4Telephone calls:

4 Telephone calls: (a) requiring skill – per unit 27 (b) not requiring skill – per unit 15 5 Marking annexures, exhibits, enclosing notices of appointment and the like – per unit 15 6 Copying – per unit 15 7 Instructions to sue to notice of trial 1 908 8 Instructions to defend to notice of trial 1 381 9 Application in a proceeding: (a) contested 1 222 (b) uncontested 977 10 Requiring discovery and inspection 733 11 Providing discovery and inspection 549 12 Seeking answers to interrogatories 843 13 Furnishing answers to interrogatories 893 14 Attendance at listing hearing or other directions hearing 15 Attendance at case management conference or settlement conference PART 4 – FIXED COSTS Basic Costs 1 Costs to be claimed on writ In addition, stamp duty paid on filing the writ and on relevant copies or fees payable under the Supreme Court Regulations 1985, Schedule, Part 2, item 1. 2 Costs on judgment in default of appearance: (a) where writ served by post 977 Supreme Court Rules 1987 260 (b) where writ served by solicitor's clerk 1 092 (c) where writ served by person other than solicitor's clerk 977 In addition: (d) where more than one defendant – for each 27 (e) the cost of stamp duty paid on filing the writ and on relevant copies or fees payable under the Supreme Court Regulations 1985, Schedule, Part 2, item 1 (f) where paragraph (c) applies, a reasonable amount paid for service. Additional Costs 3 In addition to costs payable under item 2: (a) costs in default of defence 124 (b) where service out of the jurisdiction is ordered and effected: (i) in the case of service in the Commonwealth 369 (ii) in the case of service overseas 489 (c) where substituted service is ordered and effected: (i) on only defendant 977 (ii) where more than one defendant so served – in respect of each defendant served 124 and in addition: (iii) the reasonable fees incurred for any advertising required under an order for substituted service; and (d) where a judgment is registered under the Service and Execution of Process Act 1992 (Cth) – for costs of registration 244 (e) where leave to proceed is given under the Service and Execution of Process Act 1992 (Cth) – on entry of judgment 733 Supreme Court Rules 1987 261 63.76 Further provision as to costs and interest on costs (1) The Court will take into account whether a party has complied with the party's duties under these Rules when considering: (2) Despite rule 63.74, if the Court decides that a party has failed to comply with the party's duties under these Rules, the Court may award interest on costs at a rate not exceeding the rate fixed from time to time in accordance with rule 59.02, plus an additional 8%. (3) The Court may order costs in addition to interest under subrule (2) against a practitioner, if it is established that the practitioner has failed to take reasonable steps to ensure that the client has complied with the client's duties under these Rules. (4) For the avoidance of doubt and for the purposes of this Order, the costs of a proceeding include the costs of complying with these 64.01 Definitions authority means a Local Court Judge, justice of the peace, court, tribunal or other person or body empowered under an Act to reserve a question of law for the consideration, opinion or decision stated case means the case or special case stated by an authority in which the question of law is reserved. 64.02 Application (1) This Order applies where, under an Act, an authority reserves a question of law for the consideration, opinion or decision of the Court, but does not apply to a reference to the Full Court. (2) A Judge may give directions as to the procedure to apply under this Part. Supreme Court Rules 1987 262 64.03 Party having carriage of proceeding (1) For the purposes of this Part, the party having the carriage of the proceeding shall be: (a) where the question of law is reserved by the authority at the request of a party – that party; or (b) where the question of law is reserved by the authority of its own motion – such party as the authority appoints for that purpose. (2) The party having the carriage of the proceeding shall be called the applicant and the other party concerned shall be called the respondent. 64.04 Draft of the case (1) Within 28 days after an authority reserves a question of law, the applicant, after consultation with the respondent shall serve a draft of the stated case on the authority and on the other party. (2) A copy of a record of evidence need not be annexed to the draft case. 64.05 Form and contents A stated case shall: (a) be divided into paragraphs numbered consecutively; (b) state concisely the facts and documents necessary to enable the Court to hear and determine the proceeding on the stated case; (c) state the questions and matters to be decided or determined; (d) contain an address for service of each of the parties concerned; and (e) be in accordance with Form 64A. 64.06 Settling the case The authority shall, in writing, appoint a time and place at which it will settle the draft case. Supreme Court Rules 1987 263 64.07 Objections A respondent who wishes to object to the draft case shall, no later than 7 days before the date appointed to settle it, give notice of his objection to the applicant, the authority and all other respondents, if any. 64.08 Signing the case Within 14 days after being notified in writing by the authority that the draft case has been settled, the applicant shall obtain it from the authority, engross it and shall serve the settled case as engrossed, together with sufficient copies for each of the parties, on the authority for signing by the authority. 64.09 Stating the case Within 7 days after signing the settled case, the authority shall transmit the case to the Registry and copies to each of the parties. 64.10 Extension of time At any time before the stated case is transmitted to the Registry, the authority may, on such terms and conditions (if any) as it thinks fit, extend or abridge the time fixed by or under rules 64.04, 64.06, 64.07, 64.08 or 64.09, whether before or after the time expires and whether or not an application for the extension is made before the 64.11 Filing the case When a stated case is received in the Registry, it shall be filed and shall constitute an originating process. 64.12 Setting down for hearing Within 7 days after the filing of a stated case, a Registrar shall: (a) set the stated case down for hearing; and (b) notify the parties in writing of the date and place of the 64.13 Documents The Court and the parties may refer to the whole contents of a document stated in a stated case. Supreme Court Rules 1987 264 64.14 Inferences The Court may draw inferences from the facts and documents stated in a stated case. 64.15 Insufficient case (1) Where it appears to the Court that a stated case does not state the facts and documents sufficiently to enable it to hear and determine the proceeding on the stated case, it may: (a) with the consent of all interested parties, add to or otherwise alter the stated case; (b) send the stated case back to the authority by which it was stated for the purpose of addition or other alterations; or (c) receive evidence, make findings of fact and add to or otherwise alter the stated case in accordance with the findings of fact of the Court. (2) The Court shall not exercise its powers under subrule (1)(c) in respect of a stated case in a criminal proceeding. 64.16 Disputed facts Where, in a proceeding on a stated case, a party is entitled to dispute a fact or document stated in the case, the Court may receive evidence, make findings of fact and add to or alter the stated case in accordance with the findings of fact of the Court. 65.01 Application This Order applies to an application to the Full Court relating to: (a) a reference under section 21 of the Act; or (b) a matter mentioned in Chapter 10, other than an appeal from the Legal Practitioners Disciplinary Tribunal. 65.02 Mode of application (1) An application to the Full Court must be made: (a) if the application relates to a reference under section 21 of the Act – in the manner the Judge who is referring the matter directs; or Supreme Court Rules 1987 265 (b) if the application relates to a matter mentioned in Chapter 10 to which this Order applies – by originating motion. (2) The party who makes an application under subrule (1)(b) shall be called the applicant and the other parties interested shall be called the respondents. (3) An originating motion under subrule (2) shall be served on all parties interested. (4) Where it is satisfied that a delay would be caused by proceeding in accordance with subrule (1)(b) and would or might entail irreparable or serious injustice, the Full Court may make an order without notice to a party on such terms as to costs or otherwise and subject to such undertaking, if any, as it thinks fit. (5) The Full Court may set aside an order made under subrule (4) on the application of a party affected by the order. 65.03 Service of document Service of a document under rule 65.02 shall be made not later than 3 days before the day for hearing named in the document, (a) in an application to which rule 65.02(1)(a) refers – the Judge referring the matter otherwise directs; or (b) in any other case – the Full Court otherwise orders. 65.04 Documents for application (1) Before the hearing of an application to the Full Court relating to a matter mentioned in Chapter 10 to which this Order applies: (a) the applicant shall deliver to a Registrar for the use of the members of the Full Court 4 copies and to each respondent to the application 1 copy of the originating motion of all affidavits and, unless the Registrar otherwise directs, all exhibits in support of the application; and (b) each respondent shall deliver to a Registrar for the use of the members of the Full Court 4 copies and to the applicant 1 copy of all affidavits and, unless the Registrar otherwise directs, all exhibits to be used by him on the hearing of the (2) The applicant shall deliver the documents referred to in subrule (1)(a) to a Registrar not later than 3 days before the day named in the originating motion for the hearing of the application. Supreme Court Rules 1987 266 (3) In the preparation of a copy of documents for the purpose of subrule (1), regard shall be had, so far as practicable, to any Practice Notes published by the Associate Judges from time to time. 65.05 Procedure on application Order 45, with the necessary changes, applies to an application to the Full Court under this Order. Supreme Court Rules 1987 267 66.01 Definitions judgment for the payment of money into court includes a judgment for the payment of money to an Associate Judge or to a 66.02 Payment of money (1) A judgment for the payment of money not within subrule (2) may be enforced by: (a) warrant of seizure and sale; (b) attachment of debts under Order 71; (c) attachment of earnings under Order 72; (d) charging order under Order 73; (e) appointment of a receiver under Order 74; or (f) where rule 66.05 applies, and subject to rule 66.10: or any combination of those means. (2) A judgment for the payment of money into court may be enforced by: (a) appointment of a receiver; or Supreme Court Rules 1987 268 (3) Subrules (1) and (2) do not affect any other means of enforcement of a judgment for the payment of money. (4) The Court may authorise or direct an Associate Judge or a Registrar, or a party, to enforce a judgment for the payment of money into court by one or more of the means referred to in 66.03 Possession of land A judgment for possession of land may be enforced by: (a) warrant of possession; or 66.04 Delivery of goods (1) A judgment for the delivery of goods and a judgment for the delivery of goods or the payment of their assessed value may be enforced by: (a) warrant of delivery; or (2) The warrant of delivery shall, as the judgment requires, be for: (a) the delivery of the goods; or (b) the delivery of the goods or recovery of their assessed value. (3) A warrant of delivery may include provision for enforcing the payment of money required to be paid by the judgment. (4) A judgment for the payment of the assessed value of goods may be enforced by the same means as any other judgment for the payment of money except a judgment for the payment of money into court. Supreme Court Rules 1987 269 66.05 Doing or abstaining from doing an act (a) a judgment requires a person to do an act and the act is to be done within a time fixed in the judgment or by subsequent order and he refuses or neglects to do the act within that time; or (b) a judgment requires a person to abstain from doing an act and he disobeys the judgment. (2) Where this rule applies, a judgment may, subject to rule 66.10, be enforced by: (a) the committal of the person bound; (b) sequestration of the property of the person bound; or (c) where the person bound is a corporation, without limiting subrule (2)(b): (i) the committal of an officer of the corporation; or (ii) sequestration of the property of an officer of the corporation, or any combination of those means. 66.06 Attendance of natural person (1) This rule applies where the Court by subpoena or otherwise makes an order in a proceeding for the attendance of a natural person: (a) for the purpose of giving evidence; (b) for the production of a document or thing; (c) to answer a charge of contempt; or (d) for any other purpose, and after service of the order the person defaults in attendance in accordance with the order. (2) In the circumstances referred to in subrule (1), the Court may: (a) make an order for the issue of a warrant to the Sheriff or such other person as the Court appoints for the arrest of the person in default and for his production before the Court or before an examiner or other person for the purpose of the proceeding Supreme Court Rules 1987 270 and for his detention in custody in the meantime; and (b) order the person in default to pay the costs and expenses 66.07 Attendance of corporation (1) This rule applies where the Court, by subpoena or otherwise, makes an order in a proceeding for the production by a corporation of a document or thing and after service of the order the corporation defaults in producing the document or thing in accordance with the (2) In the circumstances referred to in subrule (1), the Court may: (a) make an order for the issue of a warrant to the Sheriff or such other person as the Court appoints for the arrest of an officer of the corporation and for his production before the Court or before an examiner or other person for the purpose of the proceeding and for his detention in custody in the meantime; and (b) order the corporation to pay the costs and expenses 66.08 Attendance before another Court, etc. Rules 66.06 and 66.07, with the necessary changes, apply where by or under an Act the Court has authority to compel by subpoena the attendance of a person for the purpose of giving evidence or producing a document or thing for evidence in a court or before a person having by law or by consent of parties authority to hear, receive and examine evidence. 66.09 Contempt Nothing in rules 66.06 or 66.07 affects the power of the Court to punish for contempt. 66.10 Service before committal or sequestration (1) A judgment shall not be enforced by committal or sequestration (a) a copy of it is served personally on the person bound; and (b) if the judgment requires the person bound to do an act within a fixed time, the copy is so served a reasonable time before that Supreme Court Rules 1987 271 (2) Where the person bound is a corporation, the judgment shall not be enforced by committal of an officer of the corporation or by sequestration of the property of an officer of the corporation unless, in addition to service under subrule (1) on the corporation: (a) a copy of the judgment is served personally on the officer; and (b) if the judgment requires the corporation to do an act within a fixed time, the copy is so served a reasonable time before that (3) A copy of a judgment served under this rule shall be endorsed with a notice, naming the person served, that the person served is liable to imprisonment or to sequestration of property if: (a) where the judgment requires the person bound to do an act within a fixed time, the person bound refuses or neglects to do the act within that time; or (b) where the judgment requires the person bound to abstain from doing an act, the person disobeys the judgment. (4) Where a judgment requires the person bound to do an act and an order is made under rule 59.03 fixing a time within which the act is to be done, a copy of the judgment, endorsed as required by subrule (3)(a), and a copy of the order, shall be served on that person a reasonable time before the expiration of that time. (5) A judgment requiring a person to do an act within a fixed time or a judgment requiring a person to abstain from doing an act, may be enforced under rule 66.05 notwithstanding that service has not been effected under this rule if the person against whom the judgment is to be enforced has notice of the judgment: (a) by being present when the judgment was given; or (b) by being notified of the terms of the judgment whether by telephone, telegram or otherwise. (6) The Court may dispense with service under this rule. 66.11 Substituted performance (1) Where a judgment requires the person bound to do an act and the person bound does not do the act, the Court may: (a) direct that the act be done by a person appointed by the Court; and Supreme Court Rules 1987 272 (b) order the person bound to pay the costs and expenses (2) Subrule (1) does not affect: (a) the power of the Court under section 36 of the Trustee Act 1893 or any other Act; or (b) the power of the Court to punish for contempt. 66.12 Enforcement by or against non-party (1) A person, not being a party, who obtains a judgment or in whose favour a judgment is made may enforce the judgment by the same means as if he were a party. (2) Where obedience to a judgment may be enforced against a person not a party, the judgment may be enforced against him by the same means as if he were a party. (3) Where obedience to a judgment may be enforced against a corporation not a party, an officer of the corporation shall be liable to the same processes of enforcement as if the corporation were a 66.13 Non-performance of condition A person entitled to a judgment subject to the fulfilment of a condition who fails to fulfil the condition shall be taken to have abandoned the benefit of the judgment and, unless the Court otherwise orders, another person interested may take the steps which are warranted by the judgment or which might have been taken if the judgment or order had not been given or made. 66.14 Matters occurring after judgment The Court may stay execution of a judgment, or make such order as the nature of the case requires, on the ground of matters occurring after judgment. 66.15 Order in aid of enforcement (1) The Court may make such order as it thinks fit in aid of the enforcement of a warrant of execution and for that purpose may make an order that a person, whether or not a party: (a) attend before the Court to be examined; or (b) do or abstain from doing an act. Supreme Court Rules 1987 273 (2) An application for an order under subrule (1) may be made by the Sheriff or other person to whom a warrant of execution is directed. 66.16 Stay of execution The Court may stay execution of a judgment. 67.01 Definitions material questions are: (a) whether any and, if so, what debts are owing to the person bound; (b) whether the person bound has any and, if so, what other property or means of satisfying the judgment; and (c) questions concerning or in aid of the enforcement or satisfaction of the judgment specified in the order for examination or production. 67.02 Order for examination or production (1) The Court may, on application by a person entitled to enforce a judgment, order a person bound by the judgment to: (a) attend before the Court and be orally examined on; and (b) produce a document or thing in the possession, custody or power of the person bound relating to, the material questions. that the person attend to be examined before or produce the document or thing to an Associate Judge. Supreme Court Rules 1987 274 67.03 Corporation (1) Where the person bound is a corporation, the Court may make an order that: (a) an officer or former officer of the corporation attend before the Court and be orally examined on the material questions; and (b) an officer of the corporation produce a document or thing in the possession, custody or power of the corporation relating to the material questions. that the officer or former officer attend to be examined before or produce the document or thing to an Associate Judge. 67.04 Procedure (1) An application for an order under rule 67.02 or 67.03 may be made without notice to the person bound by the judgment. (2) An order under rule 67.02 or 67.03 shall be served personally on the person bound and on all other persons ordered to attend or to produce a document or thing. 67.05 Record of examination The Judge or Associate Judge before whom an examination is conducted under rule 67.02 or 67.03 shall take down, or cause to be taken down, in writing the statement made by the person examined at the examination. 68.01 Definitions Sheriff includes a person to whom a warrant of execution is warrant of execution means a warrant of seizure and sale, a warrant of possession or a warrant of delivery. 68.02 Leave to issue warrant (1) Notwithstanding Order 66, a warrant of execution to enforce a judgment shall not be issued without the leave of the Court where: (a) 6 years have elapsed since the judgment took effect; Supreme Court Rules 1987 275 (b) a change has taken place, whether by assignment or death or otherwise, in the identity of the person entitled or liable to execution under the judgment; (c) the judgment is against the assets of a deceased person coming to the hands of his executor or administrator after the date of the judgment and it is sought to issue execution against assets of that description; (d) under the judgment a person is entitled to enforce it subject to the fulfilment of a condition; or (e) the warrant is against property in the hands of a receiver appointed by the Court or of a sequestrator. (2) Subrule (1) does not affect a provision of or under an Act requiring the leave of the Court before a judgment may be enforced. (3) An application for leave under subrule (1) may be made without notice to any person, unless the Court otherwise orders. (4) The application shall be supported by evidence on affidavit showing: (a) where the judgment is for the payment of money – the amount, including interest, due on the date of the application; (b) where subrule (1)(a) applies – the reasons for the delay; (c) where subrule (1)(b) applies – the change which has taken place; (d) where subrule (1)(b), (c) or (d) applies – that a demand to satisfy the judgment has been made on the person liable to satisfy it and that he has not satisfied it; (e) that the applicant is entitled to proceed to execution on the judgment; and (f) that the person against whom execution is sought is liable to execution on the judgment. 68.03 Separate execution for costs A person entitled to enforce a judgment entered or given with costs may have execution to enforce the judgment and, when the costs become payable, have execution separately to enforce payment of the costs. Supreme Court Rules 1987 276 68.04 Issue of warrant of execution (1) A warrant of execution is issued when the warrant is sealed with the seal of the Court. (2) A warrant of execution shall bear the date of its issue. (3) A warrant of execution shall not be issued unless the person requesting it to be issued: (a) produces to a Registrar a form of the warrant; and (b) files a copy; and (c) where the warrant is to enforce a judgment for the payment of money, files an affidavit, made within 14 days before the request, stating: (i) the date of the judgment; and (ii) the amount for which judgment was entered or given; and (iii) the amount, including interest accrued and costs, due and payable in respect of the judgment at the date the affidavit is made with particulars showing how that amount is calculated or made up; and (iv) the daily amount of interest, if any, which, subject to any future payment under the judgment, will accrue after the date the affidavit is made in respect of the judgment amount and costs. (4) In the case of a warrant of execution to enforce a judgment for the payment of money, the person to whom the warrant is directed shall, when executing the warrant, serve a copy of the affidavit required to be filed under subrule (3)(c) on the person against whom the warrant is executed or leave it at the place where the warrant is executed. 68.05 Duration (1) A warrant of execution is valid for the purpose of execution for one year after the day it is issued. (2) Notwithstanding subrule (1), the Court may from time to time, by order, extend the period of the validity of the warrant for the purpose of execution for not more than one year at any one time from the day on which it would otherwise expire. Supreme Court Rules 1987 277 (3) An order under subrule (2) shall not be made after the day of expiry of the warrant. (4) An application for an order under subrule (2) may be made without (5) A copy of an order under subrule (2) shall be delivered to the Sheriff by the party obtaining the order. (6) The priority of a warrant of execution in respect of which an order under subrule (2) has been made shall be determined by reference to the date on which the warrant was originally delivered to the Sheriff. 68.06 Costs of prior execution The amount for which a warrant of execution may be issued shall, unless the Court otherwise orders, include the costs, fees and expenses incurred in respect of a prior warrant of execution on the same judgment, whether the prior warrant was or was not satisfied in full. 68.07 Provision for enforcing payment of money Order 69, with the necessary changes, applies to a warrant of execution which includes a provision for enforcing the payment of money required to be paid by the judgment which is to be enforced by the warrant. 68.08 Form of warrant of execution A warrant of execution shall be in Form 53B, 68A, 68B or 68C, whichever is appropriate. 69.01 Definitions creditor means a person for whom a warrant is issued. debtor means a person against whose property a warrant is to be executed. judgment includes an order. Sheriff includes a person to whom a warrant is directed. warrant means a warrant of seizure and sale. Supreme Court Rules 1987 278 69.02 Application This Order applies subject to the Sheriff Act 1962 and the Regulations made under that Act. 69.03 New enforcement process The process of enforcement under this Order shall be used instead of the process of enforcement by writ of fieri facias. 69.04 Two or more warrants Unless the Court otherwise orders, a warrant shall not be issued while another warrant issued in respect of the same judgment is in force, except for the purposes of rule 68.03. 69.05 Order of sale (1) Subject to subrules (2) and (3), where it appears to the Sheriff that property subject to levy under a warrant is more than sufficient to satisfy the amount to be levied, he shall take or sell so much of the property as appears to him to be sufficient. (2) Subject to subrule (3), the Sheriff shall take or sell property: (a) in such order as seems to him best for the prompt execution of the warrant without undue expense; (b) subject to paragraph (a), in such order as the debtor directs; and (c) subject to paragraphs (a) and (b), in such order as seems to the Sheriff best for minimizing hardship to the debtor and other persons. (3) Unless the debtor so requests, land shall not be put for sale under the warrant until all other property liable to sale under the warrant has been sold. (4) The Court may order that property subject to levy under the warrant be taken or sold otherwise than in accordance with this rule. 69.06 Time and place of sale The Sheriff shall put up for sale all property liable to sale under a warrant: (a) as early as may be having regard to the interests of the parties; and Supreme Court Rules 1987 279 (b) at the place which seems to him best for a beneficial sale of the property. 69.07 Advertisement of sale (1) Before putting property up for sale under a warrant, the Sheriff shall advertise the sale by giving notice of the time and place of sale, and of particulars of the property, in the manner which seems to him best to give publicity to the sale. (2) The Sheriff shall not advertise the sale of land until the creditor has satisfied him, by such means as he may reasonably require, that a copy of the warrant has been served on the Registrar-General and that a memorial of the warrant has been entered on the original Certificate of Title under the Land Title Act 2000. (3) An advertisement relating to the intended sale of land by the Sheriff shall be in Form 69A and include: (a) a concise description of the land, including its location, stated in terms calculated to enable interested persons to identify it; (b) a statement in general terms of the improvements, if any, believed by the Sheriff to be on the land; (c) a statement of the last known address of the debtor; and (d) a statement of the interest, if any, of the debtor according to the Register Book under the Land Title Act 2000 and of the entries in the Register Book which affect or may affect the land as at the date of service on the Registrar-General of the warrant. (4) The creditor shall serve personally on the debtor a copy of the advertisement not later than 14 days before the date of the intended sale. (5) The Court may dispense with service under subrule (4). (6) Not later than 3 days, or such lesser period as the Sheriff allows, before the date advertised for the sale, the creditor shall: (a) file an affidavit of service of a copy of the advertisement or, where the Court makes an order for substituted service of the advertisement, an affidavit showing due compliance with the order; and Supreme Court Rules 1987 280 (b) deliver to the Sheriff: (i) where a copy of the advertisement is served on the debtor – a copy of the affidavit of service; (ii) where the Court makes an order dispensing with service of a copy of the advertisement – a copy of the order; and (iii) where the Court makes an order for substituted service of the advertisement – a copy of the order and of the affidavit showing due compliance. 69.08 Notional possession of goods Notwithstanding that the Sheriff leaves land on which goods have been seized under a warrant, he shall be taken to remain in possession of the goods if he leaves in a prominent position on or about the land on which the goods were seized or on the goods seized a notice of the seizure listing the items seized. Order 70 Warrant of possession 70.01 Payment of money A warrant of possession to enforce a judgment for the possession of land may include provision for enforcing the payment of money required to be paid by the judgment. 70.02 Removal of goods on warrant of possession On the execution of a warrant of possession the Sheriff need not remove any of the goods found on the land. 71.01 Definitions and application garnishee means a person from whom a judgment creditor claims that a debt: (a) is due or accruing to the judgment debtor on the day an order for the filing and service of a garnishee summons is made; or Supreme Court Rules 1987 281 (b) will or is likely to become due or accrue to the judgment debtor between the day an order for the filing and service of a garnishee summons is made and the day for hearing named in the summons. judgment creditor means a person entitled to enforce a judgment for the payment of money, other than a judgment for the payment of money into court. judgment debtor means a person required by a judgment to pay money otherwise than into court. (2) This Order does not apply to debts, being earnings within the meaning of Order 72, due or accruing to the judgment debtor. 71.02 What debts attachable A debt may be attached under this Order if the debt: (a) is due or accruing to the judgment debtor from the garnishee on the day an order for the filing and service of a garnishee summons is made; or (b) becomes due or accrues to the judgment debtor from the garnishee between the day an order for the filing and service of a garnishee summons is made and the day for hearing named in the summons. 71.03 Bank account (1) An amount standing to the credit of a judgment debtor in an account in an ADI shall, for the purpose of this Order, be a debt due or accruing to the judgment debtor, notwithstanding that any of the following conditions applicable to the account has not been satisfied: (a) that a demand or notice is required before money is withdrawn; (b) that a personal application must be made before money is withdrawn; (c) that a deposit book must be produced before money is withdrawn; or (d) that a receipt for money deposited in the account must be produced before money is withdrawn. Supreme Court Rules 1987 282 (2) Subrule (1), with the necessary changes, applies to an amount which is placed to the credit of a judgment debtor in an account in an ADI between the day an order for the filing and service of a garnishee summons is made and the day for hearing named in the 71.04 Filing and service of garnishee summons (1) Subject to an Act, the Court may, on the application of a judgment creditor, order that a garnishee summons be filed and served on the garnishee. (2) A judgment creditor may apply for an order under subrule (1) without notice to any person. (3) The Court shall, in making an order under subrule (1), fix an amount to be specified in the garnishee summons for the purpose of rule 71.06 having regard to: (a) the amount due under the judgment on the date of the order; (b) the amount of interest accrued and accruing on the judgment debt; and (c) the costs of the garnishee proceedings. (4) Where an order is made under subrule (1) in respect of a debt not yet due or accruing to the judgment debtor from the garnishee, the day for hearing named in the summons shall be not later than 30 days after the date of the order. 