Part 1 Preliminary

1 Short title

These Rules of Court may be cited as the Supreme Court Rules 2000 .

2 Commencement

These Rules of Court take effect on 1 May 2000.

Part 2 Application, Interpretation and Preliminary Matters

Division 1 Preliminary

3 Application of these rules

[Rule 3 Amended by S.R. 2019, No. 50, Applied:09 Sep 2019] Subject to rules 3A and 4 , the provisions of these rules apply to any civil proceedings commenced in Court.

3A Admiralty jurisdiction

[Rule 3A Inserted by S.R. 2019, No. 50, Applied:09 Sep 2019]

(1)  This rule applies to the following persons:

(a) the Principal Registrar;

(b) the Deputy Registrar;

(c) the Assistant Deputy Registrar.

(2)  In civil proceedings in the admiralty jurisdiction of the Court, a person to whom this rule applies may perform the functions and exercise the powers of the Registrar and the Marshal under the Admiralty Rules 1988 of the Commonwealth.

(3)  If a person to whom this rule applies cannot conveniently execute a warrant or other instrument related to civil proceedings in the admiralty jurisdiction of the Court –

(a) that person may engage an appropriate officer of the Court to execute the warrant or instrument; and

(b) the officer referred to in paragraph (a) is authorised to execute that warrant or instrument.

(4)  In any civil proceedings in the admiralty jurisdiction of the Court –

(a) a fee is payable in respect of those proceedings in relation to any matter for which a fee is payable for that matter in any other civil proceedings under these Rules; and

(b) a fee payable under paragraph (a) in relation to a matter is the same as the fee payable for that matter in any other civil proceedings.

4 Special provisions made by other rules

These rules do not apply to a proceeding in respect of which special provision is made by any other rule unless otherwise provided by that other rule.

5 Interpretation

In these rules –

A4 paper means paper known by that name that is 297 millimetres in length by 210 millimetres in width;

Act means the Supreme Court Civil Procedure Act 1932 ;

action means a proceeding commenced by a writ;

[Rule 5 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003]

[Rule 5 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] address for service means an address for service that complies with rule 128 ;

application means –

(a) an originating application in writing by which a proceeding mentioned in rule 89 or 90 is commenced; and

(b) an interlocutory application, oral or in writing, made to the Court or a judge in the course of any proceeding already commenced in the Court;

[Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] barrister has the same meaning as in the Legal Profession Act 2007 ;

[Rule 5 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003]

[Rule 5 Amended by S.R. 2009, No. 52, Applied:01 Nov 2010] Convention means a convention, other than the Hague Convention, with a foreign country, made with or extended to the Commonwealth or the State, with respect to legal proceedings in civil matters whether or not it is also made with respect to other legal proceedings;

Convention country means a foreign country to which a Convention applies;

[Rule 5 Amended by S.R. 2007, No. 23, Applied:02 May 2007] corporation has the same meaning as in the Corporations Act;

Court means the Supreme Court;

deliver includes serve;

document means any process, pleading, notice, order, application or other document or written communication;

endorsement, used in respect of a writ, includes any statement of a plaintiff's claim set out on the face of the writ;

[Rule 5 Amended by S.R. 2009, No. 52, Applied:01 Nov 2010] Hague Convention means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at The Hague on 15 November 1965;

[Rule 5 Amended by S.R. 2009, No. 52, Applied:01 Nov 2010] Hague Convention country means a country, other than Australia, that is a party to the Hague Convention;

[Rule 5 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] hearsay rule has the same meaning as in the Evidence Act 2001 ;

inspect includes the following, with or without the aid of equipment:

(a) to view data or visual images embodied in any document;

(b) to listen to sounds embodied in any document;

(c) to reproduce sounds, data or visual images embodied in any document;

judge, in relation to an inferior court, includes any judicial officer invested with the power of exercising the jurisdiction of that inferior court;

[Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] law practice has the same meaning as in the Legal Profession Act 2007 ;

[Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] Law Society means the Law Society of Tasmania within the meaning of the Legal Profession Act 2007 ;

[Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] Legal Profession Board has the same meaning as in the Legal Profession Act 2007 ;

litigation guardian means a litigation guardian for a person under disability;

office seal means a seal kept under rule 17 ;

officer means –

(a) a person employed in a registry of the Court; and

(b) [Rule 5 Amended by S.R. 2008, No. 2, Applied:01 Mar 2008] the Associate Judge; and

(c) the Principal Registrar; and

(d) a district registrar;

opposite party includes any party to a cause or matter in which an issue is to be determined or a right is to be adjudicated;

ordinary sittings of a Full Court means a sitting of a Full Court appointed under section 20(2) and (3) of the Act;

originating process means –

(a) any document by which an original proceeding is commenced; and

(b) a writ;

person under disability means an infant or a person who is incapable of managing and administering his or her affairs in relation to proceedings resulting from any absence, loss or abnormality of mental or psychological function;

personal service means service effected by delivery to the person to be served;

[Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008]

[Rule 5 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] practitioner means an Australian legal practitioner;

prescribed fee means a fee prescribed by Schedule 2 ;

prescribed form means the appropriate form prescribed in the Supreme Court Forms Rules 2000 ;

[Rule 5 Amended by S.R. 2003, No. 142, Applied:03 Dec 2003]

[Rule 5 Amended by S.R. 2003, No. 142, Applied:03 Dec 2003] [Rule 5 Amended by S.R. 2010, No. 57, Applied:01 Jul 2010] prescribed rate of interest means the rate of interest prescribed under rule 5A ;

Principal Registrar means the Registrar of the Court;

Principal Registry includes the only registry of the Court if there is no district registry;

probate action includes every proceeding relating to the grant or recall of probate or letters of administration other than common form business;

proceeding means any matter commenced by originating process;

process server means a person, who is not an officer of the Sheriff, responsible for the service or execution of a document or process;

receiver includes –

(a) an assignee; and

(b) a manager; and

(c) a manager appointed by or under an order of the Court;

register of proceedings means the register kept under rule 32(1)(c) ;

registrar means –

(a) the Principal Registrar; and

(b) a district registrar of the Court;

registry, in relation to any proceeding or intended proceeding, means the registry of the Court in which that proceeding is pending or is intended to be commenced;

seal of the Court means the Great Seal of the Court;

sealed copy, in relation to a document, means a copy sealed with the seal of the Court or an office seal;

society includes –

(a) an unincorporated society; and

(b) a fellowship; and

(c) a club, other than a proprietary club; and

(d) an association;

taxing officer means an officer of the Court empowered to conduct a taxation of costs under these rules;

[Rule 5 Amended by S.R. 2012, No. 66, Applied:11 Oct 2013] Trans-Tasman Proceedings Act means the Trans-Tasman Proceedings Act 2010 of the Commonwealth;

writ, used without any qualification, means a document in accordance with the prescribed form;

writing includes print and typewriting.

5A Prescribed rates of interest for administration proceedings, pre-judgment interest and post-judgment interest

[Rule 5A Inserted by S.R. 2003, No. 142, Applied:03 Dec 2003] [Rule 5A Amended by S.R. 2004, No. 156, Applied:22 Dec 2004] [Rule 5A Amended by S.R. 2004, No. 156, Applied:22 Dec 2004] [Rule 5A Substituted by S.R. 2010, No. 57, Applied:01 Jul 2010]

(1)  For administration proceedings under Division 6 of Part 36 , the prescribed rate of interest for a calendar year, or for part of a calendar year, is the last cash rate published by the Reserve Bank of Australia before 1 January in that year.

(2)  For the purpose of section 34 of the Supreme Court Civil Procedure Act 1932 and rule 347(1)(b) , the prescribed rate of interest for a calendar year, or for part of a calendar year, is a rate equal to 4% plus –

(a) for the period commencing on 1 January in a calendar year and ending on 30 June in that year, or for part of that period, the last cash rate published by the Reserve Bank of Australia before that 1 January; and

(b) for the period commencing on 1 July in a calendar year and ending on 31 December in that year, or for part of that period, the last cash rate published by the Reserve Bank of Australia before that 1 July.

(2A)  [Rule 5A Subrule (2A) inserted by S.R. 2019, No. 50, Applied:09 Sep 2019] For the purpose of section 35A of the Supreme Court Civil Procedure Act 1932 , the prescribed rate of interest that is not to be exceeded under that section for a calendar year, or for part of a calendar year, is the rate specified in subrule (2) .

(3)  For the purpose of section 165 of the Supreme Court Civil Procedure Act 1932 and rule 887A(1)(b) , the prescribed rate of interest for a calendar year, or for part of a calendar year, is a rate equal to 6% plus –

(a) for the period commencing on 1 January in a calendar year and ending on 30 June in that year, or for part of that period, the last cash rate published by the Reserve Bank of Australia before that 1 January; and

(b) for the period commencing on 1 July in a calendar year and ending on 31 December in that year, or for part of that period, the last cash rate published by the Reserve Bank of Australia before that 1 July.

6 Notices

Any notice required by these rules is to be in writing unless –

(a) these rules provide that it may be given orally; or

(b) the Court or a judge authorises it to be given orally.

7 Forms

(1)  If a rule requires anything to be in accordance with a prescribed form, the relevant form is to be used with any variation the circumstances require.

(2)  A requirement that a title be inserted in a form is taken to be a requirement that the form include the title required for an originating process under rule 97 .

8.

[Rule 8 Rescinded by S.R. 2003, No. 139, Applied:26 Nov 2003]

9 Court acting on own motion or on application

The Court or a judge may exercise any power under these rules –

(a) of the Court's or judge's own motion; or

(b) on the application of a person who has a sufficient interest.

10 Directions as to proper procedure

(1)  A party or a person intending to become a party may make an application under section 201 of the Act to a judge for directions.

(2)  An application is to –

(a) be in writing; and

(b) be addressed to the registrar; and

(c) state the grounds of the application.

(3)  Two or more parties or intended parties may make a joint application.

(4)  A person making an application may serve an application on any other party to the proceeding or intended proceeding that the person considers may be affected by the judge's directions.

(5)  On receipt of an application, the registrar is to –

(a) fix a time for the judge's determination of the application; and

(b) notify the applicant, and any party who has been served with a copy of the application, of that time.

(6)  On an application, a judge may –

(a) order the applicant to give notice of the application to any person and may adjourn the application so that that person can attend; and

(b) act on the material contained in the application and any other material the judge may receive; and

(c) give any directions the judge considers may best give effect to the purposes of these rules.

(7)  A copy of any direction or order made concerning an intended proceeding is to be endorsed at the time of filing on the originating process and on every copy.

11 Corporations to act by practitioner

Except where otherwise provided by any Act or these rules, a corporation, whether or not a party, is not to take any step in a proceeding otherwise than by a practitioner.

12 Acting by practitioner

An act required by these rules to be done in relation to a party who is suing or appearing by a practitioner is to be done in relation to the practitioner, unless it is provided that it be done in relation to the party personally.

Division 2 Failure to comply with the rules

13 Setting aside for irregularity

Failure to comply with any of these rules does not make any proceedings void, unless the Court or a judge so orders.

14 Application to set aside for irregularity

(1)  The Court or a judge may order that any proceedings that do not comply with these rules –

(a) be set aside, either wholly or in part; or

(b) be amended or otherwise dealt with in any manner and on any terms the Court or judge considers fit.

(2)  An application to set aside any proceedings on the ground that they do not comply with these rules is to state each irregularity complained of in detail.

(3)  On an application, the Court or judge must not make an order setting aside the proceedings unless –

(a) the application was made within a reasonable time; and

(b) the applicant has taken no fresh step in the proceedings after becoming aware of an irregularity complained of.

15 Wrong originating process

A proceeding or the originating process by which it was commenced is not void solely on the ground that the proceeding was commenced by the wrong process.

Part 3 Seals, Registries and Sheriff

16 Seal of the Court

(1)  The Principal Registrar, as the deputy of the Chief Justice, has custody of the seal of the Court.

(2)  The Principal Registrar is to ensure that the seal of the Court is kept safely when not in use.

17 Office seals

(1)  Each registrar is to keep an office seal.

(2)  The office seal –

(a) is to bear the words "Supreme Court Office", together with the word "Hobart", "Launceston" or "Burnie"; and

(b) is to be affixed to all documents required or authorised to be sealed, except as provided by rule 18(1) .

