the person joined as a defendant to the counterclaim a copy of the defence and counterclaim and: (a) where the person so joined is already a party to the proceeding – the copy shall be served within the time fixed by rule 14.04 for serving a defence; and (b) where the person joined is not already a party – the copy shall be served personally and, unless the Court otherwise orders, shall be served within 14 days after the expiration of the time fixed by rule 14.04 for serving a defence. (3) The person joined as a defendant to the counterclaim shall, on service of a copy of the defence and counterclaim, if not already a party, become a party and be in the same position as if he had been sued as defendant in the ordinary way by the defendant making the counterclaim. (4) Without limiting subrule (3), where the person joined as defendant to the counterclaim is not already a party to the proceeding, Orders 8, 11, 14 and 21 apply as if the counterclaim were a writ the endorsement of claim on which constituted a statement of claim in accordance with rule 5.04, the defendant making the counterclaim were a plaintiff and the person joined were a defendant in the (5) A counterclaim served on a defendant to the counterclaim who is not already a party shall commence with a notice in Form 10A. (6) A notice of appearance by a defendant to a counterclaim who is not already a party shall be in Form 10B. 10.05 Trial of counterclaim A counterclaim shall be tried at the trial of the claim of the plaintiff Supreme Court Rules 1987 58 10.06 Counterclaim inconvenient Notwithstanding rules 10.02, 10.03 and 10.05, where a counterclaim may embarrass or delay the trial of the claim of the plaintiff or cause prejudice to a party or otherwise cannot conveniently be tried with that claim, the Court may: (a) order separate trials of the counterclaim and the claim of the plaintiff; (b) order that a claim included in the counterclaim be excluded; (c) strike out the counterclaim without prejudice to the right of the defendant to assert the claim in a separate proceeding; or (d) order that a person joined as a defendant to the counterclaim cease to be a party to it. 10.07 Stay of claim Where the defendant by his defence admits the claim of the plaintiff and counterclaims, the Court may stay the original proceeding until the counterclaim is disposed of. 10.08 Counterclaim on stay, etc., of original proceeding A counterclaim may be prosecuted notwithstanding that judgment is given for the plaintiff in the original proceeding or that the original proceeding is stayed, discontinued or dismissed. 10.09 Judgment for balance Where the plaintiff succeeds on the claim and the defendant succeeds on the counterclaim and a balance in favour of one of them results, the Court may give judgment for the balance. 11.01 Claim by third party notice Where a defendant claims as against a person not already a party to the proceeding (in this Order called the third party): (a) a contribution or indemnity; (b) relief or a remedy relating to or connected with the original subject-matter of the proceeding and substantially the same as some relief or remedy claimed by the plaintiff; or Supreme Court Rules 1987 59 (c) that a question relating to or connected with the original subject-matter of the proceeding should be determined not only as between the plaintiff and the defendant but also as between either or both of them and the third party, the defendant may join the third party as a party to the proceeding, and make the claim against the third party, by filing and serving a third party notice. 11.02 Statement of claim on third party notice A third party notice shall be in Form 11A, and shall be endorsed with a statement of claim. 11.03 Time for appearance (1) A third party notice shall state a time within which the third party may file an appearance in the proceeding. (2) The time under subrule (1) shall be: (a) where the notice is to be served in the Territory – within the time limited by rule 8.04(a); and (b) where the notice is to be served out of the Territory – (i) within the time limited by rule 8.04(b), (c), or (d) in the case of appearance by a defendant to a writ, whichever is appropriate; or (ii) within the time limited by an order of the Court authorizing service of the notice. 11.04 Filing and service of third party notice (1) A claim by third party notice shall be commenced by filing the notice in the Court, whereupon the third party becomes a party to the (2) A third party notice shall be filed and served on the third party in the same manner as originating process is filed and served on a 11.05 Time for third party notice (1) In a proceeding commenced by writ or in respect of which an order has been made under rule 4.07(a), a defendant may not file a third party notice until he has first served a defence. Supreme Court Rules 1987 60 (2) A defendant may file a third party notice: (a) within 28 days after the time limited for the service of a defence; or (b) at any time with the leave of the Court or the consent in writing of the plaintiff and all other parties who have appeared. 11.06 Leave to file third party notice An application for leave to file a third party notice shall be made on notice to the plaintiff but the Court may direct notice to be given to any other party who has appeared. 11.07 Period of service (1) A third party notice shall be served on the third party within 60 days after it is filed. (2) Notwithstanding subrule (1), the Court may fix another period for the service of a third party notice either before the notice is filed or at the time it grants leave under rule 11.05(2) to file the notice. (3) Where a third party notice has not been served on the third party, the Court, from time to time by order, may extend the period for service of the notice for such further period as it thinks fit. (4) An order may be made under subrule (3) before or after expiry of the period for service. (5) At the time of service of a third party notice on a third party there shall also be served a copy of: (a) an order or consent under rule 11.05(2)(b); (b) an order under subrule (2) made before the third party notice was filed fixing a period for service of the notice; (c) an order under subrule (3); (d) the writ or other originating process; and (e) any pleadings or affidavits filed and served in the proceeding. (6) Within the period for service of the third party notice on the third party, a copy of the notice shall be served on the plaintiff and on all other parties who have appeared. Supreme Court Rules 1987 61 (7) If a copy of the third party notice is not served in accordance with subrule (6), the Court may, on application by the plaintiff or the third party, order that the questions between the plaintiff and the defendant be tried before and separately from the questions between the defendant and the third party. 11.08 Appearance by third party (1) A third party may file an appearance within the time limited for appearance or within such further time as the Court allows. (2) A third party who files an appearance shall, on the same day, serve a sealed copy of the notice of appearance on the plaintiff. (3) Rule 8.05, with the necessary changes, applies to an appearance by a third party under this rule. 11.09 Defence of third party (1) A third party who files an appearance shall serve a defence to the statement of claim endorsed on the third party notice, within 14 days after filing the appearance. (2) The third party may, on a ground not raised by the defendant in his defence, serve a defence to the statement of claim of the plaintiff by which he disputes the liability to the plaintiff of the defendant by whom the third party was joined. (3) Rule 14.09 applies to a claim by a third party notice as if the claim were a proceeding commenced by writ. (4) Where a third party files an appearance, the defendant by whom he was joined shall serve on the third party a copy of all pleadings that may from time to time be served between the plaintiff and that 11.10 Counterclaim by third party (1) A third party who has a claim against the defendant may assert the claim in the proceeding by way of counterclaim and rule 10.02 applies as if the claim by the third party notice were a proceeding (2) A third party who counterclaims may join the plaintiff as defendant to the counterclaim along with the defendant if the plaintiff and defendant could be joined properly as defendants in accordance with rule 9.02 in a separate proceeding brought against them by the third party. Supreme Court Rules 1987 62 11.11 Default by third party (1) Where at the time a judgment is entered or given for the plaintiff against the defendant by whom the third party was joined the third party has not filed an appearance or after appearance has not served a defence and the time limited for filing an appearance or serving a defence has expired: (a) the third party shall be taken to admit the claims stated in the third party notice and shall be bound by the judgment between the plaintiff and the defendant insofar as it is relevant to the claim or question stated in the notice; and (b) the defendant may at any time after satisfaction of the judgment or, with the leave of the Court, before satisfaction, enter judgment against the third party for a contribution or indemnity claimed in the notice and, with the leave of the Court, for any other relief or remedy claimed. (2) If a third party or the defendant by whom he was joined fails to serve a pleading within the time limited, the Court may give such judgment for the party not in default or make such orders as it (3) The Court may set aside or vary a judgment or order made or given under subrule (1)(b) or (2). 11.12 Discovery and trial Where the third party files an appearance: (a) the third party and the defendant by whom he was joined may have discovery of one another; and (b) unless the Court otherwise orders: (i) the third party may attend and take part at the trial of the proceeding; (ii) at the trial the questions between the defendant and the third party shall be tried concurrently with the questions between the plaintiff and the defendant; and (iii) the third party shall be bound by the result of the trial. Supreme Court Rules 1987 63 11.13 Third party directions (1) Where the third party files an appearance, the Court may: (a) where the liability of the third party to the defendant by whom he was joined as third party is established – give judgment for that defendant against the third party; (b) order that a claim or question stated in the third party notice be tried in such manner as it directs; (c) give the third party leave to defend the proceeding, either alone or jointly with a defendant, or to attend and take part at the trial; and (d) generally make such orders and give such directions as are necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated on and as to the extent to which the third party is to be bound by a judgment or decision in the proceeding. (2) The Court may make an order or give a direction under subrule (1) either before or after a judgment in the proceeding has been entered or given for the plaintiff against the defendant and may, at any time, vary or rescind such an order or direction. 11.14 Judgment between defendant and third party (1) Where a third party has been joined under this Order, the Court may, at or after the trial of the proceeding or on its determination otherwise than by trial, give judgment for the defendant by whom the third party was joined against the third party or for the third party against that defendant. (2) Where judgment is given for the plaintiff against the defendant and judgment is given for that defendant against a third party, unless the Court otherwise orders, the judgment against the third party shall not be enforced until the judgment against the defendant has been satisfied. 11.15 Claim against another party (1) Where a party claims as against another party a relief of the kind described in rule 11.01, the party may make the claim against the other party by filing and serving a notice in accordance with this (2) Subrule (1) does not apply where the claim could be made by counterclaim in the proceeding. Supreme Court Rules 1987 64 (3) No appearance to a notice under subrule (1) is necessary if the party on whom it is served has filed an appearance in the proceeding or is a plaintiff, but otherwise this Order, with the necessary changes, applies as if the defendant had filed and served a third party notice under rule 11.01 and the party on whom the notice was served were a third party joined under that rule. (4) Except as provided by subrule (5), a notice under subrule (1) shall, with the necessary changes, be in accordance with Form 11A and be endorsed with a statement of claim. (5) Where a party claims against another party contribution pursuant to section 12 of the Law Reform (Miscellaneous Provisions) Act 1956, a notice under subrule (1) shall be in accordance with Form 11B. 11.16 Fourth and subsequent parties (1) Where a third party has filed an appearance this Order, with the necessary changes, applies as if the third party were a defendant. (2) Where a person joined under this Order as a party by a third party has filed an appearance, this Order as applied by this rule has effect as regards such further person and any other person or persons so joined and so on successively. (3) A third or subsequent party may not make a claim against another person (whether that person is a party to the proceeding or not) by notice under this Order without the leave of the Court. 11.17 Counterclaim Where a defendant has served a counterclaim, this Order, with the necessary changes, applies as if the defendant were the plaintiff and the plaintiff were the defendant. 12.01 Definitions claimant means a person making a claim to or in respect of property in dispute. execution creditor means a person for whom a warrant is issued. property in dispute means a debt or other property which is the subject of proceedings under this Order. Supreme Court Rules 1987 65 sheriff includes a person to whom a warrant of execution is stakeholder means an applicant under rule 12.02. warrant means a warrant of execution under this Chapter. 12.02 Stakeholder's interpleader (a) a person is under a liability (otherwise than as a sheriff) in respect of a debt or other personal property; and (b) he is sued or expects to be sued in a court for or in respect of the debt or property by 2 or more persons making adverse claims to or in respect of the debt or property, the Court may, on application by him, grant relief by way of interpleader. (2) Where a stakeholder is sued in a proceeding in the Court for or in respect of the property in dispute, an application under subrule (1) shall be made by summons in the proceeding. (3) A summons under subrule (2) shall be served on each party to the proceeding who is a claimant and shall be served personally on each claimant who is not a party. (4) Where subrule (2) does not apply, an application under subrule (1) shall be commenced by originating motion in which all claimants are joined as defendants. 12.03 Sheriff's interpleader (1) Where a sheriff takes or intends to take personal property under a warrant, a person making a claim to or in respect of the property or the proceeds or value of the property may give notice in writing of his claim to the sheriff. (2) A notice of claim under subrule (1) shall: (a) state the name and address of the claimant, which address shall be the address for service; (b) identify each item of personal property the subject of the claim; and (c) state the grounds of the claim. Supreme Court Rules 1987 66 12.04 Sheriff's summons to state claim (1) Where a person who is entitled to give notice under rule 12.03 does not, within a reasonable time after having knowledge of the facts, give notice under that rule, the Court may, on application by the sheriff, restrain the commencement or stay or restrain the continuance by the person of a proceeding in a court against the sheriff for or in respect of anything done by the sheriff in execution of the warrant after the time when the person might reasonably have given notice under that rule. (2) A sheriff may apply for an order under subrule (1) by summons in the proceeding in which the warrant is issued and, if he so applies, he shall serve the summons personally on the person against whom the order is sought. 12.05 Notice to execution creditor (1) A sheriff shall on being given a notice of claim under rule 12.03, without delay, serve a copy of the notice, and also a notice in accordance with Form 12A, on the execution creditor. (2) The execution creditor may serve on the sheriff notice in writing that he admits or disputes the claim. 12.06 Admission of claim Where an execution creditor admits a claim by notice under rule 12.05(2): (a) he shall not be liable for any fees or expenses incurred by the sheriff under the warrant after the notice is given; (b) the sheriff shall withdraw from possession of the property claimed; and (c) the Court may, on application by the sheriff, restrain the commencement or stay or restrain the continuance by the person whose claim is admitted of proceedings in a court against the sheriff or in respect of anything done by the sheriff in execution of the warrant. Supreme Court Rules 1987 67 12.07 Interpleader summons (1) Where under rule 12.05 a sheriff has served a notice of claim and a notice in accordance with Form 12A on the execution creditor, the sheriff may, by summons in the proceeding in which the warrant is issued, apply to the Court for relief by way of interpleader if the execution creditor: (a) does not within 7 days after the service of the notices under rule 12.05 serve on the sheriff notice in writing that he admits the claim; or (b) within that period of 7 days serves on the sheriff notice in writing that he disputes the claim, and the Court may, if the claim has not been withdrawn, grant that relief. (2) A summons under subrule (1) shall be served on each party to the proceeding who claims an interest in the property in dispute and shall be served personally on each claimant who is not a party. 12.08 Powers of Court On application for relief by way of interpleader, the Court may: (a) where a proceeding in the Court is pending in which the applicant is sued for or in respect of any of the property in dispute – order that a claimant be added as a defendant in the proceeding in addition to or in substitution for the applicant, or order that the proceeding be stayed or dismissed; (b) order that a question between the claimants be stated and tried and direct which of the claimants is to be plaintiff and which defendant; (c) where proceedings in another court are pending in which the applicant is sued for or in respect of any of the property in dispute restrain the further continuance of those proceedings; (d) order the applicant to pay or transfer any of the property in dispute into court or otherwise to dispose of it; (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; and Supreme Court Rules 1987 68 (g) make such order or give such judgment as it thinks fit. 12.09 Default by claimant (1) Where a claimant: (a) has been given due notice of the hearing of an application for relief by way of interpleader and does not attend on the (b) does not comply with an order made on such an application, the Court may order that the claim 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 as between themselves. 12.10 Neutrality of applicant (1) Where a stakeholder applies for relief by way of interpleader, the Court may dismiss the application or give judgment against the applicant, unless it is satisfied that the applicant: (a) claims no interest in the property in dispute except for charges or costs; and (b) does not collude with a claimant. (2) Where a sheriff applies for relief by way of interpleader, the Court may require him to satisfy it on the matters mentioned in subrule (1) and it may, if not satisfied on those matters, dismiss the application. (3) Nothing in this rule affects the power of the Court in other cases to dismiss the application or give judgment against the applicant. 12.11 Order in several proceedings (1) Where an application for relief by way of interpleader is made and several proceedings are pending in the Court for or in respect of any of the property in dispute, the Court may make an order in any 2 or more of those proceedings. (2) An order made under subrule (1) shall be entitled in all the proceedings in which it is made and is binding on all the parties to them. Supreme Court Rules 1987 69 12.12 Trial of interpleader question (1) Order 49, with the necessary changes, applies to the trial of an interpleader question. (2) On the trial of an interpleader question the Court may finally determine all question arising on the application for relief by way of interpleader. (3) An interpleader question, including any other question arising on the application for relief, may, with the consent of all parties, be tried by an Associate Judger. 13.01AA General (1) A party or the party's legal practitioner must ensure that each of the following properly identifies only the real issues of substance that are in dispute between the parties: (a) a pleading; (b) a response to a pleading; (c) a request for particulars of a pleading; (d) a response to a request for particulars of a pleading. (2) Subrule (1) applies in relation to a pleading, response or request mentioned in subrule (1), despite any other rule. 13.01 Formal requirements (1) A pleading shall: (a) specify the name of the legal practitioner, if any, who has the conduct of the proceeding on behalf of the party filing the pleading; and (b) be signed in accordance with subrule (3) and dated; and (c) contain a description of the pleading; and (d) be divided into paragraphs numbered consecutively and each allegation, so far as practicable, shall be contained in a separate paragraph. Supreme Court Rules 1987 70 (2) Where a pleading has been settled by counsel or a legal practitioner other than the legal practitioner referred to in subrule (1)(a), the name of counsel or that other legal practitioner and the fact that it was so settled shall be noted on the pleading. (3) A pleading shall be signed by the legal practitioner who settled it or, where the pleading was not settled by a legal practitioner, by the 13.02 Content of pleading (1) A pleading shall: (a) 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; (b) where a claim, defence or answer of the party arises by or under an Act identify the specific provision relied on; and (c) state specifically the relief or remedy, if any, claimed. (2) A party may, by his pleading: (a) raise a point of law; and (b) plead a conclusion of law if the material facts supporting the conclusion are pleaded. 13.03 Document or conversation The effect of a document or the purport of a conversation, if material, shall be pleaded as briefly as possible and the precise words of the document or conversation shall not be pleaded unless those words are themselves material. 13.04 Fact presumed true A party need not plead a fact if it is presumed by law to be true or the burden of disproving it lies on the opposite party, unless the other party has specifically denied it in his pleading. 13.05 Condition precedent An allegation of the performance or occurrence of a condition precedent necessary for the claim or defence of a party shall be implied in the party's pleading. Supreme Court Rules 1987 71 13.06 Implied contract or relation Where it is alleged that a contract or relation between persons is to be implied from a series of letters or conversations or other circumstances, it shall be sufficient to allege the contract or relation as a fact and to refer generally to the letters, conversations or circumstances without setting them out in detail. 13.07 Matter which must be pleaded (1) A party shall, in a pleading subsequent to a statement of claim, plead specifically a fact or matter which: (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 not arising out of the preceeding (2) In a proceeding for the recovery of land: (a) the endorsement of a claim on the writ or, if that endorsement does not constitute a statement of claim, the statement of claim, shall describe the land so that it is physically identifiable; and (b) the defendant shall plead specifically every ground of defence on which he relies and a plea that he is in possession of the land by himself or his tenant is not sufficient. (3) A claim for exemplary damages shall be specifically pleaded together with the facts on which the party pleading relies. 13.08 Subsequent fact A party may plead a fact or matter which has arisen at any time, whether before or since the commencement of the proceeding. 13.09 Inconsistent pleading (1) A party may in a pleading make inconsistent allegations of fact if the pleading makes it clear that the allegations are pleaded in the alternative. (2) A party shall not in a pleading make an allegation of fact, or raise a new claim, inconsistent with an allegation made or claim raised in a previous pleading by him. Supreme Court Rules 1987 72 (3) Subrule (2) does not affect the right of a party to amend, or apply for leave to amend, his previous pleading so as to plead the allegations or claims in the alternative. 13.10 Particulars of pleading (1) A pleading shall contain the necessary particulars of a fact or matter pleaded. (2) Without limiting subrule (1), particulars shall be given if they are necessary to enable the opposite party to plead or to define the questions for trial or to avoid surprise at the trial. (3) Without limiting subrule (1), a pleading shall contain particulars of any: (a) misrepresentation, fraud, breach of trust, wilful default or undue influence; or (b) disorder or disability of the mind, malice, fraudulent intention or other condition of the mind, including knowledge or notice, which is alleged. (4) The pleading of a party who claims damages for bodily injury shall state: (a) particulars, with dates and amounts, of all earnings lost in consequence of the injury complained of; (b) particulars of loss of earning capacity, if any, resulting from the injury; (c) the date of the party's birth; and (d) the name and address of each of the party's employers commencing from the day being 12 months before he sustained the injury, the time of commencement and the duration of each employment and the total net amount, after deduction of tax, that was earned in each employment. (5) In a proceeding for libel the endorsement of a claim on the writ or, if that endorsement does not constitute a statement of claim, the statement of claim, shall state sufficient particulars to identify the publication in respect of which the proceeding is commenced. (6) Particulars of a debt, damages or expenses which exceed a page shall be set out in a separate document referred to in the pleading and the pleading shall state whether the document has already been served (and, if so, when) or is to be served with the pleading. Supreme Court Rules 1987 73 13.11 Order for particulars (1) The Court may order a party to serve on another party particulars or further and better particulars of a fact or matter stated in the party's pleading or in an affidavit filed on his behalf ordered to stand as a (2) The Court shall not make an order under subrule (1) before service of the defence, unless the order is necessary or desirable to enable the defendant to plead or for some other special reason. (3) The Court may refuse to make an order under subrule (1) if the party applying for the order did not first apply by letter for the particulars he requires. 13.12 Admission and denials (1) Except as provided in subrule (4), every allegation of fact in a pleading shall be taken to be admitted unless it is denied specifically or by necessary implication or is stated to be not admitted in the pleading of the opposite party, or unless a joinder of issue under rule 13.13 operates as a denial of it, and a general denial of the allegations, or a general statement that they are not admitted, shall not be sufficient. (3) Where the party pleading intends to prove facts which are different from those pleaded by the opposite party, it is not sufficient for the party merely to deny or not to admit the facts so pleaded but the party shall plead the facts he intends to prove. (4) An allegation that a party has suffered damage, and an allegation as to the amount of damages, shall be taken to be denied unless specifically admitted. 13.13 Denial by joinder of issue (1) No reply or subsequent pleading merely joining issue shall be (2) At the close of pleadings a joinder of issue on the pleading last served shall be implied. (3) No joinder of issue, express or implied, shall be made on a statement of claim or counterclaim. (4) A joinder of issue operates as a denial of every material allegation of fact made in the pleading on which issue is joined unless, in the case of an express joinder of issue, such an allegation is excepted from the joinder and is stated to be admitted, in which case the joinder of issue operates as a denial of every other allegation. Supreme Court Rules 1987 74 13.14 Money claim as defence Where a defendant has a claim against a plaintiff for the recovery of a debt or damages, the claim may be relied on as a defence to the whole or part of a claim made by the plaintiff for the recovery of a debt or damages and may be included in the defence and set off against the plaintiff's claim, whether or not the defendant also counterclaims for that debt or those damages. 13.15 Counterclaim as if it were a statement of claim, and to a defence to counterclaim as if it were a defence. 14.01 Statement of claim endorsed on writ Where the endorsement of a claim on a writ constitutes a statement of claim in accordance with rule 5.04, no statement of claim shall be 14.02 Statement of claim not endorsed on writ Where the endorsement of a claim on a writ does not constitute a statement of claim in accordance with rule 5.04 and a defendant files an appearance, the plaintiff shall serve a statement of claim on that defendant within 14 days after his appearance, unless the 14.03 Alteration of claim as endorsed on writ (1) Where a statement of claim is served in a proceeding commenced by writ, the plaintiff may in the statement alter, modify or extend the claim as endorsed on the writ without amendment of the endorsement. (2) The Court may, by order, allow the plaintiff to serve a statement of claim the effect of which will be to add a new cause of action to, or substitute a new cause of action for, a cause of action disclosed in the writ. (3) Where the Court makes an order under subrule (2), it may further order that the plaintiff amend the endorsement of claim on the writ to make it conform to the statement of claim. Supreme Court Rules 1987 75 14.04 Service of defence In a proceeding commenced by writ, a defendant who files an appearance shall serve a defence: (a) where the endorsement of claim on the writ constitutes a statement of claim in accordance with rule 5.04 – within 14 days after filing the appearance; (b) where the plaintiff serves a statement of claim – within 14 days after service of the statement of claim; or (c) within such time as the Court directs. 14.05 Reply Where the plaintiff is required to serve a reply, it shall be served within 14 days after service of the defence, unless the Court 14.06 Pleading after reply No pleading subsequent to a reply shall be served without an order 14.07 Defence to counterclaim Where the defendant sets up a counterclaim in the defence, the plaintiff or a person joined as a defendant to the counterclaim who is already a party to the proceeding shall serve a reply and defence to the counterclaim or a defence to the counterclaim within 14 days after service of the defence and counterclaim, unless the Court 14.08 Close of pleadings Unless the Court otherwise orders, pleadings shall be closed: (a) where no pleading beyond a defence is ordered or served – at the expiration of 14 days after service of the defence; and (b) where pleadings beyond a defence are ordered or served – at the expiration of 14 days after service of the last of those pleadings. 