71.05 Evidence on application for garnishee summons (1) An order shall not be made under rule 71.04 unless it is shown by affidavit: (a) that the judgment is unsatisfied, either wholly or to a stated extent; and (b) that: (i) a debt is due or accruing to the judgment debtor from the garnishee; or (ii) a debt will or is likely to become due or accrue to the judgment debtor from the garnishee, Supreme Court Rules 1987 283 (2) Where an application is made for an order under rule 71.04 in respect of a debt within subrule (1)(b)(ii), the affidavit shall give particulars identifying the transaction between the judgment debtor and the garnishee under which the debt will or is likely to become due or accrue and state the date or likely date it will become due or accrue. (3) An affidavit under this rule may contain statements of fact based on information and belief if the grounds are set out. 71.06 Garnishee summons (1) A garnishee summons shall identify each debt in respect of which it is filed and state: (a) where the debt is due or accruing to the judgment debtor from the garnishee: (i) that on service of the summons the debt shall be attached and bound in the hands of the garnishee to the extent of the amount specified in the summons; and (ii) that in the event that the debt becomes due or accrued before the day for hearing named in the summons the debt shall be attached and bound in the hands of the garnishee to the extent of the amount specified in the summons when it becomes due or accrues, as the case requires; and (b) that on the day for hearing named in the summons the judgment creditor will apply for an order that the garnishee pay to the judgment creditor the debt attached to the extent of the amount specified in the summons. (2) A garnishee summons shall be in Form 71A. 71.07 Service of summons (1) Subject to subrule (2), the judgment creditor shall, not later than 7 days before the day for hearing named in the garnishee summons, serve the summons and a copy of each affidavit used on the application for an order under rule 71.04 on the garnishee personally and on the judgment debtor. (2) A garnishee summons shall not be served on a garnishee out of the Territory. (3) The Court may dispense with service on the judgment debtor under Supreme Court Rules 1987 284 71.08 What debts attached, when and to what extent (1) A debt due or accruing to the judgment debtor from the garnishee in respect of which an order for the filing and service of a garnishee summons is made is, on service of the summons on the garnishee, attached and bound in the hands of the garnishee to the extent of the amount specified in the summons. (2) A debt not yet due or accruing to the judgment debtor from the garnishee in respect of which an order for the filing and service of a garnishee summons is made is in the event that the debt becomes due or accrues before the day for hearing named in the summons, attached and bound in the hands of the garnishee to the extent of the amount specified in the summons when it becomes due or accrues. (3) Notwithstanding subrules (1) and (2), where, after service of a garnishee summons on the garnishee, the garnishee acts with reasonable diligence for the purpose of giving effect to the attachment but nevertheless pays to the judgment debtor the whole or a part of the debt attached or otherwise deals with the debt attached so as to satisfy, as between the garnishee and the judgment debtor, the whole or a part of the debt attached, the Court may order that for the purpose of the garnishee application the debt attached be reduced to the extent of the payment or satisfaction. 71.09 Payment to judgment creditor (1) Subject to rules 71.10 and 71.11, the Court may, on the hearing of a garnishee summons, order the garnishee to pay to the judgment creditor: (a) the debt attached to the extent specified in the garnishee summons; or (b) so much of the debt attached to the extent so specified as is required to satisfy the judgment in respect of which the summons is filed and served together with interest and such costs of the application as are specified in the order. (2) Where on the hearing of a garnishee summons the garnishee does not dispute the debt, or where he does not attend on the hearing, the Court may make an order under subrule (1) on the evidence in support of the application under rule 71.04 for an order that the garnishee summons be filed and served on the garnishee. (3) An order under subrule (1) may be enforced in the same manner as any other order for the payment of money. Supreme Court Rules 1987 285 (4) An order under subrule (1) shall be in Form 71B or 71C, as the case requires. 71.10 Dispute of liability by garnishee If on the hearing of the garnishee summons the garnishee disputes liability to pay the debt attached, the Court may determine the question of liability or give directions for the trial of the question. 71.11 Claim by other person Where it appears to the Court that a person other than the judgment debtor may be entitled to the debt attached or to a charge or lien on it, it may order that notice of the application be given to that person and then determine the entitlement or give directions for its determination. 71.12 Discharge of garnishee A payment made by a garnishee in compliance with, and any execution levied against him under, an order made under rule 71.09 is a valid discharge of his liability to the judgment debtor to the extent of the amount paid or levied notwithstanding that subsequently the garnishee proceedings are set aside or the judgment from which they arose is reversed or varied. 71.13 Money in Court (1) Subject to rule 15.09, where money is standing to the credit of the judgment debtor in court, the Court may, on the application of the judgment creditor made by summons, order that the money or so much of it as is sufficient to satisfy the judgment sought to be enforced, together with interest accrued on the judgment debt and the costs of the application, be paid to the judgment creditor. (2) The summons and a copy of any affidavit in support shall be served on the judgment debtor not later than 7 days before the day for hearing named in the summons. 71.14 Costs The costs of the judgment creditor of a garnishee application under this Order shall, unless the Court otherwise orders, be retained by the judgment creditor out of the money recovered by him from the garnishee in priority to the debt under the judgment in respect of which the application arose and interest accrued on the debt. Supreme Court Rules 1987 286 72.01 Definitions attachment of earnings order means an order under rule 72.03 or such an order as varied from time to time. earnings, in relation to a judgment debtor, means an amounts payable to the judgment debtor: (a) by way of wages or salary, including fees, bonuses, commissions, overtime payments or other emoluments payable in addition to wages or salary; or (b) by way of pension, including: (i) an annuity in respect of past services, whether or not the services were rendered to the person paying the annuity; and (ii) periodical payments in respect of or by way of compensation for the loss, abolition or relinquishment, or a diminution in the emoluments, of an office or employment, but does not include a pension payable to the judgment debtor under the Social Security Act 1947, the Repatriation Act 1920 or the Seamen's War Pensions and Allowances Act 1940 of the Commonwealth. employer, in relation to a judgment debtor, means a person (including the Crown in right of the Territory, a Minister of the Crown in right of the Territory and a statutory authority representing the Crown in right of the Territory) by whom, as a principal and not as a servant or agent, earnings are payable or are likely to become payable to the judgment debtor. judgment creditor means a person entitled to enforce a judgment for the payment of money, other than a judgment for the payment of money into court. judgment debtor means a person required by a judgment to pay money otherwise than into court. Supreme Court Rules 1987 287 net earnings, in relation to a pay-day, means the amount of the earnings becoming payable by a particular employer on that pay-day after the deduction from those earnings of: (a) an amount deducted under Division 2 of Part VI of the Income Tax Assessment Act 1936 of the Commonwealth; and (b) an amount deducted that would be an allowable deduction: (i) under section 82H of that Act other than life insurance premiums, not being life insurance premiums payable in respect of superannuation; or (ii) under section 82A of that Act. normal deduction, in relation to an attachment of earnings order and in relation to a pay-day, means an amount representing a payment at the normal deduction rate specified in the order in respect of the period between that pay-day and either the last preceding pay-day or, where there is no last preceding pay-day, the date on which the employer became, or last became, the judgment debtor's employer. pay-day means an occasion on which earnings to which the attachment of earnings order relates become payable. protected earnings, in relation to an attachment of earnings order and in relation to a pay-day, means the amount representing a payment at the protected earnings rate specified in the order in respect of the period between that pay-day and either the last preceding pay-day or, where there is no last preceding pay-day, the date on which the employer became, or last became, the judgment debtor's employer. 72.02 Application for attachment of earnings order (1) A judgment creditor may apply by summons to the Court for an attachment of earnings order. (2) The summons shall be supported by an affidavit, which may contain statements of fact based on information and belief if the grounds are set out. (3) The summons shall be in Form 72A and the affidavit shall be in Form 72B. (4) The summons, a copy of the affidavit and a notice in Form 72C as to the property and assets of the judgment debtor and the debts, liabilities and other financial obligations of the judgment debtor shall be served on the judgment debtor not later than 14 days before the Supreme Court Rules 1987 288 day for hearing named in the summons. 72.03 Making of order (1) Where the Court is satisfied that the judgment debtor is a person to whom earnings are payable or are likely to become payable and (a) at the time when the application was made there was due and unpaid in respect of the judgment which the judgment creditor is entitled to enforce an amount of not less than $20; or (b) the judgment debtor has persistently failed to comply with an order with respect to the judgment, the Court may order a person who appears to it to be the judgment debtor's employer in respect of those earnings or part of those earnings to make out of those earnings or that part of those earnings payments in accordance with rule 72.07. 72.04 Attendance of or information about judgment debtor (1) In relation to an attachment of earnings order or an application for such an order, the Court may order that: (a) the judgment debtor attend before it at a time specified in the order to be examined concerning his means and ability to comply with the judgment; (b) the judgment debtor state to it or furnish to it, within the time fixed by it, a statement signed by him setting forth: (i) the name and address of his employer or, if he has more employers than one, of each of his employers; and (ii) particulars as to the judgment debtor's earnings; and (iii) such other particulars as the Court thinks necessary to enable the enforcement of the order; or (c) a person who appears to it to be indebted to the judgment debtor or to be the employer of the judgment debtor give to it a statement signed by him or on his behalf containing such particulars as are specified in the direction of his indebtedness to the judgment debtor that became payable by that person during a specified period. (2) A document purporting to be a statement referred to in subrule (1) shall be received in evidence in a proceeding for the enforcement of the order. Supreme Court Rules 1987 289 (3) Where on an application for an attachment of earnings order the Court is satisfied: (a) that the judgment debtor has been served with a copy of the summons; (b) that the judgment debtor has had a reasonable opportunity of attending the hearing; (c) that the judgment debtor is employed by an ascertained employer; and (d) as to the earnings of the judgment debtor, it may make an attachment of earnings order in the absence of the judgment debtor. (4) For the purpose of this rule, the Court may act on evidence by or on behalf of the judgment debtor's employer or by a spouse or de facto partner of the judgment debtor, or a statement or information furnished under subrule (1). (5) Where the Court considers an application in the absence of the judgment debtor or any spouse or de facto partner of the judgment debtor and it has before it sufficient evidence in its opinion on which to specify a protected earnings rate and a normal deduction rate, it shall so specify those rates but, where it does not have sufficient evidence, it may, without specifying those rates, make an order requiring the payment by the judgment debtor's employer to the judgment creditor of such amount as the Court thinks reasonable having regard to the circumstances of the judgment debtor so far as they are known to the Court. (6) Nothing in subrule (1)(a) affects any other mode of enforcing the attendance of the judgment debtor before the Court. (7) An application for an order under subrule (1) (a) shall be made by summons in Form 72D and shall be supported by an affidavit in Form 72E. (8) An order under subrule (1) shall be in Form 72F or 72G, whichever is appropriate. 72.05 Contents of order (1) In this rule: normal deduction rate means the rate at which the Court considers it to be reasonable that the earnings of a judgment debtor should be applied in satisfying the judgment to which the order Supreme Court Rules 1987 290 relates, not exceeding a rate that appears to the Court to be necessary for the purpose of: (a) securing payment of the amount due and unpaid under the judgment; and (b) securing payment within a reasonable time of any costs ordered by the Court to be paid by the judgment debtor. protected earnings rate means the rate below which, having regard to the resources and needs of a judgment debtor and of any other person for whom he must or reasonably may provide, the Court considers it to be reasonable that the earnings to which the order relates should not be reduced by a payment under an attachment of earnings order. (2) An attachment of earnings order shall specify, either generally or in relation to a particular pay-day or particular pay-days, the normal deduction rate. (3) An attachment of earnings order may specify a higher normal deduction rate to apply for a specified number of pay-days after the order comes into force and a lower normal deduction rate to apply to subsequent pay-days. (4) An attachment of earnings order shall also specify the protected earnings rate. (5) Unless the Court: (a) has received from the judgment debtor a completed form pursuant to the notice in Form 72C given under rule 72.02(4) as to the property and assets of the judgment debtor and has debts, liabilities and other financial obligations; or (b) has examined the judgment debtor as to those matters, it shall not under subrule (3) specify as the protected earnings rate a rate that is less than 80% of the net earnings of the judgment debtor. (6) An attachment of earnings order shall: (a) provide that the payments under the order are to be made to the person specified in the order; and (b) contain such particulars as the Court thinks necessary for enabling the person to whom the order is directed to identify the judgment debtor. Supreme Court Rules 1987 291 (7) An attachment of earnings order shall be in Form 72H. 72.06 Service of orders (1) An attachment of earnings order shall be served on the judgment debtor and on the person to whom the order is directed. (2) There shall also be served on the person to whom an attachment of earnings order is directed: (a) a notice informing him of the effect of the order and of his obligations under the Order; and (b) 2 forms of notice that the judgment debtor is not in his employ. (3) A notice under subrule (2)(a) shall be in Form 72J and a notice under subrule (2)(b) shall be in Form 72K. (4) The order shall not come into force until the expiration of 7 days after the day on which it is served on the person to whom it is 72.07 Employer to make payments (1) An employer to whom an attachment of earnings order is directed shall, in respect of each pay-day whilst the order is in force, if the net earnings of the judgment debtor exceed the sum of: (a) the protected earnings of the judgment debtor; and (b) so much of an amount by which the net earnings that became payable on a previous pay-day were less than the protected earnings in relation to that pay-day as has not been made good on any other previous pay-day, pay, so far as that excess permits, to the person specified in the order the normal deduction in relation to that pay-day and so much of the normal deduction in relation to a previous pay-day as was not paid on that pay-day and has not been paid on a previous pay-day. (2) A payment made by an employer under subrule (1) is a valid discharge to him as against the judgment debtor to the extent of the amount paid. (3) An employer making payments in accordance with an attachment of earnings order may deduct from the earnings of the judgment debtor, in addition to any other amount, an allowance of $3 in respect of each payment towards the clerical and administrative costs of making payments under the order and shall give to the judgment debtor notice of the amount deducted. Supreme Court Rules 1987 292 72.08 Attachment of earnings in place of other orders Where an application is made to the Court to enforce a judgment for the payment of money otherwise than into court, the Court may, instead of making another order, make an attachment of earnings 72.09 Execution after attachment of earnings Unless the Court otherwise orders, where an attachment of earnings order is in force, no warrant of execution shall issue and no order shall be made for the enforcement of the judgment to which the attachment of earnings order relates. 72.10 Discharge or variation of order (1) Where an attachment of earnings order is in force, the Court may, on the application of the judgment creditor or the judgment debtor, discharge, suspend or vary the order. (2) An order suspending or varying an attachment of earnings order shall be served on the respondent to the application and the person to whom the attachment of earnings order is directed. (3) An order suspending or varying an attachment of earnings order does not come into force until the expiration of 7 days after the day on which the order is served on the person to whom it is directed. 72.11 Cessation of attachment of earnings order (1) An attachment of earnings order ceases to have effect: (a) on being discharged under rule 72.10; or (b) unless the Court otherwise orders, on the making of another order for the recovery of the moneys owing under the judgment in relation to which the attachment of earnings order was made. (2) Where an attachment of earnings order ceases to have effect, a Registrar shall, without delay, give notice accordingly to the person to whom the order was directed. (3) A notice under subrule (2) shall be in Form 72L. (4) Where an attachment of earnings order ceases to have effect, the person to whom the order is directed shall not incur a liability in consequence of his treating the order as still in force at any time before the expiration of 7 days after the day on which the notice required by subrule (2) or a copy of the order discharging the Supreme Court Rules 1987 293 attachment of earnings order, as the case may be, is served on him. 72.12 Two or more orders in force Where earnings become payable to a judgment debtor and there are in force 2 or more attachment of earnings orders, whether made under this Chapter or otherwise, in relation to those earnings, the person to whom the orders are directed shall comply with: (a) those orders according to the respective dates on which they took effect and shall disregard an order until the earlier order has been complied with; and (b) an order as if the earnings to which the order relates were the residue of the earnings of the judgment debtor after the making of a payment under an earlier order. 72.13 When varied order taken to be made For the purpose of rule 72.12, an attachment of earnings order which has been varied under rule 72.10 shall be taken to have been made as so varied on the day on which the attachment of earnings order was made. 72.14 Notice to judgment debtor of payments (1) A person who makes a payment in compliance with an attachment of earnings order shall give to the judgment debtor a notice specifying the particulars of the payment. (2) Where a person served with an attachment of earnings order directed to him is not the employer of the judgment debtor at the time of service of the order, he shall, without delay after service of the order, give notice in writing accordingly to a Registrar. (3) Where a person served with an attachment of earnings order directed to him is the employer of the judgment debtor at the time of service of the order but ceases to be his employer at any time thereafter, that person shall, as soon as he ceases to be the judgment debtor's employer, give notice in writing accordingly to the 72.15 Determination of earnings (1) The Court shall, on the application of the person to whom an attachment of earnings order is directed, determine whether payments to the judgment debtor of earnings of a particular class or description specified in the application are earnings for the purpose of that order. Supreme Court Rules 1987 294 (2) A person to whom an attachment of earnings order is directed who makes an application under subrule (1) shall not incur a liability for failing to comply with the order with respect to a payment of the class or description specified in the application that is made by him to the judgment debtor while the application, or an appeal from an order made on the application, is pending. (3) Subrule (2) does not apply in respect of a payment made after an application is withdrawn or an appeal from an order made on the application is abandoned. 72.16 Service An order or document required or permitted to be served on a person under this Order may be served on him: (a) personally; (b) by delivering a copy at his usual or last known place of residence or business to a person who apparently resides or is employed there and has apparently attained the age of 16 years; or (c) by sending a copy to him at his usual or last known place of residence or business by registered post. 73.01 Definitions corporation means a corporation formed under an Act of the Commonwealth or under an Act or Companies Code of a State or Territory, and includes a building society and a credit union. funds or funds in court means money, stock issued by or funds of, or an annuity granted by, a government, or stock of a corporation standing or to be placed to the credit of an account in the books of the Court. judgment means a judgment for the payment of an ascertained amount otherwise than into court. judgment creditor means a person entitled to enforce a judgment. judgment debt means the amount due under a judgment and includes interest on that amount. Supreme Court Rules 1987 295 judgment debtor means a person against whom a judgment may be enforced. securities means any of the following: (a) stock issued by or funds of, or an annuity granted by, the Commonwealth or a State or Territory; (b) stock of a corporation; (c) a dividend or interest payable on stock mentioned in paragraph (a) or (b). stock includes shares and a debenture, debenture stock, bond, note or other security. 73.02 Order charging securities For the purpose of securing the payment of a judgment debt, the Court may by order (in this Order called a charging order), impose a charge on the beneficial interest of the judgment debtor in a security. 73.03 Filing and service of charging summons (1) The Court may, on the application of a judgment creditor, order that a charging summons be filed and served. (2) A judgment creditor may apply for an order under subrule (1) without notice to any person. 73.04 Evidence on application for charging summons (1) An application for an order under rule 73.03(1) shall be supported by an affidavit: (a) stating that the judgment is unsatisfied, either wholly or to a stated extent; (b) identifying the securities in respect of which the order is sought and stating in whose name they stand; and (c) stating that the judgment debtor has a beneficial interest in the securities and describing that interest. (2) An affidavit under this rule may contain statements of fact based on information and belief if the grounds are set out. Supreme Court Rules 1987 296 73.05 Charging summons (1) A charging summons shall identify the securities in respect of which it is filed and state that on service of the summons on: (a) the government or corporation to which it is addressed, the government or corporation, as the case may be, shall not, except by order of the Court, cause or permit a transfer of any of the securities to be made or pay to a person a dividend or interest on any of them; (b) the judgment debtor, unless the Court otherwise orders, no disposition by him of his interest in any of the securities made before the application for the charging order is heard by the Court is valid as against the judgment creditor. (2) A charging summons shall be in Form 73A. 73.06 Service of summons (1) The judgment creditor shall, not later than 7 days before the day for the hearing named in the charging summons, serve on the judgment debtor and personally on the government or corporation the summons and a copy of each affidavit used on the application for an order under rule 73.03(1). (2) The Court may dispense with service on the judgment debtor under 73.07 Effect of service of summons (1) Where, without the authority of the Court, a government or corporation on which a charging summons has been served causes or permits any of the securities to which the summons relates to be transferred or pays to a person a dividend or interest on any of them, the government or corporation, as the case may be, is liable to pay to the judgment creditor an amount equal to the value to the judgment debtor of the securities transferred or of the dividend or interest paid, as the case may be, or so much of that value as is sufficient to satisfy the judgment. (2) No disposition by the judgment debtor of his interest in any of the securities to which a charging summons relates made after the service of it on him and before the application for the charging order is heard is valid as against the judgment creditor, unless the Court Supreme Court Rules 1987 297 73.08 Order on summons hearing (1) On the hearing of a charging summons the Court may make a charging order with respect to securities to which the summons relates. (2) If the judgment debtor does not attend on the hearing of the charging summons or, if attending, does not dispute the evidence in support of the application under rule 73.03(1), the Court may make a charging order on that evidence. 73.09 Effect and enforcement of charge A charge imposed by a charging order shall have the same effect, and give the judgment creditor the same remedies for enforcing it, as if it were a valid charge effectively made by the judgment debtor. 73.10 Variation or discharge of order The Court may by order, at any time: (a) vary the effect under rule 73.07 of the service of a charging summons; or (b) vary or discharge a charging order. 73.11 Order charging funds in Court (1) Subject to rule 15.09, for the purpose of securing the payment of a judgment debt, the Court may, by order, impose a charge on the beneficial interest of the judgment debtor in any funds in court. (2) Rules 73.03 to 73.08 inclusive and rule 73.10, with the necessary changes, apply to an application for an order under subrule (1). (3) The judgment creditor shall, without delay, on the making of an order that a summons for an order under subrule (1) be filed and served, lodge a copy of the summons and of each affidavit used on the application for the order with an Associate Judge, a Registrar or other proper officer of the Court by whom the funds in court are held. 73.12 Stop order for funds in Court (1) The Court may make an order that funds in court, or a part of them, or the income from them, shall not be transferred, sold, delivered out, paid or otherwise dealt with unless notice is first given to the person applying for the order. Supreme Court Rules 1987 298 (2) An order may be made under subrule (1) on the application of a person: (a) who has a mortgage or charge on the interest of a person in the funds in court; (b) to whom the interest has been assigned; or (c) who is a judgment creditor of the person entitled to the interest. (3) The application shall be made by summons in the proceeding in which the funds are in court or, if there is no proceeding, by (4) The summons or originating motion, and a copy of any affidavit in support, shall be served on every person who has an interest in the funds in court which may be affected by the order sought. (5) On an application under this rule the Court may make such order as it thinks fit for the costs and expenses of the applicant and of a party to the application or other person against whom an order is sought. 73.13 Stop notice on corporation stock not in Court (1) A person (in this and rules 73.14 and 73.15 called the claimant) claiming a beneficial interest in stock of a corporation, other than stock in court, who desires to be notified of a proposed transfer of the stock or payment of any dividend or interest on the stock may give notice of that desire to the corporation by filing: (a) an affidavit in Form 73B identifying the stock in question and describing his interest in it and identifying any document under which it arises; and (b) serving a sealed copy of the affidavit and of the notice on the corporation. (2) The affidavit shall be endorsed with a note stating the address to which a notice under rule 73.14 is to be sent and, subject to subrule (3), that address shall for the purpose of that rule be the address for service of the claimant. (3) The claimant may change his address for service for the purpose of rule 73.14 by filing and serving on the corporation notice of the change. Supreme Court Rules 1987 299 73.14 Effect of stop notice Where an affidavit and a notice are served on a corporation under rule 73.13 and, during the time the notice is in force, the corporation is requested to register a transfer of the stock to which the notice relates or the payment of a dividend or interest on the stock falls due, it: (a) shall serve on the claimant, at his address for service, a notice informing him of the request; and (b) except with the authority of the Court, shall not register the transfer or, as the case requires, pay the dividend or interest before the expiration of 10 days after the day the notice is 73.15 Withdrawal or discharge of stop notice (1) A claimant may by notice served on the corporation withdraw a notice served on it under rule 73.13. (2) The Court may by order discharge a notice under subrule (1). 73.16 Prohibition of transfer of or payment on stock (1) The Court may on the application of a person claiming a beneficial interest in stock of a corporation, other than stock in court, by order, prohibit or restrict the corporation from registering a transfer of the whole or a part of the stock or from paying a dividend or interest on it. (2) The Court may vary or discharge an order made under subrule (1). 74.01 Procedure An application for the appointment of a receiver by way of equitable execution may be made in accordance with Order 39 and that Order applies to such a receiver as it applies to a receiver appointed for any other purpose. 74.02 Appointment of receiver by way of equitable execution Before determining an application for the appointment of a receiver by way of equitable execution, the Court shall have regard to the amount claimed by the judgment creditor, the amount likely to be obtained by the receiver and the probable costs of his appointment and may direct an inquiry on these or any other matters. Supreme Court Rules 1987 300 Order 75 Contempt Part 1 Interpretation 75.01 Definition In this Order, unless the contrary intention appears, respondent means a person guilty or alleged to be guilty of contempt of court. Part 2 Summary proceeding for contempt 75.02 Contempt in face of the Court Where it is alleged or appears to the Court that a person is guilty of contempt of court committed in the face of the Court, it may: (a) by oral order, direct that the respondent be arrested and brought before it; or (b) issue a warrant for his arrest in Form 75A. 75.03 Procedure on hearing of charge Where the respondent is brought before the Court, whether under oral order or warrant for arrest, the Court shall cause him to be informed of the contempt with which he is charged and after so doing shall adopt such procedures as in the circumstances it thinks fit. 75.04 Custody pending disposal of charge The Court may order that, until the charge is disposed of, the respondent be kept in custody or be released on terms, including a condition that he give security for appearance in person to answer the charge. 75.05 Application (1) This Part applies to: (a) contempt of court committed in the face of the Court; (b) any other contempt of the Court; and (c) contempt of an inferior court. Supreme Court Rules 1987 301 (2) In the case of contempt of court committed in the face of the Court, the procedure under this Part is alternative to that under Part 2. 75.06 Procedure (1) Application for punishment for the contempt shall be by summons or originating motion in accordance with this rule. (2) Where the contempt is committed by a party in relation to a proceeding in the Court, the application shall be made by summons (3) Where subrule (2) does not apply, the application shall be made by originating motion which: (a) shall be entitled "The Queen v." the respondent, "on the application of" the applicant; and (b) shall require the respondent to attend before a Judge. (4) The summons or originating motion shall specify the contempt with which the respondent is charged. (5) The summons or originating motion and a copy of every affidavit shall be served personally on the respondent, unless the Court 75.07 Application by Registrar (1) The Court may, by order, direct the Registrar to apply by summons or originating motion for punishment of a contempt. (2) Where the Registrar applies as so directed, the Court may order that costs be paid by the Registrar to the respondent or by the respondent to the Registrar, as it thinks fit. 75.08 Arrest of respondent Where a summons or originating motion for punishment of a contempt has been filed and it appears to the Court that the respondent has absconded or is likely to abscond or has left or is likely to leave the Territory, the Court may issue a warrant for his arrest and detention in custody until he is brought before it to answer the charge, unless he gives security, as the Court directs, for his appearance in person to answer the charge and to submit to its judgment. Supreme Court Rules 1987 302 75.09 Warrant for arrest (1) A warrant for the arrest of a respondent shall be addressed to the Sheriff and may be issued: (a) where the arrest is ordered by a Judge – under his hand; (b) where the arrest is ordered by the Full Court – under the hand of the presiding Judge. (2) The warrant shall be in Form 75B. 75.10 Application This Part applies where the Court finds that a respondent is guilty of contempt of court. 75.11 Punishment for contempt (1) Where the respondent is a natural person, the Court may punish for contempt by committal to prison or fine, or both. (2) Where the respondent is a corporation, the Court may punish for contempt by sequestration or fine, or both. (3) When the Court imposes a fine, it may commit, or further commit, the respondent to prison until the fine is paid. (4) The Court may make an order for punishment on terms, including a suspension of punishment. 75.12 Discharge Where a respondent is committed to prison for a term, the Court may order his discharge before the expiry of the term. 75.13 Warrant for committal A warrant for the committal of a person found guilty of contempt of court shall be in Form 75C. 75.14 Costs The costs of an application for punishment for contempt shall be in the discretion of the Court, whether an order for committal is made or not. Supreme Court Rules 1987 303 76.01 Definitions judgment includes order. 76.02 Enforcement by sequestration The process of enforcement under this Order shall be used instead of the process of enforcement by writ of sequestration. 