18 Affixing of seal

(1)  The following documents are to be sealed with the seal of the Court only and not with an office seal:

(a) a commission issued by authority of the Court or a judge;

(b) an exemplification of proceedings in the Court;

(c) a grant of probate or administration, whether by way of original grant or by way of sealing a grant made elsewhere;

(d) [Rule 18 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] a certificate of admission of a person to the legal profession;

(e) a document issued from the Court for use beyond the jurisdiction of the Court, except for a document for service on a party to a cause or matter;

(f) a document which the Court or a judge directs to be sealed with the seal of the Court.

(2)  The following documents are to be sealed with the office seal:

(a) a document for service issued out of a registry;

(b) a writ;

(c) an office copy of a record of the Court or of a document filed in the Court;

(d) a document which the Court or a judge directs to be sealed with the office seal.

19 Court holidays

The following days are Court holidays:

(a) New Year's Day;

(b) Good Friday, Easter Monday and Easter Tuesday;

(c) Christmas Day and the 3 days following Christmas Day;

(d) [Rule 19 Amended by S.R. 2001, No. 100, Applied:12 Sep 2001] .  .  .  .  .  .  .  .  

(e) any other day appointed by the Chief Justice.

20 Office hours

(1)  [Rule 20 Subrule (1) substituted by S.R. 2021, No. 20, Applied:24 Mar 2021] Subject to any direction published by the Principal Registrar, each registry is to be open from 9 am until 4.30 pm on every day in the year except Saturdays, Sundays and Court holidays.

(2)  The Principal Registrar may authorise a district registry to be closed for the period between 1 pm and 2 pm.

21 Management of Principal Registry

The Principal Registrar has the general management of the officers employed in the Principal Registry and, subject to any Act, is to allocate their duties.

22 Authority of district registrar

Subject to any direction under rule 24 , a district registrar may exercise any authority and jurisdiction in respect of a proceeding in the district registry the Principal Registrar may exercise.

23 Proceedings in district registries

(1)  Any step in a proceeding in a district registry, whether before or after judgment and including execution, is to be taken in the district registry unless these rules otherwise provide or the Court or a judge otherwise orders.

(2)  If the Court or a judge directs a judgment or an order in a proceeding in a district registry to be entered in the Principal Registry, the Principal Registrar is to send an office copy of the judgment or order to the district registry for filing.

24 Management of district registries

(1)  The Principal Registrar has the general management of all district registries and may give directions to any district registrar.

(2)  The Principal Registrar may direct a district registrar to send a document filed in the district registry to the Registry or to another district registry.

(3)  A district registrar must comply with any direction given by the Principal Registrar.

25 Officers subject to order or direction of Court

Every officer is subject to an order or direction of the Court or a judge.

26 Custody of documents

(1)  The Principal Registrar is to have custody of –

(a) all the records of the Court, other than documents filed in a district registry; and

(b) all other documents filed, deposited or impounded in the Principal Registry.

(2)  A district registrar is to have custody of all documents filed in the district registry.

27 Documents required for hearing

(1)  The registrar is to deliver to the associate of the judge who is to hear a matter all documents filed in the registry and required for use in relation to that matter a reasonable time before the hearing.

(2)  Immediately after the conclusion of the hearing, the associate is to return to the registrar any of the documents that are not required by the judge.

(3)  The associate is to return the documents that are required by the judge as soon as practicable after the judge has finished with them.

28 Transmission of documents between registries

(1)  If any proceeding pending in a district registry is to be tried outside the district for that registry, the district registrar is to send all documents filed in the registry to –

(a) the district registrar in whose district the trial is to be held; or

(b) the Principal Registrar, if the trial is not to be held within the district of any district registry.

(2)  If any proceeding which is not pending in a district registry is to be tried within the district of a district registry, the Principal Registrar is to send all documents filed in the registry to the district registrar in whose district the trial is to be held.

29 Removal of documents from registry

(1)  Except as provided by this Division, a record of the Court or other document is not to be removed from a registry without an order of the Court or a judge.

(1A)  [Rule 29 Subrule (1A) inserted by S.R. 2015, No. 91, Applied:16 Dec 2015] A judge, the Principal Registrar, a District Registrar, or an officer of the Court with the approval of the Principal Registrar, may temporarily remove a record of the Court or other document from a registry.

(2)  A subpoena is not to be issued for the production of a document referred to in subrule (1) .

30 Power of clerks

A writ, judgment, commission, appeal book or other document provided for by these rules may be received, signed, settled and filed by a registrar or any other officer to whom those duties are assigned.

31 Prepayment of fees

[Rule 31 Amended by S.R. 2004, No. 57, Applied:28 Jul 2004] A document in respect of which a fee is payable is not to be sealed or filed until the fee is paid, unless by order of the Registrar.

32 Indexes of judgments, orders and files

(1)  The Principal Registrar and each district registrar are to maintain –

(a) [Rule 32 Subrule (1) amended by S.R. 2007, No. 23, Applied:02 May 2007] .  .  .  .  .  .  .  .  

(b) indexes of files and bundles of documents filed; and

(c) a register of the documents filed and steps taken in every proceeding, showing the dates of filing and of the taking of each step in chronological order.

(2)  An index or a register –

(a) is to be maintained in a form which enables convenient reference; and

(b) may be maintained in computerised form.

(3)  [Rule 32 Subrule (3) substituted by S.R. 2007, No. 23, Applied:02 May 2007] An index or register referred to in subrule (1) is to be accessible to the public during office hours on payment of the prescribed fee.

(4)  [Rule 32 Subrule (4) omitted by S.R. 2007, No. 23, Applied:02 May 2007] .  .  .  .  .  .  .  .

33 Searches

(1)  A person may request the registrar to search an index or a register.

(2)  A request is to –

(a) be in writing; and

(b) contain details of the information sought in relation to a proceeding; and

(c) be accompanied by the prescribed fee.

(3)  On receipt of a request, the registrar is to –

(a) cause the index or register to be searched; and

(b) issue a certificate certifying the results of the search.

(4)  Except with the leave of the Court or a judge, a person who is not a party to a proceeding may not search in a registry for, or inspect, the following:

(a) with respect to proceedings in chambers, any judgment, order, transcript of a proceeding or other document;

(b) any affidavit, interrogatories, answers to interrogatories, list of documents given on discovery, admissions, evidence taken on deposition, subpoena or document lodged in answer to a subpoena;

(c) any document which the registrar considers ought to remain confidential to the parties.

(5)  [Rule 33 Subrule (5) inserted by S.R. 2015, No. 99, Applied:06 Jan 2016] Subrule (4) does not apply to a person who makes a request under subrule (1) for the purpose of reporting for the Council of Law Reporting for Tasmania.

34 Filing of certificates

A certificate of a registrar made under a judgment or order is to be filed in the registry in which the judgment or order is entered.

34A Certificate of finalisation

[Rule 34A Inserted by S.R. 2004, No. 56, Applied:21 Jul 2004]

(1)  If an action or proceeding has been finalised otherwise than by judgment, order or discontinuance, the party who filed the originating process in the action or proceeding is to file a notice certifying that the action or proceeding has come to an end.

(2)  A notice filed under subrule (1) is to –

(a) be in the prescribed form; and

(b) be filed within 21 days after the action or proceeding has come to an end.

35 Office copies

(1)  On receipt of a request from a person entitled to have a copy of any record of the Court or of any document filed, the registrar is to supply a copy of the record or document requested.

(2)  The record or document is to be marked with the words "office copy" and sealed.

(3)  An office copy provided under subrule (1) is a certified copy for the purposes of any law relating to the admission in evidence of certified copies.

36 Documents deposited or left in registry

(1)  A document ordered to be left or deposited is to be left or deposited –

(a) in the registry named in the order; or

(b) if no registry is so named, in the registry in which the relevant proceeding is pending.

(2)  The document is to be subject to any directions the Court or a judge may give as to its production.

37 Attendance away from place of discharge of duties

An officer required by any person to attend at any place out of the city or town in which the officer normally discharges his or her duties of office, may require that person to –

(a) deposit a sum of money sufficient to cover the expected charges and expenses associated with the attendance; and

(b) undertake to pay any charges and expenses in excess of the deposit.

38 Directions to registrar

A party may apply to the Court or a judge ex parte in a summary way for a direction that the registrar do any act which –

(a) a registrar is required or entitled to do; and

(b) the party requires to be done; and

(c) has not been done.

39 Rules of Court

In relation to any Rules of Court made by the judges, the Principal Registrar is to –

(a) countersign the rules; and

(b) keep the original rules in safe custody; and

(c) keep an index of the rules.

40 Attendance of Sheriff in Court

The Court or a judge may require the Sheriff or a deputy of the Sheriff to attend a sitting of the Full Court or a sitting of a judge whether in Court or in chambers.

41 Documents to be left with Sheriff with written instructions

A party requiring a document or process to be served or executed by the Sheriff is to –

(a) leave the document or process with the Sheriff; and

(b) provide written instructions for its service or execution.

42 Verification of service or execution

(1)  The service or execution of any document or process by the Sheriff or by any person who is not an officer of the Sheriff charged with the service or execution of the document or process is proved by a return under subrule (2) .

(2)  A return is to –

(a) state by whom the document or process has been served or executed; and

(b) state the date and mode of service or execution; and

(c) be signed by the Sheriff or the person who is charged with its service or execution.

43 Returns

(1)  The Sheriff or process server is to return the process into Court if required by the party at whose instance it was issued.

(2)  The return is to be made by filing the original process in the registry from which it issued endorsed with, or having annexed to it, a certificate –

(a) that is signed by the Sheriff, an officer of the Sheriff or other person; and

(b) that records what has been done under the process.

44 Return that person not found

If the person on whom a document or process is to be served or executed cannot be located, the Sheriff or process server is to –

(a) return the document or process into Court; and

(b) certify that the person cannot be located.

45 Return of writ

(1)  An order for the return of any writ or to bring in a person ordered to be attached or committed is not necessary.

(2)  A party at whose instance a writ of execution was issued or an order for attachment or committal was made may give notice to the Sheriff or process server requiring –

(a) the return of the writ; or

(b) that the Sheriff or the process server –

(i) make a report; or

(ii) bring in the person within a specified time, being not less than 8 days.

(3)  The Sheriff or any other person who does not comply with a notice under subrule (2) is liable to attachment.

Part 4 Time

46 Calculation of periods of sittings

The days of the start and finish of a sitting or vacation are included in the sitting or vacation.

47 Computation of number of days

A period of a particular number of days, not expressed to be clear days, excludes the first day and includes the last day.

48 Vacation excluded for certain purposes

[Rule 48 Substituted by S.R. 2016, No. 122, Applied:11 Jan 2017] Unless the Court or a judge otherwise directs, the period between the twenty-third day of December and the seventh day of January following is not to be reckoned in the computation of the times appointed or allowed by these rules for the filing, amendment or delivery of any pleading or appearance.

49 Service

A writ, pleading, notice, application, order or other document must not be served on a Sunday, Good Friday or Christmas Day.

50 Exclusion of certain days

A period of less than 6 days appointed or allowed for doing any act or taking any proceeding does not include a Saturday, Sunday or Court holiday.

51 Expiry of period on closed day

If the period for doing any act or taking any proceeding expires on a Saturday, Sunday or Court holiday, the act or proceeding may be done or taken on the next day which is not a Saturday, Sunday or Court holiday.

52 Extension or abridgment of period

(1)  The Court or a judge may extend or abridge the period for doing any act or taking any proceedings allowed or limited by these rules or by any order of the Court or a judge on any terms the Court or judge considers just.

(2)  An extension of any period may be ordered although the application is made after the expiration of the period originally allowed or limited.

(3)  The costs of an application and an order made under subrule (1) are to be borne by the applicant unless the Court or a judge otherwise orders.

53 Extension of period by consent

The period for delivering, amending or filing any pleading or other document may be extended by the consent in writing of the parties to the proceeding who may be affected by the pleading or document without application to the Court or a judge.

54 Fixing of period

The Court or a judge may fix a period if a period is not fixed by these rules or by any judgment or order for doing any act in any proceeding.

55 Notice after delay of one year

If a step, other than an application on which no order has been made, has not been taken in a proceeding for at least one year since the last step was taken, a party may not take any further step in the proceeding without first giving to every other party one month's notice of intention to proceed.

56 Notice after delay of 6 years

(1)  If a step, other than an application on which no order has been made, has not been taken in a proceeding for 6 years since the last step was taken, a party may not take any further step in the proceeding without the order of the Court or a judge.

(2)  An order may be made either ex parte or on notice.

Part 5 Jurisdiction as to costs

57 Costs in discretion of Court

(1)  The costs of the proceeding in the Court or before a judge are to be in the discretion of the Court or judge.