14.09 Order as to pleadings Notwithstanding anything contained in this Order, in a proceeding commenced by writ the Court may order that: (a) a party serve a pleading; Supreme Court Rules 1987 76 (b) the service of a pleading be dispensed with; or (c) the proceeding be tried without pleadings. 14.10 Filing of pleadings A party who serves a pleading on another party shall, without delay after service, file a copy of the pleading. 15.01 Interpretation In this Order person under a disability means an infant or a person who is incapable (by reason of age, injury, disease, senility, illness or physical or mental infirmity) of managing his affairs in relation to the proceeding. 15.02 Litigation guardian of person under disability (1) Except where otherwise provided by or under an Act, a person under a disability shall commence or defend a proceeding by his (2) Except where otherwise provided by this Chapter, anything in a proceeding that is required or permitted by this Chapter to be done by a party shall or may, if the party is a person under a disability, be done by his litigation guardian. (3) A litigation guardian of a person under a disability shall act by a solicitor. 15.03 Appointment of litigation guardian (1) A person may be a litigation guardian of a person under a disability if he is not himself a person under a disability and he has no interest in the proceeding adverse to that of the person under a (2) Where a person is authorized by or under an Act to conduct legal proceedings in the name of or on behalf of a person under a disability, he shall, unless the Court otherwise orders, be entitled to be the litigation guardian of the person under a disability in a proceeding to which his authority extends. (3) Where after a proceeding is commenced a party to the proceeding becomes a person under a disability, the Court shall appoint a litigation guardian of that party. Supreme Court Rules 1987 77 (4) Where the interests of a party who is a person under a disability so require, the Court may appoint or remove a litigation guardian or substitute another person as the litigation guardian. (5) Where a party has a litigation guardian in a proceeding, no other person shall act as the litigation guardian, unless the Court (6) Except where a litigation guardian has been appointed by the Court, the name of a person shall not be used in a proceeding as the litigation guardian of a person under a disability unless there is first filed in the Registry the written consent of the person to be the (7) A consent under subrule (6) shall include a statement detailing the circumstances that constitute the proposed litigant to be a person under a disability and a certificate by the proposed litigation guardian that he has no interest in the proceeding adverse to that of the person under a disability. 15.04 No appearance by person under disability Where a defendant who is a person under a disability does not file an appearance within the time limited, the plaintiff shall not continue the proceeding unless a person is made the litigation guardian of the defendant in accordance with rule 15.03 or is appointed the litigation guardian by order of the Court. 15.05 Application to discharge or vary certain orders An application to the Court on behalf of a person under a disability served with an order made without notice under rule 9.09 for the discharge or variation of the order shall be made: (a) if a litigation guardian is acting for that person in the proceeding in which the order is made – within 14 days after the service of the order on that person; or (b) if no litigation guardian is acting for that person in that proceeding – within 14 days after the appointment of a litigation guardian to act for him. 15.06 Pleading admission by person under disability Notwithstanding anything in rule 13.12(1), a person under a disability shall not be taken to admit the truth of an allegation of fact made in the pleading of the opposite party unless in his pleading the person states that the allegation is admitted. Supreme Court Rules 1987 78 15.07 Discovery (1) Subject to subrule (2), a party shall be entitled to have discovery of a person under a disability as if that person were not under a (2) The discovery shall be given by the person under a disability or his litigation guardian, whichever is appropriate. 15.08 Compromise of claim by person under disability (1) Where in a proceeding a claim is made by or on behalf of or against a person under a disability, no compromise, payment of money into Court, acceptance of money paid into Court or acceptance of an offer of compromise under Order 26, whenever entered into or made, so far as it relates to that claim, is valid without the approval (2) Application for approval shall be by summons filed not later than 14 days after the compromise, payment or acceptance. (2.1) A copy of an affidavit in support of the application shall not be (3) The Court may dispense with the requirement of a summons where an application for approval is made at the trial of the proceeding. (4) On the application evidence shall be given of the date of the compromise, payment or acceptance and the date of birth of the person under a disability and the dates shall be stated in an order approving the compromise, payment or acceptance. (5) Where the acceptance of an offer of compromise is approved, the person under a disability shall be taken to have made or accepted the offer at the time of approval. (6) Where an order is made approving a compromise by which money is to be paid to a person under a disability, the forms of order in Form 15A and 15B shall, where appropriate, be used. 15.09 Execution against money in Court (a) a person under a disability is required by a judgment to pay money; (b) money stands in court to the credit of that person or he has a beneficial interest in money or funds in court; and Supreme Court Rules 1987 79 (c) under this Chapter the Court, on the application of the person entitled to enforce the judgment: (i) may, order that the money in court, or so much of the money as is sufficient to satisfy the judgment, be paid to that person or, as the case may be; or (ii) make an order imposing a charge on the beneficial interest of the person under a disability in the money or funds in court to secure the payment of the sum due under the judgment. (2) In determining whether to make an order for payment or an order imposing a charge, as the case may be, the Court shall have regard to the fact that the person liable under the judgment is a person under a disability, the purpose for which payment of the money or funds into court was made and the purpose for which the money or funds are held. 15.10 Counterclaim and claim by third party notice against a person under a disability who is joined as a defendant to the counterclaim under rule 10.03 and to a claim by a third party notice by or on behalf of or against a person under a disability. 16.01 Representation of unascertained persons (1) This rule applies to a proceeding relating to: (a) the administration of the estate of a deceased person; (b) property subject to a trust; or (c) the construction of an Act or an instrument. (2) The Court may appoint one or more persons to represent a person (including an unborn person) who or class which is or may be interested (whether presently or for a future, contingent or unascertained interest) in, or affected by, the proceeding where: (a) the person, the class or a member of the class cannot be ascertained or cannot readily be ascertained; (b) the person, class or a member of the class, although ascertained, cannot be found; or Supreme Court Rules 1987 80 (c) although the person or the class and its members can be ascertained and found, it appears to the Court having regard to all the circumstances, including the amount at stake and the degree of difficulty of the point to be determined, it is expedient to make the order for the purpose of saving expense. (3) Where the Court makes an order under subrule (2), a judgment or order in the proceeding shall bind the person or members of the class represented as if he or they were parties. (4) Where a compromise of a proceeding is proposed and some of the persons who are interested in, or who may be affected by, the compromise are not parties (including unborn or unascertained persons) but: (a) there is a party in the same interest who assents to the compromise or on whose behalf the Court sanctions the compromise; or (b) the absent persons are represented by a person appointed under subrule (2) and he so assents, the Court, if satisfied that the compromise is for the benefit of the absent persons, may approve the compromise and order that it shall be binding on the absent persons, and they shall be bound accordingly except where the order is obtained by fraud or non-disclosure of a material fact. 16.02 Beneficiaries (1) Where a party sues or is sued as executor, administrator or trustee: (a) it shall not be necessary to join as a party a person having a beneficial interest in the estate or under the trust; and (b) a judgment or order in the proceeding shall bind all such persons as it does the executor, administrator or trustee. (2) Subrule (1) does not limit the power of the Court to order the addition of a party under rule 9.06 or to make an order under rule 16.01(2). Supreme Court Rules 1987 81 16.03 Deceased person (1) Where a deceased person was interested, or the estate of a deceased person is interested, in a question in a proceeding and the deceased person has no personal representative, the Court may: (a) proceed in the absence of a person to represent the estate of the deceased; or (b) by order (with the consent of the person appointed) appoint a person to represent the estate for the purpose of the (2) An order under subrule (1), and a judgment or order subsequently given or made in the proceeding, binds the estate of the deceased person as it would had a personal representative of the deceased been a party. (3) Before making an order under this rule, the Court may require notice of the application for the order to be given to a person having an interest in the estate. 17.01 Partners (1) Where 2 or more persons carry on business as partners in the Territory, a proceeding may be commenced by or against them in the name of the firm (if any) of which they were partners when the cause of action accrued. (2) Subrule (1) applies where partners sue or are sued by: (a) a partner of the same firm; or (b) partners of another firm, and a partner of the one firm is a partner of the other. 17.02 Disclosure of partners (1) Where a proceeding is commenced by or against partners in the firm name under rule 17.01, another party may, by notice served at the address for service of the partners in the proceeding, require the partners to disclose in writing, within 14 days after service, the name and address of the usual or last known place of residence or of business of each person constituting the firm at the time when the cause of action accrued and whether since that time there has been any and if so what change in the membership of the firm. Supreme Court Rules 1987 82 (2) Where partners fail to comply with a notice under subrule (1), the Court may: (a) where the partners are plaintiffs – order that the proceeding be dismissed; (b) where the partners are defendants order that their defence be struck out; or (c) in either case, make such other orders as it thinks fit. 17.03 Service of originating process (1) Originating process in a proceeding commenced against partners in the firm name under rule 17.01 may be served on: (a) any one or more of the partners; or (b) a person at the principal place of business of the partnership within the Territory who appears to have control or management of the partnership business there. (2) Originating process served under subrule (1) shall be taken to have been duly served on the partners whether or not a partner is out of the Territory. (3) Where a partnership has to the knowledge of the plaintiff been dissolved before the proceeding against the partners has commenced, the originating process shall be served on every person sought to be made liable in the proceeding. (4) Every person on whom originating process is served under subrule (1) shall be informed by notice in writing given at the time of service whether he is served as a partner or as a person having the control or management of the partnership business or in both characters and, in default of such notice, the person served shall be taken to be served as a partner. 17.04 Appearance by partners Partners sued in the name of their firm shall appear individually in their own names but the proceeding shall, nevertheless, continue in the name of the firm. 17.05 No appearance except by partners A person served with originating process as a person having the control or management of the partnership business shall not file an appearance unless he is a partner. Supreme Court Rules 1987 83 17.06 Appearance under objection of person sued as partner (1) A person served with originating process as a partner may file an appearance stating that he does so as a person served as a partner and that he denies that he was a partner at a material time or is liable as such. (2) An appearance filed under subrule (1) shall not preclude the plaintiff from otherwise serving the partners and, if no party has filed an appearance in the ordinary form, from obtaining judgment against the partners in the name of the firm in default of appearance. (3) Where an appearance is filed under subrule (1): (a) the plaintiff may either apply to set it aside on the ground that the person filing it was a partner or is liable as a partner or leave that question to be determined at a later stage of the proceeding; (b) the person filing the appearance may either apply to set aside the service on him on the ground that he was not a partner at a material time or liable as such or at the proper time serve a defence on the plaintiff denying in respect of the plaintiff's claim either his liability as a partner or the liability of the partners or both; and (c) the Court may give directions as to the mode and time of trial of the question of the liability of the person who filed the appearance or of the liability of the partners. (4) Rule 8.08 does not apply to an appearance filed under this rule. 17.07 Enforcement of judgment (1) A judgment given or order made against partners suing or sued in the name of their firm may, subject to subrule (2) and rule 17.08, be enforced against: (a) property of the partnership; and (b) a person who: (i) filed an appearance as a partner; (ii) having been served as a partner with originating process, failed to file an appearance; (iii) admitted in his pleading that he is a partner; or Supreme Court Rules 1987 84 (iv) was served with originating process as a partner and was adjudged to be a partner. (2) Where a party who has obtained a judgment or order against partners suing or sued in the name of their firm claims that a person is liable to satisfy the judgment or order as a partner and subrule (1) does not apply in relation to that person, the Court: (a) where liability is not disputed – may order that the judgment or order be enforced against that person; or (b) where the liability is disputed – may give directions for the trial of the question of liability. (3) An application under subrule (2) shall be made by summons served personally on the person against whom enforcement of the judgment or order is sought. 17.08 Enforcement between partners A judgment given or order made against partners suing or being sued in the name of their firm in a proceeding of the kind referred to in rule 17.01(2)(a) or (b) shall not be enforced without the leave of the Court and, on application for leave, the Court may make an order that necessary accounts and inquiries be taken and made. 17.09 Attachment of debts (1) A debt due or accruing due from partners may be attached under this Chapter notwithstanding that a partner is resident out of the Territory if a partner or a person apparently having the control or management of the partnership business in the Territory is served with the garnishee summons. (2) The attendance of a partner before the Court on the hearing of a garnishee summons is a sufficient attendance by the partners. 17.10 Person using the business name A person carrying on business in the Territory in a name or style other than his own may be sued in that name or style as if it were the name of a firm and rules 17.02 to 17.09, with the necessary changes, apply as if he were a partner and the name in which he carries on business were the name of his firm. 17.11 Charge on partner's interest (1) An application to the Court by a judgment creditor of a partner for an order charging his interest in the partnership property and profits under section 27 of the Partnership Act 1997 and for such other Supreme Court Rules 1987 85 orders as are by that Act authorized to be made, and every application to the Court by a partner of a judgment debtor made in consequence of the first mentioned application, shall be made by (2) A summons filed by the judgment creditor under this rule and an order made on the summons, shall be served on the judgment debtor and on such of his partners as are in the Territory. (3) A summons filed by a partner of a judgment debtor under this rule, and an order made on the summons, shall be served on: (a) the judgment creditor; (b) the judgment debtor; and (c) such of the other partners of the judgment debtor as do not join in the application and are in the Territory. (4) A summons or order served under this rule on some only of the partners of the judgment debtor shall be taken to have been served on all of the partners. 18.01 Application This Order applies where numerous persons have the same interest in a proceeding, but does not apply to a proceeding concerning: (a) the administration of the estate of a deceased person; or (b) property subject to a trust. 18.02 Proceeding by or against representative A proceeding may be commenced and, unless the Court otherwise orders, continued by or against one or more persons having the same interest as representing some or all of them. 18.03 Order for representation by defendant (1) At any stage of a proceeding under rule 18.02 against one or more persons having the same interest, the Court may appoint one or more of: (a) the defendants; or Supreme Court Rules 1987 86 (b) the persons as representing whom the defendants are sued, to represent some or all of those persons in the proceeding. (2) Where the Court appoints a person who is not a defendant, it shall make an order under rule 9.06 adding the person as a defendant. 18.04 Effect of judgment (1) A judgment given or order made in a proceeding to which this Order applies binds the parties and all persons as representing whom the parties sue or are sued, as the case may be. (2) The judgment or order shall not be enforced against a person who is not a party, except by leave of the Court. (3) An application for leave shall be made by summons served personally on the person against whom enforcement of the judgment or order is sought. 19.01 Definitions the Act means the Judiciary Act 1903 of the Commonwealth. State has the meaning ascribed in section 78AA of the Act. 19.02 Notice (1) Where a proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of section 78B of the Act, the party whose case raises the matter shall, unless the Court directs another party to do so, without delay file a notice of a constitutional matter. (2) A notice under subrule (1) shall state: (a) specifically the nature of the matter; and (b) the facts showing that the matter is one to which subrule (1) applies. (3) The notice shall be in Form 19A. Supreme Court Rules 1987 87 19.03 Filing and service (1) Subject to subrule (3), the party required or directed under rule 19.02 to file the notice shall serve a copy on: (a) every other party; and (b) (i) the Attorney-General for the Commonwealth, if he or the Commonwealth is not a party; and (ii) the Attorney-General of each State, if he or that State is not a party. (2) Unless the Court otherwise orders, the copy shall be served without delay after the notice is filed. (3) Service of a copy of the notice need not be effected on an Attorney- General if steps have been taken that could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General. (4) The party serving a copy of the notice shall, without delay, file an affidavit of service. 20.01 Notice of change Where a solicitor acts for a party in a proceeding and the party changes his solicitor, the party shall, without delay, file notice of the change and serve a copy of the notice on the other parties and, where practicable, his former solicitor. 20.02 Party appointing solicitor Where a party who has no solicitor in a proceeding appoints a solicitor to act for him in the proceeding, the solicitor shall, without delay, file notice of the appointment and serve a copy of the notice on the other parties. 20.03 Solicitor ceasing to act (1) Where a solicitor ceases to act for a party in a proceeding, unless a notice of change is filed and served under rule 20.01, the solicitor shall, without delay, file notice that he has ceased to act and serve a copy on all the parties. (2) A notice under subrule (1) shall state the party's address last known to the solicitor. Supreme Court Rules 1987 88 (3) Except by leave of the Court, a solicitor shall not file a notice under subrule (1): (a) where the address of the party in the notice is not within 30 kilometres of the Registry in which the originating process was filed; or (b) after a proceeding has been set down for trial. 20.04 Removal of solicitor from record (1) Where a solicitor who has acted for a party in a proceeding has died, become bankrupt, cannot be found, has ceased to have the right of practising in the Court or for any reason has ceased to practise, and the party has not given notice under rule 20.01 or the solicitor has not given notice under rule 20.03, the Court may, on application made by another party to the proceeding, by order, declare that the solicitor has ceased to be the solicitor acting for the first-mentioned party in the proceeding. (2) An application under subrule (1) shall be made by summons supported by an affidavit stating the facts on which the application is made and, unless the Court otherwise orders, the summons and a copy of the affidavit shall be served on the party to whose solicitor the application relates. (3) Where an order is made under subrule (1), the party on whose application it was made shall, without delay, serve a copy of the order on every other party to the proceeding and file an affidavit of 20.05 Address for service (1) The address for service of a party: (a) who changes his solicitor and files and serves notice under rule 20.01, shall be the business address of the new solicitor; (b) who appoints a solicitor in the circumstances referred to in rule 20.02, shall be the business address of the solicitor; or (c) for whom a solicitor has ceased to act, where notice is filed and served by the solicitor under rule 20.03 without leave, shall be the address stated in the notice. (2) Where the Court under: (a) rule 20.03(3)(a) gives a solicitor leave to file notice that he has ceased to act; or Supreme Court Rules 1987 89 (b) rule 20.04(1), by order, declares that a solicitor has ceased to act, the Court may, by order, direct what address shall be the address for service of the party for whom the solicitor has ceased to act. (3) Where the Court makes no order under subrule (2), a document in the proceeding which is not required to be served personally may be served on the party for whom the solicitor has ceased to act by filing it. (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 21.01 Default of appearance (1) This rule applies only to a proceeding commenced by writ. (2) Where a defendant does not file an appearance within the time limited, the plaintiff may enter or apply for judgment against that defendant in accordance with this Order. (3) Judgment shall not be entered or given for the plaintiff unless there is filed: (a) an affidavit proving service of the writ on the defendant; and (b) where the plaintiff applies for judgment in accordance with rule 21.04 and the endorsement of claim on the writ does not constitute a statement of claim in accordance with rule 5.04, a statement of claim. 21.02 Default of defence (1) Where a defendant, being required to serve a defence, does not do so within the time limited, the plaintiff may enter or apply for judgment against the defendant in accordance with this Order. (2) Judgment shall not be entered or given for the plaintiff unless an affidavit proving the default is filed. (3) Subrules (1) and (2), with the necessary changes, apply where the defendant has served a defence and by or under an order of the Court the defence is struck out. Supreme Court Rules 1987 90 21.03 Judgment for recovery of debt, damages or property (1) Where a claim is made for the recovery of a debt, damages or property, whether or not another claim is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against a defendant in accordance with rule 21.01 or rule 21.02, the plaintiff may: (a) for the recovery of a debt – enter final judgment against the defendant for an amount not exceeding the amount claimed in the writ or, if the plaintiff has served a statement of claim, the amount claimed in the statement of claim, together with interest from the commencement of the proceeding to the date of the judgment: (i) on any debt which carries interest – at the rate it carries; and (ii) on any other debt – at the rates payable on judgment debts during that time; (b) for the recovery of damages – enter interlocutory judgment against the defendant for the damages to be assessed; (c) for the recovery of land – enter judgment for possession of the land against the defendant; (d) for the detention of goods – enter interlocutory judgment against that defendant: (i) either for the delivery of goods or their value to be assessed or for the value of the goods to be assessed; and (ii) if a claim is made for the recovery of damages for the detention of the goods, for the damages to be assessed. (2) On entering judgment under subrule (1) the plaintiff may also enter judgment for costs. (3) Where under subrule (1) damages or the value of goods are to be assessed, the assessment shall unless the Court otherwise orders, be made by an Associate Judge in accordance with Order 51. 21.04 Judgment other than for recovery of debt, damages or (1) Where a claim is made other than for the recovery of a debt, damages or property, whether or not a claim for such recovery is also made in the proceeding, and the plaintiff is entitled to judgment Supreme Court Rules 1987 91 on the claim against a defendant in accordance with rule 21.01 or 21.02, the Court may give judgment for the plaintiff on the statement of claim. (2) An application for judgment under subrule (1) may be made without notice to the defendant. 21.05 Proceeding continued against other defendants A plaintiff who enters or obtains judgment against a defendant in accordance with this Order may enforce the judgment and continue the proceeding against another defendant but, in a proceeding for the recovery of land against more than one defendant, a judgment for possession of the land shall not be enforced against a defendant unless judgment for possession has been entered or given against all the defendants. 21.06 Default of defence to counterclaim Where a defendant serves a counterclaim, rule 21.02 applies as if the defendant were the plaintiff, the defence were the defence to the counterclaim and the plaintiff were the defendant. 21.07 Setting aside judgment The Court may set aside or vary a judgment entered or given in accordance with this Order. 22.01 Summary judgment (1) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding. (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the Supreme Court Rules 1987 92 (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For this rule, a defence of a proceeding or part of a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success. (4) The powers under this rule may be exercised at any stage in a (5) This rule does not limit any powers that the Court has apart from this rule. 22.03 Affidavit in support (1) An application for judgment shall be made by summons supported by an affidavit verifying the facts on which the claim or the part of the claim to which the application relates is based and stating that, in the belief of the deponent, there is no defence to that claim or part or no defence except as to the amount claimed. (2) Where a statement in a document tends to establish a fact within subrule (1) and at the trial of the proceeding the document would be admissible by or under the Evidence (National Uniform Legislation) Act 2011, the Evidence Act 1939 or any other Act to verify the fact, the affidavit under subrule (1) may set forth the statement. (3) An affidavit under subrule (1) may contain a statement of fact based on information and belief if the grounds are set out and, having regard to all the circumstances, the Court considers that the statement ought to be permitted. (4) The applicant must serve the summons and a copy of the affidavit or affidavits in support and of any exhibit referred to in it on the respondent not later than 7 days before the day for hearing named in the summons. 22.04 Respondent to show cause (1) The respondent may, by affidavit or otherwise to the satisfaction of the Court, show cause against the application. (2) An affidavit under subrule (1) may contain a statement of fact based on information and belief if the grounds are set out. (3) Unless the Court otherwise orders, the respondent must serve a copy of an affidavit and of an exhibit referred to in the affidavit on the applicant not later than 3 days before the day for the hearing named in the summons. Supreme Court Rules 1987 93 22.05 Affidavit in reply If the respondent serves an affidavit under rule 22.04, the Court may, by order, allow the applicant to rely on an affidavit in reply. 22.06 Hearing of application (1) On the hearing of the application the Court may: (a) dismiss the application; (b) give such judgment for the applicant against the respondent on the claim or the part of the claim to which the application relates as is appropriate having regard to the nature of the relief or remedy claimed, unless the respondent satisfies the Court that in respect of that claim or part a question ought to be tried or that there ought for some other reason be a trial of that claim or part; (c) give the respondent leave to defend with respect to the claim or the part of the claim to which the application relates either unconditionally or on terms as to giving security, paying money into court, time, the mode of trial or otherwise; or (d) with the consent of all parties, and notwithstanding rule 77.03(1), dispose of the proceeding finally in a summary manner. (2) The Court may stay the execution of a judgment given under subrule (1)(b) until after the trial of a counterclaim made by the respondent in the proceeding. 