76.03 Order for sequestration (1) An order for sequestration shall appoint one or more persons as sequestrators and provide that the sequestrator be authorized and directed to enter on and take possession of the real and personal estate of the person bound and to collect, receive and get into their hands the rents and profits of his real and personal estate and keep them under sequestration in their hands until the person bound complies with the judgment to be enforced by sequestration, or until further order. (2) Where the person bound is a corporation and an order is made for the sequestration of the property of an officer of the corporation (whether or not an order for sequestration is also made against the corporation), the order shall give the same authority and direction to the sequestrators with respect to the real and personal estate of the officer as in the case of an order against a corporation and shall provide that the sequestrators shall keep the estate under sequestration in their hands until the corporation complies with the judgment to be enforced by sequestration or until further order. (3) The Court may discharge an order for sequestration. 76.04 Application (1) An application for an order for sequestration shall be by summons and the summons and a copy of each affidavit in support shall be served personally on the person bound. (2) Where the person bound is a corporation and sequestration of the property of an officer of the corporation is sought, a copy of the summons and of each affidavit in support shall also be served personally on him. Supreme Court Rules 1987 304 (3) The Court may dispense with service under subrules (1) and (2). 77.01 Authority in civil proceedings (1) Subject to this Order, an Associate Judge, in addition to exercising the powers and authority imposed or conferred by any other provision of this Chapter or an Act, may do any of the following: (a) in a proceeding to which this Chapter applies, give a judgment or make an order, including a judgment or order, in the exercise of the inherent jurisdiction of the Court; (b) hear and determine an application and exercise powers and authorities under the following statutory provisions: (i) the Family Provision Act 1970, where an order is sought by consent; (iii) the Land Title Act 2000, for the removal of a caveat or for leave to lodge another caveat on the same, or substantially the same, grounds as those contained in a caveat that has lapsed or has been withdrawn, cancelled or removed from a lot; (iv) the Unit Titles Act 1975, section 95 (order for cancellation of Units plan), section 98 (approval of scheme for alteration of Units plan) and section 99 (order for alteration of Units plan); (v) the Births, Deaths and Marriages Registration Act 1996, section 21 (orders with regard to the surname of the child); (vi) the Service and Execution of Process Act 1992 of the Commonwealth, Part 2, 3 and 6; (via) the Supreme Court Act 1979, section 16 (transfer of proceedings to Local Court); (vii) the Trustee Act 1893, Part III (Appointment of new trustees and vesting orders); (viii) the Administration and Probate Act 1969, sections 24 and 25 (order for assignment of Administration Bond), section 32 (appointment of Administrator pendente lite and receiver), section 33 (power to appoint Administrator), section 34(1) (order where executor Supreme Court Rules 1987 305 neglects to prove will), section 35 (issue of special letters of administration) and section 45 (order nisi where caveat lodged); (ix) the Partnership Act 1997; (x) the De Facto Relationships Act 1991; (xi) the Legal Profession Act 2006 – section 261 (appeal against decision of Funds Management Committee), section 277 (appeal against decision of Law Society as to costs), section 332 (application for costs assessment to be dealt with out of time), section 362 (appeal against decision of costs assessor as to a matter of law), section 400 (application for further time), section 414 (appeal against decision of Law Society as to Fidelity Fund claim), section 415 (appeal against failure to determine claim), section 595 (application for examination); (c) hear and determine: (i) an application under an Act for payment or transfer to a person of any money or securities in Court, including interest; or (ii) an application for or relating to the sale of property by auction or private contract, and for payment into court and investment of the purchase money; (d) conduct the trial of a proceeding if all the parties to the proceeding consent to an Associate Judge conducting the trial; (e) conduct the trial of a proceeding if the only matters in issue are the amount of damages, or the value of goods, and costs; (f) conduct the trial of an action for personal injuries, which may include hearing and determining issues of liability and damages; (g) hear and determine an application for the extension of a limitation period; (h) hear and determine an application for the possession of land, which may include hearing and determining an application for recovery of money outstanding under a mortgage over the land; (k) exercise the jurisdiction of the Court under the Family Law Act 1975 (Cth). Supreme Court Rules 1987 306 (j) hear and determine a matter referred to an Associate Judge by the Court of Appeal or a Judge. (2) Subject to this Order, an Associate Judge may exercise power conferred on the Court or a Judge: (a) in respect of the approval of a compromise on behalf of person under a disability; or (b) to give judgment or make an order in a proceeding if all parties affected appear and consent or on written application by a party and written consent of all other parties affected, provided that the judgment or order states that it is given or made by consent of the parties. (3) Subject to these Rules, an Associate Judge may hear and determine all interlocutory matters including an application for an interim or interlocutory injunction. 77.02 Limitation on authority (1) Subject to these Rules, the trial of a proceeding shall not be held before an Associate Judge and an Associate Judge shall not give a judgment or make an order at the trial of a proceeding. (2) Except where the trial was conducted by an Associate Judge, an order under rule 49.02 shall only be made by a Judge. (3) An Associate Judge does not have authority to extend or abridge a time fixed by an order of a Judge, unless the Judge directs. (4) Subject to these Rules, an Associate Judge does not have authority to hear or determine any of the following: (d) an application for the review of taxation of costs; (e) a proceeding for a declaration of the rights of a person, other than a declaration under Part 2, Division 2 of the De Facto Relationships Act 1991; (f) a question of construction arising under an instrument where the sole purpose of the proceeding is to determine that question; (h) an application in a matter pending in the Federal Court or the High Court; (j) a proceeding in respect of which a Judge orders that rule 77.01 shall not apply, as long as the order is in force (a Judge at any time may make such an order and may rescind Supreme Court Rules 1987 307 it); (k) a proceeding or class of proceeding which the Chief Justice directs to be excepted from rule 77.01; (m) an application which by this Chapter or an Act is required to be heard only by a Judge; (n) an application under any of the following Acts: (i) the Criminal Property Forfeiture Act 2002; (ii) the Serious Crime Control Act 2009; (iii) the Vexatious Proceedings Act 2006. 77.03 Associate Judge to hear application (1) Subject to subrule (2), an application in a proceeding for a judgment or order which may, in accordance with this Order, be given or made by an Associate Judge shall be made to an Associate Judge, not a Judge. (2) A judgment or order to which subrule (1) applies may be given or made by a Judge: (a) on a reference by an Associate Judge to a Judge under rule 77.04; (b) with special leave of a Judge; (c) on an appeal from an Associate Judge; (d) during the trial of the proceeding; or (e) when an Associate Judger is absent or not available. 77.04 Reference by Associate Judge to Judge (1) Subject to subrules (5) and (6), if on an application to an Associate Judge in accordance with rule 77.01 it appears to the Associate Judge that the application is proper for the determination of a Judge, the Associate Judge may refer the application to a Judge. (3) The Judge to whom the application is referred may hear and determine the application or refer it back to an Associate Judge with directions. (4) An Associate Judge may refer to a Judge for direction a question arising on an application to the Associate Judge. Supreme Court Rules 1987 308 (5) If it is reasonably practicable to do so, an Associate Judge must consult a Judge before hearing an interlocutory matter in a proceeding that: (a) is being case flow managed by a Judge; or (b) in the opinion of the Associate Judge, is proper for the determination of a Judge as mentioned in subrule (1). (6) An Associate Judge must refer an application for a Mareva Order or Anton Piller Order to a Judge under subrule (1) unless there are exceptional circumstances why the Associate Judge should hear and determine the application. 78.01 Directions in judgment (1) Where by a judgment of the Court further proceedings are necessary, the Court may, when giving the judgment or at a later time, give directions for the conduct of those proceedings. (2) Without limiting subrule (1), the Court may give directions with respect to: (a) the taking of an account or the making of an inquiry; (b) the evidence to be adduced on the account or inquiry; (c) the preparation of a draft instrument directed by the judgment to be settled and the making of objections to the draft; (d) the parties required to attend the proceedings; (e) the representation by the same solicitors of parties who constitute a class and by different solicitors of parties who ought to be separately represented; (f) the time for taking each step in the proceedings, and the day or days for the further attendance of the parties; or (g) the publication of advertisements for creditors or other claimants and the time for creditors and claimants to respond. (3) The Court may revoke or vary a direction given under this rule. Supreme Court Rules 1987 309 78.02 Claims (1) In this rule administration proceeding means a proceeding for the administration of the estate of a deceased person or the execution of a trust under the direction of the Court. (2) Where the judgment in an administration proceeding directs the taking of an account of debts or other liabilities of a deceased person, the Court may direct a party to: (a) examine the claims of persons claiming to be creditors of the estate and determine, so far as he is able, to which of the claims the estate is liable; (b) determine, so far as he is able, what are the other debts or liabilities of the deceased; and (c) file an affidavit stating his conclusions and reasons. (3) Where the judgment in an administration proceeding directs an inquiry for unascertained persons entitled, the Court may direct a party to: (a) examine the claims of persons claiming to be entitled and determine, so far as he is able, which of them are valid; (b) determine, so far as he is able, what other persons are entitled; and (c) file an affidavit stating his conclusions and reasons. (4) Where the party directed by the Court under subrule (2) or (3) to examine claims is not the personal representative or trustee concerned, then, unless the Court otherwise orders, the personal representative or trustee shall join with the party so directed in making the affidavit. (5) A copy of the affidavit under subrule (2)(c) or (3)(c) shall be served on every other party not later than 7 days before the time appointed by the Court for adjudicating on claims. (6) For the purpose of adjudicating on claims, the Court may: (a) direct a claim to be investigated in such manner it thinks fit; (b) require a claimant to attend and prove his claim or to furnish further particulars or evidence of it; or (c) allow a claim with or without proof. Supreme Court Rules 1987 310 (7) The Court may give directions for service on persons claiming to be creditors of notice of the result of the adjudication. (8) This rule, with the necessary changes, applies where the judgment in a proceeding other than an administration proceeding directs that an account of debts or other liabilities be taken or that an inquiry be 78.03 Interest on debts (1) Where a judgment directs an account of the debts of a deceased person, unless the estate of the deceased is insolvent or the Court otherwise orders, interest shall be allowed: (a) on a debt which carries interest, at the rate it carries; (b) on any other debt, from the date of the judgment at the rates payable on judgment debts from that date. (2) A creditor whose debt does not carry interest and who establishes the debt in proceedings under the judgment is, unless the Court otherwise orders, entitled to interest on the debt in accordance with subrule (1)(b) out of an asset which remain after satisfying the costs of the proceeding, the debts established and the interest on debts which by law carry interest. (3) For the purpose of this rule, the debts of a deceased person include funeral, testamentary and administration expenses and, in relation to expenses incurred after the judgment, for the reference in subrule (1)(b) to the date of the judgment substitute a reference to the date on which the expenses became payable. 78.04 Interest on legacies Where a judgment directs an account of legacies, subject to a direction in the will or codicil or an order of the Court, interest shall be allowed on each legacy at the rate of 12% per annum from the end of one year after the testator's death. 78.05 Account or inquiry by Associate Judge Unless the Court otherwise orders, an Associate Judge shall take an account or make an inquiry with respect to further proceedings under a judgment. 78.06 Associate Judges's order (1) The result of proceedings before an Associate Judge under a judgment shall be stated in the form of an order. Supreme Court Rules 1987 311 (2) An order under this rule shall have immediate binding effect on the parties to the proceeding and a copy shall be served on such parties as the Associate Judge directs. (3) Subject to a direction of the Associate Judge under subrule (4) or otherwise, an order under this rule has effect as a final order disposing of the proceeding in which it is made. (4) The Associate Judge may give directions as to the further consideration of the proceeding. 79.01 Application Moneys or funds paid into Court are governed by this Order. 79.02 Litigants' Fund (1) Subject to rule 79.04(1), moneys paid into Court shall, unless otherwise ordered, be paid into an ADI account to the credit of an account entitled "Northern Territory Supreme Court Litigants' Fund" (in this order called the Fund). (2) An account referred to in subrule (1) shall be established with such ADI as the Treasurer directs. (4) The signing officer and countersigning officer for the account shall be such persons as an Associate Judge designates from time to time. 79.03 Particulars of payment An order which directs that moneys in Court be paid out or otherwise dealt with shall state the particulars of the payment out or other action to be taken by an Associate Judge. 79.04 Other application of moneys (1) The Court may, at any time, order that moneys paid into Court, or to be paid into Court, be credited or applied in a manner other than by payment into an account referred to in rule 79.02. (2) Where interest is earned on the moneys referred to in subrule (1), the Court may direct the disbursement of that interest. Supreme Court Rules 1987 312 79.05 Money in Court or to be paid into Court for person under disability (1) Where an order is made that money in court or to be paid into Court be held for the benefit of a person under a disability and that order does not direct by whom the money is to be held, an Associate Judge shall pay the money to the Public Trustee who shall hold it on trust for the benefit of the person under a disability. (2) A party to a proceeding in which an order is made for the payment of moneys for the benefit of a person under a disability shall, as soon as practicable, procure the authentication of that order. (3) As soon as practicable after authentication, the party obtaining the order shall serve a copy of it on the Public Trustee or on such other person as is under the order required to hold the money for the person under a disability. (4) The party ordered to pay moneys into court under an order to which this rule refers shall, unless the Court otherwise orders, within 14 days after the service on him of a copy of the authenticated order, pay those moneys into court. (5) Where moneys are received by an Associate Judge under an order of the Court, the Associate Judge shall give: (a) to the party paying the moneys, a receipt for the moneys; and (b) to the party obtaining the order, notice that the moneys have been received. 79.06 Delay (1) Where an order is made that a party pay moneys into court for the benefit of a person under a disability and it appears to an Associate Judge after due inquiry that loss has been occasioned to the person under a disability: (a) through undue delay by a party or his solicitor in making the payment; or (b) where the order was made on the approval of a compromise of a claim by the person under a disability, through undue delay by the solicitor for or the litigation guardian of the person under a disability in: (i) obtaining the approval of the compromise; (ii) procuring the authentication of the order; or Supreme Court Rules 1987 313 (iii) serving a copy of the order on the other party or as required by this Order, the Associate Judgemay order that the person responsible for the loss pay into court for the benefit of the person under a disability an amount by way of interest on the moneys received or to be received under the order. (2) The amount ordered to be paid under subrule (1) shall not exceed that derived by applying to the moneys for the period of the loss the rate fixed from time to time by the Chief Justice and the Chief Justice may fix a rate for the purposes of this rule accordingly. (3) An Associate Judge shall not make an order under subrule (1) without giving the person who appears to be responsible for the loss an opportunity to be heard. (4) A person affected by an order under subrule (1) may appeal to a (5) Where moneys are paid into court in accordance with an order under subrule (1), the Associate Judge shall deal with the amount as if it were paid into court under the original order. 79.07 Investment of moneys paid into Court Subject to this Order, an Associate Judge may, after consultation with the parties in a proceeding in which moneys are paid into court and pending the outcome of that proceeding, invest the money in such forms of investment as a trustee may invest trust funds under the Trustee Act 1893. 79.07.1 Unclaimed money (1) All moneys which, before or after the commencement of this rule, have been paid into Court may, if unclaimed for 3 years, be paid into the Central Holding Authority. (2) A person entitled to claim money paid under subrule (1) into the Central Holding Authority may apply to an Associate Judge for a certificate certifying the claimant's right to claim the money and an Associate Judge may issue such a certificate. (3) On receiving a certificate referred to in subsection (2), the Treasurer, if satisfied that the claimant is not precluded by the Limitation Act 1981 from claiming the amount, shall authorize payment of the money to the claimant or the claimant's agent. Supreme Court Rules 1987 314 79.08 Payment under order Subject to rules 26.21(9) and 79.07, no moneys shall be paid out of the Fund otherwise than under an order of the Court. 80.01 Application (1) This Order applies to service in the Territory of a document in connection with civil or commercial proceedings pending before a foreign court if: (a) a letter from the court requesting service on a person in the Territory is received by the Registry; and (b) either: (i) the request is for service in accordance with a (ii) the Attorney-General certifies that effect ought to be given to the request. (2) In this rule: foreign court means a court or other tribunal in a country outside Australia, other than a Hague Convention country. 80.02 Documents required (1) In order that service may be effected in accordance with this Order there shall be delivered to a Registrar, unless he otherwise directs: (a) the document to be served and 2 copies of it; (b) a copy of the letter of request; and (c) if either the document to be served or the letter of request is not in English, a translation into English of the document or the letter and a copy of the translation. (2) Where subrule (1)(c) applies, the translation shall, unless a Registrar otherwise directs, bear a certificate of the translator, in English, stating that it is an accurate translation of the document or letter of request. Supreme Court Rules 1987 315 80.03 Service (1) A Registrar shall request the Sheriff to serve the document and a copy of the letter of request. (2) If either the document or the letter of request is not in English, a translation of the document or letter shall also be served. (3) The document, copy letter of request and a translation may be served in any manner in which originating process in the Court may be served, including substituted service in accordance with rule 6.09. (4) A proceeding for an order for substituted service shall be commenced by the Attorney-General by originating motion, which shall not name a defendant. 80.04 Affidavit of service (1) After the document, copy letter of request and any translation have been served or attempts to serve them have failed, the Sheriff shall file an affidavit made by the person who effected or attempted to effect service. (2) The affidavit shall: (a) where the document, copy letter of request and any translation have been served – state the hour of the day, day of the week and date on which they were served, the place and mode of service and manner of identification of the person served; or (b) where the document, copy letter of request and any translation have not been served – describe the attempts made to serve them. 80.05 Certificate (1) Where the request for service is made in accordance with a Convention, a Registrar shall give either: (a) a certificate, sealed with the seal of the Court: (i) certifying that the document, copy letter of request and any translation, were served on the person to be served, on the date and in the manner specified in the certificate or, if attempts to effect service failed, certifying the failure and the reasons for the failure; and (ii) certifying the amount of the costs incurred; or Supreme Court Rules 1987 316 (b) such other certificate as is appropriate to the terms of the relevant Convention. (2) Where the request for service is not made in accordance with a Convention, a Registrar shall give either: (a) a certificate, sealed with the seal of the Court: (i) annexing the letter of request, a copy of the document to be served and of any translation and a copy of the affidavit under rule 80.04; (ii) identifying the annexures; (iii) certifying that the manner of service of the documents and the proof of service are such as are required by the Rules of the Court regulating the service of originating process of the Court in the Territory or, if attempts to effect service failed, certifying the failure and the reasons for the failure; and (iv) certifying the amount of the costs incurred; or (b) such other certificate as is appropriate to the terms of the letter of request. (3) A Registrar shall send the certificate to the Attorney-General or, if the letter of request or a relevant Convention so requires, to the appropriate consul or other authority. 81.01 Procedure (1) An application for an order for the examination of a witness in the Territory in relation to a matter pending before a court or tribunal in a place out of the Territory may be made by a person nominated for that purpose by the court or tribunal concerned or, if no person is so nominated, by the Solicitor for the Northern Territory with the consent of the Attorney-General. (2) The application shall be made by originating motion not joining a person as a defendant and shall be supported by affidavit to which shall be exhibited the letter of request, certificate or other document pursuant to which the application is made and, if that document is not in the English language, a translation in that language. Supreme Court Rules 1987 317 81.02 Examiner The Court may make an order for the examination of the witness before a fit and proper person nominated by the person making the application or such other qualified person as it appoints (in this Order called the examiner). 81.03 Conduct of examination (1) An examination under this Order shall be conducted in accordance with this rule, unless the Court otherwise orders. (2) Subject to rules 81.04, 81.05 and 81.06, rules 41.02 to 41.10 inclusive apply to the examination as if: (a) the matter pending before the court or tribunal concerned were a proceeding in the Court; (b) the order for the examination were made under rule 41.01(1)(a) in that proceeding; and (c) where the examiner is a Judge or an Associate Judge, an order were made under rule 41.01(1)(a) for the examination of a person before a Judge or an Associate Judge. 81.04 Attendance of non-party Where the person on whose application an order is made under this Order is not a party to the matter pending before the court or tribunal concerned, the examiner may permit that person and his legal advisers to attend the examination. 81.05 Deposition and exhibits (1) Subrules (4) and (5) of rule 41.08 do not apply to an examination under this Order. (2) The examiner shall send the deposition to a Registrar. (3) Where the examiner receives an exhibit on the examination, he shall, on the conclusion of the examination, return the exhibit to the person producing it, unless the person consents to its retention by him. (4) Where the examiner retains an exhibit under subrule (3), he shall send it to a Registrar together with the deposition. Supreme Court Rules 1987 318 81.06 Certificate On receipt of a deposition taken under this Order a Registrar shall: (a) give a certificate sealed with the seal of the Court annexing and identifying the letter of request, certificate or other document from the court or tribunal requesting the examination, the order of the Court for examination, the deposition and the exhibits (if any) received from the examiner; and (b) send the certificate and the annexures to the Attorney-General or, where the letter of request, certificate or other document was sent to the Registry or Registrar by some other person pursuant to a Convention, to that other person. Chapter 1A General rules of procedure in criminal Order 81A General 81A.01 Interpretation (1) In this Chapter, unless the contrary intention appears: accused means a person: (a) who has been committed or remanded to the Court for trial or sentence or directed to be tried at the Court; or (b) in respect of whom an indictment has been presented. appeal period means the time for giving notice of appeal or notice of application for leave to appeal under section 417 of the Criminal Code and, if the time has been extended by the Court, includes that extension. court of trial has the same meaning as in section 406(1) of the Criminal Code. criminal registrar means the Sheriff and includes: (aa) an Associate Judge; and (a) the Registrar; and Supreme Court Rules 1987 319 (b) any other officer of the Court who has been assigned the duties of a criminal registrar by the Chief Justice. Director means: (a) the Director of Public Prosecutions for the Northern Territory Act 1990; or (b) the Director of Public Prosecutions for the Commonwealth Act 1983 of the Commonwealth, legal aid agency means an organisation, whether established by or under an Act or otherwise, the primary function of which is to provide legal assistance to persons free of charge, whether or not those persons actually make a payment in respect of that assistance. prison has the same meaning as in section 5 of the Prisons (Correctional Services) Act 1980. proper officer means: (a) in relation to a provision of an Act specified in subrule (2) – a person specified as the proper officer for the purposes of that provision; or (b) in any other case – an officer of the Court who is authorised to: (i) receive documents on behalf of the Court; or (ii) do an act or thing for or on behalf of the Court, the doing of which is required for the purposes of or is referred to in this Chapter. trial includes a plea hearing. (2) The proper officer of the Court for the purposes of: (a) sections 11(4)(b), 13(4)(b), 21, 25 and 96 of the Sentencing Act 1995 – is the Associate Judge, the Registrar or the Sheriff; (b) section 43(8) of the Sentencing Act 1995 – is the associate to the Judge who made the order or the Sheriff; Supreme Court Rules 1987 320 (c) section 99(4) of the Sentencing Act 1995 – is the associate to the Judge who made the order; (d) section 99(6)(a) and (b) and (7) of the Sentencing Act 1995 – is the Registrar or the Sheriff; and (e) section 139 of the Local Court (Criminal Procedure) Act 1928 – is the Registrar and any person employed in the Registry of the Court. (3) A reference in this Chapter to a Form of a particular alphanumeric designation means the form with that designation as approved by the Chief Justice and published on the Court's website. 81A.02 Application (1) This Chapter applies to a proceeding in the Court relating to its criminal jurisdiction. (2) This Chapter does not apply to any matter respecting an appeal. 81A.02A Authority of Associate Judge in criminal proceedings (1) Subject to these Rules, an Associate Judge may exercise the powers and authority of the Court: (a) in relation to a matter on an arraignment day as mentioned in rule 81A.14; and (b) under the Bail Act 1982. 81A.03 Dispensing with compliance The Court may dispense with compliance with a requirement of this Chapter, either before or after the occasion for compliance arises. 81A.04 Time Rules 3.01, 3.02 and 3.03, with the necessary changes, apply for the purposes of this Chapter. 81A.05 Private practitioner acting for accused to notify Court (1) Subject to subrule (2), a legal practitioner who is engaged to act for an accused in a proceeding must notify the Court as soon as reasonably practicable after beginning to act for the accused. (2) Subrule (1) does not apply: (a) to a person who practises solely as a barrister; or Part 2 Filing, sealing and inspection of court documents Supreme Court Rules 1987 321 (b) to a legal practitioner who is an employee of a legal aid agency and who is acting on behalf of the accused. Part 2 Filing, sealing and inspection of court documents 81A.06 How document is filed A document in a proceeding is to be filed: (a) in the Registry where the proceeding commenced; or (b) with the proper officer of the Court. 81A.07 Place of filing (1) Documents in respect of a proceeding in Darwin are to be presented in the Registry at Darwin for filing. (2) Documents in respect of a proceeding in Alice Springs are to 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 the proper officer. (4) Despite subrules (1) and (2), if 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 81A.08 Date of filing The Registrar or proper officer must endorse the date and time of filing on every document filed. 81A.09 Inspection of documents (1) When the Registry of the Court is open, a person may inspect and obtain a copy of a document filed in a proceeding that is part of the record of proceedings of a trial within the meaning of rule 81A.39. (2) Despite subrule (1): (a) a person may not inspect or obtain a copy of a document that the Court has ordered remain confidential; and (b) a person who is not a party may not without leave of the Court inspect or obtain a copy of a document that in the opinion of a Registrar ought to remain confidential to the parties. Supreme Court Rules 1987 322 81A.10 Service Subject to this Chapter, if a document referred to in this Chapter is required to be served, service of the document is to be effected by: (a) subject to paragraph (c), if the provision requiring service of the document specifies a person on whom the document is to be served – serving personally in accordance with rule 6.03(1) on the person a signed and sealed copy of the document; (b) subject to paragraph (c), if the provision requiring service of the document does not specify a person on whom the document is to be served – by serving personally in accordance with rule 6.03(1) on each person who is affected by the application to which the document relates and is entitled to be heard a signed and sealed copy of the document; (c) if the person being served is in prison – by serving personally on the person's legal representative or on a prison officer at the prison a signed and sealed copy of the document; or (d) if the Court orders otherwise – in the manner specified by the 81A.11 Applications generally (1) Unless otherwise provided for in this Chapter, an application to the Court may be made orally. (2) If a written application is required by this rule or this Chapter to be served: (a) the form of the application is to be in accordance with Form 81A-A unless otherwise provided for in these Rules; and (b) the application is to be served, sealed and filed, together with any supporting affidavit, not later than 2 days before the hearing of the application. (3) If a written application is required by this rule or this Chapter but is not required to be served, the application is to be in accordance with Form 81A-B unless otherwise provided for in these Rules. Supreme Court Rules 1987 323 (4) A written application to the Court is required: (a) for a review of a community work order under section 38 of the (b) to vary or cancel an order conditionally suspending a sentence under section 42 of the Sentencing Act 1995; (c) for an order relating to a breach of an order suspending a sentence under section 43 of the Sentencing Act 1995; (d) for a review of a home detention order under section 47 of the (e) for a review of an indefinite sentence under section 72 or 73 of the Sentencing Act 1995; (f) to vary or cancel a hospital order under section 85 of the Sentencing Act 1995 or to discharge a hospital order and impose another sentence under section 20BU of the Crimes Act 1914 of the Commonwealth; (g) for an order relating to a breach of a hospital order under section 86 of the Sentencing Act 1995; (h) to discharge or vary the terms of a recognisance under section 20AA of the Crimes Act 1914 of the Commonwealth or to release a person from custody under section 20BC(7) of that Act; (j) to reopen proceedings under section 112(3)(b) of the (k) for an order under an Act where the application is to be in writing but the form is not prescribed; (m) in any case where the Chief Justice directs by practice direction; or (n) in any other case where the Court directs. 81A.12 Proceeding for breach of bail (1) Subject to subrule (3), a proceeding against a person for a bail offence, other than a bail offence mentioned in section 39 of the Bail Act 1982, must be commenced by filing a complaint in accordance with Form 81A-C issued by a justice of the peace. Supreme Court Rules 1987 324 (2) In addition: (a) a summons in accordance with Form 81A-D issued by a justice of the peace must be served on the person in accordance with rule 81A.10; and (b) an affidavit of service of the summons in accordance with Form 81A-D must be filed before the hearing of the bail offence. (3) If a person is arrested and brought before the Court under section 38 of the Bail Act 1982, a complaint in accordance with Form 81A-C issued by a justice of the peace must be filed before the hearing of the bail offence is completed. (4) In this rule: bail offence, see section 37B(1) of the Bail Act 1982. 