(2)  Subrule (1) does not affect the entitlement of an executor or administrator, or a trustee or mortgagee, who has reasonably instituted, carried on or resisted any proceeding, to costs out of a particular estate or fund.

58 Costs of proceedings tried before judge of an inferior court or referee

If a proceeding is tried, determined or dealt with by a judge of an inferior court of civil jurisdiction, an officer or a referee who has the power to deal with the costs of the proceeding, the judge, officer or referee has the same discretion with respect to costs conferred on the Court or judge by rule 57 .

59 Costs of cause removed from inferior court

The costs of any proceeding removed from an inferior court which had jurisdiction in that proceeding are costs in the cause.

60 Costs due to neglect of counsel or practitioner

If the hearing of any matter is delayed or adjourned because of the neglect of the counsel or practitioner for any party, the Court or judge may order that the counsel or practitioner –

(a) is not entitled to recover any costs the Court or judge determines; and

(b) is personally liable for all or any of the party's costs the Court or judge determines.

61 Costs due to delay or misconduct of practitioner

(1)  If in any proceeding it appears to the Court or a judge that a person has incurred costs improperly or without any reasonable cause or that, because of any undue delay, misconduct or default by a practitioner, costs properly incurred have proved fruitless to the person incurring them, the Court or judge may require the practitioner of the person to show cause –

(a) why costs should not be disallowed as between the practitioner and the client of the practitioner; and

(b) why the practitioner should not repay to the client any costs which the client has been ordered to pay to any other person.

(2)  The Court or judge may make any order that the justice of the case requires and may –

(a) refer the matter to a taxing officer for inquiry and report; and

(b) direct the practitioner in the first place to show cause before the taxing officer; and

(c) [Rule 61 Subrule (2) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] direct or authorise the Legal Profession Board to attend and take part in the inquiry.

(3)  Notice of any proceedings or order under this rule is to be given to the client in any manner the Court or judge directs.

(4)  [Rule 61 Subrule (4) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] Any costs incurred by the Legal Profession Board in connection with an inquiry are to be paid by any person, or out of any fund, the Court or a judge directs.

62 Costs of practitioner litigation guardian

(1)  If a practitioner acts in any proceeding as the litigation guardian of a person under disability, the Court or a judge may –

(a) direct that any costs incurred in the performance of the duties of guardian be paid –

(i) by a party to the proceeding; or

(ii) out of any fund in Court in which the person under disability is interested; and

(b) give directions for the repayment or allowance of those costs.

(2)  If a practitioner acts without an order as litigation guardian of a person under disability, the costs incurred in the performance of the duties as guardian are in the discretion of the Court or judge.

62A Liability of litigation guardian for costs

[Rule 62A Inserted by S.R. 2010, No. 57, Applied:30 Jun 2010] If in a proceeding the Court or a judge orders a litigation guardian to pay costs to any other party to that proceeding, unless otherwise ordered by the Court or judge –

(a) the litigation guardian is not personally liable for those costs; and

(b) those costs may be set off against any costs that the Court or judge has ordered that other party to pay to that litigation guardian; and

(c) any balance is to be paid out of the estate of the relevant person under disability.

63 Costs not to be out of estate

[Rule 63 Amended by S.R. 2010, No. 57, Applied:30 Jun 2010] Subject to rule 62A , costs of an unsuccessful claim or unsuccessful resistance to a claim to any property are not to be paid out of an estate unless the Court or a judge so orders.

64 Costs to be out of legacy

The costs of, or relating to, an inquiry to ascertain the person entitled to any legacy, money or share are to be paid out of the legacy, money or share, unless the Court or a judge otherwise orders.

65 Costs of incidental applications

Unless the Court or a judge otherwise orders –

(a) the costs of an opposed application in a proceeding are part of the costs of the cause of the party in whose favour the application is determined; and

(b) the costs of an unopposed application in a proceeding are part of each party's costs of the cause.

66 Costs of application not disposed of

If an application or other matter is ordered to stand over to the trial and an order is not made at the trial as to the costs of the application or matter, the costs of each party to the application or matter are part of that party's costs of the cause.

67 Costs reserved

[Rule 67 Substituted by S.R. 2004, No. 56, Applied:21 Jul 2004] If the Court or judge reserves the costs of a motion, application or other proceeding, those costs are to follow the event unless the Court or a judge otherwise directs.

68 Costs for unnecessary proceedings

If the further prosecution of any proceeding becomes unnecessary, except for the purpose of determining by whom the costs of the proceeding should be paid, the Court or a judge may determine that on the application of a party.

69 Costs unnecessarily incurred

The Court or a judge may order that any costs unnecessarily incurred by a party be paid by that party, although that party is otherwise entitled to the costs of the proceeding.

Part 6 Suitors' fund

70 Interpretation of Part 6

In this Part –

common fund means the common fund formed under rule 74(1) ;

half-year means a half-year ending on a day specified in rule 75(1) ;

interest includes –

(a) dividends or periodical income; and

(b) the interest, dividends and other periodical income on any funds referred to in an order by the Court or a judge;

money in Court means –

(a) any sum of money paid into Court or placed to the credit of any cause, matter or account in Court; and

(b) any dividends on securities in Court and interest on money lodged in Court and invested under any legislation.

71 Payment out of Court

[Rule 71 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] Any money in Court that a person is entitled to may be paid out to the person or his or her practitioner on such written authority as the Principal Registrar considers sufficient.

72 Remission of money by Principal Registrar

(1)  [Rule 72 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] A person who is entitled to payment of any money in Court may give written instructions to the Principal Registrar to remit the money to that person or his or her practitioner, banker or another person by cheque sent by post or otherwise.

(2)  The Principal Registrar, on being satisfied of the fulfilment of any conditions attached to the payment, may remit the money in accordance with the instructions.

(3)  A cheque or other document by which payment of money is effected for the purposes of this Division when endorsed, signed or negotiated by the payee named in it is a valid discharge to the Principal Registrar for the amount expressed.

(4)  The Principal Registrar may require a receipt for a payment made by the Principal Registrar.

73 Evidence

The Principal Registrar may determine what evidence is sufficient evidence that a person is entitled to –

(a) the payment of any money in Court; or

(b) the transfer of any securities standing in Court; or

(c) the fulfilment of any condition affecting such a payment or transfer.

74 Investment of money in Court

(1)  Subject to any direction of the Court or a judge, the Principal Registrar is to invest all money in Court, other than money lodged for safe custody, in any securities specified by any law or instrument, and where none is specified, the money is to form a common fund to be invested by the Principal Registrar in –

(a) any one or more of the investments specified in section 194C(2) of the Act; or

(b) a contributory first mortgage of real estate in the State under the control of the Public Trustee or a trustee company within the meaning of the Trustee Companies Act 1953 , whether or not the moneys secured by the mortgage are provided wholly or partly by the Principal Registrar from the common fund.

(2)  The Principal Registrar is to cause to be paid into the common fund all interest earned on investments under this rule.

75 Interest on money in common fund

(1)  At the end of every half-year ending on 30 June or 31 December the Principal Registrar is to –

(a) fix the annual rate at which interest is to be credited to an account in which money forming part of the common fund was standing at the end of that half-year; and

(b) credit interest at that rate to each account.

(2)  Interest is not to be computed on an amount less than $1.

(3)  Interest on money in the common fund accrues by calendar months and is not to be computed for any shorter period than one month unless the Court or a judge or the Principal Registrar otherwise directs.

(4)  For the purposes of subrule (3) , interest –

(a) is to be computed from a day to be fixed by the Principal Registrar in the month following that in which the money is paid into the common fund; and

(b) ceases on the corresponding day of the last month preceding the day of the withdrawal of the money from the common fund.

(5)  Interest paid into the common fund by cheque does not form part of the common fund until the cheque has been credited in the books of the authorised deposit-taking institution into which it has been paid.

(6)  If money that has been invested as part of the common fund is paid out of Court before the end of a half-year, interest that has accrued but has not been credited to the account is to be computed at the rate last fixed under subrule (1) .

(7)  The Principal Registrar may deduct from the amount of the interest payable on money under subrule (6) a sum not exceeding 0.5% a year of that amount and the amount so deducted remains part of the common fund.

(8)  In this rule,

authorised deposit-taking institution means a body corporate that is an authorised deposit-taking institution for the purposes of the Banking Act 1959 of the Commonwealth.

76 Interest on money not in common fund

If the interest on an investment, other than an investment of money in the common fund, is to be accumulated, the Principal Registrar may invest that interest in the common fund until it amounts to $200, when it is to be invested in accordance with rule 74 .

77 Reserve fund

(1)  Interest earned by the common fund and not credited to an account to which money forming part of the common fund was standing during any half-year is to be carried to a reserve fund.

(2)  The reserve fund is part of the common fund and, with the approval of a judge, may be used by the Principal Registrar –

(a) in making good any deficiencies in the funds in Court; or

(b) in making good any amount by which the amount of interest to be credited to the accounts forming part of the common fund during any half-year exceeds the amount of interest earned for that half-year; or

(c) to pay any expenses incurred in administering the funds in Court.

(3)  Interest in the reserve fund that is not used for the purposes of subrule (2)  –

(a) is to be invested as part of the common fund; and

(b) is not to be treated as unclaimed money.

Part 7 Proceedings

78 Requirements for documents

Any document filed, delivered or otherwise used in connection with any proceeding is –

(a) [Rule 78 Amended by S.R. 2001, No. 100, Applied:12 Sep 2001] to be printed on A4 paper with a space of not less than 4 millimetres between the lines; and

(b) not to be a carbon copy; and

(c) [Rule 78 Amended by S.R. 2012, No. 90, Applied:17 Oct 2012] .  .  .  .  .  .  .  .  

(d) to have an inner margin of about 25 millimetres in width and an outer margin of about 19 millimetres in width; and

(e) not to be handwritten, except by leave of a registrar.

79 Identification of party

A document is to have the following information shown below a horizontal line drawn at the foot of the first page:

(a) if the party is represented by a practitioner –

(i) the name of the party on whose behalf the document is filed; and

(ii) the name, address, telephone number and facsimile number of the practitioner; and

(iii) if an agent for the practitioner acts in the proceeding, the name, address, telephone number and facsimile number of the agent; and

(iv) the name of the practitioner who has carriage of the proceedings in which the document is filed; and

(v) [Rule 79 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] [Rule 79 Amended by S.R. 2013, No. 70, Applied:25 Sep 2013] the address of the practitioner for the reception of documents in a document exchange; and

(vi) [Rule 79 Amended by S.R. 2013, No. 70, Applied:25 Sep 2013] if the practitioner accepts service of documents by email, the email address of the practitioner;

(b) if the party is not represented by a practitioner –

(i) the name, telephone number and facsimile number of the party for whom the document is filed; and

(ii) [Rule 79 Amended by S.R. 2013, No. 70, Applied:25 Sep 2013] the address for service of the party; and

(iii) [Rule 79 Amended by S.R. 2013, No. 70, Applied:25 Sep 2013] if the party accepts service of documents by email, the email address of the party.

80 Statement of numbers

In any document dates and numbers are to be expressed in figures.

81 Copies of documents

A party who, under these rules or an order, receives a copy of a document in the possession of another party is to pay that other party at the rate for copies of documents set out in Part 1 of Schedule 1 .

82 Filing in Court act of an officer

(1)  Only an officer may receive a document for filing in the Court.

(2)  If a person other than an officer is directed or requested to file a document, that person is to lodge it for filing by an officer in the Court.

82A Frivolous or vexatious writ, &c.

[Rule 82A Inserted by S.R. 2006, No. 72, Applied:19 Jul 2006]

(1)  If a writ or process appears to a registrar to be, on its face, an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar is to seek the direction of a judge unless the party seeking to issue the writ or process first obtains leave of a judge.

(2)  A judge may direct the registrar to issue the writ or process or to refuse to issue it.

83 Lodgment for filing

(1)  A document is to be –

(a) lodged for filing at a registry; or

(b) [Rule 83 Subrule (1) amended by S.R. 2013, No. 70, Applied:25 Sep 2013] sent for filing by prepaid post in an envelope addressed to a registry; or

(c) [Rule 83 Subrule (1) amended by S.R. 2013, No. 70, Applied:25 Sep 2013] sent by email for filing, in accordance with Division 2A of Part 7 .

(2)  An originating process is to be filed in the registry in which it is proposed to commence the original proceeding.

(3)  Except where otherwise provided by these rules, a document, other than an originating process, is to be filed in the registry in which the cause or matter is proceeding.