22.07 Cross-examination on affidavit (1) The Court may order a party or the maker of an affidavit to attend and be examined and cross-examined or to produce any papers, books or documents, or copies of or extracts from them. (2) Where a party is a corporation, the Court may make an order under subrule (1) in respect of a director, manager, secretary or other similar officer of the corporation or a person purporting to act in such capacity. 22.09 Assessment of damages Where judgment is given under this Order for damages or the value of goods to be assessed, the assessment shall be made in accordance with Order 51. Order 23 Summary stay or dismissal of claim and striking out pleading Supreme Court Rules 1987 94 22.10 Judgment where debt amount unascertained Where on an application under this Order for judgment on a claim for a debt the amount is not established to the satisfaction of the Court, and where if the amount were established the Court would give judgment on the claim, the Court may make a declaration as to liability for the debt and order that its amount be ascertained in such manner as it directs, and give leave to enter judgment for the debt once the amount is ascertained. 22.15 Setting aside judgment The Court may set aside or vary a judgment given against a party who does not attend on the hearing of an application under rule 22.01. Order 23 Summary stay or dismissal of claim and striking out pleading 23.01 Stay or judgment in proceeding (1) Where a proceeding generally or a claim in a proceeding: (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the Court; the Court may stay the proceeding generally or in relation to a claim or give judgment in the proceeding generally or in relation to a claim. (2) Where the defence to a claim in a proceeding: (b) is scandalous, frivolous or vexatious; or (c) is an abuse of the process of the Court; the Court may give judgment in the proceeding generally or in relation to the claim. (3) In this Rule a claim in a proceeding includes a claim by counterclaim and a claim by third party notice and a defence includes a defence to a counterclaim and a defence to a claim by third party notice. Order 24 Judgment on failure to prosecute or obey order for particulars or discovery Supreme Court Rules 1987 95 23.02 Striking out pleading Where an endorsement of claim on a writ or originating motion or a pleading or a part of an endorsement of claim or pleading: (a) does not disclose a cause of action or defence; (b) is scandalous, frivolous or vexatious; (c) may prejudice, embarrass or delay the fair trial of the (d) is otherwise an abuse of the process of the Court, the Court may order that the whole or part of the endorsement or pleading be struck out or amended. 23.04 Affidavit evidence (1) On an application under rule 23.01 evidence shall be admissible for a party by affidavit or, if the Court thinks fit, orally. (2) On an application under rule 23.02 no evidence shall be admissible on the question whether an endorsement of claim or pleading offends against that rule. (3) Rule 22.07 applies to an affidavit under subrule (1). 23.05 Declaratory judgment No proceeding is open to objection on the ground that only a declaratory judgment or order is sought in the proceeding, and the Court may make binding declarations of right whether or not a consequential relief is or could be claimed. Order 24 Judgment on failure to prosecute or obey order for particulars or discovery 24.01 Want of prosecution Where the plaintiff, being required to serve a statement of claim, fails to do so within the time limited, the Court may order that the proceeding be dismissed for want of prosecution. Order 24 Judgment on failure to prosecute or obey order for particulars or discovery Supreme Court Rules 1987 96 24.02 Failure to obey order (1) Where a party fails to comply with an order to give particulars of a pleading or with an order for the discovery or inspection of documents or for answers to interrogatories, the Court may order: (a) where the party is the plaintiff – that the proceeding be dismissed; or (b) where the party is a defendant – that his defence, if any, be struck out. (2) A defendant whose defence is struck out in accordance with subrule (1)(b) shall, for the purpose of rule 21.02(1), be taken to be a defendant who, being required to serve a defence, does not do so within the time limited for that purpose. 24.03 Stay on non-payment of costs Where a proceeding is dismissed for want of prosecution and the plaintiff is liable to pay the costs of the defendant of the proceeding and the plaintiff, before paying those costs, commences another proceeding for the same or substantially the same cause of action, the Court may by order stay the proceeding until those costs are paid. 24.04 Counterclaim and third party claim and to a claim by a third party notice as if the counterclaim or the third party claim were a proceeding. 24.05 Inherent jurisdiction Nothing in this Order affects the inherent power of the Court: (a) to dismiss a proceeding for want of prosecution; or (b) to order that, on the failure of a party: (i) to do an act or take a step which, under these Rules, he is required to do or take; or (ii) to comply with an order that he do such an act or take such a step, the proceeding be dismissed or the defence struck out and that judgment be entered or there be judgment accordingly. Supreme Court Rules 1987 97 24.06 Setting aside judgment The Court may set aside or vary: (a) an order that a proceeding be dismissed for want of prosecution; or (b) a judgment entered or given on the failure of a party to do an act or take a step which under this Chapter the party is required to do or take or to comply with an order that he do such an act or take such a step. 25.01A Application of order This Order applies subject to rule 97.02. 25.01 Withdrawal of appearance A party who has filed an appearance in a proceeding may withdraw the appearance at any time with the leave of the Court. 25.02 Discontinuance or withdrawal of proceeding or claim (1) This Rule applies only to a proceeding commenced by writ. (2) A plaintiff may discontinue a proceeding or withdraw a part of it: (a) before the close of pleadings; or (3) A defendant may discontinue a counterclaim or withdraw a part of it: (a) before the close of pleadings; or other parties to the counterclaim. (4) At any time the plaintiff may withdraw a defence to a counterclaim or a part of it and a defendant may withdraw his defence or a part of it. (5) Subrule (5) does not enable a party to withdraw an admission, or any other matter operating for the benefit of another party, without the consent of that party or the leave of the Court. Supreme Court Rules 1987 98 (6) A defendant who has joined a third party may discontinue the claim made against the third party by the third party notice, or withdraw a part of the claim, at any time by leave of the Court or with the consent of the third party. 25.03 Proceeding not commenced by writ A proceeding not commenced by writ may be discontinued, and a part of a proceeding not commenced by writ may be withdrawn, at any time by leave of the Court or with the consent of all other parties. 25.04 Notice of discontinuance or withdrawal (1) A discontinuance or withdrawal under rule 25.02 without the leave of the Court shall be made by filing a notice stating the extent of the discontinuance or withdrawal. (2) When the discontinuance or withdrawal is with the consent of other parties, the notice under subrule (1) shall be endorsed with the consent of each party who consents. (3) On the day the notice is filed or the next working day a copy shall be served on each other party. 25.05 Costs Where a proceeding, counterclaim or claim by a third party notice is discontinued, or where part of a proceeding, counterclaim or a third party notice is withdrawn, liability for costs shall be determined in accordance with the relevant rules relating to costs. 25.06 Discontinuance or withdrawal no defence The discontinuance of a proceeding, counterclaim or claim by a third party notice, or the withdrawal of a part of a proceeding, counterclaim or claim by a third party notice, shall not be a defence to a subsequent proceeding for the same, or substantially the same, cause of action, unless the Court otherwise provides by an order granting leave to discontinue or withdraw. 25.07 Stay on non-payment of costs Where by reason of a discontinuance or a withdrawal under this Order a party is liable to pay the costs of another party and the party, before paying those costs, commences another proceeding for the same, or substantially the same, cause of action, the Court may, by order, stay the proceeding until those costs are paid. Supreme Court Rules 1987 99 26.01 Definitions applicant means a party claiming relief, other than a party claiming relief in a cross-claim. claim includes a counterclaim and a claim made in accordance with Order 11. respondent means a party against whom relief is claimed, other than a party against whom relief is claimed in a cross-claim. 26.02 Offers of compromise generally (1) A party (the offeror) may make an offer to compromise by serving a notice on another party (the offeree) to settle some or all issues (2) The notice must: (a) be in writing and prepared in accordance with rules 27.02, 27.03 and 27.04; and (b) state whether: (i) the offer is inclusive of costs; or (ii) costs are in addition to the offer. (3) If the offer is of a sum of money, the notice may separately specify the amount that represents: (a) the offer in respect to the claim; and (b) interest (if any). (4) Unless the notice specifies otherwise, an offer is taken to have been made without prejudice save as to costs. (5) An offer to pay a sum of money is, unless the notice provides otherwise, taken to be an offer that the sum will be paid within 28 days after acceptance. 26.03 Timing of offer (1) An offer may be made at any time before judgment is given (including before proceedings have commenced). Supreme Court Rules 1987 100 (2) A party may make more than one offer. (3) An offer may be limited in time for which it is open to be accepted, however the time for acceptance must be: (a) reasonable in the circumstances; and (b) in any case not less than 14 days after the offer is made. (4) An offer of compromise must not be withdrawn during the time it is open to be accepted, unless the Court orders otherwise. 26.04 No communication to Court of offer (1) A pleading or affidavit must not contain a statement that an offer has been made. (2) No communication about the existence or terms of an offer made without prejudice is to be made to the Court until: (a) the offer is accepted; or (b) judgment is given; or (c) an application is made under rule 26.05. 26.05 Failure to comply with offer If, after acceptance of an offer by an offeree, an offeror fails to comply with the offer's terms, the offeree may apply to the Court for an order: (a) giving effect to the accepted offer; or (b) staying or dismissing the proceeding if the applicant is in default; or (c) striking out the respondent's defence if the respondent is in default; or (d) that a cross-claim, not the subject of the offer, proceed. 26.06 Multiple respondents (1) Rule 26.05 does not apply if: (a) 2 or more respondents are alleged to be jointly, or jointly and severally, liable to the applicant for a debt or damages; and (b) rights of contribution or indemnity appear to exist between the respondents. Supreme Court Rules 1987 101 (2) However, rule 26.05 applies if: (a) for an offer made by the applicant – the offer: (i) is made to all respondents; and (ii) is an offer to compromise the claim against all of them; or (b) for an offer made to the applicant: (i) the offer is to compromise the claim against all respondents; and (ii) if the offer is made by 2 or more respondents – those respondents offer to be jointly, or jointly and severally, liable to the applicant for the whole amount of the offer. 26.07 Costs where offer not accepted If an offer is made by an offeror but not accepted within a reasonable time by an offeree and the offeror obtains judgment against the offeree more favourable to the offeror than the terms of the offer, the Court shall take this into account when considering: 26.08 Taxation of costs where offer accepted If an offer does not include the offeree's costs of the proceeding and the offeree accepts the offer, the offeree may tax costs on a standard basis against the offeror up to and including 14 days after the offer was made. 26.09 Contributor parties (1) If 2 or more parties (the contributor parties) may be held liable to contribute towards an amount of debt or damages that may be recovered from the contributor parties, any of those contributor parties, without prejudice to that contributor party's defence, may make an offer to another contributor party to contribute, to a specified extent, to the amount of the debt or damages. (2) If an offer is made by a contributor party (the first contributor party) and not accepted by another contributor party, and the first contributor party obtains a judgment against the other contributor party more favourable than the terms of the offer, the Court shall Supreme Court Rules 1987 102 take this into account when considering: 27.01 Conformity with Rules Except to the extent that the nature of the document renders compliance impracticable, a document prepared by a party for use in the Court shall be prepared in accordance with this Chapter. 27.02 Content of document (1) A document shall be headed "In the Supreme Court of the Northern Territory of Australia at", stating in which Registry of the Court the proceeding commenced, and shall show an identifying number assigned by the Court to the proceeding. (2) Where a proceeding is commenced by originating motion and the claim of the plaintiff arises under an Act, the heading of a document shall also state "In the matter of", identifying the specific provision relied on. (3) A document in a proceeding between parties shall be entitled between the parties, naming them. (4) Except where otherwise provided by this Chapter, a document in a proceeding in which there is no defendant shall be entitled "The application of", naming the plaintiff. (5) Notwithstanding subrules (3) and (4), except in the case of originating process, a judgment authenticated in accordance with order 60 or process of execution, it shall be sufficient where there is more than one plaintiff to state the full name of the first plaintiff followed by the words "and another" or "and others", and similarly with respect to defendants. 27.03 Form of document (1) A document shall be of durable white paper 297 millimetres by 210 millimetres, the size known as International Paper Size A4, and be capable of receiving writing in ink. Supreme Court Rules 1987 103 (2) Except in the case of a form published by the authority of the Law Society Northern Territory, one side only of the paper shall be used, with double spacing between the lines and a left-hand margin of not less than 40 millimetres. (3) The text of a document shall be printed or typewritten and shall be clear, sharp, legible and permanent. (4) A document shall not bear an erasure or alteration that causes material disfigurement. (5) A document shall be endorsed on a backsheet or on the back of the last sheet with the title of the proceeding and an identifying number, a short description of the document and the name and address and telephone number of the solicitor preparing it or, where the party acts without a solicitor, the name and address and telephone number of the party. (6) The Court may require a document in a proceeding to be prepared in any manner it thinks fit. (7) A document which is required to be signed before filing shall be signed by the party or by the party's solicitor in his own name and not in the name of his firm, or by counsel. 27.04 Numbers Dates, amounts and other numbers shall be expressed in figures and not in words, except for months which may be expressed by words. 27.05 Copies on request (1) A party who prepares a document for use in the Court shall, at the request of another party entitled to a copy of the document, supply that other party with a copy of the document. (2) A person against whom an order is made without notice shall be entitled to a copy of a document used in support of the application for the order. (3) Unless the Court otherwise directs, whenever a party files a document other than a document relating to an ex parte application, that party shall on that or the next working day serve a copy of the document on every other party to the proceeding who then has an address for service. Supreme Court Rules 1987 104 27.06 Proper officer refusing to seal or accept document (1) The Proper Officer may refuse to seal an originating process without the direction of the Court where he considers that the form or contents of the document show that were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court. (2) Where a document for use in the Court is not prepared in accordance with this Chapter or an order of the Court: (a) the Proper Officer may refuse to accept it for filing without the direction of the Court; or (b) the Court may order that the party responsible shall not be entitled to rely on it in any manner in the proceeding until a document which is duly prepared is made available. (3) The Court may direct the Proper Officer to seal an originating process or accept a document for filing. 27.07 Scandalous matter Where a document for use in the Court contains scandalous, irrelevant or otherwise oppressive matter, the Court may order: (a) that the matter be struck out; or (b) if the document has been filed, that it be taken off the file. 28.01 How document is filed A document in a proceeding is filed by filing it: (a) in the Registry where the proceeding commenced; or (b) with the Proper Officer in Court. 28.02 Place of filing (1) In respect of a proceeding for trial in Darwin, documents shall be presented in the Registry at Darwin for filing. (2) In respect of a proceeding for trial in Alice Springs, documents shall be presented in the Registry at Alice Springs for filing. (3) A document received in a registry for filing is not filed until it is accepted by a Proper Officer. Supreme Court Rules 1987 105 (4) Notwithstanding subrules (1) and (2), where an urgent application is made in a proceeding, a document may be filed in connection with that application at the Registry at the place where the application is 28.03 Date of filing The Registrar or Proper Officer, as the case requires, shall endorse the date and time of filing on every document filed. 28.04 Seal of Court (1) An Associate Judge, a Registrar, the Sheriff and a Proper Officer shall each have in his custody a stamp of a design approved by the Chief Justice. (2) A Registrar, a Deputy Sheriff and a Proper Officer at Alice Springs Registry shall have in their custody a stamp of a design approved by the Chief Justice with or without the additional words "Alice Springs Registry". (3) Marking of a document or a copy of a document with the Seal of the Supreme Court of the Northern Territory of Australia or with a Stamp of a design approved by the Chief Justice is sufficient compliance with a requirement of this Chapter or an order of the Court that the document or a copy be sealed with the Seal of the 28.05 Inspection of documents (1) When the Registry of the Court is open, a person may, on payment of the proper fee, inspect and obtain a copy of a document filed in a (2) Notwithstanding subrule (1): (a) no person may inspect or obtain a copy of a document which the Court has ordered remain confidential; and (b) a person not a party may not without leave of the Court inspect or obtain a copy of a document which in the opinion of a Registrar ought to remain confidential to the parties. Supreme Court Rules 1987 106 29.01 Application and definition (1) Except where it otherwise provides, this Order applies only to a proceeding commenced by writ and to a proceeding in respect of which an order has been made under rule 4.07. (2) In this Order possession means possession, custody or power. 29.02 Discovery (1) When the pleadings between the parties to a proceeding have closed, there is to be discovery by the parties of all documents that are or have been in their possession relating to a question raised by the pleadings. (2) Nothing in this Order is to be taken to prevent the parties from agreeing to dispense with or limit the discovery of documents that, but for the agreement, they would be required to make to each other. (3) Except where a pleading contains allegations of a kind referred to in rule 13.10(3), unless the Court orders otherwise, a party is not required to discover a document that is relevant only because it may lead to a train of enquiry. 29.03 List of documents (1) Subject to this rule, the parties to a proceeding between whom pleadings are closed shall make discovery by exchanging lists of (2) In compliance with subrule (1), each party shall, within 21 days after the pleadings are closed as between him and any other party or within such other time as the Court allows, make and deliver to that other party a list of the documents which are or have been in his possession relating to a matter in question between them in the (3) Without prejudice to any directions given by the Court under rule 11.13, this subrule does not apply in a third party proceeding, including a proceeding under Order 11 involving fourth or subsequent parties. (4) Subrule (2) also applies to and in relation to a counterclaim. (5) A party to whom discovery of documents is required to be made under this rule may serve on the party required to make discovery a notice requiring him to make an affidavit verifying the list he is Supreme Court Rules 1987 107 required to make under subrule (1). (6) A party on whom a notice under subrule (5) is served shall, within 14 days after service of the notice, make and file an affidavit in compliance with the notice and deliver a copy of the affidavit to the party by whom the notice was served. (7) A copy of every list of documents or affidavit of documents exchanged or served pursuant to this rule shall be filed within 7 days after the day on which it was exchanged or served, as the case may be. 29.04 Form of list of documents A list of documents for the purpose of rule 29.03(1) shall be in Form 29A and shall: (a) identify the documents which are or have been in the possession of the party making the list; (b) enumerate the documents in convenient order and describe each document or, in the case of a group of documents of the same nature, describe the group, sufficiently to enable the document or group to be identified; (c) distinguish those documents which are in the possession of the party making the list from those that have been but are no longer in his possession and shall, as to a document which has been but is no longer in the possession of the party, state when he parted with the document and his belief as to what has become of it; and (d) where the party making the list claims that a document in his possession is privileged from production, state sufficiently the grounds of the privilege. 29.05 Order limiting discovery In order to prevent unnecessary discovery the Court may, before or after a party is required to make discovery by virtue of rule 29.02, order that discovery by a party shall not be required or shall be limited to such documents or classes of document, or to such of the questions in the proceeding, as are specified in the order. Supreme Court Rules 1987 108 29.06 Co-defendants and third party (1) A defendant who has pleaded is entitled to obtain from the party making discovery a copy of a list or, where an affidavit verifying a list has been served, an affidavit served: (a) on the plaintiff by another defendant to the proceeding; or (b) on the plaintiff by that defendant. (2) Where the defendant has served a counterclaim joining another person with the plaintiff as defendant to the counterclaim in accordance with rule 10.03, subrule (1), with the necessary changes, applies as if the defendant were the plaintiff and the plaintiff and the other person were the defendants. (3) A third party who has pleaded is entitled to obtain from the party making discovery a copy of a list exchanged or, where an affidavit verifying a list has been served, an affidavit served, in accordance with this Order: (a) by the plaintiff on the defendant by whom he was joined; or (b) on the plaintiff by that defendant. (4) A party required by this rule to supply a copy of a list of documents or an affidavit verifying such a list shall supply it free of charge on a written request of the party entitled to it. 29.07 Order for discovery (1) Notwithstanding that the pleadings between parties are not closed, the Court may order that any of those parties make discovery of documents to any other of those parties. (2) In a proceeding: (a) commenced by writ; or (b) in respect of which an order under rule 4.07 has been made, the Court may at any stage order a party to make discovery of (3) An order under subrules (1) or (2) may be limited to such documents or classes of document, or to such questions in the proceeding, as the Court thinks fit. Supreme Court Rules 1987 109 29.08 Order for particular discovery (1A) This rule applies to all proceedings in the Court. (1) Where at any stage of a proceeding, it appears to the Court from evidence or from the nature or circumstances of the case, or from a document filed in the proceeding, that there are grounds for a belief that a document or class of documents relating to a question in the proceeding may be or may have been in the possession of a party, the Court may order that party to make and serve on any other party an affidavit stating whether the document or any and if so what document or documents of that class is or has been in his possession and, if it has been but is no longer in his possession, when he parted with it and his belief as to what has become of it. (2) An order may be made against a party under subrule (1) notwithstanding that he has already made or been required to make a list of documents or an affidavit verifying such a list. 29.09 Inspection of documents referred to in list of documents or affidavit (1) A party: (a) on whom, under rule 29.03 or 29.07, a list or affidavit of documents is served; (b) on whom, under rule 29.08 an affidavit of documents is served; or (c) to whom, under rule 29.06, a list or affidavit of documents is supplied, may, by notice to produce in Form 29B served on the party making the list or affidavit, require the party to produce the documents in his possession referred to in the list or affidavit (other than a document which he objects to produce) for inspection. (2) A party on whom a notice to produce is served in accordance with subrule (1) shall, within 7 days after that service, serve on the party requiring production a notice appointing a time within 7 days after service of the notice under this subrule when, and a place where, the documents may be inspected. (3) The place for inspection under subrule (2) must be within 30 kilometres of the Registry in which the originating process is filed, unless it is otherwise agreed by the parties or the Court Supreme Court Rules 1987 110 (4) A party to whom documents are produced for inspection under this rule may take copies of the documents. (5) For the purpose of subrule (4), taking a copy of a document includes photocopying the document and, if the party to whom a document is produced states that he wishes to have it photocopied, the party producing the document shall at his option either allow the other party to photocopy the document at such place as the parties agree or supply the other party with a photocopy of the document. (6) Unless the Court otherwise orders, the cost of a photocopy of a document supplied to a party in accordance with subrule (5) shall: (a) be borne by that party in the first instance and be ultimately a cost in the proceeding; and (b) be in the amount allowed in the Scale of Costs for copy 29.10 Inspection of documents referred to in pleadings and affidavits (1) This Rule applies to all proceedings. (2) Where in the originating process filed by a party, or in a pleading, in interrogatories or answers, in an affidavit or in a notice filed by a party, reference is made to a document, another party may, by notice to produce served on that party, require him to produce the document for inspection. (3) Except as provided by subrule (4), rule 29.09, with the necessary changes, applies to the production and inspection of a document (4) A party on whom a notice to produce is served under subrule (2) is not required to produce a document for inspection where: (a) he claims that the document is privileged from production and he makes and serves on the other party an affidavit in which he makes that claim and states sufficiently the grounds of the privilege; or (b) the document is not in his possession and he makes and serves on the other party an affidavit in which he states that fact and states to the best of his knowledge, information and belief where the document is and in whose possession it is and, where the document has been but is no longer in his possession, when he parted with it and his belief as to what has become of it. (5) A notice to produce under subrule (2) shall be in Form 29B. Supreme Court Rules 1987 111 29.11 Order for discovery Where a party: (a) fails to make discovery of documents in accordance with rules 29.03 and 29.04; (b) fails to serve a notice appointing a time for inspection of documents as required by rule 29.09 or 29.10; (c) objects to produce a document for inspection; (d) offers inspection unreasonable as to time or place; or (e) objects to allow a document to be photocopied or to supply a photocopy of the document, the Court may order the party to do such act as the case requires. 29.12 Direction as to documents (1) Where a party is entitled under this Order to inspect a document which consists of: (a) a device such as video tape, audio tape, disc, film or other means of recording, the Court may give directions for the screening or playing of that device and for the making by or supply to the party of a transcript of the recording (in so far as it can be transcribed) or a copy of the recording; or (b) information which has been processed by or is stored in a computer, the Court may give directions for making the information available. (2) On an application under subrule (1) the Court may make an order for the costs and expenses of the party against whom an order giving directions is sought. (3) The Court may make an order giving directions on condition that the party applying give security for the costs and expenses of the party against whom the order is made. 29.13 Inspection of document by Court Where an application is made for an order under rule 29.11 and a claim is made that the document is privileged from production or objection to production is made on any other ground, the Court may inspect the document for the purpose of deciding the validity of the claim or objection. Supreme Court Rules 1987 112 29.14 Default on discovery (1) Without limiting Rule 24.02, a party who within the time limited does not comply with an order under rule 29.08(2) or 29.11, or an order under rule 29.12(1) giving directions, is liable to committal. (2) Service on the solicitor for a party of an order for discovery or production of documents made against that party is sufficient service to found an application for committal of the party disobeying the order, but the party may show in answer to the application that he had no notice or knowledge of the order. (3) A solicitor on whom such an order made against his client is served and who fails without reasonable excuse to give notice of the order to his client is liable to committal. 