Starting proceedings

sec.8 Starting proceedings

A proceeding starts when the originating process is issued by the court. These rules provide for the following types of originating process— claim application notice of appeal notice of appeal subject to leave. An application in, about or pending the trial, hearing or outcome of a proceeding is not an originating process. This is commonly called an interlocutory application . r 8 amd 2009 SL No. 162 s 2 sch (sec.8-ssec.1) A proceeding starts when the originating process is issued by the court. (sec.8-ssec.2) These rules provide for the following types of originating process— claim application notice of appeal notice of appeal subject to leave. (sec.8-ssec.3) An application in, about or pending the trial, hearing or outcome of a proceeding is not an originating process. This is commonly called an interlocutory application .

• • claim
• • application
• • notice of appeal
• • notice of appeal subject to leave.

sec.9 Claim compulsory

A proceeding must be started by claim unless these rules require or permit the proceeding to be started by application.

sec.10 Application compulsory

A proceeding must be started by application if an Act or these rules require or permit a person to apply to a court for an order or another kind of relief and— the Act or rules do not state the type of originating process to be used; or a type of originating process (other than a claim or application) is required or permitted under a law.

• (a) the Act or rules do not state the type of originating process to be used; or
• (b) a type of originating process (other than a claim or application) is required or permitted under a law.

sec.11 Application permitted

A proceeding may be started by application if— the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or there is no opposing party to the proceeding or it is not intended to serve any person with the originating process; or there is insufficient time to prepare a claim because of the urgent nature of the relief sought.

• (a) the only or main issue in the proceeding is an issue of law and a substantial dispute of fact is unlikely; or
• (b) there is no opposing party to the proceeding or it is not intended to serve any person with the originating process; or
• (c) there is insufficient time to prepare a claim because of the urgent nature of the relief sought.

sec.12 Oral application permitted

A court may allow a proceeding to be started by oral application by a counsel or solicitor for an applicant if— urgent relief is sought; and the counsel or solicitor undertakes to file an application within the time directed by the court; and the court considers it appropriate having regard to all relevant circumstances.

• (a) urgent relief is sought; and
• (b) the counsel or solicitor undertakes to file an application within the time directed by the court; and
• (c) the court considers it appropriate having regard to all relevant circumstances.

sec.13 Proceeding incorrectly started by claim

This rule applies if the court considers a proceeding started by claim should have been started by application or may more conveniently continue as if started by application. The court may— order that the proceeding continue as if started by application; and give the directions the court considers appropriate for the conduct of the proceeding; and See rule 367 (Directions). make any other order the court considers appropriate. r 13 amd 2009 SL No. 162 s 2 sch (sec.13-ssec.1) This rule applies if the court considers a proceeding started by claim should have been started by application or may more conveniently continue as if started by application. (sec.13-ssec.2) The court may— order that the proceeding continue as if started by application; and give the directions the court considers appropriate for the conduct of the proceeding; and See rule 367 (Directions). make any other order the court considers appropriate.

• (a) order that the proceeding continue as if started by application; and
• (b) give the directions the court considers appropriate for the conduct of the proceeding; and Note— See rule 367 (Directions).
• (c) make any other order the court considers appropriate.

sec.14 Proceeding incorrectly started by application

This rule applies if the court considers a proceeding started by application should have been started by claim or may more conveniently continue as if started by claim. The court may— order that the proceeding continue as if started by claim; and give the directions the court considers appropriate for the conduct of the proceeding; and if the court considers it appropriate—order that any affidavits filed in the proceeding be treated as pleadings, alone or supplemented by particulars; and make any other order the court considers appropriate. (sec.14-ssec.1) This rule applies if the court considers a proceeding started by application should have been started by claim or may more conveniently continue as if started by claim. (sec.14-ssec.2) The court may— order that the proceeding continue as if started by claim; and give the directions the court considers appropriate for the conduct of the proceeding; and if the court considers it appropriate—order that any affidavits filed in the proceeding be treated as pleadings, alone or supplemented by particulars; and make any other order the court considers appropriate.

• (a) order that the proceeding continue as if started by claim; and
• (b) give the directions the court considers appropriate for the conduct of the proceeding; and
• (c) if the court considers it appropriate—order that any affidavits filed in the proceeding be treated as pleadings, alone or supplemented by particulars; and
• (d) make any other order the court considers appropriate.

sec.15 Registrar may refer issue of originating process to court

If the registrar considers an originating process appears to be an abuse of the process of the court or frivolous or vexatious, the registrar may refer the originating process to the court before issuing it. The court may direct the registrar— to issue the originating process; or to refuse to issue the originating process without leave of the court. (sec.15-ssec.1) If the registrar considers an originating process appears to be an abuse of the process of the court or frivolous or vexatious, the registrar may refer the originating process to the court before issuing it. (sec.15-ssec.2) The court may direct the registrar— to issue the originating process; or to refuse to issue the originating process without leave of the court.

• (a) to issue the originating process; or
• (b) to refuse to issue the originating process without leave of the court.

sec.16 Setting aside originating process

The court may— declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or declare that an originating process has not been properly served; or set aside an order for service of an originating process; or set aside an order extending the period for service of an originating process; or set aside an originating process; or set aside service of an originating process; or stay a proceeding; or set aside or amend an order made under rule 126 (1) or 129G (1) ; or make another order the court considers appropriate. See also rule 373 (Incorrect originating process). r 16 amd 2009 SL No. 162 s 2 sch; 2019 SL No. 50 s 3

• (a) declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or
• (b) declare that an originating process has not been properly served; or
• (c) set aside an order for service of an originating process; or
• (d) set aside an order extending the period for service of an originating process; or
• (e) set aside an originating process; or
• (f) set aside service of an originating process; or
• (g) stay a proceeding; or
• (h) set aside or amend an order made under rule 126 (1) or 129G (1) ; or
• (i) make another order the court considers appropriate.

Rules about originating process

sec.17 Contact details and address for service

A plaintiff or applicant must ensure— if the plaintiff or applicant intends to act personally, the following details are on the originating process before it is issued— the residential or business address of the plaintiff or applicant; for a proceeding in the Supreme Court or the District Court—if the address specified under subparagraph (i) is not in Queensland, an address in Queensland where documents may be served on the plaintiff or applicant; the telephone number (if any) of the plaintiff or applicant; if the plaintiff or applicant does not have a telephone number—a way of contacting the person by telephone; the fax number (if any) of the plaintiff or applicant; or The fax number may be relevant for ordinary service—see chapter 4 (Service), part 4 (Ordinary service). the email address (if any) of the plaintiff or applicant; or The email address may be relevant for ordinary service. See also chapter 4 , part 4 . if a solicitor is appointed to act for the plaintiff or applicant, the following details are on the originating process before it is issued— the residential or business address of the plaintiff or applicant; the name of the solicitor and, if the solicitor practises in a firm of solicitors, the name of the firm; the address of the solicitor’s place of business; if the address specified under subparagraph (iii) is not the plaintiff’s or applicant’s address for service or is not a Queensland address—an address for service in Queensland including, for example, an address approved by the court as the address for service; the solicitor’s telephone number; the solicitor’s fax number; the email address of the solicitor and, if the solicitor practises in a firm of solicitors, the email address of the firm. If the solicitor, or the solicitor’s firm, is a member of an approved document exchange, the solicitor may include the document exchange address with the details required under subrule (1) (b) . Notice of any change in a party’s address for service must be filed and served on all other parties. The address for service of a plaintiff or applicant is— for a party acting personally— if the party is required to specify an address under subrule (1) (a) (ii) —that address; or otherwise—the address specified under subrule (1) (a) (i) ; and for a party for whom a solicitor acts— if an address is specified under subrule (1) (b) (iv) —that address; or otherwise—the address specified under subrule (1) (b) (iii) . r 17 amd 2009 SL No. 162 s 2 sch; 2010 SL No. 129 s 3 ; 2018 SL No. 127 s 47 (sec.17-ssec.1) A plaintiff or applicant must ensure— if the plaintiff or applicant intends to act personally, the following details are on the originating process before it is issued— the residential or business address of the plaintiff or applicant; for a proceeding in the Supreme Court or the District Court—if the address specified under subparagraph (i) is not in Queensland, an address in Queensland where documents may be served on the plaintiff or applicant; the telephone number (if any) of the plaintiff or applicant; if the plaintiff or applicant does not have a telephone number—a way of contacting the person by telephone; the fax number (if any) of the plaintiff or applicant; or The fax number may be relevant for ordinary service—see chapter 4 (Service), part 4 (Ordinary service). the email address (if any) of the plaintiff or applicant; or The email address may be relevant for ordinary service. See also chapter 4 , part 4 . if a solicitor is appointed to act for the plaintiff or applicant, the following details are on the originating process before it is issued— the residential or business address of the plaintiff or applicant; the name of the solicitor and, if the solicitor practises in a firm of solicitors, the name of the firm; the address of the solicitor’s place of business; if the address specified under subparagraph (iii) is not the plaintiff’s or applicant’s address for service or is not a Queensland address—an address for service in Queensland including, for example, an address approved by the court as the address for service; the solicitor’s telephone number; the solicitor’s fax number; the email address of the solicitor and, if the solicitor practises in a firm of solicitors, the email address of the firm. (sec.17-ssec.2) If the solicitor, or the solicitor’s firm, is a member of an approved document exchange, the solicitor may include the document exchange address with the details required under subrule (1) (b) . (sec.17-ssec.3) Notice of any change in a party’s address for service must be filed and served on all other parties. (sec.17-ssec.4) The address for service of a plaintiff or applicant is— for a party acting personally— if the party is required to specify an address under subrule (1) (a) (ii) —that address; or otherwise—the address specified under subrule (1) (a) (i) ; and for a party for whom a solicitor acts— if an address is specified under subrule (1) (b) (iv) —that address; or otherwise—the address specified under subrule (1) (b) (iii) .

• (a) if the plaintiff or applicant intends to act personally, the following details are on the originating process before it is issued— (i) the residential or business address of the plaintiff or applicant; (ii) for a proceeding in the Supreme Court or the District Court—if the address specified under subparagraph (i) is not in Queensland, an address in Queensland where documents may be served on the plaintiff or applicant; (iii) the telephone number (if any) of the plaintiff or applicant; (iv) if the plaintiff or applicant does not have a telephone number—a way of contacting the person by telephone; (v) the fax number (if any) of the plaintiff or applicant; or Note— The fax number may be relevant for ordinary service—see chapter 4 (Service), part 4 (Ordinary service). (vi) the email address (if any) of the plaintiff or applicant; or Notes— 1 The email address may be relevant for ordinary service. 2 See also chapter 4 , part 4 .
• (i) the residential or business address of the plaintiff or applicant;
• (ii) for a proceeding in the Supreme Court or the District Court—if the address specified under subparagraph (i) is not in Queensland, an address in Queensland where documents may be served on the plaintiff or applicant;
• (iii) the telephone number (if any) of the plaintiff or applicant;
• (iv) if the plaintiff or applicant does not have a telephone number—a way of contacting the person by telephone;
• (v) the fax number (if any) of the plaintiff or applicant; or Note— The fax number may be relevant for ordinary service—see chapter 4 (Service), part 4 (Ordinary service).
• (vi) the email address (if any) of the plaintiff or applicant; or Notes— 1 The email address may be relevant for ordinary service. 2 See also chapter 4 , part 4 .
• 1 The email address may be relevant for ordinary service.
• 2 See also chapter 4 , part 4 .
• (b) if a solicitor is appointed to act for the plaintiff or applicant, the following details are on the originating process before it is issued— (i) the residential or business address of the plaintiff or applicant; (ii) the name of the solicitor and, if the solicitor practises in a firm of solicitors, the name of the firm; (iii) the address of the solicitor’s place of business; (iv) if the address specified under subparagraph (iii) is not the plaintiff’s or applicant’s address for service or is not a Queensland address—an address for service in Queensland including, for example, an address approved by the court as the address for service; (v) the solicitor’s telephone number; (vi) the solicitor’s fax number; (vii) the email address of the solicitor and, if the solicitor practises in a firm of solicitors, the email address of the firm.
• (i) the residential or business address of the plaintiff or applicant;
• (ii) the name of the solicitor and, if the solicitor practises in a firm of solicitors, the name of the firm;
• (iii) the address of the solicitor’s place of business;
• (iv) if the address specified under subparagraph (iii) is not the plaintiff’s or applicant’s address for service or is not a Queensland address—an address for service in Queensland including, for example, an address approved by the court as the address for service;
• (v) the solicitor’s telephone number;
• (vi) the solicitor’s fax number;
• (vii) the email address of the solicitor and, if the solicitor practises in a firm of solicitors, the email address of the firm.
• (i) the residential or business address of the plaintiff or applicant;
• (ii) for a proceeding in the Supreme Court or the District Court—if the address specified under subparagraph (i) is not in Queensland, an address in Queensland where documents may be served on the plaintiff or applicant;
• (iii) the telephone number (if any) of the plaintiff or applicant;
• (iv) if the plaintiff or applicant does not have a telephone number—a way of contacting the person by telephone;
• (v) the fax number (if any) of the plaintiff or applicant; or Note— The fax number may be relevant for ordinary service—see chapter 4 (Service), part 4 (Ordinary service).
• (vi) the email address (if any) of the plaintiff or applicant; or Notes— 1 The email address may be relevant for ordinary service. 2 See also chapter 4 , part 4 .
• 1 The email address may be relevant for ordinary service.
• 2 See also chapter 4 , part 4 .
• 1 The email address may be relevant for ordinary service.
• 2 See also chapter 4 , part 4 .
• (i) the residential or business address of the plaintiff or applicant;
• (ii) the name of the solicitor and, if the solicitor practises in a firm of solicitors, the name of the firm;
• (iii) the address of the solicitor’s place of business;
• (iv) if the address specified under subparagraph (iii) is not the plaintiff’s or applicant’s address for service or is not a Queensland address—an address for service in Queensland including, for example, an address approved by the court as the address for service;
• (v) the solicitor’s telephone number;
• (vi) the solicitor’s fax number;
• (vii) the email address of the solicitor and, if the solicitor practises in a firm of solicitors, the email address of the firm.
• (a) for a party acting personally— (i) if the party is required to specify an address under subrule (1) (a) (ii) —that address; or (ii) otherwise—the address specified under subrule (1) (a) (i) ; and
• (i) if the party is required to specify an address under subrule (1) (a) (ii) —that address; or
• (ii) otherwise—the address specified under subrule (1) (a) (i) ; and
• (b) for a party for whom a solicitor acts— (i) if an address is specified under subrule (1) (b) (iv) —that address; or (ii) otherwise—the address specified under subrule (1) (b) (iii) .
• (i) if an address is specified under subrule (1) (b) (iv) —that address; or
• (ii) otherwise—the address specified under subrule (1) (b) (iii) .
• (i) if the party is required to specify an address under subrule (1) (a) (ii) —that address; or
• (ii) otherwise—the address specified under subrule (1) (a) (i) ; and
• (i) if an address is specified under subrule (1) (b) (iv) —that address; or
• (ii) otherwise—the address specified under subrule (1) (b) (iii) .