(4)  The officer receiving any document lodged for filing at a registry is to –

(a) note the time and date of lodgment on the document; and

(b) if the document is in order for filing –

(i) file it as at the time and date of lodgment; and

(ii) if it is accompanied by a copy of the document, seal the copy or, if sealing is not required, note on the copy the time and date of lodgment and return the copy to the person lodging the document; and

(c) if the document is not in order for filing, return it together with a note of the reasons for its return.

(5)  If a document is sent by post and the original is to be –

(a) filed, it is to be accompanied by a copy for return; or

(b) returned, it is to be accompanied by a copy for filing.

(6)  A document sent by post is to be accompanied by a duly stamped and addressed envelope for the return to the person requesting filing of the copy or original document not filed.

(7)  On receipt of a document sent by post –

(a) an officer of the registry is to note the time and date of receipt on the original and any copy; and

(b) if the document is in order for filing –

(i) the officer is to file the document; and

(ii) a registrar is to seal any copy posted with the document or, if sealing is not required, note on the copy the time and date of lodgment and return the copy to the person requesting filing; and

(c) if the document is not in order for filing, the officer is to return it together with any accompanying documents and a note of the reasons for its return.

(8)  If the person requesting filing fails to provide an envelope in accordance with subrule (6) , the registrar is to notify the person of the requirement for an envelope.

(9)  If the person subsequently provides a duly stamped and addressed envelope, the filing of the document is to be as of the day on which the envelope was provided.

84 Documents delivered to a document exchange

[Rule 84 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] Rule 83 applies to the lodgment for filing of a document if the registry and the practitioner for a party have a facility for the reception of documents in the same document exchange as if –

(a) the reference in rule 83(1)(b) to sending by prepaid post were a reference to delivery into that facility; and

(b) [Rule 84 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] the envelope required under rule 83(6) were to be addressed to the practitioner's address in the document exchange.

85 Document not having intended effect

A document is in order for filing if it complies with these rules as to its formal elements, even though it may not have its intended effect.

86 Application to judge if document is returned

If a document, the filing of which is necessary for a person to commence or pursue proceedings for relief of any kind, is returned under rule 83 , a judge, on the application of that person, may order that –

(a) the document be filed as at the date and time of its first lodgment; or

(b) an amended version of the document or a different document in substitution for it be filed as at that date and time.

87 Construction of certain references

A reference in these rules or in any other enactment to the issuing of a document out of the Court by a person other than an officer is a reference to lodging that document for filing and includes a requirement that, when the document is filed, the registrar is to issue a sealed copy of that document.

Division 2A Emailing and filing, &c., of electronic documents

87A Limitation on electronic documents

[Rule 87A of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013]

(1)  The Principal Registrar may approve a person, firm, corporation or government agency as a person, firm, corporation or government agency who may lodge or serve documents by email.

(2)  The Principal Registrar, in his or her absolute discretion, may refuse to accept for lodgment a document that is emailed to a registry by a person, firm, corporation or government agency who is not approved by the Principal Registrar under subrule (1) .

(3)  The Principal Registrar, by notice in writing to the holder of an approval, may, in his or her absolute discretion, revoke the approval at any time.

87B Approved formats, email addresses and cover letters

[Rule 87B of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013]

(1)  A document that is emailed to a registry for filing is to –

(a) be in a format approved by the Principal Registrar; and

(b) be sent to the email address approved by the Principal Registrar; and

(c) be capable of being printed in its entirety and in the form in which it was created; and

(d) include, in the footer required under rule 79 , an email address for service; and

(e) be accompanied by a cover sheet.

(2)  For the purposes of subrule (1)(e) , the cover sheet to the document is to contain the following information:

(a) the title of the proceeding to which the document relates;

(b) the heading of the proceeding;

(c) the registry in which the proceeding is being, or is to be, conducted;

(d) if a registry has assigned a file number to the proceeding, that file number;

(e) a description of the document;

(f) the date the document is emailed;

(g) the name of the party on whose behalf the document is being lodged;

(h) the email address of the person lodging the document.

87C Electronic signatures

[Rule 87C of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013]

(1)  A document (other than an affidavit) that is emailed and required by these rules to be signed is taken to be signed if a facsimile of the signature is affixed to the document by electronic means.

(2)  For the purposes of subrule (1) , the signature is to be affixed to the document by, or at the direction of, the signatory.

87D Electronic office seals

[Rule 87D of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013]

(1)  A document that is emailed and required by these rules to be sealed with an office seal is taken to be sealed if a facsimile of the office seal is affixed to the document by electronic means.

(2)  For the purposes of subrule (1) , an office seal is to be affixed to the document by, or at the direction of –

(a) the Principal Registrar; or

(b) an officer acting with the authority of the Principal Registrar.

87E Electronic lodgment for filing

[Rule 87E of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013]

(1)  In this rule –

date of lodgment, of a document by email, means –

(a) if the document is received by the Court on a Saturday, Sunday or Court holiday, the first day that is not a Saturday, Sunday or Court holiday following the day on which the email is received; or

(b) if the document is received by the Court on a day that is not a Saturday, Sunday or Court holiday –

(i) if the document is received by the Court before 4:30 p.m., the day on which the email is received; or

(ii) if the document is received by the Court on or after 4:30 p.m., the first day, that is not a Saturday, Sunday or Court holiday, following the day on which the email is received.

(2)  An officer who receives a document that is lodged by email for filing is to –

(a) affix to the document, by electronic means, the date of lodgment of the document; and

(b) if the document is in order for filing –

(i) affix the office seal to the document in accordance with rule 87D ; and

(ii) file the document.

(3)  If the officer files the document and it requires listing before the Court, the officer is to email the person who lodged the document a notice stating the time, date and place of the hearing.

(4)  If the document is not in order for filing, the officer is to email the person who lodged the document a statement of the reasons for the officer's refusal to file the document.

87F Effecting electronic service

[Rule 87F of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013]

(1)  A person may serve a document by email if the person on whom the document is to be served has given an email address for service.

(2)  If a document is served on a person by email, the document is taken to be served –

(a) if the document is received by the person on a Saturday, Sunday or Court holiday, the first day that is not a Saturday, Sunday or Court holiday following the day on which the email is received; or

(b) if the document is received by the person on a day that is not a Saturday, Sunday or Court holiday –

(i) if the document is received by the person before 4:30 p.m., the day on which the email is received; or

(ii) if the document is received by the person on or after 4:30 p.m., the first day, that is not a Saturday, Sunday or Court holiday, following the day on which the email is received.

87G Affidavits

[Rule 87G of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013]

(1)  An affidavit that is lodged by email for filing may have annexures attached to it if –

(a) an index of the annexures is specified in the affidavit beneath the title to the proceedings; and

(b) each reference to an annexure in the index contains a hyperlink to its relevant annexure; and

(c) each reference to an annexure in the body of the affidavit contains a hyperlink to its relevant annexure.

(2)  The cover sheet accompanying an affidavit that is lodged by email for filing is to include, in addition to the information specified in rule 87B(2)  –

(a) a list, under the description of the affidavit, that separately identifies each exhibit, if any; and

(b) a certificate, signed by the person lodging the affidavit, stating that –

(i) the affidavit is a true and complete facsimile of the original; and

(ii) the original of the affidavit will be held in safe custody until the proceeding to which the affidavit relates has been concluded and at least 3 months have passed since the expiry of any period allowed for appeal or further appeal in relation to the proceeding; and

(iii) the original of the affidavit will be produced for inspection upon request by a party to the proceeding, the Court or a judge.

(3)  Unless the Court or a judge makes an order to the contrary, a person who has lodged an affidavit by email for filing may not use the affidavit as evidence if a request for the production of the original of the affidavit is not satisfied.

87H Original documents generally

[Rule 87H of Part 7 Inserted by S.R. 2013, No. 70, Applied:25 Sep 2013]

(1)  Unless the Court or a judge makes an order to the contrary, if a document that is emailed for filing exists in an original paper form then the person who emails that document must keep the original in safe custody until –

(a) the proceeding to which the document relates has been concluded; and

(b) at least 3 months have passed since the expiry of any period allowed for appeal or further appeal in relation to the proceeding.

(2)  Upon request by the Court or a judge, a person must produce for inspection the original of a document that is emailed for filing.

Division 3 Commencement of proceedings

88 Actions

The following classes of proceedings are to be commenced by a writ, unless these rules provide that they are to be commenced by application:

(a) for the recovery of a debt;

(b) for the recovery of wages or other remuneration;

(c) for the restitution or return of money paid;

(d) for the assessment of a sum as the value of goods or services, including claims on a quantum meruit or quantum valebat;

(e) proceedings based on a common count;

(f) for the recovery of a sum due on a negotiable instrument;

(g) for the return of goods or their value;

(h) for the recovery of money due in respect of necessaries supplied;

(i) for the enforcement of a bond;

(j) for the enforcement of a contract, an indemnity or a guarantee;

(k) for the specific performance of a contract;

(l) for the recovery of rent or mesne profits;

(m) for the recovery of land;

(n) for the recovery of damages, however arising;

(o) [Rule 88 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] for the declaration of a private right, including a right to ownership of personal property, except one to which rule 89(a) or rule 90(1)(a) applies;

(p) [Rule 88 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] for the declaration of a public right, except one to which rule 89(a) or rule 90(1)(a) applies;

(q) for the rectification of a deed or other instrument;

(r) for the setting aside of a contract or a gift;

(s) for the setting aside of a deed, conveyance, transfer or other instrument;

(t) in the nature of an action of replevin;

(u) for an injunction, except if it is sought as ancillary to relief claimed in an application;

(v) for the enforcement of a statutory right if the statute creating the right specifies that the proceeding to enforce the right is to be by way of an action;

(w) for other relief which, before the commencement of the Act, was sought by action commenced by –

(i) writ or plaint and summons; or

(ii) bill or information in the equity jurisdiction of the Court; or

(iii) citation or otherwise in the ecclesiastical jurisdiction of the Court;

(x) for the repeal, revocation, cancellation or vacation of any grant or charter granted or issued by the Crown or of any record;

(y) [Rule 88 Amended by S.R. 2002, No. 80, Applied:10 Jul 2002] [Rule 88 Amended by S.R. 2009, No. 75, Applied:08 Jul 2009] against the Crown.

(z) [Rule 88 Amended by S.R. 2002, No. 80, Applied:10 Jul 2002] [Rule 88 Amended by S.R. 2009, No. 75, Applied:08 Jul 2009] .  .  .  .  .  .  .  .  

(za) [Rule 88 Amended by S.R. 2002, No. 80, Applied:10 Jul 2002] [Rule 88 Amended by S.R. 2009, No. 75, Applied:08 Jul 2009] .  .  .  .  .  .  .  .

89 Applications to Court

The following classes of proceedings are to be commenced by application to the Court:

(a) determination of a question of construction arising under a statute, regulation, letters patent, by-law or other written instrument of a public nature made by the Crown or a public or local authority and declaration of the rights of persons interested under that instrument;

(b) application under the Trustee Act 1898 , other than an application to which rule 90 applies;

(c) [Rule 89 Amended by S.R. 2005, No. 125, Applied:09 Nov 2005] .  .  .  .  .  .  .  .  

(d) a writ of attachment not by way of execution;

(e) establishing documentary title to property;

(f) compensation for land resumed or compulsorily acquired;

(g) foreclosure or redemption of a mortgage;

(h) discovery in order to claim other relief;

(i) an account and payment of the balance found due, not being an account that any executor, administrator or trustee is bound to give;

(j) administration of an estate or trust, including a charitable trust;

(k) order for punishment for contempt, except where the person charged with the contempt has been taken into custody immediately and is before the Court;

(l) [Rule 89 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] admission to the legal profession, except an application made in accordance with the mutual recognition principle enacted in Part 3 of the Mutual Recognition Act 1992 of the Commonwealth and adopted in this State by the Mutual Recognition (Tasmania) Act 1993 ;

(m) [Rule 89 Amended by S.R. 2011, No. 26, Applied:20 Apr 2011] order for relief similar to certiorari at the instance of the Attorney-General ex officio;

(n) [Rule 89 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 89 Amended by S.R. 2005, No. 125, Applied:09 Nov 2005] .  .  .  .  .  .  .  .  