29.15 Copy list or affidavit to be filed A copy of a list of documents or affidavit of documents served or exchanged pursuant to this Order shall be filed within 7 days after the day on which it is served or exchanged, as the case may be. 29.16 Discovery a continuing obligation A party who has made discovery is under a continuing obligation to make discovery of documents with respect to documents which the party obtains after discovery has been made. 30.01 Definitions interrogating party means a party who serves interrogatories. party interrogated means a party on whom interrogatories are servant or agent, in relation to a corporation, includes officer and member. 30.02 Service of interrogatories A party may serve interrogatories on another party relating to a question between them in the proceeding only with leave of the Supreme Court Rules 1987 113 30.03 Statement as to who to answer Where interrogatories are to be answered by 2 or more parties, the interrogating party shall state in the document containing the interrogatories which of them each party is required to answer. 30.04 Filing interrogatories and time for answers Where interrogatories are served: (a) the interrogating party shall without delay file a copy; and (b) the party interrogated shall, within 28 days after service, answer by affidavit, file it and serve a copy on the interrogating 30.05 Source for answers to interrogatories (1) A party interrogated shall answer each interrogatory, insofar as it is not objectionable, in accordance with the following: (a) the party shall answer from his own knowledge of the fact or matter which is enquired after by the interrogatory and, if he has no such knowledge, from a belief he has as to the fact or matter; (b) a party who has no knowledge of the fact or matter inquired after shall be taken not to have a belief as to the fact or matter where he has no information relating to it on which to form a belief or where, if he has such information, for reasonable cause he has no belief that the information is true; (c) except as provided by paragraph (d), the party shall answer from a belief he has as to the fact or matter inquired after irrespective of the source of the information on which the belief is formed; (d) the party shall not be required to answer from his belief as to a fact or matter where the belief is formed on information that was given to him in a communication the contents of which he could not, on the ground of privilege, be compelled to disclose; (e) where the party has no knowledge himself of the fact or matter inquired after, he shall, for the purpose of enabling himself to form a belief as to the fact or matter (so far as he can), make all reasonable enquiries to determine: (i) whether a person has knowledge of the fact or matter which was acquired by that person in the capacity of his servant or agent; and Supreme Court Rules 1987 114 (ii) if that is the case, what that knowledge is; (f) the party shall make the inquiries referred to in paragraph (e) notwithstanding that at the time he is required to answer the interrogatory a person having the relevant knowledge has ceased to be his servant or agent; and (g) where the party is a corporation, this rule with the necessary changes, applies as if the person who answers the interrogatories on behalf of the corporation were the party and, in particular, as if the reference in paragraph (e) to a servant or agent of the party were a reference to a servant or agent of the corporation. (2) Where an interrogatory relates to a fact or matter alleged in the pleading of the party interrogated, nothing in subrule (1)(d) affects the right of the interrogating party to obtain information as to that fact or matter pursuant to an application of the kind referred to in rule 13.11. 30.06 How interrogatories to be answered (1) A party interrogated shall answer each interrogatory specifically by answering the substance of the interrogatory without evasion, except in so far as it is objectionable on any of the grounds referred to in rule 30.07. (2) Where the party objects to answer an interrogatory, he shall state briefly the ground of objection and the facts, if any, on which it is based. 30.07 Ground of objection to answer (1) A party interrogated shall answer each interrogatory except to the extent that it may be objected to: (a) because it does not relate to a question between him and the interrogating party; (b) because it is unclear or vague or is too wide; (c) because it is oppressive; (d) because it requires him to express an opinion which he is not qualified to give; (e) on the grounds of privilege; or (f) on any other ground on which objection may be taken. Supreme Court Rules 1987 115 (2) Without limiting subrule (1)(a), an interrogatory that does not relate to a question includes an interrogatory the sole purpose of which is to: (a) impeach the credit of the party interrogated; (b) enable the interrogating party to ascertain whether he has a claim or defence other than that which he has raised in the (c) enable the interrogating party to ascertain the evidence by which the party interrogated intends to prove his case, including the identity of witnesses. (3) A party may not object to answer an interrogatory on the ground that he cannot answer without going to a place which is not his usual place of residence or business if the interrogating party undertakes to pay the reasonable cost of his going there, unless the 30.08 Who to answer interrogatories (1) Interrogatories shall be answered: (a) where the party interrogated is: (i) a natural person – by the party; (ii) a person under a disability – by that person or his litigation guardian, whichever is appropriate; or (iii) a corporation – by an officer of the corporation or by a person duly authorized by it to answer; or (b) by such person as the Court directs. (2) The answers of a person made in accordance with a direction given under subrule (1)(b) shall be as effective and binding in all respects as if made by the party interrogated. 30.09 Failure to answer interrogatories Where a party interrogated fails to answer the interrogatories within the time limited or does not answer the interrogatories sufficiently, the Court may order that he answer or answer further, as the case may be, within such time as it directs. Supreme Court Rules 1987 116 30.10 Non-compliance with order (1) Without limiting rule 24.02, a party who does not within the time limited comply with an order made under rule 30.09 is liable to committal. (2) Service on the solicitor for a party of an order made against that party under rule 30.09 is sufficient service to found an application for committal of the party disobeying the order, but the party may show in answer to the application that he had no notice or knowledge of the order. (3) A solicitor on whom such an order made against his client is served who fails without reasonable excuse to give notice of the order to his client is liable to committal. 30.11 Answers as evidence (1) On an application in or at the trial of a proceeding, a party may tender as evidence: (a) one or more answers to interrogatories given by another party without tendering the other; or (b) part of an answer to an interrogatory without tendering the whole of the answer. (2) On the tender of the whole or part of an answer to an interrogatory, the Court may look at the whole of the answers and if any other answer or any 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 that other answer or part is also tendered. (3) Where the answer of a party interrogated is stated to be given on the basis of belief and the answer is received into evidence, the Judge or the jury, as the case may be, shall give the answer such weight as the circumstances require. 31.01 Definitions examiner, in relation to an oral examination, means the examiner who under this Order is presiding, or is to preside, over the Supreme Court Rules 1987 117 examining party means a party who orally examines, or is to orally examine, another party under this Order. party examined means a party orally examined, or to be orally examined, by another party under this Order and, where the party examined is a corporation, includes an officer of the corporation or other person examined or to be examined under rule 31.05(2). 31.02 When is examination available (1) Where a party might, with the leave of the Court under rule 30.02, serve interrogatories on another party relating to a question between them in a proceeding, subject to this rule, the party may instead orally examine the other party on oath in relation to the question. (2) A party must not orally examine another party unless: (a) the other party has consented in accordance with rule 31.03 to being examined; or (b) the Court has made an order under rule 31.03(9) requiring the other party to be examined. 31.03 Application for and consent to examination (1) A party seeking to orally examine another party in accordance with this Order must serve on that other party a request in writing that the party served consent to be orally examined. (2) A notice under subrule (1) may nominate an examiner for the purpose of the examination. (3) A party served with a notice under subrule (1) may, by notice in writing served on the party seeking the examination: (a) consent to be examined before the examiner nominated; (b) consent to be examined but not before the examiner nominated; or (c) refuse to be examined. (4) Where subrule (3)(b) applies, the party consenting to be examined may state in the notice the name of an examiner before whom the party consents to be examined. (5) Where subrule (4) applies, the party seeking the examination may, by notice in writing given to the party consenting to be examined, agree to the appointment of the examiner named in the notice Supreme Court Rules 1987 118 under subrule (4). (6) Where the parties do not agree on an examiner, the party sought to be examined is to be taken to have refused to be examined. (7) Where: (a) the party sought to be examined has consented under subrule (3)(a) or (b); and (b) in the case of consent under subrule (3)(b) – the party seeking the examination has agreed to the appointment of an examiner under subrule (5), the party seeking the examination must file a Memorandum of Agreement that is to be one document consisting of a copy of each of the notices that together constitute the consent and (if applicable) the agreement. (8) If a party: (a) refuses under subrule (3)(c) to be examined; or (b) is to be taken under subrule (6) to have refused to be examined, the party seeking the examination may apply to the Court for an order requiring the party to be orally examined in accordance with this Order. (9) The Court may make an order requiring a party to be orally examined if satisfied that: (a) the Court would have granted the party seeking the examination leave to serve written interrogatories on the party; and (b) one or more of the following apply: (i) it is likely that an oral examination will be less costly to the parties than preparing and answering written interrogatories in relation to the question in respect of which the examination is sought; (ii) there is some other advantage to the parties that warrants the making of the order; (iii) the party sought to be examined was taken to have refused to be examined only by virtue of subrule (6). Supreme Court Rules 1987 119 (10) If the parties cannot agree on an examiner, the Court may appoint a suitably experienced legal practitioner to be the examiner. 31.04 Effect of consent or order (1) Where, under rule 31.03, a party consents to being orally examined or the Court makes an order requiring a party to be orally examined, the following apply: (a) the party is required to be orally examined in accordance with this Order; (b) if the party fails to comply with an order of the Court to attend the examination or fails to answer a question asked at the examination, rule 24.02 applies (with the necessary changes) as if the failure were a failure of a kind referred to in that rule; (c) at the trial of the proceeding or on the hearing of an application in the proceeding, the examining party may tender as evidence any of the answers given at the examination by the party examined and rule 30.11 applies (with the necessary changes) as if those answers were answers to written interrogatories served by the examining party. 31.05 Examination of corporations (1) A corporation may be orally examined under this Order. (2) Where the party examined is a corporation: (a) one of the following persons may be examined: (i) an officer of the corporation; (ii) if the party examined and the examining party agree – a person who is not an officer of the corporation; and (b) an answer given by the officer or other person is to be taken to be the answer of the corporation. (3) Unless the party examined and the examining party agree otherwise or the Court orders otherwise, nothing in subrule (2) authorises the examination of more than one person. Supreme Court Rules 1987 120 31.06 Examiner (1) An examination is to be held before an examiner: (a) in respect of whom there has been consent under rule 31.03(3)(a) or agreement under rule 31.03(5) or who has been appointed by the Court under rule 31.03(10); and (b) who consents to being appointed. (2) The consent of the examiner is to be in writing and filed. 31.07 Attendance on examination (1) The time and place of the examination is to be determined by the examiner. (2) The party examined must attend to be examined by the examining (3) Counsel and the solicitor for each party may attend the (4) If the party examined fails to attend the examination, the Court may order that the party attend to be examined in accordance with this Order at the time and place the Court directs. 31.08 Powers of examiner The examiner: (a) may, for the purpose of the examination, administer an oath; and (b) may adjourn the examination from time to time and from place to place. 31.09 Record of examination (1) A deposition of the examination of the party examined is to be (2) Where objection is taken to a question, proceedings before the examiner with respect to the objection are to be recorded in the deposition. (3) The deposition is to be authenticated by the signature of the examiner and, without delay after signing the deposition, the examiner must give notice in writing of the authentication to the party examined and the examining party. Supreme Court Rules 1987 121 31.10 How party to be examined (1) At the examination, the party examined may be questioned by or on behalf of the examining party but no questions may be asked of the party examined by that party's own counsel or solicitor. (2) The examination is to be in the nature of an examination in chief of the party examined by the examining party. (3) Subject to subrule (4), the party examined must answer each question asked of the party. (4) The party examined may object to a question as if it were a written interrogatory and rule 30.07 applies (with the necessary changes) accordingly. (5) The party examined is not required to answer a question to which the party objects unless the Court orders otherwise. (6) Where the party examined answers a question, rules 30.05 and 30.06(1) apply (with the necessary changes) as if the answer to the question were the answer to a written interrogatory. (7) A question may be answered by counsel or the solicitor for the party examined and the answer is to be taken to be the answer of the party. (8) Where rule 30.05(1)(e) applies, the examiner may adjourn the examination to enable the party examined to conduct the enquiries referred to in that rule. 31.11 Order to answer question (1) Where the party examined objects to a question under rule 31.10(4), the examining party may apply by summons to an Associate Judge for an order that the party examined is required to answer the question. (2) The application is to identify each question to which it relates. (3) The Associate Judge may order that the party examined is required to answer a question to which the application relates. (4) If an order is made under subrule (3), unless the Associate Judge orders otherwise, the party examined must answer the question before the examiner and the Associate Judge may direct that the examining party be at liberty to ask further questions of the party examined as the case requires. Supreme Court Rules 1987 122 (5) The Associate Judge may order that the party examined answer the question in writing and may direct whether that written answer is to be given on oath. 31.12 Costs of examination (1) Subject to this Order, as between the parties, the costs of and incidental to attending an oral examination are to be costs in the proceeding unless the Court orders otherwise. (2) The party seeking the examination must pay the costs of the examiner in the first instance. (3) The Court may fix the examiner's costs and, on the application of a party or the examiner, may order that those costs be paid in accordance with subrule (2). Order 32 Preliminary discovery and discovery from non-party 32.01 Definitions applicant means applicant for an order under this Order. description includes the name, place of residence, place of business, occupation and sex of the person against whom the applicant desires to bring a proceeding and whether that person is an individual or a corporation. possession means possession, custody or power. 32.02 Privilege An order made under this Order does not operate to require the person against whom the order is made to produce a document which, on the ground of privilege, he could not be required to produce: (a) in the case of an order under rule 32.03 or 32.05 – if the applicant had commenced a proceeding against him; (b) in the case of an order under rule 32.04 or 32.06 – if the applicant had made him a party to the proceeding; or (c) in the case of an order under rule 32.07 – if he had been served with a subpoena for production of the document at the trial of the proceeding. Supreme Court Rules 1987 123 32.03 Discovery to identify a defendant (1) Where an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this rule called the person concerned) and it appears that a person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had in his possession a document or thing, tending to assist in the ascertainment of the description, the Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, shall: (a) attend before the Court to be orally examined in relation to the description of the person concerned; or (b) make discovery to the applicant of all documents which are or have been in his or its possession relating to the description of the person concerned. (2) Where the Court makes an order under subrule (1)(a), it may: (a) order that the person or corporation against whom or which the order is made produce to the Court on the examination any document or thing in his or its possession relating to the description of the person concerned; or (b) direct that the examination be held before an Associate Judge. 32.04 Party an applicant Rule 32.03, with the necessary changes, applies where the applicant is a party to a proceeding and wishes to make in the proceeding against a person who is not a party a claim which he could properly have made in the proceeding had the person been a 32.05 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 he has ascertained; (b) after making all reasonable inquiries, the applicant has not sufficient information to enable him to decide whether to commence a proceeding in the Court to obtain that 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 his Supreme Court Rules 1987 124 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 him to make the decision, the Court may order that the person shall make discovery to the applicant of a document of the kind described in paragraph (c). 32.06 Party an applicant Rule 32.05, with the necessary changes, applies where the applicant is a party to a proceeding and there is reasonable cause to believe that he has or may have the right to obtain against a person who is not a party relief which he could properly have claimed in the proceeding had the person been a party. 32.07 Discovery from non-party On the application of a party to a proceeding the Court may order that a person who is not a party and in respect of whom it appears that he has or is likely to have or has had or is likely to have had in his possession a document which relates to a question in the proceeding shall make discovery to the applicant of any such 32.08 Procedure (1) An application under rule 32.03 or 32.05 shall be made by originating motion to which the person against whom the order is sought shall be made respondent. (2) An application under rule 32.04, 32.06 or 32.07 shall be made by summons served on every party to the proceeding and served personally on the person against whom the order is sought. (4) An originating motion under subrule (1) or a summons under subrule (2) shall be supported by an affidavit: (a) stating the facts on which the application is made; and (b) specifying or describing the document or class of documents in respect of which the order is sought. (5) A copy of the supporting affidavit shall be served on every person on whom the originating motion or the summons is served. 32.09 Inspection of documents Rule 29.09, with the necessary changes, applies to the inspection of the documents referred to in an affidavit of documents made and Supreme Court Rules 1987 125 served in accordance with this Order as if the affidavit were an affidavit of documents as mentioned in rule 29.09(1). 32.10 Directions as to documents Rule 29.12, with the necessary changes, applies to the inspection of a document under this Order. 32.11 Costs (1) On an application under this Order the Court may make an order for the costs and expenses of the applicant, of the person against whom the order is made or sought and of a party to the proceeding, including the costs of making and serving an affidavit of documents, of producing a document for inspection in accordance with rule 32.09 or of complying with a direction given under rule 32.10. (2) The Court may make an order under this Order on condition that the applicant give security for the costs and expenses of the person against whom the order is made. Order 33 Medical examination and service of hospital and medical reports 33.01 Application This Order applies to a proceeding in which the plaintiff claims damages for bodily injury. 33.02 Counterclaim by which the defendant makes a claim of the kind referred to in rule 33.10. 33.03 Definitions examination means an examination by a medical expert for the purpose of producing a medical report. hospital report means a statement in writing concerning the plaintiff made by or on behalf of a hospital, rehabilitation centre or other like institution. medical expert means a person who is, under the law of a State or Territory of the Commonwealth, entitled by reason of the professional qualifications or special skills or knowledge of the Supreme Court Rules 1987 126 person to practice in the field of expertise of medicine, dentistry, occupational therapy, pharmacology, physiotherapy, psychology, rehabilitation, ergonomics or any other related field. medical matters means matters that are about or relevant to or relate to the fields of medicine, dentistry, occupational therapy, pharmacology, physiotherapy, psychology, rehabilitation, ergonomics or any other related field. medical report: (a) means a written statement of a medical expert in which the medical expert records information or facts, or expresses opinions, that are within the medical expert's field of expertise and relevant to the plaintiff; (b) includes a document which the medical expert intends should be read with the statement whether the document was in existence at the time the statement was made or was a document which he obtained or caused to be brought into existence subsequently. 33.04 Notice for examination (1) The defendant may, in writing, request the plaintiff to submit to an appropriate examination by a medical expert at a specified time and (2) Where a plaintiff refuses or neglects without reasonable cause to comply with a request under subrule (1), the Court may, if the request was on reasonable terms, stay the proceeding. 33.05 Expenses (1) The costs of and incidental to the examination shall be costs in the (2) Without limiting subrule (1), the defendant shall, on request by the plaintiff whether before or after the plaintiff is examined, pay to the plaintiff a reasonable sum to meet his travelling and other expenses of and incidental to the examination. 33.06 Report of examination A defendant for whom a plaintiff is examined under rule 33.04 must, as soon as practicable after the examination: (a) obtain a medical report from the medical expert; and Supreme Court Rules 1987 127 (b) on obtaining the medical report – serve a copy of the medical report on the plaintiff. 33.07 Service of reports (1) For the purpose of rule 33.08: (a) a plaintiff shall serve a copy of a medical report in his or her possession, custody or power which he or she intends to tender or the substance of which he or she intends to adduce in evidence at the trial; and (b) subject to rule 33.06, a defendant shall serve a copy of a medical report in his or her possession, custody or power (other than a medical report served on or supplied to him or her by the plaintiff) which the defendant intends to tender or the substance of which the defendant intends to adduce in evidence at the trial. (2) Where a plaintiff obtains possession, custody or power of a hospital report which he or she intends to tender or the maker of which he or she intends to call at the trial, this rule with the necessary changes, applies as if the report were a medical report. 33.08 Time for service (1) A party must serve copies of all medical reports that the party is required to serve in accordance with these Rules at the time or times as directed by a Judge, an Associate Judge or the Registrar. (3) Unless the Court otherwise orders, a party who, after the day on which he served medical reports under subrule (1) or (2), obtains possession, custody or power of a medical report a copy of which he is required to serve in accordance with rule 33.07 shall serve a copy of the report on each other party who has an address for service within 14 days after obtaining the report and not later than 42 days before the day fixed for trial or, where the place of trial is a place other than Darwin, not later than 42 days before the commencement of the sittings at that place during which the proceeding has been set down for trial. (4) Where a defendant who has served on the plaintiff a copy of a medical report of an examination of the plaintiff made under rule 33.04 obtains from the medical expert who made the examination a further report of the examination, the defendant shall without delay: (a) if the further report was in writing – serve a copy on the plaintiff; and Supreme Court Rules 1987 128 (b) if the further report was oral – give the plaintiff notice in writing of its substance. (5) Except with the leave of the Court or by consent of the parties, a party shall not except in cross-examination adduce evidence from a medical expert on medical matters unless the evidence is disclosed by a copy of a medical report served in accordance with this Order. 33.09 Proceeding against medical expert (1) This rule applies to a proceeding in which the plaintiff claims damages for bodily injury sustained as a result of medical or the like treatment or advice given in respect of a physical or mental condition of the plaintiff. (2) Unless the Court otherwise orders, a party who is required to serve a copy of a hospital report or medical report under rule 33.08 may exclude from the copy served an expression of opinion in the original report on the question of liability. 33.10 Material for Court (1) This rule applies only to a proceeding which is to be tried by a Judge without a jury. (2) If for the purpose of evidence at the trial a party intends to: (a) use; or (b) call the maker of, a medical report or a hospital report a copy of which was served under rule 33.08, the party shall deliver a copy of the report for the use of the Court. (3) Copies of reports shall be delivered by delivering them in a sealed envelope bearing the title of the proceeding and stating "Reports delivered by [identify party] pursuant to rule 33.10": (a) where Darwin is the place of trial – to an Associate Judge; and (b) where the place of trial is other than Darwin – to a Proper Officer, not later than 14 days before the date set down for the trial. 33.11 Medical report admissible (1) This rule does not apply in the case of the trial of a proceeding before a Judge with a jury. Supreme Court Rules 1987 129 (2) A medical report a copy of which was served under this Order is admissible as evidence of the opinion of the medical expert who gave the report and, where the medical expert's oral evidence of a fact upon which the opinion was based would be admissible, as evidence of that fact. (3) Subject to subrules (4), (5) and (6), a medical report may be used in evidence by the party who served a copy of the report or by a party on whom the copy was served. (4) If a medical report is tendered by the party who served a copy of the report pursuant to rule 33.08(1) or (2), that party shall cause the medical expert who gave the report to attend at the trial of the proceeding to be cross-examined if notice that such attendance is required is served on the party by any other party not later than 42 days before the commencement of the trial, and if the medical expert does not attend for cross-examination the Court may order that the medical report be not received in evidence. (5) Where a medical report is served later than 42 days before: (a) where the place of trial is Darwin – the commencement of the trial; or (b) where the place of trial is a place other than Darwin – the commencement of the sittings at that place during which the proceeding has been set down for trial, the medical expert who gave the report shall, unless the Court otherwise orders, attend for cross-examination at the trial, and if the medical expert does not attend for cross-examination the Court may order that the medical report be not received in evidence. (6) If a medical report is tendered by a party on whom a copy of the report was served: (a) that party shall cause the medical expert who gave the report to attend at the trial of the proceeding to be cross-examined, and if the medical expert does not attend the Court may order that the medical report be not received in evidence; (b) if the report is received in evidence and the medical expert is cross-examined by a party against whom the report is received, at the conclusion of the cross-examination the party who tendered the report may examine the expert as if by re-examination. Supreme Court Rules 1987 130 33.12 No evidence unless disclosed in report Except with the leave of the Court or by consent of the parties, a party shall not, except in cross-examination, adduce evidence from a medical expert on medical matters concerning the plaintiff unless that evidence is disclosed by a medical report served in accordance with this Order. 33.13 Medical report generally not admissible unless this Order complied with (1) Subject to subrule (2), a medical report is not admissible as evidence unless it has been served in accordance with this Order. (2) Subrule (1) does not apply if: (a) the parties agree to dispense with or limit service of copies of a medical report as required by this Order; or (b) the Court makes an order that a medical report that has not been served in accordance with this Order is admissible as evidence. (3) This rule applies in addition to the Evidence (Business Records) Interim Arrangements Act 1984 and any other law in force in the Territory relating to the admissibility of evidence. 