sec.18 Representative details required

If a person is suing or being sued in a representative capacity, the plaintiff or applicant must state the representative capacity on the originating process.

sec.19 Originating process must be signed

The plaintiff or applicant, or the person’s solicitor, must sign the originating process. This rule applies subject to rule 975A (1) . r 19 amd 2000 SL No. 127 s 4 ; 2009 SL No. 265 s 72 ; 2018 SL No. 127 s 48 (sec.19-ssec.1) The plaintiff or applicant, or the person’s solicitor, must sign the originating process. (sec.19-ssec.2) This rule applies subject to rule 975A (1) .

sec.20 Copy of originating process for court

The plaintiff or applicant must file with the court a copy of the originating process to be filed and kept by the court. This rule applies subject to rule 975A (3) . r 20 amd 2018 SL No. 127 s 49 (sec.20-ssec.1) The plaintiff or applicant must file with the court a copy of the originating process to be filed and kept by the court. (sec.20-ssec.2) This rule applies subject to rule 975A (3) .

Claims

sec.21 Application of pt 3

This part applies to claims.

sec.22 Claim

A claim must be in the approved form. A plaintiff must— state briefly in the claim the nature of the claim made or relief sought in the proceeding; and attach a statement of claim to the claim; and for a claim filed in the District Court or a Magistrates Court, show the court has jurisdiction to decide the claim. The claim and attachment must be filed and then served on each defendant. Subrule (3) does not require service on a defendant personally if the claim and attachment are served in accordance with the Motor Accident Insurance Act 1994 , the repealed WorkCover Queensland Act 1996 or the Workers’ Compensation and Rehabilitation Act 2003 . r 22 amd 2000 SL No. 127 s 5 ; 2007 SL No. 96 s 3 (sec.22-ssec.1) A claim must be in the approved form. (sec.22-ssec.2) A plaintiff must— state briefly in the claim the nature of the claim made or relief sought in the proceeding; and attach a statement of claim to the claim; and for a claim filed in the District Court or a Magistrates Court, show the court has jurisdiction to decide the claim. (sec.22-ssec.3) The claim and attachment must be filed and then served on each defendant. (sec.22-ssec.4) Subrule (3) does not require service on a defendant personally if the claim and attachment are served in accordance with the Motor Accident Insurance Act 1994 , the repealed WorkCover Queensland Act 1996 or the Workers’ Compensation and Rehabilitation Act 2003 .

• (a) state briefly in the claim the nature of the claim made or relief sought in the proceeding; and
• (b) attach a statement of claim to the claim; and
• (c) for a claim filed in the District Court or a Magistrates Court, show the court has jurisdiction to decide the claim.

sec.23 Claim must include statement about filing notice of intention to defend claim

The plaintiff must ensure a claim has a statement on it telling the defendant— the relevant time limited for filing a notice of intention to defend; and See rule 137 (Time for notice of intention to defend). that if the defendant does not file a notice of intention to defend within the time, a default judgment may be obtained against the defendant without further notice. r 23 amd 2009 SL No. 162 s 2 sch

• (a) the relevant time limited for filing a notice of intention to defend; and Note— See rule 137 (Time for notice of intention to defend).
• (b) that if the defendant does not file a notice of intention to defend within the time, a default judgment may be obtained against the defendant without further notice.

sec.24 Duration and renewal of claim

A claim remains in force for 1 year starting on the day it is filed. If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end. The claim may be renewed whether or not it is in force. However, the court’s leave must be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary of the day on which the claim was originally filed. Before a claim renewed under this rule is served, it must be stamped with the court’s seal by the appropriate officer of the court and show the period for which the claim is renewed. Despite subrule (1) , for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed. (sec.24-ssec.1) A claim remains in force for 1 year starting on the day it is filed. (sec.24-ssec.2) If the claim has not been served on a defendant and the registrar is satisfied that reasonable efforts have been made to serve the defendant or that there is another good reason to renew the claim, the registrar may renew the claim for further periods, of not more than 1 year at a time, starting on the day after the claim would otherwise end. (sec.24-ssec.3) The claim may be renewed whether or not it is in force. (sec.24-ssec.4) However, the court’s leave must be obtained before a claim may be renewed for a period any part of which falls on or after the fifth anniversary of the day on which the claim was originally filed. (sec.24-ssec.5) Before a claim renewed under this rule is served, it must be stamped with the court’s seal by the appropriate officer of the court and show the period for which the claim is renewed. (sec.24-ssec.6) Despite subrule (1) , for any time limit (including a limitation period), a claim that is renewed is taken to have started on the day the claim was originally filed.

Applications

sec.25 Application of pt 4

This part applies to an application that is an originating process.

sec.26 Content of application

An application must be in the approved form. An application must name as respondents all persons directly affected by the relief sought in the application. The court may direct that others be included as respondents—see rule 69 (Including, substituting or removing party). Subrule (2) does not apply if these rules or another law authorise the hearing of the application without notice being given to another person. The application must list the affidavits to be relied on by the applicant at the hearing. The applicant must specify in the application the orders or other relief sought in the proceeding. If an application is made under an Act, the application must state the name and section number of the Act under which the application is made. The application, and any copies of the application for service, must specify the day set for hearing the application. An application filed in the District Court or a Magistrates Court, or material filed with it, must show that the court has jurisdiction to decide the application. r 26 amd 2000 SL No. 127 s 6 ; 2009 SL No. 162 s 2 sch (sec.26-ssec.1) An application must be in the approved form. (sec.26-ssec.2) An application must name as respondents all persons directly affected by the relief sought in the application. The court may direct that others be included as respondents—see rule 69 (Including, substituting or removing party). (sec.26-ssec.3) Subrule (2) does not apply if these rules or another law authorise the hearing of the application without notice being given to another person. (sec.26-ssec.4) The application must list the affidavits to be relied on by the applicant at the hearing. (sec.26-ssec.5) The applicant must specify in the application the orders or other relief sought in the proceeding. (sec.26-ssec.6) If an application is made under an Act, the application must state the name and section number of the Act under which the application is made. (sec.26-ssec.7) The application, and any copies of the application for service, must specify the day set for hearing the application. (sec.26-ssec.8) An application filed in the District Court or a Magistrates Court, or material filed with it, must show that the court has jurisdiction to decide the application.

sec.27 Service of application

An application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application. Under the Acts Interpretation Act 1954 , section 38 (1) (a) , the service day and the hearing day are excluded in the reckoning of time. However, the time limit in subrule (1) does not apply if— these rules, an Act or another law permit the application to be heard and decided without being served; or the applicant proposes in the application that it be decided without a hearing; or another time is provided for under these rules or an Act . If an application is not served as required by subrule (1) , the court must not hear and decide the application unless the court considers it just to hear and decide the application on the day set for hearing and 1 of the following applies— the court is satisfied delay caused by giving notice of the application would cause irreparable or serious mischief to the applicant or another person; the court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides the application on the day set for hearing; the respondents to the application consent to the court hearing and deciding the application on the day set for hearing. The court may decide subrule (3) has been satisfied if the application is a cross application by a respondent to another application and it is convenient for the applications to be heard together. For an application not served as required by subrule (1) — the court may make an order on an undertaking given by the applicant and acceptable to the court; and a person affected by the order may apply to the court for it to be set aside. r 27 amd 2009 SL No. 162 s 2 sch (sec.27-ssec.1) An application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application. Under the Acts Interpretation Act 1954 , section 38 (1) (a) , the service day and the hearing day are excluded in the reckoning of time. (sec.27-ssec.2) However, the time limit in subrule (1) does not apply if— these rules, an Act or another law permit the application to be heard and decided without being served; or the applicant proposes in the application that it be decided without a hearing; or another time is provided for under these rules or an Act . (sec.27-ssec.3) If an application is not served as required by subrule (1) , the court must not hear and decide the application unless the court considers it just to hear and decide the application on the day set for hearing and 1 of the following applies— the court is satisfied delay caused by giving notice of the application would cause irreparable or serious mischief to the applicant or another person; the court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides the application on the day set for hearing; the respondents to the application consent to the court hearing and deciding the application on the day set for hearing. The court may decide subrule (3) has been satisfied if the application is a cross application by a respondent to another application and it is convenient for the applications to be heard together. (sec.27-ssec.4) For an application not served as required by subrule (1) — the court may make an order on an undertaking given by the applicant and acceptable to the court; and a person affected by the order may apply to the court for it to be set aside.

• (a) these rules, an Act or another law permit the application to be heard and decided without being served; or
• (b) the applicant proposes in the application that it be decided without a hearing; or
• (c) another time is provided for under these rules or an Act .
• (a) the court is satisfied delay caused by giving notice of the application would cause irreparable or serious mischief to the applicant or another person;
• (b) the court is satisfied the respondents to the application will suffer no significant prejudice if it hears and decides the application on the day set for hearing;
• (c) the respondents to the application consent to the court hearing and deciding the application on the day set for hearing.
• (a) the court may make an order on an undertaking given by the applicant and acceptable to the court; and
• (b) a person affected by the order may apply to the court for it to be set aside.

sec.28 Service of affidavit in support of application

An affidavit to be relied on by the applicant at the hearing of an application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application. However, the court may give leave for an affidavit not served as required by subrule (1) to be relied on at the hearing. (sec.28-ssec.1) An affidavit to be relied on by the applicant at the hearing of an application must be filed and then served on each respondent at least 3 business days before the day set for hearing the application. (sec.28-ssec.2) However, the court may give leave for an affidavit not served as required by subrule (1) to be relied on at the hearing.

sec.29 Notice of address for service

A respondent may not file and serve a notice of intention to defend an application. However, the respondent may file and serve a notice of address for service in the approved form. The court may require a respondent to file and serve a notice of address for service in the approved form. Rule 17 applies in relation to a notice of address for service as if the notice were an originating process and the respondent were an applicant. Despite rule 17 , an address for service stated under the Service and Execution of Process Act 1992 (Cwlth) is the address for service of the respondent. Failure to file or serve notice of an address for service does not affect the respondent’s right to be heard on the hearing of the application. r 29 amd 2010 SL No. 129 s 4 (sec.29-ssec.1) A respondent may not file and serve a notice of intention to defend an application. (sec.29-ssec.2) However, the respondent may file and serve a notice of address for service in the approved form. (sec.29-ssec.3) The court may require a respondent to file and serve a notice of address for service in the approved form. (sec.29-ssec.4) Rule 17 applies in relation to a notice of address for service as if the notice were an originating process and the respondent were an applicant. (sec.29-ssec.5) Despite rule 17 , an address for service stated under the Service and Execution of Process Act 1992 (Cwlth) is the address for service of the respondent. (sec.29-ssec.6) Failure to file or serve notice of an address for service does not affect the respondent’s right to be heard on the hearing of the application.

sec.30 Consent adjournment

If all the parties to an application consent to an adjournment of a hearing of the application, they may adjourn the application by noting the adjournment on the court file or filing a consent in the approved form.