(o) application under section 6 of the Variation of Trusts Act 1994 ;

(p) [Rule 89 Amended by S.R. 2009, No. 75, Applied:08 Jul 2009] application under the Wills Act 1992 or the Wills Act 2008 , other than an application for authorisation to make or alter a will, or revoke the whole or any part of a will;

(q) [Rule 89 Amended by S.R. 2002, No. 80, Applied:10 Jul 2002] [Rule 89 Amended by S.R. 2012, No. 90, Applied:17 Oct 2012] proceedings for a grant of probate or letters of administration where the only reason for seeking the grant in solemn form is the need to rely on section 26 of the Wills Act 1992 or section 10 of the Wills Act 2008 ;

(r) [Rule 89 Amended by S.R. 2002, No. 80, Applied:10 Jul 2002] .  .  .  .  .  .  .  .  

(s) proceedings which, by an enactment other than the Act, are directed to be begun by motion or petition, other than proceedings to which rule 90 applies;

(t) [Rule 89 Amended by S.R. 2002, No. 22, Applied:17 Apr 2002] proceedings in any case in which an application is authorised to be made, and is made to a Full Court or a judge sitting in court as a Court;

(u) [Rule 89 Amended by S.R. 2002, No. 22, Applied:17 Apr 2002] [Rule 89 Amended by S.R. 2012, No. 90, Applied:17 Oct 2012] application under the Judicial Review Act 2000 , where the decision in relation to which the application is made was made following a public hearing;

(v) [Rule 89 Amended by S.R. 2012, No. 90, Applied:17 Oct 2012] proceedings under the Vexatious Proceedings Act 2011 , other than an application for leave to institute proceedings.

90 Applications to judge in chambers

[Rule 90 Amended by S.R. 2000, No. 105, Applied:26 Jul 2000] [Rule 90 Amended by S.R. 2002, No. 22, Applied:17 Apr 2002] [Rule 90 Substituted by S.R. 2003, No. 28, Applied:07 May 2003]

(1)  The following classes of proceedings are to be commenced by application to a judge in chambers:

(a) determination of a question of construction arising under a deed, will or other written instrument, other than a question to which rule 89(a) applies, and declaration of the rights of persons interested under that instrument;

(b) question affecting the rights or interests of a person claiming to be a creditor, devisee, legatee or one of the next-of-kin of a deceased person or otherwise beneficially interested in the property of a deceased person;

(ba) [Rule 90 Subrule (1) amended by S.R. 2010, No. 158, Applied:01 Jan 2011] proceedings under the Intestacy Act 2010 ;

(c) question affecting the rights or interests of a cestui que trust under a trust or a person beneficially interested in the property subject to a trust;

(d) furnishing of any particular accounts by the executor, administrator or trustee and any vouching of those accounts;

(e) payment into Court of any money or security in the hands of an executor, administrator or trustee;

(f) directions to an executor, administrator or trustee to do, or abstain from doing, a particular act;

(g) removal of a trustee;

(h) appointment of a trustee in the place of a removed trustee or a direction that any remaining trustees may continue to act without an additional trustee;

(i) determination of a question arising in the administration of any estate or trust, including a question whether or not any deed, will or other instrument creates a valid charitable trust or a valid gift to charity;

(j) determination of a question arising in the execution or administration of a charitable trust or gift to charity created by a deed, will or other instrument;

(k) appointment of a new trustee, with or without a vesting order or other consequential order;

(l) vesting order or other order consequential on the appointment of a new trustee, whether the appointment is made by the Court or a judge or out of Court;

(m) under section 6 of the Foreign Judgments Act 1991 of the Commonwealth for the registration of a judgment to which Part 2 of that Act applies;

(n) [Rule 90 Subrule (1) amended by S.R. 2005, No. 125, Applied:09 Nov 2005] [Rule 90 Subrule (1) amended by S.R. 2012, No. 90, Applied:17 Oct 2012] under the Commercial Arbitration Act 2011 ;

(o) [Rule 90 Subrule (1) amended by S.R. 2009, No. 75, Applied:08 Jul 2009] authorisation to make or alter a will, or revoke the whole or any part of a will, or leave to apply for such authorisation;

(p) under section 13 of the Variation of Trusts Act 1994 ;

(q) by a judgment creditor of a partner for an order under section 28 of the Partnership Act 1891 charging the interest of the partner in the partnership property and profits;

(r) for a charging order;

(s) [Rule 90 Subrule (1) amended by S.R. 2004, No. 56, Applied:21 Jul 2004] for an order under Part 2 of the Evidence on Commission Act 2001 ;

(t) any application which is not required by the provisions of any enactment to be heard by, or made to, a Full Court or a judge sitting in court as a court;

(u) with respect to the ascertainment of any class of creditors, legatees, devisees, next-of-kin or other persons;

(v) for approval of a sale, purchase, compromise or other transaction;

(w) with respect to the making of any inquiries or the taking of any accounts as on a decree of the Court directing the inquiries to be made or accounts to be taken, whether in relation to a case of wilful default or not;

(x) vesting order or other consequential order if a judgment or an order has been given or made for the sale, conveyance or transfer of any land or stock or the suing for, or recovering of, a chose in action;

(y) proceedings relating to a fund paid into Court;

(z) [Rule 90 Subrule (1) amended by S.R. 2011, No. 26, Applied:20 Apr 2011] orders nisi for relief similar to certiorari, mandamus or prohibition;

(za) [Rule 90 Subrule (1) amended by S.R. 2011, No. 26, Applied:20 Apr 2011] leave to exhibit an information in the nature of quo warranto;

(zb) [Rule 90 Subrule (1) amended by S.R. 2011, No. 26, Applied:20 Apr 2011] relief similar to mandamus or quo warranto;

(zc) general orders to show cause why any form of relief should not be granted;

(zd) proceedings under the Settled Land Act 1884 ;

(ze) extension of time in any matter or in respect of any contemplated proceeding;

(zf) proceedings under the Testator's Family Maintenance Act 1912 ;

(zfa) [Rule 90 Subrule (1) amended by S.R. 2004, No. 56, Applied:21 Jul 2004] proceedings under the Relationships Act 2003 ;

(zg) declaration of rights as between vendor and purchaser;

(zh) sale or partition;

(zi) dissolution of partnership;

(zj) proceedings under section 171 of the Act;

(zk) [Rule 90 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] requiring a practitioner to answer an affidavit;

(zl) [Rule 90 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] striking a practitioner off the roll or to suspend, or otherwise discipline, a practitioner;

(zm) disbarring, or otherwise disciplining, a barrister;

(zn) [Rule 90 Subrule (1) amended by S.R. 2008, No. 128, Applied:31 Dec 2008] admission to the legal profession in accordance with the mutual recognition principle enacted in Part 3 of the Mutual Recognition Act 1992 of the Commonwealth and adopted in this State by the Mutual Recognition (Tasmania) Act 1993 ;

(zo) proceedings which, by an enactment other than the Act, are directed to be commenced by summons or by application to the Court or a judge, other than proceedings to which paragraph (a) to paragraph (r), inclusive, of rule 89 apply;

(zp) [Rule 90 Subrule (1) amended by S.R. 2012, No. 90, Applied:17 Oct 2012] application under the Judicial Review Act 2000 , other than an application to which rule 89(u) applies;

(zq) [Rule 90 Subrule (1) amended by S.R. 2012, No. 90, Applied:17 Oct 2012] application for leave to institute proceedings under section 11 of the Vexatious Proceedings Act 2011 .

(2)  A proceeding before a judge sitting in Court as in Chambers is to be open to the public unless –

(a) there is a legislative requirement that the matter be heard in private; or

(b) the matter, or part of it, would be heard in private if it were being heard in Court; or

(c) it is otherwise ordered by the judge.

91 Habeas corpus

Proceedings for a writ of habeas corpus may be commenced by application to the Court or a judge in chambers.

92 Multiple claims

(1)  A person wishing, in a single proceeding, to seek from the Court or a judge relief of more than one kind in respect of more than one matter, may claim all kinds of relief sought by –

(a) writ, if, in respect of any relief sought, these rules require proceedings to be commenced by writ; or

(b) application to the Court, if, in respect of any relief sought, these rules require proceedings to be commenced by application to the Court; or

(c) application to a judge in chambers, in any other case.

(2)  The Court or a judge hearing any action or other proceeding in which relief of more than one kind is sought may order the separation of the claims.

(3)  The Court or a judge, on an application made in any action or other proceeding in which relief of more than one kind is sought, may order the separation of the claims.

(4)  Notwithstanding subrule (1) , a person may claim any ancillary relief with the principal relief claimed.

93 Certain judgments in open court

[Rule 93 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] A judge who, on an application to which rule 90(1)(zk) , (zl) or (zm) applies, determines to discipline the respondent is to adjourn the application into Court to give reasons and to make the necessary order.

94 Directions as to matters to be dealt with in court

(1)  A majority of the judges may give general directions as to what proceedings and applications are to be heard by, or made to, a judge sitting in court.

(2)  A general direction –

(a) is to be printed and a copy of it kept at every registry; and

(b) is to be open to inspection at all reasonable times; and

(c) rescinds an earlier general direction.

(3)  A general direction is not a rule of Court.

(4)  Notwithstanding a direction under subrule (1) , a judge, subject to the Act and these rules, may hear in chambers any matter directed to be heard by, or made to, a judge sitting in court.

95 Change of course of proceedings

(1)  At any time, the Court or a judge may –

(a) order that –

(i) an action change to proceed as if it had begun by application; or

(ii) a proceeding begun by application change to proceed as an action; and

(b) direct the taking, amending or ignoring of any procedural step in the proceeding required by that change; and

(c) provide for the costs caused or occasioned by that change, including the cost of any thing no longer necessary or appropriate or any step rendered otiose.

(2)  The Court may direct an application before it to be continued in chambers.

(3)  A judge in chambers may direct an application to be continued before the Court.

Division 4 Originating process generally

96 Originating process

A plaintiff or an applicant may lodge in any registry originating process for filing.

97 Title and heading of causes and matters

(1)  An originating process filed in the Court is to –

(a) be titled –

(i) if it is not a probate action, "In the Supreme Court of Tasmania"; or

(ii) if it is a probate action, "In the Supreme Court of Tasmania (Probate)"; and

(b) state below the title –

(i) the words "Hobart Registry", if the proceeding is to be commenced in the Principal Registry; or

(ii) the name of the district followed by "Registry", if the proceeding is to be commenced in a district registry; and

(c) state the file number assigned to it in the registry.

(2)  If a proceeding is transferred from one registry to another registry –

(a) the name of the registry to which it is transferred is to be substituted for the name of the registry from which it is transferred; and

(b) the file number of the proceeding assigned to it by the registry to which it is transferred is to be substituted for its former number.

(3)  In an action –

(a) the person who commences the proceeding is to be called the plaintiff; and

(b) the person against whom the action is commenced is to be called the defendant; and

(c) after the title, the writ and any other process in the action is to be headed accordingly as being between the parties.

(4)  In an inter partes proceeding other than an action –

(a) the person who commences the proceeding is to be called the applicant; and

(b) the person against whom the proceeding is commenced is to be called the respondent; and

(c) after the title, the originating application and any other process in the proceeding is to be headed accordingly as being between the parties.

(5)  In a proceeding which is not inter partes –

(a) the person who commences the proceeding is to be called the applicant; and

(b) after the title, the originating application and any other process in the proceeding is to be headed "In the Matter of" followed by a reference to the statutory provision, if any, under which the applicant's claim arises and, if appropriate, "In the Matter of" followed by a short description of the estate, will, settlement, deed, instrument or thing or the name of the person to which or to whom the application relates.

98 Appearing if served within jurisdiction

The period for entering an appearance limited by a writ or any other originating process which requires an appearance and which is served within the jurisdiction of the Court is 7 days after service.

99 Appearing if served out of jurisdiction

The period for entering an appearance limited by a writ or any other originating process which requires an appearance and which is served outside the jurisdiction of the Court is –

(a) 21 days after service, if the originating process is served in Australia; or

(b) [Rule 99 Amended by S.R. 2012, No. 66, Applied:11 Oct 2013] [Rule 99 Amended by S.R. 2017, No. 101, Applied:20 Dec 2017] the time allowed under the Trans-Tasman Proceedings Act, if the originating process is served in New Zealand; or

(ba) [Rule 99 Amended by S.R. 2012, No. 66, Applied:11 Oct 2013] [Rule 99 Amended by S.R. 2017, No. 101, Applied:20 Dec 2017] .  .  .  .  .  .  .  .  

(c) [Rule 99 Amended by S.R. 2017, No. 101, Applied:20 Dec 2017] the time allowed under rule 147E , if the originating process is served in any other place.

100 Address of defendant or respondent

A writ or originating application is to state –

(a) the address of the defendant or respondent, if it is known to the plaintiff or applicant; or

(b) if it is not known, the fact that it is not known.