34.01 Powers of Court (1) At any stage of a proceeding, the Court may give directions for the conduct of the proceeding which it thinks conducive to its effective, complete, prompt and economical determination. (2) A party may apply for directions on the hearing either of a summons filed for the purpose or of a summons for other relief. 34.03 Admissions and agreements (1) On an application for directions the Court may take steps with a view to securing that the parties make all admissions and all agreements as to the conduct of the proceeding which ought reasonably to be made by them and may, by order, record an admission or agreement so made. (2) The Court may, by order, record a refusal to make an admission or an agreement as to the conduct of the proceeding so that the refusal may later, if the Court thinks fit, be taken into account on a Supreme Court Rules 1987 131 question of costs. 34.04 Duty to obtain directions Where a party applies for directions, any other party who attends on the application may apply at the same time for directions which he requires and which may be given before trial. 35.01 Definition In this Order authenticity of a document means that a document: (a) is what it purports to be; (b) if an original or described as such, is an original document and was printed, written, signed or executed as it purports to have been; or (c) if a copy or described as such, is a true copy. 35.02 Voluntary admission of facts (1) A party may, by notice served on another party, admit, in favour of the other party, for the purpose of the proceeding only, the facts specified in the notice. (2) A party may, by leave of the Court, withdraw an admission made in accordance with subrule (1). 35.03 Notice for admission of facts (1) A party may serve on another party a notice stating that unless that party, within a time to be expressed in the notice (which shall not be earlier than 14 days after service), disputes a fact specified in the notice, he shall, for the purpose of the proceeding only, be taken to admit the fact. (2) If the party served with the notice does not dispute a fact specified by serving notice that he disputes the fact within the time allowed for that purpose, he shall, for the purpose of the proceeding only, be taken to admit the fact. (3) A party may, by leave of the Court, withdraw an admission which is taken to have been made under subrule (2). (4) A notice under subrule (1) shall be in Form 35A, and a notice under subrule (2) shall be in Form 35B. Supreme Court Rules 1987 132 35.04 Judgment on admissions (1) Where a party makes admissions of fact in a proceeding, whether by his pleading or otherwise, the Court may, on the application of another party, give the judgment or make the order to which the applicant is entitled on those admissions. (2) The Court may exercise its powers under subrule (1) without waiting for the determination of any other question in the 35.05 Notice for admission of documents (1) A party may serve on another party a notice stating that unless that party, within a time to be expressed in the notice (which shall not be earlier than 14 days after service), disputes the authenticity of a document mentioned in the notice, he shall, for the purpose of the proceeding only, be taken to admit the authenticity of the document. (2) If the party served with the notice does not dispute the authenticity of a document mentioned by serving notice that he disputes its authenticity within the time allowed for that purpose, he shall, for the purpose of the proceeding only, be taken to admit its authenticity. (3) A party may, by leave of the Court, withdraw an admission which is taken to have been made under subrule (2). (4) A notice under subrule (1) shall be in Form 35A, and a notice under subrule (2) shall be in Form 35B. 35.07 Restrictive effect of admission An admission made by a party under this Order is for the purpose of the pending proceeding only and shall not be used against him as an admission in another proceeding. 35.08 Notice to produce documents (1) A party to a proceeding may serve on another party a notice requiring him to produce the documents mentioned in the notice on an application in or at the trial of the proceeding. (2) Unless the Court otherwise orders, the party on whom the notice is served shall produce on the application or at the trial such of the documents mentioned in the notice as are in his possession, custody or power and which he does not object to produce on the ground of privilege. Supreme Court Rules 1987 133 (3) Where the party on whom the notice is served fails to comply with the notice, the Court may order that the party produce the document or give such directions for the proof of a matter in relation to the document, including the contents of the document and its making, delivery or receipt, as it thinks fit. 36.01 General (1) For the purpose of determining the real question in controversy between the parties to a proceeding or of correcting a defect or error in a proceeding or of avoiding multiplicity of proceedings, the Court may at any stage order that a document in the proceeding be amended or that a party have leave to amend a document in the (2) In this Order document includes originating process, an endorsement of claim on originating process and a pleading. (3) An endorsement of claim or pleading may be amended under subrule (1) notwithstanding that the effect is to add or substitute a cause of action arising after the commencement of the proceeding. (4) A mistake in the name of a party may be corrected under subrule (1) whether or not the effect is to substitute another person as a party. (5) Where an order to correct a mistake in the name of a party has the effect of substituting another person as a party, the proceeding shall be taken to have commenced with respect to that person on the day the proceeding commenced. (6) The Court may, notwithstanding the expiration of a relevant limitation period after the day a proceeding is commenced, make an order under subrule (1) where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of his claim or defence in a way that could not be fairly met by an adjournment, an award of costs or otherwise. (7) For the purpose of subrule (6) any other party to the proceeding includes a person who is substituted as a party by virtue of an order made to correct a mistake in the name of a party. (8) Subrule (6), with the necessary changes, also applies to an application under rule 14.03(2). (9) Subrule (1) does not apply to the amendment of a judgment or Supreme Court Rules 1987 134 36.02 Failure to amend within time limited An order giving a party leave to amend a document ceases to have effect if the party has not amended the document in accordance with the order at the expiration of the time limited by the order making the amendment or, if no time was limited, of 14 days after the date of the order. 36.03 Amendment of pleading A party may amend a pleading served by him: (a) once before the close of pleadings; or 36.04 Disallowance of pleading amendment Where a party amends a pleading in accordance with rule 36.03(a), the Court may, on application by another party made within 14 days after service of the amended pleading on that party, disallow the amendment or allow it either wholly or in part. 36.05 How pleading amendment made (1) Unless the Court otherwise orders, an amendment to a pleading shall be made by: (a) amending the copy of the pleading filed in the Court or filing a copy of the pleading as amended; and (b) serving a copy of the amended pleading on all parties. (2) A party who files an amended copy of a pleading in accordance with subrule (1) shall endorse the copy pleading previously filed with a statement to the effect that the amended copy has been substituted. (3) Where either of the requirements of subrule (1)(a) is complied with, a Registrar shall, as the case requires, endorse the copy of the pleading filed in the Court with the date it is amended or the copy of the pleading as amended with the date it is filed. (4) Each amendment to a pleading shall be made in such a way as to distinguish the amendment from the original pleading and from a previous amendment to the original. Supreme Court Rules 1987 135 36.06 Pleading to an amended pleading (1) A party shall plead to an amended pleading within 14 days after it is served on him. (2) Where a party has pleaded to a pleading which is subsequently amended, he shall be taken to rely on his original pleading in answer to the amended pleading, unless he pleads to it within the time limited for so doing. 36.07 Amendment of judgment or order The Court may at any time correct a clerical mistake in a judgment or order or an error arising in a judgment or order from an accidental slip or omission. Order 37 Inspection, detention and preservation of 37.01 Inspection, detention, etc., of property (1) In a proceeding the Court may make an order for the inspection, detention, custody or preservation of a property, whether or not in the possession, custody or power of a party. (2) An order under subrule (1) may authorize a person to: (a) enter land or do any other thing for the purpose of obtaining access to the property; (b) take samples of the property; (c) make observations (including the photographing) of the property; (d) conduct an experiment on or with the property; or (e) observe a process. (3) On an application under subrule (1) the Court may make an order for the costs and expenses of a person not being a party where: (a) the person attends on the hearing of the application pursuant to a summons served under rule 37.03(1); or (b) it makes an order under subrule (1) which will affect the person. Supreme Court Rules 1987 136 (4) The Court may make an order under this rule on condition that the party applying for the order give security for the costs and expenses of a person, whether or not a party, who will be affected by the 37.02 Inspection from prospective defendant (1) This rule applies to property not being a document. (2) In this rule applicant means an applicant for an order under the (3) Where: (a) there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from an identified person; (b) after making all reasonable enquiries, the applicant has not sufficient information to enable him to decide whether to commence a proceeding in the Court to obtain that relief; and (c) there is reasonable cause to believe that the person has or is likely to have in his possession, custody or power property relating to the question whether the applicant has the right to obtain the relief and that inspection of the property by the applicant would assist him to make the decision, the Court may make an order for the inspection, detention, custody or preservation of the property. (4) An order under subrule (3) may authorize a person to do any of the things referred to in rule 37.01(2). (5) On an application under this rule the Court may make an order for the costs and expenses of the applicant and the person against whom the order is sought. (6) The Court may make an order under this rule on condition that the applicant give security for the costs and expenses of the person against whom the order is made. 37.03 Procedure (1) An application for an order under rule 37.01 shall be made by summons served on all parties to the proceeding and served personally on each person who would be affected by the order if Supreme Court Rules 1987 137 (2) The Court may make an order under rule 37.01 notwithstanding that a person, not being a party, who will be affected by the order has not been served with the summons personally or at all. (3) An application under rule 37.02 shall be made by originating motion to which the person against whom the order is sought shall be made respondent. (4) An order shall not be made under rule 37.02 except by a Judge. (5) A summons under subrule (1) or an originating motion under subrule (3) shall be supported by an affidavit: (a) stating the facts on which the application is made; and (b) specifying or describing the property in respect of which the order is sought. (6) A copy of the supporting affidavit shall be served on every person on whom the summons or originating motion is served. 37.04 Disposal of perishable property Where in a proceeding concerning property (other than land) or in a proceeding in which a question may arise as to property (other than land) the property is of a perishable nature or is likely to deteriorate or diminish in value if kept, the Court may make an order for the sale or other disposal of the whole or a part of the property. 37.05 Payment into Court in discharge of lien (1) Where in a proceeding the plaintiff claims the recovery of specific property (other than land) and it appears from the pleadings or otherwise that the defendant does not dispute the title of the plaintiff but claims to be entitled to retain the property by virtue of a lien or otherwise as security for an amount of money, the Court may order that the plaintiff be at liberty to pay into court, to abide the event of the proceeding, the amount of money in respect of which the security is claimed and such further amount, if any, for interest and costs as the Court directs and that, on the making of those payments, the property claimed be given up to the plaintiff. (2) This rule, with the necessary changes, also applies to a counterclaim. 37.06 Interim distribution of property or income Where in a proceeding concerning property the property will be more than sufficient to answer the claims on the property for which provision ought to be made in the proceeding, the Court may, by Supreme Court Rules 1987 138 order, allow the whole or part of the annual income of the property or of a part of the property to be paid, during such period as it determines, to all or any of the persons having an interest in the income, or may direct that a part of the property be conveyed, transferred or delivered to a person having an interest in the property. 37.07 Jurisdiction of Court not affected This Order does not affect the exercise by the Court of a power to make orders with respect to the inspection, detention, custody or preservation of property which is exercisable apart from those provisions. 37A.01 Definitions ancillary order, see rule 37A.03. another court means a court outside Australia or a court in Australia other than the Court. applicant means a person who applies for a freezing order or an ancillary order. freezing order, see rule 37A.02. judgment includes an order. respondent means a person against whom a freezing order or an ancillary order is sought or made. 37A.02 Freezing order (1) The Court may make an order (a freezing order), upon or without notice to a respondent, for the purpose of preventing the frustration or inhibition of the Court's process by seeking to meet a danger that a judgment or prospective judgment of the Court will be wholly or partly unsatisfied. (2) A freezing order may be an order restraining a respondent from removing any assets located in or outside Australia or from disposing of, dealing with, or diminishing the value of, the assets. Supreme Court Rules 1987 139 37A.03 Ancillary order (1) The Court may make an order (an ancillary order) ancillary to a freezing order or prospective freezing order as the Court considers (2) Without limiting the generality of subrule (1), an ancillary order may be made for either or both of the following purposes: (a) eliciting information relating to assets relevant to the freezing order or prospective freezing order; (b) determining whether the freezing order should be made. 37A.04 Respondent need not be party to proceeding The Court may make a freezing order or an ancillary order against a respondent even if the respondent is not a party to a proceeding in which substantive relief is sought against the respondent. 37A.05 Order against judgment debtor, prospective judgment debtor or third party (a) judgment has been given in favour of an applicant by: (i) the Court; or (ii) in the case of a judgment to which subrule (2) applies – another court; or (b) an applicant has a good arguable case on an accrued or prospective cause of action that is justiciable in: (i) the Court; or (ii) in the case of a cause of action to which subrule (3) applies – another court. (2) This subrule applies to a judgment if there is a sufficient prospect that the judgment will be registered in or enforced by the Court. (3) This subrule applies to a cause of action if: (a) there is a sufficient prospect that the other court will give judgment in favour of the applicant; and (b) there is a sufficient prospect that the judgment will be registered in or enforced by the Court. Supreme Court Rules 1987 140 (4) The Court may make a freezing order, an ancillary order or both against a judgment debtor or prospective judgment debtor if the Court is satisfied, having regard to all the circumstances, there is a danger a judgment or prospective judgment will be wholly or partly unsatisfied because any of the following might occur: (a) the judgment debtor, prospective judgment debtor or another person absconds; or (b) the assets of the judgment debtor, prospective judgment debtor or another person are: (i) removed from Australia or from a place inside or outside Australia; or (ii) disposed of, dealt with or diminished in value. (5) The Court may make a freezing order or an ancillary order or both against a person other than a judgment debtor or prospective judgment debtor (a third party) if the Court is satisfied, having regard to all the circumstances: (a) there is a danger a judgment or prospective judgment will be wholly or partly unsatisfied because: (i) the third party holds, is using, has exercised or is exercising, a power of disposition over assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or (ii) the third party is in possession of, or in a position of control or influence concerning, assets (including claims and expectancies) of the judgment debtor or prospective judgment debtor; or (b) a process in the Court is, or may ultimately be, available to the applicant as a result of a judgment or prospective judgment, under which process the third party may be obliged to disgorge assets or contribute toward satisfying the judgment or prospective judgment. (6) Nothing in this rule affects the power of the Court to make a freezing order or ancillary order if the Court considers it is in the interests of justice to do so. 37A.06 Jurisdiction Nothing in this Order diminishes the inherent, implied or statutory jurisdiction of the Court to make a freezing order or ancillary order. Supreme Court Rules 1987 141 37A.07 Service outside Australia of application for freezing order or ancillary order An application for a freezing order or an ancillary order may be served on a person who is outside Australia (whether or not the person is domiciled or resident in Australia) if any assets to which the order relates are within the jurisdiction of the Court. 37A.08 Costs (1) The Court may make any order as to costs it considers appropriate in relation to an order made under this Order. (2) Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a freezing order or ancillary order. 37B.01 Definitions applicant means an applicant for a search order. described includes described generally whether by reference to a class or otherwise. premises includes a vehicle or vessel of any kind. respondent means a person against whom a search order is sought or made. search order, see rule 37B.02. 37B.02 Search order The Court may make an order (a search order) in any proceeding or in anticipation of any proceeding in the Court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence which is or may be relevant to an issue in the proceeding or anticipated proceeding. Supreme Court Rules 1987 142 37B.03 Requirements for grant of search order The Court may make a search order if satisfied: (a) an applicant seeking the order has a strong prima facie case on an accrued cause of action; and (b) the potential or actual loss or damage to the applicant will be serious if the search order is not made; and (c) there is sufficient evidence in relation to a respondent that: (i) the respondent possesses important evidentiary material; and (ii) there is a real possibility the respondent might destroy the material or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the Court. 37B.04 Jurisdiction Nothing in this Order diminishes the inherent, implied or statutory jurisdiction of the Court to make a search order. 37B.05 Terms of search order (1) A search order may direct each person who is named or described in the order: (a) to permit, or arrange to permit, other persons named or described in the order: (i) to enter premises specified in the order; and (ii) to take any steps in accordance with the terms of the order; and (b) to provide, or arrange to provide, other persons named or described in the order with any information, thing or service described in the order; and (c) to allow other persons named or described in the order to take and retain in their custody any thing described in the order; and (d) not to disclose any information about the order, for up to 3 days after the date on which the order was served, except for the purposes of obtaining legal advice or legal representation; and Supreme Court Rules 1987 143 (e) to do or refrain from doing any act as the Court considers (2) Without limiting the generality of subparagraph (1)(a)(ii), the steps that may be taken in relation to a thing specified in a search order include: (a) searching for, inspecting or removing the thing; and (b) making or obtaining a record of the thing or any information it contains. (3) A search order may contain other provisions the Court considers (4) In this rule: record includes a copy, photograph, film or sample. 37B.06 Independent solicitors (1) If the Court makes a search order, the Court must appoint one or more solicitors, each of whom is independent of the applicant's solicitors, (the independent solicitors) to supervise the execution of the order and to do anything else in relation to the order the Court considers appropriate. (2) The Court may appoint an independent solicitor to supervise execution of the order at any one or more premises, and a different independent solicitor or solicitors to supervise execution of the order at other premises, with each independent solicitor having power to do anything else in relation to the order the Court considers appropriate. 37B.07 Costs (1) The Court may make any order as to costs it considers appropriate in relation to an order made under this Order. (2) Without limiting the generality of subrule (1), an order as to costs includes an order as to the costs of any person affected by a search Supreme Court Rules 1987 144 Order 38 Injunctions 38.01 When Court may grant The Court may grant an injunction at any stage of a proceeding or, in the circumstances referred to in rule 4.08, before the commencement of a proceeding. 38.02 Application before trial (1) In an urgent case, the Court may grant an injunction on application made without notice. (2) Where a plaintiff applies for an injunction against a defendant, service of notice of the application on that defendant may be made at the time of service of the originating process in the proceeding. 38.03 Costs and expenses of non-party (1) This rule applies where an application for an injunction is made before the trial of a proceeding. (2) The Court may grant an injunction on condition that the party applying for the injunction give security for the costs and expenses of a person who might be affected. (3) The Court may make such order as it thinks fit for the payment, either in the first instance or finally, of the costs and expenses of a person, not being a party, who might be affected by the grant of an injunction. 38.04 Ouster of office (1) Informations in the nature of quo warranto are abolished. (2) Where a person acts in an office in which he is not entitled to act and an information in the nature of quo warranto would, but for subrule (1), lie against him, the Court may grant an injunction restraining him from so acting and may, if the case so requires, declare the office to be vacant. 39.01 Application and definitions (1) This Order applies to and in relation to the appointment of a receiver by the Court. Supreme Court Rules 1987 145 (2) In this Order: insurer means a body corporate authorized under the Insurance Act 1973 of the Commonwealth to carry on insurance business or an underwriting member of Lloyd's so authorized. Lloyd's means the society of that name incorporated by the Imperial Act known as Lloyd's Act 1871. receiver means a receiver or receiver and manager. 39.02 Appointment of receiver (1) The Court may appoint a receiver at any stage of a proceeding or, in the circumstances referred to in rule 4.08, before the commencement of a proceeding. (2) In an urgent case, the Court may appoint a receiver on application made without notice. 39.03 Service of order The party obtaining the appointment of a receiver, or such other party as the Court directs, shall serve a copy of the order on the receiver. 39.04 Consent of receiver Before a person is appointed a receiver his written consent to the appointment shall, unless the Court otherwise orders, be filed. 39.05 Security by receiver Unless the Court otherwise orders: (a) a receiver shall give security approved by the Court that he will account for what he receives as receiver and deal with it as the Court directs; (b) the security shall be given by guarantee in Form 39A and filed; and (c) the guarantee shall be given by an ADI or an insurer. 39.06 Remuneration of receiver The Court may provide for the remuneration of a receiver. Supreme Court Rules 1987 146 39.07 Receiver's accounts (1) Unless the Court otherwise orders, a receiver shall submit accounts in accordance with this rule. (2) A receiver shall submit accounts to such parties and at such intervals or on such dates as the Court directs. (3) A party to whom a receiver is required to submit accounts may, on giving reasonable notice to the receiver, inspect, either personally or by an agent, the documents or things on which the accounts are based. (4) A party who objects to the accounts may serve notice in writing on the receiver specifying the items to which objection is taken and requiring the receiver within not less than 14 days to lodge his accounts with the Court and on such service the party shall file a copy of the notice. (5) The Court may examine the items to which objection is taken. (6) The Court shall by order declare what is the result of an examination under subrule (5) and may make an order for the costs and expenses of a party or the receiver. 39.08 Default by receiver (1) Where a receiver fails to submit an account, provide access to any books or papers or do any other thing which as receiver he ought to do, or fails to attend for the examination of an account of his, he and a party to the proceeding in which he was appointed may be required to attend before the Court to show cause for the failure and the Court may give such directions as it thinks fit, including, if necessary, directions for the discharge of the receiver and the appointment of another and the payment of costs. (2) Without limiting subrule (1), where a receiver fails to submit an account or fails to attend for the examination of an account of his, or fails to pay into court on the date fixed by the Court an amount required to be so paid, the Court may disallow any remuneration claimed by the receiver and may, where he has failed to pay that amount into court, charge him with interest at the rate currently payable in respect of judgment debts in the Court on that amount while in his possession as receiver. 39.09 Directions to receivers (1) A receiver may apply to the Court for directions by summons stating the matters on which directions are required. Supreme Court Rules 1987 147 (2) Unless the Court otherwise orders, the receiver shall serve a copy of the summons and of any affidavit in support on all persons who may be affected. 40.01 Definition In this Order, unless the contrary intention appears a proceeding commenced by writ includes: (a) a proceeding in respect to which an order has been made under rule 4.07(1); (b) a trial or inquiry under Order 50; and (c) an assessment of damages or value under Order 51. 40.02 Evidence of witness Except where otherwise provided by an Act or this Chapter, and subject to an agreement between the parties, evidence shall be given: (a) on an interlocutory or other application in a proceeding, by affidavit; (b) at the trial of a proceeding commenced by writ, orally; or (c) at the trial of a proceeding commenced by originating motion, by affidavit. 40.03 Contrary direction as to evidence (1) Notwithstanding rule 40.02, the Court may order that evidence be given: (a) orally on the hearing of an interlocutory or other application in a proceeding or at the trial of a proceeding commenced by originating motion; (b) by affidavit at the trial of a proceeding commenced by writ. (2) Where the Court makes an order under subrule (1)(a), it may direct that the party on whose application the order is made give such notice as it thinks fit to the other parties of the oral evidence the party proposes to adduce. Supreme Court Rules 1987 148 40.04 Examination on affidavit (1) Where an affidavit is filed in a proceeding, the Court may order that the deponent be examined before the Court and may order that he attend for that purpose at such time and place as it directs. (2) Unless the Court otherwise orders, a party to a proceeding commenced by originating motion on whose behalf an affidavit is filed in the proceeding shall have the deponent attend at the trial of the proceeding to be examined, if notice that the attendance is required is served on the party by another party a reasonable time before the commencement of the trial. (3) Where a deponent in respect of whom an order is made under subrule (1) or a notice is served under subrule (2) does not attend for examination, the Court may order that the affidavit be not received in evidence. 40.05 Evidence of particular facts (1) The Court may order that evidence of a particular fact be given at the trial or at any stage of a proceeding, in such manner as it directs. (2) Without limiting subrule (1), the Court may order that evidence of a particular fact be given: (a) by statement on oath of information and belief; (b) by the production of documents or entries in books; or (c) by the production of copies of documents or entries in books. 40.06 Revocation or variation of order The Court may, at or before the trial of a proceeding, revoke or vary an order made under rules 40.03 to 40.05 inclusive. 40.07 Deposition as evidence (1) No deposition taken in a proceeding is admissible as evidence at the trial of the proceeding unless: (a) the deposition was taken pursuant to an order under rule 41.01(1)(a) or (b); Supreme Court Rules 1987 149 (b) either the person against whom the evidence is offered consents or the deponent: (i) is dead or is unfit by reason of his bodily or mental condition to attend the trial and testify as a witness; (ii) is out of the Territory and it is not reasonably practicable to secure his attendance; or (iii) cannot with reasonable diligence be found; and (c) the party who applies to have the deposition received in evidence has given reasonable notice of the application to the other party. (2) A deposition purporting to be signed by the person before whom it was taken is receivable in evidence without proof of the signature of the person. (3) Unless the Court otherwise orders: (a) evidence of facts within subrule (1)(b) may be given by affidavit; and (b) the affidavit may be made from belief as to those facts, if the grounds for the belief are given. 