Applications in a proceeding

sec.31 Applications in a proceeding

A person making an application in a proceeding, or the person’s solicitor, must sign the application and file it. The application must be in the approved form. The application must name as respondent any party whose interests may be affected by the granting of the relief sought. If an application is made by a person who is not a party to the proceedings, the application must have on it the information required under rule 17 to be on an originating process unless the information has already been provided on a document filed in the proceeding. An application must be filed and then served on each respondent at least 2 business days before the day set for hearing the application. Under the Acts Interpretation Act 1954 , section 38 (1) (a) , the service day and the hearing day are excluded in the reckoning of time. If all the parties to an application consent to an adjournment of a hearing of the application, they may adjourn the application by noting the adjournment on the court file. r 31 (prev r 32) amd 2000 SL No. 127 s 8 renum 2000 SL No. 127 s 9 amd 2009 SL No. 162 s 2 sch; 2013 SL No. 289 s 8 (sec.31-ssec.1) A person making an application in a proceeding, or the person’s solicitor, must sign the application and file it. (sec.31-ssec.2) The application must be in the approved form. (sec.31-ssec.3) The application must name as respondent any party whose interests may be affected by the granting of the relief sought. (sec.31-ssec.4) If an application is made by a person who is not a party to the proceedings, the application must have on it the information required under rule 17 to be on an originating process unless the information has already been provided on a document filed in the proceeding. (sec.31-ssec.5) An application must be filed and then served on each respondent at least 2 business days before the day set for hearing the application. Under the Acts Interpretation Act 1954 , section 38 (1) (a) , the service day and the hearing day are excluded in the reckoning of time. (sec.31-ssec.6) If all the parties to an application consent to an adjournment of a hearing of the application, they may adjourn the application by noting the adjournment on the court file.

sec.32 Oral applications

Nothing in this part prevents— a party to a proceeding making an oral application to the court in the proceeding for an order the court may make on a written application; or the court making an order sought on an oral application. If a party makes an oral application, the court may impose conditions required in the interests of justice to prevent prejudice to the other parties. r 32 (prev r 32A (orig r 31)) renum and reloc 2000 SL No. 127 s 7 renum 2000 SL No. 127 s 9 (sec.32-ssec.1) Nothing in this part prevents— a party to a proceeding making an oral application to the court in the proceeding for an order the court may make on a written application; or the court making an order sought on an oral application. (sec.32-ssec.2) If a party makes an oral application, the court may impose conditions required in the interests of justice to prevent prejudice to the other parties.

• (a) a party to a proceeding making an oral application to the court in the proceeding for an order the court may make on a written application; or
• (b) the court making an order sought on an oral application.

Where to start a proceeding

Central registry

sec.33 Central registry

A proceeding in a court may be started in any central registry of the court. r 33 amd 2010 Act No. 26 s 136

Starting proceeding other than in central registry

sec.34 Application of div 2

This division applies to the following courts if a person decides to start a proceeding other than in a central registry of a court— the Supreme Court; the District Court; Magistrates Courts. r 34 sub 2010 Act No. 26 s 138

• (a) the Supreme Court;
• (b) the District Court;
• (c) Magistrates Courts.

sec.35 General rule

A person must start a proceeding before a court in 1 of the following districts— the district in which the defendant or respondent lives or carries on business; if there is more than 1 defendant or respondent—the district in which 1 or more of the defendants or respondents live or carry on business; if the parties to a proceeding to be started in a Magistrates Court or the District Court consent in writing and file the consent with the registrar— for a Magistrates Court—any Magistrates Courts district; or for the District Court—any district of the District Court; if a defendant has agreed or undertaken in writing to pay a debt or another amount at a particular place—the district in which the place is located; the district in which all or part of the claim or cause of action arose; if the proceeding is a claim for the recovery of possession of land—the district in which the land is located. However, if the proceeding is to be started in the District Court and subrule (1) does not apply— a person may, without notice to a proposed party, apply to the District Court for directions about the district in which the proceeding should be started; and the person may start the proceeding in accordance with the court’s directions. For these rules, a division of the Brisbane Magistrates Court is taken to be a district. r 35 amd 2000 SL No. 127 s 10 ; 2004 SL No. 115 s 3 (sec.35-ssec.1) A person must start a proceeding before a court in 1 of the following districts— the district in which the defendant or respondent lives or carries on business; if there is more than 1 defendant or respondent—the district in which 1 or more of the defendants or respondents live or carry on business; if the parties to a proceeding to be started in a Magistrates Court or the District Court consent in writing and file the consent with the registrar— for a Magistrates Court—any Magistrates Courts district; or for the District Court—any district of the District Court; if a defendant has agreed or undertaken in writing to pay a debt or another amount at a particular place—the district in which the place is located; the district in which all or part of the claim or cause of action arose; if the proceeding is a claim for the recovery of possession of land—the district in which the land is located. (sec.35-ssec.2) However, if the proceeding is to be started in the District Court and subrule (1) does not apply— a person may, without notice to a proposed party, apply to the District Court for directions about the district in which the proceeding should be started; and the person may start the proceeding in accordance with the court’s directions. (sec.35-ssec.3) For these rules, a division of the Brisbane Magistrates Court is taken to be a district.

• (a) the district in which the defendant or respondent lives or carries on business;
• (b) if there is more than 1 defendant or respondent—the district in which 1 or more of the defendants or respondents live or carry on business;
• (c) if the parties to a proceeding to be started in a Magistrates Court or the District Court consent in writing and file the consent with the registrar— (i) for a Magistrates Court—any Magistrates Courts district; or (ii) for the District Court—any district of the District Court;
• (i) for a Magistrates Court—any Magistrates Courts district; or
• (ii) for the District Court—any district of the District Court;
• (d) if a defendant has agreed or undertaken in writing to pay a debt or another amount at a particular place—the district in which the place is located;
• (e) the district in which all or part of the claim or cause of action arose;
• (f) if the proceeding is a claim for the recovery of possession of land—the district in which the land is located.
• (i) for a Magistrates Court—any Magistrates Courts district; or
• (ii) for the District Court—any district of the District Court;
• (a) a person may, without notice to a proposed party, apply to the District Court for directions about the district in which the proceeding should be started; and
• (b) the person may start the proceeding in accordance with the court’s directions.

Area of Magistrates Courts districts

sec.36 Application of div 3

This division applies only to Magistrates Courts.

sec.37 Extended area of Magistrates Courts districts

The area of a division of a Magistrates Court in the Brisbane Magistrates Courts district includes— if the division has a common boundary with an adjoining division in the district—the part of the adjoining division that is within 1km of the common boundary; and if the division has a common boundary with another district—the area outside the Brisbane Magistrates Courts district that is within 35km of the common boundary. The area of a district, other than the Brisbane Magistrates Courts district, includes the area outside the district that is within 35km of the district’s boundary. (sec.37-ssec.1) The area of a division of a Magistrates Court in the Brisbane Magistrates Courts district includes— if the division has a common boundary with an adjoining division in the district—the part of the adjoining division that is within 1km of the common boundary; and if the division has a common boundary with another district—the area outside the Brisbane Magistrates Courts district that is within 35km of the common boundary. (sec.37-ssec.2) The area of a district, other than the Brisbane Magistrates Courts district, includes the area outside the district that is within 35km of the district’s boundary.

• (a) if the division has a common boundary with an adjoining division in the district—the part of the adjoining division that is within 1km of the common boundary; and
• (b) if the division has a common boundary with another district—the area outside the Brisbane Magistrates Courts district that is within 35km of the common boundary.

Objection to, and change of, venue

sec.38 Objection to venue

This rule applies if a proceeding in a court is started other than in a central registry of the court. The defendant or respondent to the proceeding may object to the starting of the proceeding in a district of the court other than in accordance with rule 35 — by application to the court for an order dismissing the proceeding or transferring the proceeding to another place at which the court is held; and if the proceeding is started by claim—by including the objection in the defendant’s notice of intention to defend. If the defendant or respondent does not object in the way required under subrule (2) , the court can not, on its own initiative, decide that the proceeding should have been started at another place at which the court is held. If the proceeding is started by application, the application under subrule (2) (a) must be made returnable on or before the return date of the originating process. The court may make any of the following orders on an application under this rule— an order dismissing— the application; or the proceeding; an order transferring the proceeding to another place at which the court is held. If the court makes an order under subrule (5) (a) (i) , the proceeding is taken to have been started in a district of the court in accordance with rule 35 . r 38 sub 2012 SL No. 150 s 7 (sec.38-ssec.1) This rule applies if a proceeding in a court is started other than in a central registry of the court. (sec.38-ssec.2) The defendant or respondent to the proceeding may object to the starting of the proceeding in a district of the court other than in accordance with rule 35 — by application to the court for an order dismissing the proceeding or transferring the proceeding to another place at which the court is held; and if the proceeding is started by claim—by including the objection in the defendant’s notice of intention to defend. (sec.38-ssec.3) If the defendant or respondent does not object in the way required under subrule (2) , the court can not, on its own initiative, decide that the proceeding should have been started at another place at which the court is held. (sec.38-ssec.4) If the proceeding is started by application, the application under subrule (2) (a) must be made returnable on or before the return date of the originating process. (sec.38-ssec.5) The court may make any of the following orders on an application under this rule— an order dismissing— the application; or the proceeding; an order transferring the proceeding to another place at which the court is held. (sec.38-ssec.6) If the court makes an order under subrule (5) (a) (i) , the proceeding is taken to have been started in a district of the court in accordance with rule 35 .

• (a) by application to the court for an order dismissing the proceeding or transferring the proceeding to another place at which the court is held; and
• (b) if the proceeding is started by claim—by including the objection in the defendant’s notice of intention to defend.
• (a) an order dismissing— (i) the application; or (ii) the proceeding;
• (i) the application; or
• (ii) the proceeding;
• (b) an order transferring the proceeding to another place at which the court is held.
• (i) the application; or
• (ii) the proceeding;

sec.39 Change of venue by court order

This rule applies if at any time a court is satisfied a proceeding can be more conveniently or fairly heard or dealt with at a place at which the court is held other than the place in which the proceeding is pending. The court may, on its own initiative or on the application of a party to the proceeding, order that the proceeding be transferred to the other place. r 39 sub 2012 SL No. 150 s 7 (sec.39-ssec.1) This rule applies if at any time a court is satisfied a proceeding can be more conveniently or fairly heard or dealt with at a place at which the court is held other than the place in which the proceeding is pending. (sec.39-ssec.2) The court may, on its own initiative or on the application of a party to the proceeding, order that the proceeding be transferred to the other place.

sec.40 Change of venue by agreement

The parties to a proceeding may apply for a consent order under rule 666 that the proceeding be transferred to another place at which the court is held. r 40 sub 2012 SL No. 150 s 7

sec.41 Consequences of transfer

If the court or registrar (the transferring court ) orders under rule 38 (5) (b) , 39 (2) or 40 that a proceeding be transferred to another place at which the court is held— the proceeding is pending in the registry at the other place; and unless the transferring court otherwise orders, the trial or hearing of the proceeding is to be heard and decided by the court at the other place. r 41 sub 2012 SL No. 150 s 7

• (a) the proceeding is pending in the registry at the other place; and
• (b) unless the transferring court otherwise orders, the trial or hearing of the proceeding is to be heard and decided by the court at the other place.

Section sec.42

r 42 om 2012 SL No. 150 s 7

Section sec.43

r 43 om 2012 SL No. 150 s 7

Section sec.44

r 44 om 2012 SL No. 150 s 7

Section sec.45

r 45 om 2012 SL No. 150 s 7

Section sec.46

r 46 om 2012 SL No. 150 s 7

Section sec.47

r 47 om 2012 SL No. 150 s 7

Section sec.48

r 48 om 2012 SL No. 150 s 7

Section sec.49

r 49 om 2012 SL No. 150 s 7

Applications heard at a different location

sec.50 Applications heard at a different location

If— an application in a proceeding would ordinarily be made to the court at a particular registry; and there is no judge of the court at the registry available to hear and decide the application; nothing in this part prevents a person making the application in the proceeding to the court at another registry. If— an application in a proceeding would ordinarily be made to a particular Magistrates Court; and there is no magistrate at the court available to hear and decide the application; nothing in this part prevents a person making the application in the proceeding to another Magistrates Court. (sec.50-ssec.1) If— an application in a proceeding would ordinarily be made to the court at a particular registry; and there is no judge of the court at the registry available to hear and decide the application; nothing in this part prevents a person making the application in the proceeding to the court at another registry. (sec.50-ssec.2) If— an application in a proceeding would ordinarily be made to a particular Magistrates Court; and there is no magistrate at the court available to hear and decide the application; nothing in this part prevents a person making the application in the proceeding to another Magistrates Court.