101 Address of plaintiff or applicant

A writ or originating application is to state –

(a) the address of the plaintiff or applicant; and

(b) [Rule 101 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] if it is lodged for filing by a practitioner or law practice, the name and address of the practitioner or law practice.

102 Concurrent writ or originating application

(1)  If the period limited for entering an appearance is to be altered or a different period is required in respect of a different defendant or respondent, the plaintiff or applicant may have sealed as many concurrent writs or concurrent originating applications as he or she requires.

(2)  A concurrent writ or concurrent originating application is to –

(a) show the same day of filing as the original process; and

(b) be in the same form as the original process except for the time limited for entering an appearance; and

(c) be in force only for the period during which the original process is in force.

103 Declaratory judgment

(1)  A proceeding is not open to objection only on the ground that it seeks a merely declaratory judgment or order.

(2)  The Court may make a binding declaration of right, whether or not any consequential relief is, or may be, claimed.

(3)  A person claiming to be interested under a deed, will or other written instrument may apply, by originating application, to a judge in chambers for –

(a) the determination of any question of construction arising under the instrument; and

(b) a declaration of the rights of the persons interested.

(4)  If a judge considers that any question on an application under subrule (3) ought not to be determined on an originating application, the judge –

(a) is not bound to determine the question; and

(b) may exercise the powers conferred by rule 95 .

Division 5 Writs

104 Form of writ

A writ is to be in accordance with the prescribed form.

105 Issue of writ

A writ is issued when it is filed and sealed.

106 Filing of writs

If a writ is filed, the officer receiving it is to –

(a) make an entry of the writ in the register of proceedings; and

(b) in that entry, distinguish the action to which the writ relates by the year, a number and the name of the registry out of which the writ has been issued; and

(c) insert that year and number on each sealed copy of the writ.

107 Duration of writ

(1)  [Rule 107 Subrule (1) substituted by S.R. 2006, No. 25, Applied:01 May 2006] An original writ is in force for –

(a) if it is issued before 1 May 2006, 12 months commencing on, and including, the date of issue; and

(b) if it is issued on or after 1 May 2006, 6 months commencing on, and including, the date of issue.

(2)  [Rule 107 Subrule (2) amended by S.R. 2006, No. 25, Applied:01 May 2006] On the application of the plaintiff made whilst a writ is in force, the Court or a judge may order that the original writ and any concurrent writ be renewed for such period as the Court or judge thinks fit if a defendant named in the writ has not been served.

(3)  [Rule 107 Subrule (3) amended by S.R. 2006, No. 25, Applied:01 May 2006] The period for which the writ is renewed commences on, and includes, the date of the order.

(4)  If a writ is renewed, the registrar is to –

(a) make a copy of the original writ filed in the Court; and

(b) impress that copy with a seal bearing the word "renewed" and the date of the renewal; and

(c) deliver the copy to the plaintiff; and

(d) make a note of the renewal on the file of the action.

(5)  The production of a renewed writ marked in accordance with subrule (4) is sufficient evidence of –

(a) the renewal; and

(b) the commencement of the action as of the date on which the original writ was filed.

(6)  A renewed writ is in force from the date of issue of the original writ.

Division 6 Endorsement of claim on writ

108 Endorsements

(1)  Before a writ is issued, it is to be endorsed –

(a) in the case of a claim for a debt or liquidated demand with a statement –

(i) of the amount claimed for the debt or liquidated demand and costs; and

(ii) of brief particulars of the debt or liquidated demand; and

(iii) stating that the action will be at an end, except in respect of the recovery of land, on payment of the amount claimed in respect of the debt and costs or liquidated demand and costs, within the period limited for appearance; or

(b) in any other case, with a statement of claim or a concise statement of the nature of the claim made and the relief or remedy sought in the action begun by the writ.

(2)  The amount claimed for the costs in an action under subrule (1)(a) is to be in accordance with the Table in Part 3 in Schedule 1 .

(3)  If the plaintiff includes a claim for the recovery of land, the capital value of the land, if stated in the endorsement on the writ, is part of the amount of the claim for the purpose of the Table in Part 3 in Schedule 1 .

109 Insufficient endorsement

(1)  The Court or a judge, on the application of a defendant, may set aside a writ which has an endorsement of claim if the endorsement does not contain a statement sufficient to give notice of –

(a) the nature of the claim; and

(b) the remedy or relief sought in the action.

(2)  An application is to be made before filing an appearance.

(3)  On the hearing of the application, the Court or judge may order –

(a) that the writ be amended; or

(b) that the plaintiff deliver particulars of the claim to the defendant.

110 Claim of general relief not necessary

An endorsement of claim need not include a claim for general or other relief but that relief may be granted to the same extent as if it had been claimed in the endorsement.

111 Representative capacity

If a plaintiff sues, or a defendant is sued, in a representative capacity, the endorsement of claim is to show the relevant capacity.

112 Claim for possession of land

If a plaintiff claims the recovery of possession of land, the endorsement of claim is to state the capital value of that land.

113 Claim in detinue

If a plaintiff makes a claim in detinue, the endorsement of claim is to state the value of all goods of which possession is sought, whether or not the plaintiff claims to recover their value.

114 Claim for account

If a plaintiff in the first instance wants to have an account taken, the endorsement of claim is to state that fact.

115 Claim in defamation

If a plaintiff sues for defamation, the endorsement of claim is to state sufficient particulars to identify each publication in respect of which the action is brought.

116 Claim for unliquidated damages

[Rule 116 Amended by S.R. 2009, No. 74, Applied:15 Jul 2009] If a plaintiff claims unliquidated damages, the amount claimed as damages is only stated in the endorsement of claim if that amount does not exceed $50 000.

117 Alteration of claim without amendment of writ

Whenever a statement of claim is delivered, the plaintiff, in that statement of claim, may alter the claim against any defendant who has appeared, without amending the endorsement of the writ.

Division 7 Originating applications

118 Form of originating application

(1)  An originating application is to be in accordance with the prescribed form.

(2)  [Rule 118 Subrule (2) omitted by S.R. 2001, No. 100, Applied:12 Sep 2001] .  .  .  .  .  .  .  .

119 Commencement of originating application

An originating application is commenced when it is filed and sealed.

120 Application for attachment or to strike off

(1)  An originating application for attachment or for an order that a practitioner or a barrister be struck off is to state, in general terms, the grounds of the application.

(2)  A copy of any affidavit intended to be used by the applicant is to be served with the application.

121 Notice of oral evidence

Notice of any intention to adduce oral evidence on the hearing of an originating application is to be endorsed on, or served with, the application.

122 Service of originating application

If the Court or a judge orders that an originating application not intended to be served be served, the copy which is served is to be endorsed with a notice in accordance with the prescribed form, signed by the registrar.

123 Time for service

(1)  An originating application which requires an appearance and is served within the State is to be served at least 9 clear days before the hearing date.

(2)  An originating application which does not require an appearance and is served within the State is to be served at least 2 clear days before the hearing date.

(3)  An originating application which is served outside the State is to be served the number of days before the hearing date that is 2 days more than the period limited for the entry of an appearance under rule 99 in respect of the place at which the application is served.

124 Amendment of notice of hearing

If an originating application which is to be served within the State has not been served as required by rule 123(1) , the registrar may make an endorsement on the original and each sealed copy of the application appointing a new time, date and place for the parties to attend for the hearing of the application.

125 Appearance

Unless the Court or a judge otherwise orders, a party to an originating application which requires the entry of an appearance is not to be heard on the application before that party has entered an appearance.

126 Applications as to purchase money

(1)  In the case of an application for an order directing that the purchase money of any property sold be paid into Court, a person who claims to be entitled to that money is to make and file an affidavit in accordance with subrule (2) .

(2)  An affidavit is to –

(a) verify the title of the claimant; and

(b) state –

(i) that the claimant is not aware of any right on the part of, or any claim made by, any other person to any part of the money claimed; or

(ii) if the claimant is aware of such a right or claim, particulars of that right or claim and the relevant facts concerning it.

Division 8 Practitioners and address for service

127 Declaration of authority of originating process

(1)  A practitioner whose name is endorsed on any originating process, on demand in writing made by or on behalf of any person who has been served with the process or has appeared to it, is to declare in writing whether the process has been issued by, or with the authority of, that practitioner.

(2)  If a practitioner declares that an originating process was not so issued –

(a) all proceedings relating to the process are to be stayed; and

(b) further proceedings are not to be taken without leave of the Court or a judge.

(3)  If a practitioner declares that an originating process was so issued, the Court or a judge, on the application of a defendant or respondent, may order that the practitioner declare in writing, within a specified period, the profession, occupation and place of abode of the plaintiff or applicant.

128 Address for service

[Rule 128 Substituted by S.R. 2003, No. 139, Applied:26 Nov 2003]

(1)  If a plaintiff or applicant sues by practitioner, the plaintiff's or applicant's address for service is –

(a) the business address of the practitioner endorsed on the originating process; or

(b) if the practitioner acts through an agent, the business address of the agent.

(2)  If a plaintiff or applicant sues in person, the plaintiff's or applicant's address for service is the plaintiff's or applicant's address in Tasmania endorsed on the originating process.

(3)  If a defendant, respondent or other person who enters an appearance appears by practitioner, the person's address for service is –

(a) the business address of the practitioner stated in the notice of appearance; or

(b) if the practitioner acts through an agent, the business address of the agent.

(4)  If a defendant, respondent or other person who enters an appearance appears in person, the person's address for service is the person's address in Tasmania stated on the notice of appearance.

(5)  A person's address for service under this rule must be an address –

(a) at which documents may be left for the person during ordinary business hours; and

(b) to which documents may be posted to the person.

(6)  Notwithstanding this rule, an address for service specified in accordance with section 18(1) of the Service and Execution of Process Act 1992 of the Commonwealth is a sufficient address for service.

128A Fictitious address

[Rule 128A Inserted by S.R. 2003, No. 139, Applied:26 Nov 2003]

(1)  If satisfied that an address for service of a person is illusory, fictitious or in some other way not genuine or appropriate, the Court or a judge may make any order that is appropriate to deal with the situation.

(2)  Without limiting the generality of subrule (1) , the Court or judge may make one or more of the following orders under that subrule:

(a) an order setting aside a notice of appearance;

(b) an order providing for service of documents;

(c) an order dispensing with service.

(3)  If a notice of appearance is set aside under subrule (1) then, unless it is ordered otherwise, a document may be served on the person who filed the notice of appearance by filing the document in the registry.

129 Change of practitioner or address for service

(1)  A party to a proceeding, by filing a notice in the registry, may –

(a) change his or her practitioner; or

(b) change the practitioner acting as the agent for the party's practitioner; or

(c) if acting in person, appoint a practitioner; or

(d) discharge his or her practitioner and act in person; or

(e) change the address for service to another address which complies with rule 128 .

(2)  A notice takes effect when it is filed and a copy of it is served on each other party.

(3)  A notice is to be in accordance with the prescribed form.

130 Name of practitioner taken off record

(1)  A practitioner may have his or her name taken off the record as practitioner for a client in a proceeding on filing and serving on each other party –

(a) a notice in accordance with the prescribed form; and

(b) an affidavit stating that the client has been given at least 7 days' notice of the intention of the practitioner to file the notice.

(2)  Notice for the purpose of subrule (1)(b) is to be –

(a) in accordance with the prescribed form; and

(b) served personally on the client.

(3)  If a practitioner is unable to effect prompt personal service of the notice on the client, the Court or judge may make any order for substituted service as is just.

(4)  After a practitioner has ceased to act for a party and until some other practitioner has commenced to act for that party, the party is taken to be acting in person.

131 Applications between client and practitioner

(1)  A client or former client of a practitioner may apply to the Court or a judge for an order against the practitioner for the delivery of a cash account, the payment of money or the delivery of securities.

(2)  On hearing an application, the Court or a judge may –

(a) order the practitioner to deliver to the applicant a list of the money or securities in the custody or control of the practitioner on behalf of the applicant; or

(b) order the practitioner to bring into Court the whole or any part of that money or those securities; or

(c) in the event that the practitioner asserts a claim for costs, make any provision for the payment or security of those costs or the protection of any practitioner's lien, as may be appropriate.

Division 9 Service

132 Personal service

If a document is to be served personally, it is sufficient to serve –

(a) the original of the document; or

(b) a sealed copy of the document; or

(c) any copy of the document, at the same time showing the person the original.

133 Originating process to be served personally

Unless otherwise provided for, any originating process is to be served personally.

134 Service on practitioners

An originating process may be served on the practitioner for a party if the practitioner undertakes in writing to accept service on behalf of the party.