40.08 Proof of Court documents (1) A document purporting to be sealed with the seal of the Court is admissible in evidence without further proof. (2) An office copy of a document filed in or issued out of the Court is admissible in evidence in a proceeding between all parties to the same extent as the original would be admissible. (3) A document purporting to be sealed with the seal of the Court and to be a copy of a document filed in or issued out of the Court is admissible as an office copy of the latter document without further proof. 40.09 Evidence of consent The consent of a person to act in a particular capacity, whether as trustee, receiver or otherwise, or to be added as a plaintiff is sufficiently evidenced by a written consent signed by him, dated and verified by the endorsed certificate of a solicitor. Supreme Court Rules 1987 150 40.10 Defamation A defendant in a proceeding for defamation who has not by his defence alleged the truth of the statement complained of shall not, except by leave of the Court at the trial, give evidence in chief at the trial with respect to mitigation of damages, the circumstances of publication or the character of the plaintiff unless he gives particulars of the evidence to the plaintiff by notice served not later than 7 days before the trial. 40.11 Subsequent use of evidence at trial The Court may order that evidence that has been taken at the trial of a proceeding may be used at a subsequent stage of the 40.12 Attendance and production (1) The Court may in a proceeding make an order for: (a) the attendance of a person for the purpose of being examined; (b) the attendance of a person and production by him of a document or thing specified or described in the order; or (c) the production by a corporation of a document or thing specified or described in the order. (2) An order under subrule (1) may be made for attendance before or production to the Court or an officer of the Court, examiner, special referee, arbitrator or other person authorized to take evidence. (3) An order under subrule (1) shall not operate to require the person against whom the order is made to produce a document which he could properly object to produce on the ground of privilege. 40.13 View The Court may inspect or, on a trial with a jury, may authorize the jury to inspect, a place, process or thing. 40.14 Preservation of exhibits (1) The Court may make orders or give directions for the production, custody or disposal of an exhibit or other item tendered in evidence. (2) The Court must keep a record of an order made or direction given under subrule (1). Supreme Court Rules 1987 151 (3) Subject to an order or direction under subrule (1), an exhibit or other item must be retained by the Registrar until: (a) if an appeal is lodged – 6 months after the conclusion of the appeal; or (b) if no appeal is lodged – 6 months after the appeal period expires. (4) Subrule (3) does not apply to a document or thing to which rule 42.10 applies. 41.01 Order for witness examination (1) The Court may, for the purposes of a proceeding, make an order for: (a) the examination of a person before a Judge or an Associate Judge, or such other person as the Court appoints as examiner, at any place whether within or out of the Territory; or (b) the sending of a letter of request to the judicial authorities of another country to take, or have the evidence of a person taken. (2) An order under subrule (1)(a) shall be in Form 41A or 41B, as the case requires. (3) An order under subrule (1)(b) shall be in Form 41C. 41.02 Documents for examiner The party obtaining an order for examination under rule 41.01(1)(a) shall furnish the examiner with copies of such of the documents in the proceeding as are necessary to inform the examiner of the question in the proceeding to which the examination is to relate. 41.03 Appointment for examination (1) The examiner shall appoint a place and time for the examination. (2) The time appointed shall be as soon as practicable after the making of the order. (3) The examiner shall give notice of an appointment under this rule to the party obtaining the order not later than 7 days before the time of Supreme Court Rules 1987 152 the appointment and that party shall without delay serve notice of the appointment on each other party. 41.04 Conduct of examination (1) The examiner shall permit each party and his legal practitioner to attend the examination. (2) Unless the Court otherwise orders, the person examined shall be examined, cross-examined and re-examined in like manner as at trial. (3) The examiner may put a question to the person examined as to the meaning of an answer given by that person or as to a matter arising in the course of the examination. (4) The examiner may adjourn the examination from time to time and from place to place. 41.05 Examination of additional persons (1) Where the examiner is a Judge or an Associate Judge, the examiner may, on the application of a party to the proceeding, take the examination of a person not named or described in the order for (2) Where the examiner is not a Judge or an Associate Judge, the examiner may, with the consent in writing of each party to the proceeding, take the examination of a person not named or described in the order for examination and, if the Associate Judge does so, the Associate Judge shall annex to the deposition of that person the consent of each of the parties. 41.06 Objection Where a person being examined before an examiner, not being a Judge or an Associate Judge, objects to answer a question put to the person or to produce a document or thing, or objection is taken to any such question or production, the following provisions apply: (a) where the objection is taken to a question: (i) unless the question is objected to on the ground of privilege, the person being examined shall answer the question; and (ii) the question, the ground for the objection and the answer, if any, shall be set out in the deposition; Supreme Court Rules 1987 153 (b) where the objection is taken to the production of a document or thing, the ground for the objection shall be set out in the deposition and, where the objection is to the production of a document, unless production is objected to on the ground of privilege, the document or a copy shall be attached to the deposition; (c) the validity of the objection shall be decided by the Court; and (d) if the Court disallows the objection, it may order that the costs occasioned by the objection be paid by the person being examined or the party taking the objection, or by both of them, 41.07 Taking of depositions (1) The deposition of a person examined before an examiner shall be: (a) taken down by the examiner; (b) taken down by a shorthand writer or some other person in the presence of the examiner; or (c) recorded by mechanical means in the presence of the examiner, if the place for the examination is equipped with sound recording apparatus that is operative at the commencement of the examination, and the examiner ensures that a transcript of the record of depositions is prepared. (2) Subject to subrule (3) and rule 41.06(a), the deposition need not set out every question and answer if it contains as nearly as may be the statement of the person examined. (3) The examiner may direct that the words of a question and the answer to the question be set out in the deposition. 41.08 Authentication and filing (1) Except where the deposition is taken down by a shorthand writer or is recorded by mechanical means, the examiner shall, if a party so requests, ask the person examined to sign the person's deposition. (2) The examiner shall authenticate and sign the deposition. (3) The examiner shall endorse on the deposition a statement signed by the examiner of the time occupied in taking the examination and the fees received by the examiner in respect of the examination. (4) The examiner shall send the deposition to a Registrar and the Registrar shall file it in the proceeding. Supreme Court Rules 1987 154 (5) The examiner shall, unless the Court otherwise orders, send all exhibits to the Registrar and the Registrar shall deal with them as the Court directs. (6) Subrules (3), (4) and (5) do not apply where the examiner is a Judge or an Associate Judge. 41.09 Report of examiner (1) The examiner may make to the Court a report on the examination before him or with regard to the absence of a person from the (2) The Court may direct such proceedings to be taken, or make such order, on the report as it thinks fit. 41.10 Default of witness (1) Where a person has been required by subpoena to attend before an examiner not being a Judge or an Associate Judge and the person fails or refuses to attend or the person refuses to take an oath for the purposes of the examination or to answer a lawful question or to produce a document or thing or to sign the person's deposition if requested under rule 48.08(1), the examiner shall, at the request of a party, give to the party a certificate, signed by the examiner, of the failure or refusal. (2) On the filing of the certificate the Court may order the person: (a) to attend before the examiner or to take an oath or to answer the question or to produce the document or thing, as the case may be; and (b) to pay the costs occasioned by the person's failure or refusal. (3) An application for an order under subrule (2) shall be made with notice to the person against whom the order is sought, unless the 41.11 Witness allowance A person required to attend before an examiner shall be entitled to payment for expenses and loss of time as on attendance at trial. 41.12 Perpetuation of testimony (1) A witness shall not be examined to perpetuate testimony unless a proceeding has been commenced for that purpose. Supreme Court Rules 1987 155 (2) A person who would, in the circumstances alleged by him to exist, become entitled, on the happening of a future event, to a property the right or claim to which cannot be brought to trial by him before the happening of the future event, may commence a proceeding to perpetuate a testimony which may be material for establishing the right or claim. (3) A proceeding to perpetuate the testimony of a witness shall not be set down for trial. 41.13 Letter of request (1) Where an order is made under rule 41.01(1)(b) for the sending of a letter of request, the party obtaining the order (in this Order called the applicant) shall, when the letter of request has been signed: (a) lodge with a Registrar: (i) the letter of request; (ii) all interrogatories and cross-interrogatories to accompany the letter of request; and (iii) a translation of each of the documents mentioned in this paragraph in accordance with rule 41.14, unless an Associate Judge has given a general direction in relation to the place to whose judicial authorities the letter of request is to be sent that no translation need be provided or the official language or one of the official languages of that place is English; (b) file: (i) a copy of each of the documents mentioned in paragraph (a); and (ii) an undertaking in accordance with rule 41.15; and (c) unless the Court otherwise orders, serve a copy of each of the documents mentioned in paragraph (a) on all other parties. (2) A letter of request shall be in Form 41D. 41.14 Translation A translation of a document lodged under rule 41.13 shall: (a) be a translation into an official language of the country to whose judicial authorities the letter of request is to be sent; and Supreme Court Rules 1987 156 (b) bear a certificate of the translator, in that language, stating that it is an accurate translation of the document. 41.15 Undertaking (1) An undertaking filed under rule 41.13 shall consist of an undertaking by the solicitor for the applicant or, where there is no solicitor, by the applicant, to pay to a Registrar an amount equal to the expenses incurred in consequence of the letter of request. (2) A Registrar may require the applicant or his solicitor to give security to the Registrar's satisfaction for the expenses referred to in 41.16 Order for payment of expenses Where a person has given an undertaking in accordance with rule 41.13 and 41.15 and does not, within 14 days after service on him of an account of expenses incurred in consequence of the letter of request, pay to the Registrar the amount of the expenses, the Court may, on application by the Registrar: (a) order the applicant or his solicitor (where the undertaking was given by the solicitor), or both of them, to pay the amount of the expenses to the Registrar; and (b) where: (i) the applicant is a plaintiff, stay the proceeding until payment so far as concerns the whole or a part of a claim for relief by the applicant; and (ii) the applicant is defendant, make such order as it thinks fit, including an order that, until payment, the defendant be taken not to have filed an appearance or be not permitted to use in evidence a deposition of a witness obtained pursuant to the letter of request. 42.01 Interpretation addressee means the person who is the subject of the order expressed in a subpoena. issuing officer means an officer empowered to issue a subpoena on behalf of the Court. Supreme Court Rules 1987 157 issuing party means the party at whose request a subpoena is issued. subpoena means an order in writing requiring the addressee. (a) to attend to give evidence; or (b) to produce the subpoena or a copy of it and a document or thing; or (c) to do both of those things. (2) To the extent that a subpoena requires the addressee to attend to give evidence, it is called a subpoena to attend to give evidence. (3) To the extent that a subpoena requires the addressee to produce the subpoena or a copy of it and a document or thing, it is called a subpoena to produce. 42.02 Issuing of subpoena (1) The Court may, in any proceeding, by subpoena order the addressee: (a) to attend to give evidence as directed by the subpoena; or (b) to produce the subpoena or a copy of it and any document or thing as directed by the subpoena; or (c) to do both of those things. (2) An issuing officer must not issue a subpoena: (a) if the Court has made an order, or there is a rule of the Court, having the effect of requiring that the proposed subpoena: (i) not be issued; or (ii) not be issued without the leave of the Court and that leave has not been given; or (b) requiring the production of a document or thing in the custody of the Court or another court. (3) The issuing officer must seal with the seal of the Court, or otherwise authenticate, a sufficient number of copies of the subpoena for service and proof of service. (4) A subpoena is taken to have been issued on its being sealed or otherwise authenticated in accordance with subrule (3). Supreme Court Rules 1987 158 42.03 Form of subpoena (1) A subpoena must be in accordance with Form 42A. (2) A subpoena must not be addressed to more than one person. (3) Unless the Court otherwise orders, a subpoena must identify the addressee by name or by description of office or position. (4) A subpoena to produce must: (a) identify the document or thing to be produced; and (b) specify the date, time and place for production. (5) A subpoena to attend to give evidence must specify the date, time and place for attendance. (6) The date specified in a subpoena must be the date of trial or any other date as permitted by the Court. (7) The place specified for production may be the Court or the address of any person authorised to take evidence in the proceeding as permitted by the Court. (8) The last date for service of a subpoena: (a) is the date falling 5 days before the earliest date on which an addressee is required to comply with the subpoena or an earlier or later date fixed by the Court; and (b) must be specified in the subpoena. (9) If the addressee is a corporation, the corporation must comply with the subpoena by its appropriate or proper officer. 42.03A Alteration of date or time for attendance or production (1) The issuing party for a subpoena may give notice to the addressee of a date or time later than the date or time specified in the subpoena as the date or time for attendance, production or both. (2) If notice of a later date or time is given to the addressee, the subpoena has effect as if the later date or time were specified in the subpoena. 42.04 Setting aside or other relief (1) The Court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part or grant other relief in respect of it. Supreme Court Rules 1987 159 (2) An application under subrule (1) must be made on notice to the issuing party. (3) The Court may order that the applicant give notice of the application to any other party or to any other person having a sufficient interest. 42.05 Service (1) A subpoena must be served personally on the addressee. (1A) The issuing party must attach to the front of a subpoena to produce to be served on the addressee a notice and declaration in accordance with Form 42B. (2) The issuing party must serve a copy of a subpoena to produce on each other party as soon as practicable after the subpoena has been served on the addressee. 42.06 Compliance with subpoena (1) An addressee need not comply with the requirements of a subpoena to attend to give evidence unless the person has been provided with a reasonable sum of money for his or her costs, as mentioned in section 194(1)(c) of the Evidence (National Uniform Legislation) Act 2011. (2) An addressee need not comply with the requirements of a subpoena unless it is served on or before the date specified in the subpoena as the last date for service of the subpoena. (3) Despite rule 42.05(1), an addressee must comply with the requirements of a subpoena even if it has not been served personally on that addressee if the addressee has, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements. (4) The addressee of a subpoena to produce must comply with the subpoena: (a) by attending at the date, time and place specified for production or, if the addressee has received notice of a later date or time from the issuing party, at the later date or time, and producing the subpoena or a copy of it and the document or thing to the Court or to the person authorised to take evidence in the proceeding as permitted by the Court; or (b) by delivering or sending the subpoena or a copy of it and the document or thing to the Registrar at the address specified for the purpose in the subpoena, so they are received not less than 2 clear days before the date specified in the subpoena for Supreme Court Rules 1987 160 attendance and production or, if the addressee has received notice of a later date from the issuing party, before the later date. (4A) The addressee must also complete the notice and declaration mentioned in rule 42.05(1A) and attach it to the subpoena or copy of the subpoena that accompanies the document or thing produced to the Court under the subpoena. (4B) Unless a subpoena to produce specifically requires production of the original, the addressee may produce a copy of any document required to be produced by the subpoena. (4C) A copy of a document may be: (a) a photocopy; or (b) a PDF file on a CD-ROM. (5) If a subpoena is both a subpoena to attend to give evidence and a subpoena to produce, production of the subpoena or a copy of it and of the document or thing in any of the ways permitted by subrule (4) does not discharge the addressee from the obligation to attend to give evidence. 42.07 Production otherwise than upon attendance (1) This rule applies if an addressee produces a document or thing in accordance with rule 42.06(4)(b). (2) The Registrar must, if requested by the addressee, give a receipt for the document or thing to the addressee. (3) If the addressee produces more than one document or thing, the addressee must, if requested by the Registrar, provide a list of the documents or things produced. 42.08 Removal, return, inspection, copying and disposal of documents and things The Court may give directions in relation to the removal from and return to the Court, and the inspection, copying and disposal, of any document or thing that has been produced to the Court in response to a subpoena. 42.09 Inspection of, and dealing with, documents and things produced otherwise than on attendance (1) This rule applies if an addressee produces a document or thing in accordance with rule 42.06(4)(b). Supreme Court Rules 1987 161 (2) On the request in writing of a party, the Registrar must inform the party whether production in response to a subpoena has occurred, and, if so, include a description, in general terms, of the documents and things produced. (3) Subject to this rule, no person may inspect a document or thing produced unless the Court has granted leave and the inspection is in accordance with that leave. (4) Unless the Court otherwise orders, the Registrar may permit the parties to inspect at the Registry any document or thing produced unless the addressee, a party or any person having sufficient interest objects to the inspection under this rule. (5) If the addressee objects to a document or thing being inspected by any party to the proceeding, the addressee must, at the time of production, notify the Registrar in writing of the objection and of the grounds of the objection. (6) If a party or person having a sufficient interest objects to a document or thing being inspected by a party to the proceeding, the objector may notify the Registrar in writing of the objection and of the grounds of the objection. (7) On receiving notice of an objection under this rule, the Registrar: (a) must not permit any, or any further, inspection of the document or thing the subject of the objection; and (b) must refer the objection to the Court for hearing and determination. (8) The Registrar must notify the issuing party of the objection and of the date, time and place at which the objection will be heard, and the issuing party must notify the addressee, the objector and each other party accordingly. (9) The Registrar must not permit any document or thing produced to be removed from the Registry except on application in writing signed by the solicitor for a party. (10) A solicitor who signs an application under subrule (9), and removes a document or thing from the Registry, undertakes to the Court by force of this rule that: (a) the document or thing will be kept in the personal custody of the solicitor or a barrister briefed by the solicitor in the Supreme Court Rules 1987 162 (b) the document or thing will be returned to the Registry in the same condition, order and packaging in which it was removed, as and when directed by the Registrar. (11) The Registrar may, in the Registrar's discretion, grant an application under subrule (9) subject to conditions or refuse to grant the application. 42.10 Disposal of documents and things produced (1) Unless the Court otherwise orders, the Registrar may, in the Registrar's discretion, return to the addressee any document or thing produced in response to the subpoena. (2) Unless the Court otherwise orders, the Registrar must not return any document or thing under subrule (1) unless the Registrar has given to the issuing party at least 14 days notice of the intention to do so and that period has expired. (3) Subject to subrule (4), the Registrar may, 4 months after the conclusion of the proceeding, destroy all documents that were: (a) produced in the proceeding in compliance with a subpoena; and (b) declared by the addressee under rule 42.06(4A) to be copies. (4) The Registrar may, when they are no longer required in connection with the proceeding, including on any appeal, destroy those documents that: (a) have become exhibits in the proceeding; and (b) were declared by the addressee under rule 42.06(4A) to be copies. 42.11 Costs and expenses of compliance (1) The Court may order the issuing party to pay the amount of any reasonable loss or expense incurred in complying with the subpoena. (2) If an order is made under subrule (1), the Court must fix the amount or direct that it be fixed in accordance with the Court's usual procedure in relation to costs. (3) An amount fixed under this rule is in addition to: (a) an amount payable for costs as mentioned in section 194(1)(c) of the Evidence (National Uniform Legislation) Act 2011; and Supreme Court Rules 1987 163 (b) any witness expenses payable to the addressee. 42.12 Failure to comply with subpoena – contempt of court (1) Failure to comply with a subpoena without lawful excuse is a contempt of court and the addressee may be dealt with accordingly. (2) Despite rule 42.05(1), if a subpoena has not been served personally on the addressee, the addressee may be dealt with for contempt of court as if the addressee had been so served if it is proved that the addressee had, by the last date for service of the subpoena, actual knowledge of the subpoena and of its requirements. (3) Subrules (1) and (2) are without prejudice to any power of the Court under any rules of the Court (including any rules of the Court providing for the arrest of an addressee who defaults in attendance in accordance with a subpoena) or otherwise, to enforce compliance with a subpoena. 42.13 Documents and things in the custody of a court (1) A party who seeks production of a document or thing in the custody of the Court or of another court may inform the Registrar in writing accordingly, identifying the document or thing. (2) If the document or thing is in the custody of the Court, the Registrar must produce the document or thing: (a) in Court or to any person authorised to take evidence in the proceeding, as required by the party; or (b) as the Court directs. (3) If the document or thing is in the custody of another court, the Registrar must, unless the Court has otherwise ordered: (a) request the other court to send the document or thing to the (b) after receiving it, produce the document or thing: (i) in Court or to any person authorised to take evidence in the proceeding as required by the party; or (ii) as the Court directs. Supreme Court Rules 1987 164 43.01 Form of affidavit (1) An affidavit shall be made in the first person. (2) Unless the Court otherwise orders, an affidavit shall state the place of residence of the deponent and his occupation or, if he has none, his description, and that he is a party to the proceeding or employed by a party, if that be the case. (3) Notwithstanding subrule (2), where a deponent makes an affidavit in a professional or other occupational capacity, the affidavit may, instead of stating the deponent's place of residence, state the address of his place of business, the position he holds and the name of his firm or employer, if any. (4) An affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. (7) The first page of an affidavit shall be headed immediately beneath the title of the proceeding with the name of the deponent and the date on which the affidavit is made. (8) An affidavit shall on the outside identify the party on whose behalf it is filed and state the name of the deponent and the date on which the affidavit is made. Note for rule 43.01 An affidavit must also comply with the requirements of the Part 3 of the Oaths, Affidavits and Declarations Act 2010. 43.02 Affidavit by illiterate or blind person (1) Where it appears to the person witnessing an affidavit that the deponent is illiterate or blind, he shall certify in or below the jurat (a) the affidavit was read in his presence to the deponent; and (b) the deponent seemed to him perfectly to understand it; and (c) the deponent made his signature or mark in the person's presence. (2) Where an affidavit is made by an illiterate or blind deponent and a certificate in accordance with subrule (1) does not appear on the affidavit, it may not be used in evidence unless the Court is satisfied that the affidavit was read to the deponent and that he seemed Supreme Court Rules 1987 165 perfectly to understand it. 43.03 Content of affidavit (1) Except where otherwise provided by or under this Chapter, an affidavit shall be confined to facts which the deponent is able to state of his own knowledge. (2) On an interlocutory application an affidavit may contain a statement of fact based on information and belief if the grounds are set out. 43.04 Affidavit by 2 or more deponents Where an affidavit is made by 2 or more deponents, the names of the persons making the affidavit shall be inserted in the jurat, except that, if the affidavit is made by both or all the deponents at one time and is witnessed by the same person, it shall be sufficient to state that it was made by "each of the abovenamed" deponents. 43.05 Alterations (1) Notwithstanding an interlineation, erasure or other alteration in the jurat or body, an affidavit: (a) may be filed, unless the Court otherwise orders; but (b) may not be used without the leave of the Court unless the person who witnessed the affidavit has initialled the alteration. (2) Subrule (1) also applies to an account verified by affidavit as if the account were part of the affidavit. 43.06 Annexures and exhibits (1) A document to be used in conjunction with an affidavit shall, where convenient, be annexed to the affidavit. (2) Where annexure is inconvenient, the document may be made an exhibit to the affidavit. (3) Instead of making a document an annexure or an exhibit to an affidavit, the relevant portion of the document may be included in the body of the affidavit and the party filing the affidavit shall in that case produce the document whenever the affidavit is used. (4) An annexure or exhibit to an affidavit shall be identified by a separate certificate annexed to it bearing the same title as the affidavit and signed by the person witnessing the affidavit. Supreme Court Rules 1987 166 43.07 Time for making affidavit By leave of the Court an affidavit may be used in a proceeding notwithstanding that it was made before the commencement of the 43.08 Irregularity Notwithstanding an irregularity in form, an affidavit may be used in evidence. 43.09 Filing (1) Unless the Court otherwise orders, an affidavit which has not been: (a) filed; or (b) served or filed in compliance with an order in respect of its service or filing, shall not be used by the party by or on whose behalf it was made. (2) An affidavit may be filed with the Registry or with the proper officer in court. 43.10 Affidavit witnessed by party (1) An affidavit witnessed by the party on whose behalf it is to be used or before an employee of that party shall not be used in evidence without the leave of the Court. (2) Subrule (1) does not apply where the Crown is the party on whose behalf the affidavit is to be used and the affidavit is witnessed by an employee of the Crown. 44.01 Definition (1) In this Order, unless the contrary intention appears, a proceeding commenced by writ includes: (a) a proceeding in respect of which an order has been made under rule 4.07; (b) a trial or inquiry under Order 50; and (c) an assessment of damages or value under Order 51. Supreme Court Rules 1987 167 (2) In this Order evidence means the substance of all of the material evidence to be given by the expert witness in evidence in chief if called as a witness for a party, including, where applicable, the facts, assumptions and reasoning on which the evidence to be given is based and any reports, works, learned writings or other information on which the expert witness has relied or intends to rely for the expression of his opinion. 