• (a) an application in a proceeding would ordinarily be made to the court at a particular registry; and
• (b) there is no judge of the court at the registry available to hear and decide the application;
• (a) an application in a proceeding would ordinarily be made to a particular Magistrates Court; and
• (b) there is no magistrate at the court available to hear and decide the application;

Cross-vesting

sec.51 Definitions for pt 7

In this part— cross-vesting laws means the Jurisdiction of Courts (Cross-vesting) Act 1987 and the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cwlth) . special federal matter see the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cwlth) . r 51 def special federal matter amd 2009 SL No. 162 s 2 sch

sec.52 Application of pt 7

This part applies to a proceeding to which the cross-vesting laws apply. This part applies only to the Supreme Court. (sec.52-ssec.1) This part applies to a proceeding to which the cross-vesting laws apply. (sec.52-ssec.2) This part applies only to the Supreme Court.

sec.53 Starting proceedings

A proceeding in which a party relies on the cross-vesting laws must be started under this part. However, if there is doubt or difficulty about how a proceeding should be started, the court, on application to it, may give directions. An application for directions may be made without notice to another person. A party who relies on the cross-vesting laws must include in the process by which the laws are invoked a statement identifying each claim or ground of defence about which the cross-vesting laws are invoked. A failure to comply with subrule (4) does not invalidate the process. If a party who has not complied with subrule (4) wishes to invoke the cross-vesting laws, the court, on application by the party, may give directions. (sec.53-ssec.1) A proceeding in which a party relies on the cross-vesting laws must be started under this part. (sec.53-ssec.2) However, if there is doubt or difficulty about how a proceeding should be started, the court, on application to it, may give directions. (sec.53-ssec.3) An application for directions may be made without notice to another person. (sec.53-ssec.4) A party who relies on the cross-vesting laws must include in the process by which the laws are invoked a statement identifying each claim or ground of defence about which the cross-vesting laws are invoked. (sec.53-ssec.5) A failure to comply with subrule (4) does not invalidate the process. (sec.53-ssec.6) If a party who has not complied with subrule (4) wishes to invoke the cross-vesting laws, the court, on application by the party, may give directions.

sec.54 Special federal matters

If a matter for decision is a special federal matter, the plaintiff or the defendant must give particulars of the special matter in the statement required under rule 53 (4) . The court must not decide a proceeding that raises for decision a special federal matter unless it is satisfied the notice required by section 6 (4) (a) of the cross-vesting laws sufficiently specifies the nature of the special federal matter. (sec.54-ssec.1) If a matter for decision is a special federal matter, the plaintiff or the defendant must give particulars of the special matter in the statement required under rule 53 (4) . (sec.54-ssec.2) The court must not decide a proceeding that raises for decision a special federal matter unless it is satisfied the notice required by section 6 (4) (a) of the cross-vesting laws sufficiently specifies the nature of the special federal matter.

sec.55 Service

Despite chapter 4 , an originating process in which the cross-vesting laws are relied on may be served outside the jurisdiction. If a defendant served outside the jurisdiction under subrule (1) does not file a notice of intention to defend, the plaintiff must not take a further step in the proceeding unless the court gives leave to proceed. The court must not give leave to proceed unless it is satisfied— jurisdiction under the cross-vesting laws is being invoked; and the court is a convenient court in which to decide the matter. An application for leave to proceed must be made by application or it may be included in the application for directions under rule 56 . An order giving leave to proceed does not prevent the court from subsequently transferring the proceeding to another court. (sec.55-ssec.1) Despite chapter 4 , an originating process in which the cross-vesting laws are relied on may be served outside the jurisdiction. (sec.55-ssec.2) If a defendant served outside the jurisdiction under subrule (1) does not file a notice of intention to defend, the plaintiff must not take a further step in the proceeding unless the court gives leave to proceed. (sec.55-ssec.3) The court must not give leave to proceed unless it is satisfied— jurisdiction under the cross-vesting laws is being invoked; and the court is a convenient court in which to decide the matter. (sec.55-ssec.4) An application for leave to proceed must be made by application or it may be included in the application for directions under rule 56 . (sec.55-ssec.5) An order giving leave to proceed does not prevent the court from subsequently transferring the proceeding to another court.

• (a) jurisdiction under the cross-vesting laws is being invoked; and
• (b) the court is a convenient court in which to decide the matter.

sec.56 Directions

The first party to invoke the cross-vesting laws must make an application for directions and serve it on all other parties. If a plaintiff is required to make the application for directions, the plaintiff must make and serve the application within 7 days after being served with the first notice of intention to defend. If a defendant is required to make the application for directions, the defendant must make and serve the application within 7 days after service of the process invoking the cross-vesting laws. If a proceeding is transferred to the court from another court, the party who started the proceeding must, within 14 days after the date of the order transferring the proceeding, make and serve an application for directions. If the party does not comply with subrule (4) , another party may make and serve the application or the court may call the parties before it on its own initiative. On the hearing of the application for directions, the court must give a direction or make a decision about the conduct of the proceeding that the court considers appropriate. The court may, at the trial or hearing of the proceeding, vary an order or decision made on the application for directions. (sec.56-ssec.1) The first party to invoke the cross-vesting laws must make an application for directions and serve it on all other parties. (sec.56-ssec.2) If a plaintiff is required to make the application for directions, the plaintiff must make and serve the application within 7 days after being served with the first notice of intention to defend. (sec.56-ssec.3) If a defendant is required to make the application for directions, the defendant must make and serve the application within 7 days after service of the process invoking the cross-vesting laws. (sec.56-ssec.4) If a proceeding is transferred to the court from another court, the party who started the proceeding must, within 14 days after the date of the order transferring the proceeding, make and serve an application for directions. (sec.56-ssec.5) If the party does not comply with subrule (4) , another party may make and serve the application or the court may call the parties before it on its own initiative. (sec.56-ssec.6) On the hearing of the application for directions, the court must give a direction or make a decision about the conduct of the proceeding that the court considers appropriate. (sec.56-ssec.7) The court may, at the trial or hearing of the proceeding, vary an order or decision made on the application for directions.

sec.57 Transfer of proceedings

If the court makes an order transferring a proceeding to another court, the registrar must send to the court to which the proceeding is transferred all documents filed and orders made in the proceeding, unless the court orders otherwise. If a proceeding is transferred to the court from another court, the registrar must give it a number. An order transferring a proceeding to another court under section 5 of the cross-vesting laws may be made only by the court constituted by a judge. (sec.57-ssec.1) If the court makes an order transferring a proceeding to another court, the registrar must send to the court to which the proceeding is transferred all documents filed and orders made in the proceeding, unless the court orders otherwise. (sec.57-ssec.2) If a proceeding is transferred to the court from another court, the registrar must give it a number. (sec.57-ssec.3) An order transferring a proceeding to another court under section 5 of the cross-vesting laws may be made only by the court constituted by a judge.

sec.58 Transfer on Attorney-General’s application

An application by an Attorney-General of a State or of the Commonwealth under section 5 or 6 of the cross-vesting laws for the transfer of a proceeding may be made by application without the Attorney-General becoming a party to the proceeding.

sec.59 Transfer to court if no proceeding pending

This rule applies if a proceeding is removed to a court under section 8 of the cross-vesting laws. The court may immediately on the removal give a direction, make a decision or direct the parties to take a step in the proceeding the court considers appropriate. The court’s powers under subrule (2) — are in addition to the court’s powers under rule 56 ; and include power to give directions that could have been given by the court or tribunal from which the proceeding was removed. (sec.59-ssec.1) This rule applies if a proceeding is removed to a court under section 8 of the cross-vesting laws. (sec.59-ssec.2) The court may immediately on the removal give a direction, make a decision or direct the parties to take a step in the proceeding the court considers appropriate. (sec.59-ssec.3) The court’s powers under subrule (2) — are in addition to the court’s powers under rule 56 ; and include power to give directions that could have been given by the court or tribunal from which the proceeding was removed.

• (a) are in addition to the court’s powers under rule 56 ; and
• (b) include power to give directions that could have been given by the court or tribunal from which the proceeding was removed.

Several causes of action and parties in a proceeding

Several causes of action

sec.60 Inclusion of several causes of action in a proceeding

A plaintiff or applicant may, whether seeking relief in the same or different capacities, include in the same proceeding as many causes of action as the plaintiff has against a defendant or the applicant has against a respondent. However, causes of action may be included in the same proceeding only if at least 1 of the following conditions is satisfied— if a separate proceeding were brought for each cause of action—a common question of law or fact may arise in all the proceedings; all rights to relief sought in the proceeding (whether joint, several or alternative) are in relation to, or arise out of, the same transaction or event or series of transactions or events; the court gives leave, either before or after the start of the proceeding. (sec.60-ssec.1) A plaintiff or applicant may, whether seeking relief in the same or different capacities, include in the same proceeding as many causes of action as the plaintiff has against a defendant or the applicant has against a respondent. (sec.60-ssec.2) However, causes of action may be included in the same proceeding only if at least 1 of the following conditions is satisfied— if a separate proceeding were brought for each cause of action—a common question of law or fact may arise in all the proceedings; all rights to relief sought in the proceeding (whether joint, several or alternative) are in relation to, or arise out of, the same transaction or event or series of transactions or events; the court gives leave, either before or after the start of the proceeding.

• (a) if a separate proceeding were brought for each cause of action—a common question of law or fact may arise in all the proceedings;
• (b) all rights to relief sought in the proceeding (whether joint, several or alternative) are in relation to, or arise out of, the same transaction or event or series of transactions or events;
• (c) the court gives leave, either before or after the start of the proceeding.

Several parties

sec.61 Application of div 2

This division applies to a proceeding subject to any order of the court made before or after the proceeding is started— requiring a person— to be a party to the proceeding; or to attend a proceeding or part of a proceeding; or dispensing with the requirement for a person to be a party to the proceeding.

• (a) requiring a person— (i) to be a party to the proceeding; or (ii) to attend a proceeding or part of a proceeding; or
• (i) to be a party to the proceeding; or
• (ii) to attend a proceeding or part of a proceeding; or
• (b) dispensing with the requirement for a person to be a party to the proceeding.
• (i) to be a party to the proceeding; or
• (ii) to attend a proceeding or part of a proceeding; or

sec.62 Necessary parties

Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding. The court may order a person to be included as a party whose presence as a party is necessary to enable the court to adjudicate effectually and completely on all issues raised in the proceeding. A person who is required under this rule to be included as a plaintiff or applicant and does not consent to be included in this way may be included as a defendant or respondent. The court may dispense with a requirement under this rule for a person to be included as a party. (sec.62-ssec.1) Each person whose presence is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in a proceeding must be included as a party to the proceeding. (sec.62-ssec.2) The court may order a person to be included as a party whose presence as a party is necessary to enable the court to adjudicate effectually and completely on all issues raised in the proceeding. (sec.62-ssec.3) A person who is required under this rule to be included as a plaintiff or applicant and does not consent to be included in this way may be included as a defendant or respondent. (sec.62-ssec.4) The court may dispense with a requirement under this rule for a person to be included as a party.

sec.63 Joint entitlement

If a plaintiff or applicant seeks relief to which another person is entitled jointly with the plaintiff or applicant, all persons entitled to the relief must be parties to the proceeding. A person entitled to seek relief who does not agree to be a plaintiff or applicant must be made a defendant or respondent. (sec.63-ssec.1) If a plaintiff or applicant seeks relief to which another person is entitled jointly with the plaintiff or applicant, all persons entitled to the relief must be parties to the proceeding. (sec.63-ssec.2) A person entitled to seek relief who does not agree to be a plaintiff or applicant must be made a defendant or respondent.

sec.64 Joint or several liability

If a plaintiff or applicant seeks relief against a defendant or respondent who is liable jointly with another person and also liable severally, the other person need not be made a defendant or respondent to the proceeding. If persons are liable jointly, but not severally, under a contract, and a plaintiff or applicant seeks relief in relation to the contract against some but not all of the persons, the court may stay the proceeding until the other persons liable under the contract are included as defendants or respondents. (sec.64-ssec.1) If a plaintiff or applicant seeks relief against a defendant or respondent who is liable jointly with another person and also liable severally, the other person need not be made a defendant or respondent to the proceeding. (sec.64-ssec.2) If persons are liable jointly, but not severally, under a contract, and a plaintiff or applicant seeks relief in relation to the contract against some but not all of the persons, the court may stay the proceeding until the other persons liable under the contract are included as defendants or respondents.

sec.65 Inclusion of multiple parties in a proceeding

In a proceeding, 2 or more persons may be plaintiffs or defendants or applicants or respondents if— separate proceedings were brought by or against each of them and a common question of law or fact may arise in all the proceedings; or all rights to relief sought in the proceeding (whether joint, several, or alternative) arise out of the same transaction or event or series of transactions or events. Also, in a proceeding, 2 or more persons may be defendants or respondents if— there is doubt as to— the person from whom the plaintiff or applicant is entitled to relief; or the respective amounts for which each may be liable; or damage or loss has been caused to the plaintiff or applicant by more than 1 person, whether or not there is a factual connection between the claims apart from the involvement of the plaintiff or applicant. (sec.65-ssec.1) In a proceeding, 2 or more persons may be plaintiffs or defendants or applicants or respondents if— separate proceedings were brought by or against each of them and a common question of law or fact may arise in all the proceedings; or all rights to relief sought in the proceeding (whether joint, several, or alternative) arise out of the same transaction or event or series of transactions or events. (sec.65-ssec.2) Also, in a proceeding, 2 or more persons may be defendants or respondents if— there is doubt as to— the person from whom the plaintiff or applicant is entitled to relief; or the respective amounts for which each may be liable; or damage or loss has been caused to the plaintiff or applicant by more than 1 person, whether or not there is a factual connection between the claims apart from the involvement of the plaintiff or applicant.

• (a) separate proceedings were brought by or against each of them and a common question of law or fact may arise in all the proceedings; or
• (b) all rights to relief sought in the proceeding (whether joint, several, or alternative) arise out of the same transaction or event or series of transactions or events.
• (a) there is doubt as to— (i) the person from whom the plaintiff or applicant is entitled to relief; or (ii) the respective amounts for which each may be liable; or
• (i) the person from whom the plaintiff or applicant is entitled to relief; or
• (ii) the respective amounts for which each may be liable; or
• (b) damage or loss has been caused to the plaintiff or applicant by more than 1 person, whether or not there is a factual connection between the claims apart from the involvement of the plaintiff or applicant.
• (i) the person from whom the plaintiff or applicant is entitled to relief; or
• (ii) the respective amounts for which each may be liable; or

sec.66 Identical interest in relief unnecessary

It is not necessary for every defendant or respondent to be interested in all the relief sought or in every cause of action included in a proceeding.

sec.67 Parties incorrectly included or not included

Despite rules 62 and 63 , the court may decide a proceeding even if a person is incorrectly included or not included as a party and may deal with the proceeding as it affects the rights of the parties before it.