81A.14 Arraignments (1) Except in special circumstances, the Director must present an indictment to the Court in respect of an accused on the first occasion on which the accused is required to appear in court. (2) If suitable arrangements for a videoconferencing link between the Court and a prison can be made, an accused who is on remand at the prison may be present by means of that link at an arraignment day after he or she is committed for sentence or trial. (3) Despite subrule (2), if an accused is on remand, the accused, his or her legal representative or the Director may request that the accused attend arraignment day in person and the Court may order that the accused so attend. (4) An accused who is present at arraignment day by means of a videoconferencing link is not to be required to plead. (5) If a matter before the Court on an arraignment day has been allocated a date for trial or hearing of submissions on a point of law or evidence, the Court may confirm, change or vacate that date. (6) In addition to any other powers that the Court has in relation to a matter on an arraignment day, the Court has the powers and functions of a Judge at a pre-trial hearing. Supreme Court Rules 1987 325 81A.15 Fixing time for pre-trial conference As soon as practicable after becoming aware that an accused has been committed for trial or sentence or an ex officio indictment has been laid, a criminal registrar must: (a) file the notice of committal for trial or sentence or notice of the ex officio indictment, as the case may be; (b) fix a time and date for a pre-trial conference; and (c) not less than 14 days before the date fixed for the conference, notify: unrepresented, the accused, of the time and date of the conference. 81A.16 Pre-trial conference (1) A pre-trial conference: (a) is to be conducted by a criminal registrar; (b) is to be attended by: unrepresented, the accused; and (c) may be conducted by teleconference or videoconference. (2) At a pre-trial conference: (a) for the expeditious conduct of the proceedings, the criminal registrar may enquire into a matter specified in Schedule 2; (b) the Director and the accused person or his or her legal representative are to be prepared to answer questions and provide information to the criminal registrar on the matters specified in Schedule 2; and Supreme Court Rules 1987 326 (c) the Director must, subject to subrule (3): (i) give notice of the name of each person who may be called as a witness for the prosecution at the trial and whose statement has not been provided to the accused or who was not called to give evidence at the committal (ii) give notice of the substance of the evidence proposed to be adduced from each person referred to in subparagraph (i), either by providing a copy of a statement made by the witness or otherwise; (iii) if the Director has not already done so – comply with sections 116(2) and 139 of the Local Court (Criminal Procedure) Act 1928; (iv) provide to the criminal registrar the information the criminal registrar reasonably requires in relation to the availability of each witness for the prosecution; and (v) notify the criminal registrar and the accused person's legal representative or, if the accused is unrepresented, the accused, of the name of a potential witness for the prosecution whose deposition the prosecution proposes to apply to tender in evidence and the grounds of the proposed application. (3) The Director does not have to comply with subrule (2)(c)(i) or (2)(c)(v) in respect of a witness if he or she is satisfied that it is not in the interests of the witness's personal safety to comply with that subrule. (4) Anything said at a pre-trial conference by or on behalf of the prosecution or an accused, or a failure by the prosecution or an accused or his or her legal representative to answer a question at a pre-trial conference, is not to be used in the trial or made the subject of comment at the trial. (5) Subrule (4) does not preclude an accused from relying at the trial on an indication of an intention to plead guilty given at a pre-trial 81A.17 Powers of criminal registrar at pre-trial conference (1) At a pre-trial conference the criminal registrar may: (a) subject to subrule (2), allocate a trial date to a matter, either as a head trial or as a back-up trial, which date may be confirmed by a Judge at the next arraignment day or at some Supreme Court Rules 1987 327 other date; (b) fix a time and date for the hearing of a plea or for a mention before a Judge; (c) adjourn the pre-trial conference for further hearing by the criminal registrar; (d) allocate a hearing date to a matter for a hearing before the jury is empanelled on a point of law or admissibility of evidence, which date is to be confirmed by a Judge at the next arraignment day or at some other date; or (e) adjourn the pre-trial conference for a pre-trial hearing by a (2) A criminal registrar may allocate a date under subrule (1)(a), (b) or (d) even if the accused or his or her legal representative does not certify that the accused will be ready to proceed on the matter on that date. (3) If, at a pre-trial conference, the criminal registrar is of the opinion (a) the trial of the matter is likely to exceed the length of a criminal sitting; (b) additional time, other than that presently allocated for the trial of criminal matters, will be needed for the trial of the matter; (c) the trial of the matter is urgent; (d) the accused is not legally represented and intends to conduct his or her own defence at the trial; or (e) there is any other reason for doing so, the criminal registrar must adjourn the pre-trial conference for a pre-trial hearing. (4) If the criminal registrar determines that a pre-trial hearing is to be held, he or she must allocate a date for the hearing, which date is to be confirmed by a Judge. (5) At a pre-trial conference, the criminal registrar may, with the consent of the Director and the accused, make an order for the inspection or copying of documents in the custody of the prosecution or in the custody of the Court. Supreme Court Rules 1987 328 81A.18 Pre-trial hearing (1) A pre-trial hearing: (a) is to be conducted by a Judge in open court; (b) is to be attended by: unrepresented or if the Court determines, the accused; and (c) may be conducted by teleconference or videoconference. (2) At a pre-trial hearing, the Court may: (a) ask any questions it considers necessary; (b) give directions it thinks fit with respect to the preparation for trial, readiness for trial or conduct of the trial; and (c) make any order, whether by consent or otherwise, for the expeditious conduct of the trial. (3) Anything at a pre-trial hearing said by or on behalf of the prosecution or an accused, or a failure by the prosecution or an accused or his or her legal representative to answer a question at a pre-trial hearing, is not to be used in the subsequent trial or made the subject of comment at the trial. (4) Subrule (3) does not preclude an accused from relying at the trial on an indication of an intention to plead guilty given at a pre-trial 81A.19 Tendering documents at pre-trial conference or pre-trial hearing (1) If: (a) a party intends to tender a document at a trial; and (b) the criminal registrar conducting the pre-trial conference or the Judge conducting the pre-trial hearing, as the case may be, is satisfied that it is appropriate in the circumstances, the party may produce the document at the pre-trial conference or pre-trial hearing to be marked as a preliminary exhibit. Supreme Court Rules 1987 329 (2) A party producing a preliminary exhibit must ensure that a copy of the exhibit is served upon each party before or at the time it is tendered at the pre-trial conference or pre-trial hearing. (3) A preliminary exhibit: (a) is to be placed in the custody of the Court with a number of copies of the exhibit sufficient for the use of the trial Judge and the jury; (b) is to be marked as a preliminary exhibit by the criminal registrar or Judge's associate, as the case may be; and (c) is not to be taken to be evidence until admitted into evidence at the trial. 81A.20 Definition In this Part, at risk includes at risk of suicide or any other significant risk to physical or mental health. 81A.21 Duty to disclose risk If: (a) there is information available to a prosecutor that the accused may be at risk if remanded into custody or committed to a prison; or (b) the accused's legal representative forms the opinion that the accused may be at risk if remanded into custody or committed to a prison, the prosecutor or legal representative must disclose the information or opinion to the Court as soon as possible. 81A.22 Court may order disclosure to Sheriff and officer in charge of prison If: (a) information or an opinion has been disclosed to the Court under rule 81A.21; or (b) there is material before the Court upon which the Court may conclude that the accused may be at risk if remanded into custody or committed to a prison, Supreme Court Rules 1987 330 and the accused is to be remanded or committed, the Court may order that the information, opinion or material disclosed be brought to the attention of the Sheriff and the officer in charge of the prison to which the accused is to be remanded or committed. 81A.23 Sheriff to be informed of and explain order (1) If an order has been made under rule 81A.22, the Court must as soon as possible inform the Sheriff of the making of the order. (2) After receiving notice of the making of an order under subrule (1), the Sheriff must: (a) write out the order and deliver it to the Judge for signature; (b) attach to a sealed copy of the order the relevant transcript of the proceedings and any other document the Court ordered to be attached to the order; (c) forward a sealed copy of the order, whether by facsimile or otherwise, to the officer in charge of the prison, together with the attachments referred to in paragraph (b); (d) ensure that the terms of the order are explained to each Deputy Sheriff, and to each prison officer, into whose custody the prisoner is to be delivered; (e) forward a sealed copy of the order, together with the attachments referred to in paragraph (b), to each prison officer into whose custody the prisoner is to be delivered; and (f) ensure that the prisoner is not left unsupervised while in the custody of the Court. 81A.24 "At risk" to be written on warrants If an order is made in accordance with rule 81A.22, a warrant relating to the custody of the person who is or is to become a prisoner is to be stamped with the words "AT RISK" in large letters. 81A.25 Subpoenas Order 42 applies to a proceeding to which this Chapter applies. Supreme Court Rules 1987 331 81A.26 Evidence by videoconferencing (1) Evidence may be given by way of a videoconferencing link: (a) on the hearing of a guilty plea; (b) on the hearing of an application in pursuance of section section 189 of the Evidence (National Uniform Legislation) Act 2011; or (c) at the trial of an accused. (2) A submission in relation to evidence given by way of a videoconferencing link: (a) on the hearing of a guilty plea; or (b) on the hearing of an application in pursuance of section 189 of the Evidence (National Uniform Legislation) Act 2011, may be heard by way of a videoconferencing link. (3) If the Director or the accused intends to adduce evidence by means of a videoconferencing link, he or she must, not later than 4 weeks before the date fixed for the hearing or trial of the accused: (a) give notice to the other party or the other party's legal representative of his or her intention; (b) file a copy of the notice; and (c) deliver a copy of the notice to the trial Judge's associate or to the criminal registrar. (4) A notice under subrule (3) is to specify: (a) the name of each witness who is to be called; (b) the proposed time of the videoconference; and (c) the anticipated duration of the witness's evidence-in-chief. (5) A party to whom a notice under subrule (3) has been given may, not later than 7 days after receiving the notice, object to the proposal contained in the notice, by filing in the Registry an objection in writing. (6) The objection is to be served on the other party not later than 14 days before the trial or hearing at which the evidence is proposed to be adduced. Supreme Court Rules 1987 332 (7) An objection is to be dealt with by the trial Judge. (8) The party proposing to adduce evidence by means of a videoconferencing link must arrange and pay for the booking of all necessary facilities and other associated costs and expenses. (9) If an objection has not been filed within the period referred to in subrule (5), the proposal to adduce evidence by means of a videoconferencing link is to be taken to have been consented to by both parties. (10) If it is proposed to show to the witness whose evidence is being given by way of a videoconferencing link a document in the course of the examination-in-chief or cross-examination, the party proposing to show the document must provide a copy of the document to the trial Judge's associate in sufficient time to enable the document to be transmitted or sent to the place where the witness will be giving his or her evidence. (11) A document transmitted or sent in accordance with subrule (10) is to be kept in a sealed envelope and not shown to the witness or any other person until counsel for the party proposing to show the document requires the witness to be shown the document while the witness is giving evidence. 81A.27 Victim impact statements and victim reports For the purposes of section 106B(8) of the Sentencing Act 1995: (a) in the case of a written victim impact statement or report – the copy of the statement or report; or (b) in the case of an oral victim impact statement or report – the written or oral summary of its contents, is to be provided to the offender not later than 7 days before the date of the hearing of the plea for sentence. 81A.27A Special hearing If the prosecution intends to elect under section 21B(2)(b) of the Evidence Act 1939 to present the whole of the evidence of a witness by video tape or other audio-visual means: (a) the prosecution must give notice of its intention to the accused and the Court as soon as reasonably practicable after the accused has been committed for trial; and Supreme Court Rules 1987 333 (b) the criminal registrar must allocate a date for the special hearing; and (c) to the extent possible, the Judge allocated to conduct the special hearing must be the Judge allocated to conduct the trial; and (d) the Registrar must ensure the recording equipment necessary for the special hearing is available and reserved for the 81A.27B Accused to plead At the commencement of the special hearing, the accused must be arraigned and he or she must plead guilty or not guilty. 81A.27C Objection to admissibility of evidence (1) The Judge conducting the special hearing must hear and decide all objections to the admissibility of evidence at the time of the special (2) An objection can be reactivated at the time of trial (or re-trial) with leave of the Judge conducting the proceedings. (3) If an objection is upheld in relation to the admissibility of evidence that has been recorded, the recording must be edited before being presented at the trial. 81A.27D Special hearing may be re-opened (1) A special hearing stands adjourned at the completion of the recording of evidence. (2) If the Court considers it necessary in the interests of justice, the Court may re-open the special hearing of its own volition or on application by the prosecution or defence. (3) The special hearing may be re-opened at any time before the jury retires to consider its verdict (including in a re-trial). (4) Unless the Judge otherwise orders, the prosecution and defence can question the witness at a re-opened special hearing only in respect of any issue that gave rise to the re-opening. (5) If the Judge who presided over a special hearing was not the trial Judge, the re-opened hearing may be conducted by another Judge whether or not that Judge is the trial Judge. Supreme Court Rules 1987 334 81A.27E Duplicate of recording to be made (1) At the completion of the special hearing, the Sheriff must make a duplicate copy of the recording. (2) The original recording must be marked as such and given to the Registrar for safe-keeping. (3) The duplicate recording must, unless required for editing in accordance with this Part, also be given to the Registrar for safe- keeping. 81A.27F Editing of recording (1) If the recording of the evidence requires editing, the Judge may make the orders that he or she thinks fit. (2) An order under subrule (1) may include an order that the duplicate tape is to be given to the prosecution to effect the editing. (3) The order may also include directions for the means by which the edited recording is to be validated as correctly edited for use at the trial. (4) The edited version of the recording must be marked as such and, once validated, must be given to the Sheriff. (5) The Sheriff must make a duplicate copy of the edited tape and mark the duplicate as "trial copy". (6) The edited recording and the trial copy, along with the duplicate unedited recording (if such a version still exists) must be given to the Registrar for safe-keeping. 81A.27G Access to recording (1) Each version of the recording of a special hearing is the property of the Court and, subject to the necessity to edit in accordance with this Part, must remain in the custody of the Court at all times. (2) No copies of the pre-recorded evidence are to be given to the parties (except for editing in accordance with rule 81A.27F), but the prosecution and defence may, on request, view the trial copy under the supervision of the Sheriff or Registrar. (3) The Sheriff must produce the trial copy of the recording of the special hearing at the trial. (4) The trial copy of the pre-recorded evidence must be played to the jury at the trial but not tendered as an exhibit. Supreme Court Rules 1987 335 81A.27H Transcript (1) A transcript must be made of the trial copy of the recording of the special hearing. (2) The transcript must be made available to all parties. 81A.27J Other matters (1) The Judge who conducts a special hearing may make any directions that he or she considers necessary for the efficient conduct of the trial. (2) Without limiting subrule (1), directions may include making an order under section 21A(2A) of the Evidence Act 1939. 81A.28 Discovery, inspection and preservation of property (1) If it appears that a person (other than the accused) has or is likely to have, or had or is likely to have had, in his or her possession or power a document that relates to a question likely to be raised at the trial of the accused, the Director or the accused may apply to the Court for an order that the person make discovery to the applicant of the document. (2) Documents ordered to be discovered may be discovered: (a) if the Court does not specify a method of discovery: (i) by delivering to the applicant a list of the documents prepared in accordance with rule 29.04; or (ii) by producing to the applicant the original documents for inspection; or (b) if the Court specifies a method of discovery – by that method. (3) If a document is produced to an applicant, the applicant may: (a) copy the document, including by taking a photocopy or photograph of it; or (b) request a photocopy of the document. Supreme Court Rules 1987 336 (4) If an applicant requests a photocopy of a document, the person producing the document must, at his or her option, either: (a) allow the applicant to photocopy the document at a place agreed by the parties; or (b) supply the applicant with a photocopy of the document. (5) The cost of photocopying a document is payable by the applicant. (6) If a person provides a list of documents in accordance with subrule (2)(a)(i), the person to whom the list is provided may apply to the Court for an order that: (a) the documents or some of them be produced to the applicant for inspection; and (b) the applicant pay the costs of preparing and serving the list of documents and the costs of opposing the order incurred by the person who was required to produce the document. (7) Unless otherwise ordered by the Court, an application under subrule (1) or (6) is to be supported by affidavit and the application and supporting affidavit are to be served on the person against whom discovery is sought. (8) An order under subrule (1) or (6) may be made ex parte if the applicant establishes that it is necessary to do so in the interests of justice. 81A.29 Inspection, detention and preservation of property (1) The Director or the accused may apply to the Court for an order for the inspection, detention, custody or preservation of property, including the property of the accused, that is in the possession, custody or power of another person or body. (2) An order under subrule (1) is not to be made unless it is established by the applicant that the order is necessary in the interests of justice. (3) An order under subrule (1) may authorise 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 of the property, including photographing the property; Supreme Court Rules 1987 337 (d) conduct an experiment on or with the property; or (e) observe a process in relation to the property. (4) The Court may not make an order under subrule (1) unless: (a) subject to subrule (5), the application and a supporting affidavit are served upon the person or body who or which has possession or custody of or power over the property to which the order relates; and (b) the applicant gives security for the costs and expenses of any loss or damage that may be caused to that person or body if the order is made. (5) The application and supporting affidavit are not required to be served on the person or body who or which has possession or custody of or power over the property to which the order relates if the Court is satisfied that it is necessary, in the interests of justice, to make the order ex parte. (6) If the application is for an order for the preservation of property that is: (a) a living thing; (b) of a perishable nature; or (c) likely to deteriorate or diminish in value if kept, the Court may order instead that the property be photographed or that a video recording be made of it. (7) A photograph taken or recording made of property in pursuance of an order under subrule (6) is admissible in evidence at the trial without production of the original property. (8) The Court must not make an order under subrule (6) unless a copy of the application has been served on: (a) if the application was made by the Director – the accused or his or her legal representative; or (b) if the application was made by the accused or his or her legal representative – the Director. 81A.30 Rights of person affected by ex parte orders (1) A person against whom an ex parte order under this Chapter is made may apply to the Court to set aside that order. Supreme Court Rules 1987 338 (2) An application under subrule (1) and a supporting affidavit are to be served on the person who obtained the order or his or her legal representative. (3) On the hearing of an application under subrule (1), the Court may make: (a) the orders it considers to be in the interests of justice; and (b) the orders for the costs of the application it considers Part 8 Orders made at trial or other hearing relating to exhibits and other property 81A.31 Return of preliminary exhibits A preliminary exhibit that is not to be tendered at a trial is: (a) if it was produced on behalf of the prosecution – to be returned to the custody of the prosecution; and (b) if it was produced otherwise than by the prosecution – to be returned to the custody of the person who produced it. 81A.32 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). (3) Subject to an order or direction under subrule (1), an exhibit or other item must be retained by the criminal 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) a document of a kind kept by the criminal registrar; or (b) an exhibit to which section 415 of the Criminal Code applies. Supreme Court Rules 1987 339 (5) After the conclusion of an appeal, the Registrar must return to the criminal registrar the original depositions, exhibits, indictments, plea and other documents forming part of the record of the trial that were given to the Registrar for the purposes of the appeal. 81A.33 Court of trial may permit conditional release of documents etc. The court of trial may permit the conditional release of a document, exhibit or other item tendered at the trial to a party on receipt of an undertaking by the party to return the document, exhibit or item: (a) on a date fixed by the court of trial; or (b) 7 days after lodgement of a notice of appeal, whichever is the earlier. 81A.34 Release of documents etc. tendered in pursuance of section 189 of Evidence (National Uniform Legislation) Act 2011 On the determination of a question under section 189 of the Evidence (National Uniform Legislation) Act 2011, the trial Judge may immediately release to a party a document, exhibit or other item tendered for the purposes of that section without requiring an undertaking by the party to return the document. 81A.35 Destruction of uncollected documents etc. The court of trial may order the destruction of documents, exhibits and other items tendered at the trial that are uncollected or unable to be returned as at the end of 6 months after: (a) the appeal period expires; or (b) if an appeal is lodged – the date on which the Court of Criminal Appeal delivers judgment or the appeal is withdrawn. 81A.36 Custody of property of person found guilty If the trial Judge makes an order for the restitution of property or the payment of compensation by a person found guilty at the trial, the Judge must give directions for the custody, during the appeal period, of money or other valuable property belonging to the person (a) was taken from that person when arrested; or (b) is in the possession of the prosecution at the date the person was found guilty or the date of application for leave to appeal. Supreme Court Rules 1987 340 81A.37 Order for security to be given If the trial Judge makes an order for the payment of money and suspends the order, the Judge may direct that security is to be given to the satisfaction of the person in whose favour the order is 81A.38 Consequential orders (1) If: (a) a person has been found guilty of an offence and the trial Judge has made orders consequential on that finding; and (b) an appeal is instituted: (i) under Chapter 2 by the person found guilty; or (ii) under section 414 of the Criminal Code by a Crown Law Officer within the meaning of the Code, the court of trial may, on written application: (c) make orders suspending or refusing to suspend the (d) make orders or give directions in relation to the effect of the or (e) make orders or give directions in relation to the vesting, preservation or disposal of the property to which the consequential orders relate, on the terms the court thinks fit. (2) An application under subrule (1) is to be in accordance with Form 81A-E. (3) If, on a finding of guilt, the trial Judge orders under a law in force in the Territory that any property, matter or thing be destroyed or forfeited, subject to subrule (1)(e), the order is suspended until: (a) the appeal period expires; or (b) if an appeal is lodged – the period of 28 days after the determination of the appeal expires. (4) If: (a) a person has been found guilty of an offence; and Supreme Court Rules 1987 341 (b) a claim may be made or proceedings taken against that person or another person as a result of that finding, that claim may not be made or those proceedings taken until: (c) the appeal period expires; (d) if an appeal is lodged – the period of 28 days after the date of the determination of the appeal expires; or (e) after a later date ordered by the trial Judge. (5) A person affected by an order to which this rule applies, may, with the leave of the Court of Criminal Appeal, be heard on the final determination of an appeal before the order is varied or annulled by that Court. 81A.38A Submissions on sentencing or sentencing by videoconference by the Judge's own motion (1) After a person has entered a guilty plea or has been found guilty following a trial, the Judge, on his or her own motion, may do either or both of the following by means of a videoconference: (a) hear submissions on sentencing; (b) sentence the person. (2) If a videoconference is held under subrule (1): (a) the Court must provide and meet the expenses of the facilities necessary to enable the videoconference; and (b) the Court must notify the parties or their solicitors of the place where they may attend by use of those facilities. (3) A party seeking to tender an item as an exhibit during a hearing held under subrule (1) must arrange for the item to be provided to the Court in time for the hearing. For example, a party may fax or email a document to the Court prior to the hearing date. Supreme Court Rules 1987 342 81A.38B Submissions on sentencing or sentencing by videoconference by application (1) With the permission of the Judge, a party may do either or both of the following by means of a videoconference: (a) attend a hearing to make submissions on sentencing; (b) attend the sentencing. (2) A party who has been granted permission under subrule (1) must provide and meet the expenses of the facilities necessary to enable them to attend by videoconference, unless the Judge directs otherwise. (3) A party who attends the hearing by videoconference and seeks to tender an item as an exhibit must arrange for the item to be provided to the Court in time for the hearing. For example, a party may fax or email a document to the Court prior to the hearing date. 81A.39 Record of proceedings and recording of orders (1) For the purposes of section 428 of the Criminal Code, the record of the proceedings of a trial consists of: (a) the indictment; (b) subject to subrules (4) and (5), the official tape recordings of the proceedings of the trial made by persons approved by the Chief Justice; and (c) the official transcript, made by persons approved by the Chief Justice, of the official tape recordings. (2) An official transcript is to be made of the evidence of each witness called to give evidence at a trial. (3) The Court or a Judge may order that an official transcript of any other part of the proceedings be made. (4) The trial Judge may at any time correct an official transcript of an official tape recording if he or she is satisfied that it does not correspond with the official tape recording. Supreme Court Rules 1987 343 (5) Once an official transcript has been made, the official tape recording of the part of the proceedings transcribed ceases to be part of the record of the proceedings of the trial. (6) All official tape recordings of a trial cease to be part of the record of the proceedings of the trial and may be erased or destroyed: (a) if an appeal has not been lodged – after 6 months after the appeal period has expired; or (b) if an appeal has been lodged – after 28 days after the determination of the appeal. (7) A person approved by the Chief Justice may correct the official transcript of the proceedings of a trial by reference to the official tape recording of the proceedings, whether or not the tape recordings have ceased to be official tape recordings under subrule (5) or (6). (8) A Judge or his or her associate must note on the back of the indictment or on a piece of paper attached to the back of the indictment: (a) the accused's plea or pleas; (b) the verdict of the jury, if any; (c) the recording of a conviction, if any; (d) the sentence of the Court, if any; (e) the order finally disposing of the indictment; (f) any other order made by the Court after a plea of guilty has been entered or the verdict of the jury has been taken; and (g) the amount of the levy payable by the accused under Part 6 of the Victims of Crime Assistance Act 2006. (9) The Judge or associate must, in respect of each notation made under subrule (8): (a) include the date of the plea, verdict, conviction, sentence, order or levy; and (b) sign and date the notation. Supreme Court Rules 1987 344 (10) In the case of an order in relation to a criminal trial to which subrule (8) does not apply: (a) the order is to be recorded on the back of the application and then filed; or (b) if there is no application – a written note of the order is to be made by the Judge or his or her associate and then filed. (11) A notation made in accordance with subrule (8), (9) or (10) forms part of the record referred to in section 428 of the Criminal Code. 81A.40 Certificate of conviction (1) A proper officer must not issue: (a) a certificate of conviction of a person convicted in the Court; (b) a certificate of conviction of a person convicted in the Local Court under Part V, Division 2 of the Local Court (Criminal Procedure) Act 1928; or (c) a certificate under section 21B of the Crimes Act 1914 of the Commonwealth, until: (d) the appeal period expires; or (e) if an appeal is lodged – after the determination of the appeal. (2) A person may apply, not earlier than 28 days after a conviction is recorded, to a proper officer for a certificate of conviction in relation to that conviction. (3) The proper officer must issue a certificate of conviction if the application is accompanied by a certificate, in the form approved by the Registrar and signed by the Registrar and certifying that no appeal has been lodged against the conviction. (4) A certificate of conviction is to be in accordance with Form 81A-F. (5) In this rule, appeal includes an application for leave to appeal. Supreme Court Rules 1987 345 81A.41 Form of warrants, orders etc. (1) A warrant of commitment: (a) to a prison is to be in accordance with Form 81A-G; and (b) to a detention centre within the meaning of the Youth Justice Act 2005 is to be in accordance with Form 81A-H. (2) A copy of a warrant of commitment to a prison or a detention centre is to be given by the Sheriff to the Director and to the offender or the offender's legal representative. (3) If the Court imposes a sentence of imprisonment but directs that it be wholly or partly suspended without requiring any security, the Sheriff must prepare a notice in accordance with Form 81A-I and give it to the Director and the offender or the offender's legal representative. (4) A recognisance release order under the Crimes Act 1914 of the Commonwealth or an order to release a person on his or her giving security is to be in accordance with Form 81A-J or 81A-K, respectively, and a copy of the order is to be given by the Sheriff to the Director and the offender. (5) A community work order is to be in accordance with Form 81A-L and a copy of the order is to be given by the Sheriff to the Director and the offender. (6) A home detention order is to be in accordance with Form 81A-M and a copy of the order is to be given by the Sheriff to the Director and the offender. (7) A warrant of remand is to be in accordance with Form 81A-N. (8) A warrant of arrest for non-payment of restitution in accordance with an order is to be in accordance with Form 81A-O. (9) A warrant under section 39 of the Bail Act 1982 is to be in accordance with Form 81A-P. (10) A warrant for failure to comply with a recognisance release order under the Crimes Act 1914 of the Commonwealth is to be in accordance with Form 81A-Q. (11) A warrant of commitment for non-payment of a fine is to be in accordance with Form 81A-R. (12) A summons under section 39(2) or 48(2)(a) of the Sentencing Act 1995 is to be in accordance with Form 81A-S. Supreme Court Rules 1987 346 (13) An information under section 48(2) of the Sentencing Act 1995 is to be in accordance with Form 81A-T. (14) An order requiring a prisoner to be removed from a prison or police prison to another prison or police prison or to be produced to the Court or such other place as is required is to be in accordance with Form 81A-U. (15) A hospital order under section 80 of the Sentencing Act 1995, a treatment order under section 83 of that Act or a hospital order under section 20BS of the Crimes Act 1914 of the Commonwealth is to be in accordance with Form 81A-V. (16) A residential or passport order under section 99 of the Sentencing Act 1995 or section 22 of the Crimes Act 1914 of the Commonwealth is to be in accordance with Form 81A-W. (17) An order under section 19B of the Crimes Act 1914 of the Commonwealth is to be in accordance with Form 81A-X. (18) An order releasing a person from custody, whether subject to conditions or not, is to be in accordance with Form 81A-Y. (19) An order under section 20BC(2) of the Crimes Act 1914 of the Commonwealth is to be in accordance with Form 81A-Z. (20) An order under section 20BJ(1) or (4) of the Crimes Act 1914 of the Commonwealth is to be in accordance with Form 81A-ZA. (21) A psychiatric probation order made under section 20BV of the Crimes Act 1914 of the Commonwealth is to be in accordance with Form 81A-ZB. (22) A program probation order made under section 20BY of the Crimes Act 1914 of the Commonwealth is to be in accordance with Form 81A-ZC. (23) A notice to show cause under section 93(3) of the Sentencing Act 1995 is to be in accordance with Form 81A-ZD. (24) A warrant for failure to comply with an order for payment of compensation is to be in accordance with Form 81A-ZE. Supreme Court Rules 1987 347 Order 82 Rules for appeals 82.01 Definitions In this Chapter: civil appeal means an appeal in the civil jurisdiction. court of trial, see section 406(1) of the Criminal Code. court or tribunal below means the court, tribunal, person or body whose decision is being appealed from. criminal appeal means an appeal in the criminal jurisdiction. cross-appellant means a respondent who appeals from the decision being appealed from by the appellant. decision includes a judgment. file means to file in the Registry. Notes for rule 82.01 1 Other terms are also defined in the Act. 2 The definitions in rule 1.09 also apply to this Chapter, see rule 82.03. 