44.02 Application (1) Subject to subrule (2), this Order applies to a proceeding (2) In a proceeding in which the plaintiff claims damages for bodily injury, the evidence of a person as an expert witness, if not subject to Order 33, is subject to this Order. (3) However, rule 44.05 applies in relation to the evidence of expert witnesses given in a proceeding mentioned in subrule (2) regardless of whether the evidence is also subject to Order 33. 44.03 Service of statement of expert evidence (1) A party who intends at a trial to adduce the evidence of a person as an expert witness shall: (a) not later than the time fixed by a Judge, an Associate Judge or a Registrar at a listing hearing or directions hearing held under Order 48; or (b) where no such time is fixed: (i) 6 weeks before the day fixed for the trial; or (ii) before a directions hearing under rule 48.34 to ensure that a proceeding is ready to proceed to trial, whichever is the earlier, serve on every other party a statement in accordance with subrule (2). (2) The statement shall: (a) give the name and address of the witness; (b) describe the witness' qualifications to give evidence as an expert; and Supreme Court Rules 1987 168 (c) be a statement of such of the evidence as it is proposed to adduce from the witness as an expert. (2A) In a proceeding in which the plaintiff claims damages in respect of death resulting from medical or the like treatment or advice given in respect of a physical or mental condition of the deceased, then, unless the Court otherwise orders, a party who is required to serve a statement under subrule (1) may exclude from the statement: (a) any expression of opinion on the question of liability; and (b) any statement in respect of a fact on which the opinion is based and which relates only to the question of liability. (3) Except with the leave of the Court or by consent of the parties, a party shall not, except in cross-examination, adduce at the trial of a proceeding evidence from a witness as an expert unless the evidence of the witness is contained in a statement served under this Order by the party. 44.04 Making statement of other party evidence A party may put in evidence a statement served on him by another party in accordance with rule 44.03. 44.05 Expert witnesses giving evidence on same or similar question (1) This rule applies if 2 or more parties to a proceeding call, or intend to call, expert witnesses to give evidence about the same, or a similar, question. (2) The Court may direct: (a) that the expert witnesses confer; or (b) that the expert witnesses produce for use by the Court a document identifying: (i) the matters and issues about which their opinions are in agreement; and (ii) the matters and issues about which their opinions differ; or (c) that: (i) the expert witnesses give evidence at trial after all or certain factual evidence relevant to the question has been led; and Supreme Court Rules 1987 169 (ii) each party intending to call 1 or more expert witnesses close that party’s case in relation to the question, subject only to adducing the evidence of the expert witnesses later in the trial; or (d) that, after all or certain factual evidence has been led, each expert witness file and serve an affidavit or statement indicating: (i) whether the expert witness adheres to any opinion earlier given; or (ii) whether, in the light of factual evidence led at trial, the expert witness wishes to modify any opinion earlier given; or (e) that: (i) each expert witness take the oath as a witness one immediately after another; and (ii) when giving evidence, an expert witness occupy a position in the courtroom (not necessarily in the witness box) that is appropriate to the giving of evidence; or (f) that each expert witness give an oral exposition of his or her opinion, or opinions, on the question; or (g) that each expert witness give his or her opinion about the opinion, or opinions, given by another expert witness; or (h) that the expert witnesses be cross-examined in a certain manner or sequence; or (i) that cross-examination or re-examination of the expert witnesses be conducted: (i) by completing the cross-examination or re-examination of an expert witness before starting the cross- examination or re-examination of another; or (ii) by putting to each expert witness, in turn, each question relevant to 1 subject or issue at a time, until the cross- examination or re-examination of all the witnesses is completed. Supreme Court Rules 1987 170 45.01 Definition In this Order proceeding means proceeding commenced by 45.02 Evidence by affidavit (1) Except where otherwise provided by an Act or this Chapter, and subject to subrule (2), evidence at the trial of a proceeding shall be given by affidavit. (2) By agreement of the parties or by order of the Court, evidence at the trial of the proceeding may be given orally. 45.03 Judgment where no appearance (1) Where a defendant fails to file an appearance within the time limited, the Court may, on application made by the plaintiff without notice to the defendant, and on proof of service of the originating motion and of the failure, give judgment against the defendant for the relief or remedy sought in the originating motion. (2) For the purpose of this Chapter, the hearing of the application is the trial of the proceeding. (3) Except for the purpose of proof of service of the originating motion and where the defendant has failed to appear, the plaintiff shall not, unless the Court otherwise orders, use in evidence on the application an affidavit made by him or on his behalf and not served on the defendant with the originating motion. 45.04 Proceedings after appearance (1) Where a defendant has filed an appearance, no judgment shall be given for the relief or remedy sought except on application by the plaintiff in accordance with this rule. (2) Except as provided in subrule (3), an application shall be made to the Court by summons in Form 45A served on the defendant. (3) In a proceeding commenced by originating motion under Order 53 the plaintiff may apply for judgment on the day specified in the originating motion for application to the Court. Supreme Court Rules 1987 171 (4) On an application under subrule (2) or (3) an Associate Judge may, as appropriate: (a) hear and determine the application if it lies within his authority under Order 77; (b) by consent of the defendant, give the judgment; (c) refer the application to a Judge for hearing and determination; or (d) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise. 45.05 Special procedure (1) In this rule plaintiff includes a person who proposes to commence a proceeding by originating motion. (2) The Court may, by order: (a) dispense with the requirements of rules 5.03(1) and 8.02; and (b) authorise the plaintiff to commence a proceeding by originating motion in Form 5C. (3) Without limiting subrule (2), an order may be made: (a) in an urgent case; or (b) to save time and expense for the parties; or (c) where the defendant consents. (4) An order may be made on application by the plaintiff before or after the proceeding is commenced and, except where the originating motion has been served on the defendant, application may be made without notice to the defendant. (5) An application made before the proceeding is commenced shall not constitute a proceeding for the purpose of this Chapter with respect to originating process. (6) Where an order has been made under subrule (2), judgment shall not be given for the plaintiff for the relief or remedy sought in the originating motion or otherwise, except on application made to the Court in accordance with Form 45A. Supreme Court Rules 1987 172 (7) On application to the Court under subrule (6), if the application is heard before an Associate Judge, the Associate Judge may, as appropriate: (a) where the Associate Judge has authority to give the judgment sought by the plaintiff, hear and determine the application; or (b) by consent of the defendant, give the judgment; or (c) refer the application to a Judge for hearing and determination; or (d) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise. 46.01 Application This Order applies to an interlocutory or other application in a 46.02 Application by summons (1) An application made on notice to a person shall be by summons, (2) An application made before the proceeding is commenced does not constitute a proceeding for the purpose of a requirement of this Chapter with respect to an originating process. (3) An application not by summons is made when it comes on for 46.03 Notice of application On the hearing of an application the Court may order that the person making it give notice of it to a person having a sufficient interest. 46.04 Form and filing of summons (1) A summons shall be in Form 46A. (2) A summons shall state: (a) the Order and rule; or (b) such other legislative enactment, Supreme Court Rules 1987 173 by virtue of which the application is made. (3) A summons shall be filed in the Registry in which the originating process was filed whether the application is made to a Judge, an Associate Judge or a Taxing Master for costs to be taxed. (4) On the filing of a summons, or at a later time on the request of the applicant, a sufficient number of copies of the summons for service and proof of service shall be sealed with the seal of the Court. (5) The copies shall be sealed by a Registrar or other proper officer in the Registry. 46.05 Service (1) The applicant shall serve a sealed copy of a summons and, except where these Rules otherwise provide, a copy of an affidavit in support on every person to whom notice of the application is to be (2) Service under subrule (1) shall be made within a reasonable time before the day for hearing named in the summons and in no case later than 2.00 p.m. on the previous day or, where the Registry was closed on the day before the day for hearing, not later than 2.00 p.m. on the day the office was last open. (3) A plaintiff may serve a summons on a defendant personally before (4) The Court may dispense with compliance with this rule. 46.05.1 Day for hearing (1) A summons which has not been served may, at the request of the party who filed it, be amended on or before the day for hearing named in the summons to name another day. (2) The summons may be amended: (a) if the summons is to be heard by the Court constituted by a Judge: (i) by an Associate Judge; or (ii) by a Judge's Associate; or (b) if the summons is to be heard by the Court constituted by an Associate Judge: (i) by a Registrar; or Supreme Court Rules 1987 174 (ii) by the Associate Judge's Secretary. (3) A summons shall not be amended under this rule more than once. (4) This rule does not limit the power of the Court under rule 36.01. 46.06 Adjournment (1) The Court may adjourn the hearing of an application on such terms as it thinks fit. (2) The Associate of the Judge or, where an application is to be heard by an Associate Judge, a Registrar or the Associate Judge's secretary, may by consent adjourn the hearing of an application to a particular date or for a particular time or generally, and shall record the adjournment by endorsement on the court file. (3) An adjournment in pursuance of subrule (2) shall be granted no later than 3pm on the day before the day for hearing named in the summons or, where the Registry was closed on the day before the day for hearing, no later than 3 pm on the day on which the office was last open. (4) On a hearing adjourned under subrule (2) the Court may make such order for the costs of or occasioned by the adjournment as it 46.07 Absence of party to summons (1) Where a person to whom a summons is addressed fails to attend, the Court may hear the application if satisfied that the summons was duly served. (2) Where on an application by summons the applicant fails to attend, the Court may dismiss the application or make such other order as it thinks fit. 46.08 Setting aside The Court may set aside or vary an order which affects a person where the application for the order: (a) was made on notice to the person, but he did not attend the hearing of the application; or (b) was not made on notice to the person. Supreme Court Rules 1987 175 47.01 Place of trial Unless the Court otherwise orders, the place of trial of a proceeding shall be determined in accordance with rule 5.08. 47.02 Mode of trial (1) All proceedings shall be tried without a jury, unless the Court orders otherwise in accordance with section 7 of the Juries Act 1962. (2) Trial with a jury shall be with a jury of 4. 47.03 Jury procedure The Court may, if it thinks fit, order that a proceeding or a question of fact in a proceeding be tried by the Court with a jury pursuant to the Juries Act 1962. 47.04 Separate trial of question The Court may order that: (a) a question in a proceeding be tried before, at or after the trial of the proceeding and may state the question or give directions as to the manner in which it shall be stated; and (b) different questions be tried at different times or places or by different modes of trial. 47.05 Judgment after determination of preliminary question If the determination of a question in a proceeding and tried separately from the proceeding substantially disposes of the proceeding or renders the trial of the proceeding unnecessary, the Court may dismiss the proceeding or make such other order, or give such judgment, as it thinks fit. Supreme Court Rules 1987 176 Order 48 Case flow management and setting down for trial 48.01 Definitions Associate Judge includes the Registrar. case management conference means a case management conference under rule 48.11A and, in relation to a proceeding, includes: (a) each case management conference (if any) in the proceeding; and (b) if a conference mentioned in paragraph (a) is adjourned – the adjourned conference. directions hearing means a directions hearing under Part 2 and, in relation to a proceeding, includes: (a) the initial directions hearing and each further directions hearing (if any) in the proceeding; and (b) if a directions hearing referred to in paragraph (a) is adjourned – the adjourned directions hearing. hearing time, in relation to a proceeding, means the time taken for the trial of the proceeding. listing hearing means a directions hearing at which a proceeding is ordered to be listed for trial under rule 48.17. mediation means a mediation under rule 48.13 and, in relation to a proceeding, includes: (a) each mediation (if any) in the proceeding; and (b) if a mediation referred to in paragraph (a) is adjourned – the adjourned mediation. mediator, in relation to a mediation, means the mediator or mediators before whom the mediation is or is to be held under rule 48.13. Supreme Court Rules 1987 177 settlement means: (a) a final disposition by agreement between the parties to a proceeding of all the issues in the proceeding; or (b) a resolution by agreement between the parties to a proceeding of those issues in the proceeding that will or are likely to reduce the hearing time of the proceeding, whether or not the agreement is subject to a contingency. settlement conference means a settlement conference under rule 48.12 and, in relation to a proceeding, includes: (a) each settlement conference (if any) in the proceeding; and (b) if a settlement conference is adjourned – the adjourned settlement conference. trial Judge, in relation to a proceeding, means the Judge allocated the trial of the proceeding. trial list means a list kept under rule 48.20 of proceedings that have been ordered under rule 48.17 to be listed for trial. 48.02 Application (1) This Order applies to: (a) all proceedings in the Court commenced by writ; and (b) all proceedings in respect of which an order has been made under rule 4.07. (2) Where in a proceeding commenced by originating motion: (a) it is proposed to call oral evidence under rule 45.02(2); or (b) for any other reason that appears desirable, a Judge or an Associate Judge may order that this Order applies to 48.03 Directions by Registrar (a) a directions hearing is convened by or held before the Supreme Court Rules 1987 178 (b) the Registrar gives a direction for the conduct of the proceeding in accordance with this Order, Order 34 applies (with the necessary changes) to that direction. 48.04 Convening initial directions hearing (1) Where no appearance has been entered to an originating proceeding, within 2 months after the originating process was filed, an Associate Judge must: (a) fix a time, date and place for the holding of an initial directions (b) hold an initial directions hearing. (2) Where an appearance has been entered to an originating proceeding, within 21 days after the appearance was filed, an Associate Judge must: (a) fix a time, date and place for the holding of an initial directions (b) hold an initial directions hearing. (3) An Associate Judge may hold an initial directions hearing under subrule (1) or (2) by telephone without notice of the hearing to a 48.05 Notice of initial directions hearing (1) Subject to rule 48.04(3), an Associate Judge must give each party at least 2 days notice of the initial directions hearing in a (2) A notice under subrule (1) may be given to a party: (a) by sending it by pre-paid post to the party's address for (b) where the party appears by a solicitor – in accordance with rule 6.06(1)(d). (3) The Associate Judge must file a copy of the notice given under Supreme Court Rules 1987 179 (4) The copy of the notice filed in accordance with subrule (3) is to be endorsed with the date the notice was given and is to be signed by the Associate Judge. (5) A copy of a notice duly filed, endorsed and signed in accordance with this rule is, for the purposes of this Part, evidence that the notice was given. 48.06 Categorising proceedings (1) The purposes of the initial directions hearing include the following: (a) to determine whether the proceeding is still current or has been settled or is to be discontinued; (b) if the originating process has not been served – to make appropriate orders (if necessary) to enable or require (whether or not the plaintiff consents) prompt service of the originating process to take place; (c) if the originating process has been served but no appearance has been entered – to facilitate (where appropriate) the entry of an interlocutory or final judgment in the proceeding in accordance with these Rules; (d) if the originating process has been served and an appearance has been entered: (i) to determine which of the categories specified in subrule (2) it is appropriate to designate the proceedings; and (ii) to consider and, as necessary, make orders in accordance with subrules (4) and (5). (2) At the initial directions hearing, an Associate Judge must designate the proceeding to be in one of the following categories: (a) if the hearing time is likely to be 1 to 2 days – Category A; (b) if the proceeding is an ordinary matter requiring the supervision of an Associate Judge – Category B; (c) if the proceeding is a complex matter requiring the supervision of a Judge – Category C; (d) if the proceeding is an urgent matter requiring the supervision of a Judge – Category D; Supreme Court Rules 1987 180 (e) if the proceeding involves local witnesses only or no witnesses and, when ready for trial, is likely to be capable of being brought on for trial on less than 2 days' notice – Category E. (3) The category to which a proceeding belongs may be altered by a Judge or an Associate Judge if there is a good reason for doing so. (4) At the initial directions hearing, the Associate Judge must: (a) consider whether it is appropriate to refer the matter to mediation in accordance with this Order and, if so, make the appropriate orders; and (b) consider whether it is appropriate to refer the matter to a settlement conference in accordance with this Order and, if so, make the appropriate orders; and (c) if it is appropriate, fix a target date by which the matter is to be ready for trial and fix a timetable for the completion of all interlocutory steps so that the matter will be ready for trial by that date. (5) At the initial directions hearing, the Associate Judge may: Associate Judge thinks fit; or (b) refer the making of an order or the giving of a direction to a Judge; or (c) adjourn the initial directions hearing and fix a time, date and place for the adjourned hearing; or (d) convene a further directions hearing and fix a time, date and place for the further hearing; or (e) direct that the proceeding be set down for a case management conference. 48.07 Category C and D proceedings (1) If at a directions hearing a proceeding is designated as a Category C or D proceeding, the Associate Judge must refer the proceeding to the Chief Justice who must then allocate it to a (2) A Judge to whom a proceeding is allocated by the Chief Justice under subrule (1) has charge of the proceeding and must make the orders and give the directions the Judge thinks fit for the proceeding to be resolved justly, promptly, economically and in Supreme Court Rules 1987 181 proportion to the nature of the dispute. (3) For the purpose of achieving the objectives specified in subrule (2), a Judge may do one or more of the following: Judge thinks fit; (b) convene the directions hearings the Judge thinks fit; (c) adjourn a directions hearing convened under paragraph (b) and fix a time, date and place for the adjourned hearing. 48.08 Category A, B and E proceedings (1) The Associate Judge has charge of all proceedings designated as Category A, B or E proceedings and must make the orders and give the directions the Associate Judge thinks fit for the proceeding to be resolved justly, promptly, economically and in proportion to the nature of the dispute. (2) For the purpose of achieving the objectives specified in subrule (1), the Associate Judge may do one or more of the following: Associate Judge thinks fit; (b) refer the proceeding to a Judge for the making of the orders or the giving of the directions the Judge thinks fit; (c) convene the further directions hearings the Associate Judge thinks fit; (d) adjourn a directions hearing convened under paragraph (c) and fix a time, date and place for the adjourned hearing. (3) A Judge may exercise the powers of the Associate Judge conferred by this rule as the Judge thinks fit. 48.09 Notice of adjourned or further directions hearings (1) A Judge must give each party notice of the first directions hearing convened by the Judge in a proceeding under rule 48.07(3)(b) and rule 48.05 applies (with the necessary changes) accordingly. (2) Where a party attended a directions hearing at which a Judge or an Associate Judge: (a) adjourned the directions hearing or convened a further directions hearing; and Supreme Court Rules 1987 182 (b) fixed a time, date and place for the adjourned or further the party is taken to have been given notice of that time, date and (3) Where a party did not attend a directions hearing at which a Judge or an Associate Judge: (a) adjourned the directions hearing or convened a further directions hearing; and (b) fixed a time, date and place for the adjourned or further the Judge or Associate Judge must give the party notice of the adjourned or further hearing and rule 48.05 applies (with the necessary changes) accordingly. 48.10 Party to attend directions hearing A party must attend a directions hearing of which the party has had notice in accordance with rule 48.05 or 48.09 in person or by counsel or the party's solicitor. 48.11 Non-attendance at directions hearing (1) If a party fails to attend a directions hearing of which notice has been duly given, a Judge or an Associate Judge may do one or both of the following: (a) make the orders the Judge or Associate Judge considers appropriate for the expeditious hearing of the matter; (b) give the party who failed to attend notice of a time, date and place when the party is to attend before the Judge or Associate Judge and show cause why: (i) if the party is a plaintiff – the party's claim should not be dismissed for want of prosecution; or (ii) if the party is a defendant – the party's appearance, defence or counterclaim should not be struck out. (2) At the time, date and place specified in the notice under subrule (1)(b) or at an adjourned time, date and place, the Judge or Associate Judge may: (a) if the party required to show cause is a plaintiff – dismiss the party's claim for want of prosecution; Supreme Court Rules 1987 183 (b) if the party required to show cause is a defendant – strike out the party's appearance, defence or counterclaim; (c) in the case of an initial directions hearing – proceed in accordance with rule 48.06; or (d) adjourn the hearing. (3) In acting under subrule (2), the Judge or Associate Judge may award costs against the party required to show cause or that party's solicitor. (4) Rule 48.27(5), (6) and (7) applies (with the necessary changes) to a claim, appearance or pleading dismissed or struck out under this 48.11A Case management conference (1) The purpose of a case management conference is to ensure that a proceeding is the subject of active and effective judicial case management with the aim that the real issues of substance that are in dispute between the parties, and only those issues, are resolved by the Court justly, promptly, economically and in proportion to the nature of the dispute. (2) If a Judge or an Associate Judge is of the opinion that a case management conference should be held for a proceeding, the Judge or Associate Judge may direct that the proceeding be set down for a case management conference before a Judge or an (3) The Judge or Associate Judge must give the parties notice of the case management conference and rule 48.05 applies (with the necessary changes) accordingly. (4) If a proceeding is set down for a case management conference, the parties must: (a) assist the Court in managing the proceeding to achieve the purpose mentioned in subrule (1); and (b) cooperate to avoid, as far as possible, multiple case management conferences being held. (5) In addition to the obligations under subrule (4), the parties should attend the case management conference: (a) with an understanding of the nature of the real issues of substance that are in dispute and of their case in relation to those issues; and Supreme Court Rules 1987 184 (b) having considered, discussed and if possible agreed with the other party the directions they propose that the Court should make at the conference; and (c) with sufficient information concerning the availability of all relevant persons to enable a trial date or dates or target trial window to be fixed if not already fixed; and (d) ready to deal with all outstanding procedural issues. (6) A case management conference may be held by telephone, videoconference or other audiovisual means. (7) At a case management conference, the Court may do the following: (a) if it has not already been done: (i) fix a trial date or dates; or (ii) refer the matter to a civil sittings callover or directions (iii) identify a target trial window; (b) make directions to ensure that the matter is ready for trial on that date or those dates or during that sittings period or target trial window; (c) scrutinise carefully the parties’ respective pleadings to ensure that they properly identify only the real issues of substance that are in dispute; (d) consider whether any claim or plea is appropriate for summary determination, strike out or determination as a preliminary issue; (e) resolve any other outstanding procedural issues between the parties or, if that is not possible, make directions for the resolution of those issues; (f) consider whether any further case management conferences are likely to be required and, if so, fix the date or dates for those conferences; (g) consider whether to make directions for a settlement conference under rule 48.12 or a mediation under rule 48.13; (h) make such other orders as it considers appropriate to ensure that the matter is resolved justly, promptly, economically and in proportion to the nature of the dispute. Supreme Court Rules 1987 185 (8) Rules 48.16 to 48.19 do not apply to a proceeding in which one or more case management conferences are held. 48.12 Settlement conference (1) If a Judge or an Associate Judge is of the opinion that a proceeding is capable of settlement or ought to be settled, the Judge or Associate Judge may direct that the matter be set down for a settlement conference for the purpose of exploring the possibility of settlement. (2) A settlement conference is to be held before an Associate Judge. (3) The Judge or Associate Judge must give the parties notice of the settlement conference and rule 48.05 applies (with the necessary changes) accordingly. (4) The Judge or Associate Judge: (a) may direct that the parties attend the settlement conference in person; and (b) if a party is a corporation – may order that the settlement conference be attended by an agent of the corporation who is familiar with the substance of the issues in the proceeding and has unqualified authority either to settle the proceeding or to make recommendations to the corporation that are likely to result in the settlement of the proceeding. (5) The Judge or Associate Judge may direct that a party attend the settlement conference by a videoconference or teleconference facility. (6) A direction under subrule (4): (a) may be given to a party: (i) orally either in person or by the party's solicitor; (ii) in writing sent by pre-paid post to the party's address for (iii) where the party appears by a solicitor – in accordance with rule 6.06(1)(d); and (b) may be given either by the Judge or Associate Judgeor an officer of the Court authorised by the Judge or Associate Supreme Court Rules 1987 186 (7) The attendance of a party in person at a settlement conference (whether in response to a direction under subrule (4) or otherwise) does not prevent the party being represented at the conference by counsel or the party's solicitor or both. (8) Except to prove that a settlement was reached between the parties and the terms of the settlement, evidence of things said or admissions made at a settlement conference is not admissible in either the proceeding or a court without the consent of those parties. (9) If a party (the party at fault): (a) fails to attend a settlement conference after having been notified of the conference under subrule (3); or (b) having attended a settlement conference: (i) refuses to participate in the settlement conference; or (ii) applies (other than with the consent of the other parties) to adjourn or further adjourn the settlement conference and the adjournment is granted by an Associate Judge; the party at fault must pay the costs of the other parties thrown away as a result, which costs may (despite rule 63.04(3)) be taxed immediately by the Taxing Master. (10) A settlement conference may be adjourned by an Associate Judge if the parties consider that further negotiations may lead to a settlement. (11) A Judge or an Associate Judge may order each party to prepare a precis of the party's case to be given to an Associate Judge at the settlement conference. (12) Despite subrule (8), if an offer of settlement is made before an Associate Judge at a settlement conference: (a) the Associate Judge must record the offer and place that record in a sealed envelope on the Court file; and (b) the offer may be taken into consideration by the Court in exercising its discretion to award costs once final judgment in the proceeding is given. Supreme Court Rules 1987 187 48.13 Mediation (1) If a Judge or an Associate Judge is of the opinion that a proceeding is capable of settlement or ought to be settled, the Judge or Associate Judge may direct that the matter be set down for mediation for the purpose of exploring the possibility of settlement. (2) The mediator may be a Judge or an Associate Judge or a person from the list kept under subrule (9), and may be appointed by: (a) if the parties agree on a person from the list kept under subrule (9) – the parties; or (b) a Judge or an Associate Judge. (3) Under subrule (2), 2 mediators may be appointed to mediate jointly. (4) The Judge or Associate Judge must give the parties notice of the mediation and rule 48.05 applies (with the necessary changes) accordingly. (5) The Judge or Associate Judge: (a) may direct that the parties attend the mediation in person; and (b) if a party is a corporation – may order that the mediation be attended by an agent of the corporation who is familiar with the substance of the issues in the proceeding and has unqualified authority either to settle the proceeding or to make recommendations to the corporation that are likely to result in the settlement of the proceeding. (6) A direction under subrule (5): (a) may be given to a party: (i) orally either in person or by the party's solicitor; (ii) in writing sent by pre-paid post to the party's address for (iii) where the party appears by a solicitor – in accordance with rule 6.06(1)(d); and (b) may be given either by the Judge or Associate Judge or an officer of the Court authorised by the Judge or Associate Supreme Court Rules 1987 188 (7) The attendance of a party in person at a mediation (whether in response to a direction under subrule (5) or otherwise) does not prevent the party being represented at the mediation by counsel or the party's solicitor or both. (8) Except to prove that a settlement was reached between the parties and the terms of the settlement, evidence of things said or admissions made at a mediation is not admissible in either the proceeding or a court without the consent of those parties. (9) The Associate Judges must keep a list of persons who, in the opinion of a Judge or an Associate Judge, are suitably qualified and willing to act as mediators. (10) The list kept under subrule (9) is to include details of the following: (a) the qualifications and experience of each mediator listed; (b) the kinds of matters each mediator listed is willing to mediate. (11) The costs and expenses of a mediator: (a) may be fixed by a Judge or an Associate Judge; and (b) are to be met equally by all parties to the mediation. (12) A Judge or an Associate Judge may make the orders necessary to secure or enforce payment of a mediator's costs and expenses (13) If a party (the party at fault): (a) fails to attend a mediation after having been notified of the mediation under subrule (4); or (b) having attended a mediation: (i) refuses to participate in the mediation; or (ii) applies (other than with the consent of the other parties) to adjourn or further adjourn the mediation and the adjournment is granted by the mediator, the party at fault must pay the costs of the mediator and the other parties thrown away as a result, which costs may (despite rule 63.04(3)) be taxed immediately by the Taxing Master. Supreme Court Rules 1987 189 (14) Subject to subrules (8) and (16) but despite any other law of the Territory, a mediator must not disclose and is not to be required to disclose information of which the mediator becomes aware in the course of or for the purposes of the mediation. (15) A mediation may be adjourned by the mediator if the parties consider that further negotiations may lead to a settlement. (16) Within 7 days of the conclusion of a mediation, the mediator: (a) must file a report signed by the mediator indicating one of the (i) that the proceeding has been finally resolved; (ii) that certain issues, that are identified in the report, have not been resolved but that all other issues between the parties have been resolved; (iii) that no issues between the parties have been resolved; and (b) must give each party a copy of the report. 