Reconstitution of proceeding

sec.68 Inconvenient inclusion of cause of action or party

This rule applies to a proceeding, despite division 2 , if including a cause of action or party may delay the trial of the proceeding, prejudice another party or is otherwise inconvenient. The court may, at any time— order separate trials; or award costs to a party for attending, or relieve a party from attending, a part of a trial in which the party has no interest; or stay the proceeding against a defendant or respondent until the trial between the other parties is decided, on condition that the defendant or respondent against whom the proceeding is stayed is bound by the findings of fact in the trial against the other defendant; or make another order appropriate in the circumstances. In this rule— trial includes hearing. (sec.68-ssec.1) This rule applies to a proceeding, despite division 2 , if including a cause of action or party may delay the trial of the proceeding, prejudice another party or is otherwise inconvenient. (sec.68-ssec.2) The court may, at any time— order separate trials; or award costs to a party for attending, or relieve a party from attending, a part of a trial in which the party has no interest; or stay the proceeding against a defendant or respondent until the trial between the other parties is decided, on condition that the defendant or respondent against whom the proceeding is stayed is bound by the findings of fact in the trial against the other defendant; or make another order appropriate in the circumstances. (sec.68-ssec.3) In this rule— trial includes hearing.

• (a) order separate trials; or
• (b) award costs to a party for attending, or relieve a party from attending, a part of a trial in which the party has no interest; or
• (c) stay the proceeding against a defendant or respondent until the trial between the other parties is decided, on condition that the defendant or respondent against whom the proceeding is stayed is bound by the findings of fact in the trial against the other defendant; or
• (d) make another order appropriate in the circumstances.

sec.69 Including, substituting or removing party

The court may at any stage of a proceeding order that— a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or any of the following persons be included as a party— a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding; a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding. However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies— the new party is a necessary party to the proceeding because— property is vested in the party at law or in equity and the plaintiff’s or applicant’s claimed entitlement to an equitable interest in the property may be defeated if the new party is not included; or the proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of the land; or the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; or the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; the relevant cause of action is vested in the new party and the plaintiff or applicant jointly but not severally; the new party is the Attorney-General and the proceeding should have been brought as a relator proceeding in the Attorney-General’s name; the new party is a company in which the plaintiff or applicant is a shareholder and on whose behalf the plaintiff or applicant is suing to enforce a right vested in the company; the new party is sued jointly with the defendant or respondent and is not also liable severally with the defendant or respondent and failure to include the new party may make the claim unenforceable; for any other reason— a claim made, or ground of defence raised, in the proceeding before the end of the limitation period can not be maintained; or relief sought in the proceeding before the end of the limitation period can not be granted; unless the new party is included or substituted as a party. If the court makes an order including or substituting a party, the court may give directions about the future conduct of the proceeding. r 69 amd 2004 SL No. 276 s 3 (sec.69-ssec.1) The court may at any stage of a proceeding order that— a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or any of the following persons be included as a party— a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding; a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding. (sec.69-ssec.2) However, the court must not include or substitute a party after the end of a limitation period unless 1 of the following applies— the new party is a necessary party to the proceeding because— property is vested in the party at law or in equity and the plaintiff’s or applicant’s claimed entitlement to an equitable interest in the property may be defeated if the new party is not included; or the proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of the land; or the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; or the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; the relevant cause of action is vested in the new party and the plaintiff or applicant jointly but not severally; the new party is the Attorney-General and the proceeding should have been brought as a relator proceeding in the Attorney-General’s name; the new party is a company in which the plaintiff or applicant is a shareholder and on whose behalf the plaintiff or applicant is suing to enforce a right vested in the company; the new party is sued jointly with the defendant or respondent and is not also liable severally with the defendant or respondent and failure to include the new party may make the claim unenforceable; for any other reason— a claim made, or ground of defence raised, in the proceeding before the end of the limitation period can not be maintained; or relief sought in the proceeding before the end of the limitation period can not be granted; unless the new party is included or substituted as a party. (sec.69-ssec.3) If the court makes an order including or substituting a party, the court may give directions about the future conduct of the proceeding.

• (a) a person who has been improperly or unnecessarily included as a party, or who has ceased to be an appropriate or necessary party, be removed from the proceeding; or
• (b) any of the following persons be included as a party— (i) a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding; (ii) a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.
• (i) a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding;
• (ii) a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.
• (i) a person whose presence before the court is necessary to enable the court to adjudicate effectually and completely on all matters in dispute in the proceeding;
• (ii) a person whose presence before the court would be desirable, just and convenient to enable the court to adjudicate effectually and completely on all matters in dispute connected with the proceeding.
• (a) the new party is a necessary party to the proceeding because— (i) property is vested in the party at law or in equity and the plaintiff’s or applicant’s claimed entitlement to an equitable interest in the property may be defeated if the new party is not included; or (ii) the proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of the land; or (iii) the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; or (iv) the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order;
• (i) property is vested in the party at law or in equity and the plaintiff’s or applicant’s claimed entitlement to an equitable interest in the property may be defeated if the new party is not included; or
• (ii) the proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of the land; or
• (iii) the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; or
• (iv) the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order;
• (b) the relevant cause of action is vested in the new party and the plaintiff or applicant jointly but not severally;
• (c) the new party is the Attorney-General and the proceeding should have been brought as a relator proceeding in the Attorney-General’s name;
• (d) the new party is a company in which the plaintiff or applicant is a shareholder and on whose behalf the plaintiff or applicant is suing to enforce a right vested in the company;
• (e) the new party is sued jointly with the defendant or respondent and is not also liable severally with the defendant or respondent and failure to include the new party may make the claim unenforceable;
• (f) for any other reason— (i) a claim made, or ground of defence raised, in the proceeding before the end of the limitation period can not be maintained; or (ii) relief sought in the proceeding before the end of the limitation period can not be granted; unless the new party is included or substituted as a party.
• (i) a claim made, or ground of defence raised, in the proceeding before the end of the limitation period can not be maintained; or
• (ii) relief sought in the proceeding before the end of the limitation period can not be granted;
• (i) property is vested in the party at law or in equity and the plaintiff’s or applicant’s claimed entitlement to an equitable interest in the property may be defeated if the new party is not included; or
• (ii) the proceeding is for the possession of land and the new party is in possession personally or by a tenant of all or part of the land; or
• (iii) the proceeding was started in or against the name of the wrong person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order; or
• (iv) the court considers it doubtful the proceeding was started in or against the name of the right person as a party, and, if a person is to be included or substituted as defendant or respondent, the person is given notice of the court’s intention to make the order;
• (i) a claim made, or ground of defence raised, in the proceeding before the end of the limitation period can not be maintained; or
• (ii) relief sought in the proceeding before the end of the limitation period can not be granted;

sec.70 Procedure for inclusion of party

Unless the court orders otherwise, an application by a person seeking to be included as a party must be supported by an affidavit showing the person’s interest in— the matter in dispute in the proceeding; or a matter in dispute to be decided between the person and a party to the proceeding. Unless the court orders otherwise, an application to include a person as a defendant or respondent must be served on all existing parties and on the person. (sec.70-ssec.1) Unless the court orders otherwise, an application by a person seeking to be included as a party must be supported by an affidavit showing the person’s interest in— the matter in dispute in the proceeding; or a matter in dispute to be decided between the person and a party to the proceeding. (sec.70-ssec.2) Unless the court orders otherwise, an application to include a person as a defendant or respondent must be served on all existing parties and on the person.

• (a) the matter in dispute in the proceeding; or
• (b) a matter in dispute to be decided between the person and a party to the proceeding.

sec.71 Defendant or respondent dead at start of proceeding

This rule applies if— when an originating process is issued— a person who would otherwise be defendant or respondent is dead; and a grant of representation has not been made; and the cause of action survives the person’s death. If the party filing the originating process knows the person who would otherwise be defendant or respondent is dead, the originating process must name as defendant or respondent the ‘Estate of [person’s name] deceased’. If, after the start of a proceeding against a person, the proceeding is taken, under an Act, to be against the person’s personal representative, all subsequent documents filed in the proceeding must name the personal representative as defendant or respondent. See the Civil Proceedings Act 2011 , sections 104 and 105 for procedures, relevant to this rule, about estates and grants of representation. r 71 amd 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 9 (sec.71-ssec.1) This rule applies if— when an originating process is issued— a person who would otherwise be defendant or respondent is dead; and a grant of representation has not been made; and the cause of action survives the person’s death. (sec.71-ssec.2) If the party filing the originating process knows the person who would otherwise be defendant or respondent is dead, the originating process must name as defendant or respondent the ‘Estate of [person’s name] deceased’. (sec.71-ssec.3) If, after the start of a proceeding against a person, the proceeding is taken, under an Act, to be against the person’s personal representative, all subsequent documents filed in the proceeding must name the personal representative as defendant or respondent. See the Civil Proceedings Act 2011 , sections 104 and 105 for procedures, relevant to this rule, about estates and grants of representation.

• (a) when an originating process is issued— (i) a person who would otherwise be defendant or respondent is dead; and (ii) a grant of representation has not been made; and
• (i) a person who would otherwise be defendant or respondent is dead; and
• (ii) a grant of representation has not been made; and
• (b) the cause of action survives the person’s death.
• (i) a person who would otherwise be defendant or respondent is dead; and
• (ii) a grant of representation has not been made; and

sec.72 Party becomes bankrupt, person with impaired capacity or dies during proceeding

If a party to a proceeding becomes bankrupt, becomes a person with impaired capacity or dies during the proceeding, a person may take any further step in the proceeding for or against the party only if— the court gives the person leave to proceed; and the person follows the court’s directions on how to proceed. If a party to a proceeding becomes bankrupt or dies, the court may, at any stage of the proceeding, order the trustee or personal representative of the party or, if a deceased party does not have a personal representative, someone else, to be included or substituted as a party for the original party. Subrules (1) and (2) apply subject to the Bankruptcy Act 1966 (Cwlth) . An application for an order under this rule must be served on all persons who could be affected by the order. The court may, before it makes an order under this rule because a party has died, require notice to be given to— an insurer of the deceased who has an interest in the proceeding; and any other person who has an interest in the estate. An insurer or other person given notice is entitled to be heard on the hearing of the application. If the court orders that a person be included as a defendant, the person must file a notice of intention to defend within the time set by the court in the order. If— a deceased party does not have a personal representative and the court orders that a person be included or substituted as a party for the deceased; and a grant of representation is subsequently made; the person must, as soon as practicable, deliver to the deceased’s personal representative a copy of all process and documents in the person’s possession relating to the proceeding. (sec.72-ssec.1) If a party to a proceeding becomes bankrupt, becomes a person with impaired capacity or dies during the proceeding, a person may take any further step in the proceeding for or against the party only if— the court gives the person leave to proceed; and the person follows the court’s directions on how to proceed. (sec.72-ssec.2) If a party to a proceeding becomes bankrupt or dies, the court may, at any stage of the proceeding, order the trustee or personal representative of the party or, if a deceased party does not have a personal representative, someone else, to be included or substituted as a party for the original party. (sec.72-ssec.3) Subrules (1) and (2) apply subject to the Bankruptcy Act 1966 (Cwlth) . (sec.72-ssec.4) An application for an order under this rule must be served on all persons who could be affected by the order. (sec.72-ssec.5) The court may, before it makes an order under this rule because a party has died, require notice to be given to— an insurer of the deceased who has an interest in the proceeding; and any other person who has an interest in the estate. (sec.72-ssec.6) An insurer or other person given notice is entitled to be heard on the hearing of the application. (sec.72-ssec.7) If the court orders that a person be included as a defendant, the person must file a notice of intention to defend within the time set by the court in the order. (sec.72-ssec.8) If— a deceased party does not have a personal representative and the court orders that a person be included or substituted as a party for the deceased; and a grant of representation is subsequently made; the person must, as soon as practicable, deliver to the deceased’s personal representative a copy of all process and documents in the person’s possession relating to the proceeding.

• (a) the court gives the person leave to proceed; and
• (b) the person follows the court’s directions on how to proceed.
• (a) an insurer of the deceased who has an interest in the proceeding; and
• (b) any other person who has an interest in the estate.
• (a) a deceased party does not have a personal representative and the court orders that a person be included or substituted as a party for the deceased; and
• (b) a grant of representation is subsequently made;

sec.73 No substitution order after death of plaintiff or applicant

This rule applies if— a plaintiff or applicant dies and the cause of action survives the death; and no order is made substituting another person for the deceased. The court, on application by a party or by a person to whom the benefit of the cause of action passes on the death, may order that, unless an order for substitution is made within a specified time, the proceeding be dismissed on a specified basis, including, for example, with costs against a party, person or estate connected with the proceeding. A copy of the application must be served on the deceased’s personal representative (if any) unless the court orders otherwise. (sec.73-ssec.1) This rule applies if— a plaintiff or applicant dies and the cause of action survives the death; and no order is made substituting another person for the deceased. (sec.73-ssec.2) The court, on application by a party or by a person to whom the benefit of the cause of action passes on the death, may order that, unless an order for substitution is made within a specified time, the proceeding be dismissed on a specified basis, including, for example, with costs against a party, person or estate connected with the proceeding. (sec.73-ssec.3) A copy of the application must be served on the deceased’s personal representative (if any) unless the court orders otherwise.