82.02 Application to appeals (1) This Chapter applies to all appeals made under a law of the Territory to the following: (a) the Supreme Court constituted as a single judge or the Full (b) the Supreme Court constituted as the Court of Appeal under Part III of the Act; (c) the Supreme Court constituted as the Court of Criminal Appeal under section 407 of the Criminal Code. (2) To avoid doubt, an appeal includes a civil appeal or criminal appeal. Supreme Court Rules 1987 348 82.03 Operation of Chapter 1 The definitions and rules in Chapter 1 apply to any matter respecting an appeal not otherwise provided for in this Chapter, with the necessary changes and to the extent that they are consistent with this Chapter. 82.04 Filing and service of notice of appeal (1) To commence an appeal, the appellant must file a notice of appeal. (2) A notice of appeal must be filed and served: (a) within any period required for the commencement of the appeal under an Act; or (b) if no period is required under an Act – within 28 days after the day the decision being appealed from is made. (3) A notice of appeal must be served on: (a) all respondents; and (b) any other person known by the appellant to be directly affected by the relief sought by the appellant. Note for rule 82.04 The necessary respondents to an appeal are identified in rule 82.26(1). The Court may join other persons as respondents under rule 82.26(2) and (3). 82.05 Contents of notice of appeal (1) In a civil appeal, the notice of appeal must include or attach the (a) a brief but specific statement of the decision appealed against; (b) any formal order or other document comprising or setting out the decision being appealed against, and any written reasons for the decision; (c) a statement whether the appeal is from the whole or part only of the decision and, if part only, a description of what part; (d) the grounds of the appeal; (e) the judgment, relief or decision sought by the appellant. Supreme Court Rules 1987 349 (2) In a criminal appeal, the notice of appeal must include or attach the (a) a brief but specific statement of the decision appealed against; (b) any formal order or other document comprising or setting out the decision being appealed against, and any written reasons for the decision; (c) a statement whether the appeal is against a finding of guilt or a special finding referred to in section 410(a) of the Criminal Code; (d) for an appeal under section 410(b) of the Criminal Code on a certificate of the Judge of the court of trial – a copy of the certificate; (e) for an appeal under section 414(1) of the Criminal Code – a statement whether the appeal is from the whole or part only of the decision and, if part only, a description of what part; (f) the grounds of the appeal; (g) the judgment, relief or decision sought by the appellant. 82.06 Amendment by supplementary notice (1) An appellant may amend the notice of appeal by filing and serving a supplementary notice of appeal. (2) A notice of appeal must not be amended after the directions hearing under rule 82.12, without leave of the Court. 82.07 Competency of appeal (1) A respondent may, on summons, apply at any time for an order dismissing an appeal as incompetent. (2) On the hearing of a summons under subrule (1), the burden of establishing the competency of the appeal is on the appellant. (3) If an appeal is dismissed by the Court as incompetent, without an application by the respondent under subrule (1): (a) the respondent must not receive any costs of the appeal, unless the Court otherwise orders; and (b) the Court may order that the respondent pay the appellant's costs of the appeal proving useless or unnecessary. Supreme Court Rules 1987 350 82.08 Cross-appeal (1) A respondent who wishes to appeal from the decision being appealed from must file a notice of cross-appeal. (2) A notice of cross-appeal must be filed and served within 14 days after the day the notice of appeal is served on the respondent. (3) A notice of cross-appeal must be served on: (a) the other parties to the appeal; and (b) any other person known by the cross-appellant to be directly affected by the relief sought by the cross-appellant. (4) The notice of cross-appeal must include the following information: (a) a statement whether the cross-appeal is from the whole or part only of the decision and, if part only, a description of what part; (b) for a cross-appeal in a criminal appeal: (i) if the cross-appeal is by a person found guilty – a statement whether the cross-appeal is against a finding of guilt or a special finding referred to in section 410(a) of the Criminal Code; or (ii) if the cross-appeal is by a Crown Law Officer under section 414(1) of the Criminal Code – a description of what part of the sentence, determination, declaration or order is the subject of the cross-appeal; (c) the grounds of the cross-appeal; (d) the judgment, relief or decision sought by the cross-appellant. (5) The rules applicable to a notice of appeal apply to a notice of cross-appeal, with the necessary changes. Note for rule 82.08 The necessary respondents to a cross-appeal are identified in rule 82.26(1). The Court may join other persons as respondents under rule 82.26(2) and (3). 82.09 Notice of contention (1) A respondent must file and serve a notice of contention, not a notice of cross-appeal, if the respondent contends that a matter of fact or law was erroneously decided against the respondent, but does not seek a discharge or variation of the decision being appealed from. Supreme Court Rules 1987 351 (2) A notice of contention must be filed and served within 14 days after the day the notice of appeal is served on the respondent. (3) The respondent must give written notice to the appellant of the record of evidence or documents before the court or tribunal below, relevant to the respondent's notice of contention, for inclusion in the appellant's draft index of appeal book. 82.10 Party's submissions and list of authorities (1) Each party must prepare the following: (a) the party's written submissions; (b) the party's list of authorities. (2) The appellant must file the appellant's written submissions and list of authorities and serve them on the respondent within 28 days after the day the notice of appeal is filed. (3) The respondent must file the respondent's written submissions and list of authorities and serve them on the appellant within 14 days after the day the appellant serves the respondent under subrule (2). (4) This rule also applies to a cross-appeal, with the necessary changes. Note for rule 82.10 The form, content and length of written submissions and lists of authorities will be governed by Practice Directions. 82.11 Preparation of draft index to appeal book (1) The appellant must prepare a draft index for an appeal book that lists the documents required in an appeal book under rule 82.13(3). (2) The index must state the name and date of each document and its page number in the sequence in which it will appear in the appeal book. (3) The appellant must serve the draft index on the respondent within 28 days after the day the notice of appeal is filed. 82.12 Directions hearing (1) The Registrar must set a date for a directions hearing and inform the parties. Supreme Court Rules 1987 352 (2) At the directions hearing, the Registrar must: (a) in the case of an appeal to the Supreme Court – determine whether an appeal book is necessary; and (b) settle the index to the appeal book; and (c) settle any other matters related to the appeal book; and (d) set the hearing date; and (e) make any other necessary programming orders. (3) To settle the appeal book, the Registrar must determine the (a) the documents that should be included in the appeal book; (b) the sequence of the documents; (c) the number of copies of the appeal book required; (d) the time within which those copies are to be filed and served; (e) any other matters the Registrar considers are required for the preparation of copies of the appeal book. 82.13 Appeal book (1) The appellant must prepare an appeal book for the following appeals: (a) an appeal to the Supreme Court, whether constituted as a single judge or the Full Court, if the Registrar considers it necessary; (b) an appeal to the Court of Appeal; (c) an appeal to the Court of Criminal Appeal. Note for subrule (1)(a) The draft index under rule 82.11 is still required for an appeal to the Supreme Court even if an appeal book is not necessary. (2) An appeal book must be legible, paginated and securely fastened. (3) An appeal book consists of the following documents to the extent they are relevant to the appeal: (a) the indictment or originating process and pleadings; Supreme Court Rules 1987 353 (b) a transcript of oral evidence; (c) any affidavits before the court or tribunal below; (d) the exhibits, arranged in the order in which they were lettered or numbered as exhibits in the court or tribunal below; (e) in a civil appeal – any prior decision relevant to the decision being appealed from and the reasons for that decision; (f) in a criminal appeal: (i) a transcript of the trial Judge's directions and summing up to the jury; and (ii) a transcript of any remarks on sentence by the trial Judge; (g) the notice of appeal and any supplementary notice of appeal, cross-appeal or contention; (h) any relevant certificate required by subrule (4). (4) If a transcript is to be included in the appeal book, a certificate of the appellant and respondent must also be included in the appeal book certifying that: (a) the transcript was examined by them; and (b) any dispute regarding the transcript was resolved after consultation with the trial judge; and (c) the transcript is correct. (5) The appellant must file and serve the appeal book, as settled by the 82.14 Application of Part This Part applies in relation to the following applications: (a) an application for leave to appeal; (b) an application for an extension of time to: (i) file a notice of appeal; or (ii) apply for leave to appeal; Supreme Court Rules 1987 354 (c) an application under section 429 of the Criminal Code. 82.15 Filing and service of applications (1) An application for leave to appeal must be filed and served in the same manner and within the same time as a notice of appeal under rule 82.04. (2) An application for an extension of time must be filed and served in the same manner as a notice of appeal under rule 82.04. 82.16 Supporting documents (1) The application must be accompanied by the following: (a) the proposed notice of appeal; (b) written submissions in support of the application; (c) an affidavit deposing any fact relied on in support of the (2) The written submissions must concisely set out the following: (a) the nature of the case; (b) the questions involved; (c) in the case of an extension of time – the reasons for the delay in giving notice of appeal or applying for leave to appeal; (d) the reasons why the leave or extension should be given. Note for rule 82.16 The form, content and length of written submissions and lists of authorities will be governed by Practice Directions. 82.17 Hearing at same time as appeal (1) If an applicant wishes the hearing of the application to be deferred until the hearing of the appeal, the applicant may include a request for that purpose in the application. (2) The Court may, on request or on its own initiative: (a) order that an application be heard at the same time as the appeal; and (b) make any consequential orders that may be necessary. Supreme Court Rules 1987 355 82.18 Response to application (1) If served with an application for leave to appeal or for an extension of time, the respondent must file and serve on the applicant the respondent's written submissions. (2) Any fact relied on in opposition to the application must be set out in a supporting affidavit. (3) The submissions and any affidavit must be filed and served within 14 days after the day the application is served on the respondent. 82.19 Determination of application (1) The application may be determined on the papers by a single (2) A single Judge may refer the application to 3 Judges to determine on the papers. (3) The Judge or Judges may call for further submissions on the application from the parties. (4) Instead of determining the matter on the papers, the Judge or Judges may: (a) call for and hear oral submissions on the application; or (b) make an order under rule 82.17(2) and hear the application at the same time as the appeal. (5) Leave may be granted on any or all proposed grounds of appeal. (6) If all or part of the application is refused by a single Judge, the applicant may request that the application be determined by 3 Judges in accordance with subrules (3) to (5). (7) The request must be filed and served within 14 days after the day the applicant receives notice of the refusal by a single Judge. (8) If the Court grants the request, the application is to be determined by 3 Judges in accordance with subrules (3) to (5). (9) A single Judge who refused an application may sit as one of the 3 Judges determining the same application. 82.20 If leave granted (1) The Registrar must notify the parties if leave to appeal or an extension of time is granted. Supreme Court Rules 1987 356 (2) Subject to the order granting leave or an extension of time, the parties may proceed with the appeal in accordance with this Chapter. (3) The date the appellant is notified by the Registrar under subrule (1) is to be used for the purpose of calculating when to file and serve documents in the appeal, instead of the date the notice of appeal is filed. (4) The proposed notice of appeal filed in the application for leave to appeal or an extension of time is taken to be filed as the notice of appeal in the appeal, subject to any order of the Court. 82.21 Criminal Code certificate A certificate issued under section 410(b) of the Criminal Code may be given at the trial or within 10 days after the finding of guilt. 82.22 Consequential orders (1) The Court of Criminal Appeal may, on application, make orders or give directions under subrule (2) if: (a) a person is found guilty of an offence; and (b) the court of trial made orders consequential on that finding of guilt; and (c) an appeal is instituted by: (i) the person found guilty; or (ii) a Crown Law Officer under section 414(1) of the Criminal Code. (2) In the circumstances referred to in subrule (1), the Court of Criminal Appeal may make the following orders and directions: (a) orders suspending or refusing to suspend the consequential orders pending the determination of the appeal; (b) orders or directions in relation to the effect of the (c) orders or directions in relation to the vesting, preservation or disposition of property that is subject to the consequential orders. Supreme Court Rules 1987 357 82.23 Reservation of points of law (1) This rule applies in relation to a case stating a question of law reserved under section 408, 409 or 414(2) of the Criminal Code on the trial of a person charged with an indictable offence. (2) If the case states a question of law reserved under section 408 of the Criminal Code, the case must state: (a) whether judgment on the finding of guilt was pronounced and respited or was postponed; and (b) whether the person found guilty was committed to prison or admitted to bail or to receive judgment. (3) On receiving the case, the Registrar must: (a) set the case down for hearing on the first day on which the Court of Criminal Appeal is next appointed to sit; and (b) give a copy of the case, without delay, to: (i) the Solicitor for the Northern Territory; and (ii) the parties; and (iii) for an application under section 414(2) of the Criminal Code – the accused. (4) The Judge who signed the case may amend it at any time before argument. (5) The accused person has the carriage of the proceeding, except for an application under section 414(2) of the Criminal Code. 82.24 Failure to appear (1) If the appellant is required by a bail undertaking or bail condition to appear at the hearing of the appeal or an application but fails to appear without reasonable cause, the Court may: (a) summarily dismiss or decline to hear the appeal or application; or (b) consider the appeal or application in the appellant's absence. (2) The evidentiary burden of proving reasonable cause under subrule (1) lies on the appellant. Supreme Court Rules 1987 358 82.25 Notice under Criminal Code A notice given by the Registrar under section 426(4) and (5) of the Criminal Code may be given to a solicitor representing the appellant or respondent. 82.26 Parties (1) Each party to the proceeding in the court or tribunal below and directly affected by the relief sought in the notice of appeal or interested in maintaining the decision being appealed must be made a respondent to the appeal. (2) A person who was not a party to the proceeding in the court or tribunal below may be joined as a respondent if the person is directly affected by the relief sought in an appeal or interested in maintaining the decision being appealed from. (3) The Court may order the addition or removal of a person as a party to an appeal. (4) Despite subrule (3), a person must not be made an appellant without that person's consent. (5) A Local Court Judge whose decision is being appealed from must not be joined as a party to an appeal. 82.27 Serial numbers and seals (1) When the following documents are filed, the Registrar must allocate a serial number to them and seal them: (a) a notice of appeal; (b) an application for leave to appeal; (c) an application for an extension of time to file a notice of appeal; (d) an application for an extension of time to file an application for leave to appeal. (2) A sufficient number of copies of the documents for service and proof of service provided by the party must also be numbered and sealed. Supreme Court Rules 1987 359 (3) The serial number of the notice or application must be endorsed on each subsequent document filed in relation to that notice or 82.28 No stay of proceedings or execution (1) An appeal does not: (a) operate as a stay of proceedings or execution under the decision appealed against; or (b) invalidate an intermediate act or proceeding. (2) Subrule (1) is subject to the following: (a) any Act that provides otherwise; (b) any decision made by the court or tribunal below; (c) any direction of the Court. 82.29 Discontinuance of appeal (1) Subject to rule 97.02, an appellant may discontinue the appeal. (2) To discontinue an appeal, the appellant must file and serve a notice of discontinuance. (3) The appeal is taken to be discontinued once the notice of discontinuance is filed. (4) The filing of a notice of discontinuance by an appellant does not affect any other appellant in the appeal. (5) An appellant who discontinues an appeal under this rule, other than in a criminal matter, is liable to pay the costs of the other parties caused by that appeal. 82.30 Forms (1) Parties must use the forms published on the Court's website for any notice, application or document required or authorised to be given or filed for the purposes of this Chapter. (2) The notice, application or document must be signed in accordance with any requirements in the form. Supreme Court Rules 1987 360 Order 88 Probate and administration rules 88.01 Application (1) The Rules in this Chapter apply to all proceedings in the probate jurisdiction of the Court commenced on or after the commencement of this Chapter whether the matter is governed by the Administration and Probate Act 1969 or by the following Acts of the State of South Australia: The Administration and Probate Act, 1891, The Administration and Probate Amendment Act, 1903, The Administration and Probate Amendment Act, 1904. (2) The rules in Chapter 1 of the Supreme Court Rules 1987 apply to the practice and mode of procedure in the Court in its probate jurisdiction to the extent to which: (a) they are applicable to; (b) they are not expressly excluded by; or (c) they do not conflict with, the rules in this Chapter. 88.01.1 Validation of will (1) Subject to subrule (2), an application for the admission to probate of a document referred to in section 12(2) of the repealed Wills Act 1938 shall be supported by an affidavit setting out the grounds of the application, together with the consents in writing to the application given by all persons who may be prejudiced by the admission of the document to proof. (2) Where a person who may be prejudiced by an application referred to in subrule (1) is not sui juris or cannot be ascertained or found, or the Court is satisfied that in the circumstances it is just and expedient to do so, it may nevertheless dispense with the consent. Supreme Court Rules 1987 361 (3) An application for the admission to probate of a document referred to in section 10(2) of the Wills Act 2000 is: (a) to be made by originating motion in accordance with Form 5B or Form 5C; and (b) to be supported by an affidavit setting out the grounds of the (4) An application referred to in subrule (3) is, together with the affidavit in support of it, to be served on all persons who may be prejudiced by the admission of the document to proof. 88.02 Interpretation In this Chapter, unless the contrary intention appears: estate includes real estate and personal estate. General Rules means the rules in Chapter 1. Probate Act means the Administration and Probate Act 1969. repealed Wills Act means the Wills Act 1938 in force before re-sealing means sealing, under section 111 of the Probate Act, of a probate or letters of administration, and expressions used have the same meaning as in the Probate Act and the General Rules. 88.03 Transition (1) A proceeding for a grant or for resealing to which Part 3 applies commenced before the commencement of this Chapter, may be continued in accordance with the practice, procedure, requirements and forms in force immediately before that commencement. (2) Where a proceeding is commenced as referred to in subrule (1), the notice of address filed in the proceeding shall have effect as if it were the applicant's address for service stated in a proceeding commenced in accordance with Part 3. 88.04 Heading and title (1) This rule applies to a document in a proceeding in which the powers of the Court may be exercised by the Registrar. Supreme Court Rules 1987 362 (2) A document shall: (a) be headed "In the Supreme Court of the Northern Territory of Australia" with a reference to the Probate jurisdiction of the (b) show the Registry and the serial number of the proceeding; (c) be entitled "The estate of" with a reference to the name of the deceased, his place of residence and his occupation at the time of his death; and (d) where a grant or reseal has been made in the estate, show the number given in the Registry to that grant or reseal. (3) Rule 27.02 does not apply to a proceeding under this Chapter. 88.05 Powers of Registrar (1) In addition to the powers vested in him by the Probate Act, the Registrar may exercise the powers of the Court in and about: (a) a proceeding to which Part 3 applies; (b) settling and issuing citations; (c) appointing a litigation guardian of a person under a disability; (d) assigning a guardian to an infant under Part 4; (e) granting leave under Part 5; (f) granting an extension of a caveat or giving leave to withdraw a caveat under Part 12; (g) making orders in pursuance of Rule 88.27; (h) the withdrawal of caveats under section 49 of the Probate Act where the withdrawal is not contested; (j) a proceeding under sections 88 and 91(2) and (3) of the Probate Act and under rules 88.75 and 88.79; (k) ordering the production of an instrument under section 147 of the Probate Act; Supreme Court Rules 1987 363 (m) the revocation or rescission of grants of probate or administration where the revocation or rescission is not contested; (n) the authorization of the sale, lease or mortgage of any of the real estate as to which a person dies intestate where the gross value of the real estate does not exceed $50,000 and no objection is raised to the sale, lease or mortgage; (p) passing the accounts of executors, administrators and trustees, including allowing commission and costs in relation to accounts; (pa) an application referred to in section 12(2) of the repealed Wills Act 1938 or section 10(1) of the Wills Act 2000 where the gross value of the estate, wherever situated, does not exceed $20 000; (q) a matter which the Court refers to the Registrar; and (r) such other powers as the Chief Justice directs that he have. (2) Where the Court refers a matter to the Registrar for the exercise in respect of that matter of a power of the Court, the Registrar may exercise that power in respect of that matter. (3) In respect of a matter referred to in subrule (1) or (2), the Registrar may exercise the power of the Court under rules 2.04 and 3.02. 88.05A Application by minor for authorisation to make etc. will (1) An application under section 18 of the Wills Act 2000 for an order authorising a minor to make or alter a will, or to revoke the whole or a part of the minor's will, is to be made by originating motion in accordance with Form 5D. (2) An application referred to in subrule (1): (a) may be made by the person who is the legal guardian or the persons who are the legal guardians of the minor; and (b) is to be supported by affidavits by the minor, and by the other persons (if any) on whom the applicant relies or applicants rely, that between them specify (which includes specified in documents annexed to one or more of the affidavits) the matters referred to in section 20(2)(a), (b) and (d) to (m) (inclusive) of the Wills Act 2000 that are relevant to the Supreme Court Rules 1987 364 (3) An initial draft of the proposed will, alteration or revocation to be authorised by the order is to be annexed to the minor's affidavit. 88.05B Application for leave to apply for order regarding will of person without testamentary capacity (1) An application under section 20 of the Wills Act 2000 for leave to apply for an order authorising the making or altering of a will, or the revoking of the whole or a part of a will, for and on behalf of a person who lacks testamentary capacity is to be made by originating motion in accordance with Form 5D. (2) An application referred to in subrule (1) is to be supported by an affidavit by the applicant that specifies the information, and has annexed to it the documents, required by the Court under section 20(2) of the Wills Act 2000. (3) When the application for leave first comes before the Court, the Court must: (a) consider who are the persons who have reason to expect a gift or benefit from the estate of the proposed testator or who otherwise have a legitimate interest in the making of the application; and (b) give the directions the Court considers appropriate to ensure that adequate steps are taken to allow those persons representation at the hearing of application. (4) If the Court grants the application for leave, the application is to be taken to be, and is to proceed as if it were, an application for the order for which the Court granted the leave. 88.05C Application for order to rectify will (1) An application under section 27 of the Wills Act 2000 for an order to rectify a will is to be made by originating motion in accordance with Form 5B or Form 5C. (2) An application referred to in subrule (1) is to be served on each beneficiary under the will who is likely to be affected by the relief sought. 88.05D Application under section 18, 20 or 27 of Wills Act 2000 to be heard by Judge An application under section 18, 20 or 27 of the Wills Act 2000 is to be heard by the Court constituted by a Judge. Supreme Court Rules 1987 365 88.06 Application of Part This Part applies to a proceeding for a grant or for resealing where: (a) there is no respondent; and (b) no person is cited to see the proceeding. 88.07 Commencement of proceedings (1) A proceeding for a grant or resealing shall be commenced by application in accordance with Form 88A supported by affidavit. 88.08 Hearing (1) A proceeding under this Part: (a) may be heard: (i) in the absence of the public; and (ii) without the appearance before the Court of a person; and (b) shall be heard without an appointment being obtained for the (2) Order 46 does not apply to a proceeding under this Part. 88.09 Publication of notice of intended application (1) Notice, in accordance with Form 88B, 88C or 88D, of an intended application for a grant or for resealing shall be published in one Darwin daily newspaper and, if the deceased was resident at the date of his death in the Territory at a place more than 200 kilometres from the General Post Office, Darwin, also in a newspaper published and circulating in the district where the deceased resided. (2) A notice under subrule (1) shall state the date or dates of a will and each codicil (if any) sought to be proved or, where the document bears no date, a statement of that fact and of the approximate date, if known. (3) Where it is intended to apply to dispense with an administration bond, or with one or both of the sureties, or for reduction of the penalty of the bond, the notice under subrule (1) shall require creditors to send in their claims. Supreme Court Rules 1987 366 (4) The Court may require further advertisement. 88.10 Delay Where a proceeding for a grant: (a) is not commenced until 6 months or more after the death of the deceased; and (b) is the first proceeding for a grant, the applicant shall file an affidavit explaining the delay. 88.11 Domicile out of the Territory Where it appears, in a proceeding for a grant or for resealing, that the deceased was domiciled out of the Territory, the Court may require evidence of: (a) the domicile of the deceased; (b) the requirements of the law of the domicile as to the validity of a will made by the deceased; and (c) the law of the domicile as to the persons entitled on distribution of the estate. 88.12 Identity The Court may, in a proceeding for a grant, require proof of the identity of the deceased or of the applicant. 88.13 Renunciation (1) Where a person has renounced probate or administration, he shall not be granted representation of the deceased in another capacity. (2) A renunciation by an executor of probate may be made in accordance with Form 88E. 88.14 Evidence of attestation (a) a will does not contain an attestation clause; or (b) the attestation clause in a will indicates that the will has not been executed in the manner required by the Wills Act 2000, Supreme Court Rules 1987 367 an applicant for a grant of probate or letters of administration with the will annexed shall, with the application for a grant of probate, file an affidavit in accordance with Form 88F of one or more of the attesting witnesses as to due execution of the will. (2) Where an applicant is unable to comply with subrule (1), he shall file an affidavit explaining the reason for the inability and an affidavit by some person, other than an attesting witness, who was present when the will was executed. (3) Where an applicant is unable to comply with subrule (1) or (2), he shall furnish evidence, on affidavit, of the reason for the inability and of the identity of the signature of the testator and of the attesting witness respectively or of such other facts on which he relies as establishing that the will was duly executed. 88.15 Testator's knowledge and approval of contents (1) This rule applies where, in a proceeding for a grant, an applicant seeks to prove a will and: (a) the will appears to have been signed by a blind testator; (b) the will appears to have been signed by an illiterate testator; (c) the will appears to have been signed by another person by direction of the testator; or (d) there are circumstances which raise doubt whether the testator, at the time of execution of the will, knew and approved of the contents of it. (2) An applicant shall furnish evidence on affidavit to establish that the testator, at the time of execution of the will, knew and approved of its contents. (3) Where the evidence adduced pursuant to subrule (2) is that of an attesting witness or other person present at the time of execution, his affidavit shall state the manner in which the will was executed. 88.16 Further evidence as to execution Where, in a proceeding for a grant, the applicant seeks to prove a will and, notwithstanding that the applicant has complied with rules 88.14 and 88.15, the Court considers that there is some doubt about the execution of the will or that a circumstance in connection with the execution requires explanation, the Court may require further evidence. Supreme Court Rules 1987 368 88.17 Date of execution Where, in a proceeding for a grant, the applicant seeks to prove a will and the will is undated or there appears to be doubt as to the date on which it was executed, the Court may require evidence establishing the date of execution. 