48.14 Costs of directions hearings, case management conferences, settlement conferences and mediations Subject to this Order, as between the parties, the costs of and incidental to attending a directions hearing, case management conference, settlement conference or mediation are to be costs in the proceeding unless the Court orders otherwise. 48.15 Papers for trial Judge The plaintiff or applicant in a proceeding must, within 14 days after the pleadings in the proceeding have closed in accordance with rule 14.08, file a copy of all of the pleadings, including any request for particulars of those pleadings and all particulars given in response to that request but not including the writ or notice of 48.16 Listing hearing Subject to these Rules, unless a Judge or an Associate Judge orders otherwise, a proceeding is not to be listed for trial unless a listing hearing has been held. Supreme Court Rules 1987 190 48.17 Listing for trial At a directions hearing, if a Judge or an Associate Judge is satisfied that a proceeding: (a) is ready for trial; or (b) should, in the interests of justice, proceed to trial; the Judge or Associate Judge may order that the proceeding be placed on a list of proceedings ready for trial. 48.18 Matters to be considered before listing for trial (1) Before making an order under rule 48.17, the Judge or Associate Judge must give consideration to the following matters: (a) the possibility of the claim being settled by compromise and the desirability of a settlement conference or mediation; (b) further simplification of the issues; (c) the necessity or desirability of amendments to the pleadings; (d) obtaining further admissions of facts and of documents that will avoid unnecessary proof, including questions of medical examinations and reports under Order 33; (e) limiting the number of witnesses or the issues to be covered by evidence from witnesses; (f) submissions by the parties to the trial Judge of written arguments on issues of law or issues that are a mixture of law and fact; (g) the necessity to refer the proceeding to a Judge to secure appropriate directions or orders to ensure the proceeding is ready for and will proceed to trial; (h) the estimated duration of the trial; (j) whether a witness's evidence will be heard by means of a videoconference in accordance with these Rules; (k) whether advice on evidence has been obtained; (m) other matters that might facilitate the disposal of the Supreme Court Rules 1987 191 (2) Except in special circumstances, the Judge or Associate Judge must not make an order under rule 48.17 unless: (a) each party is represented at the listing hearing by the personal attendance (including by videoconference or teleconference under Part 4) at the hearing of: (i) counsel who is briefed in the proceeding; (ii) a solicitor who is a partner in the firm representing the (iii) if the party is represented by a solicitor who is not in private practice – a legal practitioner who holds an unrestricted practising certificate; and (b) in the case of paragraph (a)(ii) or (iii) – the party has filed a certificate by counsel in accordance with subrule (3). (3) The certificate by counsel is to state the following: (a) that the proceeding is ready for trial; (b) that no amendment to the pleadings is required; (c) the anticipated length of the case of the party counsel is representing, including opening and closing addresses; (d) the dates (if any) during the proposed sittings when counsel or a witness will not be available; (e) whether or not counsel has discussed the proceeding with counsel representing the other parties; (f) whether or not there are outstanding pre-trial matters yet to be resolved or finalised and, if so, full details of those matters; (g) the prospects of the proceeding being settled before the trial. (4) For the purposes of subrule (2)(a), an unrepresented party who appears at a listing hearing is to be treated as if the party were a legal practitioner holding an unrestricted practising certificate. Supreme Court Rules 1987 192 (5) In considering whether or not the special circumstances referred to in subrule (2) exist, the Judge or Associate Judge may have regard to: (a) the extent to which, in the opinion of the Judge or Associate Judge, a party or a party's counsel or solicitor has failed to expeditiously prosecute or defend the proceeding or otherwise prepare for trial; and (b) the interests of the other parties to have the proceeding brought to trial. 48.19 Cost of listing hearing Subject to this Order, as between the parties, the costs of and incidental to attending a listing hearing are to be costs in the proceeding unless a Judge or an Associate Judge orders otherwise. 48.20 Trial lists There are to be kept in the Darwin Registry and Alice Springs Registry lists of proceedings that, under rule 48.17, have been ordered to be placed on a list of proceedings ready for trial. 48.21 Fixing hearing dates (1) Once a proceeding has been ordered under rule 48.17 to be listed for trial, the Registrar must allocate to it the earliest available hearing dates. (2) In determining the earliest available hearing dates, the Registrar must have regard to the following: (a) the trial list the proceeding has been placed on; (b) the urgency of the proceeding; (c) the order in which the proceeding was placed on the trial list; (d) representations by the parties as to dates that are or are not suitable and the reasons for that; (e) the length of time the trial of the proceeding is expected to take; (f) relevant practice directions made by the Chief Justice; (g) other relevant considerations. Part 4 Directions hearings and conferences by videoconference or teleconference Supreme Court Rules 1987 193 48.21A Trial dates vacated only in extraordinary circumstances (1) Once a trial date is fixed, the Court will not vacate the date except: (a) in extraordinary circumstances that render a fair trial impossible; and (b) as a last resort after all other options have been exhausted. (2) Any party who considers that circumstances have arisen that may mean that a trial will not be able to proceed on the date or dates fixed for trial should immediately notify the Court and the other party, and take out an application for directions. 48.22 Pre-trial directions hearing before trial Judge (1) The trial Judge in a proceeding that has been given hearing dates may, at the time, date and place determined by the Judge, hold a directions hearing to ensure that the proceeding is ready to proceed to trial. (2) Where the trial of a proceeding is listed to be held in Alice Springs, the directions hearing referred to in subrule (1) may be held by means of a videoconference or teleconference. (3) At a directions hearing referred to in subrule (1), the Judge may make the orders he or she thinks necessary, including an order that no further amendments to the pleadings will be permitted. Part 4 Directions hearings and conferences by videoconference or teleconference 48.23 Proceedings commenced in Alice Springs (1) Subject to this Order, where a proceeding has been filed in the Alice Springs Registry, a Judge or an Associate Judge may conduct a hearing or conference in respect of the proceeding by means of a videoconference or teleconference. (2) If a hearing or conference is held under subrule (1): (a) the Court must provide and meet the expenses of the facilities necessary to enable the hearing or conference to be held by videoconference or teleconference; and (b) the Court must notify the parties or their solicitors of the place where they may attend the hearing or conference by use of those facilities; and Part 4 Directions hearings and conferences by videoconference or teleconference Supreme Court Rules 1987 194 (c) if the Court file is not held by the Court electronically the Court file must be sent by the Alice Springs Registry to the Darwin Registry in time for the hearing or conference; and (d) a party seeking to rely at the hearing or conference on an affidavit or other document that was not filed before the Court file was sent to the Darwin Registry may: (i) email the document to the Darwin Registry; and (ii) request that a copy of the document be filed in accordance with this subrule; and (e) if a request is made under paragraph (d)(ii) the Darwin Registry must file the document as soon as possible; and (f) a copy of a document filed under paragraph (e) is to be treated as if it were the original document duly filed; and (g) a Judge or an Associate Judge may: (i) take evidence from witnesses who have taken the oath as witnesses at the hearing or conference; and (ii) exercise the same powers in relation to the parties and the witnesses as if the parties and the witnesses were physically in the presence of the Judge or Associate (3) In this rule: hearing or conference means a directions hearing, a listing hearing, a case management conference or a settlement 48.24 Other proceedings (1) Subject to this Order, with the permission of a Judge or an Associate Judge, a party may attend a hearing or conference by videoconference or teleconference wherever the hearing is to take (2) A Judge or an Associate Judge may take evidence from witnesses who take the oath as witnesses at a hearing or conference attended by a party under subrule (1) and may exercise the same powers in relation to the parties and the witnesses as if the parties and the witnesses were physically in the presence of the Judge or Supreme Court Rules 1987 195 (3) A party intending to attend a hearing or conference under subrule (1) must, at least 24 hours before the time set for the hearing, seek the permission of the Judge or Associate Judge required by that subrule. (4) Permission to attend a hearing or conference under subrule (1) may be granted without formality by telephone and without notice to the (5) A party who has been granted permission to attend a hearing or conference under subrule (1): (a) must give notice to the other parties of the party's intention to attend the hearing or conference under subrule (1) as a Judge or an Associate Judge directs; and (b) unless a Judge or an Associate Judge directs otherwise, must provide and meet the expenses of the facilities necessary to enable the hearing or conference to be held by videoconference or teleconference. (6) A Judge or an Associate Judge may: (a) on the Judge or Associate Judge's own motion, conduct a hearing or conference by videoconference or teleconference; and (b) for that purpose, give the directions the Judge or Associate Judge thinks fit. (7) In this rule: hearing or conference means a directions hearing, a listing hearing, a case management conference or a settlement 48.25 Witness statements (1) At a directions hearing or listing hearing, the Judge or Associate Judge may: (a) order that the parties exchange, or that a party deliver to another party, witness statements; and (b) give the directions the Judge or Associate Judge thinks necessary to give effect to the order or give directions about the use to which the statements may be put. Supreme Court Rules 1987 196 (2) A witness statement: (a) is to be signed by the witness before it is exchanged or delivered in pursuance of an order under subrule (1); and (b) is to be filed. (3) Where a witness statement is exchanged or delivered in pursuance of an order under subrule (1), the witness must confine the witness' evidence in chief at the trial to the matters dealt with in the statement. (4) At a directions hearing or listing hearing at which it is proposed to make an order under subrule (1), a party must be represented by counsel or the solicitor who has actual charge of the proceeding for the party. (5) In this rule, witness statement means a written statement of the evidence in chief of a witness proposed to be adduced from the witness at the trial. 48.26 Evidence at trial by videoconference (1) If a party intends to adduce evidence at the trial of a proceeding by means of a videoconference, not later than 4 weeks before the date fixed for the trial, the party must: (a) give to the other parties notice of that intention; (b) file a copy of the notice; and (c) deliver a copy of the notice to the trial Judge's associate. (2) A notice under subrule (1) is to: (a) state the name of the witness; (b) state the proposed time of the videoconference; and (c) be accompanied by a copy of a statement of the witness's evidence in chief signed by the witness. (3) Within 7 days after receiving a notice under subrule (1), a party may object to the proposal contained in the notice. (4) An objection under subrule (3) is to be dealt with by the trial Judge. (5) If, within the period referred to in subrule (3), no objection to the proposal has been made, all parties to the proceeding are to be taken to have consented to the proposal. Supreme Court Rules 1987 197 (6) If an objection made in accordance with subrule (3) is upheld, the trial Judge may order that, regardless of the outcome of the proceeding, the party objecting pay as costs to the party who proposed the videoconference the difference between the costs of adducing the evidence by means of a videoconference and the costs of bringing the witness into the physical presence of the Court to adduce the evidence. (7) At a videoconference under this rule, the evidence in chief of the witness is to be confined to the evidence in chief in the witness's statement referred to in subrule (2)(c). (8) The party proposing to adduce evidence by a videoconference under this rule must arrange and meet the expenses of the facilities necessary for the witness to give the evidence and for the trial Judge and the other parties to see and hear that evidence as it is 48.27 Self-executing orders (1) A Judge or an Associate Judge may make a self-executing order: (a) dismissing a proceeding; or (b) striking out a pleading in a proceeding; for a party's failure to comply with these Rules or an order of the (2) An order under subrule (1) may be made: (a) despite that the default was that of the party's solicitor; and (b) despite that the default by the party or the party's solicitor was not contumelious. (3) An order under subrule (1) is of no effect unless: (a) it is made in the presence of the parties; or (b) it is served personally on the party at fault within the time fixed by the Judge or Associate Judge for service of the order; or (c) it is served on the party at fault in accordance with an order for substituted service made by the Court. (4) For the purpose of enabling an order under subrule (1) to be served in accordance with subrule (3), the solicitor for the party at fault must provide to the solicitor for the party in whose favour the order is made with the address of the party at fault that is last known to Supreme Court Rules 1987 198 the solicitor. (5) On an application by interlocutory summons in the matter made within one month after the making of an order under subrule (1), a Judge may reinstate the proceeding dismissed or the pleading struck out despite that judgment may have been entered in the matter. (6) Despite subrule (5), on a motion filed at any time with the special leave of a Judge, a Judge may reinstate a proceeding dismissed, or a pleading struck out, under subrule (1). (7) A Judge who reinstates a proceeding or pleading under subrule (5) or (6): (a) may reinstate the proceeding or pleading on the terms as to costs the Judge thinks fit, including a term that the costs thrown away be paid before the proceeding or pleading is reinstated; and (b) may require the party at fault to lodge with the Court security for future costs in the proceeding. 48.28 Experimental rules (1) For the purpose of considering the practicality of changing this Order, the Chief Justice may by practice direction substitute the whole or any part of this Order (other than this rule) with a new procedure. (2) A practice direction made under subrule (1) is to: (a) state whether the new procedure is to apply to matters generally or only to a specified class of matters; and (b) specify the period (not exceeding 12 months) during which the practice direction is to apply. (3) The Chief Justice may by practice direction renew (with or without alteration) a practice direction made under subrule (1) for the specified period (not exceeding 12 months) commencing when the practice direction being renewed expires. (4) A practice direction made or renewed under this rule has effect as if it were a rule under this Order and, to the extent of an inconsistency between it and another rule under this Order, is to prevail. Supreme Court Rules 1987 199 49.01 Order of evidence and addresses (1) The Court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial. (2) Subject to a direction given under subrule (1), where the burden of proof: (a) on a question lies on the plaintiff, the plaintiff shall begin; (b) on all the questions lies on the defendant, the defendant shall begin. (3) Subject to a direction given under subrule (1): (a) where the only parties are one plaintiff and one defendant and there is no counterclaim, the order of evidence and addresses shall be as provided by the following subrules; and (b) in any other case, the order of evidence and addresses shall be as provided by those subrules with such changes as the nature of the case requires. (4) The party who begins may make an address opening his case and may then adduce his evidence. (5) Where in the course of the case for the party who begins no document or thing is admitted in evidence on tender by the opposite party and at the conclusion of that case: (a) the opposite party adduces evidence, he may first make an opening address and after adducing his evidence he may make a closing address and thereafter the party who began may make a closing address; or (b) the opposite party does not adduce evidence, the party who began may make a closing address and then the opposite party may make an address. (6) Where in the course of the case for the party who begins a document or thing is admitted in evidence on tender by the opposite party and at the conclusion of the case: (a) the opposite party adduces evidence, the order of proceedings shall be as provided by subrule (5)(a); or Supreme Court Rules 1987 200 (b) the opposite party does not adduce evidence, he may make an address and then the party who began may make a closing address. 49.02 Absence of party (1) If when the trial of a proceeding is called on a party is absent, the Court may: (a) order that the trial be not had unless the proceeding is again set down for trial or unless such other steps are taken as the Court directs; (b) proceed with the trial generally or so far as concerns a claim for relief in the proceeding; (c) adjourn the trial; or (d) where the party absent: (i) is the plaintiff – dismiss the plaintiff's claim; or (ii) is the defendant: (A) and the claim is one for which default judgment may be entered under these Rules – strike out the defendant's defence and enter judgment accordingly; or (B) give summary relief where, in the Court's opinion, such relief may be or ought to be given. (1A) In exercising a power under subrule (1)(b) or (1)(d), the Court may direct that the proceeding continue before an Associate Judge and may make such orders as shall be necessary to give effect to that direction. (2) The Court may set aside or vary a judgment, order or verdict obtained where a party is absent at the trial. (3) An application under subrule (2) shall be made within 14 days after the trial. 49.03 Adjournment of trial The Court may adjourn a trial on such terms as it thinks fit. Supreme Court Rules 1987 201 49.04 Death before judgment (1) Where a party to a proceeding dies after the verdict or finding on the questions of fact, the Court may give judgment notwithstanding the death. (2) Subrule (1) does not affect the power of the Court under rules 9.08 and 9.09. 49.05 Certificate of Associate At the conclusion of the trial of a proceeding the Associate at the trial shall by certificate certify: (a) the times at which the trial commenced and concluded on each day; (b) every finding of fact by the jury, where the trial was with a jury; (c) the judgment of the Court; and (d) the order, if any, as to costs. 50.01 Reference to referee Where an order referring a question is made under section 26(1) of the Act, the Court: (a) shall state the question referred; and (b) shall direct that the Associate Judge or referee make a report in writing to the Court on the question referred to the Associate Judge or referee stating, with reasons, the Associate Judge's or referee's decision or opinion; and (c) may direct that the Associate Judge or referee give such further information in the Associate Judge's or referee's report as it thinks fit. 50.02 Directions as to procedure (1) Where an order referring a question is made under section 26(1) of the Act, an Associate Judge or the Court may order that the referee hold a trial or make an inquiry that may be necessary to enable the referee to decide the question referred or give the referee's opinion, as the case may be, and may give directions for the conduct of the trial or inquiry. Supreme Court Rules 1987 202 (2) Where an order is made under subrule (1) that the referee hold a trial, without limiting the power of the Court to give directions for the conduct of the trial, the Court may direct that: (a) the referee have the same authority with respect to discovery of documents and interrogatories as the Court; or (b) the referee may adjourn the trial on such terms as the referee thinks fit; or (c) evidence be taken at the trial, and the attendance of witnesses and the production of documents compelled by subpoena, and the trial conducted in the same manner as nearly as circumstances will permit, as a trial is conducted before the 50.03 Report on reference (1) The referee may in his report submit a question arising on the reference for the decision of the Court or make a statement of facts found by him from which the Court may draw such inferences as it (2) On the receipt of the referee's report the Court: (a) shall give notice thereof to the parties; and (b) may by order: (i) require the referee to provide a further report explaining a matter mentioned or not mentioned in the report; (ii) remit the whole or a part of the question originally referred to the referee for further consideration by him or another referee; or (iii) vary the report. (3) An application by a party for an order under subrule (2)(b) shall be made on not less than 3 days' notice to the other party or parties. 50.05 Committal Nothing in this Order authorises a referee or an Associate Judge to make an order of committal. Supreme Court Rules 1987 203 50.06 Remuneration of referee (1) The Court may determine the remuneration of a referee and by what party or parties and in what proportion the remuneration is to be paid either in the first instance or finally. (2) The Court may order a party to give security for the remuneration of a referee. (3) The Court may order that the proceeding be stayed until an order made under subrule (2) is complied with. (4) This rule, with the necessary changes, also applies to a reference under an Act. 51.01 Mode of assessment Subject to rule 51.05, damages under a judgment or order for damages to be assessed shall, unless the Court otherwise orders, be assessed by an Associate Judge. 51.02 Notice to other party (1) The party against whom the damages are to be assessed may take part in the assessment. (2) The party for whom the damages are to be assessed shall, not later than 14 days before the assessment is due, serve notice of the day, time and place of the assessment on the other party to the assessment. (3) Notice under subrule (2) may be served at the address for service but, if there is no address for service, it shall be served personally, 51.03 Procedure on assessment The attendance of witnesses and production of documents may be compelled by subpoena in accordance with Order 42, and Order 49, with the necessary changes, applies as if the assessment were a trial of the proceeding. 51.04 Order for damages Where damages are assessed by an Associate Judge, the Associate Judge shall, by order, state the amount at which they are assessed. Supreme Court Rules 1987 204 51.05 Default judgment against some defendants Where judgment for damages to be assessed is entered or given in default of appearance or pleading and the proceeding is continued against other defendants, the damages shall be assessed at the trial, unless the Court otherwise orders. 51.06 Continuing cause of action Where damages are assessed, whether under this Order or otherwise, in respect of a continuing cause of action, they shall be assessed down to the time of assessment. 51.07 Value of goods This Order, with the necessary changes, also applies to a judgment or order for the value of goods to be assessed, with or without damages to be assessed. 52.01 Account or inquiry at any stage (1) Except as provided in subrule (3), the Court may at any stage of a proceeding make an order for the taking of an account or the making of an inquiry. (2) Where the Court makes an order for the taking of an account, it may order payment of an amount found to be due on taking the account. (3) The Court shall not order that an account be taken: (a) as against a defendant who has not filed an appearance, unless he is in default of appearance; or (b) if it appears that there is a preliminary question to be tried. 52.02 Directions for account Where the Court makes an order for the taking of an account, it may, by the same or later order: (a) give directions concerning the manner of taking or verifying the account; and Supreme Court Rules 1987 205 (b) without limiting paragraph (a), direct that in taking the account the relevant books of account are evidence of the matters contained in them with liberty to the parties interested to take objections to those matters. 52.03 Form and verification of account (1) The items on each side of an account shall be numbered consecutively. (2) Unless the Court otherwise orders, an accounting party shall verify his account by affidavit and the account shall be made an exhibit to the affidavit. 52.04 Filing and service of account An accounting party shall, unless the Court otherwise orders: (a) file his account and verifying affidavit; and (b) without delay, serve a copy of the account and affidavit on each other party. 52.05 Notice of charge, error in account (1) A party who seeks to charge an accounting party with an amount beyond what the accounting party by his account admits receiving shall give to the accounting party notice of the charge, with brief particulars, stating, so far as he is able, the amount which he seeks to charge. (2) A party who alleges that an item in the account of an accounting party is erroneous in amount or otherwise shall give to the accounting party notice of the allegation, stating the grounds. 52.06 Allowances In taking an account under a judgment or order, all just allowances shall be made. 52.07 Delay Where there is delay in the prosecution of an account, inquiry or other matter under a judgment or order, the Court may make orders for staying or expediting the proceeding, or for the conduct of the proceeding, as it thinks fit. Supreme Court Rules 1987 206 52.08 Fund distribution before all entitled ascertained Where some of the persons entitled to share in a fund are ascertained and the ascertainment of the other persons so entitled may be delayed, the Court may, by order, allow immediate payment of their shares to the persons ascertained without reserving any part of those shares to meet the subsequent costs of ascertaining those other persons. 53.01 Application (1) Subject to subrule (2), this Order applies where the plaintiff claims the recovery of land which is occupied solely by a person who entered into occupation or, having been a licensee, remained in occupation without the plaintiff's licence or consent or that of a predecessor in title of the plaintiff. (2) This Order does not apply where the land is occupied by a mortgagor or successor in title and the claim is made by the mortgagee or successor in title or in respect of premises to which