135 Effecting personal service

Personal service of a document may be effected by –

(a) delivering the document to, and leaving it with, the person to be served; or

(b) offering to deliver the document to, and leave it with, that person.

136 Service on persons under disability

(1)  If a person under disability is a party to a proceeding, service may be effected on any of the following persons:

(a) if a person is authorised under the Guardianship and Administration Act 1995 to conduct in the name and on behalf of the person under disability the proceedings in connection with which the service is required to be made, the person so authorised;

(b) if no person is so authorised and the person under disability is an infant, a parent or guardian or, if the infant has no parent or guardian, the person with whom the infant resides or who has the care of the infant;

(c) in any other case, the person with whom the person under disability resides or who has the care of the person under disability.

(2)  Notwithstanding subrule (1) , the Court or a judge may order –

(a) that service made, or to be made, personally on a person under disability is good service; or

(b) that service be made personally on a person under disability if the person is not an infant.

137 Service on corporations

In the absence of any statutory provisions regulating service of process on corporations, an originating process to be served on a corporation, whether or not incorporated under the laws of the State, may be served on the mayor, president or other head officer, or general manager, treasurer, manager or secretary of the corporation.

138 Service on unincorporated bodies

An originating process to be served on the persons who constitute an unincorporated body, other than a partnership, may be served on the president, chairman, other presiding officer, secretary or treasurer of the body or on any other officer holding a similar office.

139 Service on agents

(1)  An originating process arising out of a contract entered into within the State by or through an agent residing or carrying on business within the State on behalf of a principal residing or carrying on business out of the State may, with the leave of the Court or a judge, be served on the agent.

(2)  Leave of the Court or a judge under subrule (1) is to be given before the determination of the agent's authority or business relationship with the principal.

(3)  The plaintiff is to send a copy of the order and the originating process by certified post to the defendant or respondent at the defendant's or respondent's address out of the State.

140 Recovery of land

Service of any originating process seeking the recovery of land may be made by affixing a sealed copy of the process to a conspicuous part of the land, if –

(a) no person appears to be in possession of the land; and

(b) service cannot otherwise be effected.

141 Substituted service

(1)  If it appears to the Court or a judge that a party is unable to effect prompt personal service or service in any other prescribed manner, the Court or judge may make an order for substituted service by advertisement or otherwise as is just.

(2)  Substituted service has the same effect as personal service or service in the relevant prescribed manner.

142 Service of judgments and orders

(1)  A judgment or order may not be enforced by attachment unless it has been served personally on the person against whom attachment is sought.

(2)  It is not necessary to effect personal service of a judgment or order or to show the original of the judgment or order except –

(a) as provided by subrule (1) ; or

(b) on demand by the party served.

143 Affidavits of service

An affidavit of service is to state –

(a) the name of the person who effected service; and

(b) the date, time and place of service; and

(c) the manner in which service was effected.

144 Manner and time of service when not personal

[Rule 144 Substituted by S.R. 2003, No. 139, Applied:26 Nov 2003] [Rule 144 Subrule (7) omitted by S.R. 2013, No. 70, Applied:25 Sep 2013] [Rule 144 Substituted by S.R. 2015, No. 99, Applied:06 Jan 2016]

(1)  A document which is not required to be served personally is sufficiently served on a person if it is –

(a) left at the person's address for service on a day on which the registry in which the cause or matter is proceeding is open; or

(b) posted to the person at the person's address for service; or

(c) communicated to the person using a postal address, document exchange address, email address or facsimile number given by the person pursuant to rule 79 .

(2)  If a document is required by these rules to be delivered to a person, it is sufficient if it is served in accordance with subrule (1) .

(3)  A document is taken to be served or delivered –

(a) if sent by post, at the time when the document would be delivered in the ordinary course of post; or

(b) if communicated using a document exchange address, on the first day that the registry in which the cause or matter is proceeding is open following the day of delivery to the document exchange; or

(c) if communicated using an email address or facsimile number –

(i) at the time of communication if the communication occurs during the hours specified in rule 20(1) (office hours); or

(ii) at the commencement of office hours following the time of communication if the communication occurs outside office hours.

(4)  A document served or delivered by email or facsimile transmission is to be accompanied by a document stating each of the following:

(a) the name of the person transmitting the document;

(b) the name of the person to whom the document is being transmitted;

(c) a brief description of the document being transmitted;

(d) the date and time of transmission;

(e) that the document is being served or delivered pursuant to this rule.

145 Service of notices from Court

[Rule 145 Substituted by S.R. 2015, No. 99, Applied:06 Jan 2016] A notice given by an officer of the Court –

(a) may be sent by post or transmitted by email; and

(b) if sent by post, is taken to be given at the time when it would be delivered in the ordinary course of post.

146 Service if no appearance or no address for service

Service of a document not required to be served personally on a party may be effected by filing the document in the registry if the party has made default in appearing or does not have an address for service in accordance with these rules.

146A Notice of serving by filing

[Rule 146A Inserted by S.R. 2003, No. 139, Applied:26 Nov 2003] A person who serves a document by filing it in the registry must endorse on it –

(a) a statement that the document is filed as service; and

(b) the name of the person upon whom it is served.

146B Confirmation of informal service

[Rule 146B Inserted by S.R. 2003, No. 139, Applied:26 Nov 2003] If for any reason a document required to be served on a person is not served on the person in the manner required by these rules but the document comes to the person's notice, the document is nevertheless taken to have been served on the person on the day on which it came to the person's notice.

Division 10 Service of originating process outside Australia

146C Interpretation of Division 10

[Rule 146C Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] In this Division –

originating process includes a document that initiates a civil proceeding, a cross-claim or a third party claim.

147 Application of rules

[Rule 147 Amended by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 147 Substituted by S.R. 2009, No. 52, Applied:01 Nov 2010]

(1)  [Rule 147 Subrule (1) amended by S.R. 2017, No. 101, Applied:20 Dec 2017] Rules 147A, 147B, 147C, 147D, 147E, 147F, 147G and 147H apply to the service of originating process outside Australia.

(2)  Rules 148 , 149 , 150 , 151 , 152 and 153 apply to the service of any document for the purpose of a proceeding in the Court –

(a) in a Convention country; or

(b) in any other country, other than a Hague Convention country, that the Attorney-General, by instrument filed in the proceeding, specifies.

(3)  [Rule 147 Subrule (3) inserted by S.R. 2012, No. 66, Applied:11 Oct 2013] This Division does not apply to proceedings to which Part 2 of the Trans-Tasman Proceedings Act applies.

147A Service outside of Australia  – when allowed without leave

[Rule 147A Inserted by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 147A Substituted by S.R. 2017, No. 101, Applied:20 Dec 2017] An originating process may be served without leave in the following cases:

(a) when the claim is founded on a tortious act or omission –

(i) which was done, or which occurred, wholly or partly in Australia; or

(ii) in respect of which the damage was sustained wholly or partly in Australia;

(b) when the claim is for the enforcement, rescission, dissolution, annulment, cancellation, rectification, interpretation or other treatment of, or for damages or other relief in respect of a breach of, a contract which –

(i) was made or entered into in Australia; or

(ii) was made by or through an agent trading or residing within Australia; or

(iii) was to be wholly or in part performed in Australia; or

(iv) was by its terms or by implication to be governed by Australian law or to be enforceable or cognizable in an Australian court;

(c) when the claim is in respect of a breach in Australia of any contract, wherever made, whether or not that breach was preceded or accompanied by a breach outside of Australia that rendered impossible the performance of that part of the contract that ought to have been performed in Australia;

(d) when the claim –

(i) is for an injunction to compel or restrain the performance of any act in Australia; or

(ii) is for interim or ancillary relief in respect of any matter or thing in or connected with Australia, where such relief is sought in relation to judicial or arbitral proceedings commenced or to be commenced, or an arbitration agreement made, in or outside of Australia (including, without limitation, interim or ancillary relief in relation to any proceedings under the International Arbitration Act 1974 of the Commonwealth or the Commercial Arbitration Act 2011 ); or

(iii) without limiting subparagraph (ii) , is an application for a freezing order under rule 937B , or an ancillary order under rule 937C , in respect of any matter or thing in or connected with Australia;

(e) when the subject matter of the claim is land or other property situated in Australia, or any act, deed, will, instrument or thing affecting such land or property, or the proceeding is for the perpetuation of testimony relating to such land or property;

(f) when the claim relates to the carrying out or discharge of the trusts of any written instrument of which the person to be served is a trustee and which ought to be carried out or discharged according to Australian law;

(g) when any relief is sought against any person domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not);

(h) when any person outside of Australia is –

(i) a necessary or proper party to a proceeding properly brought against another person who has been served or is to be served (whether within Australia or outside of Australia) under any other provision of these Rules of Court; or

(ii) a defendant to a claim for contribution or indemnity in respect of a liability enforceable by a proceeding in the Court;

(i) when the claim is for the administration of the estate of any deceased person who at the time of his or her death was domiciled in Australia or is for any relief or remedy which might be obtained in any such proceeding;

(j) when the claim arises under an Australian enactment and –

(i) any act or omission to which the claim relates was done or occurred in Australia; or

(ii) any loss or damage to which the claim relates was sustained in Australia; or

(iii) the enactment applies expressly or by implication to an act or omission that was done or occurred outside of Australia in the circumstances alleged; or

(iv) the enactment expressly or by implication confers jurisdiction on the Court over persons outside of Australia (in which case any requirements of the enactment relating to service must be complied with);

(k) when the person to be served has submitted to the jurisdiction of the Court;

(l) when a claim is made for restitution or for the remedy of constructive trust and the alleged liability of the person to be served arises out of an act or omission that was done or occurred wholly or partly in Australia;

(m) when it is sought to recognise or enforce any judgment;

(n) when the claim is founded on a cause of action arising in Australia;

(o) when the claim affects the person to be served in respect of his or her membership of a corporation incorporated in Australia, or of a partnership or association that has been formed, or is carrying on any part of its affairs, in Australia;

(p) when the claim concerns the construction, effect or enforcement of an Australian enactment;

(q) when the claim –

(i) relates to an arbitration held in Australia or governed by Australian law; or

(ii) is to enforce in Australia an arbitral award wherever made; or

(iii) is for orders necessary or convenient for carrying into effect in Australia the whole or any part of an arbitral award wherever made;

(r) when the claim is for relief relating to the custody, guardianship, protection or welfare of a minor present in Australia or who is domiciled or ordinarily or habitually resident in Australia (whether present in Australia or not);

(s) when the claim, so far as concerns the person to be served, falls partly within one or more of the above paragraphs and, as to the residue, within one or more of the others of the above paragraphs.

147B Service outside of Australia – when allowed with leave

[Rule 147B Inserted by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 147B Substituted by S.R. 2017, No. 101, Applied:20 Dec 2017]

(1)  In any proceeding when service is not allowed under rule 147A , an originating process may be served outside of Australia with the leave of the Court.

(2)  An application for leave under this rule must be made on notice to every party other than the person intended to be served.

(3)  A sealed copy of every order made under this rule must be served with the document to which it relates.

(4)  An application for leave under this rule must be supported by an affidavit stating any facts or matters related to the desirability of the Court assuming jurisdiction, including the place or country in which the person to be served is located or possibly may be found, and whether or not the person to be served is an Australian citizen.

(5)  The Court may grant an application for leave under this rule if satisfied that –

(a) the claim has a real and substantial connection with Australia; and

(b) Australia is an appropriate forum for the proceeding; and

(c) in all the circumstances, the Court should assume jurisdiction.

147C Court's discretion whether to assume jurisdiction

[Rule 147C Inserted by S.R. 2004, No. 56, Applied:21 Jul 2004] [Rule 147C Substituted by S.R. 2017, No. 101, Applied:20 Dec 2017]

(1)  On application by a person on whom an originating process has been served outside of Australia, the Court may dismiss or stay the proceeding or set aside service of the originating process.

(2)  Without limiting subrule (1) , the Court may make an order under this rule if satisfied –

(a) that service of the originating process is not authorised by these rules; or

(b) that the Court is an inappropriate forum for the trial of the proceeding; or

(c) that the claim has insufficient prospects of success to warrant putting the person who has been served outside of Australia to the time, expense and trouble of defending the claim.

147D Notice to person served outside of Australia

[Rule 147D Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] If a person is to be served outside of Australia with an originating process, the person must also be served with a notice, in accordance with the prescribed form, informing the person of –

(a) the scope of the jurisdiction of the Court in respect of claims against persons who are served outside of Australia; and

(b) the grounds alleged by the plaintiff to found jurisdiction; and

(c) the person's right to challenge service of the originating process or the jurisdiction of the Court, or to file a conditional appearance.