88.18 Interlineations, obliterations and alterations (a) an interlineation, obliteration or alteration appears in the will; and (b) the interlineation, obliteration or alteration has not been duly authenticated or otherwise validated, the Court may require evidence establishing whether the interlineation, obliteration or alteration was made before the execution of the will. 88.19 Documents referred to or attached (a) the will contains a reference to a document that suggests that the document may be incorporated in the will; or (b) there are marks on the will from which it appears that a document has been attached to it, the Court may require: (c) production of the document; and (d) evidence in regard to it. 88.20 Part of will paper torn off or cut off will and it appears that part of the paper on which the will was written has been torn off or cut off, the Court may require: (a) production of the part torn off or cut off; and (b) evidence in regard to it. Supreme Court Rules 1987 369 88.21 Burning, tearing or other sign of revocation (a) the appearance of the will suggests that there may have been an attempted destruction of it by burning, tearing or otherwise; or (b) there are other circumstances which suggest that the testator may have revoked the will, the circumstances shall be fully explained on affidavit. 88.22 Inoperative will will and it appears that the will is or may be inoperative or partly inoperative by reason of the executors and beneficiaries all predeceasing the testator or for another reason, the Court may require evidence: (a) as to matters relevant to whether the will is inoperative or partly inoperative; and (b) showing what persons would be entitled in distribution of the estate upon intestacy. 88.23 Evidence and documents in applications for probate (1) An application for probate shall be supported by affidavit: (a) in accordance with Form 88G, of the death of the testator; and (b) in accordance with Form 88H: and (ii) stating that the testator has left a will, the date of the will, and whether it has been revoked; and (iii) stating the date of death of the testator and his age at that date; and (iv) setting out the names and addresses of the subscribing witnesses to the will and of each executor named in the will; and (v) stating that the deceased did not marry (if that is the case) after making the will; and Supreme Court Rules 1987 370 (vi) stating that the deceased left an estate within the Territory and setting out the value of that estate, distinguishing real and personal estate, and giving a short statement of what the estate consists; and (vii) stating that the applicant is a corporation or has attained (viii) where an executor has died or has renounced probate, furnishing details of the date of his death or renunciation; and (c) in accordance with Form 88I: (i) of publication of the notice of intention to apply for probate; and (ii) of the result of search for a will of the testator deposited under Part 6 of the Wills Act 2000; and (iii) whether a caveat relating to the application has been resealing has been made in connection with the estate; and (v) stating that, before the making of the application, no election has been filed under Part VII of the Public Trustee Act 1979, or, if an election has been filed, setting out the full particulars of that election. (2) Subject to subrule (3), where an executor has renounced probate, the application shall be supported by an affidavit furnishing evidence of the renunciation. (3) Where a renunciation has been signed by the executor, the renunciation shall be filed with the application for a grant and the filing of that document shall be taken as compliance with subrule (2) without the need for an affidavit. (4) Where an executor does not join in an application for a grant and leave is sought to be reserved to him to come in and apply for probate, evidence shall be furnished that he has been served, not later than 14 days before the proceeding for grant is commenced, with notice of the intended proceeding or that he is not in the Territory or that he is an infant. Supreme Court Rules 1987 371 (5) The notice referred to in subrule (4) may be served personally or by sending the notice by registered post to the executor and obtaining from the postal authorities a written acknowledgement, purporting to be signed by the addressee, of receipt of the registered article. (6) An affidavit of an applicant stating his means of identifying the will as that of the testator shall be filed and the will shall be marked by him and by the person who witnesses the affidavit and filed with the (7) An oath in writing of the applicant, in accordance with Form 88J, administered by a person who might witness an affidavit of the applicant, shall be filed. (8) The Court may require further evidence (including evidence the testator) to be furnished, and that further documents be filed, (9) Except where section 40 of the Public Trustee Act 1979 applies, an official record of the death of the testator shall be annexed to the affidavit referred to in subrule (1)(a). (10) If there is no official record of the death of the testator, an additional affidavit shall accompany the application setting out the facts relied on to establish his death or a presumption of his death. 88.24 Evidence and documents in applications for administration (1) An application for administration shall be supported by affidavits: (a) in accordance with Form 88G, of the death of the deceased; and (b) in accordance with Form 88K: and (ii) stating that the deceased died intestate; and (iii) furnishing details of the searches and enquiries which have been made to locate a will; and (iv) establishing the status of the deceased, that is, whether the deceased died leaving a spouse, de facto partner or issue, whether at the date of death the deceased was not married or in a de facto relationship, whether a spouse or de facto partner of the deceased had died before the deceased or whether the deceased died Supreme Court Rules 1987 372 leaving a former spouse or de facto partner; and (v) stating that the deceased left an estate in the Territory, and the value of that estate, distinguishing real and personal estate and giving a short statement of what the estate consists; and (vi) setting out the relationship (if any) of the applicant to the (vii) furnishing the names and ages of the persons entitled in distribution of the estate and their relationship to the (viii) stating that the applicant is a corporation or has attained (ix) affirming that the applicant is not an undischarged bankrupt and has not assigned or encumbered his interest (if any) in the estate; and (x) furnishing details of the applicant's knowledge of claims against the estate; and (xi) stating the character in which the person making the application claims to be entitled to a grant and the truth of that statement; and (xii) if the applicant is a creditor, stating that fact and to what amount, the particulars of his debt and the evidence in support of the claim; and (c) in accordance with Form 88I: (i) of publication of the notice of intention to apply for administration; and (ii) of the result of search for a will of the deceased deposited under Part 6 of the Wills Act 2000; and (iii) whether a caveat relating to the application has been resealing has been made in connection with the estate; and Supreme Court Rules 1987 373 (v) showing that Division 4A of Part III of the Probate Act does not apply to or in relation to the estate of the (vi) stating that, before the making of the application, no election has been filed under Part VII of the Public Trustee Act 1979, or, if an election has been filed, setting out the full particulars of that election. (2) Where the grant is applied for by fewer than all the persons who are in the Territory and are entitled to a grant of administration, the application shall be supported by: (a) the consent, in accordance with Form 88L, of each person entitled to a grant but not applying for the grant, to the grant being made to the applicant, with an affidavit in accordance with Form 88M verifying the consent endorsed on the document containing the consent; or (b) an affidavit as to service, not later than 14 days before the proceeding is commenced, on each of those persons whose consent to the grant is not filed, of notice of intention to make the application. (3) The notice referred to in subrule (2)(b) may be served personally or by sending the notice by registered post to the person to be served and obtaining from the postal authorities a written acknowledgement, purporting to be signed by the addressee, of receipt of the registered article. (4) Where the Registrar orders a person to enter into a bond under section 23 of the Administration and Probate Act 1969, the bond is to be in accordance with Form 88N. (5) The Court may: (a) dispense with a bond; or (b) dispense with one or both of the sureties; or (c) reduce the penalty of the bond. (6) Where it is sought to dispense with the bond or with one or both of the sureties, or to reduce the penalty of the bond, an affidavit shall be filed in support of the application. (7) Where there is a surety to a bond, an affidavit of justification by the surety, in accordance with Form 88P, shall be filed. Supreme Court Rules 1987 374 (8) An oath in writing of the applicant, in accordance with Form 88J, administered by a person who might witness an affidavit of the applicant, shall be filed. (9) The Court may require further evidence (including evidence (10) An official record of the death of the deceased shall be annexed to the affidavit referred to in subrule (1)(a). (11) If there is no official record of the death of the deceased, an additional affidavit shall accompany the application setting out the facts relied on to establish his death or a presumption of his death. (12) Where a person entitled to apply for Letters of Administration in the estate of an intestate deceased person renounces Letters of Administration in favour of the Public Trustee, in accordance with Form 88R, Letters of Administration in that estate may be granted to the Public Trustee without the consent or citation of a person. 88.25 Evidence and documents in applications for administration with will annexed (1) An application for administration with the will annexed shall be supported by: (a) the affidavits and documents, so far as appropriate, referred to in rule 88.24; and (b) the affidavits and documents which, if the application were an application for probate of the will, would be required by: (i) rule 88.23(1)(b)(ii), (iii), (iv) and (v); and (ii) rule 88.23(2), (3) and (9). (2) An affidavit of the applicant under subrule (1) shall be in accordance with Form 88Q. (3) Where a renunciation has been signed by the executor, the renunciation shall be filed with the application for grant. (4) Where the executor named in the will renounces probate in favour of the Public Trustee, in accordance with Form 88R, administration with the will annexed may be granted to the Public Trustee without the consent or citation of a person. Supreme Court Rules 1987 375 (5) The Court may require further evidence (including evidence 88.26 Evidence and documents in applications for resealing (1) An application for resealing shall be supported by affidavit: (a) in accordance with Form 88S: (ii) stating that the deceased left an estate in the Territory; (iii) furnishing particulars of the grant sought to be sealed; (iv) furnishing particulars of the persons beneficially entitled under the grant sought to be sealed; (v) annexing certified copies of any relevant power of attorney and other relevant documents; (vi) where the application is for resealing of letters of administration, affirming that the applicant is not a bankrupt and has not assigned or encumbered his interest (if any) in the estate; (vii) stating that the applicant is a corporation or has attained (viii) where the application is for resealing letters of administration, furnishing details of the applicant's knowledge of claims against the estate; (b) in accordance with Form 88I: (i) of publication of the notice of intention to apply for the resealing; (ii) of the result of search for a will of the deceased deposited under Part 6 of the Wills Act 2000; (iii) whether a caveat relating to the resealing has been resealing has been made in connection with the estate. Supreme Court Rules 1987 376 (2) Rule 88.24(4), (5), (6) and (7) apply as if the application were an application for administration. (3) A copy of the document sought to be sealed, certified by the Court which made the grant, shall be filed. (4) All relevant original documents shall be produced. (5) The Court may require further evidence (including evidence 88.27 Affidavit of assets and liabilities (1) An applicant for a grant under this Part shall file an affidavit of assets and liabilities in accordance with Form 88T. (2) The value of each item of property shall be stated in an affidavit filed in accordance with subrule (1) or, if the value is not known, an estimate of the value shall be stated. (3) For the purposes of subrule (2), evidence of value shall not be furnished unless the Court orders otherwise. (4) The amount of each liability shall be stated in an affidavit filed in accordance with subrule (1) or, if the amount is not known, an estimate of the amount shall be stated. (5) For the purposes of subrule (4), evidence of the amount of a liability shall not be furnished unless the Court orders otherwise. 88.28 Administration during minority (1) The Court may grant administration during minority, for the use and benefit of an infant, to: (a) the legal or testamentary guardian of the infant; (b) a guardian elected as provided by rule 88.29; or (c) a guardian of the infant assigned, on his application, by the (2) A grant of administration during minority shall be subject to such limitations and conditions as the Court thinks fit. Supreme Court Rules 1987 377 88.29 Elected guardians (1) An infant who has attained the age of 16 years may elect a guardian for the purpose of applying for a grant of administration. (2) The elected guardian may act also for an infant who has not attained the age of 16 years of age but who is in the same family as the infant who elected. (3) Notwithstanding the election of a guardian, the Court may grant administration to a person who is referred to in rule 88.28(1)(a) or (c) and who it considers is more appropriate or better fitted to act as guardian. (4) A grant shall not be made to an elected guardian unless evidence of his election and of his appropriateness and fitness to be guardian is furnished. 88.30 Assigned guardians (1) A proceeding by a person for an order assigning him as the guardian of an infant for the purpose of applying for administration shall be commenced by originating motion in accordance with Form 5D supported by affidavit. (2) There shall be no respondent in the proceeding. (3) The proceeding may be heard: (5) Order 46 does not apply to a proceeding under this rule. (6) An application under this rule shall be supported by evidence of the relationship, if any, of the proposed guardian to the infant and of his appropriateness and fitness to act as guardian. (7) A draft minute of the order sought shall be lodged with the (8) The order shall be authenticated in accordance with the requirements of the General Rules after the minute of it is signed. Supreme Court Rules 1987 378 88.31 Leave to commence proceedings (1) A creditor shall not, without the leave of the Court, commence a proceeding for a grant of administration. (2) The Court may, if it thinks fit, refuse or withhold a grant to a creditor, notwithstanding that he has obtained leave to commence a proceeding for the grant. 88.32 Citations (1) Where a creditor desires to commence a proceeding for a grant of administration and the deceased has left a will, the creditor shall: (a) where an executor is appointed by the will and has not renounced probate, serve on the executor a citation to take probate; and (b) if the executor fails to comply with the citation, serve on each spouse and de facto partner of the deceased and on every beneficiary under the will and, where there is a partial intestacy, on every person entitled in administration of the estate on intestacy, a citation to pray for administration. (2) Where the executor has been served with a citation to take probate and has failed to comply with the citation, it is not necessary, unless the Court otherwise directs, to serve him with a citation to pray for administration. (3) Where an executor is appointed by the will and has not renounced probate, the creditor shall not serve a citation to pray for administration unless he has complied with subrule (1)(a) and the executor has failed to comply with the citation to take probate. (4) Where a creditor desires to commence a proceeding for a grant of administration and the deceased did not leave a will, he shall serve on the spouse of the deceased and on every person entitled in administration of the estate on intestacy, a citation to pray for administration. 88.33 Proceeding for leave (1) A proceeding for an order that a creditor have leave to commence a proceeding for a grant of administration shall be commenced by originating motion in accordance with Form 5D supported by (2) There shall be no respondent in the proceeding. Supreme Court Rules 1987 379 (3) The proceeding may be heard: (b) without the attendance before the Court of a person. (5) Order 46 does not apply to a proceeding under this rule. (6) A creditor applying for leave under this rule shall file: (a) an affidavit in proof of the debt to him; (b) an affidavit of compliance with rule 88.32 and that none of the persons cited has complied with the citation; (c) an administration bond in accordance with Form 88N; and (d) where necessary, an affidavit of justification, in accordance with Form 88P, of a surety to the bond. (8) A draft minute of the order sought shall be lodged with the (9) The order shall be authenticated in accordance with the General (10) The Court may require further evidence to be furnished, further documents to be filed, and that further citations be served and notices be given. 88.34 Applications in small estates (1) A person desiring to obtain a grant of representation in pursuance of Part IV of the Probate Act may apply, either in person or by letter, to the Registrar. (2) An application under subrule (1) shall not be received through an agent of the applicant. 88.35 Directions When, in the opinion of the Registrar, it becomes necessary in the course of a personal application to obtain the directions of the Court, the application shall not further proceed as a personal one except by leave of the Court. Supreme Court Rules 1987 380 88.36 Record of death In an application under this Part, the applicant shall produce an official record of the death of the deceased or give a reason, to the satisfaction of the Registrar, for the non-production of that record. Part 7 Intestate Aboriginals 88.37 Form of application (1) Subject to subrule (2), an application under section 71B of the Probate Act shall be by originating motion in accordance with Form 5D supported by affidavit. (2) The Court may dispense with the need to file or serve an affidavit in support of an application under subrule (1). (3) Order 46 does not apply to a proceeding under this rule. 88.38 Application of Division This Part applies to a proceeding for a grant or for resealing where: (a) there is a defendant; or (b) a person is cited to see the proceeding. 88.39 Commencement of proceeding (1) Where there is a defendant, the proceeding shall be commenced by a writ or originating motion. (2) Where there is no defendant, the proceeding shall be commenced by originating motion supported by affidavit. 88.40 Claims of interest (1) Where a defendant opposes a grant and the plaintiff disputes the standing of the defendant to do so, the plaintiff shall, in his statement of claim or affidavit, allege the absence of standing. (2) Where a party claims a grant of administration and another party alleges absence of title of the claimant to do so, the party alleging absence of title shall, in his pleadings, allege facts which, if proved, Supreme Court Rules 1987 381 will show that he has title to claim the grant. 88.41 Deposit of grant (1) Where a proceeding has been commenced for revocation of a grant, the Court may order the executor or administrator to deposit the grant in the Registry. (2) In an urgent case, the Court may, on the application of a person who intends to commence a proceeding for revocation of a grant, order the executor or administrator to deposit the grant in the Registry to the same extent as if the applicant had commenced the proceeding and the application were made in the proceeding. 88.42 Commencement of non-contentious proceedings (1) Proceedings for revocation of a grant shall, where there is no defendant, be commenced by application in accordance with Form 88U. (2) Where there is no respondent, a proceeding may be heard: (3) The proceeding shall be heard without an appointment being (4) Order 46 does not apply to a proceeding under this rule. (5) A draft minute of the order sought shall be lodged with the Registrar before an order is made on the application. (6) The order shall be authenticated in accordance with the General 88.43 Commencement of contentious proceedings In a proceeding for revocation of a grant in which proceeding there is a defendant, the statement of claim or affidavit shall allege facts which, if proved, shall show that the plaintiff has standing to claim revocation of the grant. Supreme Court Rules 1987 382 Part 10 Contentious proceedings generally 88.44 Cross-claim (1) A party in a proceeding may cross-claim for a grant or for resealing notwithstanding that notice of the intended application has not been published in compliance with this Chapter. (2) Where, in a case to which subrule (1) refers, a notice of the intended application has not been published, the party shall, within 30 days after filing the cross-claim, cause notice of the intended application to be published in the manner, and with such variations as the circumstances require, in the appropriate form required by rule 88.09. 88.45 Intervention (1) An application to intervene in a proceeding for a grant shall be by summons in the proceeding for an order that the person applying be added as a party. (2) Before filing the summons, the person applying shall file a notice of appearance in the proceeding. 88.46 Request for issue (1) Application for issue of a citation shall be made by filing a request in accordance with Form 88V. (2) The person requesting issue of a citation shall: (a) file an affidavit verifying the averments contained in the proposed citation; and (b) lodge 2 copies of the proposed citation. 88.47 Citation to be settled A citation shall be settled by the Registrar before it is issued. 88.48 Seal A citation shall be sealed with the Seal. 88.49 Registrar to file copy Where a citation is issued, the Registrar shall file a copy of it. Supreme Court Rules 1987 383 88.50 Citation to bring in abolished (1) A citation to bring in a grant, will or other document shall not be issued. (2) This rule does not limit the power of the Court to order a person to deposit in the Registry a grant, will or other document. 88.51 Citation to pray for administration (1) A requirement under section 22(2)(c) of the Probate Act of a person to pray for administration shall be by citation which may be in accordance with Form 88W. (2) An answer to a citation to which subrule (1) refers shall be in accordance with Form 88X. 88.52 Citation to take probate (1) A requirement under sections 28 or 29 of the Probate Act of an executor named in a will to take or apply for probate shall be by citation which may be in accordance with Form 88Y. (2) An answer to a citation to which subrule (1) refers shall be in accordance with Form 88Z. 88.53 Citation to see proceeding (1) On the application of a party to a proceeding to which Part 8 applies, a citation may be issued against a person who is not a party to the proceeding but who has an adverse interest to the applicant notifying him that, if he does not answer the citation by filing a notice of appearance in the proceeding, the proceeding may be heard and determined in his absence. (2) The citation under this rule may be in accordance with Form 88ZA. (3) Where a person cited to see a proceeding has filed a notice of appearance in the proceeding, he shall be entitled to such notice of the hearing or trial of the proceeding as if he were a defendant in 88.54 Proceeding where executor neglects to prove will (1) Subject to subrule (4), an application under section 34 of the Probate Act: (a) shall be by originating motion supported by affidavit; and (b) may be made in the absence of a respondent. Supreme Court Rules 1987 384 (2) An order which the Court may make under section 34 of the Probate Act shall not be in the form of an order nisi, but shall be: (a) in accordance with Form 88ZB; or (b) in accordance with such other form as the Court directs. (3) In order to prove that an executor has neglected or refused to prove a will or to renounce probate of the will, a person intending to apply under subrule (1) may apply for issue of a citation under this Part in accordance with Form 88Y. (4) Where a citation has been issued in accordance with subrule (3), a proceeding for an order under section 34 of the Probate Act shall be by summons in the proceeding in which the citation was issued. 88.55 Time for answer to a citation (1) This rule applies to a citation other than a citation to see a (2) In settling the citation, the Court shall fix the time limited by the citation for answer to it. (3) Subject to subrule (4), the time limited by the citation for answer to it shall be: (a) in the case of service in the Territory – 14 days; (b) in the case of service outside the Territory, but within the Commonwealth – 28 days; (c) in any other case – 42 days. (4) The Court may, in settling the citation, fix a shorter or longer period for each of the periods referred to in subrule (3). (5) Where the applicant for issue of the citation wishes a shorter or longer period to be fixed, he shall include in his request for issue of the citation a statement of the period which he requests be fixed and file an affidavit in support of that request. 88.56 Service (1) A citation shall be served personally on the person cited. (2) A citation may be served outside the Territory. (3) Service of a citation on a person under a disability shall not be effected otherwise than in accordance with subrules (4) to (7) (inclusive). Supreme Court Rules 1987 385 (4) Where the person to be served is an infant, the citation may be served: (a) if he has attained the age of 16 years – on him; (b) on a parent of his or a guardian of his person or of his estate; or (c) if he has no parent and has no guardian of his person or of his estate – on a person with whom he resides or in whose care he is. (5) Where the person to be served is a person otherwise under a disability, the citation may be served: (a) if he has a guardian – on the guardian; or (c) if the person under a disability has no guardian – on a person with whom he resides or in whose care he is. (6) The citation may be served on a person (including a person under a disability) whom the Court, before or after the service, approves. (7) A citation served in pursuance of subrules (4), (5) or (6) shall be served in the manner required by the General Rules with respect to personal service of a document. 88.57 Appearance by person cited to see (1) Subject to subrule (2), Order 8 applies to a person cited to see a proceeding as if the person cited were a defendant in the (2) Rules 8.08 and 8.09 do not apply to a case to which this rule refers. 88.58 Election to be respondent (1) A person cited to see a proceeding may, except where he has lodged a caveat requiring proof in solemn form of a will to which the proceeding relates, include in his notice of appearance a statement that he elects to be a defendant in the proceeding. (2) Where the person cited elects under subrule (1) to be a defendant in a proceeding, he shall, on filing his notice under subrule (1), become a defendant in the proceeding and the proceeding shall continue as if he were joined as a defendant by the originating process and as if he were served with the originating process on the day on which he was served with the citation to see the Supreme Court Rules 1987 386 (3) Where the person cited has lodged a caveat requiring proof in solemn form of a will to which the proceeding relates, he may, after filing a notice of appearance in the proceeding, apply for an order adding him as a party in the proceeding. 88.59 Person under disability (1) This rule applies where a citation is served on a person under a (2) The proceeding in respect of a citation shall be stayed until the appointment of a litigation guardian for the person under a (3) The person under a disability may answer a citation only by his (4) Subject to rule 88.60, Order 15 does not apply to the appointment of a litigation guardian under this Part. (5) An application for the appointment of a litigation guardian shall be by summons in the proceeding relating to the citation. (6) There shall be no defendant to a summons for appointment of a (7) The proceeding shall be heard without an appointment being obtained for a hearing. (8) The proceeding may be heard: (a) in the absence of the public; (9) A draft minute of the order sought shall be lodged with the Registrar before an order is made on the summons. (10) The order shall be authenticated in accordance with the General (11) Where a person under a disability has a guardian who has or may be given authority under an Act to answer the citation on his behalf, no person other than the guardian shall act as litigation guardian, (13) A litigation guardian shall not be appointed unless: (a) he is the person applying for appointment; or Supreme Court Rules 1987 387 (b) evidence of his consent to act as litigation guardian is furnished. (14) Where a citation to see a proceeding has been served on a person under a disability and a litigation guardian of that person is appointed to answer the citation, the appointment shall extend to the litigation guardian electing on behalf of the person under a disability to become a defendant in the proceeding in which the citation was served and defending that proceeding (including cross- claiming in it). 88.60 Person under disability elects to become defendant Where a person under a disability elects by his litigation guardian to become a defendant in a proceeding in which a citation was served, Order 15 applies as if his litigation guardian had been appointed under that Order. 88.61 Proof of service of citation to see A party at whose request a citation to see a proceeding has been issued shall not, without the leave of the Court, be entitled to be heard at the hearing or trial of the proceeding unless he has furnished evidence on affidavit: (a) that the person cited has not been served with the citation; or (b) where the person cited has not filed a notice of appearance in the proceeding – that the citation has been served on him. 88.62 Caveat in respect of grant (1) A person claiming to have an interest in an estate may lodge in the Registry a caveat, in accordance with Form 88ZC, in respect of a grant or reseal being made in the estate. (2) The caveat shall state fully the nature of the interest claimed by the caveator and shall provide an address for service. (3) Where a person, to the knowledge of the caveator, is making or is intending to make application for a grant or resealing in the estate, the caveator shall, within 7 days after the lodging of the caveat, serve a copy of the caveat on him. Supreme Court Rules 1987 388 88.63 Caveat for solemn form (1) A person having an interest in an estate may lodge in the Registry a caveat, in accordance with Form 88ZD, requiring proof in solemn form of a will. (2) The caveat shall state fully the nature of the interest of the caveator and shall provide an address for service. (3) Where a person, to the knowledge of the caveator, is making or intending to make application for a grant or resealing in the estate, the caveator shall, within 7 days after the lodging of the caveat, serve a copy of the caveat on him. 88.64 Duration (1) A caveat takes effect on the date of lodgment and, unless the Court otherwise orders, remains in force for 6 months. (2) The Court may extend the period of duration of a caveat. 88.65 Leave to withdraw caveat – no proceeding for grant (1) This rule applies to an application for leave to withdraw a caveat where there is no proceeding for a grant or resealing in the estate. (2) An application under this rule shall be made by summons supported by affidavit. (3) There shall be no defendant in a proceeding for leave under this (4) Order 46 does not apply to a proceeding under this rule. (5) A draft minute of the order sought shall be lodged with the Registrar before an order is made on the summons. (6) The order shall be authenticated in accordance with the General 88.66 Leave to withdraw caveat – proceeding for grant (1) This rule applies to an application for leave to withdraw a caveat where there is a proceeding for a grant or resealing in the estate. (2) A caveator shall file a notice of appearance in the proceeding for grant or resealing. (3) The application for leave to withdraw the caveat shall be made by Supreme Court Rules 1987 389 88.67 Withdrawal (1) Where leave is given to withdraw a caveat, the caveator may withdraw it by himself or his solicitor and by writing in the margin of the caveat "I withdraw this caveat" and dating and signing the indorsement. (2) Where a caveator withdraws a caveat, he shall, within 7 days after the withdrawal, serve notice of the withdrawal on a person who, to the knowledge of the caveator, is making or intending to make application for a grant or for resealing in the estate. 88.68 Recoupment of costs Where a caveat is withdrawn and the person on whose application a grant or resealing is made is unable to recover from the caveator costs which the caveator has been ordered to pay to him, that person shall be entitled to be paid by the estate the amount of the costs properly incurred by him in addition to other costs to which he is entitled out of the estate. 88.69 Citation of caveator to see Where a caveat is in force requiring proof of a will in solemn form, the caveator shall, in a proceeding for a grant or for resealing in which the applicant seeks to prove a will to which the caveat relates, be cited to see the proceeding. 