• (a) a plaintiff or applicant dies and the cause of action survives the death; and
• (b) no order is made substituting another person for the deceased.

sec.74 Amendment of proceedings after change of party

If an order is made changing or affecting the identity or designation of a party, the plaintiff or applicant must— file an amended copy of the originating process within the time specified in the order, or if no time is specified, within 10 days after the order is made; and serve the amended originating process on any new party within the time specified in the order. The plaintiff or applicant must also note on the amended copy of the originating process a reference to the order, the date of the order and the date the amended copy is filed. Within 10 days after an order is made including or substituting a person as a defendant or respondent, the applicant for the order must serve a copy of the order on every other continuing party and on every person who becomes a party because of the order, unless the court orders otherwise. If an order is made including or substituting a person as a defendant or respondent, the proceeding against the new defendant or respondent starts on the filing of the amended copy of the originating process. However, for a limitation period, a proceeding by or against a new party is taken to have started when the original proceeding started, unless the court orders otherwise. Unless the court otherwise orders— for a new defendant or respondent who is a substituted defendant or respondent—everything done in the proceeding before it was started against the new defendant or respondent has the same effect in relation to the new defendant or respondent as for the original defendant or respondent; and for another new defendant or respondent—the proceeding must be continued as if the new defendant or respondent were an original defendant or respondent. Subrule (6) (a) does not apply to the following— the filing of a notice of intention to defend by an original defendant; an admission made by an original defendant or respondent; an order for costs either in favour of, or against, the original defendant or respondent. r 74 amd 2004 SL No. 276 s 4 (sec.74-ssec.1) If an order is made changing or affecting the identity or designation of a party, the plaintiff or applicant must— file an amended copy of the originating process within the time specified in the order, or if no time is specified, within 10 days after the order is made; and serve the amended originating process on any new party within the time specified in the order. (sec.74-ssec.2) The plaintiff or applicant must also note on the amended copy of the originating process a reference to the order, the date of the order and the date the amended copy is filed. (sec.74-ssec.3) Within 10 days after an order is made including or substituting a person as a defendant or respondent, the applicant for the order must serve a copy of the order on every other continuing party and on every person who becomes a party because of the order, unless the court orders otherwise. (sec.74-ssec.4) If an order is made including or substituting a person as a defendant or respondent, the proceeding against the new defendant or respondent starts on the filing of the amended copy of the originating process. (sec.74-ssec.5) However, for a limitation period, a proceeding by or against a new party is taken to have started when the original proceeding started, unless the court orders otherwise. (sec.74-ssec.6) Unless the court otherwise orders— for a new defendant or respondent who is a substituted defendant or respondent—everything done in the proceeding before it was started against the new defendant or respondent has the same effect in relation to the new defendant or respondent as for the original defendant or respondent; and for another new defendant or respondent—the proceeding must be continued as if the new defendant or respondent were an original defendant or respondent. (sec.74-ssec.7) Subrule (6) (a) does not apply to the following— the filing of a notice of intention to defend by an original defendant; an admission made by an original defendant or respondent; an order for costs either in favour of, or against, the original defendant or respondent.

• (a) file an amended copy of the originating process within the time specified in the order, or if no time is specified, within 10 days after the order is made; and
• (b) serve the amended originating process on any new party within the time specified in the order.
• (a) for a new defendant or respondent who is a substituted defendant or respondent—everything done in the proceeding before it was started against the new defendant or respondent has the same effect in relation to the new defendant or respondent as for the original defendant or respondent; and
• (b) for another new defendant or respondent—the proceeding must be continued as if the new defendant or respondent were an original defendant or respondent.
• (a) the filing of a notice of intention to defend by an original defendant;
• (b) an admission made by an original defendant or respondent;
• (c) an order for costs either in favour of, or against, the original defendant or respondent.

Representative party

sec.74A Application of division

This division does not apply to a representative proceeding under the Civil Proceedings Act 2011 , part 13A . r 74A ins 2017 SL No. 18 s 4

sec.75 Representative party

A proceeding may be started and continued by or against 1 or more persons who have the same interest in the subject matter of the proceeding as representing all of the persons who have the same interest and could have been parties in the proceeding.

sec.76 Order for representation

At any stage of a proceeding brought by or against a number of persons who have the same interest under rule 75 , the court may appoint 1 or more parties named in the proceeding, or another person, to represent, for the proceeding, the persons having the same interest. However, when making an order appointing a person who is not a party, the court must also make an order under rule 62 including the person as a party. (sec.76-ssec.1) At any stage of a proceeding brought by or against a number of persons who have the same interest under rule 75 , the court may appoint 1 or more parties named in the proceeding, or another person, to represent, for the proceeding, the persons having the same interest. (sec.76-ssec.2) However, when making an order appointing a person who is not a party, the court must also make an order under rule 62 including the person as a party.

sec.77 Enforcement of order against representative party

An order made in a proceeding against a representative party under this division may be enforced against a person not named as a party only with the court’s leave. See also the Civil Proceedings Act 2011 , section 18 (Order binds persons who are represented). An application for leave to enforce an order must be served on the person against whom enforcement of the order is sought as if the application were an originating process. r 77 amd 2009 SL No. 162 s 2 sch; 2012 SL No. 150 s 10 (sec.77-ssec.1) An order made in a proceeding against a representative party under this division may be enforced against a person not named as a party only with the court’s leave. See also the Civil Proceedings Act 2011 , section 18 (Order binds persons who are represented). (sec.77-ssec.2) An application for leave to enforce an order must be served on the person against whom enforcement of the order is sought as if the application were an originating process.

Representative proceedings in Supreme Court

sec.77A Application of division

This division applies to a representative proceeding under the Civil Proceedings Act 2011 , part 13A . See rule 4 (2) in relation to the meaning in these rules of words and expressions used in the Civil Proceedings Act 2011 . r 77A ins 2017 SL No. 18 s 5

sec.77B Starting representative proceeding

A representative proceeding must be started by claim in the approved form. r 77B ins 2017 SL No. 18 s 5

sec.77C Requirements for giving consent to be group member

This rule applies to the giving of consent under the Civil Proceedings Act 2011 , section 103D (2) to be a group member. The consent must— be in the approved form; and be filed and served on the representative party for the representative proceeding to which the notice relates. r 77C ins 2017 SL No. 18 s 5 (sec.77C-ssec.1) This rule applies to the giving of consent under the Civil Proceedings Act 2011 , section 103D (2) to be a group member. (sec.77C-ssec.2) The consent must— be in the approved form; and be filed and served on the representative party for the representative proceeding to which the notice relates. r 77C ins 2017 SL No. 18 s 5

• (a) be in the approved form; and
• (b) be filed and served on the representative party for the representative proceeding to which the notice relates.

sec.77D Requirements for giving notice to opt out of representative proceeding

This rule applies to the giving of notice under the Civil Proceedings Act 2011 , section 103G (2) to opt out of a representative proceeding. The notice must— be in the approved form; and be filed and served on the representative party for the representative proceeding to which the notice relates. r 77D ins 2017 SL No. 18 s 5 (sec.77D-ssec.1) This rule applies to the giving of notice under the Civil Proceedings Act 2011 , section 103G (2) to opt out of a representative proceeding. (sec.77D-ssec.2) The notice must— be in the approved form; and be filed and served on the representative party for the representative proceeding to which the notice relates.

• (a) be in the approved form; and
• (b) be filed and served on the representative party for the representative proceeding to which the notice relates.

sec.77E Representative party must give list of opt-out group members

This rule applies if 1 or more group members to whom a representative proceeding relates (each an opt-out group member ) file and serve in the proceeding a notice under rule 77D . The representative party for the representative proceeding must, within 14 days after the opt-out date for the proceeding, give each other party to the proceeding a list of the opt-out group members. In this rule— opt-out date , for a representative proceeding, means— if the court fixes a date for the proceeding under the Civil Proceedings Act 2011 , section 103G (3) —that date; or otherwise—the date fixed by the court for the proceeding under section 103G (1) of that Act. r 77E ins 2017 SL No. 18 s 5 (sec.77E-ssec.1) This rule applies if 1 or more group members to whom a representative proceeding relates (each an opt-out group member ) file and serve in the proceeding a notice under rule 77D . (sec.77E-ssec.2) The representative party for the representative proceeding must, within 14 days after the opt-out date for the proceeding, give each other party to the proceeding a list of the opt-out group members. (sec.77E-ssec.3) In this rule— opt-out date , for a representative proceeding, means— if the court fixes a date for the proceeding under the Civil Proceedings Act 2011 , section 103G (3) —that date; or otherwise—the date fixed by the court for the proceeding under section 103G (1) of that Act.

• (a) if the court fixes a date for the proceeding under the Civil Proceedings Act 2011 , section 103G (3) —that date; or
• (b) otherwise—the date fixed by the court for the proceeding under section 103G (1) of that Act.

sec.77F Requirements for particular applications in representative proceedings

This rule applies to an application for an order under any of the following sections of the Civil Proceedings Act 2011 — section 103H ; section 103S ; section 103T ; section 103W . The application must— be in the approved form; and be accompanied by an affidavit stating, for the group members of the representative proceeding to which the application relates— the identity of the group members; and the whereabouts of the group members; and the way that is most likely to bring notice of a matter to the attention of the group members. r 77F ins 2017 SL No. 18 s 5 (sec.77F-ssec.1) This rule applies to an application for an order under any of the following sections of the Civil Proceedings Act 2011 — section 103H ; section 103S ; section 103T ; section 103W . (sec.77F-ssec.2) The application must— be in the approved form; and be accompanied by an affidavit stating, for the group members of the representative proceeding to which the application relates— the identity of the group members; and the whereabouts of the group members; and the way that is most likely to bring notice of a matter to the attention of the group members.

• (a) section 103H ;
• (b) section 103S ;
• (c) section 103T ;
• (d) section 103W .
• (a) be in the approved form; and
• (b) be accompanied by an affidavit stating, for the group members of the representative proceeding to which the application relates— (i) the identity of the group members; and (ii) the whereabouts of the group members; and (iii) the way that is most likely to bring notice of a matter to the attention of the group members.
• (i) the identity of the group members; and
• (ii) the whereabouts of the group members; and
• (iii) the way that is most likely to bring notice of a matter to the attention of the group members.
• (i) the identity of the group members; and
• (ii) the whereabouts of the group members; and
• (iii) the way that is most likely to bring notice of a matter to the attention of the group members.

Multiple proceedings

sec.78 Consolidation of proceedings

The court may order that 2 or more proceedings be consolidated if— the same or substantially the same question is involved in all the proceedings; or the decision in 1 proceeding will decide or affect the other proceeding or proceedings.

• (a) the same or substantially the same question is involved in all the proceedings; or
• (b) the decision in 1 proceeding will decide or affect the other proceeding or proceedings.

sec.79 Sequence of hearings

The court may order that 2 or more proceedings be heard together or in a particular sequence.

sec.80 Directions

If the court orders that proceedings be consolidated or heard together or in a specified sequence, the court may give a direction it considers appropriate for the conduct of the proceeding or proceedings.

sec.81 Variation of order

Before or during the hearing of a consolidated proceeding or of proceedings ordered to be heard together or in a particular sequence, the court may order the proceedings be separated or heard in another sequence.

Partnerships and business names

Partnerships

sec.82 Meaning of partnership proceeding

A partnership proceeding is a proceeding started by or against a partnership in the partnership name and includes a proceeding between a partnership and 1 or more of its partners.

sec.83 Proceeding in partnership name

Two or more partners may start a proceeding in the partnership name. A proceeding against persons alleged to be partners may be brought against the alleged partnership in the partnership name. The partnership name used in a partnership proceeding must be the name of the partnership when the cause of action arose. For a partnership registered under the Partnership Act 1891 , the name of the partnership when the cause of action arose is the name in which the partnership was registered when the cause of action arose. Unless the court orders otherwise, a partnership proceeding must continue in the partnership name and not in the name of the individual partners. r 83 amd 2007 SL No. 96 s 4 (sec.83-ssec.1) Two or more partners may start a proceeding in the partnership name. (sec.83-ssec.2) A proceeding against persons alleged to be partners may be brought against the alleged partnership in the partnership name. (sec.83-ssec.3) The partnership name used in a partnership proceeding must be the name of the partnership when the cause of action arose. (sec.83-ssec.4) For a partnership registered under the Partnership Act 1891 , the name of the partnership when the cause of action arose is the name in which the partnership was registered when the cause of action arose. (sec.83-ssec.5) Unless the court orders otherwise, a partnership proceeding must continue in the partnership name and not in the name of the individual partners.

sec.84 Disclosure of partners’ names

At any stage of a partnership proceeding, a party may by written notice require the partnership to give the names and places of residence of the persons who were partners in the partnership when the cause of action arose. The notice must state a time of not less than 2 business days after service of the notice for compliance with the notice. If the partnership does not give the information as required by this rule, the court may make an order it considers appropriate, including the following— an order staying the proceeding until the information is supplied; an order striking out a pleading or affidavit. (sec.84-ssec.1) At any stage of a partnership proceeding, a party may by written notice require the partnership to give the names and places of residence of the persons who were partners in the partnership when the cause of action arose. (sec.84-ssec.2) The notice must state a time of not less than 2 business days after service of the notice for compliance with the notice. (sec.84-ssec.3) If the partnership does not give the information as required by this rule, the court may make an order it considers appropriate, including the following— an order staying the proceeding until the information is supplied; an order striking out a pleading or affidavit.