147E Time for filing appearance

[Rule 147E Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] Except when the Court otherwise orders, a person who has been served outside of Australia must file an appearance within 42 days from the date of service.

147F Leave to proceed where no appearance by person

[Rule 147F Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017]

(1)  If an originating process is served on a person outside of Australia and the person does not file an appearance, the party serving the document may not proceed against the person who has been served except by leave of the Court.

(2)  An application for leave under subrule (1) may be made without serving notice of the application on the person who has been served with the originating process.

147G Service of other documents outside of Australia

[Rule 147G Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] Any document other than an originating process may be served outside of Australia with the leave of the Court, which may be given with any directions that the Court thinks fit.

147H Mode of service

[Rule 147H Inserted by S.R. 2017, No. 101, Applied:20 Dec 2017] A document to be served outside of Australia need not be personally served on a person so long as it is served on the person in accordance with the law of the country in which service is effected.

148 Lodgment of documents

(1)  In this Division,

applicant means a person requiring a document to be served in another country.

(2)  An applicant is to –

(a) lodge with the Principal Registrar –

(i) the document to be served; and

(ii) unless English is an official language of the country concerned, a translation of the document in accordance with rule 149 ; and

(iii) a copy of the document and of any translation; and

(iv) any further copies of the document and of the translation the Principal Registrar directs; and

(v) if any special manner of service is required, a request for service in that manner and, unless English is an official language of the country concerned, a translation of the request; and

(b) file –

(i) a copy of each of the documents referred to in paragraph (a) ; and

(ii) a request and undertaking in accordance with rule 150 .

149 Translations

A translation of a document lodged under rule 148(2)(a)(ii) is to –

(a) be a translation into an official language of the country in which service is required; and

(b) bear a certificate of the translator in that language stating that it is an accurate translation of the document.

150 Request and undertaking

(1)  A request and undertaking filed under rule 148(2)(b)(ii) is to contain –

(a) a request by the applicant that a sealed copy of the document to be served be transmitted to the country concerned for service on a specified person; and

(b) if the applicant requires service under a Convention, a reference to that Convention; and

(c) an undertaking by the practitioner for the applicant or, if there is no practitioner, by the applicant, to pay to the Principal Registrar an amount equal to the expenses incurred because of the request for service.

(2)  The Principal Registrar may require the applicant or the practitioner for the applicant to give security to the satisfaction of the Principal Registrar for the expenses referred to in subrule (1)(c) .

151 Procedure on lodgment

(1)  If a document is lodged and filed in accordance with rule 148(2) , the Principal Registrar is to seal the document and send it to the Attorney-General for transmission for service together with any letter of request.

(2)  A letter of request is to be in accordance with the prescribed form.

152 Evidence of service

A certificate purporting to be a certificate of a judicial authority or other responsible person in the relevant country or of an Australian consular authority in that country as to service, attempted service or non-service which is filed is evidence of the matters stated in the certificate.

153 Order for payment of expenses of service

If a person files an undertaking under rule 148(2)(b)(ii) and within 14 days after delivery to that person of an account of expenses incurred because of the request for service does not pay to the Principal Registrar the amount of the expenses, the Court or a judge, on application by the Principal Registrar, may –

(a) order the person to pay the amount of the expenses to the Principal Registrar; and

(b) stay the proceedings, so far as concerns the whole or any part of any claim for relief by the person, until payment.

Division 11 Appearance

154 Appearance generally

(1)  If a person served with a writ or originating application wishes to take part in the proceedings, the person, within the period limited on the writ or application, is to –

(a) file a notice of appearance in a registry; and

(b) serve the notice in accordance with rule 157 .

(2)  A respondent is not required to file a notice of appearance to an originating application –

(a) under Part 11 of the Legal Profession Act 1993 ; or

(b) [Rule 154 Subrule (2) amended by S.R. 2012, No. 90, Applied:17 Oct 2012] under the Commercial Arbitration Act 2011 ; or

(c) for interpleader relief under Division 16 ; or

(d) for rectification of the register under section 32 of the Bills of Sale Act 1900 ; or

(e) for satisfaction of a registered bill of sale to be registered under the Bills of Sale Act 1900 ; or

(f) under section 8 of the Married Women's Property Act 1935 ; or

(g) [Rule 154 Subrule (2) amended by S.R. 2004, No. 56, Applied:21 Jul 2004] under rule 90(1)(zk) , (zl) or (zm) ; or

(h) for registration of a judgment under Part X of the Supreme Court Civil Procedure Act 1932 .

(3)  A notice of appearance is to be in accordance with the prescribed form.

155 Filing of notice of appearance

A notice of appearance may be lodged for filing in any registry of the Court.

156 Filing of notice of appearance in different registry

(1)  If a person lodges a notice of appearance at a registry other than that in which the proceeding is pending, the registrar of that other registry, before accepting it, is to –

(a) communicate with the registry in which the proceeding is pending to ensure that it may be filed; and

(b) if it may be, inform the registry of the time, date and place of its lodgment.

(2)  The registry in which the proceeding is pending is to note the information in the register of proceedings and the relevant file.

(3)  A notice of appearance, if accepted, is taken to be filed when lodged, but it is to be transferred to the other registry and filed there, subject to rule 158 .

157 Duplicate notice of appearance

(1)  A duplicate notice of appearance is to be lodged with a notice of appearance.

(2)  The registrar is to –

(a) seal the duplicate with the office seal, showing the date on which it is sealed; and

(b) return it to the person lodging it.

(3)  The sealed duplicate notice is a certificate that the notice of which it is a duplicate was filed on the day indicated by the seal.

(4)  As soon as practicable after filing a notice of appearance, a party is to serve the sealed duplicate notice on the plaintiff's or applicant's practitioner or on the plaintiff or applicant if acting in person.

(5)  Service is to be –

(a) at the address for service given in the writ or originating application; or

(b) by prepaid post directed to that address.

158 Transfers of action to other registry

(1)  The Court or a judge may order that a proceeding be transferred from one registry to another registry.

(2)  If a proceeding is transferred to another registry, any document filed is to be transferred to that registry.

159 Addresses in notice of appearance

A notice of appearance is to state –

(a) [Rule 159 Amended by S.R. 2008, No. 128, Applied:31 Dec 2008] if the defendant or respondent is appearing by a practitioner, the name and address of the practitioner or law practice; or

(b) if the defendant or respondent is not appearing by a practitioner –

(i) the address of the defendant or respondent; and

(ii) [Rule 159 Amended by S.R. 2003, No. 139, Applied:26 Nov 2003] an address for service in accordance with rule 128 .

160 No address

[Rule 160 Substituted by S.R. 2003, No. 139, Applied:26 Nov 2003] A notice of appearance which does not contain an address required by rule 159 is not to be filed.

161 Entry in register of proceedings

On receiving a notice of appearance, an officer is to enter the appearance in the register of proceedings as soon as possible.

162 Several defendants

If 2 or more defendants or respondents in the same proceeding appear at the same time by the same practitioner, the names of all of those defendants or respondents are to be inserted in one notice of appearance.

163 Appearance not entered on undertaking

A practitioner is liable to attachment if he or she –

(a) gives a written undertaking to accept service of any originating process, other than process in which the defendant or respondent is not required to appear; and

(b) is served with the originating process; and

(c) does not cause to be filed and served a notice of appearance within the period limited by the originating process.

164 Late appearance

(1)  A defendant or respondent may file a notice of appearance at any time before judgment or final order.

(2)  If a notice of appearance is filed after the period limited in the writ or originating application, the defendant or respondent is not entitled to any further period for delivering a defence or taking any other step than if the notice of appearance had been filed within that period, unless the Court or a judge otherwise orders.

165 Person not named may defend for land

(1)  By leave of the Court or a judge, a person not named as a defendant in a writ for the recovery of land may enter an appearance on filing an affidavit showing that the person is in possession of the land, either personally or by tenant.

(2)  An appearance by a person as landlord only is to state that it is entered in that capacity.

(3)  A notice of appearance under subrule (1) is to be filed and served on each party to the action.

(4)  A person appearing is to be named as an additional defendant in all subsequent proceedings.

(5)  The Court or a judge may strike out or confine an appearance by a person not in possession, either personally or by tenant, of the land of which recovery is sought.

166 Limitation of defence in action for recovery of land

(1)  A person who appears in an action for the recovery of land may limit the defence of the action to a part of the land mentioned in the writ.

(2)  A limitation is to be –

(a) by notice endorsed on the notice of appearance; or

(b) served within 4 days after the filing of the notice of appearance.

167 Setting aside service before appearance

On the application of a person who has not lodged a notice of appearance, the Court or a judge may make an order setting aside the service on that person of the writ or originating application.

168 Conditional appearance

(1)  A defendant or respondent in any originating proceeding may file and serve a notice of conditional appearance by which the defendant or respondent –

(a) denies the jurisdiction of the Court; or

(b) reserves the right to apply for an order setting aside the originating process or its service, on the ground of any informality or irregularity which renders the originating process or its service invalid.

(2)  A conditional appearance is to be in accordance with the prescribed form.

(3)  A defendant or respondent does not submit to the jurisdiction of the Court by a conditional appearance, except as to the costs occasioned by –

(a) the filing and service of the notice of conditional appearance; or

(b) by any application under this rule.

(4)  On filing a conditional appearance, a defendant or respondent may apply to the Court or a judge for an order to set aside the originating process or its service.

(5)  Unless the Court or a judge otherwise orders, a notice of conditional appearance becomes, and operates as, an unconditional notice of appearance if an application under subrule (4)  –

(a) is not made within 14 days after filing the notice; or

(b) is dismissed.

Division 12 Joinder of claims and parties and adding and deleting parties

169 Joining causes of action

A plaintiff or an applicant may join several causes of action in the same proceeding.

170 Claims for the recovery of land

(1)  In a proceeding for the recovery of land, other than one to which subrule (3) applies, no other cause of action may be joined without the leave of the Court or a judge.

(2)  Subrule (1) does not apply to a claim –

(a) in respect of mesne profits, arrears of rent or double value in respect of the land; or

(b) for damages for breach of a contract under which the land is held; or

(c) for a wrongful act occasioning injury to the land.

(3)  An applicant for foreclosure or redemption may claim and obtain an order against the respondent for delivery of possession of the mortgaged property to the applicant on or after the order absolute for foreclosure or redemption.

(4)  If an applicant for redemption of a mortgage fails to redeem and because of that failure the mortgage is foreclosed, the Court or a judge, on an application made in the redemption application by the respondent in whose favour the foreclosure has taken place, may make an order for delivery of possession of the mortgaged property to the respondent.

171 Claims by trustee in bankruptcy

A claim by a trustee in bankruptcy acting in that capacity may not be joined with any claim by the trustee in any other capacity except with the leave of the Court or a judge.

172 Claims by or against spouses

A claim by or against spouses may be joined with a claim by or against one of them separately.

173 Claims by or against trustees and personal representatives

A claim by or against a personal representative may not be joined with another claim by or against that personal representative personally unless that other claim is alleged to arise with reference to the estate to which the proceedings relate.

174 Joint and separate claims

A claim by plaintiffs or applicants jointly may be joined with a claim by one of them separately against the defendant or respondent.

175 Counterclaim in case of misjoinder

If in a proceeding a person has been improperly or unnecessarily joined as a plaintiff or applicant and a defendant or respondent has set up a counterclaim, set-off or cross-application, the counterclaim, set-off or cross-application is not defeated by reason of the misjoinder.

176 Joinder of defendants

(1)  If a plaintiff or applicant claims to be entitled to relief in respect of, or arising out of, a transaction, a set of circumstances or a series of transactions involving a question of law or fact common to 2 or more persons –

(a) those persons may be joined as defendants against whom relief is claimed jointly, severally or in the alternative; and

(b) those persons may be so joined notwithstanding that the joinder involves the joinder of different causes of action.

(2)  The Court or a judge may in any case order the name of any person joined under subrule (1) to be struck out of the proceedings.

177 Joining parties jointly and severally liable

A plaintiff may join as defendants to the same action all or any of the persons severally, or jointly and severally, liable on one contract, bill of exchange or promissory note.

178 Joining defendants in cases of doubt

A plaintiff or applicant who is in doubt as to from whom he or she is entitled to redress or against whom he or she is entitled to relief may join as defendants or respondents all persons from whom he or she might be entitled to redress or entitled to relief.