88.70 Order that caveat cease to be in force (1) Where a person intends to apply for a grant or for resealing and a caveat is in force in respect of a grant or resealing being made in the estate, that person may apply for an order that the caveat cease to be in force in respect of the intended application for grant or resealing. (2) A proceeding under this rule shall be commenced by originating motion supported by affidavit. (3) The caveator shall be the defendant in the proceeding. (4) Where in respect of the caveat the Court considers that the evidence does not show: (a) that the caveator has an interest in the estate or has a reasonable prospect of establishing such an interest; and (b) some matter occasioning doubt as to whether the grant ought to be made, Supreme Court Rules 1987 390 the Court may order that the caveat cease to be in force in respect of the intended application. (5) Where the Court does not, in pursuance of subrule (4), order that the caveat cease to be in force in respect of the intended application, the Court may give such directions as appear best adapted for the just, quick and inexpensive determination of what grant or resealing, if any, should be made in the estate and of related matters. (6) Directions which the Court may give in pursuance of subrule (5) include a direction to a caveator to commence a proceeding. (7) Where the Court, in pursuance of subrules (5) and (6), directs a caveator to commence a proceeding, it may order that, if the caveator does not commence the proceeding within such time as the Court fixes, the caveat shall cease to be in force in respect of the intended application referred to in subrule (1) or generally. (8) An order under subrule (7) may be made at the time the caveator is directed to commence a proceeding or at a subsequent time. 88.71 Proceeding by a writ or originating motion (1) Where a caveat is in force in respect of a grant or resealing being made in an estate, a proceeding for a grant or for resealing in the estate shall be commenced by a writ or an originating motion. (2) Unless the Court otherwise directs, the caveator shall be a party in 88.74 Service of notice or summons under section 91 (1) A notice or summons under section 91 of the Probate Act may be served by sending it by pre-paid post to the executor, administrator or trustee at his address for service stated in the originating process for the grant or resealing. (2) A summons to which subrule (1) refers shall be in accordance with Form 88ZE. Supreme Court Rules 1987 391 (3) The Registrar shall, before the hearing of a summons under this Rule, file: (a) a statement: (i) of the date and mode of service of the notice to which subrule (1) refers; and (ii) indicating whether the executor or administrator to whom the notice is directed has, within the time prescribed in section 91(2) of the Probate Act, complied with section 89 of that Act; and (b) a copy of the notice referred to in this rule. (4) The statement referred to in subrule (3)(a) is evidence of the matters stated in it. (5) The prescribed time for the purpose of section 91(3) of the Probate Act is one month from the making of an order by the Court. 88.75 Extension of time (1) An executor or administrator may, in a proceeding for a grant or for resealing, apply for an order extending the period referred to in rule 88.72 and 88.73, including an order extending the period until the further order of the Court, without the prior filing or service of a (2) Where an executor or administrator has been summoned under section 91(2) of the Probate Act, and wishes to apply for an order extending the period referred to in rule 88.72 or 88.73, he shall apply on the day appointed for showing cause. (3) Except where subrule (2) applies, a draft minute of the order sought shall be lodged with the Registrar before an order is made. (4) An order for extension of time shall be authenticated in accordance with the General Rules after the minute of it is signed. 88.76 Order to file, &c., accounts An application for an order that an executor, administrator or trustee of the estate of a deceased person: (a) file an inventory; (b) file accounts; (c) file and pass accounts; or Supreme Court Rules 1987 392 (d) pass accounts filed, shall be made by summons in the proceeding in which representation was applied for. 88.77 Commencement of proceeding for passing or commission An application by an executor, administrator or trustee for: (a) an order passing his accounts; or (b) an order passing his accounts and for commission, shall be made by summons. 88.78 Proceeding for passing accounts, &c. (1) Before making an order under rule 88.77, the Court may order that the applicant for the Order attend before the Registrar to vouch the applicant's accounts. (2) The Registrar shall fix an appointment for the purpose of the vouching of the accounts. (3) Not later than 14 days before the appointment to vouch his accounts the applicant shall cause to be published a notice of the filing of his accounts, the order or orders claimed in the proceedings and the appointment to vouch the accounts. (4) The notice shall be published in a newspaper circulating in Darwin and, if the deceased was resident at the date of his death at a place more than 200 kilometres from the General Post Office at Darwin, also in a newspaper published and circulating in the district where the deceased resided. (5) Subject to subclause (7), not later than 14 days before the appointment to vouch his accounts the applicant shall serve on any surety to an administration bond in the estate a copy of the notice referred to in subrule (3). (6) The applicant shall file an affidavit of compliance with subrules (4) and (5). (7) Instead of or in addition to complying with subrules (3) and (4) in respect of a surety, the applicant may file the consent of that surety to an order passing the accounts and an affidavit verifying the consent. Supreme Court Rules 1987 393 (8) While an application to which this rule applies is pending, a person: (a) may, unless the Registrar otherwise directs, inspect the accounts without the leave of the Court; and (b) may, at any time before completion of the hearing, file a notice of appearance in the proceeding. (9) A person filing a notice of appearance shall be a respondent in the (10) On the day appointed under subrule (2) or at such later time as convenient, the Registrar shall proceed with the vouching before him of the accounts where the applicant has complied with this Part. (11) The applicant may vouch his accounts in person, by his legal practitioner or by a person authorized by the legal practitioner. (12) A person, whether or not he is a party in the proceedings, may attend on the vouching of the accounts unless the Court, of its own motion, otherwise orders. (13) The Registrar may permit a person to ask, through him, a question relevant to the vouching of the accounts. (14) Where the vouching of the accounts is not concluded on the day appointed, subject to any direction by the Registrar, he may decline to proceed with the vouching at any time reasonable notice of which has not been given to any person interested. (15) On the conclusion of the vouching, the Registrar shall inform the applicant of matters necessary for preparation by the applicant of a draft minute of a certificate of the vouching of the accounts. (16) The certificate vouching the accounts shall certify as to: (a) the correctness of the accounts; (b) the amount of capital realised during the period of the accounts; (c) the amount of income collected during the period of the accounts; (d) the value of assets transferred to beneficiaries during the period of the accounts; Supreme Court Rules 1987 394 (e) where a business was carried on, the gross receipts and net profit earned or loss incurred during the period of the accounts; and (f) any other relevant information. (17) The applicant shall lodge the draft minute with the Registrar. (18) The Registrar shall sign a correct minute of his certificate and shall file it. (19) Except where rule 88.79 applies, the applicant, on the filing of a minute under subrule (18), shall obtain from the Registry an appointment for the resumption of the hearing of the proceeding. 88.79 Uncontested proceeding for passing accounts (a) there is no respondent in a proceeding to pass accounts; and (b) the applicant does not seek commission. (2) A proceeding may be heard: (3) The proceeding shall be heard without an appointment being (4) Rule 46 does not apply to a proceeding under this Rule. 88.80 Affidavits in support of commission Where the applicant seeks commission he shall file: (a) an affidavit in support of the application; and (b) where the accounts are not filed within the time fixed by this Part or an order of the Court, an affidavit explaining the delay. 88.81 Renunciation (1) Where an executor, administrator or trustee renounces his right to commission in respect of a particular year, he shall be entitled to indemnity out of the assets in the estate for the amount of his legal practitioner's charges and disbursements, as moderated in accordance with the relevant professional scale, for non-professional work performed in that year, to an amount not Supreme Court Rules 1987 395 exceeding that which the executor, administrator or trustee would have been, in the opinion of the Court, allowed by way of commission for that year had he applied for commission. (2) Where an applicant, in accordance with subrule (1), files a renunciation of commission, the accounts shall be allowed in accordance with the indemnity under subrule (1). (3) A renunciation shall be filed no later than a reasonable time before the hearing of the proceeding. 88.82 Notice The Court may order an applicant under this Part to give notice of a proceeding to a person. 88.83 Review (1) Where a proceeding under this Part is heard by the Registrar, a party may apply to the Court for review of an order made by the Registrar on the hearing. (2) The Court may make such order by way of confirmation, variation, discharge or otherwise as it thinks fit. (3) An application for review shall be made within 14 days after the date of the order in respect of which the review is sought. 88.84 Accounting party (1) Where accounts have been filed with the Registrar in pursuance of this Part and: (a) a doubt or difficulty arises; or (b) a person interested desires the matter referred to a Judge, the Registrar shall serve the accounting party with a notice in writing stating that he will not pass the accounts and giving his reasons. (2) Where a notice has been served under subrule (1), the accounting party may, within 14 days after the service of the notice, apply to a Judge to pass the accounts. (3) An application shall be by summons and a copy of the summons shall be served on the Registrar 7 clear days before the return day of the motion. Supreme Court Rules 1987 396 (4) If an accounting party has been served with a notice under subrule (1) and has failed within the time prescribed in subrule (2) to apply to the Court to pass the accounts, he shall, for the purposes of the Probate Act and these Rules, be deemed to have failed to comply with the provisions of section 89 of that Act. 88.85 Public Trustee Subject to a law to the contrary, nothing in this Part requires the Public Trustee to pass his accounts. 88.86 Applications under Probate Act and these Rules (1) An application for an order which, under the Probate Act or these Rules, the Court has power to make shall: (a) where the application is in relation to a proceeding already commenced – be made by summons; or (b) where the application is in the nature of an originating proceeding – be made by a writ or an originating motion supported by affidavit, (c) this Part provides otherwise; or (d) the Court otherwise orders. (2) Subrule (1) applies to a proceeding which may be commenced under this Chapter but in respect of which no procedure for commencement is prescribed. 88.87 Notice of appearance A notice of appearance for the purposes of this Chapter shall be in accordance with Form 8A and Order 8 applies, with appropriate modifications, to a notice of appearance under this Chapter. 88.88 Notice of intended distribution A notice under section 96 of the Probate Act may be in or to the effect of Form 88ZF. Supreme Court Rules 1987 397 88.89 Registrar not to deal with application for representation in certain cases (1) Where an application for a grant of representation or for resealing has been made to the Registrar and: (a) a caveat against the application is subsequently lodged with the Registrar before the representation applied for has been granted; (b) there is no direct evidence of the death of the person in respect of whom the application is made but only evidence supporting a presumption of his death; (c) it appears doubtful to the Registrar whether the application should be granted; or (d) the application is made under Part IV of the Probate Act, and the Registrar thinks it proper to be dealt with by a Judge or it becomes necessary to obtain the directions of a Judge. the Registrar shall serve on the applicant a notice in writing stating that he will not deal with the application, and giving his reasons. (2) When an applicant has been served with a notice under subrule (1), he may apply to the Court by summons for a grant of representation or resealing. 88.90 Solemn form (1) Notwithstanding anything contained in this Chapter, an executor or other person entitled to prove a will may prove it in solemn form of law. (2) An application for proof in solemn form of law shall be commenced by writ. (3) Immediately on the filing of a writ under this rule, the plaintiff shall apply to the Registrar by summons for directions. 89.01 Application (1) This Chapter applies to a proceeding in the Court to which a cross- vesting law applies. Supreme Court Rules 1987 398 (2) In the application of Chapter 1 to a proceeding to which this Chapter applies, a reference in rule 1.02 to a proceeding commenced includes a reference to a proceeding transferred under a cross-vesting law. 89.02 Definitions In this Chapter, unless the contrary intention appears: the Act means the Jurisdiction of Courts (Cross-Vesting) Act 1987. cross-vesting law means a law of the Commonwealth or of a State or Territory (including the Act) relating to the cross-vesting of jurisdiction. special federal matter has the same meaning as in the Jurisdiction of Courts (Cross-Vesting) Act 1987 of the Commonwealth. 89.03 Form of documents (1) Subject to subrule (2), an originating motion or summons by which application is made under a cross-vesting law shall be in writing and be prepared in accordance with rules 27.02 to 27.04 inclusive. (2) In addition to the requirements of Order 27 the heading of the originating motion of summons shall state "In the matter of the Jurisdiction of Courts (Cross-Vesting) Act 1987". 89.04 Application by Attorney-General If an application for the transfer of a proceeding is made by the Attorney-General of the Commonwealth or of a State or another Territory, the Attorney-General does not, by reason of the application, become a party to the proceeding in respect of which the application is made. 89.05 Removal of proceeding If an order is made for the removal of a proceeding from a court or tribunal to the Court under section 8 of the Act, the Court may give any directions that could have been given by the court or tribunal in which the proceeding was pending. Supreme Court Rules 1987 399 89.06 Notice (1) A party to a proceeding proposing to invoke a jurisdiction arising under a provision of a cross-vesting law, or otherwise to rely on a provision of a cross-vesting law, shall: (a) file and serve a notice: (i) identifying the provision; (ii) identifying the claim in relation to which reliance is placed on the provision; and (iii) stating the grounds on which reliance is placed on the provision; and (b) seek directions as soon as practicable as to whether the proceeding should be transferred. (2) Where a matter for determination in a proceeding is a special federal matter, the notice shall: (a) identify the special federal matter; and (b) state the grounds on which it is a special federal matter. 89.07 Service out of Territory (1) Originating process may be served out of the Territory only with leave of the Court where the proceeding includes a matter for determination in respect of which jurisdiction under a cross-vesting law is invoked. (2) Leave shall not be granted under subrule (1) unless the Court is satisfied that the Court may be, having regard to the relevant cross- vesting law, an appropriate court to hear and determine the (3) A proceeding may be transferred to another court notwithstanding that leave to serve the originating process out of the Territory has been given. 89.08 Procedure after transfer (1) When a proceeding is transferred by the Court under a cross- vesting law, the Registrar of the Supreme Court shall send to the proper office of the court to which the proceeding is transferred all documents filed, and all orders made, in the proceeding. Supreme Court Rules 1987 400 (2) When a proceeding is transferred to the Court under a cross- vesting law, the Registrar of the Supreme Court shall give it a number and title. (3) As soon as practicable after a proceeding is transferred to the Court under a cross-vesting law, the party by whom the proceeding was commenced shall apply for directions. 89.09 Conduct of proceeding (1) If a party seeks to have a written law of another State or Territory applied under section 11(1)(b) of the Act in determining a right of action arising under that written law, that party shall file and serve a notice identifying the right of action and the written law. (2) If a party seeks to have rules of evidence and procedure, other than those of the Court, applied under section 11(1)(c) of the Act in dealing with a matter for determination in the proceeding, that party shall file and serve a notice stating the relevant rules that the party seeks to have applied. (3) A party required by subrule (1) or (2) to file and serve a notice shall seek directions on the subject-matter of the notice before the proceeding is set down for trial. 89.10 Directions The Court may give directions in relation to a proceeding to which a cross-vesting law applies and may set aside or vary any direction 89.11 Applications made to Judge The powers of the Court under a cross-vesting law and this Chapter shall be exercised by a Judge. 90.01 Interpretation (1) In this Chapter: Act means the Admiralty Act 1988 of the Commonwealth. Marshall means the Sheriff or other person authorized by or under rule 90.02. Supreme Court Rules 1987 401 Rules means the Admiralty Rules made under the Act. (2) A reference in the Rules to the Registrar otherwise than in relation to a proceeding in a court includes a reference to an Associate 90.02 Registrar and Marshall (1) For the purposes of section 4 of the Rules, but subject to subrule (2): (a) an Associate Judge is authorised to exercise the power and function, and perform the duty, of the Registrar; and (b) the Sheriff appointed under the Sheriff Act 1962 is authorised to exercise the power and function, and perform the duty, of the Marshall. (2) The Court constituted by the Chief Justice may, either generally or in a particular case, authorise a person to exercise the power or function, or perform the duty, of the Registrar or the Marshall. 90.03 Operation of Chapters 1 and 2 Chapters 1 and 2 of the Supreme Court Rules 1987, with the necessary changes, and to the extent that they are not inconsistent with the Rules, apply to and in relation to all matters to which the Rules apply. 90.04 Marshall may charge fees The Marshall may, in respect of a function exercised or duty performed by the Marshall, charge fees in accordance with the following table: TABLE OF FEES 1. Receiving and entering a writ, warrant release, decree, order, caveat, commission or other instrument under the seal of the Court $15.00 2. For service of a writ, but subject to item 5 $15.00 3. For execution of a warrant for the arrest of a ship or seizure of cargo or other goods, but subject to item 5 $30.00 4. For execution of a writ of attachment – for each person $30.00 5. Where a writ is served at the same time as a warrant of arrest is executed – instead of fees under items 2 and 3 $40.00 Supreme Court Rules 1987 402 6. For release of a ship, goods or person from seizure or arrest $15.00 7. For execution of a commission of appraisement and sale or appraisement/sale, but subject to item 8 $30.00 8. Where execution of a commission of appraisement is ordered and the Court then orders that there be a commission for sale – instead of the fee under item 7 $60.00 9. For arranging the appointment of the commission of an auctioneer or agent for sale by public auction or private contract (to include an inventory, valuation, and compiling a certificate of appraisement and preparing for sale) $25.00 10. For execution of a decree, order, commission or instrument other than one specified in this Schedule $30.00 11. For delivery of a ship or goods to a purchaser $30.00 12. For attending the discharge of cargo or removal of a ship or goods – per day $30.00 13. Where process must be executed urgently resulting in office being open after hours – for each hour office is open after hours $50.00 14. On the gross proceeds of any ship or goods sold: for every $200 or part of $200 up to $20,000 for each additional $200 or part of $200 $6.00 $3.00 15. For retaining possession of a ship (with or without cargo) or of a ship's cargo – per day $15.00 Note 1 No fee is payable for the custody and possession of property seized if it consists of money in an ADI, or goods stored in a bonded warehouse, or if it is in the custody of a customs house officer or other authorized person. 2 In addition to the fees specified in this Schedule, the Marshall may recover all expenses reasonably incurred in the execution of the duties referred to in this Schedule, including: (a) sums expended in attending the discharge of a ship or goods; (b) sums paid to a shipkeeper; (c) sums paid for the safe custody of property; (d) travelling expenses; (e) necessary meals; Supreme Court Rules 1987 403 (f) overtime penalties; (g) sums paid to engage assistants, agents, etc.; (h) postage, telephone calls, stationery; (j) fees paid to auctioneers or appraisers (at the nominated prescribed fee); (k) such fee (if any) as the Registrar may determine is payable for any procedure or service not specified in this Schedule. 3 A deposit on account of fees applicable to any proceeding may be required before the proceeding is commenced, or at any time during the course of the proceeding and a memorandum of the amount deposited must be delivered to the party making the deposit. An undertaking in writing to pay any further fees or expenses incurred by the Marshall which may become payable beyond the amount deposited may be required. Supreme Court Rules 1987 404 Order 91 Commercial arbitration 91.01 Definitions Act means the Commercial Arbitration (National Uniform Legislation) Act 2011. arbitral tribunal, see section 2(1) of the Act. arbitration, see section 2(1) of the Act. proceeding means a proceeding in the Court under the Act. 91.02 Application of Chapter 1 Chapter 1, with the necessary changes, applies in relation to a 91.03 Commencement of proceedings A proceeding, including an application for leave to appeal made under section 34A(1)(b) of the Act and an appeal following the grant of leave, must be commenced by originating motion. 91.04 Jurisdiction of Associate Judges An Associate Judge has jurisdiction under the Act except under sections 14, 27J, 34 and 34A. 91.05 Court assistance in taking evidence (1) This rule applies if a request for assistance from the Court is made under section 27 of the Act. (2) For the purpose of executing the request, the Court may, on behalf of the arbitral tribunal, take evidence in any way that the Court could take evidence if the arbitration were a proceeding in the (3) For subrule (2), Order 41 applies. Supreme Court Rules 1987 405 (4) The Registrar must cause all evidence taken under this rule (including transcripts or recordings of oral evidence) to be given to the arbitral tribunal. 91.06 Subpoenas (1) Order 42, other than rules 42.03(6) and (7), 42.06(4)(b), 42.09 and 42.10, applies to the issue of a subpoena under section 27A of (2) A subpoena to produce documents to the arbitral tribunal may, with the leave of the Court or the arbitral tribunal, require production of the documents on any day. (3) Unless the Court orders otherwise, a subpoena requiring a person to produce documents to the arbitral tribunal must allow the person to produce them: (a) to a person, and at a place, nominated in writing by the arbitral tribunal and stated in the subpoena; and (b) by hand or by post. (4) If the person produces the document in accordance with subrule (3), the person nominated must receive it not later than 2 days before the first date on which production before the arbitral tribunal is required. (5) If a document is produced in accordance with subrules (3) and (4), the person nominated: (a) if required to do so – must give a receipt to the person producing the document; and (b) must produce the document as the nature of the case requires or as the arbitral tribunal may direct. (6) Subrules (3) and (4) do not apply to so much of a subpoena as requires a person to attend for examination before the arbitral tribunal. 91.07 Application to determine a question of law For an application to the Court under section 27J of the Act, the originating motion must be filed and served within 14 days after the date on which the consent of the arbitral tribunal or all the other parties is obtained. Supreme Court Rules 1987 406 91.08 Application to set aside an arbitral award For an application to the Court under section 34 of the Act to set aside an arbitral award, the originating motion must include a statement of: (a) the date the party received the award; or (b) if a request has been made to the arbitral tribunal under section 33 of the Act – the date the request was disposed of by the arbitral tribunal. 91.09 Appeal on a question of law (1) For a party seeking leave to appeal under section 34A(1)(b) of the Act, the originating motion must include a statement of the party's case setting out the following: (a) the dates relevant to the calculation of the appeal period mentioned in section 34A(6) of the Act; (b) the nature of the case with sufficient particularity for an understanding of the matters referred to in the originating motion; (c) the question of law; (d) how the determination of the question will substantially affect the rights of one or more of the parties; (e) that the question is one which the arbitral tribunal was asked to determine; (f) the reasons for which it is asserted that, on the basis of the findings of fact in the award: (i) the decision of the arbitral tribunal on the question is obviously wrong; or (ii) the question is one of general public importance and the decision is at least open to serious doubt; (g) the reasons for which, despite the agreement of the parties to resolve the matter by arbitration, it is just and proper in all the circumstances for the Court to determine the question. Supreme Court Rules 1987 407 (2) For an appeal to the Court under section 34A(1) of the Act, the originating motion must include a statement setting out the (a) the date each party agreed under section 34A(1)(a) of the Act; (b) the question of law; (c) the nature of the dispute with sufficient particularity for an understanding as to the context in which the question of law arises under section 34A(3) and (4) of the Act; (d) the respects in which it is asserted that the arbitral tribunal fell into error. 91.10 Enforcement of award (1) For an application under section 35 of the Act, section 9 of the International Arbitration Act 1974 (Cth) applies to proceedings in which a person seeks leave to enforce an award in the same way as it applies to proceedings in which a person seeks enforcement of a foreign award under that Commonwealth Act. (2) For an application under section 35 of the Act, the originating motion must be supported by affidavit. (3) The affidavit must: (a) annex the arbitration agreement and the award or, in either case, a copy; and (b) state the extent to which the award has not been complied with at the date the application is made; and (c) state the usual or last known place of residence or business of the person against whom it is sought to enforce the award or, if the person is a corporation, its last known registered office. (4) If the Court grants the application, the party who sought the enforcement of the award may enter judgment in terms of the award. 91.11 Application of Part This Part applies in relation to an arbitration under an arbitration agreement unless otherwise agreed in writing by the parties to the agreement. Supreme Court Rules 1987 408 91.12 Offer of compromise (1) A party to an arbitration may make an offer of compromise of a claim the subject of the arbitration on the terms specified in the offer to any other party. (2) An offer of compromise must: (a) be in writing; and (b) contain a statement to the effect that the offer is made under this Part; and (c) be served on the other party. 91.13 Time for making or accepting an offer (1) An offer of compromise may be served at any time before the time prescribed by subrule (8) for the claim to which it relates. (2) A party may serve more than one offer of compromise. (3) An offer of compromise may be expressed to be limited as to the time the offer is open to be accepted after service on the party to whom it is made, but the time expressed must not be less than 28 days after service. (4) A party on whom an offer of compromise is served must, within 3 days after service, serve a written acknowledgment of service on the party serving the offer. (5) A party on whom an offer of compromise is served may accept the offer by serving written notice of acceptance on the party who made the offer before the first of the following occurs: (a) the expiration of the period for which the offer is expressed to be open under subrule (3) or, if no time is specified, the expiration of 28 days after service of the offer; or (b) the time prescribed by subrule (8) in respect of the claim to which the offer relates. (6) An offer of compromise cannot be withdrawn during the time it is open to be accepted. (7) An offer (the first offer) is open to be accepted within the period mentioned in subrule (5) even if during that period the party on whom the first offer is served makes an offer (the second offer) to the party who made the first offer, whether or not the second offer is made in accordance with this Part. Supreme Court Rules 1987 409 (8) For subrules (1) and (5), the time prescribed is the time when the arbitrator: (a) has made decisions on all questions of liability and the relief to be granted in respect of the claim to which the offer relates; and (b) has communicated the decisions to one or more of the parties. 91.14 Offer without prejudice An offer of compromise is taken to be made without prejudice, unless the offer otherwise provides. 91.15 Time for payment An offer of compromise providing for the payment of a sum of money, or for the doing of any other act, is taken to provide for the payment of that sum or the doing of that act within 28 days after acceptance of the offer, unless the offer otherwise provides. 91.16 Withdrawal of acceptance (1) A party who accepts an offer may, by serving a written notice of withdrawal on the offeror, withdraw the acceptance if: (a) the offer provides for payment of a sum of money or the doing of any other act; and (b) the sum is not paid to the offeree, or the act is not done, within 28 days after acceptance of the offer or within such other time as the offer provides. (2) On withdrawal of an acceptance all steps in the arbitration taken in consequence of the acceptance have effect only as the arbitrator may direct. (3) On withdrawal of acceptance the arbitrator: (a) may give directions under subrule (2); and (b) may give directions for restoring the parties as nearly as may be to their positions at the time of the acceptance; and (c) may give directions for the further conduct of the arbitration. 91.17 Disclosure of offer to arbitrator (1) No statement of the fact that an offer of compromise has been made may be contained in a document delivered to the arbitrator before the time prescribed by subrule (4). Supreme Court Rules 1987 410 (2) If an offer of compromise has not been accepted, no communication with respect to the offer may be made to the arbitrator before the time prescribed by subrule (4). (3) Subrules (1) and (2) do not apply if an offer of compromise provides that the offer is not made without prejudice. (4) For subrules (1) and (2) the time prescribed is the time when the arbitrator: (a) has made decisions on all questions of liability and the relief to be granted in respect of the claim to which the offer relates; and (b) has communicated the decisions to one or more of the parties. 91.18 Failure to comply with accepted offer If a party to an accepted offer of compromise fails to comply with the terms of the offer, the other party may apply to the Court for: (a) judgment or orders to give effect to the terms of the accepted offer; or (b) if the party in default is: (i) the party who commenced the arbitration – an order that the arbitration be stayed; or (ii) the party responding to the arbitration – an order that the accepted offer of compromise is of no effect and that the party who commenced the arbitration is at liberty to proceed with the arbitration. 91.19 Costs if the offer is not accepted In any exercise of discretion as to costs, the arbitrator must consider whether the party serving an offer of compromise was at all times willing and able to carry out the party's part of what was proposed in the offer. Supreme Court Rules 1987 411 Part 3 Transitional matters for Supreme Court Amendment (Commercial Arbitration) Rules 2013 91.20 Transitional matters (1) If an arbitration commenced before the commencement of the Commercial Arbitration (National Uniform Legislation) Act 2011, Order 91 as in force immediately before the commencement of the Supreme Court Amendment (Commercial Arbitration) Rules 2013 continues to apply to the arbitration. (2) For subrule (1), an arbitration has commenced if: (a) a dispute to which the relevant arbitration agreement applies has arisen; and (b) the arbitral tribunal has been properly constituted. 92.01 Interpretation the Act means: (a) the Criminal Property Forfeiture Act 2002; and (b) where the context permits – the Proceeds of Crime Act 2002 of the Commonwealth. 92.02 Application (1) The rules in Chapter 1 apply to the practice and mode of procedure in relation to matters dealt with by this Chapter to the extent to which: (a) they are applicable to; (b) they are not expressly excluded by; or (c) they do not conflict with, the rules in this Chapter. Supreme Court Rules 1987 412 (2) The following rules and orders in Chapter 1 do not apply to a matter dealt with by this Chapter: (a) Order 4 (except for rule 4.02); (b) Order 10; (c) Order 13; (d) Order 30; (e) Order 31; (f) Order 45; (g) Order 48. 92.03 Application ex parte (1) An ex parte application is to be supported by an affidavit setting out the facts and circumstances on which the application is based. (2) The ex parte application is to be heard by a Judge who may make such order or declaration that the Judge thinks fit. 92.04 Application on notice (1) If the party the subject of an application enters an appearance, the Registrar must list the matter for case flow management by a Judge and the Judge may make the orders he or she thinks fit in order to bring the matter to trial as expeditiously as possible. (2) If the party the subject of an application does not enter an appearance within 21 days of service of the application, the applicant may request the Registrar to list the matter for a hearing before a Judge, and if the Judge is satisfied: (a) of the matters set out in the affidavit; and (b) that service of the application and affidavit was properly effected on the party the subject of the application, the Judge may make the order or declaration sought, or any other order or declaration that the Judge thinks fit in the circumstances. 92.05 Application in relation to deceased person (1) If an application relates to a deceased person or to the property of a deceased person, notice of the application, together with a supporting affidavit, is to be served on the personal representative of the deceased person. Supreme Court Rules 1987 413 (2) If there is no personal representative or the personal representative cannot be located, the applicant may seek directions from the Judge who is responsible for case flow management of the matter. 