• (a) an order staying the proceeding until the information is supplied;
• (b) an order striking out a pleading or affidavit.

sec.85 Notice of intention to defend

Despite an originating process being against a partnership, a notice of intention to defend must not be filed in a partnership name. A partner who is served with an originating process against a partnership may file a notice of intention to defend only in the partner’s own name. See rule 114 (Service in relation to a partnership). However, the proceeding continues in the name of the partnership. r 85 amd 2009 SL No. 162 s 2 sch (sec.85-ssec.1) Despite an originating process being against a partnership, a notice of intention to defend must not be filed in a partnership name. (sec.85-ssec.2) A partner who is served with an originating process against a partnership may file a notice of intention to defend only in the partner’s own name. See rule 114 (Service in relation to a partnership). (sec.85-ssec.3) However, the proceeding continues in the name of the partnership.

sec.86 Person improperly served as partner

In a proceeding against a partnership started by claim, a person who is served as a partner may file a conditional notice of intention to defend stating— the person files the notice because the person was served as a partner; and the person denies being a partner at a material time or being liable as a partner. On application, the court may— set aside the service of an originating process on the person on the ground that the person is not a partner or is not liable as a partner; or set aside a conditional notice of intention to defend on the ground that the person is a partner or is liable as a partner. The court may give directions about how to decide the liability of the person or the liability of the partners. (sec.86-ssec.1) In a proceeding against a partnership started by claim, a person who is served as a partner may file a conditional notice of intention to defend stating— the person files the notice because the person was served as a partner; and the person denies being a partner at a material time or being liable as a partner. (sec.86-ssec.2) On application, the court may— set aside the service of an originating process on the person on the ground that the person is not a partner or is not liable as a partner; or set aside a conditional notice of intention to defend on the ground that the person is a partner or is liable as a partner. (sec.86-ssec.3) The court may give directions about how to decide the liability of the person or the liability of the partners.

• (a) the person files the notice because the person was served as a partner; and
• (b) the person denies being a partner at a material time or being liable as a partner.
• (a) set aside the service of an originating process on the person on the ground that the person is not a partner or is not liable as a partner; or
• (b) set aside a conditional notice of intention to defend on the ground that the person is a partner or is liable as a partner.

sec.87 Defence

Except for a person who files a conditional notice of intention to defend under rule 86 , a person may file a defence for the partnership in the partnership name only.

sec.88 Enforcement against individual partner

On application by a person seeking to enforce an order against partners in the partnership name, the court may give leave for the order to be enforced against a person who is liable to satisfy the judgment. The application must be served on the person against whom the order is sought to be enforced. Despite chapter 4 , the person may be served outside Australia without leave. If, on the hearing of the application, the person denies liability, the court may decide liability summarily or give directions about how liability is to be decided. (sec.88-ssec.1) On application by a person seeking to enforce an order against partners in the partnership name, the court may give leave for the order to be enforced against a person who is liable to satisfy the judgment. (sec.88-ssec.2) The application must be served on the person against whom the order is sought to be enforced. (sec.88-ssec.3) Despite chapter 4 , the person may be served outside Australia without leave. (sec.88-ssec.4) If, on the hearing of the application, the person denies liability, the court may decide liability summarily or give directions about how liability is to be decided.

Business names

sec.89 Proceeding if registered business name

A proceeding may be started against a name registered on the Business Names Register. r 89 amd 2012 SL No. 60 s 4

sec.90 Proceeding in business name if unregistered

This rule applies if— a person carries on a business under a name other than the person’s own name; and the name is not registered on the Business Names Register. A proceeding in relation to the business mentioned in subrule (1) (a) may be started against the person in the name under which the person carries on business. The name under which the business is carried on is sufficient designation of the person in a document filed in the proceeding. An order in the proceeding may be enforced against the person. r 90 sub 2012 SL No. 60 s 5 (sec.90-ssec.1) This rule applies if— a person carries on a business under a name other than the person’s own name; and the name is not registered on the Business Names Register. (sec.90-ssec.2) A proceeding in relation to the business mentioned in subrule (1) (a) may be started against the person in the name under which the person carries on business. (sec.90-ssec.3) The name under which the business is carried on is sufficient designation of the person in a document filed in the proceeding. (sec.90-ssec.4) An order in the proceeding may be enforced against the person.

• (a) a person carries on a business under a name other than the person’s own name; and
• (b) the name is not registered on the Business Names Register.

sec.91 Notice of intention to defend

This rule applies if a proceeding is brought against a person in relation to a business carried on by the person under a name other than the person’s own name and regardless of whether the name is registered on the Business Names Register or held under business names legislation. A notice of intention to defend must be in the name of a person and not in the business name. A person who files a notice of intention to defend must file and serve with the notice a statement of the names and places of residence of all persons who were carrying on business under the name as at the day the proceeding was started. The court may set aside the notice of intention to defend of a person who does not comply with subrule (3) . For subrule (1) , a name is held under business names legislation only if it is held under— the Business Names Registration Act 2011 (Cwlth) , section 54 ; or the Business Names Registration (Transitional and Consequential Provisions) Act 2011 (Cwlth) , schedule 1 , item 5 . r 91 amd 2012 SL No. 60 s 6 (sec.91-ssec.1) This rule applies if a proceeding is brought against a person in relation to a business carried on by the person under a name other than the person’s own name and regardless of whether the name is registered on the Business Names Register or held under business names legislation. (sec.91-ssec.2) A notice of intention to defend must be in the name of a person and not in the business name. (sec.91-ssec.3) A person who files a notice of intention to defend must file and serve with the notice a statement of the names and places of residence of all persons who were carrying on business under the name as at the day the proceeding was started. (sec.91-ssec.4) The court may set aside the notice of intention to defend of a person who does not comply with subrule (3) . (sec.91-ssec.5) For subrule (1) , a name is held under business names legislation only if it is held under— the Business Names Registration Act 2011 (Cwlth) , section 54 ; or the Business Names Registration (Transitional and Consequential Provisions) Act 2011 (Cwlth) , schedule 1 , item 5 .

• (a) the Business Names Registration Act 2011 (Cwlth) , section 54 ; or
• (b) the Business Names Registration (Transitional and Consequential Provisions) Act 2011 (Cwlth) , schedule 1 , item 5 .

sec.92 Amendment as to parties

This rule applies if— a proceeding is brought against a person in relation to a business carried on by the person under a name other than the person’s own name; and the name is not registered on the Business Names Register. The plaintiff or applicant must, as soon as practicable, take all reasonable steps to find out the name of the persons carrying on the business under the name in question. The plaintiff or applicant must also, as far as practicable, make amendments so the proceeding is continued against a named defendant or respondent and not in the name under which the business was carried on. Other than for service of the originating process and for complying with this rule, until the amendments are made, the plaintiff or applicant may only take a step in the proceeding with the court’s leave. An amendment for this rule must be effected under rules 382 and 384 . This rule applies in addition to chapter 10 , part 3 . r 92 amd 2000 SL No. 127 s 11 ; 2012 SL No. 60 s 7 (sec.92-ssec.1) This rule applies if— a proceeding is brought against a person in relation to a business carried on by the person under a name other than the person’s own name; and the name is not registered on the Business Names Register. (sec.92-ssec.2) The plaintiff or applicant must, as soon as practicable, take all reasonable steps to find out the name of the persons carrying on the business under the name in question. (sec.92-ssec.3) The plaintiff or applicant must also, as far as practicable, make amendments so the proceeding is continued against a named defendant or respondent and not in the name under which the business was carried on. (sec.92-ssec.4) Other than for service of the originating process and for complying with this rule, until the amendments are made, the plaintiff or applicant may only take a step in the proceeding with the court’s leave. (sec.92-ssec.5) An amendment for this rule must be effected under rules 382 and 384 . (sec.92-ssec.6) This rule applies in addition to chapter 10 , part 3 .

• (a) a proceeding is brought against a person in relation to a business carried on by the person under a name other than the person’s own name; and
• (b) the name is not registered on the Business Names Register.

Persons under a legal incapacity

sec.93 Litigation guardian of person under a legal incapacity

A person under a legal incapacity may start or defend a proceeding only by the person’s litigation guardian. Except if these rules provide otherwise, anything in a proceeding (including a related enforcement proceeding) required or permitted by these rules to be done by a party may, if the party is a person under a legal incapacity, be done only by the party’s litigation guardian. A party’s litigation guardian who is not a solicitor may act only by a solicitor. r 93 amd 2000 SL No. 127 s 12 (sec.93-ssec.1) A person under a legal incapacity may start or defend a proceeding only by the person’s litigation guardian. (sec.93-ssec.2) Except if these rules provide otherwise, anything in a proceeding (including a related enforcement proceeding) required or permitted by these rules to be done by a party may, if the party is a person under a legal incapacity, be done only by the party’s litigation guardian. (sec.93-ssec.3) A party’s litigation guardian who is not a solicitor may act only by a solicitor.

sec.94 Who may be a litigation guardian

A person may be a litigation guardian of a person under a legal incapacity if the person— is not a person under a legal incapacity; and has no interest in the proceeding adverse to the interest in the proceeding of the person under a legal incapacity. If a person is authorised by or under an Act to conduct legal proceedings in the name of or for a person with impaired capacity, the authorised person is, unless the court orders otherwise, entitled to be litigation guardian of the person with impaired capacity in any proceeding to which the authorised person’s authority extends. A corporation, other than the public trustee or a trustee company under the Trustee Companies Act 1968 , may not be a litigation guardian. (sec.94-ssec.1) A person may be a litigation guardian of a person under a legal incapacity if the person— is not a person under a legal incapacity; and has no interest in the proceeding adverse to the interest in the proceeding of the person under a legal incapacity. (sec.94-ssec.2) If a person is authorised by or under an Act to conduct legal proceedings in the name of or for a person with impaired capacity, the authorised person is, unless the court orders otherwise, entitled to be litigation guardian of the person with impaired capacity in any proceeding to which the authorised person’s authority extends. (sec.94-ssec.3) A corporation, other than the public trustee or a trustee company under the Trustee Companies Act 1968 , may not be a litigation guardian.

• (a) is not a person under a legal incapacity; and
• (b) has no interest in the proceeding adverse to the interest in the proceeding of the person under a legal incapacity.

sec.95 Appointment of litigation guardian

Unless a person is appointed as a litigation guardian by the court, a person becomes a litigation guardian of a person under a legal incapacity for a proceeding by filing in the registry the person’s written consent to be litigation guardian of the party in the proceeding. If the interests of a party who is a person under a legal incapacity require it, the court may appoint or remove a litigation guardian or substitute another person as litigation guardian. r 95 amd 2000 SL No. 127 s 13 (sec.95-ssec.1) Unless a person is appointed as a litigation guardian by the court, a person becomes a litigation guardian of a person under a legal incapacity for a proceeding by filing in the registry the person’s written consent to be litigation guardian of the party in the proceeding. (sec.95-ssec.2) If the interests of a party who is a person under a legal incapacity require it, the court may appoint or remove a litigation guardian or substitute another person as litigation guardian.

sec.96 No notice of intention to defend by person under a legal incapacity

If a defendant who is a person under a legal incapacity does not file a notice of intention to defend within the time limited, the plaintiff may not continue the proceeding unless a person is made litigation guardian of the defendant.

sec.97 Disclosure

Chapter 7 , parts 1 and 2 apply to a party who is a person under a legal incapacity as if the person were not a person under a legal incapacity. An act required to comply with an order under chapter 7 , part 1 or 2 may be performed by— if the party is capable of performing it—the party; or otherwise—the litigation guardian of the party. r 97 amd 2018 SL No. 127 s 50 ; 2021 SL No. 184 s 3 (sec.97-ssec.1) Chapter 7 , parts 1 and 2 apply to a party who is a person under a legal incapacity as if the person were not a person under a legal incapacity. (sec.97-ssec.2) An act required to comply with an order under chapter 7 , part 1 or 2 may be performed by— if the party is capable of performing it—the party; or otherwise—the litigation guardian of the party.

• (a) if the party is capable of performing it—the party; or
• (b) otherwise—the litigation guardian of the party.

sec.98 Settlements and compromises

A settlement or compromise of a proceeding in which a party is a person under a legal incapacity is ineffective unless it is approved by the court or the public trustee acting under the Public Trustee Act 1978 , section 59 . To enable the court to consider whether a settlement or compromise should be approved, the litigation guardian for the party must produce to the court— an affidavit made by the party’s solicitor stating why the settlement or compromise is in the party’s best interests; and a statement by the litigation guardian that instructions have been given for the settlement or compromise of the proceeding; and any other material the court may require. The documents mentioned in subrule (2) are not to be served on another party unless the court orders otherwise. (sec.98-ssec.1) A settlement or compromise of a proceeding in which a party is a person under a legal incapacity is ineffective unless it is approved by the court or the public trustee acting under the Public Trustee Act 1978 , section 59 . (sec.98-ssec.2) To enable the court to consider whether a settlement or compromise should be approved, the litigation guardian for the party must produce to the court— an affidavit made by the party’s solicitor stating why the settlement or compromise is in the party’s best interests; and a statement by the litigation guardian that instructions have been given for the settlement or compromise of the proceeding; and any other material the court may require. (sec.98-ssec.3) The documents mentioned in subrule (2) are not to be served on another party unless the court orders otherwise.

• (a) an affidavit made by the party’s solicitor stating why the settlement or compromise is in the party’s best interests; and
• (b) a statement by the litigation guardian that instructions have been given for the settlement or compromise of the proceeding; and
• (c) any other material the court may require.

sec.99 Proceedings by and against prisoners

This rule applies if a prisoner is incapable of bringing or defending a proceeding without the public trustee’s consent. See the Public Trustee Act 1978 , section 95 (Restrictions on property dealings or proceedings). The public trustee’s consent must be written on the front, or attached on a separate sheet at the back, of the originating process or notice of intention to defend. r 99 amd 2009 SL No. 162 s 2 sch (sec.99-ssec.1) This rule applies if a prisoner is incapable of bringing or defending a proceeding without the public trustee’s consent. See the Public Trustee Act 1978 , section 95 (Restrictions on property dealings or proceedings). (sec.99-ssec.2) The public trustee’s consent must be written on the front, or attached on a separate sheet at the back, of the originating process or notice of intention to defend.

Preliminary

sec.100 Definitions for ch 4

In this chapter— Australia includes the external territories. convention , for part 7 , division 2 , means an agreement, arrangement, treaty or convention, relating to legal proceedings in civil matters, made between Australia and another country. r 100 def convention ins 2001 SL No. 281 s 3 amd 2009 SL No. 162 s 3 (1) convention country , for part 7 , division 2 , means a country other than Australia to which a convention applies. r 100 def convention country ins 2001 SL No. 281 s 3 amd 2009 SL No. 162 s 3 (2)

sec.101 Service not allowed on certain days

A person can not serve a document on Good Friday or Christmas Day unless the court otherwise orders.

sec.102 Approved document exchanges

In a proceeding, a solicitor or party must not give a document exchange address unless the document exchange is approved by the Chief Justice. The Chief Justice may approve, by practice direction, a document exchange for part 4 . (sec.102-ssec.1) In a proceeding, a solicitor or party must not give a document exchange address unless the document exchange is approved by the Chief Justice. (sec.102-ssec.2) The Chief Justice may approve, by practice direction, a document exchange for part 4 .

sec.103 Service after 4.00p.m.

If a document is served on a person after 4.00p.m., the document is taken to have been served on the next day.

Personal service generally

sec.104 Application of pt 2

This part applies subject to these rules or an order made under these rules. For service on the State see the Crown Proceedings Act 1980 , section 19 , and for service on the Commonwealth see the Judiciary Act 1903 (Cwlth) , section 63 . r 104 amd 2000 SL No. 127 s 14 ; 2009 SL No. 162 s 2 sch

sec.105 Personal service for originating process

A person serving an originating process must serve it personally on the person intended to be served. If a defendant files an unconditional notice of intention to defend, the claim is taken to have been served on the defendant on the day the notice is filed or, if a party proves the claim was served on an earlier day, the earlier day. (sec.105-ssec.1) A person serving an originating process must serve it personally on the person intended to be served. (sec.105-ssec.2) If a defendant files an unconditional notice of intention to defend, the claim is taken to have been served on the defendant on the day the notice is filed or, if a party proves the claim was served on an earlier day, the earlier day.

sec.106 How personal service is performed

To serve a document personally, the person serving it must give the document, or a copy of the document, to the person intended to be served. However, if the person does not accept the document, or copy, the party serving it may serve it by putting it down in the person’s presence and telling him or her what it is. It is not necessary to show to the person served the original of the document. (sec.106-ssec.1) To serve a document personally, the person serving it must give the document, or a copy of the document, to the person intended to be served. (sec.106-ssec.2) However, if the person does not accept the document, or copy, the party serving it may serve it by putting it down in the person’s presence and telling him or her what it is. (sec.106-ssec.3) It is not necessary to show to the person served the original of the document.

Service in particular cases

sec.107 Personal service—corporations

A document required to be served personally on a corporation must be served in the way provided for the service of documents under the Corporations Act or another applicable law. A corporation includes a body politic or corporate— Acts Interpretation Act 1954 , schedule 1 . r 107 amd 2004 SL No. 115 s 4 ; 2009 SL No. 162 s 2 sch; 2014 SL No. 320 s 5

sec.108 Personal service—young people

A document required to be served personally on a young person must be served instead on the person who is the young person’s litigation guardian for the proceeding to which the document relates. If the young person does not have a litigation guardian for the proceeding the document must be served instead on— the young person’s parent or guardian; or if there is no parent or guardian—an adult who has the care of the young person or with whom the young person lives. (sec.108-ssec.1) A document required to be served personally on a young person must be served instead on the person who is the young person’s litigation guardian for the proceeding to which the document relates. (sec.108-ssec.2) If the young person does not have a litigation guardian for the proceeding the document must be served instead on— the young person’s parent or guardian; or if there is no parent or guardian—an adult who has the care of the young person or with whom the young person lives.

• (a) the young person’s parent or guardian; or
• (b) if there is no parent or guardian—an adult who has the care of the young person or with whom the young person lives.

sec.109 Personal service—persons with impaired capacity

A document required to be served personally on a person with impaired capacity (the impaired person ) must be served instead on— the person who is the impaired person’s litigation guardian for the proceeding to which the document relates; or if there is no-one under paragraph (a) —a person who is entitled under rule 94 (2) to be the impaired person’s litigation guardian for the proceeding to which the document relates; or if there is no-one under paragraph (a) or (b) —an adult who has the care of the impaired person.

• (a) the person who is the impaired person’s litigation guardian for the proceeding to which the document relates; or
• (b) if there is no-one under paragraph (a) —a person who is entitled under rule 94 (2) to be the impaired person’s litigation guardian for the proceeding to which the document relates; or
• (c) if there is no-one under paragraph (a) or (b) —an adult who has the care of the impaired person.

sec.110 Personal service—prisoners

A document required to be served personally on a prisoner must be served on— if the public trustee is manager of the prisoner’s estate under the Public Trustee Act 1978 , part 7 and the proceeding is of a property nature or for the recovery of a debt or damage—the public trustee; or if paragraph (a) does not apply and the prisoner has a litigation guardian—the prisoner’s litigation guardian; or otherwise—the person in charge of the prison in which the prisoner is imprisoned.

• (a) if the public trustee is manager of the prisoner’s estate under the Public Trustee Act 1978 , part 7 and the proceeding is of a property nature or for the recovery of a debt or damage—the public trustee; or
• (b) if paragraph (a) does not apply and the prisoner has a litigation guardian—the prisoner’s litigation guardian; or
• (c) otherwise—the person in charge of the prison in which the prisoner is imprisoned.

sec.111 Personal service in Magistrates Courts proceedings

All documents in a Magistrates Court proceeding, including a document required by these rules to be served on a person personally, may, unless the court otherwise orders, be served under part 4 . However, a document required by these rules to be served on a person personally must not be served under rule 112 (1) (b) , (c) , (d) , (e) or (g) . However, if the person intended to be served resides or carries on business more than 50km from the nearest court, the document may be served by posting a copy of it to the person’s residential or business address. r 111 amd 2000 SL No. 127 s 16 (sec.111-ssec.1) All documents in a Magistrates Court proceeding, including a document required by these rules to be served on a person personally, may, unless the court otherwise orders, be served under part 4 . (sec.111-ssec.2) However, a document required by these rules to be served on a person personally must not be served under rule 112 (1) (b) , (c) , (d) , (e) or (g) . (sec.111-ssec.3) However, if the person intended to be served resides or carries on business more than 50km from the nearest court, the document may be served by posting a copy of it to the person’s residential or business address.

Ordinary service

sec.112 How ordinary service is performed

If these rules do not require personal service of a document, the following are ways by which the document may be served on the person to be served— leaving it with someone who is apparently an adult living at the relevant address; if there is no-one at the relevant address—leaving it at the relevant address in a position where it is reasonably likely to come to the person’s attention; if the relevant address is within a building or area to which the person serving the document has been denied access—leaving it at the building or area in a position where it is reasonably likely to come to the person’s attention; posting it to the relevant address; if the person has given— a fax number under these rules—faxing the document to the person; or an email address under these rules—emailing the document to the person; if the solicitor for the person has— an exchange box at a document exchange—leaving the document in the exchange box or another exchange box available for documents to be transferred to the solicitor’s exchange box; or a fax—faxing the document to the solicitor; or an email address—emailing the document to the solicitor; an electronic means prescribed by practice direction. A document served under subrule (1) (f) (i) is taken to have been served on the business day after it is left in the document exchange box. In this rule— relevant address , of a person to be served, means— the person’s address for service; or for an individual who does not have an address for service— the individual’s last known place of business or residence; or if the individual is suing or being sued in the name of a partnership—the principal or last known place of business of the partnership; or for a corporation that does not have an address for service—its head office or its principal or registered office. (sec.112-ssec.1) If these rules do not require personal service of a document, the following are ways by which the document may be served on the person to be served— leaving it with someone who is apparently an adult living at the relevant address; if there is no-one at the relevant address—leaving it at the relevant address in a position where it is reasonably likely to come to the person’s attention; if the relevant address is within a building or area to which the person serving the document has been denied access—leaving it at the building or area in a position where it is reasonably likely to come to the person’s attention; posting it to the relevant address; if the person has given— a fax number under these rules—faxing the document to the person; or an email address under these rules—emailing the document to the person; if the solicitor for the person has— an exchange box at a document exchange—leaving the document in the exchange box or another exchange box available for documents to be transferred to the solicitor’s exchange box; or a fax—faxing the document to the solicitor; or an email address—emailing the document to the solicitor; an electronic means prescribed by practice direction. (sec.112-ssec.2) A document served under subrule (1) (f) (i) is taken to have been served on the business day after it is left in the document exchange box. (sec.112-ssec.3) In this rule— relevant address , of a person to be served, means— the person’s address for service; or for an individual who does not have an address for service— the individual’s last known place of business or residence; or if the individual is suing or being sued in the name of a partnership—the principal or last known place of business of the partnership; or for a corporation that does not have an address for service—its head office or its principal or registered office.

• (a) leaving it with someone who is apparently an adult living at the relevant address;
• (b) if there is no-one at the relevant address—leaving it at the relevant address in a position where it is reasonably likely to come to the person’s attention;
• (c) if the relevant address is within a building or area to which the person serving the document has been denied access—leaving it at the building or area in a position where it is reasonably likely to come to the person’s attention;
• (d) posting it to the relevant address;
• (e) if the person has given— (i) a fax number under these rules—faxing the document to the person; or (ii) an email address under these rules—emailing the document to the person;
• (i) a fax number under these rules—faxing the document to the person; or
• (ii) an email address under these rules—emailing the document to the person;
• (f) if the solicitor for the person has— (i) an exchange box at a document exchange—leaving the document in the exchange box or another exchange box available for documents to be transferred to the solicitor’s exchange box; or (ii) a fax—faxing the document to the solicitor; or (iii) an email address—emailing the document to the solicitor;
• (i) an exchange box at a document exchange—leaving the document in the exchange box or another exchange box available for documents to be transferred to the solicitor’s exchange box; or
• (ii) a fax—faxing the document to the solicitor; or
• (iii) an email address—emailing the document to the solicitor;
• (g) an electronic means prescribed by practice direction.
• (i) a fax number under these rules—faxing the document to the person; or
• (ii) an email address under these rules—emailing the document to the person;
• (i) an exchange box at a document exchange—leaving the document in the exchange box or another exchange box available for documents to be transferred to the solicitor’s exchange box; or
• (ii) a fax—faxing the document to the solicitor; or
• (iii) an email address—emailing the document to the solicitor;
• (a) the person’s address for service; or
• (b) for an individual who does not have an address for service— (i) the individual’s last known place of business or residence; or (ii) if the individual is suing or being sued in the name of a partnership—the principal or last known place of business of the partnership; or
• (i) the individual’s last known place of business or residence; or
• (ii) if the individual is suing or being sued in the name of a partnership—the principal or last known place of business of the partnership; or
• (c) for a corporation that does not have an address for service—its head office or its principal or registered office.
• (i) the individual’s last known place of business or residence; or
• (ii) if the individual is suing or being sued in the name of a partnership—the principal or last known place of business of the partnership; or

sec.113 Service in relation to a business

This rule applies if— a proceeding is brought against a person in relation to a business carried on by the person under a name other than the person’s name; and the name is not registered on the Business Names Register; and the proceeding is started in the name under which the person carries on the business. The originating process may be served by leaving a copy at the person’s place of business with a person who appears to have control or management of the business at the place. r 113 amd 2012 SL No. 60 s 8 (sec.113-ssec.1) This rule applies if— a proceeding is brought against a person in relation to a business carried on by the person under a name other than the person’s name; and the name is not registered on the Business Names Register; and the proceeding is started in the name under which the person carries on the business. (sec.113-ssec.2) The originating process may be served by leaving a copy at the person’s place of business with a person who appears to have control or management of the business at the place.

• (a) a proceeding is brought against a person in relation to a business carried on by the person under a name other than the person’s name; and
• (b) the name is not registered on the Business Names Register; and
• (c) the proceeding is started in the name under which the person carries on the business.