92.06 Evidence by affidavit (1) Unless by leave of the Court, evidence in chief in a matter (not including an examination) under the Act is to be by affidavit. (2) Subrule (1) does not preclude the cross-examination or re-examination of a deponent on his or her affidavit. (3) Except as provided by the Act, when notice of an application is served on a party the notice is to be accompanied by a copy of all affidavit evidence in relation to the application. (4) The Judge may limit the scope of the evidence that is provided to a party if the Judge is satisfied that the protection of an ongoing investigation requires it, or for other good reason. 92.07 Affidavit of service Whenever a notice under the Act or an application is served on a party who makes no appearance in the matter, the party serving the notice or application must file in the Court an affidavit of service. 92.08 Discovery (1) Discovery of documents is only by order of the Judge and is limited to the matters disclosed in the application and the affidavit in support of the application. (2) The Judge may further limit the scope of discovery if the Judge is satisfied that the protection of an ongoing investigation requires it, or for other good reason. (3) Interrogatories are not available in a matter under the Act. 92.09 Examination (1) An examination under the Act is to be conducted by an Associate Judge unless the Judge responsible for case flow management of the matter elects to conduct the examination himself or herself. (2) If the Judge makes an order for the examination of a person under the Act, the applicant in relation to the order is to serve a copy of the order on the person. (3) If the person to be examined fails to attend the examination, rule 66.06 applies. Supreme Court Rules 1987 414 92.10 Secrecy provisions in relation to examinations and matters (1) A examination is to be conducted in closed court. (2) A file of a matter under the Act, and a transcript of an examination under the Act, is not to be publicly available for perusal and is to be prominently marked accordingly by the Registrar. (3) A person who wishes to inspect a file or transcript referred to in subrule (2) must apply in writing to the Registrar and the application must be approved by the Registrar before inspection is allowed. (4) The Registrar may allow a person to inspect a file or a part of a file or a transcript referred to in subrule (2) only if the Registrar is satisfied that disclosure of the information to the person would not, in the circumstances, result in a contravention of the Act. (5) An application form for access to a file is to be filed on the court file in relation to the matter, whether approved by the Registrar or refused. (6) If access is provided to a person, the file or transcript cannot be removed from the immediate vicinity of the registry and photocopying (or other methods of reproduction) of documents is not permitted, other than note-taking by hand. 92.11 Damages When making an application for a restraining order under the Act, the applicant must give the usual undertaking as to damages 92.12 Registration of interstate orders An interstate restraining order or interstate forfeiture order may be registered by filing a copy of the order, sealed by the court that made the order, in the Registry. 92.13 Objection If an objection is filed to the restraint of property or an application is made for the release of forfeited property, the Registrar must give notice of the objection or application to the Solicitor for the Northern Territory or to the Australian Government Solicitor, as the case requires. Supreme Court Rules 1987 415 92.14 Restraining order ceasing to have effect (1) If a restraining notice under the Act ceases to have effect, the applicant in relation to the order must, within 2 days after the order ceases to have effect, file in the Registry a notice that the order has ceased to have effect. (2) A notice filed in accordance with subrule (1) is to have the seal of the Court affixed by the Registrar and the person who filed the notice must, as soon as practicable, serve a copy of the notice on each person who was served with the restraining order. (3) A party who is affected by a restraining order may, if the restraining order has ceased to have effect, apply to the Court for an order to that effect. (4) The serving of a notice under subrule (2), or the making of an order under subrule (3), has no effect in relation to land that is subject to a restraining order until any relevant statutory restrictions notice in the land register is removed by the Registrar-General. 92.15 Forms (1) An ex parte application is to be in the form of Form 92A. (2) An application on notice is to be in the form of Form 92B. (3) An application to inspect the court file or transcript of an examination is to be in the form of Form 92C. 93.01 Definitions In this Chapter, Director means: (a) the Director of Public Prosecutions for the Northern Territory Act 1990; or (b) the Director of Public Prosecutions for the Commonwealth Act 1983 of the Commonwealth. 93.02 Applications for bail or review of bail (1) An application to the Court, the Court of Appeal or the Court of Criminal Appeal for bail or for a review of bail is to be in accordance with Form 93A and supported by affidavit. Supreme Court Rules 1987 416 (1A) An application under subrule (1) is to be made not later than 2 days before the hearing of the application. (2) Subrule (1) does not apply in relation to an application to the Court for bail under Part 7 of the Bail Act 1982 if: (a) the Director does not oppose bail; (b) the Director consents to the application being made orally; or (c) the Court orders that the application may be made orally. (3) Despite subrule (1), an application for review of bail under section 35 of the Bail Act 1982 relating to an amendment of the conditions of bail may be made orally, by telephone or by facsimile to the Judge's chambers, if the Director does not oppose the amendment and consents to the application being in that manner. (4) The Director may give his or her consent under subrule (3) to the Judge, or the Judge's associate, orally or by telephone, facsimile or computer transmission. (5) If an application has been made orally or by telephone or facsimile, the Judge may determine the application in the same manner. 93.03 Application of provisions of Chapter 1A Parts 1 and 2 of Order 81A apply in relation to an application for bail, or for review of bail, as if: (a) a reference in that Order to the Court included a reference to the Court of Appeal, the Court of Criminal Appeal and a judge exercising the powers of either of those courts; and (b) a reference to this Chapter were a reference to Chapter 8. 94.01 Interpretation (1) In this Chapter: the Act means the Foreign Judgments Act 1991 (Cth). (2) If an expression used in this Chapter is defined in the Act, the expression has the meaning given by that definition unless a contrary intention appears. Supreme Court Rules 1987 417 94.02 Application This Chapter applies to any proceedings in the Court under the Act. 94.03 Application under section 6 by originating motion (1) An application under section 6 of the Act for the registration of a judgment to which Part 2 of the Act applies may be made without (2) The application must be by originating motion and supported by 94.04 Affidavit (1) An affidavit under rule 94.03 must state to the best of the information and belief of the deponent: (a) that the plaintiff is entitled to enforce the judgment; (b) that the judgment is final and conclusive between the parties; (c) facts demonstrating that the Court is the appropriate court under section 6(1) of the Act; (d) that at the date of the application, the judgment has not been satisfied or has been satisfied only in part; (e) the amount in respect of which the judgment remains unsatisfied; (f) that at the date of the application, the judgment can be enforced by execution in the country of the original court; (g) that, if the judgment were registered, the registration would not be, or liable to be, set aside under section 7 of the Act; (h) the amount of interest (if any) that, under the law of the country of the original court, has become due under the judgment up to the time of the application; (i) if the sum payable under the judgment is expressed in a currency other than Australian currency and the judgment creditor has not stated that he or she wishes the judgment to be registered in that other currency – the amount that sum represents in Australian currency calculated in accordance with section 6(11), (11A) and (11B) of the Act; Supreme Court Rules 1987 418 (j) if the judgment is in respect of different matters and only some of the provisions of the judgment could, if contained in separate judgments, have been registered – the provisions in respect of which it is sought to register the judgment; and (k) the full name, title, occupation and the usual or last known place of residence or business of the judgment creditor and the judgment debtor. (2) The affidavit must exhibit: (a) a copy of the judgment of the original court certified as such by the proper officer of the court and authenticated by its seal; and (b) if the judgment is not in the English language, a translation of the judgment certified by a notary public or authenticated by (3) The affidavit must be accompanied by such other evidence in respect of the matters referred to in subrule (1)(f) and (h) as may be required having regard to the provisions of any regulations made under the Act extending the Act to the country of the original court. 94.05 Security for costs may be ordered The Court may order that a person applying for registration of a judgment give security for costs. 94.06 Order on application (1) An order for registration of a judgment must: (a) specify the period within which an application to set aside the registration may be made; and (b) state that the judgment will not be enforced until after the expiration of that period or any extension of that period under subrule (3). (2) The order need not be served on the judgment debtor. (3) The period referred to in subrule (1)(a) may be extended by the Court on the application of a party made before or after the expiration of the period or any extended period. 94.07 Notice of registration (1) Notice in writing of the registration of a judgment must be served on the judgment debtor whether within the jurisdiction or not. Supreme Court Rules 1987 419 (2) Unless the Court orders otherwise, service must be personal (3) The notice must: (a) include full particulars of the judgment registered and the order for registration; (b) provide the name and address of: (i) the judgment creditor; (ii) the judgment creditor's solicitor; or (iii) an agent, on whom and at which any process issued by the judgment debtor may be served; (c) state that the judgment debtor may apply on the grounds set out in the Act to have the judgment set aside; (d) specify the time from the date of the service of the notice within which the application must be made; and (e) advise that the judgment debtor may apply to have that time extended. 94.08 Application to set aside (1) An application to set aside the registration of a judgment must be made by summons in the proceedings in which the judgment was registered. (2) The summons must set out the grounds of the application and be supported by affidavit. (3) The summons and any affidavit in support must be served on the person who procured registration of the judgment. 94.09 Enforcement of judgment A registered judgment may not be enforced unless: (a) the period referred to in rule 94.06(1)(a), or any extended period, has expired; (b) any application to set aside registration of the judgment has been determined by the Court; Supreme Court Rules 1987 420 (c) there has been filed in the Court: (i) an affidavit of service of the notice of registration; and (ii) a copy of the notice of registration; and (d) any order of the Court in relation to the judgment has been authenticated and filed. 94.10 Certified copy of judgment (1) An application under section 15 of the Act may be made without (2) The application must be made in the proceeding in which the judgment of the Court was obtained. (3) The application must be made by filing a draft of the certificate provided for rule 94.11(b) with an affidavit deposing to such information as will enable the certificate to be granted. 94.11 Certificates (1) If an application for a certified copy of a judgment is granted, the copy of the judgment issued must be: (a) sealed with the seal of the Court; and (b) certified by the Registrar to be: (i) a true copy; and (ii) issued in accordance with section 15 of the Act. (2) The copy of the judgment must be accompanied by a certificate from the Registrar that includes: (a) a statement that the proceeding is at an end except for the enforcement of the judgment; (b) the claim or claims in respect of which the judgment was given; (c) the grounds on which the judgment was based; (d) the rate at which the judgment carries interest; and (e) such other matters as the Registrar considers necessary or desirable. Supreme Court Rules 1987 421 94.12 Associate Judge An application other than one made under section 15 of the Act must be made to an Associate Judge. Chapter 10 Proceedings relating to lawyers 95.01 Full Court to exercise jurisdiction of Court in certain matters relating to lawyers (1) The Full Court will, as a general rule, exercise the jurisdiction of the Court to hear and determine a proceeding of any of the following kinds: (a) a proceeding in the inherent jurisdiction of the Court relating to the discipline of a lawyer; (b) an appeal against a decision of the Legal Practitioners Disciplinary Tribunal; (c) a contested application under the Legal Profession Act 2006 for removal of a lawyer's name from the local roll following foreign regulatory action; (d) an application for admission as a local lawyer under the Legal Profession Act 2006. (2) However: (a) if it is not convenient for the Full Court to deal with an application for the admission of a local lawyer, the application will be heard and determined by a single Judge; and (b) the Court may, despite the general rule, order that a particular matter be heard and determined by the single Judge. (3) An order under subrule (2)(b) may be made by: (a) the Full Court; or (b) a single Judge in interlocutory proceedings. 96.01 Purposes The main purposes of this Chapter are: (a) to ensure the Court has control over the giving of evidence Supreme Court Rules 1987 422 that is interpreted, translated or sight translated into English; and (b) to recognise the special status of an interpreter in the administration of justice by declaring the duties of an interpreter in relation to the Court and the parties to a (c) to implement, with appropriate modifications, the Recommended National Standards for Working with Interpreters in Courts and Tribunals issued by the Judicial Council on Diversity and Inclusion. 96.02 Definitions In this Chapter and in Schedule 3: accredited interpreter, in relation to an other language, means an interpreter who is certified, registered or recognised as an interpreter for the language by a recognised agency. accurately means in accordance with the duty of accuracy set out in rule 96.07(2) and clause 4 of the code of conduct. accused, see rule 81A.01(1). code of conduct means the Code of Conduct for Interpreters in Legal Proceedings set out in Schedule 3. interpret means the process by which the meaning of spoken or signed language is conveyed from one language (the source language) to another (the target language) orally or by sign. other language means a spoken or signed language other than English. party, to a proceeding, includes an accused in a criminal recognised agency means the following: (a) the National Accreditation Authority for Translators and Interpreters (NAATI); (b) the Aboriginal Interpreter Service (AIS); (c) Interpreting and Translating Service Northern Territory (ITSNT); Supreme Court Rules 1987 423 (d) any other organisation that is approved by the Chief Justice to be a recognised agency. sight translate means the process by which an interpreter or translator presents a spoken interpretation of a written text in one language (the source language) into another language (the target language). translate means the process by which written language is conveyed from one language (the source language) to another (the target language) in the written form. 96.03 Application This Chapter applies to all proceedings in the Court. 96.04 Proceedings to be conducted in English Subject to this Chapter, all proceedings in the Court are to be conducted in English. 96.05 When interpreters may be required (1) If the Court is satisfied that a party to a proceeding or a witness cannot understand and speak the English language sufficiently to enable the party or witness to understand, and to make adequate reply to, questions that may be put to the party or witness, the party or witness may give: (a) oral evidence in the other language that is interpreted into English by an interpreter in accordance with this Chapter; or (b) evidence by an affidavit or statement in English that has been sight translated to the witness by an interpreter. (2) The party calling a witness who requires the services of an interpreter is responsible for engaging an interpreter who meets the standards and requirements imposed by this Chapter, as follows: (a) in a criminal proceeding, it is the obligation of: (i) the prosecution to engage an interpreter for witnesses called by the prosecution; and (ii) the defence to engage an interpreter for witnesses called by the defence, including for the accused if the accused is to give evidence; (b) in a civil proceeding, it is the obligation of the party calling the witness to engage an interpreter for that witness. Supreme Court Rules 1987 424 (3) In a criminal proceeding, if the Court is satisfied that the accused cannot understand and speak the English language sufficiently to enable the accused to understand and participate in the proceeding: (a) the Court must permit the defence to engage the services of an interpreter for the accused who meets the standards and requirements imposed by this Chapter; and (b) it is the obligation of the defence to engage an interpreter for the accused. (4) In a civil proceeding, if the Court is satisfied that a party cannot understand and speak the English language sufficiently to enable the party to understand and participate in the proceeding and an interpreter is to be engaged by that party for the purpose of communicating with the Court: (a) the Court must permit that party to engage the services of an interpreter who meets the standards and requirements imposed by this Chapter; and (b) it is the obligation of that party to engage an interpreter. Note for subrule (4) This provision is not intended to limit the engagement of an interpreter by a party to a civil proceeding for any other purpose. For example, to interpret legal advice given by a legal practitioner. 96.06 Who may act as an interpreter (1) Subject to rule 96.05(4) and subrule (4), a person must not act as an interpreter unless the person: (a) is currently certified, registered or recognised as an interpreter for the other language by a recognised agency or otherwise satisfy the Court that the person is qualified to act as an interpreter; and (b) has read and agreed to comply with the code of conduct; and (c) swears or affirms to interpret accurately to the best of the person's ability. (2) A person must not act as an interpreter if the person: (a) is, or is likely to become, a party to, or a witness in, the proceeding or proposed proceeding; or Supreme Court Rules 1987 425 (b) has a close personal relationship with: (i) a party or a member of the party's family; or (ii) a witness or potential witness; or (c) has or may have a financial or other interest of any kind in the outcome of the proceeding or proposed proceeding, other than an entitlement to a reasonable fee for the services provided as an interpreter in the course of the person's engagement or appointment; or (d) is or may be unable to fulfil the person's duty of accuracy or impartiality under the code of conduct for any reason including, but not limited to, personal or religious beliefs or cultural or other circumstances. (3) A person acting as an interpreter must: (a) cease to do so if the person becomes aware of any of the disqualifying matters referred to in subrule (2) during a hearing; and (b) immediately disclose the matter to the Court. (4) In exceptional circumstances or if all reasonable efforts have failed to identify a person who satisfies the requirements of subrules (1) and (2), the Court may grant permission for any person (whether or not related or known to a party or witness) to act as an interpreter under this Chapter even if the person does not satisfy one or more of the requirements of those subrules, if: (a) the Court is satisfied that the person is able to interpret and, if necessary, sight translate accurately to the level the Court considers satisfactory in all the circumstances because of the person's specialised knowledge, based on the person's training, study or experience; and (b) the person swears or affirms to interpret accurately to the best of the person's ability; and (c) the Court is satisfied that the person understands and accepts that in acting as an interpreter the person: (i) owes a paramount duty to the Court to be impartial and accurate to the best of the person's ability; and (ii) is not the agent, assistant or advocate of the party or the witness; and Supreme Court Rules 1987 426 (d) the Court directs that the evidence and interpretation be sound recorded for spoken languages and video recorded for sign languages; and (e) the person is over the age of 18 years. 96.07 Functions of interpreters (1) An interpreter owes paramount duties of accuracy, impartiality and candour to the Court when acting as an interpreter, which override any other duty the person may have to any party to the proceeding, even if the interpreter is engaged directly by that party. (2) To carry out the duty of accuracy, an interpreter must interpret in a manner that results in the optimal and complete transfer of the meaning of the other language into English and of English into the other language, preserving the content and intent of the other language or English (as the case may be) without omission or distortion and including matters which the interpreter may consider inappropriate or offensive. (3) Unless the Court otherwise orders, an interpreter must: (a) interpret questions and all other spoken or signed communications in the hearing of the proceeding for the party or witness from English into the other language and from the other language into English; and (b) subject to subrule (4), before or during the course of a witness's evidence translate at sight written words shown to the witness. (4) An interpreter may decline to sight translate if: (a) the interpreter considers that the interpreter is not competent to do so; or (b) the task is too onerous or difficult by reason of the length or complexity of the text. (5) Unless the Court otherwise orders, an interpreter must not assist a party or that party's legal representatives in the conduct of a proceeding or proposed proceeding other than by interpreting questions and all other spoken or signed communications or sight translating documents in connection with the proceeding or proposed proceeding (including the hearing) for the party from English into the other language and from the other language into English. Supreme Court Rules 1987 427 96.08 Code of conduct for interpreters (1) Subject to rules 96.05(4) and 96.06(4), an interpreter must comply with the code of conduct. (2) Unless the Court otherwise orders, as soon as practicable after an interpreter is engaged in a proceeding or proposed proceeding the engaging party must provide the interpreter with a copy of the code of conduct. (3) Unless the Court otherwise orders and subject to rules 96.05(4) and 96.06(4), the evidence of a witness may not be received through an interpreter unless the Court is satisfied that the interpreter has read the code of conduct and agreed to be bound by it. 96.09 Evidence adduced through interpreters (1) Unless the Court otherwise orders, a translated affidavit or statement of a witness who requires an interpreter cannot be relied on in a proceeding unless it includes a certification by the interpreter, or the interpreter separately verifies by affidavit, to the effect that: (a) before sight translating the affidavit or statement to the witness, the interpreter: (i) read the code of conduct and agreed to be bound by it; and (ii) was given an adequate opportunity to prepare to sight translate the affidavit or statement; and (b) the interpreter sight translated the entire affidavit or statement to the witness, who then: (i) informed the person responsible for the preparation of the affidavit or statement through the interpreter that the person understood the interpreter and agreed with the entire contents of the affidavit or statement; and (ii) subsequently swore or affirmed the affidavit, or signed the statement, in the presence of the interpreter. Different interpreters may be used at different stages of a proceeding. (2) The Court may at any time, either of its own motion or on the application of a party, request the interpreter to correct, clarify, qualify or explain the interpreter's interpretation of the evidence or sight translation of a document. Supreme Court Rules 1987 428 (3) Any clarification, qualification or explanation given by the interpreter in response to a request under subrule (2) is not evidence of the interpreter in the proceeding. 96.10 Court may give directions concerning interpreters (1) Without limiting any other power of the Court to control its own procedures, the Court may at any time give directions concerning any of the following matters, having regard to the nature of the proceeding (including the type of allegations made and the characteristics of the parties and witnesses): (a) any particular attributes required or not required for an interpreter, including, but not limited to, gender identity, age or ethnic, cultural or social background so as to accommodate any cultural and other reasonable concerns of a party or witness; (b) the number of interpreters required in any proceedings and whether relay interpreting should be used; (c) establishment of the expertise of an interpreter; (d) the steps to be taken to obtain an accredited interpreter or person who is otherwise qualified to act as an interpreter; (e) the steps to be taken before the Court grants permission under rule 96.06(4); (f) what information concerning the proceeding may be provided to a person in advance of any hearing to assist the person to prepare to act as an interpreter at the hearing, such as pleadings, affidavits, lists of witnesses and other documents; (g) when, in what circumstances and under what (if any) conditions the information referred to in paragraph (f) may be provided; (h) whether the interpreter is to interpret the witness's evidence consecutively, simultaneously or in some other way; (i) other resources that the interpreter may be required to consult in the course of acting as an interpreter, such as dictionaries or other reference works; (j) the length of time for which an interpreter should interpret during a hearing without a break; (k) security for the interpreter including, if necessary, arrangements to preserve the anonymity of the interpreter; Supreme Court Rules 1987 429 (l) practical matters concerning the interpreter, such as seating for and the location of the interpreter; (m) disqualification, removal or withdrawal of an interpreter, including on the application of the interpreter or any party to the proceeding or on the Court's own motion; (n) payment of interpreters. (2) In making any order or direction in relation to interpreters the Court must have regard to any practice direction on interpreters made by the Chief Justice for use with this Chapter. 96.11 Application of other laws This Chapter applies subject to the provisions of the Evidence (National Uniform Legislation) Act 2011, the Evidence Act 1939 and any other evidentiary provisions or practices applicable to the 97.01 Form of application for waiver or deferral of fee An application to the Registrar to waive, defer or permit a party to pay a fee in instalments under regulation 5 of the Regulations must be: (a) made in the form approved by the Registrar; and (b) accompanied by a written undertaking, given by the applicant, to notify the Registrar of any settlement or judgment in the matter. 97.02 Certificate that fees paid or waived Without leave of the Court or a certificate from the Registrar that all fees required to be paid by a party have been paid or waived: (a) an application for leave to discontinue the proceeding by the party must not be accepted for filing; and (b) a notice of discontinuance of the proceeding by the party must not be accepted for filing; and Supreme Court Rules 1987 430 (c) a judgment or order in relation to the proceeding must not be authenticated. Note for rule 97.02 Regulation 5 of the Supreme Court Regulations 1985 is also relevant to the payment of fees. Supreme Court Rules 1987 431 rule 81A.16 1. Has an indictment been signed and served upon the accused? 2. Are further particulars of the indictment likely to be sought by the accused? 3. Does the accused person presently intend to plead guilty or not guilty to a specified count on the indictment? 4. Is there to be an application to sever the indictment and, if so, what parts of the indictment are to be severed? 5. Is a specified accused likely to make an application for a separate trial? 6. Is there a possibility of a change of plea? 7. Has there been a conference between counsel for the Director and counsel for the accused? If not, is such a conference proposed? 8. Does the prosecution propose to call additional evidence? 9. Has the prosecution notified the accused or his or her legal representative of additional evidence and, if it intends to do so, when is it proposed to furnish a proof of evidence? 10. What is the probable length of trial? (a) the prosecution's estimate? (b) the accused's estimate? 11. Is a point of law or of admissibility of evidence likely to be raised before a jury is empanelled? If yes, what are those matters and what is the likely duration of these matters? 12. Does the accused or the prosecution intend to raise a special issue? e.g. unfitness to be tried, change of venue, mental impairment. 13. Does the accused intend to raise a special plea? e.g. lack of jurisdiction, autrefois convict, autrefois acquit. 14. Does the accused intend to rely on an alibi not yet disclosed in conformity with the Criminal Code? 15. Do the parties anticipate a problem in relation to the availability of witnesses? If yes, give details. Supreme Court Rules 1987 432 16. What admissions of fact are sought by the prosecution? Is the accused prepared to make any of the admissions sought? 17. What admissions of fact are sought by the accused? Is the prosecution prepared to make any of the admissions sought? 18. Are there any difficulties relating to photographs or plans and formal proof of them? 19. Is an order sought for the inspection of prosecution exhibits or other evidentiary material in the possession of the prosecution as to which a question may arise in the course of the trial? 20. Is an order sought for the discovery, inspection, preservation or detention of a document or thing relating to the trial? 21. Is an order sought for the production before the Court of a document, tape recording or thing relating to the trial? 22. Does a party propose to deliver to the other party a notice to admit in respect of anything not covered by the answers to question No. 16 or 17? 23. What arrangements have been made for the accused or his or her legal representative to view a video recording or to hear a tape recording in the custody of the prosecution and to be provided with a copy and a transcript of it? 24. Does a party intend to apply for a view and, if so, where and at what stage of the trial? 25. Have the parties agreed that copies of exhibits or of preliminary exhibits are to be supplied to the jury? 26. Will an interpreter be required during the trial? If so, what language is to be interpreted? Has the name of the interpreter and his or her qualifications been provided to the other party? 27. Is it proposed that a witness be declared a vulnerable witness? If so, what orders are proposed under s 21A of the Evidence Act 1939? 28. Is it proposed that a witness give evidence by videoconferencing link? 29. Is it proposed to call as a witness a person who wishes to take an oath under section 10 of the Oaths, Affidavits and Declarations Act 2010? If so, what form of oath is required and how is it to be administered? 30. Is it proposed to call as a witness a person to whom section 26 of the Oaths, Affidavits and Declarations Act 2010 will apply? If so, has the identity of this witness been disclosed to the other party? Supreme Court Rules 1987 433 31. Does the prosecution intend to elect under section 21B(2)(a) of the Evidence Act 1939 for evidence in chief of a witness to be pre-recorded and given by video tape or other audio-visual means? 32. Does the prosecution intend to elect under section 21B(2)(b) of the Evidence Act 1939 for the whole of the evidence of a witness to be given by video tape or other audio-visual means at a special hearing of the Court in accordance with section 21B(4)(a) of that Act? 33. Does the prosecution intend to apply to the Court to admit evidence of a statement to another person as evidence of the facts in issue under section 26E(1) of the Evidence Act 1939? 34. Are there any other significant matters that might affect the proper and convenient trial of the issues? Supreme Court Rules 1987 434 Schedule 3 Code of Conduct for Interpreters in Legal Proceedings 1 Application of code This code of conduct applies to any person (the interpreter) who, whether or not for fee or any other reward, is engaged, appointed, volunteers or otherwise becomes involved in a proceeding or proposed proceeding to act as an interpreter by interpreting or sight translating from any spoken or signed language into English and from English into the other language for any person. Note for clause 1 The definitions in Chapter 11 apply to this Schedule. See rule 96.02. 2 General duty to the Court (1) An interpreter has an overriding duty to assist the Court impartially and with candour. (2) An interpreter's paramount duty is to the Court and not to any party to or witness in the proceeding, including the person retaining or paying the interpreter. (3) An interpreter is not an advocate, agent or assistant for a party or a witness. 3 Duty to comply with directions An interpreter must comply with any direction of the Court. 4 Duty of accuracy (1) An interpreter must at all times use the interpreter's best judgment to be accurate in the interpreter's interpretation or sight translation. (2) If an interpreter considers that the interpreter's interpretation or sight translation is or could be in any way inaccurate, incomplete or requires qualification or explanation (including, without limitation, where the other language is ambiguous or otherwise unclear for any reason), the interpreter must: (a) immediately inform the party who engaged the interpreter and provide the necessary correction, qualification or explanation to that party; and Supreme Court Rules 1987 435 (b) if the interpreter's evidence is being given or was given in Court – immediately inform the Court and provide the necessary correction, qualification or explanation to the Court. Note for clause 4 The duty of accuracy is further described in rule 96.07(2).